The Washington Times, September 2, 2020 – China’s ambition to eclipse American technological and geopolitical leadership has been evident for decades. Beijing’s relentless industrial espionage, economic policies, subsidies, and $1.4 trillion infrastructure program pose critical challenges to U.S. interests. Domination of 5G technology is a priority for China because it is critical to the development of other advanced technologies crucial to Beijing’s quest for dominance and the immense economic opportunities involved.
In the midst of this struggle between global titans, a singular Irish patent troll has hijacked the U.S. International Trade Commission (ITC) dispute process, and in doing so has become — wittingly or unwittingly — a powerful ally for China in the fight for 5G supremacy. The ITC is an independent federal agency established to protect American industries from trade violations. It is empowered under Section 337 of American trade law to investigate complaints of imports alleged to violate U.S. patents and, where conditions are right, to ban any that infringe American intellectual property (IP) rights.
The ITC must weigh two considerations before it can issue exclusion orders banning imports that violate IP laws: (1) the domestic industry requirement, and (2) the public interest. Under the domestic industry requirement, the allegedly offending imports must include IP that an established or emerging U.S. industry is using or preparing to use. Under the public-interest consideration, an exclusion order may not be issued if public interest precludes it. Particularly given our battle for leadership in 5G, it is difficult to imagine interests weightier than protecting Americans’ access to connected devices.
The ITC has become a popular venue for patent trolls and their abusive tactics, which now threaten America’s ability to protect its 5G network from high-risk Chinese equipment vendors. Trolls use patents solely to accuse productive companies of infringement — in hopes of coercing outsized royalty payments through lawsuits and other aggressive tactics. The ITC process is a target for exploitation because it is faster than federal court litigation. ITC exclusion orders are easier to obtain than court injunctions and can provide extraordinary leverage in settlement negotiations.