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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 22-252-MSG
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`ARBUTUS BIOPHARMA CORP., et al.
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`Plaintiff,
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`v.
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`MODERNA, INC., et al.
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`Defendant.
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`MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE
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`Professor Adam Mossoff and the Amici Curiae identified below (collectively
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`“Amici”) respectfully move this Court, for leave to file the Letter Brief attached hereto as
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`Exhibit A, as Amici Curiae in response to the Statement of Interest filed by the United
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`States of America (the “Government”) (D.I. 49) and the Court’s February 16, 2023 Order
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`requesting briefing on the impact of the Government’s Statement of Interest (D.I. 51). In
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`support of this motion, Amici state the following:
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`1.
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`On November 2, 2022, the Court issued a Memorandum Opinion denying
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`the Moderna Defendants’ partial motion to dismiss the complaint filed in the above
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`captioned action under 28 U.S.C. § 1498(a) (the “Opinion”). (D.I. 31.)
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`2.
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` The Opinion noted that a determination on the applicability of Section
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`1498(a) was premature because, among other reasons, the Government had not filed a
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`statement of interest in this action providing its express consent to the complained actions.
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`(Id.)
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`49.)
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`3.
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`On February 14, 2023, the Government filed a Statement of Interest. (D.I.
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`{BAY:02741383v1}
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`Case 1:22-cv-00252-MSG Document 56 Filed 03/02/23 Page 2 of 3 PageID #: 987
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`4.
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`In response, the Court directed the Government and the parties to submit
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`letter briefs of “no more than pages regarding the impact of the Government’s Statement
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`of Interest on the scheduling of this matter.” (D.I. 51.)
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`5.
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`Amici are law professors, scholars, and former government officials who
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`have researched and published in patent law, takings law, or both. They have an interest in
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`ensuring the integrity of the patent system and the proper application of the federal
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`government’s eminent domain power to patented inventions, but otherwise have no stake
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`in the parties or in the outcome of this case.
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`6.
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`Amici seek leave to offer supporting legal analysis that is necessary for this
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`Court to consider in light of the Statement of Interest by the Government: The express text,
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`legislative history, and judicial interpretation of Section 1498 establish that this is an
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`eminent domain statute that has no applicability to the purchase contract between the
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`Moderna Defendants and the federal government.
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`7.
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`Plaintiffs have consented to the filing of this Letter Brief on behalf of the
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`Amici; the Moderna Defendants oppose this filing. Since the Government is not yet a party
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`to this action, the Amici did not seek the Government’s position on this motion.
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`WHEREFORE, Amici respectfully request that the Court grant this Motion and
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`accept the Letter Brief attached hereto as Exhibit A.
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`{BAY:02741383v1}
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`[Remainder of page intentionally left blank.]
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`2
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`Case 1:22-cv-00252-MSG Document 56 Filed 03/02/23 Page 3 of 3 PageID #: 988
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`Dated: March 2, 2023
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`BAYARD, P.A.
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` /s/ Stephen B. Brauerman
`Stephen B. Brauerman (No. 4952)
`600 N. King Street, Suite 400
`Wilmington, Delaware 19801
`Telephone: (302) 655-500
`Facsimile: (302) 658-6395
`sbrauerman@bayardlaw.com
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`Attorneys for Proposed Amici Law Professors,
`Scholars, and Former Government Officials
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`{BAY:02741383v1}
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`2
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