Sen. Marco Rubio wants to make sure that the Chinese telecommunications giant Huawei Technologies can’t pursue intellectual property claims against U.S. companies if the administration finds the company poses an “undue risk” to telecommunication systems.

The Florida Republican filed the amendment to a defense authorization bill. It anticipates a finding from the Commerce Department that Huawei poses the risk and comes amid reports that the Chinese company is considering taking U.S. companies to court over patent disputes.

[It’s not too late to keep Huawei’s 5G tech out of the U.K., Sen. Warner says]

“Huawei is using the tactics of patent trolls to attack U.S. companies in retaliation for Trump administration national security actions against them,” Rubio said in a Tuesday tweet. “We should not allow China government backed companies to improperly use our legal system against us.” His staff confirmed that Rubio put forth the amendment with Huawei in mind.

Is it possible legally for the U.S. to block Huawei from filling U.S. patents? I am thinking this is highly illegal and there would be legal complications that would prevent the government from doing anything like that, but is this the case?

  • 1
    Are you asking about Huawei filing lawsuits about existing patents in court or about Huawei filing new patents?
    – quarague
    Commented Sep 30, 2023 at 5:25
  • Why do you think it would be "highly illegal" if it were made US law? Such a law might contravene the Constitution, but that seems a bit unlikely. (After all, the gov't can declare organizations terrorist and do worse stuff to them, like freeze all their assets.) Perhaps more likely it might contravene some WTO agreement on patents, but there are certainly numerous exceptions in those allowing e.g. governments to force license patents for some reasons etc. The US withheld numerous patents from publication during WW2 for instance, on national security concerns. Commented Sep 30, 2023 at 10:10

1 Answer 1


Is it possible legally for the U.S. to block Huawei from filling U.S. patents? I am thinking this is highly illegal [...]

Maybe. The closest thing that comes to mind is that it might violate TRIPS rules. But...

These include the obligation, as a general rule, to grant such licences only if an unsuccessful attempt has been made to acquire a voluntary licence on reasonable terms and conditions within a reasonable period of time; the requirement to pay adequate remuneration in the circumstances of each case, taking into account the economic value of the licence; and a requirement that decisions be subject to judicial or other independent review by a distinct higher authority. Certain of these conditions are relaxed where compulsory licences are employed to remedy practices that have been established as anticompetitive by a legal process.

So it would depend how serious Huawei is in actually licensing their patents.

Keep in mind that insofar China has successfully blocked some "foreign patent trolls" using its legal system (see Huawei v. IDC) and AFAIK WTO dispute resolution is not over over what the EU and others allege are forced licensing prices:

Businesses, including Sweden’s Ericsson, Finland’s Nokia and Sharp of Japan, have lost money after China’s supreme court banned them from protecting their patents by securing licensing deals in foreign courts, the European Commission said.

Smartphone makers have agreed global standards for telecommunications networks. In return, technology manufacturers must license their patents to others. If they cannot agree on a price, they go to court to set it. Chinese courts generally set prices at half the level of those in the west, meaning their companies pay less for the technology from overseas providers.

In August 2020, China’s Supreme People’s Court decided that Chinese courts can impose “anti-suit injunctions”, which forbid a company taking a case to a court outside the country. Those that do are liable for a €130,000 daily fine and the judgments of courts elsewhere are ignored.

The policy of driving down licence costs has been backed by the People’s Congress, China’s national assembly, although it has not been put into legislation, the commission alleged.

Yeah, these are greater than zero forced licensing prices.

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