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

By Steve Brachmann
November 5, 2020

“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 Gene 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.”

Joe BidenAs 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.

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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.

 

The Author

Steve Brachmann

Steve Brachmann is a freelance journalist located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He writes about technology and innovation. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients and is available for research projects and freelance work.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 23 Comments comments. Join the discussion.

  1. Barney Molldrem` November 6, 2020 9:39 am

    Biden exhibits little or no consideration for the reality of innovation and for motivation and reward to create it. Can the support for electric vehicles really be so small as $300 Million? Tesla/Elon Musk as well as other private car makers and battery makers have already invested far more than that in vehicle research, battery research, AI and controls. I can only hope that he touches nothing in this area and leaves Andre Iancu in place, at least until the 2022 mid-terms.

  2. Curious November 6, 2020 10:28 am

    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 elephant in the room is that the Supreme Court, which has made the biggest mess for American IP owners, has been led by conservatives for a very long time.

    While the Obama administration gave us Michelle Lee, we also got David Kappos, who undid a lot of the terrible things that happened on Jon Dudas’s watch (also an appointee by a conservative).

    As I maintained then and I maintain now, I suspect that the Obama administration cared very little about intellectual property issues. I think this is evident by the extreme differences between Kappos and Michelle Lee. My belief is that the real decision making regarding IP issues was pushed further down the chain of command.

    I don’t see the current administration as being any friend of the patent system. Frankly, they probably don’t care one whit (and I can say that about most administrations). While Iancu was better than Lee, that is hardly a high hurdle to overcome. Regardless, I’m still getting many of the same lousy rejections out of 3600 that I got before Iancu. We are also starting to see the same type of game playing that was the hallmark of the Dudas regime of terror — the particular issue that comes to mind was raised in an article on IPWatchdog not too long ago about how some examiners are immediately going final after RCEs. While there have been some changes for the better, these are certainly not the ‘glory days’ at the Patent Office for patent holders and patent applicants.

    As I have written before, Senator Christopher Coons has been one of Joe Biden’s most outspoken proponents and he has a strong relationship with Joe Biden. To the extent that the decision making regarding IP issues gets pushed down the chain of command, I expect that Senator Coons will be one that takes the lead in shaping patent policy. If so, that will be a very good thing for patent owners.

    The thing that is most important, and this circles back to my first point, is that the most substantive changes to patent law have happened OUTSIDE of the executive branch. It is the Supreme Court that has mucked up the law. It is Congress that gave us the AIA, and it is Congress that has the power to fix what the Supreme Court has broken. There is only so much the executive branch, acting through the Patent Office, can do. Even if the Patent Office welcomed inventors will open arms and showered them with patents, it does patent owners no good if the courts keep invalidating those patents.

    For these reasons, I believe patent owners should focus their attention far more on the judicial and legislative branches of this country than the executive branch. If Joe Biden wins (and all signs are pointing that way), I doubt he’ll be any worse than any other president over the last couple decades and his administration may very well be better than all of them.

  3. MaxDrei November 6, 2020 2:49 pm

    Curious, I was intrigued by your remarks about Senator Coons, so I looked him up and found him to be a scientist who:

    “…..spent eight years working in the private sector for an advanced materials manufacturing company in Delaware prior to being elected to the Senate.”

    Those strike me as good credentials for Chair of the Senate IP Committee. So if, as you surmise, he will steer IP policy for a Biden administration, that ought to be a good thing, I suppose. Would that there were more trained scientists inside the Beltway, eh?

  4. Night Writer November 6, 2020 3:57 pm

    The big picture is that Silicon Valley firms that have become near monopolies don’t want IP protection other than having it as a sport of kings to harass small companies.

    Obama/Biden wanted those companies to do well and just did what they asked them to do. We can expect the same and a director to be heavily anti-patent.

    The idea is that the far left believes patents are immoral. The big corporations have told them that this “innovation thing” can be handled by in-house innovation labs and by research money.

    Welcome to the USSR.

  5. Pro Se November 6, 2020 9:44 pm

    To #3 above:

    Coons is reported to have worked at W.L.Gore as a general attorney within its law department. There is nothing in the public record indicating any familiarity with corporate functions dependent upon R&D, marketing, product support, etc.

  6. Curious November 7, 2020 5:28 pm

    There is nothing in the public record indicating any familiarity with corporate functions dependent upon R&D, marketing, product support, etc.
    This statement is a little difficult to parse.

    Coons worked for WL Gore from for 8 years from 1996. His step-dad (i.e., his mother remarried) was president of WL Gore. The WL Gore website indicates that they have “more than 3,400 unique inventions worldwide.” Again, from their own website, “By using proprietary technologies with the versatile polymer polytetrafluoroethylene (PTFE), Gore has created numerous products for medical implants; fabric laminates; and cable, filtration, sealant, membrane, venting and fiber technologies for diverse industries.” The material “Gore-Tex” is one of the well-known materials.

    WL Gore has been part of many patent cases — probably the best known (at least for me) is W. L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540 (Fed. Cir. 1983). I have no idea as to precisely what Coons worked on as an inhouse attorney there, but I have little doubt he was well aware of how important patents were to WL Gore’s business. This has been reflected in his support for patents while in the US Senate.

    Obama/Biden wanted those companies to do well and just did what they asked them to do. We can expect the same and a director to be heavily anti-patent.
    More of the same old (and tired) anti-Obama rhetoric. Regardless, in case you haven’t noticed (as apparently you have not), Biden is not Obama and they don’t run in entirely the same circles. Biden doesn’t have nearly the same relationship with the west coast big-tech companies that Obama did.

    Also, there is a different dynamic now. There is more of a recognition, on both sides of the aisle, that the market power of the likes of Google, Apple, Amazon, and Facebook have grown too much. The House Judiciary Committee (i.e., the Democrats) issued an expansive report that detailed many of these companies abuses. While the employees of big-tech companies definitely trend more towards the left than the right (and this is reflected in campaign donations), big-tech is going to have issues with both parties going forward.

    The idea is that the far left believes patents are immoral.
    The far left, like the far right (as well as the middle left and middle right) don’t care about patents in the slightest. Patents are a niche issue that very few people care about. If you were to make a list of what things the far left cares about, patents would even make the list — because people don’t care.

    Welcome to the USSR.
    And let me remind people that the conservative US Supreme Court has been behind all of the lousy anti-patent decisions over the many years. You really need to stop binging on the propaganda.

  7. David Cohen November 7, 2020 5:29 pm

    Most basically, this piece from Mr. Brachman is utterly ungracious, and reads like a screed, both of which get in the way of any substantive points Mr. Brachman may be trying to advance. Further, and also basically, it is hard to imagine that Mr. Biden, who is well-versed in science, medicine, technology, and rationality is worse for IP than the now has-been alternative, who is woefully and willfully ignorant of these dimensions.

  8. Pro Say November 8, 2020 10:36 am

    Thanks Curious. Great info, insight, and analysis.

  9. Night Writer November 10, 2020 12:59 pm

    @6 Curious

    >>The far left, like the far right (as well as the middle left and middle right) don’t care about patents in the slightest.

    This is demonstrably wrong. In fact people like Lemley are fueled by this from the universities. Have you ever spent time talking to professors about this issue? I have. You are right that patents are not high on the list of issues for the “left”, but those that do deal with IP are heavily against patents and believe that IP is immoral.

    >>More of the same old (and tired) anti-Obama rhetoric.
    Really? Google was in the White House almost everyday of the Obama administration. Few contest that SV selected the judges for the CAFC. Obama was the one that signed the AIA.

    There is no reason to think that Biden will be different. We do know that SV has been consistently against Trump and for Biden. And I have looked at the numbers but I’d bet that they have donated massive sums to Biden. There is absolutely no reason to think that Biden will not be the same as Trump in patent policy.

    >>And let me remind people that the conservative US Supreme Court

    No one needs to be reminded of that. The Scotus has been against patents for a long time, but to pretend that the core of the anti-patent movement was J. Stevens is absurd. He was also far to the left when making these decisions.

    Curious, please try to be factual. What I wrote was based on facts and what has happened and what we can reasonable expect to happen.

  10. Night Writer November 10, 2020 1:06 pm

    @6 Curious

    You don’t know that Trump has been favorable to patents? Right. Just look at the director he appointed. It is too bad that Trump wasn’t able to appoint a few judges to the CAFC. That is a great shame.

    Curious, really, nothing you wrote is based on facts. The facts back up everything I said. And my predictions have seldom not be correct. Here, we have SV strongly favoring Biden/Harris neither of whom know a whit about science/technology/innovation. We can expect them to act just like Obama did and like presidents have for the large banks.

    What nonsense you wrote. Really irritating. I don’t have time to flail you now, but I am sure over the coming months I will.

    And do you want make bets as to the type of director Biden appoints? I am going to be on the side of another Lee that will do everything humanly possible to undermine the patent system.

  11. ipguy November 11, 2020 11:36 pm

    I’ve been practicing IP law for over 25 years.
    In my experience:
    USPTO under Republican President: Bad for Inventors.
    USPTO under Democratic President: Good for Inventors, especially for individual inventors.
    I worked at the USPTO as an examiner during the Clinton Administration. The message from the top was that we were not the Patent Rejection Office. We were in the business of issuing valid and enforceable patents where merited.
    While Director Iancu has been a competent presence, I have seen a marked increase of absolutely irrational rejections over the last four years, especially 101 rejections. Bat$hit crazy rejections. A Biden Presidency is going to be good for inventors. Patents will issue. Life will be good.

  12. Anon November 12, 2020 7:44 am

    ipguy,

    Your generalization simply does not fit.

    There have been both good and bad USPTO leadership under both D and R Presidents.

    To assert otherwise is merely fallacy, and fallacy easily seen.

  13. Jason Lee November 12, 2020 9:57 am

    Bye bye Andrei Iancu expect a new Silicon Valley Rep to head the future of Big tech stealing more patents without paying a licensing fee. Big day for FAANG.

  14. ipguy November 12, 2020 4:23 pm

    @12
    As I said, I’m speaking from my experience. Also, I was generalizing about the USPTO overall, and not particular leadership. I did mention Director Iancu in the context of a competent Director under whom bat$hit crazy 101 rejections have issued. Bruce Lehman wasn’t a particularly good leader at the USPTO (word on the street was that he wanted to be Librarian of Congress and USPTO Commissioner (the position then-equivalent to the current Director position) was his consolation prize) but there was a pro-patent attitude at the Patent Office during his tenure. The USPTO overall includes not just USPTO management but the TC Directors, Group Directors, SPEs and Examiners. There are institutional/generational changes that affect all levels of the USPTO over time. In my experience, a bad/good Management can have lingering effects for decades as Examiners who got their start at the Patent Office with a particular mindset about granting/rejecting patent applications move up through the ranks as Primaries, SPEs, QC, etc.
    In the end, my 25 plus years of experience is that Democratic Administrations are good for the inventor and Republican Administrations are bad.

  15. Anon November 12, 2020 5:15 pm

    ipguy,

    You just contradicted yourself, perhaps without realizing it, by adding the sub-tiers of ‘leadership.’

    Those sub-tiers are decoupled from the D and R administrations, and — as you note — carry some hefty inertia.

  16. ipguy November 12, 2020 8:57 pm

    There’s “Leadership” and then there’s “leadership.” Director, and other political appointees are the USPTO’s “Leadership” while the career employees are the “leadership.”
    You just can’t make a short post on here, can you? [he asked rhetorically, and with a dash of humor]

  17. Anon November 13, 2020 11:05 am

    I do chuckle at the dash of humor, as I also chuckle at the thought that the “lifers” inside the USPTO (and those responsible for the likes of SAWS and similar — and still ongoing — programs) are associated with the term ‘leadership.’

  18. ipguy November 13, 2020 9:14 pm

    It’s the way the USPTO is, has always been, and likely will always be.

  19. Anon November 15, 2020 10:28 am

    ipguy,

    I do hope that you are not espousing a “don’t try to change” mantra.

  20. ipguy November 15, 2020 9:26 pm

    Not at all. I simply recognize the reality of institutional inertia.

  21. Anon November 16, 2020 6:44 am

    Thanks ipguy, I would flag one huge concern in that same “institutional inertia,” being that Biden under the Obama/Biden administration ushered in record numbers of closed door meetings with Big Tech AND denials of Freedom of Information Act requests after running twice with policy platforms espousing ‘open government.’

    While I think that we are in large agreement on the inertia view, moderate agreement that both D and R presidents have had both good and bad Directors, I do not think we are in agreement on the potential impact of a Biden administration.

    While I personally believe that Biden is not all there and that someone else is pulling the strings, the better bet is that Biden will bed with Big Tech.

  22. ipguy November 16, 2020 3:26 pm

    How are you defining “Big Tech”? It’s a term that gets thrown around a lot but I’ve found that it can mean different things to different people. Are you defining it any differently than “Big Business”? By the way, I’m not trying to attack you on this. I just want to know your point of reference for how you’re defining the term. “Broadest reasonable interpretation in view of ….” lol

  23. Anon November 16, 2020 8:21 pm

    Big Tech is usually associated with Silicon Valley.

    There may be an overlap with Big Business.

    Generally speaking, I more equate Big Business with the nation-less (leastwise when it comes to Sovereign fealty) Trans-Nationals.

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