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A Primer Discussion on NPEs: from the Points of Antitrust Challenges

Binqiang Liu

Graduate of IP Candidate, UNH School of Law

(Former Patent Examiner of State Intellectual Property Office of China, 2006-2013)

Abstract:

NPEs (Non Practicing Entities) and their patent trading deals are relatively new

phenomena. Antitrust cases involving NPEs and related patent deals from EU and US

set clear statement that NPEs and their patent trading behavior do fall under antitrust

scrutiny. Due to the complexity and hard-to-trace nature of NPEs as well as the

difficulty to define the effects brought to competition in related markets by NPEs'

patent trading practice, antitrust investigation authorities face great challenges when

dealing with NPEs. Innovative application is needed while current regulations and

antitrust related laws are to be applied. Potential acts include a clear and extended

definition of entities to be investigated, a combined ex-ante and ex-post investigation

mechanism, and a platform established to provide extensive information related to

patents and NPEs so that the information asymmetry problem can be mitigated.

Keywords:

NPE, Patent Acquisition, Patent Deal, Antitrust

1 Introduction

21st century is considered to be knowledge based economic era, and along with the

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economic and technological development under this era context, a special group

emerged and its growth pace keeps increasing, they are well versed in the value of

intellectual property rights, their main businesses reside on management of

intellectual property, and particularly patents. By running the patent management

business, this special group benefits hundreds and thousands of dollars revenues. Who

are mysterious members of this special group? The answer is NPEs, the abbreviation

form of Non Practicing Entities.

However, despite NPEs’ affect and effect in most recent time, there is no precise

definition as to who or what NPE is. And in many cases, due to people’s emotional

attitude, the concept of NPE is mostly often confused with another infamous and also

special entity group, i.e. Patent Trolls. For sake of justice, this paper argues that, with

regard to the definition of NPE, it should be observed from a behavior based

perspective, namely the behavior of how an entity manages patents and the true nature

thereof, rather than just labeling them. If an entity runs or manages a patent not for the

purpose of development, implementation and/or commercialization of the patented

technology, while its operational objective thereof is to seek profits from patents, then

the entity that implements such patent operation acts can be classified under the

category of NPE. Under such a possibly broad definition, NPE may involve a wide

range of entities, for instance, under certain conditions, independent inventors,

research institutions or universities, operational corporate entities and/or specialized

patent operating companies can all be classified as NPEs.

More recently, with the growing concerns over NPE phenomenon from antitrust

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authorities like the U.S. Department of Justice (DOJ) and the Federal Trade

Commission (FTC), the authorities came about a new name of typical NPEs, namely

PAEs (Patent Assertion Entities)[4]. The routine business form of PAE is: PAE buys

patents from existing patent holders, and then they try their best to license those

related patented technology to "legal" (RIGHTFUL) businesses, or sue or threat to sue

the targeted business enterprises when the license deal fails, thus maximizing their

profits[5]. Such a definition of PAE almost directs the antitrust authorities’ focus onto

those specialized patent managing entities agencies or non-operative entities.

With the current debate in mind, the author would like to suggest that when discussing

and analyzing NPE phenomenon in the patent management and commercialization

field, one should not put too much attention on the name or title of involved entities,

meanwhile one should focus more on NPEs’ behaviors and the effect such behaviors

may bring. For example, it is generally considered that Patent Trolls are all

specialized patent managing entities, such a viewpoint may be have its rationale in

large part, since a large number of reported Patent Trolls are non-operative (producing

no products or services) entities. However, just imagine for a second, if an operative

corporation entity owns (whether procured from the patent office of bought from

outside) a patent but does not use the proprietary technology, rather, it exploits the

patent only by means of initiating patent attacks on other operative business entities

(whether the patent owner and the targeted businesses are competitors or not is not

necessarily relevant) that deploy or use the patented technology. In such a

circumstance, the patent owner’s behavior can also be deemed as patent troll behavior.

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With the increasing impact of NPEs, people become inclined to question the whole

social and economic impact brought by NPEs and the attitudes tend to be negative.

Maybe due to numerous cases involving NPEs, voice saying that NPEs are taxing our

society by putting tax on innovation rather than enhancing innovation in the United

States is very high, and such that the US patent system should be thoroughly reviewed

and repaired appeal. For example, there is an affective study showing that during

1990-2010, NPEs caused $500 billion lost to U.S. listed public companies and annual

loss of the last four years during that period was as high as $80 billion [6]. Still, there

are more studies discussing and revealing NPEs’ excessively litigating, thus hindering

technological innovation and economic progress of US [7], there are members from

Congress frequently propose new amendments to the Patent Law [8] in order for more

exact target against NPEs, and just recently, President Obama also proposed to use

administrative means to suppress NPEs ‘illegal’ patent actions [9].

It is the author’s opinion that the impact of NPEs should not be generalized and one

would better not take it as a question regarding either black or white. It could be much

safer that we deal with the NPE phenomenon effect on technology, economy and our

society case by case. One should not be biased and recognize rightly that not every

NPE is a black sheep and bears ill and ulterior motives when doing its patent based

business. Meanwhile, it should also be pointed out that the expressed disapproval for

automatic veto against NPE does not mean that the NPE phenomenon is not worth

raising concerns. When considering whether NPEs’ behaviors need to be regulated,

the key lies in how to regulate especially when resorting to antitrust regulations?

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What are the challenges to be faced when deploying antitrust regulation institutes?

What solutions are available or need to be developed? These are some of the

questions this paper tries to provide a preliminary answer.

2 Reviews of Typical Cases and Practices in Europe and America

Before going any further, let’s take a quick look at several typical patent acquisition

related and NPE-related cases that European and American antitrust authorities and/or

courts stepped in.

a) Ex-ante investigation

In 2011, there were two patent trading cases that aroused sensationalism and triggered

heated discussions in the patent community. The first one was the patent auction case

of the bankrupted Canadian telecommunication carrier Nortel in July 2011. In this

case, the coalition of Rockstar led by Apple, Microsoft and other big players in the

industry beat another alliance made up of other companies led by Google and RPX,

by paying up to $4.5 billion price for the 6,700 patents and applications owned by

Nortel. And the second is another patent transaction focused acquisition case between

Google and Motorola Mobility generous (MMI) in August 2011, just about one month

later after Google’s failure of obtaining the Nortel patents. In the MMI case, Google

spent as much as $12.5 billion for this acquisition, mainly for the patents and

applications owned by MMI so that Google can enhance its competency in the smart

phone business for its Android system.

These two cases were widely analyzed and reported and even plain people became

familiar with them to some extent. Despite of this, not all people may be aware that

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these two acquisitions both went through antitrust reviews and examinations in

various regional or national antitrust authorities. The Nortel case was scrutinize by the

U.S. Department of Justice (DOJ) while the second case experienced antitrust

investigations in numerous important market places such as the United States, the EU,

China and others [10]. What should be worth noting is that the two cases were both

highly related with patents acquisitions and transactions, and antitrust regulating

departments carried out ex-ante investigations where the authorities conducted the

reviews of the corresponding mergers and acquisitions in order to determine whether

the implementation of the M&A could be executed or not.

b) Ex-post investigation

Relative to ex-ante investigations, there were also a number of so called ex-post

antitrust investigation cases in Europe and America., of which were two famous cases

of the 2008 IPCom case and the 2012 Mosaid case. These two cases were antitrust

investigation cases that occurred after corresponding merger or transfer actions of the

involved patents. To be more specific, in the IPCom case, Nokia alleged IPCom (a

German NPE company) failed to comply with the original patent holder’s (German

Corporation Robert Bosch) FRAND commitment and submitted antitrust complaint.

Because of the European Commission's mediation thereafter, IPCom compromised

and promised to comply with the FRAND commitments which the EU expressed its

appreciation [11]. On the other hand, the Mosaid case seemed to be much more

complicating. There were two main parties involved. One side was represented by

Google, who proposed antitrust appeals to EU, and the other side related to Nokia,

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Microsoft and Mosaid (a Canadian NPE company). Before Google’ allegation, Nokia

and Microsoft transferred some 2000 wireless communications patents (where 1200

were so called standard essential patents, i.e. SEPs) to Mosaid, and after the

transaction Mosaid made robust and open statements that it would actively exploit

these patents with the aim to obtain returns higher than the total the company had ever

earned before, and the desired return profits were supposed to be shared among with

Microsoft and Nokia [12]. Google accused Nokia and Microsoft’s conspiracy in so

doing by transferring those patents and escaping FRAND obligations, thus increasing

competitors’ costs of patent licenses and ultimately the smartphone end-users’ costs as

well) and demanded EU antitrust investigation[13] .

c) Other cases and discussion

Besides cases happened between NPEs and operative companies, other cases exist,

too. One recent example is a case that happened between two NPEs in US. It was in

March 2012, an NPE company called Cascades Computer Innovation sued before the

Northern District Court of California that the five enterprises of Dell, HTC, LG,

Motorola and Samsung declined to license in Cascades’ patents through boycott

formed by defensive patent risk solution provider RPX and thus violated Section 1

and 2 of the Sherman Act [14] . Although the judge ultimately dismissed Cascades’

appeal due to unclearness, the court allowed it to resubmit its complaint after

re-organization of the grounds of appeal in future [15].

When we take a review of the cases introduced before, we may notice a very

interesting phenomenon, particularly the subject matter of plaintiffs and defendants

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involved. The parties in those cases are so diversified that one may apply an

advertisement slogan here that Anything Is Possible! For example, in the Mosaid case,

where antitrust claims were raised, on one hand operative companies like Nokia and

Microsoft cooperated with typical NPE firm Mosaid. While on the other hand, Nokia

filed antitrust complaint against another NPE company IPCom, alleging IPCom’s

failure to fulfill its FRAND obligation. As to these points, one may wonder whether

Nokia was both ‘victim’ and ‘burden-producer’ as well. And still, the typical cases we

have reviewed so far also reflected some other important points, especially the

complex relationships among entities involved in those cases in the patent world. One

can see that in one case, even competitors can become partners in such patent related

deals. And an outstanding example was last year's Kodak patent auction case [16]. In

this patent transaction deal, two NPEs, Intellectual Ventures (a typically aggressive

NPE) and RPX (a self-described defensive NPE) with almost opposite business

models, cooperated with one another. Even more interesting was that those companies

competing with each other appeared (and cooperated) within the same consortium

(Intellectual Venture or RPX).

From the previous analysis we are already able to recognize that for the question of

whether NPEs and their patent-related behaviors are subject to antitrust regulation, the

answer is YES. In order to further discuss how to regulate NPEs and their actions, the

DOJ and FTC of US were paying increasing attention. For instance, in December

2012, DOJ and FTC held a special seminar on PAE (a special title DOJ and FTC came

along with NPEs), where experts and authorities discussed PAEs’ impact and

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anti-monopoly regulation issues thereof. So far in Europe and US, the antitrust

authorities are resorting to traditional regulations they use to scrutinize non-patent

transactions (like company A&M deals) and so far there are no distinctive differences

when the authorities carry out their investigations (see the cases reviewed above). To

summarize briefly, the regulations or laws that antitrust authorities resort to are:

Section 1 and 2 of Sherman Act, Section 3 and 7 of Clayton Act, and Section 5 of

FTC Act in US, while in EU mainly TFEU A101/102, Reg1/2003, Reg139/2004.

Another important point one may notice for antitrust investigations done in US and

EU was the focus on so called core patents or standard essential patents. This may be

debatable. On one side, such a standard-related patent focused practice has its

advantage, especially when we take into account that NPE phenomenon is a relatively

new, antitrust investigation on NPEs and their behavior is also relatively new and

antitrust authorities do not have much experience, by focusing on hot spot like

standard-related patent deals and FRAND commitment disputes is a good option.

Meanwhile, such practice also has its disadvantages, though highly targeted against

situations where the monopolistic behaviors occur most, limitations are also obvious.

It is not hard to imagine that monopolistic behavior may not be entirely due to the

standard based patents. Because of patent’s inherent monopolistic nature, the

‘hijacking’ effect of patents does not necessarily dependent on whether those patents

relate to standards or not. So long there is too high switching cost, patent hijacking

problem may happen and thus require relieving solutions.

3 NPE antitrust challenges

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From the foregoing discussions we are able to derive that when carrying out antitrust

investigation on NPEs or PAEs and their patent based behaviors, there are many

challenges such as the limits on subjects/objects/contents to be investigated in existing

antitrust examinations. The reason for existence of such challenges is largely due to

the special nature of NPEs and their patent-related behaviors. In this paper, it is

suggested that in order to set up more orderly, comprehensive and targeting antitrust

investigation procedures on NPEs and their behaviors, the following aspects need to

be observed to full extent:

Firstly, there is the crucial question of defining monopoly or anti-competitive

behavior regarding NPEs and their behaviors. When the antitrust authorities try to

borrow experiences from traditional antitrust investigating practices, such definitions

of typical monopolistic behaviors as monopoly agreements, abuse of dominant market

power and exclusion/limitation of competition from market should be defined,

identified and applied in NPE related patent acquisition and/or transfer scenarios.

Secondly, there is still a here proposed 3W1H question awaiting answer. For the

purpose of carrying out a justifiable antitrust investigation, questions regarding who to

be investigated, what to be investigated, when to investigate and how to investigate

(i.e. to carry out investigation according what regulations) must be resolved.

Lastly, when investigating NPEs and their patent related behaviors, there are more

problems that should be kept in mind, such as the wide spreading nature of subjects

involved (there are so many NPEs out there, and so many patent owners involved),

the hidden nature of parties of real interest (normally, large-scale NPEs operate via so

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called shell companies), and NPEs’ FRAND obligation related issues when standard

essential patents are involved.

As already mentioned above, the relationships among entities involved in the patent

field are very complex. With the increasing prosperity of the patent market and allures

provided, NPEs’ business models are no longer so simple and directly observed.

Nowadays, those massive and influential NPEs usually have very secretive, complex

and delicate relationships with operative corporation entities. In fact, there are studies

indicating [18] complex relationship between NPEs and corporate entities in NPE

related patent transactions. However, when observed from a purely commercial

perspective and especially from the perspective that enterprises always pursue profit

maximization, such delicate and complex relationships are easy to image and

conceive. In other words, if we only analysis the possibility of these events’ taking

place from the commercial point of view, it may become more natural and

understandable. To illustrate this, see this following example: being a world-renowned

brand, the Apple Company, well-known for its innovation capacity, once transferred

some of its patents to a Patent Troll type NPE called Digitude [19]. After the

transaction, Digitude alleged patent infringement against operative companies like

RIM, HTC, LG, Motorola, Samsung, Sony, Amazon and Nokia of the smart phone

and other personal electronic product business in the United States International Trade

Commission (ITC). Clearly, it is not easy to comment good or bad on Apple's such

business action. If we observe only form a market viewpoint that market liquidity of

the patent market should be dynamic and the commercialization of patent assets

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should be enhanced, and such actions are only pure business oriented behaviors

pursuing profits, then such business deals should not be questioned. However, there

might be another possibility that Apple's such behavior might be ‘privateering’ action

[20], namely by exploiting Patent Troll or NPE to attack or hijack competitors. If such

hypothesis is possibly true, then Apple’s such behavior is not in line with the idea

principle of fair and legitimate market competition.

The issued just discussed above relates to the subject matter problem, and in fact there

is another substantially important problem regarding the scale of patent deals. So far,

there are only ex-ante antitrust investigations on large scale patent acquisition deals,

and even not every one of them undergoes investigation. For example, there have

been many large scale patent deals. However, there are only limited numbers of

publicly known cases such as Novell case, Nortel case and MMI case that have been

investigated by antitrust authorities. These investigated cases underwent antitrust

examination mainly because they all involved so called SEPs and all belonged to

currently popular ICT (information and communication technology) industry where

there were hundreds of patent litigations going on and on. While at the same time,

other also large scale patent deals like the Kodak case and the AOL-Microsoft case in

2012 were not scrutinized from an antitrust perspective.

One of the most challenging problems when facing NPE related patent acquisition

activities and trying to conclude whether there is antimonopoly behavior or not is the

hidden nature of NPEs. It should be pointed out that it is much less often to see cases

like Nortel and Kodak cases where NPEs participated publicly in those large scale

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patent acquisition deals. The more often seen situations are, as suggested in some

studies, NPEs often run their businesses and competing in patent acquisitions via so

called shell companies. It is said that Intellectual Ventures has more than 1,200 shell

companies and other big NPE player Acacia also has around 250 subsidiaries. By

using shell companies and hiding the true nature and real interest parties, PAEs

(normally large NPEs) can accumulate voluminous patent portfolios and grow their

patent sources to an extent that are capable enough to expel or limit competition in

certain related markets. Antitrust authorities should be quite alerted as to PAEs’ such

potential ability to expel or limit competition. The simple and obvious reason is that

the non-happened act of expelling or limiting competition does not mean it will not

happen for ever.

4 Measures recommended

The antitrust policy in the field of intellectual property has reflected the complexity of

antitrust issues, when coupled with the unique entity type of NPEs the problem

becomes even more complicated. In order to respond to the potential monopolistic

danger brought by NPEs, it is suggested in this paper that there should be innovative

application of relevant laws and regulations based on traditional antitrust investigation

practices, embracing more flexibility and agility. Specifically, the following measures

are recommended as references:

1) Subject matter clearance: a clear understanding of who should be investigated

defines the scope of to be invested subject matters. In patent merger and acquisition

situations, antitrust investigation should not be limited to the acquisition deals only

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between operative business entities, but should also include corporate entities

covering operative companies and non-operative entities like NPEs as well that are

included in related merger or transfer of patents;

2) Investigation timing schedule: because of the complexity of patent acquisition

deals and not all patent acquisitions are as famous as cases like MMI case, Nortel case

and Kodak case as discussed before. It is just impossible for the antitrust authorities to

examine every patent transactions ex-ante. Even when there is a threshold which

when exceeded, an acquisition deal should apply for antitrust investigation, not every

deal that satisfied such condition was examined in practice. With the increasing

recognition of IP/patent as an asset, deals where patent or patent portfolio will be

traded as assets are supposed to increase and so for the transaction amount as well.

Therefore, it is more reasonable and applicable that ex-post supervision and

investigation regarding patent acquisition deals be used (more often) whenever

necessary rather than ex-ante investigations. But, of course, for those patent related

deals that have obvious and profound affects, an ex-ante investigation should prevail.

3) Information disclosure mechanism: potential antitrust threats brought about by

patent acquisition and merger deals lie in different aspects. For example, the problem

around patent licensing fee or royalty is often the source of those problems. NPEs’

main purpose of acquiring patents directs to extracting monetary profits by exploiting

the patent property rights, this is unlike the traditional exclusive functionality of

patents. After the transfer of patent rights to NPEs, whether the price asked by NPEs

as licensors for the patents exceeds normal market price, there seems to be no clear

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benchmark. Even under the so called FRAND principle, there are diverge perspectives

as to what is REASONALBE level. However, suppose for a specific industry, the

licensing provisions regarding fees or royalties are publicly available and a

corresponding royalty fee or license fee database or standard can be established, this

can largely suppress the potential ‘excessive price asking’ phenomenon (such over

high price asking in face equals patent hijacking or patent hold-up). In addition,

information disclosure should also include substantial stakeholder information

disclosure. This relates to one of the most often used strategies used by NPEs. As

stated before, NPEs commonly use shell companies to execute businesses. In many

cases, the licensee or responding party is hardly able to determine who the ‘real’ party

in the proceedings is. Although there are suggestions that it is possible to resort to

consulting companies specialized in information tracing to determine who is the real

help, so far its efficacy is not clear yet. Disclosed information regarding real part in

interest is very valuable for determining whether a patent acquisition deal by NPE

may constitute antitrust threat or not. For example, one operative company may

transfer its patents to an NPE, and then the NPE can bring aggressive licensing or

litigation to competitors of the operative company, thus through the hands of NPE, the

operative company can hide itself behind the screen, strike on the competitors and

even profit much from such actions at the same time. The sample case mentioned

before where Nokia sold its patents to the NPE company Mosaid, and meanwhile,

Nokia and Mosaid have intimate relationship with one another in profit sharing aspect.

Then Nokia’s such behavior of transferring patents to Mosaid should be brought in

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front of the antitrust authorities’ eyes. All in all, the aim of setting up an information

disclosure mechanism is to overcome the information asymmetry problem in the

patent related market to the maximum extent.

4) Traditional initiatives: while we may want to focus on the special problems that

exist in patent related deals, traditional initiatives should not be discarded at all. Basic

principles from antitrust investigation practices from out the patent field should also

be considered when reviewing patent related deals (no matter involving NPEs or not).

For instance, the motivation and ability principle should also be applicable when

dealing with NPE and patent antitrust merger investigations. The motivation of NPE’s

patent acquisition and the ability the NPE may have after the acquisition should both

be evaluated to see whether there is potential detrimental to competition. Such a rule

should be used as a canon when deciding whether ex-ante investigation is required

and what antitrust examination decision should be made.

5 Summary

The antitrust problem in the field of intellectual property, particularly in the field

where NPEs are involved, is newly emerged phenomenon and challenge both to the

business world and to the antitrust regulating authorities as well. Because of the

complexity and uniqueness of the patent related market, there is yet no globally

uniform antitrust investigating practice. However, those limited number of related

cases in Europe and US have shown that there are big challenges in applying existing

antitrust regulations on patent deals, and one of the key challenges is of how to define

those key elements when doing antitrust investigations. Nevertheless, since patent

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deals also fall within the scope of business, so long as such deals pose potential threat

to competition in market, exclude or limit competition, then it can fall under the

antitrust investigation scrutiny based on relevant legal provisions. What deserve

special attention in do so is that in order to better doing NPE antitrust reviews,

initiatives such as innovative application of law, subject matter clearance,

investigation time schedule, establishment of auxiliary information disclosure and

sharing platform to address the problem of information asymmetry should be figured

out and put into practice.

6 Some additions

After finishing the first draft of this paper, there have been some most recent

developments over NPEs from antitrust perspectives. And with this subpart, I would

like to introduce briefly some newest developments or events within US and China.

1) Newest developments in US antitrust authority - FTC Inquiry under Section 6(b)

As one of the most important antitrust authorities in the US, FTC has been paying

attention to NPEs (or PAEs as called by the FTC) since as early as 20111, and its

interest in balancing antitrust and intellectual property can trace back as earlier as

2003 when it released a report2 discussing the relationship between patent and

antitrust.

However, as the effect of PAEs becomes more and more influential reflected both by

1 http://www.ftc.gov/sites/default/files/documents/reports/evolving-ip-marketplace-aligning-patent-notice-and-remedies-competition-report-federal-trade/110307patentreport.pdf 2 http://dotank.nyls.edu/people/bnoveck/fall2007/Class_Files/innovationrpt.pdf (the Official link from FTC, http://www.ftc.gov/os/2003/10/innovationrpt.pdf, is not working due to unknown reason)

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industries and academics, this antitrust agency decides to go further into this hot field

after the joint workshop between FTC and DOJ in December 20123. In September

2013, the FTC announced that it has voted to seek public comments on proposed

information requests to better understand PAE practices by using its authority under

Section 6(b) of the Federal Trade Commission Act, 15 U.S.C. § 46(b)4. The proposal

plans to gather information from approximately 25 companies that are in the business

of buying and asserting patents, i.e. Patent Assertion Entities (“PAEs”). The FTC

intends to use this information to examine how PAEs do business and develop a better

understanding of how they impact innovation and competition.

Of course, there have been many other measures aiming at cracking down NPEs,

especially patent trolls, mostly recently, the Innovation Act, proposed by House

Representative Goodlatte from Virginia, has just been voted past at the House and will

be subject to be voted by the Senate. Since they are not focusing on the antitrust

perspective, I save them for future potential discussion.

2) Recent events in China - antitrust attack on NPE or quasi-NPEs

Besides US, there are also continuing antitrust activities abroad, especially in Europe,

Japan, Korea and China. In this sub-part, I would like to introduce 2 most recent cases

involving antitrust regulation and NPE/Quasi-NPE.

Case 1: Huawei Co. v. InterDigital Inc.

3 http://www.ftc.gov/news-events/events-calendar/2012/12/patent-assertion-entity-activities-workshop 4 http://www.ftc.gov/news-events/press-releases/2013/09/ftc-seeks-examine-patent-assertion-entities-their-impact

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InterDigital is a publicly traded US company headquartered in Wilmington, Delaware

(Nasdaq: IDCC). It produces, markets, sells and licenses wireless digital

radio-telephone systems for voice and data communications.

Huawei is a private China company headquartered in Shenzhen, Guangdong. It is now

a leading global ICT solutions provider, with a big portion of businesses in wireless

communication market.

Battles between InterDigital and Huawei have been often and lasted for long. But the

most recent battle between the 2 parties in China is the case decided by on the

Guangdong High People’s Court October 28th, 20135, upholding Shenzhen

Intermediate People’s Court’s finding that the royalty rate offered by InterDigital to

Huawei was discriminatory because it was higher than that offered to other companies,

such as Apple and Samsung, and that this constituted an abuse of IDC’s dominant

marketing position under China’s Anti-Monopoly Law. The Court awarded damages

of RMB 20 million for Huawei. This decision demonstrated the willingness of

Chinese courts both to assume jurisdiction in litigation relating to foreign-owned

SEPs and to determine appropriate royalty rates, applying the FRAND principles6,

and may constitute some example effect for other jurisdictions (including those

outside of China) as well.

Case 2: Qualcomm antitrust investigation

The most recent case involving antitrust and NPEs in China is the one that China’s

National Development and Reform Commission just announced that it would initiate

5 http://news.xinhuanet.com/fortune/2013-10/30/c_117928934.htm 6 http://www.rouse.com/news-and-publications/alerts/huaweiidc-anti-monopoly-litigation

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an anti-monopoly investigation against the giant wireless technology company

Qualcomm7. This news has invoked lots of discussions and lots of guesses as well. I

also commented this on the China Intellectual Property News8, and the basic ideas are

as the antitrust regulation agencies become more and more proficient in this area, and

due to the importance in nowadays market economy, antitrust investigations and

regulations are just common practices in modern economies, and there should not be

any surprises when antitrust authorities in China start an investigation, either focused

on intellectual property or not. It is just a normal and common practice and duty of the

agencies9.

References

[1] M Carrier, Patent Assertion Entities: Six Actions the Antitrust Agencies Can Take,

CPI Antitrust Chronicle, 2013.

[2] Justin R. Orr, PATENT AGGREGATION: MODELS, HARMS, AND THE

LIMITED ROLE OF ANTITRUST, 2013.

[3] M Mariniello, Standard-setting abuse: the case for antitrust control, 2013.

[4] P Chappatte, FRAND Commitments-The Case for Antitrust Intervention,

European Competition Journal (2009).

[5] Cotter, Thomas F, Patent Holdup, Patent Remedies, and Antitrust Responses, The

Journal of Corporation Law 34:4.

7 http://www.bloomberg.com/news/2013-11-25/qualcomm-says-china-agency-started-anti-monopoly-law-probe.html 8 http://www.cipnews.com.cn 9 http://www.iprchn.com/Index_NewsContent.aspx?newsId=66873

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[6] Davis, Ahmed J., and Karolina Jesien, The Balance of Power in Patent Law:

Moving Towards Effectiveness in Addressing Patent Troll Concerns, Fordham Intell.

Prop. Media & Ent. LJ 22 (2012): 835-927.

[7] Liu Binjiang etc., NPE kaleidoscope: introduction on typical NPEs in United

States, Europe and Asia and rethinking, China Intellectual Property, 2013 (4).

[8] Liu Binqiang etc., Improving market liquidity in China: patent services industry

responsibility, in 2012 China Patent Agents Association Third Annual Forum on

Intellectual Property papers, 2011.