For The Record

Illustration by Mike Domina

In this excerpted op-ed for InsideSources, Kristen Jakobsen Osenga, Austin E. Owen Research Scholar and professor of law, argues that the U.S. must protect domestic companies that seek to develop 5G technology.

Most Americans associate 5G technology with self-driving cars, virtual reality headsets, or super-fast internet. While all of these applications are exciting, they aren’t as critical as the national security implications of 5G. Winning the race to 5G will help ensure that our military communications are secure and that bad actors can’t hack or manipulate these communications.

The Chinese Communist Party understands very well the importance of 5G and is working hard to develop 5G technology before we do. China’s aggressive actions “threaten not only the U.S. economy but also the global innovation system as a whole,” according to the White House Office of Trade and Manufacturing Policy.

One of the biggest barriers to American development of 5G is aggressive antitrust enforcement, which threatens innovation by forcing American companies to engage in expensive litigation. As a result, these companies often are unable to exercise their legally granted intellectual property rights. Qualcomm — one of the most active companies in the 5G space — was embroiled in a years-long legal battle that jeopardized its business model and could have forced it to sell its groundbreaking wireless chips at a steep discount.

The problems American companies face overseas are even more extensive, as foreign governments like China prioritize technological supremacy over the rule of law. American companies often face pressure to settle out of court because they know the process is rigged. And, according to research by the Office of the United States Trade Representative, the laws that China chooses to enforce are often overly broad and essentially allow Chinese companies to seize intellectual property if American companies won’t hand it over cheaply.

Historically, American companies have been the forerunners of innovation, and America has reaped the benefits. That may not occur with 5G because only a handful of American companies, like Qualcomm, are heavily investing in 5G — and they may be forced out of the market by expensive litigation costs or the outright theft of their products.

The U.S. government must use existing mechanisms and diplomatic solutions to thwart China, South Korea, and other countries that take advantage of America’s support of free trade to steal our technology. One promising approach is the Protecting American Innovation and Development Act, which would authorize the Secretary of Commerce to curate a list of foreign “bad actors” who engage in patent infringement in technologies like 5G. If an American company can show that a foreign company is illegally using its patent, that foreign company will be moved to the list for one year and will have to negotiate with the U.S. patent owner.

The race to 5G is too vital for America to be caught sleeping. We need to protect our domestic innovators from overseas antitrust harassment and ensure that innovation triumphs over theft and abusive legal practices.