Sunday, July 29, 2012

HTC asks ITC to let Google join as co-defendant against Nokia

Approximately two weeks ago I reported on Google's motion to intervene in the ITC investigation of Nokia's complaint against HTC as an additional respondent. Since Google's motion was sealed in its entirety (apart from the headline), it wasn't immediately clear on which basis Google sought to become a co-defendant in that particular action, given that dozens of Android-related infringement complaints had been filed before in different courts without Google ever asking to join as a respondent. Thus far, Google was (unless it was sued directly) only a third party to Android-related infringement proceedings.

A filing that HTC made in support of Google's motion on Thursday (which entered the public record on Friday) sheds some more light on this, and unless HTC omitted any important facts, it appears that there's absolutely nothing special about this Nokia-HTC action that would require Google's involvement any more than those dozens of other Android-related infringement cases I just mentioned.

HTC argues that "Google is uniquely situated to provide information necessary for the efficient resolution of Nokia's infringement allegations with respect to at least five of the patents asserted in this Investigation, which are primarily directed to features of Google developed applications that are embedded in the accused HTC products". HTC also says that "Nokia's infringement charts for five of the asserted patents that were included with the Complaint specifically identify and rely upon features of Gmail, Google Calendar, or other aspects of the Android operating system in order to allege infringement by these accused HTC products".

Android and Google-developed applications have been at issue in numerous other infringement actions, yet Google didn't seek to join those as a co-defendant: it contented itself with the role of a third party. For example, the "data tapping" patent that won Apple and import ban against HTC reads on Android's Linkify library. HTC's brief doesn't provide any indication as to why Google would not be able to provide whatever information it is "uniquely situated to provide" simply as a third party (the parties to the investigation would be free to subpoena Google anytime). HTC just says that "allowing Google to participate as a Respondent in this Investigation will avoid the need for complicated third party discovery with respect to those accused features", without specifying why third-party discovery wouldn't be sufficient, or why it would be "complicated". If a third party is particularly eager to provide information that helps the ITC adjudicate the issues, that only makes things easier, but even a party that doesn't volunteer to provide information will ultimately have to meet its legal obligations.

The ITC is a trade agency, not a court, and its focus in Section 337 investigations is on distortions of competition resulting from the importation of infringing products. HTC imports devices allegedly infringing Nokia's patents. Google provides software to HTC, and it has to accept responsibility for the software it publishes, but Google's role here may not fall within the narrow scope of Section 337 investigations by the ITC.

That said, I believe it's a positive thing that Google is willing to go further than before in its efforts to support Android device makers. HTC has been defending itself against Android-related patent litigation for almost two and a half years, and Google should have lent more support early on. The question is not if but how Google should come to HTC's (and other third-party device makers') aid. A recent transfer of patents from Google to HTC (for the purpose of countersuing Apple over them) fell short of a transfer of all rights, title and interest in the ITC's opinion. Now Google has brought a motion to join as an additional respondent that doesn't appear to state extremely compelling reasons. Nokia has opposed Google's motion in a brief that is just as sealed Google's motion itself. Based on HTC's brief (the only one in this context that is publicly-accessible so far), I'm not sure the ITC will see the need for Google to be anything other than a third party to the proceedings. Google can't force Nokia to sue it. Patent holders can sue anyone in the supply chain who creates or redistributes infringing material.

With respect to Google's attempts to support its device makers facing patent issues because of Android's infringement issues, the Wall Street Journal reported on Friday afternoon that Google is leading a consortium bidding for Eastman Kodak's digital imaging patents. According to the report (which cautioned readers that things could still change before formal bids are submitted on Monday), Google has joined forces with HTC as well as Samsung and LG. Google has also brought in a patent aggregator named RPX that security software maker Kaspersky Labs accused of extortion, racketeering and wire fraud.

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