Case 1:22-cv-00252-MSG Document 61-1 Filed 03/06/23 Page 1 of 4 PageID #: 1299
`Case 1:22-cv-00252-MSG Document 61-1 Filed 03/06/23 Page 1 of 4 PagelD #: 1299
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`EXHIBIT A
`EXHIBIT A
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`Case 1:22-cv-00252-MSG Document 61-1 Filed 03/06/23 Page 2 of 4 PageID #: 1300
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`Dear Judge Goldberg:
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`March 2, 2023
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`On behalf of the Bayh-Dole Coalition, I'm writing in regard to the Department of Justice's
`recent statement of interest in the Arbutus Biopharma Corporation v. Moderna, Inc.
`(1:22-cv-00252).
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`The Coalition is not a party to this case and takes no position on the parties' substantive claims
`regarding infringement. Nor do we have any nancial interest in this case. 
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`The Bayh-Dole Coalition is a diverse group of innovation-oriented organizations committed to
`celebrating and protecting the Bayh-Dole Act. Our members stand united against misguided
`eorts to undermine the law by twisting its intent.  
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`Passed in 1980, Bayh-Dole transformed America's technology transfer system by enabling
`universities, nonprot research centers, and small businesses to own, patent, and license
`inventions that were supported by federal funding. Prior to the law, tens of thousands of
`technological breakthroughs gathered dust on the proverbial laboratory shelf. 
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`Today, Bayh-Dole is credited with supporting the creation of more than 15,000 startups and
`more than 6.5 million jobs. 
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`All this rests on strong, reliable intellectual property rights. That is why we are deeply
`concerned by the statement of interest led by the Department of Justice on February 14, 2023 —
`and specically, the government's articulated interpretation of 28 U.S.C. §1498. 
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`By casting doubt on the enforceability of basic IP protections, the government's interpretation
`poses a threat to the very foundations of the U.S. patent system, as well as to the countless
`IP-intensive industries that depend on it.
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`As written, §1498(a) simply states that,
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`“Whenever an invention described in and covered by a patent of the United States is used or
`manufactured by or for the United States without license of the owner . . . the owner's remedy shall
`be by action against the United States in the United States Court of Federal Claims for the
`recovery of his reasonable and entire compensation for such use and manufacture."
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`Case 1:22-cv-00252-MSG Document 61-1 Filed 03/06/23 Page 3 of 4 PageID #: 1301
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`The purpose of the statute is analogous to eminent domain, i.e., to permit the government to
`fulll its essential purpose while nonetheless protecting the rights of patent owners from
`infringement by the government. In the event the government requires the use of patented
`technology, §1498(a) grants the patent-owner “reasonable and entire compensation" for that use.
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`In other words, §1498(a) makes plain that no entity — not even the federal government itself –
`can invade the patent property right without making the property owner whole. It is a
`compensatory statute; not a license to steal. Consequently, the statute serves to strengthen the
`reliability of the patent system.
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`However, in its statement of interest, the government advances a broad interpretation of
`§1498(a) that is not consistent with its historical use and interpretation. The Department of
`Justice argues that any contract entered into by the government, regardless of purpose, is “by or
`for the government" as invoked in §1498(a). 
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`Yet this overly broad interpretation of “government use" is plainly not the law's intent. If it
`were, that would imply that the government could seize a patent for any product it had ever
`contracted to purchase for any purpose, regardless of whether the private sector was already
`fullling that need. The text and legislative history of §1498(a) make it clear that it does not
`apply to products and services made by private companies that happen to be purchased by the
`government for transfer to others.  
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`The Department of Justice's distorted interpretation of §1498(a) and “government use" would
`produce serious adverse consequences for private-sector innovation in industries as varied as
`the life sciences, software, aerospace, and consumer electronics. Indeed, it would be the
`exception that swallows the rule, and it would undermine the very purpose for §1498, and
`ultimately the entire U.S. patent system.
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`My organization's core belief is that reliable, consistently enforced property rights in the form of
`patents are essential to a dynamic, prosperous, innovation-driven economy. Strengthening and
`extending IP protections was the chief aim of the Bayh-Dole Act, which ignited a historic era of
`U.S. technological innovation that continues to this day. But we can't take these essential legal
`protections for granted.
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`Without a strong system of IP rights, the incentive to spend decades developing state-of-the-art
`medicines, novel energy technologies, and other life-improving technologies would evaporate
`quickly. Investment in promising but risky areas of research would dry up. Independent
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`Case 1:22-cv-00252-MSG Document 61-1 Filed 03/06/23 Page 4 of 4 PageID #: 1302
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`inventors would struggle to enter the market. And revolutionary advances like the mRNA
`vaccines at the center of this case would be far rarer. 
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`If the government reserves the right to trample on IP protections for products it contracts to
`purchase, such a bleak future won't be far o.  That's why we urge the court to reject the
`reckless and unjustied interpretation of §1498 advanced in the government's statement of
`purpose, and defend the integrity of the U.S. patent system.
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`Sincerely,
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`Joseph P. Allen
`Executive Director
`Bayh-Dole Coalition
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