Intellectual property protection (IPP) has become a core national security concern of the United States, and consequently it’s worth thinking about how the Biden administration will approach questions of intellectual property (IP) law. While Biden does not have an extensive history of engagement with IP law, his long Senate career and his time as vice president witnessed profound changes in how the United States treats IP protection, especially on the international stage. Given that everyone now grants the importance of intellectual property, what new policies can we expect from Biden’s administration?
In light of Biden’s long political career, it is unsurprising that his ideas on intellectual property protection run largely toward the mainstream. Biden was part of a bipartisan Senate consensus on the increasing importance of IP protection, and was on board with Obama administration policy in the area. Like the Obama and Trump (themselves following policy established by Clinton and Bush) administrations, the Biden administration is likely to treat IP questions as a crucial component of national security.
Broadly speaking, we should not expect Biden to diverge from much of the substance of Trump’s foreign IP policy, which has involved tighter protection against espionage and more aggressive use of tools to deter spying. By and large, the trendlines for these policies were established during the Obama-Biden administration. We can, however, expect that Biden will pursue more formal and multilateral means of achieving that substance, including trade agreements in both Europe and the Pacific. Indeed, while Trump made plenty of noise about intellectual property protection, the global IP regime regressed during his administration, both because of a lack of attention and because of Trump’s disinterest in multilateral negotiations. Biden, like Obama, may choose to deal with China in a formal bilateral setting, attempting to limit espionage to a tolerable level.
For its part, Biden’s campaign promised to make aggressive efforts to prevent foreign intellectual property theft, while at the same time reforming aspects of domestic trade secret law that limit employee mobility. Biden is likely to have much better relations with the higher education industry than Trump, who treated the university system with hostility. This could have implications for the ownership of intellectual property associated with university research, with the prospect that some seed varieties could become more available across the U.S. agricultural sector. How this would affect international availability of such progress remains uncertain.
Last but not least, Vice President-elect Kamala Harris sponsored the Deterring Espionage by Foreign Entities through National Defense (DEFEND) Act, which would increase damages and extend the statute of limitation for trade secret theft, and (perhaps more importantly) facilitate extraterritorial prosecution of violators. While this never became law, it is nevertheless revelatory regarding Harris’ thinking on IPP, and deserves careful attention of its own. Generally speaking, however, we should expect to see tactical differences between the Biden and Trump approaches to IPP, while the core strategic aims will remain the same.