Huawei changes its patent story

By opening up its massive patent portfolio to Linux and open-source companies via the Open Invention Network, Huawei shows just how important open patents are to software development. It's also an intellectual property peace offering to the US government and businesses.
Written by Steven Vaughan-Nichols, Senior Contributing Editor

On the one hand, Chinese telecommunications giant Huawei is warring with the US over trade sanctions, including suing Verizon over its misuse of its patents. Verizon has replied that Huawei is taking "credit for American innovation" with baseless suits over "outdated and valueless" patents. But, on the other hand, Huawei just opened up its more than 56,000 patents to Linux and open-source companies by joining the Open Invention Network (OIN). What's going on here?

For background, you should know that Huawei's patent portfolio is both enormous and, especially in 5G, comprehensive. Statia reports Huawei Is leading the 5G patent race with 3,147 patents. If you want to deploy 5G technology, you must deal with Huawei.

It's not just 5G tech. In 2019, Huawei was granted the most patents in the EU and was a top 10 recipient in the US. The company is, in every sense of the word, a major telecommunications player. 

In addition, while not a household name in the US, Huawei overtook Ericsson in 2012 as the world's largest telecommunications-equipment manufacturer. In 2018, Huawei moved ahead of Apple as the second-largest manufacturer of smartphones in the world. Only Samsung is larger. 

But, in May 2019, the US government added Huawei to its entity list. This prohibits US companies from transferring technology to Huawei without a government license. And it has led to Google suspending the use of parts of the Android OS on Huawei devices, including such key apps as Play Store and Maps.

I suspect Huawei is trying to accomplish several objectives by joining the OIN. One of them is that, by opening up much of its patent portfolio to open-source companies, it's offering an olive branch to US-based companies. For example, AT&T Intellectual Property LLC, Google, and Verizon are all already OIN members. 

After all, as Andrew "Andy" Updegrove, standards and patent expert and founding partner of top-technology law firm Gesmer Updegrove, pointed out in an interview:

"The global business community would generally prefer that business with Huawei could just go on as usual. Huawei and its affiliates are the acclaimed leaders in 5G technology, and the rest of the commercial world wants to have access to that technology, and also to be able to interoperate with it. In other words, to the extent that western companies agree with the US administration the risks, they have decided that the rewards outweigh those risks and are willing to accept them -- as most recently evidenced by the news yesterday relating to how many US components are finding their way into Chinese handsets." 

Specifically, there are US parts in Huawei's just-released P40 Pro

So, what will Huawei joining the OIN mean for existing intellectual property (IP) conflicts and lawsuits remains to be seen. At the very least, it opens up entirely new conversations going forward with how companies and countries will work with Huawei. 

Updegrove continued:

It doesn't surprise me that Huawei would wish to join OIN, or that OIN would be happy to have Huawei aboard. There are hundreds of standards organizations that would love to have Huawei be able to participate as well, but the great majority have concluded that this can't happen unless and until either the standards organizations change their rules, or the BIS [The Bureau of Industry and Security] creates a safe harbor that would make this unnecessary. Open-source projects operate under a much more transparent process than do standards organizations, and this has allowed Huawei to continue to participate in many important open-source projects.

There's another reason for Huawei's move. Open source has won. Almost all important software development is now done with open source and Huawei's a part of that world. 

In addition, Updegrove observed, "It's also possible that Huawei is taking this action at this time to burnish its image as a team player in the open-source ecosystem while it is under attack by the US  government."

Heather Meeker, a partner at the law firm O'Melveny & Myers who specializes in open-source software licensing, remarked: 

"This move just demonstrates that joining OIN has become a no-brainer for any product company. Setting aside the patent trolls, who would never have an incentive to join, no one is asserting patents against Linux anymore.  Waging a patent war against a popular open-source project like Linux is bad for business."

That said, Meeker continued:

"Of course, the OIN definition of Linux is far broader than the kernel. Even so, the OIN pool protects the basic infrastructure of the web, and no serious product company has an interest in disrupting it. That would be like sabotaging the roads we all drive on."

Related Stories:

Editorial standards