China threatens retaliation if India bans Huawei.

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According to a Reuters article, China has warned India not to block Huawei from doing business in the country, warning there could be consequences for Indian firms operating in China.

Part of the warning comes as India is holding trials for a 5G networking in the upcoming months and has not yet determined whether they will invite Huawei to take part in the rollout of 5G in India.

The Reuters article says Indian companies do not have a larger presence in China, but do have manufacturing, healthcare, financial services and outsourcing companies there.

India is currently evaluating bids from 5G firms such as Ericcson, Nokia, Samsung and officials have not yet confirmed Huawei will take part. The Indian Department of Telecommunications have found no evidence of Huawei capabilities of a backdoor or malware to collect data and the Indian Ministry of Home Affairs has issued no directive to curtail Huawei’s entry.

Huawei challenging constitutionality of US ban.

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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”.

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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.