In a previous column we probed some of intellectual property protection policies that the Biden administration may undertake in the coming months to put its own stamp on U.S. intellectual property (IP) law. Biden has already committed to treating intellectual property as a core national and economic security concern, and we can expect that his administration will continue many of the broad policy outlines established across the Bush, Obama, and even Trump presidencies.
Today we take a closer look at the IP policies favored by Vice President-elect Kamala Harris, and in particular the DEFEND act, a piece of legislation sponsored by the incoming vice president during her time in the Senate. Harris had a history of pursuing IP violators even before she entered the Senate. As attorney general of California, she sued textile producers in India and China for copyright piracy, and also for the misappropriation of properly licensed software. As vice president, Harris will have influence both over executive branch policy and legislation while presiding over a closely divided Senate.
In the Senate, Harris sponsored the Deterring Espionage by Foreign Entities through National Defense (DEFEND) Act, which increases damages and extends the statute of limitation for trade secret theft, and (perhaps more importantly) facilitate extraterritorial prosecution of violators. This last would allow claimants recourse for damages inflicted abroad, and has long been considered a core consideration for maintaining secure international supply chains. While this never became law, it is nevertheless revelatory regarding Harris’ thinking on IPP.
While patents have a multitude of international protections, not limited to the fact that firms and inventors can register patents in multiple countries, trade secret protection has been far more tricky. Setting up production abroad inevitably creates trade secret vulnerabilities, as both workers and corporate partners have an incentive to steal and replicate methods. Adjudicating trade secret theft on the home terrain of the thieves has long been seen as a handicap for American firms.
There’s reason to think that aspects of the DEFEND Act will find their way into law. The Biden administration is certainly contemplating policies to boost protection of U.S. technology and IP. Obviously, Harris will have considerable input into policy, as her history as a U.S. Senator and role in the Senate (where she will break ties in an otherwise oft-deadlocked chamber) suggest. Many also regard Harris to be the heir apparent of President Biden, who may or may not seek a second term.
Overall, we can expect Harris’ influence on the Biden administration’s IP policy to be strongly in favor of creating and enhancing multifaceted policies for countering trade secret theft, framed within a general pursuit of relatively open trading policies. Taken together, the Biden-Harris intellectual property policies seem geared toward increasing protection for U.S. firms abroad while also enabling those firms to capture some of the gains of international supply chains. That represents a fine-tuning of Obama-Biden administration policies, and a turning away from some of the more protectionist measures pursued by the Trump administration.