On August 7, 2012, ALJ Thomas B. Pender issued Order No. 3 granting non-party Google, Inc. (“Google”) intervenor status but denying its motion to intervene in Certain Electronic Devices, Including Mobile Phones and Tablet Computers, and Components Thereof (Inv. No. 337-TA-847).
According to the Order, Google sought to intervene as a respondent to defend the Google products and services identified in the complaint and to protect its “significant interest” in the investigation, arguing that granting intervention would aid in the adjudication of the issues related to five of the nine asserted patents because the accused products or services are proprietary Android applications developed by Google and supplied by respondents HTC Corp. and HTC America, Inc. (collectively, “HTC”). HTC supported the motion, adding that complainants Nokia Corp., Nokia Inc., and Intellisync Corp.’s (collectively, “Nokia”) claim charts identify and rely on features of Gmail, Google Calendar, or other aspects of the Android operating system to allege infringement, and that allowing Google to intervene would avoid complicated third party discovery with respect to those features. Nokia opposed the motion, contending that Google demonstrated only that it supplies an essential component of the accused products and did not establish that its products could be directly excluded from importation by the requested remedy.
ALJ Pender granted Google intervenor status on the grounds that Google has an interest in the investigation, disposition of Nokia’s infringement allegations may impair or impede Google’s ability to protect that interest, and HTC – the accused device manufacturer but not the developer of the embedded Android applications – does not adequately represent Google’s interest. However, the ALJ refused to grant Google respondent status, observing that because Nokia had only sought a limited exclusion order and thus any remedy would be limited to HTC’s accused products (not Google’s Android products themselves), none of Google’s Android products would be directly excludable by any order that could issue and therefore no compelling reason exists to permit Google to become a respondent in the investigation.