Last month, Google brought a motion to join the ITC investigation of Nokia's complaint against HTC as a respondent (i.e., as a co-defendant alongside HTC). Nokia opposed this motion, while HTC supported it.
In an order that entered the public record today, Administrative Law Judge Thomas B. Pender granted Google's motion to the extent that it may act as an intervenor, but denied its request to be named a respondent.
While Google's original motion was not made public, some of the subsequent filings, including the decision, are publicly accessible and indicate that Google's argument for being deemed a defendant just came down to arguing that certain closed-source Android apps are at isse in the investigation, so Google could be affected. But the legal standard for a party to be admitted to an ITC investigation as a respondent is considerably higher than that. The key criterion is whether a would-be respondent would see its own products affected by the remedy sought by the complainant. In this case, Nokia is asking for only a limited exclusion order against infringing HTC devices, as opposed to a general exclusion order against all Android-based gadgets. Google doesn't import those apps. HTC does.
To the extent that the filings are publicly accessible at all, I didn't see Google argue that its subsidiary Motorola Mobility, which undoubtedly imports Android apps and already faces one import ban for that reason, could be affected by the investigation of Nokia's complaint against HTC. It appears that Nokia and Motorola have a patent cross-license agreement in place that was renewed only a few years ago. I don't know which patents it covers, but if the ones at issue in this investigation are part of it, then Motorola has nothing to fear. Even if those patents were not licensed to Motorola under that agreement, the fact of the matter is still that Nokia seeks only a limited (vendor-specific) exclusion order.
Nokia had argued that Google is welcome to contribute information as a third party but doesn't have to become a co-defendant in order to be able to do so. Judge Pender also feels that while Google is in a better position to defend its (closed-source) Android apps than HTC is, it's sufficient for Google to act as an intervenor. The hurdle for that is lower.
After I saw the headline of Google's motion to intevene, I was really wondering whether there was anything that sets this Nokia-HTC dispute apart from other cases involving closed-source Android apps. Google hadn't previously asked to join an investigation or a lawsuit as a co-defendant only because its apps were at issue. But even based on Judge Pender's initial determination (which could be reviewed by the Commission, the six-member decision-making body at the top of the ITC), there's no indication for what sets this case apart from, for example, various Apple v. Samsung lawsuits.
I suspect that Google's request to be named a co-defendant was mostly symbolic. It wanted to show that it stands by its partners -- something that it has been claiming for almost two and a half years without being able to point to any particular and useful kind of help. In practical terms, if Google wants to provide source code of its closed-source Android apps for analysis, it can always do so. It won't even have a choice if it gets subpoenaed. It was required to do this in other investigations and lawsuits prior to this one. If Google has a great non-infringement or invalidity argument, it wouldn't even have to be a non-respondent intervenor: it could always have shared the information with HTC anyway.
Theoretically, as a co-defendant, Google would be in a better position to influence any future ITC investigations of complaints Nokia might bring against Android device makers over the same patents and targeting the same Google apps. But again, if there's a winning argument, any other defendant will gladly make use of it and point to an earlier ITC decision supporting such argument.
If there's any particular context in which it would make sense to name Google as a co-defendant rather than merely an intervenor, it's Apple's preliminary injunction against the Galaxy Nexus smartphone. Samsung and Google co-developed the Galaxy Nexus. But even in that context, Google can't force Apple to sue it directly, and Google didn't ask to be named a defendant in the lawsuit that gave rise to the preliminary injunction Samsung is appealing now.
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
Share with other professionals via LinkedIn: