As Biden Presidency Nears, Concerns Over Return to Obama-Era IP Politics Loom Large

As of the time of publication, the Associated Press had called 264 electoral college votes for Joe Biden in the 2020 Presidential Election. While many states are still counting and legal challenges have been filed by the Trump Administration in several of them, all signs indicate that Biden will likely be inaugurated President on January 20, 2021. What this means for IP will take months to parse.

It is no understatement to point out that concrete details on IP policy are lacking on Joe Biden’s presidential platform. A site-specific search for intellectual property (e.g., “intellectual property” site:joebiden.com) returns only seven results on Google Search, the top two of which are links to the Limited License and Terms and Conditions pages for Biden. Similar results occur when running site-specific searches for “copyright” and “trademark” instead of “intellectual property.” Without question, the Biden campaign cares about protecting its own IP.

Reading Between the Lines

Perhaps the best indication of Biden’s own views on IP are found on his “Made in America” platform page. This page contains the most references to “innovation” on joebiden.com and discusses the creation of “millions of new manufacturing and innovation jobs throughout all of America” during a Biden presidency. After charging the administration of President Trump with mainly relying on trickle-down economics for his innovation strategy, the Biden “Made in America” platform promises to invest $300 million in research and development programs in areas like electric vehicles, 5G networks and artificial intelligence. Together with a pledge to spend $400 billion in procurement investments on American-made goods, the Biden campaign claims that it will create 5 million American jobs in manufacturing and innovation.

Intellectual property protections are typically where the rubber meets the road as far as implementing an innovation policy, however, and mentions of intellectual property rights are relatively muted in this part of Biden’s platform. In discussing procurement commitments, Biden’s campaign indicates that it will commit to future purchases in advanced industries to create new jobs and “protect[] our intellectual property and national security from American adversaries that have gone unaddressed by Trump.” Elsewhere on this page, Biden indicates that he will “fight[] back against unfair trade practices and the theft of American intellectual property” and also “[c]onfront foreign efforts to steal American intellectual property” better than President Trump, whose “phase one” deal to relax trade tensions with China allowed cyber attacks and forced technology transfer to continue in that country, according to the Biden campaign.

However, this lip service paid to the prospects of American IP owners begs a question about the elephant in the Democratic Party’s presidential campaign room: Biden was Vice President to former President Barack Obama, whose administration was arguably not kind to the most vulnerable stakeholders in America’s intellectual property system. The America Invents Act (AIA) was passed into law with great support from the Obama Administration, creating a series of patent validity proceedings at the Patent Trial and Appeal Board (PTAB) which have been very controversial because of the incredible burden those PTAB trials have forced upon patent owners seeking to vindicate their IP rights against infringers. There is a strong sentiment among well-versed observers of the U.S. patent system that Obama’s approach belied an anti-patent bias that will continue to infect Obama’s legacy. As IPWatchdog Founder Gene Quinn put it in a December 2016 article excoriating the Obama Administration’s joint strategic plan for IP enforcement between 2017 and 2019:

Simply stated, the Obama Administration can write all they want about the importance of the patent system and how patents are critically important for innovation, but the reality is that the future of American innovation has been forfeited (or at least heavily mortgaged) by a calculated, intentional, and willful dismantling of the U.S. patent system for the benefit a handful of politically well connected companies that helped President Obama get elected and then re-elected.

Biden’s campaign platform discusses the protection of American IP from foreign actors abroad, but there’s no indication that he’s willing to take on what Quinn termed the “willful dismantling of the U.S. patent system” for the benefit of the enemy within, those “handful of politically well-connected companies” that were so helpful to Obama’s own political ascendancy.

Does Biden’s Presidency Mean the End of the ‘Iancu Effect’?

Further, patent owners who rely on certainty in their intellectual property rights would be right to worry about losing improvements to clarity in agency practices at the U.S. Patent and Trademark Office (USPTO) that have been implemented under the Trump Administration by current USPTO Director Andrei Iancu. Having inherited the direction of a USPTO that under former Director Michelle K. Lee many felt had largely lost touch with the realities facing patent applicants, Director Iancu has been a source of great optimism for IP stakeholders because of his dedication to clarifying Section 101 patent-eligibility in the Alice/Mayo era. The 2019 subject matter eligibility guidelines promulgated by the USPTO, for example, have been lauded as a much-needed step towards resolving the Section 101 mayhem. However, concerns about the limited impact of the Iancu Effect in the U.S. patent system are exacerbated with a Biden presidency looming. It’s unlikely that Director Iancu will remain at the USPTO under Biden, and we’re left to guess which political ally and/or vested interest will take the reins once Director Iancu is gone.

The few mentions of the word “patent” within the pages of JoeBiden.com takes these concerns and calcifies them into what should be a reasonable fear that patent owners will see a return to the anti-patent chaos that marked large portions of the Obama Administration. Under Biden’s COVID-19 supply chain policy page, Biden pledges to “[p]romote surge manufacturing capacity” in part by “[u]sing legal authorities during crises to ensure product designs and patents can be licensed and utilized quickly if needed to ramp up production in the U.S.” As Vice President, Biden worked to block compulsory patent licensing in India, but Democratic presidential hopefuls have been quick to embrace the misguided view that march-in rights under Bayh-Dole can control healthcare costs, so it wouldn’t be completely surprising if that view gains strength during a Biden presidency.

That view is reinforced by other mentions of patent rights in Biden’s platform pages. Biden’s plans for older Americans and healthcare both discuss improving the supply of generic drugs by combating drug industry practices under which branded pharmaceutical firms delay the entry of generics onto the market “even after the patent has expired.” The CREATES Act touted by Biden’s platform as a positive step in this regard doesn’t expressly limit patent rights, but there are always concerns that restrictive pricing controls proposed by politicians attempting to combat “evergreening” and “patent thickets” can have unintended consequences on innovation in the pharmaceutical industry—though both parties have championed such measures in the past. Perhaps the only other significant mention of patents on JoeBiden.com occurs in the candidate’s rural plan, discussing strategies to “[r]e-invest in land grant universities’ agricultural research so the public, not private companies, own patents to agricultural research… 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.”

Ultimately, we’ll have to wait and see what Joe Biden’s America actually portends for the U.S. patent system, but so far, it appears that patent and IP rights are not high on the Biden agenda.