Harris cares about IP – Carries over Biden Administration strategies
Barquist/Lawrence 20 [Charles, Maren; October 19, Charles Barquist is a trial lawyer and IP litigator. His practice is focused on business litigation including patents and other intellectual property, antitrust and unfair competition, and dispute resolution for technology companies; Maren Laurence is an associate in the Intellectual Property Department with Foley & Lardner LLP. She is based in the firm’s Salt Lake City office where she is a member of the firm’s Intellectual Property Litigation Practice Group, “How A Biden Administration Would Shape IP Policy,” https://www.law360.com/articles/1319716/how-a-biden-administration-would-shape-ip-policy]
While the outcome of the presidential election is of course unknown, and reporting about the campaigns is dominated by more controversial topics, it is nevertheless worthwhile to consider the implications of a Joe Biden-Kamala Harris administration on intellectual property law and policy.
Democratic presidential nominee Joe Biden's "Build Back Better" agenda offers insight into the priorities and policies that would affect intellectual property rights.
In particular, a Biden administration would likely have the greatest impact on trade secret law and seek to strengthen international trade secret enforcement. At the same time, however, Biden proposes to cut back drastically on the use of noncompete clauses and no-poach agreements, policies that may weaken trade secret protections domestically.
Stronger Protection of Intellectual Property From Foreign Actors
The Biden campaign advocates for stronger international enforcement to confront foreign efforts to steal American intellectual property. Biden's campaign singles out China's government and other state-led actors on assailing American creativity and promises a coordinated and effective strategy to confront foreign efforts to steal American intellectual property.
The Biden campaign also cites China for dramatically increasing cyberespionage against U.S. companies and proposes new sanctions to cut off companies guilty of technology theft from access to U.S. markets. Details about precisely what the coordinated and effect strategy would comprise are lacking, however.
Some of that strategy may be seen in a bill introduced in the Senate in 2018 by Democratic vice presidential nominee Kamala Harris that is intended strengthen the United States' ability to combat economic and industrial espionage. Called the Deterring Espionage by Foreign Entities through National Defense Act, the bill would increase the damages available for trade secret theft, extend the statute of limitations, and expand the extraterritorial scope to include offenses committed abroad.
At least until the details of Biden's strategy emerge, U.S. companies will have to continue to rely on existing civil remedies to protect themselves against foreign attacks.
Biden's proposals also include plans to address false advertising by cracking down on companies that falsely label products as "made in America" even if they are coming from other countries such as China.
Biden would seek to strengthen enforcement by the Federal Trade Commission, including the imposition of penalties that it says the administration of President Donald Trump has failed to require.
For U.S. companies importing goods that may be mislabeled, now would be the time to make sure labeling is accurate in order to avoid penalties under a tougher enforcement regime.