Google moved to intervene as a respondent in the investigation brought by Nokia against HTC. HTC supported Google's intervention and Nokia opposed it. Google asserted that it should be permitted to intervene as a respondent to defend its products and services and to protect its interest in the investigation. As part of this argument, Google asserted that its intervention would aid in the adjudication of the issues in five of the nine patents because the products or services accused of infringement are proprietary Android applications that are developed by Google and supplied by HTC.
In supporting Google's intervention, HTC asserted that Google is uniquely situated to provide information that is necessary for the efficient resolution of the investigation. In support of this position, HTC pointed out that Nokia's claim charts rely on features of Gmail, Google Calendar and other aspects of the Android operating system. HTC then claimed that Google's intervention would eliminate the need for complicated third party discovery regarding these features of Android.
Nokia opposed Google's intervention on the ground that Google had not shown that its products could be directly excluded from importation by the requested remedy in the investigation and therefore Google did not meet the standard for intervention. Nokia argued that Google failed to make this showing because it only showed that it supplies an essential component of the phones targeted in the investigation.
After analyzing the relevant Commission Rule, the Administrative Law Judge found that intervention was appropriate: "In the present investigation, proprietary Android applications developed by Google and imbedded in the accused HTC devices form the basis of Nokia's infringement allegations as to five of the nine patents at issue, U.S. Patent No. 5,884,190, U.S. Patent No. 6,141,664, U.S. Patent No. 6,728,530, U.S. Patent No. 7,209,911 and U.S. Patent No. 7,366,529. See Complaint ¶ 3 and Exs. 22, 26, 27, 29, 30-32, 35. As such I find that Google has an interest in the investigation and that disposition of Nokia's infringement allegations may as a practical matter impair or impede Google's ability to protect that interest. I find that HTC, as the accused device manufacturer, but not the developer of the Android applications embedded in those devices, does not adequately represent Google's interests. Accordingly, I find that pursuant to 19 CFR 210.19 and Fed. R. Civ. Pro. 24 that Google be GRANTED intervener status in this investigation."
Nonetheless, the requirements to be afforded respondent status are different than intervention and require a "compelling justification." As explained by the Administrative Law Judge, "[i]n Network Interface Cards the Commission stated that a party allowed to intervene in an investigation cannot acquire respondent status as a matter of right. Network Interface Cards, Comm'n op. at 9. There must be a "compelling justification" to grant respondent status to an intervener. Id. at 7 ("We believe that these prior ALJ determinations concerning intervention do not give sufficient guidance regarding what would constitute 'a compelling justification' to grant respondent status to a moving party.""
With that standard in mind, the Administrative Law Judge found that "although Google's Android products are within the scope of this investigation, Nokia has only sough a limited exclusion order in this investigation and thus any remedy would be limited to HTC's accused products--not Google's Android products themselves. Thus, I find no compelling reason to permit Google to become a respondent in this investigation because none of Google's Android products would be directly excludable by any exclusion order that could issue in this investigation. Accordingly, I find that Google could only be impacted indirectly by the remedy sought by Nokia and that respondent status under those circumstances would be inappropriate."
Accordingly, the Administrative Law Judge denied Google's request for respondent status.