By Eric Schweibenz
On July 16, 2013, ALJ Theodore R. Essex issued Order No. 5 in Certain Portable Electronic Communications Devices, Including Mobile Phones and Components Thereof (Inv. No. 337-TA-885).

By way of background, this investigation is based on a May 23, 2013 complaint filed by Nokia Corporation and Nokia Inc. (collectively, “Nokia”) alleging violation of Section 337 in the importation into the U.S. and sale of certain portable electronic communications devices, including mobile phones and components thereof that infringe one more claims of U.S. Patent Nos. 6,035,189 (the ‘189 patent); 6,373,345; 6,711,211 (the ‘211 patent); 7,187,945; 8,140,650 (the ‘650 patent); and 8,363,824.  According to the Notice of Investigation, the Commission has identified HTC Corporation and HTC America, Inc. (collectively, “HTC”) as the respondents.  See our June 24, 2013 post for more details on the Notice of Investigation.

According to the July 16, 2013 Order, Google, Inc. (“Google”) filed a motion to intervene as a party to this investigation with respect to three of the six patents asserted by Nokia – the ‘189, ‘211, and 650 patents.  Neither Nokia nor HTC opposed Google’s motion to intervene.

In support of its motion, Google argued that it should be permitted to intervene in order to protect its interests and defend the Google products and services identified in Nokia’s complaint.  Specifically, Nokia accused certain HTC products that use Google’s Android operating system and/or include Google-proprietary Android applications and Google services.  Google further argued that its interests are not adequately protected by any other party in this investigation since HTC will likely be focused on its own mobile devices while Google has an “undiluted” interest in defending its own Android platform and other Google products and services.  Google noted, however, that it only sought to participate in the investigation as an intervenor and thus was not seeking respondent status. 

ALJ Essex granted Google’s motion under ITC Rule 210.19 which generally provides for a party to intervene in a Section 337 investigation.  ALJ Essex noted that the ITC generally follows Federal Rule of Civil Procedure 24 (“FRCP 24”) in determining whether intervention in a particular matter is appropriate.  More particularly, FRCP 24 provides that a party may intervene when it files a timely motion, has an interest relating to the property or transaction which is the subject of the action, is so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest, and is not adequately represented by existing parties.  Accordingly, ALJ Essex granted Google intervenor status here, which includes full participation rights as a party to this Investigation with respect to the ‘189, ‘211, and 650 patents.