Key Takeaways
- • The Court of Federal Claims retained jurisdiction over a patent infringement suit filed by mNG Bio, LLC against the United States related to a COVID-19 vaccine developed under Operation Warp Speed, rejecting the government's motion to dismiss on three separate grounds.
- • The plaintiff's patent covers a fluorescent protein technology allegedly used without authorization in Moderna's COVID-19 vaccine developed under a 2020 U.S. government contract, establishing the factual nexus between the government and the private contractor.
- • The court clarified that 28 U.S.C. § 1500 does not divest jurisdiction when the Court of Federal Claims complaint is filed first, even if a parallel suit in district court is subsequently filed—the statute only applies when the non-federal claims court proceeding is filed first.
- • Section 1498(a)'s exclusivity provision does not bar parallel litigation against both the United States and Moderna when the plaintiff adequately pleads contractual provisions authorizing Moderna's conduct and government usage rights, distinguishing this case from situations where the contractor is the sole liable party.
- • The court found the plaintiff met pleading standards by plausibly alleging the contractual relationship between Moderna and the government, despite the defendant's reservation regarding which entity bears primary liability, preserving the viability of claims against both parties.
Summary
The Court of Federal Claims issued a significant ruling on June 12, 2026, in *mNG Bio, LLC v. United States* (No. 26-12), denying the U.S. government's motion to dismiss a patent infringement lawsuit tied to COVID-19 vaccine development. The decision clarifies important jurisdictional principles affecting concurrent federal claims court and district court litigation, particularly in cases involving government contractors performing work under federal contracts.
The underlying dispute concerns a patent claiming a fluorescent protein technology applicable to vaccine development. According to the complaint, mNG Bio alleges that ModernaTX, Inc. developed a COVID-19 vaccine using a fluorescence-based assay under a government contract awarded through Operation Warp Speed in 2020, and that this vaccine incorporated the patented technology without authorization. The plaintiff's litigation strategy involved filing suit against the United States in the Court of Federal Claims first, followed by filing a parallel action against Moderna in district court the next day—a sequencing choice that proved strategically significant to the court's jurisdictional analysis.
The government's motion to dismiss rested on three independent arguments. First, it invoked 28 U.S.C. § 1500, which the government contended mandated dismissal due to the parallel district court proceeding based on substantially similar operative facts. The court rejected this argument on statutory grounds, holding that § 1500 divests the federal claims court of jurisdiction only when the non-federal claims court lawsuit is filed first. Because mNG Bio filed in the Court of Federal Claims before filing in district court, the statute's divestiture provision did not apply. Second, the government argued that 28 U.S.C. § 1498(a)—which renders suit against the federal claims court the exclusive remedy against a private contractor when the allegedly infringing acts were performed on behalf of and for the benefit of the United States—precluded the simultaneous district court action against Moderna. The court disagreed, finding that mNG Bio's allegations regarding contractual provisions authorizing Moderna's conduct and granting government usage rights were sufficient to establish jurisdiction despite the parallel suit. Third, the government contended the plaintiff failed to state a claim because it had expressly reserved the right to argue that Moderna, rather than the government, was the responsible party. The court found these allegations of contractual relationship met the pleading standard and were not contradicted by the reservation.
The decision's practical impact extends to litigants pursuing patent infringement claims against government contractors. The ruling establishes that careful attention to filing sequence and precise pleading of contractual relationships between the government and contractors can preserve dual litigation pathways otherwise foreclosed by jurisdictional statutes. For investors and stakeholders with exposure to government contracting entities, particularly those in biotechnology and vaccine development, this decision underscores the ongoing litigation risk associated with Operation Warp Speed contracts and the complexity of intellectual property disputes at the intersection of public-private partnerships.
The underlying dispute concerns a patent claiming a fluorescent protein technology applicable to vaccine development. According to the complaint, mNG Bio alleges that ModernaTX, Inc. developed a COVID-19 vaccine using a fluorescence-based assay under a government contract awarded through Operation Warp Speed in 2020, and that this vaccine incorporated the patented technology without authorization. The plaintiff's litigation strategy involved filing suit against the United States in the Court of Federal Claims first, followed by filing a parallel action against Moderna in district court the next day—a sequencing choice that proved strategically significant to the court's jurisdictional analysis.
The government's motion to dismiss rested on three independent arguments. First, it invoked 28 U.S.C. § 1500, which the government contended mandated dismissal due to the parallel district court proceeding based on substantially similar operative facts. The court rejected this argument on statutory grounds, holding that § 1500 divests the federal claims court of jurisdiction only when the non-federal claims court lawsuit is filed first. Because mNG Bio filed in the Court of Federal Claims before filing in district court, the statute's divestiture provision did not apply. Second, the government argued that 28 U.S.C. § 1498(a)—which renders suit against the federal claims court the exclusive remedy against a private contractor when the allegedly infringing acts were performed on behalf of and for the benefit of the United States—precluded the simultaneous district court action against Moderna. The court disagreed, finding that mNG Bio's allegations regarding contractual provisions authorizing Moderna's conduct and granting government usage rights were sufficient to establish jurisdiction despite the parallel suit. Third, the government contended the plaintiff failed to state a claim because it had expressly reserved the right to argue that Moderna, rather than the government, was the responsible party. The court found these allegations of contractual relationship met the pleading standard and were not contradicted by the reservation.
The decision's practical impact extends to litigants pursuing patent infringement claims against government contractors. The ruling establishes that careful attention to filing sequence and precise pleading of contractual relationships between the government and contractors can preserve dual litigation pathways otherwise foreclosed by jurisdictional statutes. For investors and stakeholders with exposure to government contracting entities, particularly those in biotechnology and vaccine development, this decision underscores the ongoing litigation risk associated with Operation Warp Speed contracts and the complexity of intellectual property disputes at the intersection of public-private partnerships.
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