Patent attorneys are hopping mad at another effort by US lawmakers to undermine Chinese giant Huawei – this time by excluding it from the American patent system.
This week it emerged that Senator Marco Rubio (R-FL) had proposed an amendment to the 2020 defense authorization bill that would prohibit organizations on the "priority watch list" of entities blocked from doing business in the United States from being able to sue over patent infringement. Patent attorneys are not impressed.
"This is not just dumb, but dangerous," said former in-house counsel for Qualcomm and Red Hat, Erick Robinson. "Aside from being arguably unconstitutional, such a move would destroy forever any US moral high ground argument re: IP with China or anyone."
"Wrong, misguided and dangerous with no understanding of the ripple affect," warned a spokesperson for intellectual-property research company Techson IP. Other prominent American IP lawyers have called it "a slap in the face of the basic principle of patent law" and "one of the stupidest things I've ever heard."
Rubio's amendment would prohibit any business listed on the US blacklist from suing over patent infringement in America, filing a complaint with the US International Trade Commission, or "otherwise obtain any relief under the laws of the United States, including for damages, injunctive relief, or other redress, with respect to a patent issued by the United States Patent and Trademark Office."
The amendment follows a letter from Huawei to US telco Verizon in which it told the cellular network giant it needed to license 231 of its patents at a cost of $1bn. The letter is part of a legal pushback by Huawei against the US establishment after it has been repeatedly targeted by the Trump Administration, US telcos, and lawmakers.
Huawei represents a national security threat, US officials insist, because it could be forced by the Chinese government to add backdoors into its telecoms equipment. The manufacturer forcefully denies the implication, and European countries have repeatedly found that the US administration has exaggerated its claims, rejecting requests to block Huawei products from next-generation 5G networks.
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US Secretary of State Mike Pompeo has repeatedly suggested that the US would cut off intelligence assistance from countries that don't ban Huawei equipment from their networks.
But many suspect that the real reason for the hard-line approach is that US telcos are worried about losing their foundation in the world's telecommunications networks thanks to Chinese goods that are just as good as American products but much cheaper. There is also good reason to believe that America's legendary spying capabilities are reliant in part on the fact that American companies produce much of the equipment that global networks sit on top of.
But banning companies from enforcing US patents that they have successfully applied for or otherwise obtained is a step too far for many, and risks throwing out the entire structure of patent law in order to secure a short-term political goal. International patent agreements specifically prevent countries from treating patents registered by foreign companies differently to domestic companies.
As such, if approved, Rubio's amendment would undermine the very process that US companies derive much of their power and wealth from – intellectual property.
So far at least Rubio is not backing down, with a spokesman arguing that its goal is to stop Huawei "from using our courts as a tool of retaliation" while also arguing that the amendment would "get at bad actors beyond Huawei who are national security threats." ®
Meanwhile... The White House today added five more Chinese organizations to the US trade blacklist. The move effectively bans Sugon – a leading Chinese supercomputer maker, and its chip-designing subsidiaries, from buying American technology without permission from Uncle Sam. Sugon built 10 of China's current top 20 publicly known most-powerful supers, and this week's move may deal the company, and the Middle Kingdom's ongoing supercomputing push, a hammer blow.
As well as Sugon and three of its pals, the HPC organization Wuxi Jiangnan Institute of Computing Technology was also added to the list due to "acting contrary to the national security or foreign policy interests of the United States," according to the US Department of Commerce. This comes amid tensions between the Trump Administration and Beijing, and ahead of trade talks next week between the two superpowers.