According to Gartner's statistics, in the third quarter of 20 13, ZTE, Huawei, Lenovo, TCL Communication and Yulong Coolpad ranked 5th, 6th, 7th and 8th in the global market with market share of 3.0%, 3.0%, 2.9% and 1.9% respectively.
These enterprising China manufacturers have good cost control, and they are coveting greater breakthroughs in various markets around the world. However, for professional patent hooligans, they are the most perfect "big fat sheep" in China. The big mouth of patent hooligans
20 13 September, Microsoft (MSFT: Nasdaq) spent 3.79 billion euros to acquire Nokia (NYSE) mobile phone business, and at the same time spent16.5 billion euros to purchase Nokia 10 patents. "We can get the right to use Nokia patents, but we won't get the ownership of the patents themselves." Brad smith, general counsel of Microsoft, said at the time.
Why didn't Nokia sell the patent to Microsoft? It is widely speculated in the industry that Nokia, which has many core high-quality patents in the mobile communication industry, is likely to continue to collect a large amount of patent fees through its patent portfolio in the future. Mark Durrant, Nokia's legal spokesman, also said after the disclosure of the acquisition transaction: "Until now, Nokia has not authorized its own patents in large quantities, but when the mobile phone business is divested, we will try to license the technology."
At the end of 20 13, Joaquin Almunia, the EU Competition Commissioner, severely warned Nokia not to become a "patent hooligan", saying that if Nokia tried to use its patent in a rogue way, it would not hesitate to file an antitrust lawsuit.
China's Ministry of Commerce is reviewing Microsoft's acquisition of Nokia. Many mobile phone companies in China are worried that Nokia, which has divested its mobile phone business, may propose huge patent licensing fees, which will limit fair competition in the market and weaken the competitiveness of China mobile phone companies.
2 1 Century Business Herald The reporter learned from the relevant mobile phone manufacturers that in addition to the Ministry of Commerce, the National Development and Reform Commission also joined the review of this transaction.
Whether Nokia will become a "patent hooligan" is still inconclusive, but some patents sold by this company in August 20 12 have become patent arrows aimed at China manufacturers. Vringo, who pushed ZTE and ASUS to the German dock, is one of the buyers of Nokia's patents.
Whichever way you look at it, Vringo has the characteristics of "patent hooligan". Vringo claims to operate a publishing platform for mobile social applications, but this part of the physical business has hardly generated revenue. The company's financial report for the third quarter ended September 30th, 20 13 shows that its income is only USD 50,000, while its total operating expenses reach USD11226,000 and its net loss is USD1056,000.
Vringo's main business model is to obtain patents through acquisitions and other means, and then initiate patent litigation against the so-called "Big Fat Sheep" company in the global market to seek patent licensing fees.
20 12, 19 In July, Vringo Company experienced a change of control, and then announced in August that it had purchased about 500 patents from Nokia, including communication management, data and signal transmission, mobility management, frequency resource management and services, involving a capital of 22 million US dollars.
Microsoft is one of Vringo's "big sheep". On May 30th, 20 13, Microsoft reached a settlement agreement with Vringo after some court battles, and Microsoft compensated Vringo1000000 dollars, and paid a certain percentage of related patent licensing fees in the future. At the same time, Microsoft also transferred six patents to Vringo.
Before and after obtaining the patent transfer from Nokia, Vringo started a global lawsuit against ZTE. In this merger lawsuit, both sides have their own offenses and defenses, and the outcome is unpredictable.
Shen Jianfeng, global intellectual property director of ZTE, told 2 1 Century Business Herald that patent operating companies are divided into two categories: super-large patent operating companies and small and medium-sized patent operating companies. The former is InterDigital, IV, Acacai, etc. Generally, they are transformed from entity companies or through large-scale mergers and acquisitions, and have huge patent assets; The latter generally owns a small amount of patent assets through their own research and development or mergers and acquisitions.
However, the ultimate demands of the two companies are almost the same, mainly through strategic cooperation, asset operation and capitalization of their patent assets, such as joint patent sale, patent authorization, patent litigation, etc., in order to obtain benefits. Among them, patent litigation is their core weapon. By launching a large-scale lawsuit, some defendants are forced to settle in advance, and then these funds are used to continue litigation with their target objects to earn the maximum income. Such companies attract investors again or push the stock price up through the proceeds of patent operation, obtain new funds for further research and development, create patents or acquire patents, and then continue to operate patent packages, forming a cycle.
"As China companies get bigger and bigger and go overseas with greater strength, the more likely they are to become' big fat sheep' exposed to' patent hooligans' sniper rifles." Shen Jianfeng said.
According to the statistics of patent freedom, Huawei and Lenovo both encountered 13 lawsuits initiated by patent hooligans in 2065,438+02. In the first half of 2065,438+03 alone, such lawsuits suffered by Huawei rose to 15. The counterattack of "big fat sheep"
Shen Jianfeng emphasized to the reporter of 265438+20th Century Business Herald that ZTE attaches great importance to the protection of independent intellectual property rights and respects the intellectual property rights of other companies. ZTE has distributed more than 50,000 patents worldwide and granted14,000 patents, especially in the field of LTE, over 800 basic patents have been declared, accounting for 10% of the global total. However, "ZTE opposes disorderly abuse and abuse of intellectual property rights."
If the entity enterprise is targeted by patent hooligans, it must first make sure to formulate strategies under the principle of maximizing interests, and then comprehensively use conventional means, such as actively responding to the lawsuit, claiming that the patent of the other party is not infringing or invalid, and initiating counterclaims. And unconventional means to deal with them.
In fact, ZTE and Huawei have recently won a preliminary victory in the patent infringement lawsuit against InterDigital.
As a big NPE, InterDigital has nearly 20,000 patents (or patent applications), claiming to have many 2G, 3G and 4G standard patents in the field of wireless communication. 20 1 1 In July, InterDigital sued ZTE and other companies for patent infringement in the United States International Trade Commission (ITC) and the federal district court, demanding that 337 investigation be initiated and an exclusion order be issued to prohibit the defendant company from selling 3G mobile devices in the United States.
2065438+February 20, 2003, 65438+2003, the United States made a final ruling on InterDigital v. ZTE and other patent infringement cases. ZTE did not violate Section 337, did not infringe six of the seven patents sued by the plaintiff, and the remaining one was also deemed invalid. The lawsuit between ZTE and InterDigital in the federal district court is still in the contest stage.
In 20 13, ZTE has won the 337 survey initiated by three patent operating companies in the United States: Interdigital, TPL and Flashpoint.
Looking back on the process of responding to the lawsuit, Shen Jianfeng told the reporter of 2 1 Century Business Herald that since 201Interdigital initiated the lawsuit, ZTE has set up relevant responding teams including technology, business, law, brand and securities, and selected a law firm with rich ITC litigation experience to actively respond to the lawsuit. In the process of responding to the lawsuit as a whole, it not only includes the counter-attack to the conventional defense points of InterDigital litigation, such as the global invalidity and non-infringement defense of the patent involved, the design analysis of the product, etc., but also includes the active counter-attack to InterDigital, including the counterclaim and the preparation for the anti-monopoly investigation in China.
In terms of overall strategy, in addition to actively responding to the lawsuit and actively fighting back, ZTE has also made deep alliances with other defendants and cooperated in responding to the lawsuit strategy and resource allocation.
"The joint acquisition is also one of ZTE's solutions to the dispute with InterDigital." Shen Jianfeng told 2 1 Century Business Herald that ZTE is actively tracking and participating in the acquisition of InterDigital by major companies and patent defense alliances in the industry.
Huawei told the reporter of 265438+20th Century Business Herald that since it received InterDigital's lawsuit in July of 20 1 1, on the one hand, Huawei actively responded to the lawsuit, on the other hand, it filed counterclaims in the courts of the United States and China, and filed antitrust complaints with the governments of China, Europe and the United States. On 20 13, 10, Huawei's counterclaim in China received a second-instance effective judgment from the Guangdong Provincial High Court, and most of Huawei's claims were supported. Two months later, Huawei also won the final ruling of the US International Trade Commission, and all related patents of InterDigital were ruled invalid or non-infringing. 20 12 12 On February 23rd, Huawei and InterDigital reached a settlement, and both parties withdrew relevant lawsuits and settled some disputes through arbitration. Subtle changes in the attitudes of European and American governments
In Shen Jianfeng's view, winning InterDigital shows ZTE's determination and ability to deal with the abuse of patent management companies, and objectively encourages China companies to conduct intellectual property litigation overseas, including ITC.
"This victory can, to some extent, reflect the recent change in the attitude of the US judicial administration system towards patent management companies." Shen Jianfeng told reporters that this change lies in the change from restraint and tolerance to active supervision. "This will greatly encourage the determination of entities to fight against patent operating companies."
"We can see this change from the American Invention Act signed by US President Barack Obama on 201/kloc-0 and the Innovation Act approved by the US House of Representatives on 20 13." Shen Jianfeng believes that these bills effectively regulate the phenomenon of excessive litigation by patent operating companies.
Huawei believes that ITC's ruling on InterDigital case has not put forward new restrictions on patent operating companies. However, the U.S. government did put forward many measures to limit the abuse of patents by patent operating companies and basic patent holders involved in the standards.
In addition, the Competition Commissioner of the European Commission recently publicly warned Nokia not to become a "patent cockroach", and European countries cautiously issued standard-related patent bans, which all showed the determination of overseas markets, especially countries and regions with developed intellectual property protection such as Europe and the United States, to regulate patent operating companies.
At the same time, many government departments, including China, have also launched a series of anti-monopoly investigations, showing the restrictions on patent abuse.
In addition to the interference of the Ministry of Commerce and the National Development and Reform Commission in Microsoft's acquisition of Nokia, the National Development and Reform Commission of China also launched an anti-monopoly investigation on Qualcomm at the end of 20 1 13. Subsequently, Xu, director of the price supervision and inspection department of the National Development and Reform Commission, was quoted in the English version of China Journal as saying that the department had a lot of evidence about anti-monopoly in Qualcomm.
"We have seen that many governments, including China, India and the United States, strongly demand reform and restrictions on this' patent hooligan' practice, and there are some precedents." Guo Aiping told reporters of 265438+20th Century Business Herald that it is not that patent fees should not be paid, but that the collection of patent fees should be just, reasonable and fair. Therefore, TCL Communication supports the domestic government to take seriously all cases with the tendency of' patent hooliganism'.
Guo Aiping said that with the acquisition of Alcatel's mobile phone business, TCL Communication obtained core patents including 2G and 2.5G, and at the same time, through its own efforts, it also owned some core patents of 3G and 4G. Although the number is small, it is enough to exchange with many patentees and reduce patent fees.
Shen Jianfeng said that with the advent of the 4G era, due to the highly dispersed LTE patents and the relatively balanced strength of various communication equipment manufacturers, the share of intellectual property rights of China enterprises in the 4G field has been significantly improved, forming a bargaining chip against major competitors. ZTE believes that in the 4G era, licensing negotiations through patent litigation will lead to more chaotic competition. Therefore, it will become an industry trend to license intellectual property rights in a more open, fair and win-win environment by establishing a pan-industry patent pool mechanism and adopting a "quasi-one-stop" licensing model.
"It is not realistic to eliminate random complaints in a short period of time." Although Shen Jianfeng believes that the attitude of the United States has changed subtly, it must also be noted that as the largest exporter of intellectual property rights in the world, patent licensing and operation are still important industries in the United States, which play an important role in the trade balance, intellectual property innovation incentives and value-added, and also involve the activity and survival of R&D institutions, enterprises, downstream law firms and legal service institutions. Therefore, the restrictions on patent operating companies will be a gradual process.
In this process, China enterprises participate in the American market competition, on the one hand, they actively adapt to and apply the American patent game rules; On the other hand, under the general environmental trend, we should actively promote the reform of judicial administration, forge our own strength, and face patent competition with a more open and confident attitude.