In the International Trade Commission ("ITC") proceeding between Apple and HTC, Google (as well as T-Mobile) have filed briefs supporting HTC. These "friends of the court" briefs are often filed to aid the decisionmaker (in this case the ITC) in reaching a conclusion that is not only helpful to the party in the dispute but also is helpful to the party filing the brief. Google's filing is no different and is obviously made to protect its Android system and platform.
The position taken by Google and T-Mobile is that the public interest will be harmed if Apple is successful in its lawsuit before the ITC as Apple would be able to prevent HTC from selling phones that compete with Apple's iPhone. Such an injunction, Google argues, would also result in negative impacts to United States' consumers, such as potential higher prices and a lack of choice in the phones and features that consumers will ultimately have available for purchase.
Google is essentially claiming that Apple is using the patent system to create a monopoly and that an anticipated injunction would threaten HTC, causing irreparable harm to future sales and the continued roll out of T-Mobile's 4G network. Verizon and T-Mobile also have tried support to Samsung against Apple's lawsuit to stop the sale of Galaxy products in the United States and other countries. Apple has won injunctions against Samsung in both Germany and Australia.
In its brief before the ITC, Google argues:
"An exclusion order will likely raise the price of mobile devices to U.S. consumers, diminish the variety of devices available, lower the number of consumers that have access to the critical public health and welfare benefits of mobile computing, reduce innovation in the mobile device industry, reduce the development of critical wireless network infrastructure, lower the number of mobile applications created, raise barriers to entry, and threaten the only open mobile computing platform. The following specific features of the mobile device industry further increase the harm to the public interest, consumers, and competitive conditions that would result from an exclusion order directed to the HTC Android devices: (1) it is still emerging and fragile; (2) there is an applications barrier to entry that protects incumbents; (3) there are relationships between device manufacturers and network providers that could create additional public harm by discouraging network development; and (4) there is only one open, generative platform with the potential for transformative innovation."
Google's arguments have appeal and certainly apply to the public interest. Nonetheless, they may resonate better with a trial court than at the ITC, particularly because a purpose of patent law is to provide a limited legal monopoly for a specific period of time. Google's brief is also notable that it is very publicly coming to the aid of HTC. The question will be whether it is too little and far too late.