For those unfamiliar, a quick detour to explain how we got here, before I turn to some lessons we can all take from this settlement. After the federal circuit affirmed the denials of Moderna\u2019s IPRs, speculation arose as to when Arbutus would pull the trigger on a district court patent infringement case. The answer came on the last day in February of 2022, when Arbutus filed against Moderna in the district of Delaware, only to see the case reassigned to a visiting judge from Philadelphia, the Hon. Mitchell S. Goldberg. Indicative of how long patent cases can take to get to trial, Goldberg retired from the bench in 2025, taking a position<\/a> as senior counsel in Blank Rome\u2019s litigation group. Prior to leaving the bench, trial in the dispute had been moved from late September 2025 to March 9, 2026. And when Goldberg\u2019s replacement, the EDPA\u2019s Hon. Joshua D. Wolson took over the case in July 2025, the schedule for summary judgment and other pretrial motions had already been set. To his credit, Wolson hewed closely to that pretrial schedule, refusing to entertain a shift in the trial date and doing everything in his power to get the case ready for trial.<\/p>\n One key set of developments on that front was the court\u2019s decisions on various pending summary judgment motions over the course of this February. Perhaps most important for Moderna\u2019s purposes was the court\u2019s handling of Moderna\u2019s attempt to shift the damages burden from itself to the U.S. government, based on 28 U.S.C. \u00a71498.\u00a0The court\u2019s rejection of that attempt was mitigated somewhat by a grant of summary judgment in Moderna\u2019s favor on Arbutus\u2019 doctrine of equivalents positions in that same decision. But in the series of decisions that followed, things got progressively worse for Moderna heading into trial. First, the court gutted Moderna\u2019s prior art-based invalidity defenses on summary judgment, finding that IPR estoppel applied to Moderna\u2019s obviousness defenses and that Moderna\u2019s derivation defense failed as a matter of law. Then, Wolson granted Arbutus\u2019 motion to exclude Moderna\u2019s damages expert\u2019s opinions on a reasonable royalty and noninfringing alternatives. At the same time, the court reserved judgment on Moderna\u2019s motion to exclude Arbutus\u2019 damages expert\u2019s testimony, whereby she intended to argue to the jury that Moderna would have agreed to a royalty of $4 billion to $5 billion-plus for the patented technology. Those setbacks, perhaps coupled with jury research that may have suggested that a huge verdict against Moderna was possible, clearly contributed to the mammoth courthouse steps settlement announced last week.<\/p>\n For its part, the settlement is a creative one, with a large upfront \u2014 and guaranteed \u2014 payment from Moderna to Arbutus for $950 million payable in July of this year. That alone would make this one of the more successful pharma royalty patent assertions of all time, but there is more, namely that pending the results of Moderna\u2019s appeal of the \u00a71498 issue, Moderna may pay up to $1.3 billion more, for a total potential payout of $2.25 billion. While that almost-unprecedented amount for a patent settlement may be striking, early indications are that Moderna made the right call. Moderna\u2019s stock jumped over 10% on the day after the settlement was announced, adding billions to the company\u2019s market cap. Perhaps more importantly, the bankruptcy threat presented to Moderna from a potential megaverdict was avoided, giving the company a lifeline to try to replicate past success in an uncertain post-COVID future.<\/p>\n In my view, the court\u2019s deft handling of the pretrial period contributed mightily to seeing this long-running and high-value dispute get to resolution before trial. For one, keeping the pressure of the trial date on the parties is a long-known tactic for driving settlement \u2014 one employed in courts with heavy patent dockets, (e.g., EDTX), to great effect. Keeping that threat of trial alive, however, also required the court to diligently address the pending pretrial motions, which it did to its credit. And the coup-de-grace of holding off on perhaps the most important pretrial motion outside of the \u00a71498 issue was also a Wolson masterstroke, by keeping the question alive for both sides as to what Arbutus\u2019 damages expert would be able to ask for at trial. That mutual risk surely helped drive the settlement into a range where both sides felt some pain, while also being free to pursue their other endeavors from a position of greater strength.\u00a0<\/p>\n For Moderna, that translates into its ongoing efforts to replicate the commercial success of its COVID-19 vaccine. For Arbutus, focus shifts to its ongoing case pending in New Jersey against Pfizer, where it will now hope to replicate its patent assertion victory against Moderna in the form of another megabucks settlement or even a trial win. And for those of us who have been following this dispute for years, the lessons learned along the way will serve us in good stead when we are called upon to comment on other cases, whether as counsel for the parties or as a consultant to interested investors.<\/p>\n Please feel free to send comments or questions to me at gaston@k2k.law or via Twitter: @gkroub<\/a>. Any topic suggestions or thoughts are most welcome.<\/p>\n Gaston Kroub lives in Brooklyn and is a founding partner of\u00a0<\/em><\/strong>Kroub, Silbersher & Kolmykov PLLC<\/em><\/strong><\/a>, an intellectual property litigation boutique, and\u00a0<\/em><\/strong>Markman Advisors LLC<\/em><\/strong><\/a>, a leading consultancy on patent issues for the investment community. Gaston\u2019s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at\u00a0<\/em><\/strong>gkroub@kskiplaw.com\u00a0<\/em><\/strong><\/a>or follow him on Twitter:\u00a0<\/em><\/strong>@gkroub<\/em><\/strong><\/a>.<\/em><\/strong><\/p>\n The post Super Settlement Spike<\/a> appeared first on Above the Law<\/a>.<\/p>\n How often can I spend years watching a case go from filing to settlement when I am not an attorney of record for one of the parties? It happens, usually when the case at issue is one of high value and interest to the investment community. Yes, I continue to consult for investors on a variety of ongoing third-party patent cases of interest to them, but usually the interest on the investor side tends to coalesce around certain key events, such as a Markman hearing or trial. One major exception to that concentration of interest around litigation inflection points \u2014 rather than a general interest for the lifespan of the case in its entirety \u2014 was the long-running dispute between Arbutus and Moderna, concerning Arbutus\u2019 patents on the lipid nanoparticle technology that allows for delivery of mRNA-based vaccines, including the COVID-19 vaccine known as Spikevax. Throughout, there was an expectation that the dispute could end up as of the most valuable patent assertions of all time, hence the constant interest.<\/p>\n In fact, the dispute predated the pandemic, with Moderna\u2019s unsuccessful attempts to invalidate Arbutus\u2019 patents via IPR in the 2018\/2019 timeframe, around the time of Moderna\u2019s blockbuster IPO<\/a>, <\/strong>which valued the company at over $7.5 billion. It is safe to assume that Moderna\u2019s investors at the time never dreamed that the company would end up selling nearly $20 billion in COVID-19 vaccines in 2022 alone. The hullabaloo around the IPO, however, was more than enough to raise investor interest in the Arbutus patent issue, which is when I started discussing the case with investor clients. In other words, I have been discussing at least some of these patents for nearly half their lifespan. And I am going to miss discussing this case in the context of Moderna, now that a settlement<\/a> for the ages has been reached.<\/p>\n For those unfamiliar, a quick detour to explain how we got here, before I turn to some lessons we can all take from this settlement. After the federal circuit affirmed the denials of Moderna\u2019s IPRs, speculation arose as to when Arbutus would pull the trigger on a district court patent infringement case. The answer came on the last day in February of 2022, when Arbutus filed against Moderna in the district of Delaware, only to see the case reassigned to a visiting judge from Philadelphia, the Hon. Mitchell S. Goldberg. Indicative of how long patent cases can take to get to trial, Goldberg retired from the bench in 2025, taking a position<\/a> as senior counsel in Blank Rome\u2019s litigation group. Prior to leaving the bench, trial in the dispute had been moved from late September 2025 to March 9, 2026. And when Goldberg\u2019s replacement, the EDPA\u2019s Hon. Joshua D. Wolson took over the case in July 2025, the schedule for summary judgment and other pretrial motions had already been set. To his credit, Wolson hewed closely to that pretrial schedule, refusing to entertain a shift in the trial date and doing everything in his power to get the case ready for trial.<\/p>\n One key set of developments on that front was the court\u2019s decisions on various pending summary judgment motions over the course of this February. Perhaps most important for Moderna\u2019s purposes was the court\u2019s handling of Moderna\u2019s attempt to shift the damages burden from itself to the U.S. government, based on 28 U.S.C. \u00a71498.\u00a0The court\u2019s rejection of that attempt was mitigated somewhat by a grant of summary judgment in Moderna\u2019s favor on Arbutus\u2019 doctrine of equivalents positions in that same decision. But in the series of decisions that followed, things got progressively worse for Moderna heading into trial. First, the court gutted Moderna\u2019s prior art-based invalidity defenses on summary judgment, finding that IPR estoppel applied to Moderna\u2019s obviousness defenses and that Moderna\u2019s derivation defense failed as a matter of law. Then, Wolson granted Arbutus\u2019 motion to exclude Moderna\u2019s damages expert\u2019s opinions on a reasonable royalty and noninfringing alternatives. At the same time, the court reserved judgment on Moderna\u2019s motion to exclude Arbutus\u2019 damages expert\u2019s testimony, whereby she intended to argue to the jury that Moderna would have agreed to a royalty of $4 billion to $5 billion-plus for the patented technology. Those setbacks, perhaps coupled with jury research that may have suggested that a huge verdict against Moderna was possible, clearly contributed to the mammoth courthouse steps settlement announced last week.<\/p>\n For its part, the settlement is a creative one, with a large upfront \u2014 and guaranteed \u2014 payment from Moderna to Arbutus for $950 million payable in July of this year. That alone would make this one of the more successful pharma royalty patent assertions of all time, but there is more, namely that pending the results of Moderna\u2019s appeal of the \u00a71498 issue, Moderna may pay up to $1.3 billion more, for a total potential payout of $2.25 billion. While that almost-unprecedented amount for a patent settlement may be striking, early indications are that Moderna made the right call. Moderna\u2019s stock jumped over 10% on the day after the settlement was announced, adding billions to the company\u2019s market cap. Perhaps more importantly, the bankruptcy threat presented to Moderna from a potential megaverdict was avoided, giving the company a lifeline to try to replicate past success in an uncertain post-COVID future.<\/p>\n In my view, the court\u2019s deft handling of the pretrial period contributed mightily to seeing this long-running and high-value dispute get to resolution before trial. For one, keeping the pressure of the trial date on the parties is a long-known tactic for driving settlement \u2014 one employed in courts with heavy patent dockets, (e.g., EDTX), to great effect. Keeping that threat of trial alive, however, also required the court to diligently address the pending pretrial motions, which it did to its credit. And the coup-de-grace of holding off on perhaps the most important pretrial motion outside of the \u00a71498 issue was also a Wolson masterstroke, by keeping the question alive for both sides as to what Arbutus\u2019 damages expert would be able to ask for at trial. That mutual risk surely helped drive the settlement into a range where both sides felt some pain, while also being free to pursue their other endeavors from a position of greater strength.\u00a0<\/p>\n For Moderna, that translates into its ongoing efforts to replicate the commercial success of its COVID-19 vaccine. For Arbutus, focus shifts to its ongoing case pending in New Jersey against Pfizer, where it will now hope to replicate its patent assertion victory against Moderna in the form of another megabucks settlement or even a trial win. And for those of us who have been following this dispute for years, the lessons learned along the way will serve us in good stead when we are called upon to comment on other cases, whether as counsel for the parties or as a consultant to interested investors.<\/p>\n Please feel free to send comments or questions to me at [email\u00a0protected]<\/a> or via Twitter: @gkroub<\/a>. Any topic suggestions or thoughts are most welcome.<\/p>\n Gaston Kroub lives in Brooklyn and is a founding partner of\u00a0<\/em><\/strong>Kroub, Silbersher & Kolmykov PLLC<\/em><\/strong><\/a>, an intellectual property litigation boutique, and\u00a0<\/em><\/strong>Markman Advisors LLC<\/em><\/strong><\/a>, a leading consultancy on patent issues for the investment community. Gaston\u2019s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at\u00a0<\/em><\/strong>[email\u00a0protected]\u00a0<\/em><\/strong><\/a>or follow him on Twitter:\u00a0<\/em><\/strong>@gkroub<\/em><\/strong><\/a>.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" How often can I spend years watching a case go from filing to settlement when I am not an attorney of record for one of the parties? It happens, usually when the case at issue is one of high value and interest to the investment community. Yes, I continue to consult for investors on a […]<\/p>\n","protected":false},"author":3,"featured_media":145742,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-145741","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/03\/iStock_000044552904_Medium-e1446146912557-kz3iLr.jpg?fit=565%2C376&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/145741","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=145741"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/145741\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/145742"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=145741"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=145741"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=145741"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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