Huawei challenging constitutionality of US ban.

black huawei android smartphone

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Yesterday, Huawei filed a motion in court to challenge a ban against Huawei in the most recent National Defense Authorization Act (NDAA) passed last August 13, 2018.

The NDAA language banning US government agencies is found here:

SEC. 889. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT.

(a) Prohibition On Use Or Procurement. – (1) The head of an executive agency may not—

(A) procure or obtain or extend or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system; or

(B) enter into a contract (or extend or renew a contract) with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.

Huawei’s main argument is the ban is unlawful because it targets a specific person – Huawei and its entities.

The NDAA (defense budget) does specifically mention Huawei and ZTE when it included:

(3) COVERED TELECOMMUNICATIONS EQUIPMENT OR SERVICES.—The term “covered telecommunications equipment or services” means any of the following:

(A) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).

The government claims the ban is for national security reasons. Previous bans included a federal ban on software from Russia-based Kaspersky Lab. Kapersky also filed a legal challenge but the government prevailed in court due to national security issues. It is unclear whether this court will rule similarly.

Will update as soon as more information becomes available.

Qualcomm asks Judge to block iPhone imports – Judge says no because of “public interest factors”.

apple applications apps cell phone

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Qualcomm appeared in front of the US International Trade Commission Judge on Friday to request a ban on the importation of Apple iPhones due to Apple phones infringing Qualcomm’s patent related to power management technology. Apple’s position is that Qualcomm is requesting royalties for technology unrelated to Qualcomm.

The administrative law judge, Thomas Pender, found Apple did infringe on one patent, but denied the request for a ban citing “public interest factors”.

From my experience, CBP will readily and gladly detain and/or seize any import that infringes upon any intellectual property or trademark registered by the holder. We all know the reason why the Judge said he would not ban the importations of iPhones – he does not want to be known as “that guy” that banned importation of some iPhones to the US – especially due to the release of the new iPhone max and other variations.

Unfortunately, this decision highlights the rules being selectively applied to some and not to others.

If your imports have been detained or seized by Customs, contact experienced trade attorney, David Hsu at 832-896-6288 or by email at attorney.dave@yahoo.com.