Tuesday, July 17, 2012

Google picks up Nokia's gauntlet, asks ITC for permission to join HTC as co-defendant

I just discovered a headline of an otherwise-sealed filing in the ITC investigation of Nokia's complaint against HTC (click on the image to enlarge or read the text below the image):

Investigation No.: 337-847

Investigation Title: Certain Electronic Devices, Including Mobile Phones and Tablet Computers, and Components Thereof

Security: Confidential

Firm: White and Case

On Behalf Of Google Inc.

Proposed Intervenor Google Inc.'s Motion to Intervene in Investigation as Respondent

In a separate filing, ten attorneys from White & Case notified the ITC of their work on Google's behalf and agreed to the terms of the protective order governing confidential information in this investigation.

This is the first time that Google asks to be named as a co-defendant in an action targeting a third-party Android device maker. So far, Google became involved with such processes in only the following ways:

  • Google participates as a third party in many U.S. actions, which it inevitably has to because of its obligations to provide documents and testimony relating to Android's alleged infringement.

  • Google attorneys attend many (though not all) Android-related patent trials in the U.S. and other jurisdictions. I frequently see a U.S.-based Google attorney at German trials.

  • Google gave some patents to HTC (the ITC threw out five of those loan patents).

  • Google bought itself into pending litigation with Apple and Microsoft by acquiring Motorola Mobility. Oddly, it appears that Motorola's legal position against Microsoft has been seriously weakened as a result -- possibly an unintended consequence -- of the deal.

But prior to this, Google never told a court: "someone who sues HTC (or Samsung or you name them) should also sue us."

Last week, HTC responded to Nokia's complaint. None of the defenses that HTC raised suggested to me that there was a pressing reason for Google to consider itself, or offer itself as, a target of this particular litigation any more than in any other case targeting Android devices.

Nokia's patent assertions aren't even limited to Android. It's also suing RIM (in Germany). It generally targets infringing devices across different platforms.

The only thing that's different about Nokia as a plaintiff in Android cases is that Google brought an EU antitrust complaint against Nokia (and Microsoft) last month. Nokia called the complaint "frivolous" and a waste of time and resources. Maybe Google's proposed intervention is in some way related to that initiative.

It's additionally or alternatively possible that Google has made a general strategic decision to join actions targeting Android devices with patents that are (if they are infringed by those devices at all) infringed by the Android operating system. While there's been a whole lot of attention for a few cases in which Android was cleared of infringement, courts in different jurisdictions have already held Android to infringe 11 valid Apple and Microsoft patents, and that number is going to keep growing until Google works out agreements with such major right holders. With last week's FujiFilm lawsuit against Google subsidiary Motorola Mobility, the collective market capitalization of publicly-traded operating companies claiming that Android infringes their patents has surpassed the $1 trillion threshold. While Android's market share continues to grow (more than one million Android devices are now activated every day), its intellectual property issues have been exacerbating over the last couple of years. Google may have come to realize that it must do more to address Android's patent worries.

At some point redacted versions of Google's motion to intervene or of any related pleadings or orders will become available. As soon as any information becomes available concerning the basis on which Google seeks to join this ITC action, I'll share it with you.

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