The Biden administration officially begins on January 20, 2021 – and there are already several indications of the impact it will have on intellectual property law and policy. In this article, we will take a closer look at Biden’s “Made in America” program, “Plan for Rural America”, and the DEFEND Act. Together, these initiatives give us an idea of what to expect when it comes to IP rights and policy in the United States over the next four years.
Protecting American innovation
One of the cornerstones of President-elect Biden’s economic plan is his “Made in America” program that seeks to provide incentives and support for companies whose products are sourced and manufactured domestically. According to the program’s web page, when Biden takes office he will make a national commitment to “confront foreign efforts to steal American intellectual property.”
On the website, he goes on to say: “From cyberattacks to forced technology transfer to talent acquisition, American ingenuity and taxpayer investments are too often fueling the advances in other nations.” He even specifies one particular aggressor: “China’s government and other state-led actors have engaged in an assault on American creativity.”
Protecting U.S. national security
Elsewhere on the “Made in America” page, Biden outlines a commitment to invest in “advanced industries like cutting-edge telecommunications and artificial intelligence, not only creating new, lasting American jobs, but protecting our intellectual property and national security from threats from American adversaries.”
In fact, there is widespread agreement that protecting intellectual property is tied to national security. FBI Director Christopher Wray — who is likely to continue serving his 10-year term during Biden’s administration — recently referred to Chinese hacking and industrial espionage as the greatest long-term “threat to our economic security – and by extension, to our national security.”
Protecting American agriculture technology
In his “Plan for Rural America,” Biden suggests that agricultural patents awarded to private entities for inventions derived from publicly funded research may deprive the public of their benefit. He proposes that the U.S. should “re-invest in land grant universities’ agricultural research so the public, not private companies, own patents to agricultural research.”
He goes on to say, “Our farmers need new technologies to compete in world markets while protecting our soil and water. These new technologies — and the next new seeds — should be developed and owned by the American people, not private companies who can use patents to expand profits.”
Protecting U.S. trade secrets abroad
Another clue to the IP direction of the Biden administration may come from the Deterring Espionage by Foreign Entities through National Defense (DEFEND) Act, which Vice President-elect Kamala Harris reintroduced in the Senate last year.
As defined on her web page, Harris says the purpose of the bill is “to expand the legal tools available to American victims of trade theft” in response to “the growing and increasingly sophisticated threat of economic and industrial espionage.”
Like Biden’s “Made in America” program, Harris also names China as a concern – and a reason for implementing this bill. “The legislation would act as a strong deterrent to foreign actors, such as China, committing these acts in the first place.”
Specifically, the bill proposes to increase damages levied against actors stealing trade secrets, extend the statute of limitations for violations, and expand the scope of current relevant regulations to encompass offenses committed outside the U.S.
Concerns over domestic trade secret protection
While the DEFEND Act would strengthen trade secret protection internationally, there are concerns about another aspect of Biden’s plans that may have a detrimental effect on domestic trade secret protection: his opposition to non-compete and no-poach contracts for U.S. employees.
Biden has tweeted that these “agreements do nothing but suppress wages” and that eliminating them would improve employee mobility and wages. While Biden’s concern for employee mobility is understandable, many company leaders view such agreements as safeguards against the spread of trade secrets when people move from company to company, and there is fear that eliminating them would weaken trade secret protections domestically.