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Five out of the top 10 mobile phone manufactures are Chinese companies.
According to the statistical data of Gartner， ZTE， Huawei， Lenovo， TCL and Coolpad respectively took 3%， 3%， 2.9%. 2.7% and 1.9% of the global mobile phone market in Q3， 2013， ranking No. 5， 6， 7， 8 and 10 globally.
These Chinese companies are known for their skills of controlling cost and ambition to be the best. Now they are looking for more breakthroughs in the global markets. However， for the patent trolls， the new-coming Chinese companies are like a sheep into the wolf pack.
Patent trolls are also called patent cockroaches or patent sharks， referring to the companies that have no substantial business but rely on filing lawsuits of infringement of patents. Since they have no substantial business， they are also known as non-practicing entities （NPE） internationally. Of them， Intellectual Ventures， Interdigital and Acacai are the most famous.
According to the statistical data from Patent Freedom， the number of lawsuits of patent infringement initiated by NPE is increasing year by year in the world. In 2004， there were 588 lawsuits of patent infringement. In 2011 there were 4，602 cases. Apple， Hewlett Packard， Samsung， AT&T， Dell， Sony and HTC are the most frequently accused companies. Apple， for example， was sued over patent infringement 44 times in 2012.
“In a smartphone， various patent fees could take 8%-10% of its factory price，” said Li Bin， vice president of Coolpad.
Guo Aiping， CEO of TCL， said that the tech companies， inspired by the purpose of maximizing the profits， sell some of their patents to others to get the extra and undeserved patent royalties. “Some companies that no longer make mobile phones still use that way to collect as many profits as possible from their patents.”
The Greedy Patent Trolls
In September 2013， Microsoft spent 3.79 billion euros acquiring the mobile phone business of Nokia. It paid additional 1.65 billion euros on the 10-year right of using Nokia’s patents. “We just got the right of using Nokia’s patents. That does not mean we have owned these patents，” said Brad Smith， general counsel for Microsoft.
Why did not Nokia sell its patents to Microsoft at the same time？ There was a guess then that Nokia， which owned a lot of core and quality patents， might turn to the patent fees to make a fortune. Mark Tarrat， spokesman for Nokia， said after the deal： “Nokia never massively sold its own patents to others until now. But after the spin-off of the mobile phone unit， we might try on the technology transfer.” EU Competition Commissioner Joaquin Almunia warned Nokia not to become a “patent troll” at the end of last year. He， on behalf of the EU Competition Commission， said that the organization would launch anti-monopoly suits without hesitation if Nokia tries to use its patents improperly.
At present， the deal of Microsoft’s acquiring Nokia is being judged by the Ministry of Commerce of China. Many Chinese mobile phone enterprises worry that Nokia without its mobile phone unit might ask for a large amount of patent licensing fees， which could limit the fair competition in the market and weaken the competitiveness of Chinese enterprises.
Whether Nokia will become a “patent troll” or not remains unknown， but a part of patents it sold in August 2012 have become the weapon some real “patent trolls” used against Chinese mobile phone manufacturers. Vringo， which brought ZTE and Huawei to the court in Germany， was one of the buyers of Nokia’s patents.
Vringo is a typical “patent troll”. Its major business pattern is to acquire patents from other companies and file lawsuits against the big and established companies in the name of patent infringement. It claimed to run a platform of launching mobile social apps， but that business generates close to zero income. In the third quarter of last year， the company only owned US$50 thousand， but the gross operating cost amounted to US$11.226 million， resulting in the net loss of US$10.56 million.
In July 2012， Vringo went through a change in its shareholding structure. In the next month， it spent US$22 million buying about 500 patents of Nokia， covering communications management， data and signal transfer， mobile management， frequency resource management and service.
Microsoft was among the first targets of Vringo. On May 30， 2013， Microsoft reached a settlement agreement with Vringo after a confrontation in the court. Microsoft agreed to compensate Vringo US$1 million and pay the licensing fees for relevant patents in the future. Meanwhile， Microsoft transferred six patents to Vringo.
After gaining that much from Microsoft， Vringo immediately spread the network to cover more targets. The Chinese company ZTE is its latest target. Presently， the confrontation between ZTE and Vringo is still there and no conclusion can be made.
Shen Jianfeng， the director of ZTE’s global intellectual property， said that there were two kinds of patent operation companies. The first kind is massive in size. These companies， like InterDigital， IV and Acacai， usually turned from entity companies. They spare no money in acquiring assets from other companies and own a great reserve of them. The second kind is small in size and they feature self-developed patents， even though the number is quite small. But these two kinds of companies share the same goals. All they want are to reach cooperation with big companies on the patents， turn the patents into capital by selling， transferring and licensing them， and file lawsuits to earn the compensation. Of these things， the lawsuit of patent infringement is their best weapon. Through launching big lawsuits， they can force some defendants to seek reconciliation. After getting the compensation， they will look for new targets， or even bring the original defendants back to the court again to earn as high profits as possible. In addition， they can attract investment or push their stock price upward through the operation pf patent and put the newly acquired capital into acquiring more patents.
“As the Chinese companies are growing in size and putting more efforts into the overseas development， they are more likely to become the targets of‘patent troll’，” said Shen Jianfeng.
According to the statistical data of Patent Freedom， Huawei and Lenovo were respectively brought to the court by “patent trolls” 13 times in 2012. In the first half of 2013， Huawei had to face 15 patent infringement lawsuits launched by these “trolls”.
The Counterstrike of Mobile Phone Companies
However， the Chinese mobile phone companies are not the “lamps waiting to be killed without any defense”. According to Shen Jianfeng， ZTE keeps making a great account of the intellectual property and respects the other companies’property rights. Presently， ZTE now owns over 50 thousand patents and 14 thousand licensed patents. In the field of LTE， it has claimed the ownership of over 800 patents， accounting for 10% of the total volume around the globe. But， ZTE “opposes the abuse of intellectual property rights”.
Usually， the companies that have confronted “patent trolls” fixed the strategies of counterstrike following the principle of keeping their maximal profits. In addition， they usually resort to the regular methods， such as active response to lawsuits， claim of non-infringement activities or nullification of the opponents’ patents.
Actually， ZTE and Huawei have achieved initial victory during the lawsuits of patent infringement launched by InterDigital.
As a large NPE， InterDigital owns about 20，000 patents. It allegedly has many patents in the standards of 2G， 3G and 4G. In July 2011， InterDigital filed lawsuits at the U.S. International Trade Commission （ITC） and the commonwealth regional court against ZTE over infringement on its patents. It proposed to prohibit the sales of 3G mobile devices of ZTE in the U.S. On December 20， 2013， the administrative law judge of ITC made the absolute decree of InterDigital’s lawsuit against ZTE. The U.S. court adjudicated that ZTE did not break the laws and had not infringed on the six patent rights out of the total seven patents included in the file. The other patent was believed to be invalid. ZTE won the first round， but InterDigital did not give up. Now the trial is still on in the commonwealth regional court.
According to Shen Jianfeng， ZTE has defeated three“patent trolls” – InterDigital， TPL and Flashpoint – in the U.S.
As for how to win the trials， Shen Jianfeng said that ZTE made up a team consisting of the experts in technology， commerce， law， brands and securities. They invited ITC lawyer firm， which is quite experienced in dealing wit these lawsuits. During the confrontation with InterDigital， ZTE and its team staged the counterattack to the defense points of InterDigital’s claims， such as the invalid patents， the defense of non-infringement and so on. They also actively filed lawsuits against InterDigital， such as bringing it to the court in China and launched anti-monopoly investigation.
ZTE also worked closely with other defendants of InterDigital， no matter they were Chinese or foreign companies. The alliance shared the defense strategies and the resources.”
“United acquisitions are a solution of ZTE to the disputes with InterDigital，” said Shen Jianfeng. ZTE is now keeping track of the main practitioners and the patent defense alliance to stop InterDigital from buying more patents.
Huawei was another Chinese company that has confronted InterDigital several times. After being sued by InterDigital in July 2011， it filed lawsuits against InterDigitial in China and the U.S. and then made a proposal to the governments of China， U.S. and EU to investigation into the monopoly of InterDigital by abusing the patents. In October 2013， the Chinese court made a decree supporting most of Huawei’s claims. Two months later， Huawei also defeated InterDigital in the ITC’s absolute decree as there were no infringements on InterDigital’s patents done by Huawei. At the end of 2012， Huawei reached a reconciliation agreement with InterDigital： the two parties annulled their litigations and solved some disputes through arbitrages.
The Changes of Foreign Governments
In Shen Jianfeng’s opinion， the victory over InterDigital showed ZTE’s determination and ability to fight against the abuse of patents by the “patent trolls”. In addition， the victories encouraged the Chinese companies to win the lawsuits of intellectual property rights at abroad. “Our victories in ITC could also show that the U.S. judicial administrative system has changed their attitudes toward these patent operating companies，” Shen Jianfeng said. Previously， they were tolerated， but now， the U.S. judicial took positive measures to keep these institutions at bay. “The changes will greatly encourage the entity enterprises to fight against these ‘patent trolls’.”
“The changes could be shown in The U.S. Invention Act taking effect in 2011 and The Innovation Act confirmed by the U.S. House of Representatives in 2013，” Shen Jianfeng stressed. These acts have efficient regulations for the abuse of patents by the patent operating companies.
The same changes could be seen in the EU. EU Competition Commission warned Nokia not to become a “patent cockroach”. In addition， European countries ordered the ban over some of its patents after careful consideration. All these show that the overseas markets， especially the U.S. and European market have reconsidered their intellectual property rights protection policies and decided to keep the abuse of patents by “patent trolls” on hold.
At the same time， many governments， including the Chinese government， initiated a series of anti-monopoly investigations to limit the abuse of patents.
The Ministry of Commerce of China has been involved in the deal of Microsoft’s acquisition of Nokia. The National Development and Reform Commission of China also launched an anti-monopoly investigation into Qualcomm. An insider from this department said that they had got substantial proofs for Qualcomm’s monopolization.
“We can see that many governments， including the ones of China， India， and U.S.， required changing and limiting the‘patent trolls’ and there were some examples，” said Guo Aiping. In his opinion， the collection of patent fees should be fair and reasonable.
According to Guo Aiping， TCL got the 2G and 2.5G core technologies by acquiring Alcatel-Lucent’s mobile phone unit. It also gained some 3G and 4G patents through its own efforts. “Though the number is small， it is still enough to realize the swap of technologies with other companies and thus reduce the cost of patent licensing.”
Shen Jianfeng said that the 4G era featured the scattered ownership of LTE patents， putting all telecom device manufacturers at the same starting line. Chinese companies have a much higher proportion of patents in 4G than they did in the 3G period， allowing them to compete with foreign companies. However， such a situation will bring about more lawsuits of patents， which might provide a new hotbed for these “patent trolls”. Therefore， it is necessary and a trend to build a patent pool across the entire industry to license the patents in a fairer and more open environment.
“It is not realistic to eradicate the abuse of patents in a short while，” Shen Jianfeng said. Even though the U.S. government has changed its attitude a bit， the U.S.， which is the largest intellectual property exporter in the world， can still earn a lot of money from the patent licensing. This is very important for the trade balance， innovation incentives and value-added of the U.S.， as well the survival and development of R&D institutions， enterprises and related services. Therefore， it is a progressive project to limit the activities of patent companies.
For the Chinese companies， they need to adapt themselves to the international rules. In addition， the Chinese government should provide relevant services to help Chinese companies face the competition over patents with more confidence.
According to the statistical data of Gartner， ZTE， Huawei， Lenovo， TCL and Coolpad respectively took 3%， 3%， 2.9%. 2.7% and 1.9% of the global mobile phone market in Q3， 2013， ranking No. 5， 6， 7， 8 and 10 globally.
These Chinese companies are known for their skills of controlling cost and ambition to be the best. Now they are looking for more breakthroughs in the global markets. However， for the patent trolls， the new-coming Chinese companies are like a sheep into the wolf pack.
Patent trolls are also called patent cockroaches or patent sharks， referring to the companies that have no substantial business but rely on filing lawsuits of infringement of patents. Since they have no substantial business， they are also known as non-practicing entities （NPE） internationally. Of them， Intellectual Ventures， Interdigital and Acacai are the most famous.
According to the statistical data from Patent Freedom， the number of lawsuits of patent infringement initiated by NPE is increasing year by year in the world. In 2004， there were 588 lawsuits of patent infringement. In 2011 there were 4，602 cases. Apple， Hewlett Packard， Samsung， AT&T， Dell， Sony and HTC are the most frequently accused companies. Apple， for example， was sued over patent infringement 44 times in 2012.
“In a smartphone， various patent fees could take 8%-10% of its factory price，” said Li Bin， vice president of Coolpad.
Guo Aiping， CEO of TCL， said that the tech companies， inspired by the purpose of maximizing the profits， sell some of their patents to others to get the extra and undeserved patent royalties. “Some companies that no longer make mobile phones still use that way to collect as many profits as possible from their patents.”
The Greedy Patent Trolls
In September 2013， Microsoft spent 3.79 billion euros acquiring the mobile phone business of Nokia. It paid additional 1.65 billion euros on the 10-year right of using Nokia’s patents. “We just got the right of using Nokia’s patents. That does not mean we have owned these patents，” said Brad Smith， general counsel for Microsoft.
Why did not Nokia sell its patents to Microsoft at the same time？ There was a guess then that Nokia， which owned a lot of core and quality patents， might turn to the patent fees to make a fortune. Mark Tarrat， spokesman for Nokia， said after the deal： “Nokia never massively sold its own patents to others until now. But after the spin-off of the mobile phone unit， we might try on the technology transfer.” EU Competition Commissioner Joaquin Almunia warned Nokia not to become a “patent troll” at the end of last year. He， on behalf of the EU Competition Commission， said that the organization would launch anti-monopoly suits without hesitation if Nokia tries to use its patents improperly.
At present， the deal of Microsoft’s acquiring Nokia is being judged by the Ministry of Commerce of China. Many Chinese mobile phone enterprises worry that Nokia without its mobile phone unit might ask for a large amount of patent licensing fees， which could limit the fair competition in the market and weaken the competitiveness of Chinese enterprises.
Whether Nokia will become a “patent troll” or not remains unknown， but a part of patents it sold in August 2012 have become the weapon some real “patent trolls” used against Chinese mobile phone manufacturers. Vringo， which brought ZTE and Huawei to the court in Germany， was one of the buyers of Nokia’s patents.
Vringo is a typical “patent troll”. Its major business pattern is to acquire patents from other companies and file lawsuits against the big and established companies in the name of patent infringement. It claimed to run a platform of launching mobile social apps， but that business generates close to zero income. In the third quarter of last year， the company only owned US$50 thousand， but the gross operating cost amounted to US$11.226 million， resulting in the net loss of US$10.56 million.
In July 2012， Vringo went through a change in its shareholding structure. In the next month， it spent US$22 million buying about 500 patents of Nokia， covering communications management， data and signal transfer， mobile management， frequency resource management and service.
Microsoft was among the first targets of Vringo. On May 30， 2013， Microsoft reached a settlement agreement with Vringo after a confrontation in the court. Microsoft agreed to compensate Vringo US$1 million and pay the licensing fees for relevant patents in the future. Meanwhile， Microsoft transferred six patents to Vringo.
After gaining that much from Microsoft， Vringo immediately spread the network to cover more targets. The Chinese company ZTE is its latest target. Presently， the confrontation between ZTE and Vringo is still there and no conclusion can be made.
Shen Jianfeng， the director of ZTE’s global intellectual property， said that there were two kinds of patent operation companies. The first kind is massive in size. These companies， like InterDigital， IV and Acacai， usually turned from entity companies. They spare no money in acquiring assets from other companies and own a great reserve of them. The second kind is small in size and they feature self-developed patents， even though the number is quite small. But these two kinds of companies share the same goals. All they want are to reach cooperation with big companies on the patents， turn the patents into capital by selling， transferring and licensing them， and file lawsuits to earn the compensation. Of these things， the lawsuit of patent infringement is their best weapon. Through launching big lawsuits， they can force some defendants to seek reconciliation. After getting the compensation， they will look for new targets， or even bring the original defendants back to the court again to earn as high profits as possible. In addition， they can attract investment or push their stock price upward through the operation pf patent and put the newly acquired capital into acquiring more patents.
“As the Chinese companies are growing in size and putting more efforts into the overseas development， they are more likely to become the targets of‘patent troll’，” said Shen Jianfeng.
According to the statistical data of Patent Freedom， Huawei and Lenovo were respectively brought to the court by “patent trolls” 13 times in 2012. In the first half of 2013， Huawei had to face 15 patent infringement lawsuits launched by these “trolls”.
The Counterstrike of Mobile Phone Companies
However， the Chinese mobile phone companies are not the “lamps waiting to be killed without any defense”. According to Shen Jianfeng， ZTE keeps making a great account of the intellectual property and respects the other companies’property rights. Presently， ZTE now owns over 50 thousand patents and 14 thousand licensed patents. In the field of LTE， it has claimed the ownership of over 800 patents， accounting for 10% of the total volume around the globe. But， ZTE “opposes the abuse of intellectual property rights”.
Usually， the companies that have confronted “patent trolls” fixed the strategies of counterstrike following the principle of keeping their maximal profits. In addition， they usually resort to the regular methods， such as active response to lawsuits， claim of non-infringement activities or nullification of the opponents’ patents.
Actually， ZTE and Huawei have achieved initial victory during the lawsuits of patent infringement launched by InterDigital.
As a large NPE， InterDigital owns about 20，000 patents. It allegedly has many patents in the standards of 2G， 3G and 4G. In July 2011， InterDigital filed lawsuits at the U.S. International Trade Commission （ITC） and the commonwealth regional court against ZTE over infringement on its patents. It proposed to prohibit the sales of 3G mobile devices of ZTE in the U.S. On December 20， 2013， the administrative law judge of ITC made the absolute decree of InterDigital’s lawsuit against ZTE. The U.S. court adjudicated that ZTE did not break the laws and had not infringed on the six patent rights out of the total seven patents included in the file. The other patent was believed to be invalid. ZTE won the first round， but InterDigital did not give up. Now the trial is still on in the commonwealth regional court.
According to Shen Jianfeng， ZTE has defeated three“patent trolls” – InterDigital， TPL and Flashpoint – in the U.S.
As for how to win the trials， Shen Jianfeng said that ZTE made up a team consisting of the experts in technology， commerce， law， brands and securities. They invited ITC lawyer firm， which is quite experienced in dealing wit these lawsuits. During the confrontation with InterDigital， ZTE and its team staged the counterattack to the defense points of InterDigital’s claims， such as the invalid patents， the defense of non-infringement and so on. They also actively filed lawsuits against InterDigital， such as bringing it to the court in China and launched anti-monopoly investigation.
ZTE also worked closely with other defendants of InterDigital， no matter they were Chinese or foreign companies. The alliance shared the defense strategies and the resources.”
“United acquisitions are a solution of ZTE to the disputes with InterDigital，” said Shen Jianfeng. ZTE is now keeping track of the main practitioners and the patent defense alliance to stop InterDigital from buying more patents.
Huawei was another Chinese company that has confronted InterDigital several times. After being sued by InterDigital in July 2011， it filed lawsuits against InterDigitial in China and the U.S. and then made a proposal to the governments of China， U.S. and EU to investigation into the monopoly of InterDigital by abusing the patents. In October 2013， the Chinese court made a decree supporting most of Huawei’s claims. Two months later， Huawei also defeated InterDigital in the ITC’s absolute decree as there were no infringements on InterDigital’s patents done by Huawei. At the end of 2012， Huawei reached a reconciliation agreement with InterDigital： the two parties annulled their litigations and solved some disputes through arbitrages.
The Changes of Foreign Governments
In Shen Jianfeng’s opinion， the victory over InterDigital showed ZTE’s determination and ability to fight against the abuse of patents by the “patent trolls”. In addition， the victories encouraged the Chinese companies to win the lawsuits of intellectual property rights at abroad. “Our victories in ITC could also show that the U.S. judicial administrative system has changed their attitudes toward these patent operating companies，” Shen Jianfeng said. Previously， they were tolerated， but now， the U.S. judicial took positive measures to keep these institutions at bay. “The changes will greatly encourage the entity enterprises to fight against these ‘patent trolls’.”
“The changes could be shown in The U.S. Invention Act taking effect in 2011 and The Innovation Act confirmed by the U.S. House of Representatives in 2013，” Shen Jianfeng stressed. These acts have efficient regulations for the abuse of patents by the patent operating companies.
The same changes could be seen in the EU. EU Competition Commission warned Nokia not to become a “patent cockroach”. In addition， European countries ordered the ban over some of its patents after careful consideration. All these show that the overseas markets， especially the U.S. and European market have reconsidered their intellectual property rights protection policies and decided to keep the abuse of patents by “patent trolls” on hold.
At the same time， many governments， including the Chinese government， initiated a series of anti-monopoly investigations to limit the abuse of patents.
The Ministry of Commerce of China has been involved in the deal of Microsoft’s acquisition of Nokia. The National Development and Reform Commission of China also launched an anti-monopoly investigation into Qualcomm. An insider from this department said that they had got substantial proofs for Qualcomm’s monopolization.
“We can see that many governments， including the ones of China， India， and U.S.， required changing and limiting the‘patent trolls’ and there were some examples，” said Guo Aiping. In his opinion， the collection of patent fees should be fair and reasonable.
According to Guo Aiping， TCL got the 2G and 2.5G core technologies by acquiring Alcatel-Lucent’s mobile phone unit. It also gained some 3G and 4G patents through its own efforts. “Though the number is small， it is still enough to realize the swap of technologies with other companies and thus reduce the cost of patent licensing.”
Shen Jianfeng said that the 4G era featured the scattered ownership of LTE patents， putting all telecom device manufacturers at the same starting line. Chinese companies have a much higher proportion of patents in 4G than they did in the 3G period， allowing them to compete with foreign companies. However， such a situation will bring about more lawsuits of patents， which might provide a new hotbed for these “patent trolls”. Therefore， it is necessary and a trend to build a patent pool across the entire industry to license the patents in a fairer and more open environment.
“It is not realistic to eradicate the abuse of patents in a short while，” Shen Jianfeng said. Even though the U.S. government has changed its attitude a bit， the U.S.， which is the largest intellectual property exporter in the world， can still earn a lot of money from the patent licensing. This is very important for the trade balance， innovation incentives and value-added of the U.S.， as well the survival and development of R&D institutions， enterprises and related services. Therefore， it is a progressive project to limit the activities of patent companies.
For the Chinese companies， they need to adapt themselves to the international rules. In addition， the Chinese government should provide relevant services to help Chinese companies face the competition over patents with more confidence.