The NIH-Moderna Public-Private Partnership: A New Contractual Model for Securing Innovation

Abstract

The public–private partnership between the National Institutes of Health (“NIH”) and Moderna was considered “one of the few bright spots of the pandemic.” Yet as the NIH–Moderna collaboration progressed at an unprecedented pace, going from vaccine development to FDA authorization in nine months, cracks began to appear in the partnership. Public trust in vaccinations wavered, multiple patent disputes arose, and global frustration erupted over Moderna’s lack of commitment to equitable access to the vaccine that was largely paid for by U.S. taxpayers. This Article argues that the parties’ contractual agreements did shockingly little to support or, indeed, set up the public–private partnership for success in the first instance. By relying on boilerplate intellectual property clauses and foregoing any meaningful or relevant governance structures, these agreements failed to address the unique challenges and competing interests inherent in such a partnership. Drawing on an original case study of the NIH–Moderna contractual agreements and insights from relational contract theory, this Article offers a novel approach to structuring public–private partnerships. It proposes model contractual language designed to promote transparency, resolve disputes, balance incentives, and build resilient, cooperative relationships. These provisions provide a starting point for crafting more effective collaboration agreements that can maximize the potential of public–private partnerships while ensuring equitable access to the commercialized products of government-funded innovation