The Coming Biden Climate Intellectual Property Crisis | Opinion

As Rahm Emanuel, President Barack Obama's chief of staff, famously quipped, "You never want a serious crisis to go to waste."

President Joe Biden has taken that advice to heart. He's used the COVID-19 crisis as an excuse to spend trillions of dollars while weakening the intellectual property of U.S. pharmaceutical companies that developed life-saving vaccines. But in claiming there's a "climate crisis," he's also risking the health of U.S. companies developing advanced energy technologies.

The president recently agreed to support a proposal by India and South Africa to prevent World Trade Organization (WTO) members from enforcing certain intellectual property protections afforded to the developers of COVID-19 vaccines under the Trade-Related Aspects of Intellectual Property Rights (TRIP) agreement. It would strip pharmaceutical companies of their exclusive protections and allow generic versions of the vaccines to be reproduced in developing countries.

U.S. Trade Representative Katherine Tai justified the decision by saying, "This is a global health crisis, and the extraordinary circumstances of the COVID-19 pandemic call for extraordinary measures." This sent an understandable chill through the pharmaceutical industry.

So what should we make of the Biden administration's constant claims that the climate crisis poses an "existential" threat, which current Special Presidential Envoy for Climate John Kerry has called a matter of "life and death?"

Given the vaccine precedent, companies creating environmental goods and services should be asking themselves if they're next on the intellectual property hit list. It's not an idle question.

Intellectual property rights were the subject of intense debate during the 1992 negotiations for the United Nations Framework Convention on Climate Change (UNFCC). Language on accelerating "technology transfer" features prominently in the treaty. Intellectual property rights have been under assault by developing countries ever since, including at the Paris talks in 2015.

Encouraged by their experience negotiating greater flexibility on intellectual property for medicines and vaccines in the TRIP agreement, developing countries offered several options to dilute intellectual property protections for climate-related technologies. These included forced patent pooling or buy-downs, compulsory or humanitarian licensing, and increased financing to overcome "barriers" caused by intellectual property.

 U.S. President Joe Biden makes brief remarks
U.S. President Joe Biden makes brief remarks while hosting Afghanistan President Ashraf Ghani and Dr. Abdullah Abdullah, Chairman of the High Council for National Reconciliation, in the Oval Office at the White House June 25, 2021 in Washington, D.C. Pete Marovich-Pool/Getty Images

Indian Prime Minister Narendra Modi spoke for many developing countries in Paris when he urged a "technology initiative driven by a public purpose, not just market incentives. This includes intellectual property."

Thankfully, none of these awful ideas were included in the final Paris Agreement, a rare win for U.S. diplomacy in the Obama years. But the issue has not gone away.

President Biden's surrender on vaccines is sure to embolden developing countries to renew demands in the UNFCCC, as well as the WTO and the World Intellectual Property Organization (WIPO), for freer access to the intellectual property embedded in advanced climate-related technologies.

Green pressure groups also are campaigning for governments to exclude climate technologies from patent protections. They argue that since developed countries are responsible for climate change, they shouldn't profit from selling needed technologies to developing countries.

The administration's climate change hyperbole is signaling that it might be open to the idea. Its promotion of "climate justice" only compounds the problem. It is suggesting that there should be fair and equitable access to advanced climate technologies, regardless of intellectual property considerations. None of this will help U.S. negotiators resist the inevitable developing country demands to gut intellectual property protections at the upcoming climate talks in Glasgow and elsewhere.

Intellectual property rights are the bedrock of U.S. research and development. The private sector is still where most American innovation occurs. Free-market innovation is the best tool we can use to address a changing climate.

Businesses are investing in cleaner technologies because they see a global market for them. Without strong intellectual property protections, those investments will vanish.

The art of politics is the art of persuasion. Yet the president's climate rhetoric is intended to frighten, not persuade, American businesses and consumers into submitting to higher energy costs, fewer jobs and a lower standard of living.

It may also renew attacks on climate-related intellectual property in the UNFCCC, WTO and WIPO. This could destroy the value of many U.S. companies. It certainly destroys their incentive to innovate.

If only America's technology companies could be inoculated against the Biden administration's reckless climate crisis rhetoric, we'd be better off.

John Barrasso, a Republican senator from Wyoming, is ranking member of the Senate Committee on Energy and Natural Resources.

The views expressed in this article are the writer's own.