Brett Shumate And DOGE Can Stop Biden’s $5 Billion Moderna Bailout. Here’s How.

The core idea behind patent law is as old as the republic itself: those who create are entitled to the fruits of their creation. This principle is not only constitutional, enshrined in Article I, Section 8, Clause 8, but foundational to our free-market economy. It incentivizes discovery, fosters competition and ensures that success is earned, not commandeered. It is therefore a matter of no small concern that the Biden administration, through a maneuver by the Department of Justice’s Civil Division, attempted to overturn this principle—quietly, bureaucratically and with the full force of federal authority—to the benefit of Moderna, a well-connected pharmaceutical giant whose COVID-era success was built upon taxpayer largesse.

Let us begin with the facts. Moderna received nearly $10 billion in federal funds to develop, test and distribute its mRNA vaccine. Prior to the pandemic, Moderna’s market cap hovered around $6.5 billion. By 2021, it had soared to over $100 billion. Its vaccine generated over $36 billion in revenue and an estimated $25 billion in profit. The taxpayer’s return on this staggering public investment? A modest supply of vaccine doses—and a pending contingent liability of $5 billion or more.

Why the liability? Because Moderna, in its haste to corner the pandemic market, appears to have incorporated patented lipid nanoparticle (LNP) technology developed by smaller firms, Arbutus Biopharma and Genevant Sciences. These companies did not grant Moderna a license for COVID-19 applications. Moderna knew this. It had previously licensed some rights through a third party, but that license did not cover pandemic use. In fact, Moderna spent years trying to invalidate Arbutus’ patents. When that failed, it simply ignored them.

So Arbutus and Genevant sued. Their claim is straightforward: Moderna stole protected intellectual property to generate tens of billions in revenue. This is not a claim of greed; it is a claim of theft. Moderna did not merely fail to compensate its benefactors. It actively sought to erase them from the equation.

And this is where the Biden administration stepped in. Rather than allowing the case to proceed on its merits—a simple matter of private law determining whether one company infringed on the patents of another—the Department of Justice, under Civil Division head Brian M. Boynton, intervened with an audacious gambit. Invoking 28 U.S.C. § 1498(a), a law dating back to World War I, the DOJ argued that because Moderna developed its vaccine “for the government” under Operation Warp Speed, it should be shielded from liability. Instead, the United States government should be substituted as the defendant. In essence, Boynton proposed that the taxpayers who had already funded Moderna’s vaccine should now foot the bill for its patent infringement as well.

§ 1498(a) was not designed for this. It is a statute born of wartime exigency, crafted to permit the government to use patented inventions during national emergencies—think airplane parts or munitions—without the threat of injunction. It ensures that inventors can still sue the government for compensation, but it places the burden of payment on the state, not on the contractors. The logic is clear: if a battlefield radio infringes a patent, the government, not the soldier using it, is accountable. But this provision was never meant to indemnify a contractor’s deliberate infringement of patents for commercial gain, especially when the end product is sold to private consumers through public distribution.

The court saw through the charade. In March 2023, U.S. District Judge Mitchell Goldberg rejected Moderna’s motion to shift liability as “premature,” but the warning was clear: the company planned to renew its motion at trial in September 2025. And unless action is taken now, Boynton’s maneuver could still succeed.

This is not merely a legal abstraction. It is a live threat to the public purse and the rule of law. If Moderna is permitted to pass off its liability to the government under the guise of a federal contract, the precedent is toxic. It tells every government contractor, pharmaceutical or otherwise: infringe now, pay never. Uncle Sam will pick up the tab.

Meanwhile, the optics grow darker. Just as Boynton filed his Statement of Interest defending Moderna, Moderna settled a long-running dispute with the National Institutes of Health by paying $400 million for use of NIH-developed technology—technology Moderna had previously resisted acknowledging. That payment, curiously timed within days of the DOJ’s Statement of Interest, went to the National Institute of Allergy and Infectious Diseases, then still under the aegis of Dr. Anthony Fauci. Portions of it were disbursed to NIH scientists as personal royalties, with individual payouts reportedly reaching $450,000. Fauci himself refused to disclose the recipients. If these were private-sector scientists, such discoveries would belong to the company. Instead, government employees enriched themselves while taxpayers watched their $10 billion investment vanish into a morass of legal liabilities and pharmaceutical profiteering.

This is not a conspiracy theory. It is an accounting. Under Secretary Scott Bessent and Secretary Howard Lutnick, the Department of the Treasury is now exploring sovereign wealth structures that would have captured upside from publicly funded ventures. Had their plan—to secure equity warrants in firms receiving large federal grants—been in place, the American people would have reaped billions from Moderna’s surge. Instead, they were left holding the bag.

There is still time to correct course. Under 28 U.S.C. § 517, the Department of Justice may rescind or revise positions previously taken in litigation. The new acting assistant attorney general for the Civil Division, Brett Shumate, has the authority to reverse Boynton’s ill-conceived and seemingly corrupt intervention. He can decline to substitute the United States in place of Moderna. He can inform the court that the government no longer supports the invocation of § 1498(a) in this context. And he should.

Why? Because the facts do not support Moderna’s claim. Because the law does not authorize such a maneuver. And because the moral stakes could not be clearer.

A company that received $10 billion in public money, made $36 billion in revenue and $26 billion in profit, paid $400 million in hush-money royalties to government scientists, and now seeks to have the taxpayer absorb its legal liability is not a partner. It is a parasite. The only proper response is repudiation.

Shumate has an opportunity—and it’s a layup. He need not reinvent the law. He need only affirm it. He need not attack Moderna. He need only defend the taxpayer. A simple letter to the court, filed under § 517, could end this charade and return the burden of infringement to its proper place: on the infringer. It would also add another $5 billion to the growing list of taxpayer savings being delivered by Elon Musk’s Department of Government Efficiency. This is a slam-dunk win for DOGE—and a signal that the era of corporate impunity is over.

This is not a complicated case. It is not a partisan case. It is a question of first principles. Do we still believe that creators deserve to own their work? Do we still believe that public servants should serve the public, not themselves? Do we still believe that government is accountable to the people, and not the other way around?

If the answer is yes, then Brett Shumate should act. Not in September. Not after a verdict. Now.

Before the public pays again for what Moderna already stole.

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