In Defense of 5G: National Security and Patent Rights Under the Public Interest Factors

Abstract

Section 337 of the Tariff Act of 1930 authorizes the International Trade Commission (ITC) to stop—or “exclude”—patent-infringing imports. Exclusion orders protect the country against unfair trade practices and enforce U.S. patent rights. But before issuing an order, § 337 mandates the Commission to consider the order’s harm to the public health and welfare, competitive conditions, availability of substitutes, and consumers. Because it rarely finds that these “public interest factors” outweigh the benefits of patent enforcement, the Commission has mostly granted exclusion orders despite growing concerns related to the public’s reliance on imported mobile technology. 5G, or the next generation of mobile technology, promises to connect our homes, cars, and hospitals to digital networks across the country. With great promise comes great risk. Growing hacking threats from foreign adversaries like China and Russia, coupled with the concentrated nature of 5G innovation, raise urgent cybersecurity concerns. From 2017 to 2019, two ITC administrative law judges in Apple Qualcomm investigations disagreed over whether 5G concerns justified the denial of an exclusion order. This Comment argues that the ITC may lawfully interpret § 337 to consider 5G national security risks under the public interest factors and proposes a cybersecurity framework to assess the policy weight of these risks. These analyses will guide businesses and ITC officials through the next generation of patent disputes.