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Motion to Dismiss

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(2014) Shen Zhong Fa Zhi Min Chu Zi No. 167

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Petitioner (Defendant I): Vringo, Inc.

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Authorized Representative: David L. Cohen (Chief Legal and IP Officer)

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With regard to the case filed by ZTE Corporation ("Plaintiff') against Vringo,
Inc ("Petitioner") and Vringo Infrastructure, Inc. ("Defendant II") (collectively
"defendants") concerning the dispute over abuse of dominant market position (Case
No.: (2014) Shen Zhong Fa Zhi Min Chu Zi No. 167, "this Case"), the Petitioner
hereby files motion to dismiss to this Court according to law.

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Based on the following three reasons, the Petitioner hereby respectfully petitions
this Court to dismiss this Case according to the law.

The Petitioner is not a proper defendant in this Case;

This Court has no jurisdiction over this Case;
In this Case, the Plaintiff obviously abuses its right of action.

$~*131. EB Facts and Reasons

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The evidence produced by the Plaintiff cannot prove that the Petitioner
conducted the alleged tortious act, thus the Petitioner is not a proper defendant
in this Case

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The Plaintiff claims that the Petitioner and the Defendant II both have "market
dominance in the license market for standard-essential patents that comply with
wireless communication standards." Based on the Plaintiff theory, the Petitioner's
market dominance should be found based on its ownership over standard-essential
patents in the wireless communication standards. However, the Petitioner is not the
owner of the patents involved. Thus, it is not possible for the Petitioner to "set
unfairly high prices for the commodities. ti The Petitioner also does not have the
intention or behavior to collaborate with others to conduct a joint tort. Therefore, the
Petitioner is not a proper defendant in this Case.

This Court has no jurisdiction over this Case

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First, this Case is not under the exclusive jurisdiction as provided by law, and
there is no agreement among the parties giving the court jurisdiction. Second,
neither the alleged tortious act nor the "substantial loss" occurred in the territory of
China. Thus this Court will have great difficulty finding relevant facts and applying
the appropriate law. Third, the ongoing lawsuits between the Plaintiff and the
defendants outside of China have already involved the core issues in this Case, and

these issues will involve the application of foreign law. Therefore, it is proper for a
relevant foreign court to try this dispute. Hence, this Court has no jurisdiction over
this Case and this Court should dismiss the Plaintiffs complaint.

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Specifically, the issues on whether the defendants abused their dominant market
position and ignored the FRAND Principle are already covered in the ongoing
litigations in Europe and Australia between the Plaintiff and the defendants.

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The Plaintiff has already filed a complaint with the European Commission
alleging abuse of dominant position, counterclaims in the United Kingdom and
Australia, and an actual claim for damages in the Netherlands concerning the exact
same alleged abuses of dominant market position by the defendants. The Plaintiff is
running parallel litigations, attempting to re-litigate the same issues in China that
Plaintiff itself has raised against the same defendants in foreign jurisdictions,
thereby conceding the damage has occurred in those jurisdictions and outside of
China. Therefore, the Plaintiff shall not seek remedies again in China and this Case
should not be reviewed by the Chinese courts.

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In the ongoing litigation in France between the Plaintiff and the Defendant II, the
Plaintiff claims that the Defendant II ignored the FRAND Principle and abused its
dominant market position regarding Defendant II's standard essential patents. The
Plaintiff acknowledges that the FRAND obligation is set by European

Telecommunications Standards Institute ("ETSI"). The domicile of ETSI is
Sophia-Antipolis in France. ETSI has no branches or domiciles in China, and
according to the provisions of Article 12 of ETSI's intellectual property policy, the
intellectual property policy shall be governed by the law of France rather than the
law of China. In fact, Plaintiff claims that under French law, Plaintiff already has
an implied license to Defendant II' s standard essential patent at issue here.
Therefore, any dispute in relation to patent licensing under the FRAND obligation is
not under the Chinese courts' jurisdiction, and there is no connection between the
related dispute and China.

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Pursuant to Article 119 of the Civil Procedural Law, an action to be instituted
must meet the requirement of "there is a definite defendant" and "under the
jurisdiction of the people's court in which the action is instituted." The evidence
produced by the Plaintiff cannot prove the Petitioner has any connection with the
alleged tortious act. According to Article 139 of Opinions of the Supreme People's
Court on Some Issues Concerning the Application of the Civil Procedure Law of the
People's Republic of China, if the people's court finds that an legal action does not
comply with the requirements for case acceptance, it shall rule to dismiss the case.


In This Case, the Plaintiff obviously abuses its right of action

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The Plaintiff has a clear knowledge that neither the Petitioner nor the Defendant
II has ever sold any goods or provided any service in Shenzhen related to the subject
matter of this case. Neither the Petitioner nor the Defendant II has ever entered into
any effective patent licensing agreement with the Plaintiff. The damage alleged by
the Plaintiff - that is, the attorney fees in the amount of USD 5 million spent for
lawsuits in other countries and speculative market sales loss caused by court
injunctions - should be governed by foreign courts and has no relationship with

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As the owner of the patents in other countries, the infringement lawsuits filed by
the Defendant II outside the territory of China against the Plaintiff is reasonable and
necessary actions adopted by the Defendant II to protect its legitimate IP rights and
interests. The Plaintiff has explicitly expressed the intention to Defendant II and the
courts of other countries, on numerous occasions, that the Plaintiff will only consider
negotiating a license for patents that are first found to be infringed by Plaintiffs
products and valid as decided by courts in each individual jurisdiction. The only
way for defendants to prove that patents are both infringed and valid is through
litigation in courts in countries where the patents are in force. However, the Plaintiff
now maliciously chooses Shenzhen which is its own domicile as a place to file this
Case and alleges the overseas lawsuits are the abusive acts of the defendants. The
Plaintiffs conduct severely violates the principle of the PRC regional jurisdiction

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To sum up, based on the reasons that (1) the Petitioner is not a proper defendant
in this Case, (2) this Court has no jurisdiction over the case, and (3) the Plaintiff
abused its right of action, the Petitioner hereby requests this Court to dismiss
Plaintiffs complaint according to foregoing facts.

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Since during the docketing stage this Court could only review the issue of
defendant qualifications and jurisdiction based on initial evidence submitted by the
plaintiff, it may not be able to form an informed judgment on the relevant issues. The
Petitioner hereby requests this Court to grant a hearing on relevant issue of this
motion to dismiss in which both the plaintiff and the defendants can present their
arguments in order for this Court to make a correct decision.

Respectfully Submitted to

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Shenzhen Intermediate People's Court

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Petitioner: Vringo, Inc.

:k.=E L.~4 }~. ( David L. Cohen )

Authorized Representative:
BM: 2014 :if 7 f3 28 B
Date: July 28, 2014