2015.02.06 Opening Brief in Support of Motion For TRO and PI

Case 1:15-cv-00132-UNA Document 4 Filed 02/06/15 Page 1 of 25 PageID #: 26
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE
)
ZTE CORPORATION, a corporation )
organized under the laws of the Peoples )
Republic of China, )
)
Plaintiff, )
)
vs. ) C.A. No.
)
VRINGO, INC., a Delaware corporation and )
VRINGO INFRASTRUCTURE, INC., ) DEMAND FOR JURY TRIAL
a Delaware corporation, )
)
Defendants. )
)
ZTE CORPORATION’S OPENING BRIEF IN SUPPORT OF

MOTION FOR EXPEDITED CONSIDERATION
OF A TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
Steven A. Moore (CA SBN 232114) Richard K. Herrmann (#405)

[email protected] Mary B. Matterer (#2696)
Callie Bjurstrom (CA SBN 137816) MORRIS JAMES LLP
[email protected] 500 Delaware Ave., Suite 1500
Nicole S. Cunningham (CA SBN 234390) Wilmington, DE 19801-1494
[email protected] (302) 888.6800
Nathaniel R. Smith (CA SBN 257615) [email protected]
[email protected] [email protected]
PILLSBURY WINTHROP SHAW PITTMAN
LLP
501 W. Broadway, Suite 1100
San Diego, CA 92101-3575
Telephone: (619) 234-5000 ATTORNEYS FOR PLAINTIFF
Facsimile: (619) 236-1995 ZTE CORPORATION
Dated: February 5, 2015

TABLE OF CONTENTS
Page
I. INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................1
II. FACTUAL BACKGROUND ..............................................................................................3
A. Vringo’s Contractual FRAND Commitments. ..............................................................3
B. Vringo Repeatedly Breached Its FRAND Commitments ........................................5
1. Vringo Sought Excessive Licensing Terms That Violate Its

FRAND Obligations and Failed to Negotiate with ZTE in Good Faith ..................5
2. Instead of Negotiating With ZTE, Vringo Further Violated Its

FRAND Commitments By Seeking and Obtaining Injunctions in
Numerous Countries Around the World to Gain Improper Leverage
Over ZTE .................................................................................................................7
C. ZTE Is Being Irreparably Harmed and Will Continue to Suffer Irreparable

Harm Absent This Court’s Intervention. .......................................................................9
III. ANALYSIS ........................................................................................................................11
A. ZTE Can Show A Reasonable Probability of Success on the Merits. ...................11
B. ZTE Will Suffer Irreparable Harm Absent Preliminary Relief. ............................14
C. The Balance of Hardships Favors ZTE. .................................................................17
D. The Public Interest Favors The Injunctive Relief Sought by ZTE. .......................18
IV. CONCLUSION ..................................................................................................................20
i
TABLE OF AUTHORITIES
Page
Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153 (3d Cir. 1999) ...............................................11
Apple, Inc. v. Pystar Corp., 673 F. Supp. 2d 943 (N.D. Cal. 2009) ..............................................15
Bergen Drug Co. v. Parke, Davis & Co., 307 F.2d 725 (3d Cir. 1962) ........................................16
Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297 (3d Cir. 2007) ................................................19
Cadence Design Systems, Inc. v. Avant! Corp., 125 F.3d 824, 828 (9th Cir. 1997)......................16
Certain Dynamic Random Access Memories, Components Thereof, and Products

Containing Same (“DRAM”), Inv. No. 337-TA-242,
1987 ITC LEXIS 95 (May 21, 1987) .......................................................................................14
Certified Restoration Dry Cleaning Network, LLC v. Tenke Corp.,

511 F.3d 535 (6th Cir. 2007) ...................................................................................................19
Conceptus, Inc. v. Hologic, Inc., No. C 09-02280 WHA,

2012 WL 44064 (N.D. Cal. Jan. 9, 2012) ................................................................................15
Cordis Corp. v. Medtronic, Inc., 835 F.2d 859 (Fed. Cir. 1987) ...................................................15
eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000) ...................................17
eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006)................................................................18
Ericsson Inc. v. D-Link Sys., Inc., 2014 WL 6804864 (Fed. Cir. Dec. 4, 2014) ...........................12
Everett Labs., Inc. v. Breckenridge Pharm., Inc.,

573 F. Supp. 2d 855 (D.N.J. 2008)
dismissed 363 F. App'x 743 (Fed. Cir. 2009) ..........................................................................16
Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers,
415 U.S. 423 (1974) .................................................................................................................11
Hybritech Inc. v. Abbott Labs., 849 F.2d 1446 (Fed. Cir. 1988) ...................................................11
Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004).....................................................16
Mead Johnson & Co. v. Abbott Labs., 201 F.3d 883 (7th Cir. 2000),
opinion amended in other respects on denial of reh’g, 209 F.3d 1032 (7th Cir. 2000) ..........14
Microsoft Corp. v. Motorola, Inc., 696 F.3d 872 (9th Cir. 2012) .....................................................3
ii
Microsoft Corp. v. Motorola, Inc., 864 F. Supp. 2d 1023 (W.D. Wash. 2012) .............................12
Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co.,
290 F.3d 578 (3d Cir. 2002).....................................................................................................15
Nutrasweet Co. v. Vit-Mar Enters., Inc., 112 F.3d 689 (3d Cir. 1997) .........................................11
Oberto Sausage Co. v. JBS S.A. 2011 WL 939615 (W.D. Wash. Mar. 11, 2011) ........................15
Pappan Enterprises, Inc. v. Hardee's Food Sys., Inc., 143 F.3d 800 (3d Cir. 1998) ....................16
Realtek Semiconductor Corp. v. LSI Corp., 946 F. Supp. 2d 998 (N.D. Cal. 2013) .....................12
Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004)......................................................17
Rent-a-Center, Inc. v. Canyon Television & Appliance Rental, Inc.,

944 F.2d 597 (9th Cir. 1991) ...................................................................................................17
Research in Motion Ltd. v. Motorola, Inc., 644 F. Supp. 2d 788 (N.D. Tex. 2008)......................19
Ride the Ducks of Philadelphia, LLC v. Duck Boat Tours, Inc.,

138 F. App’x 431 (3d Cir. 2005) .............................................................................................15
Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12 (1st Cir. 1996) ..............................16
Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) .........................17
Vaqueria Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464 (1st Cir. 2009) ........................................16
Wyeth v. Natural Biologics, Inc., 395 F.3d 897 (8th Cir. 2005) ....................................................15
iii
Plaintiff ZTE Corporation (“ZTE”) respectfully submits this brief in support of its motion
for a temporary restraining order (“TRO”) and preliminary injunction to prevent Defendants
Vringo, Inc. and Vringo Infrastructure, Inc. (collectively, “Vringo”), during the pendency of this
proceeding, from (1) taking action to exclude ZTE products in Romania and (2) contacting
ZTE’s customers, vendors and/or suppliers to inform them of any Order to cease sales of ZTE
products.
I. INTRODUCTION AND SUMMARY OF ARGUMENT
ZTE filed this lawsuit to force Vringo to honor its contractual commitment to license its
standard-essential patents on fair, reasonable and non-discriminatory (“FRAND”) terms. In
flagrant violation of this contractual commitment, Vringo has been demanding highly excessive,
non-FRAND terms from ZTE and, more recently, has refused to even respond to ZTE’s multiple
requests for a FRAND license proposal. See, e.g., Declaration of Nicole S. Cunningham in
Support of ZTE Corporation’s Motion for A Temporary Restraining Order and Preliminary
Injunction (“Cunningham Decl.”), Ex. N (Jan. 2015 Ltr. ZTE to Vringo). Instead of negotiating
in good faith with ZTE for a FRAND license, Vringo has chosen to pursue a highly aggressive
litigation strategy premised on using its purportedly standard-essential patents to obtain
injunctive relief to bar ZTE’s 3G and 4G/LTE products from numerous countries around the
world. Vringo’s refusal to negotiate with ZTE at all regarding a FRAND license – let alone to
negotiate in good faith – and Vringo’s injunction-centric worldwide litigation strategy constitute
clear breaches of its FRAND obligations.
ZTE requests a TRO to preserve the status quo while the parties brief and the Court
considers ZTE’s motion for a preliminary injunction. A TRO is necessary because Vringo
threatened this week to take immediate steps to enforce an injunction to exclude all of ZTE’s
4G/LTE standard-compliant products from Romania. See Cunningham Decl., Ex. A (Feb. 2,
1
2015 Vringo Press Release). In addition, Vringo has begun to provide notice to vendors of
ZTE’s products to inform them to cease all sales of such products in Romania. Id. Vringo’s
imminent actions to exclude ZTE’s products from the Romanian market and to interfere with
ZTE’s vendor and customer relationships will cause irreparable harm to ZTE, including loss of
customers and potential customers, loss of goodwill and product image, loss of market share, and
uncertainty among customers and potential customers. In addition, ZTE may suffer an
irreparable loss of profits because the security that Vringo will be required to post in Romania –
only 240 thousand Euro – amounts to less than 1% of the lower end of the 30-40 million Euro in
losses that ZTE will suffer in Romania as a result of exclusion.
In contrast to the prospect that ZTE faces of being excluded from an entire market, ZTE’s
request for a TRO poses no risk of harm to Vringo whatsoever. Vringo is a non-practicing entity
that does not compete with ZTE at all, let alone in the Romanian market for the products at issue.
Thus, the balance of hardships tilts overwhelmingly in ZTE’s favor here, highlighting the need to
prevent irreparable harm and preserve this Court’s ability to resolve the merits of ZTE’s claims.
Vringo’s conduct has made its motives clear: it is seeking to apply the massive leverage
of injunctions on standard-essential patents despite ZTE’s multiple, unanswered requests for a
FRAND license, precisely the patent “hold-up” conduct that the FRAND contract obligation
bars. If left unchecked, Vringo’s ability to exclude ZTE products that comply with 4G/LTE
standards in Romania will enable Vringo to demand far more than the reasonable value of its
patented invention; Vringo will be extracting the value of standardization itself. This lawsuit
was filed to prevent Vringo from hijacking the standard setting process for its individual gain.
The injunction ZTE seeks will do nothing more than preserve this Court’s ability to resolve the
dispute in a reasonable and timely fashion, and prevent the irreparable harm that ZTE and the
public will suffer if Vringo is able to wield its FRAND encumbered patents to exclude ZTE from
2
the market in Romania and elsewhere.
This is not the first Court that has been asked to decide this issue. The Ninth Circuit
Court of Appeals affirmed the District Court for the Western District of Washington’s decision
to grant precisely the kind of temporary relief that ZTE requests here. There, the Court affirmed
the issuance of a preliminary injunction temporarily enjoining a patent owner from enforcing a
patent injunction that it obtained in a German proceeding, much as ZTE now requests the Court
to temporarily prevent Vringo from enforcing a Romanian Court’s injunction. See Microsoft
Corp. v. Motorola, Inc., 696 F.3d 872 (9th Cir. 2012). Such temporary relief is as appropriate
here as it was in Microsoft.
II. FACTUAL BACKGROUND
A. Vringo’s Contractual FRAND Commitments.
Standardization of technology carries a risk that even one owner of standard-essential
patents will “hold up” companies that invest in implementing the standard, extracting royalties
far in excess of the value of their patents. To avoid this danger, Standards Setting Organizations
(“SSOs”) require participants in the standard-setting process to follow specific licensing policies.
Those licensing policies typically require participants to agree that any standard-essential patents
will be made available on fair, reasonable and non-discriminatory (“FRAND”) terms to all those
who implement the standard. One such organization is the European Telecommunications
Standards Institute (“ETSI”), an independent, non-profit SSO that produces globally-accepted
standards for the telecommunications industry. ETSI created or helped to create numerous
telecommunication standards, including the 2G/GSM, 3G/WCDMA/UMTS, and 4G/LTE
cellular communication standards.
ETSI has adopted an Intellectual Property Rights (“IPR”) Policy, incorporated as Annex
6 of the ETSI Rules of Procedure. Cunningham Decl., Ex. B (ETSI IPR Policy). The ETSI IPR
3
Policy requires members to disclose standard-essential and potentially standard-essential patents
and patent applications to ETSI and its other members. The IPR Policy further requests that
standard-essential patent owners submit an irrevocable written undertaking, binding on all
successors-in-interest, stating that they are prepared to grant licenses on FRAND terms and
conditions. If a FRAND undertaking is not available, the IPR Policy provides for ETSI to
attempt to change the standard to avoid the patent in question.
ETSI has more than 750 members from 64 countries across five continents, including
ZTE and Nokia Corporation (“Nokia”). Vringo claims to have acquired a global patent portfolio
from Nokia, including patents that Nokia has declared to be standard-essential to ETSI standards.
On August 9, 2012, Vringo issued a press release containing the following announcement:
Vringo, Inc. (NYSE MKT: VRNG), a company engaged in the innovation,

development and monetization of mobile technologies and intellectual property,
today announced that it had entered into a Patent Purchase Agreement with
Nokia Corporation pursuant to which Nokia agreed to sell Vringo Infrastructure
a portfolio consisting of over 500 patents and patent applications worldwide,
including 109 issued United States patents.
Vringo Infrastructure agreed to compensate Nokia with a cash payment and

certain ongoing rights in revenues generated from the portfolio.
Thirty one of the 124 patent families acquired have been declared essential by
Nokia to wireless communications standards.
Cunningham Decl., Ex. C ((August 9, 2012 Vringo Press Release).
In the declarations that Nokia made to ETSI, Nokia irrevocably agreed to grant licenses to
the patents declared to be standard-essential on FRAND terms. In doing so, Nokia agreed to
these licensing policies and undertook binding contractual commitments to license its essential
patents on FRAND terms. As Nokia’s successor-in-interest to these patents, Vringo is
contractually obligated to grant licenses to its standard-essential patents to ZTE on FRAND
terms.
4
B. Vringo Repeatedly Breached Its FRAND Commitments
1. Vringo Sought Excessive Licensing Terms That Violate Its FRAND Obligations
and Failed to Negotiate with ZTE in Good Faith
On September 25, 2012, Vringo wrote to ZTE informing ZTE that it had acquired a
portfolio of unidentified patents and patent applications, a number of which had been declared to
be essential for the implementation of certain GSM/GPRS, 3GPP, and UMTS standards and
others, although they were not declared to be essential, could be infringed by ZTE equipment.
Cunningham Decl., Ex. D (Sept. 25, 2012 Ltr. Vringo to ZTE). On the basis of these statements,
Vringo asked ZTE to make a firm offer specifying the patents that it wanted to have licensed to
it, the terms and conditions of such licenses, which were to be FRAND, and the price it was
prepared to pay for the past use of the patents. Nonetheless, on October 5, 2012, without any
further notice or letter before taking action, Vringo initiated patent infringement proceedings in
the UK High Court against ZTE (UK) Limited. In that action, Vringo asserted six patents
against ZTE (presumably the strongest of the Nokia patents). Cunningham Decl., Ex. E (Oct. 8,
2012 Vringo Press Release).
ZTE expressed its willingness to take a license for any patents found to be valid and
infringed in the UK proceedings, and requested that Vringo make a more detailed licensing
proposal as well as the royalties sought in those proceedings. Through a series of letters, ZTE
expressed its interest in licensing valid, infringed, and essential patents on FRAND terms. This
correspondence included the following paraphrased questions from ZTE to Vringo:
Will the royalty be payable for all patents that have been declared essential,
even if one or more of the patents are not used by ZTE?
Does the same royalty rate apply to sales of infrastructure equipment in each
country where there is a patent, irrespective of the number and scope of the
Standards Essential Patents (SEP) in that country and even if one of the SEPs is
not used or revoked?
Is Vringo willing to specify a royalty which would apply on a per-patent basis?
5
Is the royalty payable on the total value of the equipment, even if the only
applicable SEP covers a relatively minor aspect of the infrastructure
equipment?
Is Vringo willing to consider an appropriate apportionment of revenue for the

purpose of calculating the royalty?
What is the basis for the proposed royalty rate?
Why is this rate and approach considered by Vringo to be FRAND?
Cunningham Decl., Ex. F (Apr. 18, 2013 Ltrs. ZTE to Vringo).
Without warning, Vringo issued an application to join ZTE Corporation in the ongoing
UK proceeding, and asked the UK Court to determine the terms of a global license on FRAND
terms first, before deciding issues of validity, essentiality, and infringement. In June 2013, the
UK Court denied Vringo’s requests. The Court held that it would be unfair to set a global
royalty rate, applicable in all countries, if the patents would later be held invalid. The Court
added that ZTE’s refusal to take a license to invalid and/or not infringed patents did not make it
an unwilling licensee.
In its licensing negotiations with ZTE, Vringo has staked out a highly aggressive posture
for its allegedly standard-essential patents that is inconsistent with its FRAND obligations. For
example, according to documents available on Vringo’s website, in May 2013, Vringo provided
ZTE with a term sheet setting forth the terms under which it would license its standard essential
patents:
6
Cunningham Decl., Ex. H (Vringo Essential Patent License Term Sheet) (publicly available at
http://www.vringoip.com/documents/FG/vringo/ip/35142_CMC_Term_Sheet.pdf); see also
Cunningham Decl., Ex. I (Nov. 12, 2013 Vringo Press Release). The royalty demands set forth
in this term sheet are excessive and violate Vringo’s contractual FRAND obligations.
2. Instead of Negotiating With ZTE, Vringo Further Violated Its FRAND

Commitments By Seeking and Obtaining Injunctions in Numerous Countries
Around the World to Gain Improper Leverage Over ZTE
In addition to demanding excessive royalties from ZTE that do not comply with its
FRAND obligations, Vringo has aggressively litigated its allegedly standard-essential patents
against ZTE around the world, seeking injunctive relief. On June 23, 2014, Vringo sued ZTE in
Romania, alleging infringement of the Romanian part of a patent that had been declared essential
to ETSI in connection with 4G LTE standards. Cunningham Decl., Ex. J (June 26, 2014 Vringo
7
Press Release). In that action, Vringo sought not only damages, but a permanent injunction. In
July 2014, Vringo requested and obtained, ex parte, an interim injunction prohibiting ZTE and
its distributors from importing, exporting, introducing on the market, offering for sale, storing,
selling, distributing, promoting and/or conducting any other trading activity with respect to any
4G/LTE mobile phone and any infrastructure equipment produced by ZTE which incorporates
4G/LTE technology. Cunningham Decl., Ex. K (Oct. 13, 2014 Vringo Press Release). While
ZTE appealed this ruling, on January 8, 2015, the Romanian Court rejected ZTE’s appeal of the
interim injunction and immediately reinstated the injunction. Cunningham Decl., Ex. A (Feb. 2,
2015 Vringo Press Release).
Following this ruling, ZTE sent a letter to Vringo reaffirming ZTE’s commitment to
license any patents which are valid and infringed, and offering guarantees to Vringo in that
respect. Cunningham Decl., Ex. N (Jan. 2015 Ltr. ZTE to Vringo). ZTE explicitly requested
that Vringo provide a license proposal by February 2, 2015. Id. Vringo did not provide ZTE
with any response to its request. Instead, on that very same date, Vringo issued a Press Release
threatening to enforce its injunction against ZTE products in Romania and to contact ZTE’s
customers. Cunningham Decl., Ex. A (Feb. 2, 2015 Vringo Press Release). Vringo has similarly
ignored ZTE’s requests for FRAND license proposals in other jurisdictions, choosing instead to
pursue injunctive relief to bar the importation or sale of ZTE products worldwide.
Similarly, Vringo sued ZTE in Germany, asserting infringement of the German part of
two patents which are subject to standard-essential declarations at ETSI. Cunningham Decl., Ex.
L (Oct. 10, 2013 Vringo Press Release). Vringo obtained a permanent injunction against ZTE in
that action, prohibiting ZTE from selling or importing 3G UMTS SDR Base Stations.
Cunningham Decl., Ex. A (Feb. 2, 2015 Vringo Press Release).
8
Vringo filed an action against ZTE in Brazil in April 2014 for patent infringement. In
that action, Vringo again sought and obtained an injunction restraining ZTE from manufacturing,
using, offering for sale, selling, installing, testing, or importing 3G/4G/LTE infrastructure
equipment. Vringo took action to enforce the injunction on April 17, 2014, and the injunction
remains in place today. Cunningham Decl., Exs. A (Feb. 2, 2015 Vringo Press Release) and M
(June 18, 2014 Vringo Press Release).
In each of the actions against ZTE detailed above asserting infringement of patents that
had been declared to ETSI as essential to 3G and/or 4G/LTE, Vringo sought and obtained
injunctive relief. Vringo has also filed actions against ZTE in other countries, such as Australia,
India, Malaysia, France, the Netherlands, and the United Kingdom, including actions in which
Vringo sought injunctions against ZTE for standard-essential patents. Vringo has further
publicly threatened to use the courts “world-wide” to force ZTE into licenses on its terms – not
FRAND terms. Cunningham Decl., Ex. A (Feb. 2, 2015 Vringo Press Release). Vringo’s
repeated requests for injunctive relief in worldwide patent litigation involving allegedly
standard-essential patents violates Vringo’s FRAND commitments and is causing irreparable
harm to ZTE.
C. ZTE Is Being Irreparably Harmed and Will Continue to Suffer Irreparable Harm
Absent This Court’s Intervention.
On February 2, 2015, Vringo issued a press release stating that it has initiated efforts to
enforce the injunction it obtained from the Romanian Court on January 8, 2015. Cunningham
Decl., Ex. A (Feb. 2, 2015 Vringo Press Release). In the press release, Vringo states that it has
provided notice to vendors of ZTE handsets and infrastructure equipment informing them that
the Court has ordered them to cease all sales of ZTE 4G/LTE products in Romania. Id. The
Romanian Court’s Order, however, is not self-executing. Vringo must take further affirmative
9
steps to exclude ZTE’s standard-compliant products from Romania – namely, it must deposit a
security bond amounting to EUR 240,000. Declaration of Mr. Yi Hu (Oliver) in Support of ZTE
Corporation’s Motion for A Temporary Restraining Order (“Hu Decl.”), ¶¶ 4-5.
This motion seeks temporarily to prevent Vringo from taking those steps, relief to which
ZTE is entitled under the preliminary injunction standard. Under that standard, ZTE is not
asking this Court to interfere with an order by the Romanian court. Rather, this motion seeks to
prevent Vringo from making an end-run around the authority of this Court – by enforcing its
injunction in Romania and contacting ZTE’s vendors and customers – to specifically enforce
Vringo’s FRAND commitments.
ZTE’s request poses no risk of harm to Vringo. ZTE does not compete with Vringo in
the Romanian market for the products at issue. In fact, Vringo does not make or sell any
products. And, in the unlikely event that Vringo prevails here (meaning that it has no obligation
to grant ZTE a FRAND license), Vringo could then take action under the Romanian Court’s
Order.
In contrast to the lack of harm to Vringo if the temporary injunction is entered by this
Court, the failure to enter it would seriously and irreparably harm ZTE. ZTE will suffer losses of
approximately 30 million to 40 million Euro based on contractual obligations it cannot meet,
should Vringo enforce its injunction and exclude ZTE’s 4G/LTE products from Romania. Hu
Decl., ¶ 6. In addition to these significant monetary losses, ZTE has suffered and will continue
to suffer irreparable harm to its customer relationships, including loss of market share and
market exposure opportunities, damage to ZTE’s reputation, and loss of goodwill based on
Vringo’s actions and threatened actions. Hu Decl., ¶ 8. Thus, failure to enter the TRO sought in
this motion will cause irreparable harm to ZTE.
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III. ANALYSIS
A temporary restraining order and preliminary injunction preserve the status quo so that
the Court may adjudicate a potentially meritorious claim for relief while protecting the movant
against irreparable harm. See Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto
Truck Drivers, 415 U.S. 423, 439 (1974) (purpose of a TRO is “preserving the status quo and
preventing irreparable harm”). The standard for the issuance of a temporary restraining order,
which is the same as for a preliminary injunction, is well established:
(1) whether the movant has shown a reasonable probability of success on the
merits; (2) whether the movant will be irreparably injured by denial of the
relief; (3) whether granting preliminary injunctive relief will result in even
greater harm to the non-moving party; and (4) whether granting the preliminary
relief will be in the public interest.
Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999); Nutrasweet Co. v. Vit-
Mar Enters., Inc., 112 F.3d 689, 692-93 (3d Cir. 1997) (standard for temporary restraining order
is the same as for a preliminary injunction). When evaluating these factors, the Court should
“weigh and measure each factor against the other factors and against the form and magnitude of
the relief request[ed].” Hybritech Inc. v. Abbott Labs., 849 F.2d 1446, 1451 (Fed. Cir. 1988).
ZTE has satisfied each of the factors required for entry of a temporary restraining order.
A. ZTE Can Show A Reasonable Probability of Success on the Merits.
To prevail on this factor, ZTE need only forecast proof that Vringo has breached its
contractual FRAND obligations. This test is satisfied. There is no question that Vringo is
contractually obligated to offer ZTE a license to its standard-essential patents on FRAND terms.
Vringo purports to be the owner of a global patent portfolio that it acquired from Nokia, and
which includes patents that Nokia has declared to relevant SSOs, including ETSI, to be essential
to 3G and 4G/LTE cellular communication standards. In those declarations, Nokia irrevocably
agreed, in accordance with the ETSI IPR Policy, to grant licenses to such patents on FRAND
11
terms and conditions. Having acquired Nokia’s patent portfolio, Vringo assumed Nokia’s
contractual commitments, including the obligation to offer a license to any standard-essential
patents on FRAND terms, consistent with the ETSI IPR Policy. Therefore, Vringo is
contractually bound to negotiate with ZTE in good faith and grant licenses to its essential patents
on FRAND terms. See, e.g., Microsoft Corp. v. Motorola, Inc., 864 F. Supp. 2d 1023, 1036-38
(W.D. Wash. 2012) (holding that Motorola entered into binding contract with SSOs to license
standard-essential patent on FRAND terms and that Microsoft was a third-party beneficiary of
those contracts).
ZTE can also show that Vringo has breached its contractual FRAND commitments by
refusing to negotiate with ZTE in good faith and, instead, pursuing highly aggressive litigation
tactics that are centered on improper attempts to use allegedly standard-essential patents to
obtain injunctive relief. As detailed in Section II(B) above, ZTE is a willing potential licensee of
valid, infringed standard-essential patents on FRAND terms. See, e.g., Cunningham Decl., Exs.
F and N. But rather than negotiate a FRAND license with ZTE in good faith, Vringo has (1)
demanded excessive royalty terms and (2) sought and obtained injunctive relief against ZTE in
multiple countries around the world, including in Germany, Brazil and Romania. See, e.g.,
Cunningham Decl., Exs. A and H. Vringo has threatened to continue its aggressive, injunction-
focused litigation tactics worldwide. Cunningham Decl., Ex. A. Both Vringo’s excessive
royalty demands and its injunction-focused litigation strategy constitute breaches of its
contractual FRAND commitments. See, e.g., Ericsson Inc. v. D-Link Sys., Inc., 2014 WL
6804864 at *2 (Fed. Cir. Dec. 4, 2014) (emphasizing that a patent “hold-up” occurs “when the
holder of a standard-essential patent demands excessive royalties after companies are locked into
using a standard); Realtek Semiconductor Corp. v. LSI Corp., 946 F. Supp. 2d 998 (N.D. Cal.
2013) (granting summary judgment on potential licensee’s breach of contract claim where patent
12
holder did not attempt to offer a license until after seeking injunctive relief and there was no
indication that the potential licensee was not willing to accept a license on FRAND terms).
Moreover, Vringo’s recent conduct in connection with the Romanian proceedings clearly
evidences Vringo’s refusal to honor its contractual FRAND obligations to negotiate with ZTE in
good faith. There, ZTE explicitly indicated that it was interested in taking a license and asked
Vringo to propose terms. Cunningham Decl., Ex. N. Although the dates set forth in ZTE’s
letters for a response have passed, Vringo wholly ignored ZTE’s requests and, to date, has
provided no response whatsoever. In fact, on the very same date by which ZTE requested a
response regarding the Romanian patents – February 2, 2015 – Vringo issued a press release
touting that it had initiated efforts to enforce the Romanian Court’s injunction against ZTE and
that Vringo had begun contacting ZTE’s vendors to inform them that the Court has ordered them
to cease all sales of ZTE 4G/LTE products in Romania. Cunningham Decl., Ex. A. Thus,
Vringo has now refused to negotiate with ZTE at all in response to ZTE’s request for a FRAND
license proposal, choosing instead to pursue an a heavy-handed enforcement strategy. Vringo’s
actions are the antithesis of good faith. Any one of its actions as discussed above is
independently-sufficient to show a reasonable likelihood of success in proving that Vringo
breached its contractual FRAND commitments, and taken together, Vringo’s pattern of conduct
shows a deliberate refusal to negotiate with ZTE in good faith as it is contractually obligated to
do.
Finally, ZTE’s FRAND rights—and Vringo’s FRAND obligations—are worldwide in
scope. A ruling by this Court that those rights and obligations bar Vringo from obtaining
injunctive relief accordingly will have worldwide effect: i.e., that ZTE is entitled to a worldwide
license under the declared standard-essential patents on FRAND terms, a license that ZTE is
eager to obtain. A ruling that Vringo is contractually bound to grant a FRAND license, coupled
13
with ZTE’s expressed interest to accept a FRAND license, necessarily means that Vringo cannot
seek to enjoin ZTE from using its standard-essential patents, even if the ultimate determination
of the precise FRAND terms cannot be made until later. See, e.g., Certain Dynamic Random
Access Memories, Components Thereof, and Products Containing Same (“DRAM”), Inv. No.
337-TA-242, 1987 ITC LEXIS 95, at *31 (May 21, 1987) (“[E]ven though a royalty obligation
might accrue, an injunction may not issue against the beneficiary of a promise, which, if
enforced, would be inconsistent with suit for an injunction”). Because ZTE has a high likelihood
of establishing in this suit that it is entitled to a FRAND license, preliminary relief is appropriate:
Vringo’s injunctive efforts in Romania and elsewhere around the world are inconsistent with
what will ultimately be ZTE’s worldwide license to Vringo’s purportedly standard-essential
patents.
B. ZTE Will Suffer Irreparable Harm Absent Preliminary Relief.
Absent a preliminary injunction, ZTE will suffer irreparable harm from the impending
exclusion of its products from the Romanian market, and from Vringo’s improper attempts to
contact ZTE’s customers and vendors regarding the Romanian Court’s Order. First, ZTE will
suffer monetary harm of approximately 30-40 million Euro, which far exceeds the bond that the
Romanian Court is requiring Vringo to post. Indeed, the 240 thousand Euro bond which Vringo
intends to post in order to enforce the Romanian injunction constitutes less than 1% of the lower
end of the losses that ZTE is estimated to suffer as a result of the exclusion of its 4G/LTE
products from Romania. Vringo’s bond is so egregiously insufficient as compared to the losses
that ZTE will suffer as a result of the injunction that ZTE’s monetary harm will be irreparable.
See Mead Johnson & Co. v. Abbott Labs., 201 F.3d 883, 888 (7th Cir. 2000) (“When setting the
amount of a security, district courts should err on the high side. … Unfortunately, an error in the
other direction produces irreparable injury, because the damages for an erroneous preliminary
14
injunction cannot exceed the amount of the bond.”), opinion amended in other respects on denial
of reh’g, 209 F.3d 1032 (7th Cir. 2000).
Moreover, even if Vringo’s exclusion actions were only temporary, ZTE would suffer
significant and irreparable competitive and reputational injuries. The quantification of such
injuries is inherently speculative, such that they are not compensable by monetary damages and
constitute irreparable harm. First, ZTE’s loss of market share in Romania is irreparable harm.
See Ride the Ducks of Philadelphia, LLC v. Duck Boat Tours, Inc., 138 F. App’x 431, 435 (3d
Cir. 2005) (affirming order granting motion for preliminary injunction where plaintiff “would
suffer irreparable harm in the form of a loss of market share”); Novartis Consumer Health, Inc.
v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 595-96 (3d Cir. 2002) (“In a
competitive industry where consumers are brand-loyal, we believe that loss of market share is a
‘potential harm which cannot be redressed by a legal or an equitable remedy following a trial.’”)
(citation omitted); see also id. at 596 (“a loss in market share caused by an injunction could
result in irreparable harm”) (quoting Cordis Corp. v. Medtronic, Inc., 835 F.2d 859, 864 (Fed.
Cir. 1987)); Wyeth v. Natural Biologics, Inc., 395 F.3d 897, 902–03 (8th Cir. 2005) (affirming
permanent injunction where defendant would cause “irreparable harm in the form of loss of
market share”); Oberto Sausage Co. v. JBS S.A. 2011 WL 939615, at *6 (W.D. Wash. Mar. 11,
2011) (finding likelihood of irreparable harm in part where defendant’s conduct would cause
“loss of market share growth”); Apple, Inc. v. Pystar Corp., 673 F. Supp. 2d 943, 949 (N.D. Cal.
2009) (harm from infringement of Apple’s copyrights on the Mac OS X operating system to the
product’s competitive position and market share was difficult to quantify and constituted
irreparable harm); Conceptus, Inc. v. Hologic, Inc., No. C 09-02280 WHA, 2012 WL 44064, at
*2 (N.D. Cal. Jan. 9, 2012) (loss of market share and loss of customers and access to potential
customers demonstrated irreparable harm).
15
Vringo’s actions in Romania will further cause irreparable harm because an entire line of
ZTE’s products – specifically, all 4G/LTE products – will be excluded from Romania, further
hurting ZTE’s competitive and market position there. See, e.g., Bergen Drug Co. v. Parke,
Davis & Co., 307 F.2d 725 (3d Cir. 1962) (reversing and remanding with directions to grant
preliminary injunction; irreparable harm found where inability to supply a full line of products
would cause purchasers to shift business to other suppliers); Everett Labs., Inc. v. Breckenridge
Pharm., Inc., 573 F. Supp. 2d 855, 867 (D.N.J. 2008) (granting preliminary injunction and
finding irreparable harm where plaintiff would lose brand recognition of an entire line of
products), dismissed, 363 F. App'x 743 (Fed. Cir. 2009); Vaqueria Tres Monjitas, Inc. v.
Irizarry, 587 F.3d 464, 485 (1st Cir. 2009) (upholding preliminary injunction in part because
“the inability to supply a full line of products may irreparably harm a merchant by shifting
purchasers to other suppliers”); Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 19–
20 (1st Cir. 1996) (upholding preliminary injunction and finding of irreparable harm based on
disruption to one part of plaintiff’s broader product offering, because “in a variety of other
commercial settings, the availability of a product line is as important, if not more important, than
the amount of sales generated”); see also Cadence Design Systems, Inc. v. Avant! Corp., 125
F.3d 824, 828 (9th Cir. 1997) (ordering entry of an injunction because evidence of “lost sales and
[plaintiff’s] inability to reposition itself as a service-oriented company” as irreparable harm could
not be rebutted simply by observing that such commercial injuries “seem[ed] to be
quantifiable”).
Similarly, the harm to ZTE’s customer relationships, reputation and goodwill will be
irreparable. See, e.g., Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 726 (3d Cir. 2004)
(“Grounds for irreparable injury include loss of control of reputation, loss of trade, and loss of
goodwill.”) (quoting Pappan Enterprises, Inc. v. Hardee's Food Sys., Inc., 143 F.3d 800, 805 (3d
16
Cir. 1998)); Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 404 (2d Cir. 2004) (affirming finding
of irreparable harm where it was “impossible to estimate with any precision the amount of the
monetary loss which has resulted and which would result in the future from the loss of
[plaintiff’s] relationships with customers and co-brand partners, by reason of [defendant’s]
actions”) (internal quotation marks omitted); Rent-a-Center, Inc. v. Canyon Television &
Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) (damage to reputation or goodwill,
because it is difficult to quantify, qualifies as irreparable harm); eBay, Inc. v. Bidder’s Edge, Inc.,
100 F. Supp. 2d 1058, 1066 (N.D. Cal. 2000) (“Harm resulting from lost profits and lost
customer goodwill is irreparable because it is neither easily calculable, nor easily compensable
and is therefore an appropriate basis for injunctive relief.”); see also Stuhlbarg Int’l Sales Co. v.
John D. Brush & Co., 240 F.3d 832, 841 (9th Cir. 2001) (noting that the “threatened loss of
prospective customers or goodwill certainly supports a finding of the possibility of irreparable
harm”).
A TRO and preliminary injunction must be issued to prevent the very real, irreparable
harm that will clearly result prior to this Court’s resolution of the key dispositive question—
whether ZTE is entitled to a FRAND license.
C. The Balance of Hardships Favors ZTE.
ZTE asks this Court to grant temporary relief to preserve the status quo just long enough
to decide whether Vringo must provide a license on FRAND terms. Delaying Vringo’s improper
injunctive activity while this Court addresses the FRAND issues carries at most a risk of only
marginal economic harm to Vringo, and certainly no irreparable injury. There will be no
competitive injury to Vringo if it is temporarily delayed in seeking exclusion of ZTE products
from Romania—Vringo does not compete with ZTE in the markets for the targeted products
(4G/LTE cellular handsets and infrastructure equipment). In fact, Vringo is a non-practicing
17
entity and does not make or sell any products whatsoever, let alone products that would compete
with the ZTE products that it seeks to exclude from Romania. Cf. eBay Inc. v. MercExchange,
LLC, 547 U.S. 388, 396 (2006) (Kennedy, J., concurring) (noting that, in the hands of a non-
competitor, “an injunction, and the potentially serious sanctions arising from its violation, can be
employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to
practice the patent[, even where] the patented invention is but a small component of the product
the companies seek to produce and the threat of an injunction is employed simply for undue
leverage in negotiations”). Accordingly, any injury to Vringo would be compensable by a
royalty for any relevant ZTE activity in Romania while this action is pending. A brief delay in
Vringo’s enforcement of the Romanian injunction would have no meaningful impact on Vringo.
In contrast, ZTE, like other product makers the world over, has incorporated 4G/LTE
technology into its products in reliance upon the promises made to license Vringo’s standard-
essential patents on FRAND terms. Absent preliminary relief, it is highly likely that Vringo will
further pursue its attempts to exclude ZTE’s 4G/LTE products from Romania, and to improperly
continue to contact ZTE’s vendors and customers, before this Court can determine whether
Vringo must grant ZTE a FRAND license. In sum, ZTE stands to suffer much greater hardship
than Vringo if a TRO and preliminary injunction are wrongfully withheld, and this factor weighs
heavily in ZTE’s favor.
D. The Public Interest Favors The Injunctive Relief Sought by ZTE.
Permitting Vringo to exclude ZTE’s 4G/LTE products from Romania, notwithstanding
ZTE’s contractual right to a FRAND license, would harm the public interest by undermining the
integrity of the SSO process and directly damaging those companies that have invested in
4G/LTE implementations in reliance on the FRAND commitments surrounding that standard.
Vringo’s exclusion efforts undermine the SSO framework as Vringo shirks its contractual
18
commitments and improperly exploits the market power its predecessor-in-interest, Nokia,
obtained only as a result of that framework. Cf. Certified Restoration Dry Cleaning Network,
LLC v. Tenke Corp., 511 F.3d 535, 551 (6th Cir. 2007) (granting injunction in part based on the
“general public interest in the enforcement of voluntarily assumed contract obligations”).
Standards and SSOs play a critical role in fostering innovation. Standards facilitate the
adoption of technology from many different vendors whose products can interoperate with one
another. When the SSO framework is running properly, and its participants are playing by the
rules, SSOs facilitate interoperability and encourage healthy competition, including price
competition by reducing switching costs for consumers. See Broadcom Corp. v. Qualcomm Inc.,
501 F.3d 297, 308–14 (3d Cir. 2007) (explaining how industry standard-setting can enhance
consumer welfare by increasing competition, preventing patent hold-up, and reducing costs).
In accordance with ETSI policies, Nokia agreed to make licenses to its standard-essential
patents available on a FRAND basis, and ZTE and other companies relied on the integrity of the
SSO process and Nokia’s promises in developing and marketing products compliant with that
standard. Vringo is now seeking the very patent hold-up that will undo the standard-setting
process if not restrained by this Court by threatening to exclude ZTE’s products from Romania
despite its obligation to grant ZTE a worldwide license on FRAND terms. The sort of “patent
hold-up” or “patent ambush” that Vringo is imposing on ZTE is the exact harm that the patent
policies of the SSOs were designed to eliminate. See, e.g., Research in Motion Ltd. v. Motorola,
Inc., 644 F. Supp. 2d 788, 791, 794 (N.D. Tex. 2008); see also Broadcom, 501 F.3d at 312
(explaining the “unique dangers of deception in the standard-setting context … where
participants rely on structural protections, such as rules requiring the disclosure of [intellectual
property rights], to facilitate competition and constrain the exercise of monopoly power”). If the
benefits of standardization are to be realized by the public, patentees must grant the promised
19
licenses and on terms that do not seize for the patentee the economic benefit of standardization
itself as opposed to the intrinsic value of its patents.
Allowing Vringo to avoid its contractual obligation undermines the SSO framework and
the value that it provides to manufacturers, designers, and ultimately consumers. Vringo’s
actions directly affect those, like ZTE, who practice the 4G/LTE standards and undertook to do
so only because of the FRAND obligation. Further, Vringo’s actions threaten other companies
that rely upon a broad base of standards-compliant products to generate demand for their own
4G/LTE products and content. More broadly, permitting Vringo to exclude standards-compliant
products in the face of its obligation to license not only would directly damage the 4G/LTE
standards, but also would inhibit the development of new standards, and the resulting benefit to
the public, in the future.
IV. CONCLUSION
For the reasons set forth herein, ZTE respectfully requests that this Court grant its Motion
for Temporary Restraining Order and Preliminary Injunction and enter an order barring Vringo
and any subsidiaries or entities that it controls from (1) taking any action to exclude ZTE
products in Romania during the pendency of this FRAND proceeding; and (2) contacting any of
ZTE’s customers, vendors or suppliers anywhere in the world to inform them of any Order to
cease sales of ZTE products during the pendency of this FRAND proceeding. If ZTE prevails on
its claims that Vringo has breached its FRAND obligations, the Court can then take up the issue
of how this temporary relief should be transformed to permanent relief. In the event that the
Court determines that resolving that question requires a trial, ZTE is prepared to proceed quickly
and the preliminary injunction should remain in place until the matter can be tried.
20
Dated: February 5, 2015 /s/ Mary B. Matterer

Richard K. Herrmann (#405)
Mary B. Matterer (#2696)
MORRIS JAMES LLP
500 Delaware Ave., Suite 1500
Wilmington, DE 19801-1494
(302) 888.6800
[email protected]
[email protected]
Steven A. Moore (CA SBN 232114)

[email protected]
Callie Bjurstrom (CA SBN 137816)
[email protected]
Nicole S. Cunningham (CA SBN 234390)
[email protected]
PILLSBURY WINTHROP SHAW PITTMAN LLP
501 W. Broadway, Suite 1100
San Diego, CA 92101-3575
Telephone: (619) 234-5000
Facsimile: (619) 236-1995
Barry K. Shelton (TX SBN 24055029)

[email protected]
PILLSBURY WINTHROP SHAW PITTMAN LLP
221 West 6th Street, Suite 1110
Austin, TX 78701-3443
Telephone: 512.375.4907
Facsimile: 512.479.6745
ATTORNEYS FOR PLAINTIFF

ZTE CORPORATION
21

2015.02.06 Opening Brief in Support of Motion For TRO and PI

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2015.02.06 Opening Brief in Support of Motion For TRO and PI

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What is the nature of the legal dispute between ZTE and Vringo?

What is the nature of the legal dispute between ZTE and Vringo?

What commitments did Vringo make regarding licensing patents essential to standards?

What commitments did Vringo make regarding licensing patents essential to standards?

Case 1:15-cv-00132-UNA Document 4 Filed 02/06/15 Page 1 of 25 PageID #: 26

IN THE UNITED STATES DISTRICT COURT

ZTE CORPORATION’S OPENING BRIEF IN SUPPORT OF

Steven A. Moore (CA SBN 232114) Richard K. Herrmann (#405)

Dated: February 5, 2015

I. INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................1

II. FACTUAL BACKGROUND ..............................................................................................3

A. Vringo’s Contractual FRAND Commitments. ..............................................................3

B. Vringo Repeatedly Breached Its FRAND Commitments ........................................5

1. Vringo Sought Excessive Licensing Terms That Violate Its

2. Instead of Negotiating With ZTE, Vringo Further Violated Its

C. ZTE Is Being Irreparably Harmed and Will Continue to Suffer Irreparable

III. ANALYSIS ........................................................................................................................11

A. ZTE Can Show A Reasonable Probability of Success on the Merits. ...................11

B. ZTE Will Suffer Irreparable Harm Absent Preliminary Relief. ............................14

C. The Balance of Hardships Favors ZTE. .................................................................17

IV. CONCLUSION ..................................................................................................................20

Certain Dynamic Random Access Memories, Components Thereof, and Products

Certified Restoration Dry Cleaning Network, LLC v. Tenke Corp.,

Conceptus, Inc. v. Hologic, Inc., No. C 09-02280 WHA,

eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006)................................................................18

Everett Labs., Inc. v. Breckenridge Pharm., Inc.,

Rent-a-Center, Inc. v. Canyon Television & Appliance Rental, Inc.,

Ride the Ducks of Philadelphia, LLC v. Duck Boat Tours, Inc.,

I. INTRODUCTION AND SUMMARY OF ARGUMENT

standard-essential patents on fair, reasonable and non-discriminatory (“FRAND”) terms. In

litigation strategy premised on using its purportedly standard-essential patents to obtain

clear breaches of its FRAND obligations.

losses that ZTE will suffer in Romania as a result of exclusion.

of injunctions on standard-essential patents despite ZTE’s multiple, unanswered requests for a

the market in Romania and elsewhere.

here as it was in Microsoft.

II. FACTUAL BACKGROUND

A. Vringo’s Contractual FRAND Commitments.

Standardization of technology carries a risk that even one owner of standard-essential

Standards Institute (“ETSI”), an independent, non-profit SSO that produces globally-accepted

telecommunication standards, including the 2G/GSM, 3G/WCDMA/UMTS, and 4G/LTE

cellular communication standards.

Policy requires members to disclose standard-essential and potentially standard-essential patents

standard-essential patent owners submit an irrevocable written undertaking, binding on all

attempt to change the standard to avoid the patent in question.

Vringo, Inc. (NYSE MKT: VRNG), a company engaged in the innovation,

Vringo Infrastructure agreed to compensate Nokia with a cash payment and

Cunningham Decl., Ex. C ((August 9, 2012 Vringo Press Release).

patents on FRAND terms. As Nokia’s successor-in-interest to these patents, Vringo is

contractually obligated to grant licenses to its standard-essential patents to ZTE on FRAND

B. Vringo Repeatedly Breached Its FRAND Commitments

2012 Vringo Press Release).

correspondence included the following paraphrased questions from ZTE to Vringo:

Is Vringo willing to specify a royalty which would apply on a per-patent basis?

Is Vringo willing to consider an appropriate apportionment of revenue for the

What is the basis for the proposed royalty rate?

Why is this rate and approach considered by Vringo to be FRAND?

Cunningham Decl., Ex. F (Apr. 18, 2013 Ltrs. ZTE to Vringo).

http://www.vringoip.com/documents/FG/vringo/ip/35142_CMC_Term_Sheet.pdf); see also