{"id":4958,"date":"2018-07-03T10:26:22","date_gmt":"2018-07-03T14:26:22","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/nsj\/?p=4958"},"modified":"2018-07-12T04:52:22","modified_gmt":"2018-07-12T08:52:22","slug":"5g-standard-setting-and-national-security","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2018\/07\/5g-standard-setting-and-national-security\/","title":{"rendered":"5G, Standard-Setting, and National Security"},"content":{"rendered":"

Eli Greenbaum<\/strong>*<\/strong><\/em><\/p>\n

Introduction<\/strong><\/h3>\n

Anxieties about 5G\u2014the soon-to-be-deployed[1]<\/sup><\/a> fifth generation mobile networking standard\u2014are playing a starring role in national security debates. This next-generation technology promises faster speeds and more stability than existing telecommunication networks and is expected to facilitate revolutionary technologies such as autonomous vehicles and smart electricity grids.[2]<\/sup><\/a> Indeed, because of these opportunities, the Trump Administration\u2019s 2017 National Security Strategy established a clear goal of deploying \u201csecure 5G Internet capability nationwide.\u201d On the other hand, inadequately secured 5G could leave critical infrastructure vulnerable to hostile exploitation. In early 2018, a leaked proposal revealed that the Administration had been considering the extreme step of nationalizing the country\u2019s 5G telecommunications network in order to counter security concerns about Chinese technology.[3]<\/sup><\/a><\/p>\n

Similar national security concerns also featured prominently in the March 12, 2018 presidential order prohibiting Broadcom\u2019s proposed $117 billion takeover of Qualcomm. That prohibition was recommended by the Committee on Foreign Investment in the United State (CFIUS), an interagency committee established to monitor the national security implications of foreign investment.[4]<\/sup><\/a> CFIUS explained its reasoning in a letter to the parties which shed some light on the committee\u2019s normally secretive deliberations.[5]<\/sup><\/a> The letter cited several concerns, including worries that the proposed takeover could result in decreased R&D spending, unease with Broadcom\u2019s ties with foreign parties, and alarm regarding the potential disruption of supply relationships with the United States government. In addition, CFIUS asserted that the proposed takeover could adversely affect national security by leading to Chinese \u201cdominance\u201d of the international 5G standard-setting process.[6]<\/sup><\/a> The letter described in an ominous tone how Chinese companies have \u201cincreased their engagement\u201d in the standardization process and upped their investment in 5G research and development. Omens of this struggle for 5G were seen in the considerable number of Chinese-owned patents covering 5G technology.<\/p>\n

While the other national security concerns raised by CFIUS may be legitimate, this Article argues that those associated with dominance of the international standard-setting process are not. First, I point out that concerns regarding international standard-setting buck steady United States policy across administrations. Second, I argue that characterizing Chinese participation in the international standardization process as a threat to national security is counterproductive to American interests. Finally, I question whether Chinese ownership of patents essential to 5G technology should be characterized as an issue of national security at all.<\/p>\n

The United States has consistently supported transparent international standard-setting processes, based on well-articulated economic and trade objectives. The United States has always been aware of the risks associated with standard-setting, but has taken an active role in supporting processes designed to mitigate those concerns. The CFIUS letter retreats from such policies and makes no effort to explain why. The letter expresses quick concern for the national security consequences of Chinese \u201cinfluence\u201d or \u201cdominance\u201d over standard-setting, but fails to explain either how existing standards processes could succumb to Chinese sway or how such power could be exercised to undermine national security. As this Article shows, there are compelling motivations for the country\u2019s existing policies on international standard-setting, and the CFIUS letter does not offer any justification for changing this direction.<\/p>\n

I. Standards and International Trade<\/strong><\/h3>\n

Mobile networking standards are developed mainly by voluntary international organizations. A good part of such 5G standards, for example, will be hammered out by members of the Third Generation Partnership Project (3GPP), an umbrella standards group that also shaped the prior generations of cellular technology. 3GPP provides an international forum to discuss developing standards and (ideally) converge on the best technical solutions for designing the technology. Participants in the 3GPP process include private firms and other stakeholders, such as government bodies and research organizations.[7]<\/sup><\/a> Each entity participates in the process through a regional standards organization\u2014many Chinese firms, for example, participate through the China Communications Standards Association (CCSA). Discussions and negotiations among this varied membership aim at establishing common technical specifications for communication networks.[8]<\/sup><\/a> These shared standards allow for global interoperability across different networks and devices.<\/p>\n

In recent years, China has made a concerted effort to increase its engagement with the international standards process.[9]<\/sup><\/a> Indeed, the United States has historically urged China to participate in such international efforts, including as part of China\u2019s obligations under international law. Such legal obligations include the WTO Agreement on Technical Barriers to Trade (the TBT Agreement),[10]<\/sup><\/a> with which China agreed to comply when it acceded to the World Trade Organization (WTO) in 2001.[11]<\/sup><\/a> The multilateral TBT Agreement aims at ensuring that national standardization efforts and associated activities do not \u201ccreate unnecessary obstacles to international trade.\u201d[12]<\/sup><\/a> For example, the TBT Agreement provides that countries should generally use \u201crelevant international standards\u201d[13]<\/sup><\/a> rather than devising unique local requirements. Consistent with the TBT Agreement, the position of the United States across a number of administrations has generally been that unique, local standards risk the creation of discriminatory barriers to trade.[14]<\/sup><\/a> As such, the United States has advocated for international standardization efforts in order to shrink such barriers.[15]<\/sup><\/a><\/p>\n

In spite of these international commitments, China has sometimes emphasized the development of alternative national standards. The United States has often criticized these national standards as protectionist measures intended to shield domestic Chinese industries from foreign competition.[16]<\/sup><\/a> For example, in 2003, the Chinese government mandated that all wireless devices support WAPI, a China-specific encryption standard[17]<\/sup><\/a> incompatible with wireless encryption standards used outside of China.<\/p>\n

This move was widely criticized by the United States and international community. Industry groups expressed concern regarding the security of the standard and the availability of intellectual property rights necessary to employ it.[18]<\/sup><\/a> International standards associations asserted that requiring the Chinese WAPI requirement would \u201cfracture the world market.\u201d[19]<\/sup><\/a> In March 2004, the United States Trade Representative, Secretary of Commerce, and Secretary of State sent a joint letter to the Chinese government protesting the adoption of WAPI.[20]<\/sup><\/a> The letter suggested that the requirements \u201cdiscriminate against foreign companies\u201d in order to develop \u201cthe Chinese high tech sector.\u201d[21]<\/sup><\/a> The letter encouraged the Chinese government to participate in \u201cexisting standard-setting bodies\u201d[22]<\/sup><\/a> in order to develop appropriate wireless network standards, instead of mandating unique Chinese requirements.<\/p>\n

As the WAPI incident shows, standards can be used as trade barrier to favor domestic industry or interests. Consistent United States trade policy has aimed at encouraging China (and other countries) to reduce such barriers by using agreed international standards. The CFIUS letter, therefore, conflicts with this policy\u2014if the United States sees increased Chinese \u201cinfluence\u201d in the international standards process as a national security threat and, as a result, bans transactions with firms that may have Chinese affiliations, then China may in some situations choose to reduce its engagement in that international process. Instead, China may insist on alternative standards that could act as trade barriers against foreign firms.[23]<\/sup><\/a> In other words, by challenging Chinese participation in the structures of international standard-setting, the CFIUS letter works to frustrate consistent United States policies that view such participation as furthering national trade and economic objectives. More troubling, the CFIUS letter neither acknowledges its differences from established policy, nor justifies its departure from those practices.<\/p>\n

II. Standards and Transparency<\/strong><\/h3>\n

Belying CFIUS\u2019s concerns, leading international standards organizations do not easily lend themselves to \u201cdominance.\u201d Indeed, it is difficult to see such bodies and their members quietly surrendering to the manipulation feared by CFIUS. The processes of 3GPP, for example, incorporate important elements of openness and transparency. 3GPP makes publicly available meeting reports which list participants, their contributions, and voting results.[24]<\/sup><\/a> Studies show that 3GPP even provides \u201ceffective means of active participation\u201d for small entities and start-ups, and that the organization does not discriminate against contributions proposed by such smaller entities.[25]<\/sup><\/a> Internal 3GPP processes ensure that \u201cpower is shared across regional and organizational lines.\u201d [26]<\/a><\/sup> Appeals within the organization are available to members that oppose any ruling.[27]<\/sup><\/a> As a last resort, claims of manipulation and collusion can be\u2014and sometimes are\u2014brought before national courts.[28]<\/sup><\/a> Recent votes in other standards organizations also show that such transparency can assist security and privacy advocates in beating back powerful interests.[29]<\/sup><\/a><\/p>\n

The United States has consistently advocated for open and transparent standard-setting processes with minimal government intervention. Under domestic law, for example, the National Technology Transfer and Advancement Act generally mandates that the federal government use \u201cvoluntary consensus standards.\u201d[30]<\/sup><\/a> The statute has been construed as expressing a \u201cstrong preference\u201d for market-developed standards satisfying certain criteria of \u201copenness\u201d and \u201ctransparency.\u201d[31]<\/sup><\/a> These principles require that \u201cprocedures . . . be open to all interested parties\u201d, and that parties be \u201cprovided meaningful opportunities to participate in standards development on a non-discriminatory basis.\u201d[32]<\/sup><\/a><\/p>\n

Moreover, the United States has supported these principles in international law. A multilateral committee established under the TBT Agreement, for example, adopted a set of six principles for international standards, including openness, transparency and impartiality.[33]<\/sup><\/a> The United States has promoted these principles across the world,[34]<\/sup><\/a> incorporated them into free trade agreements,[35]<\/sup><\/a> and criticized China for failing to abide by them.[36]<\/sup><\/a><\/p>\n

The historical American commitment to open and transparent processes serves the interests of the United States. Indeed, transparency itself allays the very perils of foreign \u201cdominance\u201d and \u201ccontrol\u201d that concerned CFIUS. During the previously discussed WAPI incident, the United States and international commercial actors criticized the non-transparent processes that led to the adoption of that encryption standard, including the fact that the algorithm was not made publicly available.[37]<\/sup><\/a> According to WAPI critics, this closed process made it impossible to evaluate the technical fitness of the China-specific standard. Moreover, third parties could not know if intentionally-inserted backdoors were hidden in WAPI.[38]<\/sup><\/a><\/p>\n

The CFIUS letter undermines the consistent support of the United States for open and transparent market standards. Rather than promoting openness, the letter suggests that the United States will keep its thumb on the standards scale in order to defend murky notions of its own national security. Moreover, if meddling in the standards process rouses foreign governments to also intervene, or to create foreign standards to counter the United States\u2019 intervention, then the CFIUS letter itself increases the risk of the nontransparent foreign \u201cinfluence\u201d and \u201ccontrol\u201d that it feared.[39]<\/sup><\/a><\/p>\n

III. Standards and Intellectual Property<\/strong><\/h3>\n

The CFIUS letter sees Chinese ownership of 5G patent rights as an ominous warning of hi-tech dominance. However, given the rules and policies of prominent standards organizations\u2014which generally aim to make technology available to all implementers of a standard[40]<\/sup><\/a>\u2014it is difficult to see how patents could be leveraged into the technological control feared by CFIUS. Governments and standards organizations alike readily acknowledge that agreed technological specifications can incorporate patented, proprietary technology.[41]<\/sup><\/a> Indeed, firms often jockey for the economic advantages of having their own proprietary, patented technology incorporated into the agreed standard.[42]<\/sup><\/a> Such patent rights are often described as \u201cStandard Essential Patents\u201d (or \u201cSEPs\u201d), since infringement of the patent is essential for proper implementation of the standard.\u00a0 SEPs can provide a steady stream of royalty payments, since designing around an \u201cessential\u201d patent is by definition impossible and firms that wish to manufacture or sell standard-compliant products must pay such royalties or risk infringement liability.<\/p>\n

Neither standards organizations nor regulatory authorities have ignored the problems of potential dominance associated with requiring the use of patented technology in technical standards. First, the patent policies of standards organizations typically impose disclosure obligations.[43]<\/sup><\/a> Speaking broadly, these rules often require participants to disclose whether they hold patents that could be infringed by a proposed specification. With this knowledge, the members or the standards organization can search for non-proprietary alternatives to the patented technology. Second, such patent policies often require members to make available any proprietary technology to firms implementing the standard, often on \u201cfair, reasonable and non-discriminatory\u201d (FRAND) terms, and less frequently on a royalty-free basis.[44]<\/sup><\/a> Courts have enforced these obligations in civil suits.[45]<\/sup><\/a> Moreover, both the Federal Trade Commission and the Department of Justice have sometimes stepped in to impose their interpretation of these rules.[46]<\/sup><\/a><\/p>\n

The enforcement of these policies sets real limits on patentees\u2019 rights. For example, one of a patentee\u2019s strongest remedies is to obtain a court injunction against infringing activities.[47]<\/sup><\/a> A growing consensus, however, sees such injunctive relief as inconsistent with a FRAND licensing commitment. For example, the Federal Circuit in Apple Inc. v. Motorola\u00a0 Inc<\/em>. held that a patentee\u2019s claim for injunctive relief may be barred by an earlier FRAND licensing commitment.[48]<\/sup><\/a> In addition, developing jurisprudence concerning FRAND commitments has devoted substantial attention towards minimizing the abusive monetization of SEPs. A number of courts have noted the importance of the FRAND licensing obligation for avoiding \u201chold-up,\u201d or the collection of excessive patent royalties.[49]<\/sup><\/a> Some courts have limited the total aggregate royalty on a device to a specific quantity, and awarded patentees only a proportionate share of that limited amount.[50]<\/sup><\/a> In sum, U.S. courts have generally enforced licensing commitments with a view towards ensuring that intellectual property rights do not unfairly block implementation of the standard.[51]<\/sup><\/a> As such, it is unlikely that any entity or organization could parlay 5G patents into \u201ccontrol\u201d of the standard.[52]<\/sup><\/a> Chinese companies may end up holding important patents, but they will face serious legal and practical barriers to technological dominance in a way that could threaten national security.<\/p>\n

Scholars do debate the appropriate enforcement of the FRAND commitment, and whether current jurisprudence provides for an effective check on patentees.[53]<\/sup><\/a> But regardless of what the appropriate balance between the rights, privileges, and obligations of patentees turns out to be, the United States should not discourage foreign engagement in international standard-setting. A consequence of such limited involvement would be more foreign technology developed outside the aegis of standards organizations, free of licensing commitments. Non-committed patentees would only have greater flexibility to seek injunctions and higher royalty rates and thus, outside of the standards organizations, find it easier to pursue the alleged control of standards against the national security interests of the United States. Going back yet again to the example of the WAPI encryption standard\u2014in that case, non-Chinese firms expressed strong concern that the Chinese companies privy to the WAPI technology were under no obligation to make the relevant intellectual property available to market entrants.[54]<\/sup><\/a> Not being subject to any licensing requirements, the WAPI technology holders could have demanded onerous royalties or even access to other proprietary technology in exchange for the rights necessary to access the Chinese market.[55]<\/sup><\/a> In an open international standard-setting process, which the United States has long pursued, this kind of control would be significantly more difficult to achieve.<\/p>\n

Conclusion<\/strong><\/h3>\n

National security concerns regarding 5G technology are unlikely to fade. At the same time, concerns regarding the nation\u2019s telecommunications infrastructure should not be confused with misgivings about the international standard-setting process. Standard-setting unquestionably implicates significant societal values, most prominently issues of privacy and encryption policy.[56]<\/sup><\/a> Certainly, the standard-setting process can be open to manipulation by individual firms,[57]<\/sup><\/a> cartels[58]<\/sup><\/a> and perhaps even countries.<\/p>\n

However, these risks can be managed within the structures of existing United States trade and economic policy.\u00a0 Legal and regulatory bulwarks already cabin these concerns, to protect both the integrity of the standards process as well as the interests of the United States. The CFIUS letter makes no attempt to explain the inadequacy of the existing framework, even as it departs from consistently-held United States policy regarding the international standards process.<\/p>\n

*\u00a0Partner, Yigal Arnon & Co., Jerusalem, Israel. J.D., Yale Law School; M.S., Columbia University.<\/p>\n

\u201cCell Phone Tower Sunset Cell phone antenna\u201d<\/a> by Mike Mozart<\/a><\/i> is licensed under CC BY 2.0<\/a><\/p>\n

[1]<\/a> Industry groups recently completed the specifications for 5G systems. See <\/em>Rel-15 success spans 3GPP groups, 3GPP (June 14, 2018), http:\/\/www.3gpp.org\/news-events\/3gpp-news\/1965-rel-15_news<\/a>.<\/p>\n

[2]<\/a> See, e.g.<\/em>, 5G Mobile and Wireless Communications Technology 8 (Afif Osseiran et. al. eds., 2016).<\/p>\n

[3]<\/a> Tim Wu, Should Trump Nationalize a 5G Network<\/em>, N.Y. Times (Jan. 31, 2018) https:\/\/www.nytimes.com\/2018\/01\/31\/opinion\/nationalize-5g-network.html<\/a>. For more background on the government\u2019s security concerns regarding Chinese telecommunications technology, see Mike Rogers & C.A. Dutch Ruppersberger, U.S. House of Representatives Permanent Select Committee on Intelligence, 112th Cong. Investigative Report on the U.S. National Security Issues Posed by Chinese Telecommunications Companies Huawei and ZTE vi (2012) (concluding that the risks associated with the provision of Chinese-made \u201cequipment to U.S. critical infrastructure could undermine core U.S. national-security interests\u201d); see also<\/em> Federal Communications Commission, Statement of Chairman Ajit Pai Re: Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs, FCC 18-42, (April 17, 2018) (justifying a proposal to prohibit certain purchases of telecommunications equipment from companies posing a national security threat by noting that the country \u201cstand[s] on the precipice of the 5G future\u201d).<\/p>\n

[4]<\/a> The CFIUS regime is codified at 50 U.S.C. App. \u00a7 2170 (2018). The purpose of CFIUS review is to \u201cdetermine the effects\u201d of a transaction \u201con the national security of the United States\u201d. Id. <\/em>\u00a72170(b)(a)(A)(i); see also generally<\/em> Jonathan Wakely & Andrew Indorf, Managing National Security Risk in an Open Economy: Reforming the Committee on Foreign Investment in the United States<\/em>, 9 Harv. Nat. Sec. J. 1 (2018).<\/p>\n

[5]<\/a> See, e.g.<\/em>, Christopher M. Tipler, Defining \u2018National Security\u2019: Resolving Ambiguity in the CFIUS Regulations<\/em>, 35 U. Pa. J. Int\u2019l L. 1223, 1242 (2014) (describing how scholars and practitioners can typically only \u201cspeculate\u201d on the specific risks that CFIUS considers national security threats).<\/p>\n

[6]<\/a> Letter from Aimen N. Mir, Deputy Assistant Secretary, Investment Security, Department of the Treasury, to Mark Plotkin, Covington & Burling LLP and Theodore Kassinger, O\u2019Melveny & Myers LLP (Mar. 5, 2018) https:\/\/www.qcomvalue.com\/wp-content\/uploads\/sites\/82\/2018\/03\/Letter-from-Treasury-Department-to-Broadcom-and-Qualcomm-regarding-CFIUS.pdf<\/u><\/a>. Other government bodies have expressed similar concerns. See e.g.<\/em>, Tara Beeny, Supply Chain Vulnerabilities From China In U.S. Federal Information And Communications Technology 34-37(2018) (discussing supply chain concerns resulting from China\u2019s \u201crole in setting international technology standards\u201d and ownership of associated intellectual property).<\/p>\n

[7]<\/a> Justus Baron & Kirti Gupta, Unpacking 3GPP Standards<\/em>, J. Econ. & Mgmt. Strategy (forthcoming 2018)<\/p>\n

[8]<\/a> See generally Third Generation Partnership Project Agreement \u00a7 2.1 (2007).<\/p>\n

[9]<\/a> See, e.g.<\/em>, Jorge L. Contreras, Divergent Patterns of Engagement in Internet Standardization: Japan, Korea and China<\/em>, 38 Telecomm. Pol\u2019y 916, 929 (2014) (describing how Chinese involvement in Internet standardization efforts has \u201cexpanded rapidly in recent years\u201d).<\/p>\n

[10]<\/a> Agreement on Technical Barriers to Trade, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex IA, Legal Instruments – Results of the Uruguay Round vol. 27, 33 I.L.M. 1144 [hereinafter TBT Agreement].<\/p>\n

[11]<\/a> World Trade Organization, Ministerial Conference, Protocol of the Accession of the People\u2019s Republic of China<\/em> \u00a7 13, WT\/L\/432 (Nov. 23, 2001).<\/p>\n

[12]<\/a> TBT Agreement, Preamble.<\/p>\n

[13]<\/a> Id<\/em>. \u00b6 2.4.<\/p>\n

[14]<\/a> Office of the United States Trade Representative, 2014 Report On Technical Barriers To Trade 6 [hereinafter 2014 USTR TBT Report]\u00a0 (asserting that \u201cstandards-related measures that are nontransparent, discriminatory, or otherwise unwarranted can act as significant barriers to U.S. trade\u201d).<\/p>\n

[15]<\/a> Id<\/em>. at 36.<\/p>\n

[16]<\/a> See, e.g.<\/em>, Office of the United States Trade Representative, 2018 National Trade Estimate Report on Foreign Trade Barriers 97 (2018) (\u201cChina has continued to pursue unique national standards in a number of high technology areas where international standards already exist. The United States continues to press China to address specific concerns, but to date this bilateral engagement has yielded minimal progress.\u201d).<\/p>\n

[17]<\/a> The motivation for the WAPI requirement was not completely clear, but it may have been directed either towards China\u2019s own security concerns or towards reducing the costs to Chinese firms for the use of foreign intellectual property. See <\/em>Brian J. Delacey et. al., Government Intervention in Standardization: The Case of WAPI, 10-11 (2006), https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=930930<\/a>.<\/p>\n

[18]<\/a> Id.<\/em> at 11-12<\/p>\n

[19]<\/a> Letter from Paul Nikolich, Chairman, Institute of Electrical and Electronics Engineers (IEEE)\u00a0 802 LAN\/MAN Standards Committee to Li Zhonghai, Chairman, Standardization Administration of China (SAC), and Wang Xudong, Minister, Ministry of Information Industry (Nov. 23, 2003).<\/p>\n

[20]<\/a> Letter from Robert B. Zoellick, United States Trade Representative, Donald I. Evans, Secretary of Commerce and Colin L. Powell, Secretary of State to Zeng Peiyan, Vice Premier of the People’s Republic of China (Mar. 15, 2004).<\/p>\n

[21]<\/a> Id.<\/em><\/p>\n

[22]<\/a> Id.<\/em><\/p>\n

[23]<\/a> China has in the past promoted alternative standards when it believed that the international standards process was biased against Chinese interests. See, e.g.<\/em>, Michael Murphree & Dan Breznitz, Standards, Patents and National Competitiveness 7 (2016) (describing how China promoted an alternative video standard in order to increase its bargaining power in negotiating royalty rates).<\/p>\n

[24]<\/a> Justus Baron & Kirti Gupta, Unpacking 3GPP Standards<\/em>, J. Econ. & Mgmt. Strategy (forthcoming 2018)<\/p>\n

[25]<\/a> Kirti Gupta<\/em>, The role of SMEs and Startups in Standards Development<\/em> (manuscript at 1) (2017), https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=3001513<\/a><\/p>\n

[26]<\/a> Baron & Gupta, supra <\/em>note 7, \u00a74.2.<\/p>\n

[27]<\/a> Third Generation Partnership Project, 3GPP Working Procedures, \u00a7 29 (2016).<\/p>\n

[28]<\/a> See, e.g.<\/em>, TruePosition Inc. v. LM Ericsson Telephone Co., 2012 WL 3584626, at *2 (E.D. Pa. Aug. 2012) (refusing to dismiss claims that defendants \u201ccollaboratively manipulated 3GPP\u2019s processes and procedures to gain unfair advantages for their\u201d own technology).<\/p>\n

[29]<\/a> See, Kieren McCarthy, ISO blocks NSA’s latest IoT encryption systems amid murky tales of backdoors and bullying<\/em>, The Register (Apr. 25, 2018), https:\/\/www.theregister.co.uk\/2018\/04\/25\/nsa_iot_encryption\/<\/u>;<\/a> Brandon Vigliarolo, TLS 1.3 is approved: Here’s how it could make the entire internet safer<\/em>, TechRepublic (Mar. 26 2018), https:\/\/www.techrepublic.com\/article\/tls-1-3-is-approved-heres-how-it-could-make-the-entire-internet-safer\/<\/u>.<\/a><\/p>\n

[30]<\/a> National Technology Transfer and Advancement Act, 15 U.S.C. \u00a7 272 (b) – (e) (2018).<\/p>\n

[31]<\/a> Office of Mgmt. and Budget, Exec. Office of the President, OMB Circular A- 119, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities 4, 9, 31 (2016), https:\/\/www.nist.gov\/sites\/default\/files\/revised_circular_a-119_as_of_01-22-2016.pdf<\/u>.<\/a><\/p>\n

[32]<\/a> Id.<\/em> at 16.<\/p>\n

[33]<\/a> Committee on Technical Barriers to Trade, Second Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade, G\/TBT\/9 (Nov. 13, 2000).<\/p>\n

[34]<\/a> See <\/em>Am. Nat\u2019l Standards Inst., U.S. Standards Strategy 13 (2015) (asserting that the United States should work with other WTO members in support of the TBT Agreement and associated committee decisions).<\/p>\n

[35]<\/a> See generally<\/em> United States Trade Representative, 2014 Report On Technical Barriers To Trade 20 (2014) (describing free trade agreements that \u201cexpand upon transparency obligations provided for in the TBT Agreement\u201d).<\/p>\n

[36]<\/a> See <\/em>United States Trade Representative, 2017 USTR Report to Congress on China\u2019s WTO Compliance 61-62 (\u201cThe United States urged China to take a market-based and technology neutral approach to the development of next generation wireless standards . . . .\u201d) [hereinafter 2017 USTR China WTO Report].<\/p>\n

[37]<\/a> See<\/em> United States Trade Representative, 2006 USTR Report to Congress on China\u2019s WTO Compliance 47 (protesting China\u2019s making available of the WAPI algorithm to only 11 Chinese companies); see also<\/em> Delacey, supra<\/em> note 17, at 11.<\/p>\n

[38]<\/a> Stewart A. Baker, Deposing Tim Cook<\/em>, Lawfare (Feb. 27, 2016), https:\/\/www.lawfareblog.com\/deposing-tim-cook<\/u>.<\/a><\/p>\n

[39]<\/a> See <\/em>Stacy Baird, Government at the Standards Bazaar<\/em>, 18 Stan. L. & Pol\u2019y Rev. 35, 61 (2007) (\u201cAn action by the U.S. government \u2026 to intervene in the market to mandate a standard would be perceived by foreign governments as, at a minimum, hypocritical to U.S. foreign policy, and more likely, support for similar behavior by the foreign government.\u201d).<\/p>\n

[40]<\/a> See, e.g.<\/em>, Mark A. Lemley & Carl Shapiro, A Simple Approach to Setting Reasonable Royalties for Standard-Essential Patents<\/em>, 28 Berkeley Tech. L.J. 1135, 1137 (2013) (stating that policies of standards organizations aim to assure \u201ccompanies implementing the standard that they will not be blocked from bringing their products to market or held up so long as they are willing to pay reasonable royalties\u201d).<\/p>\n

[41]<\/a> See, e.g.<\/em>, Elyse Dorsey & Matthew R. McGuire, How the Google Consent Order Alters the Process and Outcomes of FRAND Bargaining<\/em>, 20 Geo. Mason L. Rev. 979, 979 (2013) (describing FRAND policies in standards organizations and corresponding policies of the Department of Justice and the Federal Trade Commission).<\/p>\n

[42]<\/a> See <\/em>Delacey, supra<\/em> note 17, at 7 (describing how the wireless security standards process \u201cbecame a battleground for commercial groups vying to place their IP\u201d in the standard).<\/p>\n

[43]<\/a> See <\/em>Joseph Farrel, et. al., Standard Setting, Patents, And Hold-Up<\/em>, 74 Antitrust L.J. 603, 624-630 (2007). The Chinese standards association participating in the development of 5G standards imposes disclosure obligations broadly similar to the requirements of other standards organizations. See China Communications Standards Association, Intellectual Property Rights Policy, \u00a7 3 [hereinafter CCSA IPR Policy].<\/p>\n

[44]<\/a> Farrel, supra<\/em> note 43, at 609; see also<\/em> CCSA IPR Policy, supra<\/em> note 43, at \u00a7 4.<\/p>\n

[45]<\/a> See generally <\/em>Norman V. Siebrasse & Thomas F. Cotter, Judicially Determined FRAND Royalties<\/em>, in<\/em> The Cambridge Handbook Of Technical Standardization Law 365 (Jorge L. Contreras ed. 2017).<\/p>\n

[46]<\/a> See generally<\/em> Dorsey & McGuire, supra<\/em> note 42.<\/p>\n

[47]<\/a> See<\/em> eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (Kennedy, J., concurring) (\u201c[A]n injunction, and the potentially serious sanctions arising from its violation, can be employed as a bargaining tool to charge exorbitant fees to \u2026 practice the patent\u201d).<\/p>\n

[48]<\/a> Apple Inc. v. Motorola Inc., 757 F.3d 1286, 1332 (Fed. Cir. 2014). See also <\/em>Huawei Technologies Co. Ltd. v. Samsung Electronics Co. Ltd., Case No. 3:16-cv-02787-WHO, 2018 U.S. Dist. LEXIS 63052, at *31 (N.D. Cal. April 13, 2018) (stating that the \u201cbulk of precedent\u201d supports the position that enforcing the injunction of a Chinese court on SEPs \u201cwould frustrate specific domestic policies against [such] injunctive relief\u201d).<\/p>\n

[49]<\/a> Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1209 (Fed. Cir. 2014) (stating that \u201cSEPs pose two potential problems that could inhibit widespread adoption of the standard \u2026 Patent hold-up exists when the holder of a SEP demands excessive royalties after companies are locked into using a standard.\u201d); In re Innovatio IP Ventures, LLC, MDL Docket No. 2303, Case No. 11 C 9308, 2013 U.S. Dist. LEXIS 144061, at *61 (N.D. Ill. Sept. 27, 2013) (stating that \u201cone of the primary purposes of the RAND commitment is to avoid patent hold-up\u201d).<\/p>\n

[50]<\/a> See TCL Commc\u2019n Tech. Holdings, Ltd. v. Telefonaktiebolaget LM Ericsson, CASE NO: SACV 14-341 JVS(DFMx), CASE NO: CV 15-2370 JVS(DFMx),2017 U.S. Dist. LEXIS 214003, at *46 (C.D. Cal. Nov. 8, 2017) (limiting Ericsson FRAND royalties to a share of a total aggregate rate); In re Innovatio, 2013 U.S. Dist. LEXIS 144061, at *169 (taking a \u201ctop-down\u201d approach to determining FRAND royalties).<\/p>\n

[51]<\/a> Siebrasse & Cotter, supra<\/em> note 45, at 366 (stating that \u201coverall\u201d the principles emphasized by the courts have reduced \u201cconcerns over the potential for SEPs to induce holdup and royalty stacking\u201d). Civil suits and regulatory investigations in foreign jurisdictions (including China) have imposed broadly similar, if not more restrictive, limitations on FRAND-committed patentees. See generally<\/em> The Cambridge Handbook of Technical Standardization Law (Jorge L. Contreras, ed. 2017).<\/p>\n

[52]<\/a> No doubt, China\u2019s increased holdings of standard essential patents will have economic effects, notwithstanding any accompanying FRAND obligations. See<\/em> Andrew Polk, China is Quietly Setting Global Standards<\/em>, Bloomberg, May 7, 2018. A full discussion of the distinction between economic competition and national security threats is beyond the scope of this essay. See, e.g.<\/em>, Raj Bhala, National Security and International Trade Law: What the GATT Says, and What the United States Does<\/em>, 19 U. Pa. J. Int’l Econ. L. 263, 273 (1998).<\/p>\n

[53]<\/a> See, e.g.<\/em>, Jorge L. Contreras, Much Ado About Hold-Up<\/em>, U. Illinois L. Rev., (forthcoming 2018) (asserting that the \u201cdebate surrounding patent hold-up in markets for standardized products is now well into its second decade with no end in sight\u201d).<\/p>\n

[54]<\/a> Delacey, supra<\/em> note 17, at 2.<\/p>\n

[55]<\/a> See also<\/em> 2017 USTR China WTO Report, supra<\/em> note 36, at 9 (alleging that Chinese officials \u201crequire or pressure the transfer of technologies and intellectual property to Chinese companies, depriving U.S. companies of the ability to set market-based terms in licensing negotiations\u201d).<\/p>\n

[56]<\/a> See e<\/em>.g<\/em>.,\u00a0 Laura DeNardis & William J. Drake, Protocol Politics: The\u00a0 Globalization of Internet Governance 71 (2009) (\u201cdecisions about encryption protocols must strike a balance between providing individual privacy online and responding to law enforcement and national security needs\u201d).<\/p>\n

[57]<\/a> See<\/em> Am. Soc\u2019y of Mech. Eng\u2019rs v. Hydrolevel Corp., 456 U.S. 556 (1982) (standards association held liable under antitrust law when the employee of a member firm unlawfully manipulated its procedures); Rambus, Inc. v. Infineon Techs. AG, 330 F. Supp. 2d 679, 696\u201397 (stating that \u201cby hijacking or capturing\u00a0an SSO, a single industry player can magnify its power and effectuate anticompetitive effects on the market in question\u201d).<\/p>\n

[58]<\/a> See <\/em>Allied Tube & Conduit Corp. v. Indian Head, Inc.,\u00a0486 U.S. 492 (1988)\u00a0 (in a standards organization, steel producer violated the antitrust laws together with other manufacturers, sales agents and members of the steel industry).<\/p>\n","protected":false},"excerpt":{"rendered":"

by Eli Greenbaum\u2014The Trump Administration recently blocked Broadcom’s proposed acquisition of Qualcomm, citing concerns about Chinese involvement in the process of establishing a technical standard for 5G networks. Eli Greenbaum of Yigal Arnon & Co. argues that these concerns defy longstanding U.S. positions and are 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