      IN THE UNITED STATES DISTRICT COURT  FOR THE DISTRICT OF DELAWARE    ARBUTUS BIOPHARMA CORPORATION  :  and GENEVANT SCIENCES GMBH,  :                :  CIVIL ACTION          Plaintiffs,    :                :      v.          :                :  NO. 22-252  MODERNA, INC. and MODERNATX, INC., :                  MEMORANDUM OPINION    Goldberg, J.              March 10, 2023      Context is important. This is particularly so in litigation and in considering the stage of a  proceeding. In the patent infringement matter before me, which is at the pleading stage, the parties,  now joined by the United States and severalAmici Curiae, hotly contest the application of 28 U.S.C.  § 1498(a). This statute instructs that whenever it is alleged that a patent has been used by the United  States in an infringing manner, litigation shall occur in the United States Court of Federal Claims,  which is where Defendants Moderna, Inc. and Modernatx, Inc. (collectively, “Moderna”) urge that  a majority of this case must be decided.  It is well settled that an accused infringer, such as Moderna, bears the burden of establishing  under § 1498(a) that the infringing use is “for the Government” and “with authorization and consent  of the Government.” Sevenson Envt’l Servs., Inc. v. Shaw Envt’l, Inc., 477 F.3d 1361, 1365 (Fed.  Cir. 2007). These standards clearly implicate factual considerations, and in the context of the  pleading stage of this case, where I am obligated to assume the veracity of the facts pled in the  Complaint, weighing facts is inappropriate. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d  Cir. 2011). Consequently, the Government’s recently filed Statement of Interest does not change  Case 1:22-cv-00252-MSG Document 64 Filed 03/10/23 Page 1 of 4 PageID #: 1320