File No.

: Pronounced on
7 O 28/14 Translation 19 December 2014
Küffen, JOSin
as Registrar of the Court

Mannheim Regional Court

7th Civil Division
In the name of the people Judgement
In the legal dispute of

Vringo Germany GmbH

represented by the Managing Directors Alexander R. Berger and Andrew D.
Perlman Klopstockstrasse 5, 65187 Wiesbaden
- Plaintiff -
Counsel:

Attorneys at Law Reimann u. Koll., Düsseldorf, Gerichts-Fach 21 (3279-12)

versus

1. ZTE Corporation
Legally represented by the Chairman Hou Weigui
No. No 55 Hi-tech Road South, 518057 Shenzen, People’s Republic of China
2. ZTE Deutschland GmbH
represented by the Managing Director Quiyang Li, Am Seestern 18,
40547 Düsseldorf, Germany
-Defendant-
Counsel for defendant 1 and 2:
Attorneys at Law Olswang Germany LLP & Koll., Rosental 4, 80331 München

for patent infringement

the 7th Civil Division of the Mannheim Regional Court, following the oral hearing on

21 November 2014, sitting with

Presiding Judge at the Regional

Court Voß, Judge at the
Regional Court Durban, Judge at
the Regional Court Lembach
 passed the following judgement:

1. The defendants are ordered to have their respective legal representative declare
before the competent local court in lieu of an oath that they have provided the
information according to their counsel's letters dated 23 January 2014 and 10
February 2014 (Exhibits ROKH 3, ROKH 5) as completely and truthfully as they are
able to.

2. The defendants are ordered to have their respective legal representative declare
before the competent local court in lieu of an oath that they have provided the
information according to their counsel's letters dated 24 April 2014 and 05 June
2014 (Exhibits K 9, K 14) as completely and truthfully as they are able to.

3. The defendants bear the costs of the proceedings.

4. The decision is provisionally enforceable with respect to no. 1 and 2 against

provision of a security of €50,000, and with respect to no. 3 against provision of a
security of 120% of the respective enforceable amount.
 Facts of the Case:

The defendants have been ordered by preliminarily enforceable judgement to provide

information on the offering and supply in Germany of network devices for digital cellular
mobile networks that provide a time switched transmit diversity transmission according to
the UMTS mobile communication standard 3G TS 25.211 Version 3.2.0 (judgement of
the Mannheim Regional Court of 17 December 2013, 2 O 41/13). The standard provides
for a TSTD for base stations using two antennas as an option.

By letter of f 23/01/2014 (Exhibit ROKH 3) the defendants provided the information that
they did not sell or supply any SDR base stations that permit or provide a diversity
transmission according to the standard 3G TS 25.211 V3.2.0. None of the SDR base
stations sold in or supplied to Germany could be used for a diversity transmission
according to the standard. However, descriptions of the product and its features
worldwide contained the information that TSTD could be optionally integrated. According
to the defendants, such product descriptions were made available in Germany to E-Plus,
Deutsche Telekom and Telefonica (O2) Germany. By letters of 10 February 2014
(Exhibit ROKH 5) and 25 April 2014 (Exhibit K 9), the defendants confirmed the "zero
information" with respect to the acts of distribution and explained that this information
also applies to the period up to 25 April 2014. By letter of 05 June 2014 (Exhibit K 14),
the defendants explained that the devices seized by the Dutch customs authorities do
not provide a TSTD transmission according to the standard, "neither in their current
configuration nor in the final customer-specific configuration".

The plaintiff sees reason to believe that this information is based on a lack of due care
and requests

as held.

The defendants request

 that the action be dismissed.

They defend the "zero information" provided as being accurate and maintain that the
suspicions on which the plaintiff bases its doubts are not sound. They further assert that
in particular the chairman of the board of defendant 1 cannot be expected to travel to
Germany to submit an affidavit.

For further details regarding the submissions made by the parties, we refer to the briefs
and exhibits exchanged by the parties' counsel.

REASONS FOR THE DECISION

The admissible action is well-founded.

1. Pursuant to Secs. 259, 260 BGB, a creditor may request the submission of an
affidavit if there is reason to assume that the information has not been provided with
the required degree of care, and the matter is not insignificant. In this context, it is
not necessary for the incompleteness of the accounts rendered and the lack of due
care to have been established. Section 259 Para. 2 BGB merely requires a suspicion
based on facts. A corresponding suspicion may arise from the accounts rendered
themselves, or from the overall circumstances of the rendering of accounts (MüKo.
BGB/Krüger, 6th edition, Sec. 259 no. 38 et seq.; Staudinger/Bittner, BGB, revised
edition 2014, Sec. 259 no. 33 et seq., each with further references). In view of the
fact that the request for submission of an affidavit is the only means the creditor has
to establish the accuracy and completeness of the information provided (Federal
Constitutional Court (BVerfG), approving decision of 28 October 2010-2 BvR 535/10,
BVerfGK 18, 144 no. 15, OLG Düsseldorf, decision of 08 September 2011 - 2 W
 26/11 GRUR-RR 2012, 406, no. 4 - Nullauskunft; Palandt/Grüneberg, BGB, 73rd
edition, Sec. 259, no. 12), and the creditor depends on truthful information provided
by the debtor in order to enforce its claim, the requirements to be made on the
suspicion must not be too high in view of the need to ensure effective legal
protection (cf. BVerfG, ibid., no. 20 et seq.).

2. Applying these standards, in view of the overall circumstances there is sufficient

reason to assume that the "zero information" was not provided with the required due
care.

The defendants undisputedly supply UMTS-enabled SDR base stations in Germany.

It is also undisputed that the defendants have offered to interested parties in
Germany base stations according to the patent with a diversity transmission function
according to the standard. It can be inferred from this that there is a demand for such
base stations in Germany. At the trial instance before the 2nd Civil Division it was
undisputed that the customers of base stations strive for the best possible
transmission quality and would therefore like to employ diversity transmission
(judgement of 17 December 2013, 2 O 41/13, page 36). Moreover, despite a
corresponding notice by the Court (ibid., page 16) at the trial instance, the
defendants did not deny a supply of base stations according to the patent to
Germany, and in particular Baden-Württemberg, in a substantiated manner. This led
to the assumption of the local jurisdiction of the Mannheim Regional Court and then
to a judgement against the defendants for contributory patent infringement based on
the supplies which were deemed to have been conceded (ibid., pages 19, 26).

After the seizure by the Dutch customs authorities of SDR base stations intended for
supply to Germany, the Dutch counsel for the defendants initially withdrew the
request for a preliminary injunction directed against the seizure, on the grounds that
the plaintiff had now provided a security for the preliminary enforcement of the claim
to injunctive relief, and it was therefore no longer beneficial to achieve a lifting of the
seizure in order to supply the products to Germany (Exhibits K15a, K 15b).
This letter was suited to give the plaintiff the impression that these base stations were
base stations configured in accordance with the patent, as otherwise the context
established between the lifting of the seizure by the customs authorities and the
preliminary enforcement of the title to injunctive relief was not comprehensible. Although
the defendants soon brought the case to another Dutch court which, according to the
defendants, was more suitable to deal with issues of patent law, the defendants were
not able to give any comprehensible explanation for the reasons given for the initial
withdrawal which could dispel the suspicion of a supply according to the patent.
Moreover, at the first instance of the proceedings for preliminary injunction, the
defendants, in the opinion of the Court in The Hague, were not able to credibly establish
that the seized base stations do not have the TSTD functionality according to the patent
(Exhibit K 16).

Assessing the overall circumstances of the case as required, there is sufficient reason to
assume that the "zero information" was not provided with the required due care. The
written confirmation by E-Plus Mobilfunk GmbH & Co. KG submitted to the defendants
that the "E-Plus Group" in Germany only purchased base stations without TSTD
functionality from the defendants (Exhibit B 3) does not change this. First of all, this
declaration has no procedural evidentiary value, and for lack of any sanctioning, is not
suitable to satisfy the plaintiff's justified interest in obtaining certainty. And secondly,
there are material doubts about the E-Plus declaration in view of the insights gained in
the Dutch proceedings relating to the customs seizure. This is because the devices
intended for one company belonging to the E-Plus group, unlike alleged in the
confirmation according to Exhibit B 3 for earlier deliveries, do not just have one, but two
antennas and are therefore basically ready to use TSTD.

The expert opinion by Cooper (Exhibit B 5) is not suitable to dispel the suspicions
shown, if not for the reason that it has not been proven that all base stations are
equipped with the software examined by Cooper which apparently does not enable a
TSTD functionality.
 This is in fact the question to be answered with the information and affidavit to be
submitted. At the trial instance the defendants already claimed that the diversity
transmission can be prevented without modifying the hardware, merely by modifying
the software. The Cooper opinion can only confirm that the defendants provide this
possibility and a corresponding software, yet not that this possibility is made use of
by all deliveries to Germany.

3. In view of the economic importance of the matter, the order to furnish an affidavit is
not disproportionate. This also applies to the chairman of the board of defendant 1.
Even if one assumes that he will have to come to Germany for submitting the
affidavit, this does not justify any different assessment, because this obligation is a
consequence of the international business of defendant 1 and the patent
infringement committed in Germany.

4. The ancillary procedural decisions are based on Secs. 91, 709 ZPO.

Voß Durban Lembach

Presiding Judge at the Judge at the Judge at the Regional Court
Regional Court Regional Court