UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
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`In the Matter of
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`CERTAIN LOCATION-SHARING
`SYSTEMS, RELATED SOFTWARE,
`COMPONENTS THEREOF, AND
`PRODUCTS CONTAINING THE SAME
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`Investigation No. 337-TA-____
`Docket No. 3655
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`PUBLIC INTEREST SUBMISSION OF PROPOSED RESPONDENT GOOGLE LLC
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`Proposed Respondent Google LLC (“Google”) respectfully submits these comments
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`relating to the public interest in response to the Commission’s notice of the receipt of the complaint
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`filed by Complainants AGIS Software Development LLC and Advanced Ground Information
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`Systems, Inc. (collectively, “AGIS”). 87 Fed. Reg. 72,509 (Nov. 25, 2022). AGIS is a non-
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`practicing entity whose requested relief would harm public health and welfare, competitive
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`conditions, and U.S. consumers—particularly in view of the well-publicized worldwide global
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`semiconductor shortage, broader global supply chain problems, and the lingering effects of the
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`COVID-19 pandemic. Accordingly, Google respectfully requests that the Commission delegate
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`public interest to the Administrative Law Judge (“ALJ”) and submits that the Commission and
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`ALJ would both benefit from assigning the Office of Unfair Import Investigations to participate in
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`the investigation, if instituted, to represent the public.1
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`Google, headquartered in Mountain View, California, employs tens of thousands of people
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`in the U.S. and expends billions of dollars annually on research and development.2 Google
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`develops and sells a number of award-winning consumer electronics, such as the Google Pixel
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`smartphones, Nest Hub, Google Pixelbook, and Google Chromecast, among others.3 Google is
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`committed to bettering the communities it serves and partners with charitable organizations to
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`provide resources and technologies to those in need—including a pledge to lessen education and
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`1 AGIS originally brought suit against Google in the Eastern District of Texas in November 2019
`in a case styled, AGIS Software Development LLC v. Google LLC, 2:19-cv-00361-JRG. In that
`case, AGIS asserted the same five patents it is asserting in its recently-filed complaint and sought
`damages for Google’s alleged patent infringement. Google sought transfer of that case to the
`Northern District of California, which the district court denied. Six months ago, the Federal
`Circuit ordered the case transferred. AGIS’s blatant forum shopping and clear attempt to use the
`ITC and the threat of an exclusion order as leverage to extract money from Google should not be
`rewarded, and Google respectfully submits that the Commission should deny institution.
`2 See https://www.sec.gov/ix?doc=/Archives/edgar/data/0001652044/000165204422000019/
`goog-20211231.htm.
`3 https://store.google.com/.
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`1
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`income inequality in the U.S.4
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`I.
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`Use of the Subject Google Articles in the United States
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`The accused products are location-sharing systems, related software, and products
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`containing the same.5 AGIS specifically identifies and charts the Google Pixel 6 as an allegedly
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`“representative” accused product, but also identifies the “Nexus S, Galaxy Nexus, Nexus 4, Nexus
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`5, Nexus 6, Nexus 5X, Nexus 6P, Nexus 7 1st Gen., Nexus 7 2nd Gen., Nexus 10, Pixel 2, Pixel 2
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`XL, Pixel 3, Pixel 3 XL, Pixel 3a XL, Pixel 4, Pixel 4 XL, Pixel 4a, Pixel 4a (5G), Pixel 5, Pixel
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`5a, Pixel 6, Pixel 6 Pro, Pixel 6a, Pixel 7, Pixel 7 Pro, Pixel C, Chromebook Pixel, Google
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`Pixelbook, Google Pixelbook Go, and Pixel Slate” as accused products.6 AGIS’s allegations are
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`based on Google Find My Device, as well as Google Play Protect, Google Maps, Google Play
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`Services, Google Mobile Services, and Google Chrome.”7 Google largely designs and develops
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`its products in the United States; the mobile devices are largely purchased by consumers in the
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`United States for personal communication and connectivity; and the Pixel receives recognition
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`annually for its quality, design, and features.8 Google invests heavily in domestic research and
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`development, including in machine learning and artificial intelligence (AI), which are increasingly
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`important to many of Google’s latest innovations and integral to US interests in maintaining its
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`4 See, e.g., https://www.google.org/intl/en_us/billion-commitment-to-create-more-opportunity/;
`https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved
`=2ahUKEwiyvs_c-
`MT7AhVxAjQIHcqNC4gQFnoECA0QAQ&url=https%3A%2F%2Fwww.cnet.com%2Ftech%2
`Fmobile%2Fpixel-6s-tensor-chip-inside-the-brains-of-googles-newest-
`flagship%2F&usg=AOvVaw3-jqDoDOc41bPV1pMZ9rUo.
`5 Complaint ¶ 1, Complainant AGIS Software Development LLC’s Statement Regarding the
`Public Interest at 3.
`6 Complaint ¶ 144; see also id.. ¶¶ 143, 145-148; id. Exs. 6-10.
`7 Id. Exs 6-10.
`8 CNET says “[t]he Pixel 6 is Google's most significant phone upgrade yet, and we can’t think of
`a better phone to recommend.” https://www.cnet.com/tech/mobile/google-pixel-6-review/.
`CNET award the Pixel Pro 7 its Editor’s Choice Award.
`https://www.cnet.com/tech/mobile/pixel-7-pro-review-googles-best-flagship-phone-gets-better/.
`2
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`lead in the worldwide technology race. Google is also a leader in the deployment of voice-assisted
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`technologies, which are available to US consumers on numerous Google products as well as third-
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`party devices.9 The smartphones, tablets, and computers AGIS accuses are ubiquitous and have
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`become essential to modern life in this country.
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`II.
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`There Would Be a Significant Negative Impact on Public Health and Welfare and
`Significant Harm to U.S. Consumers
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`AGIS’s requested relief targets downstream products incorporating the location-sharing
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`software, including mobile devices, tablets, and laptop computers, all of which have uses far in
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`excess of the asserted patents. Excluding the Google mobile devices would exacerbate the well-
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`known current shortage of computer products used for medical and health research, education, and
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`innumerable other important purposes that serve the public interest.10 Compounding this impact is
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`the scope of AGIS’s requested relief would eliminate a large portion of the Android-based
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`smartphone and tablet market.
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`Google’s products are used extensively in public health, safety, and welfare, and their
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`exclusion would frustrate a number of government programs and myriad industries. For example,
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`in addition to supply-chain disruptions arising from the chip shortage, the lingering effects of
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`pandemic has caused other severe consumer product shortages arising from lack of other
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`component parts, employee illnesses, workforce reductions, and transit route disruptions.11 The
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`pandemic has demonstrated the significant effect that even a small disruption in supply of one
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`component or product can have on the U.S. economy. With no end to the supply chain disruption
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`9 https://blog.google/products/pixel/introducing-google-tensor/.
`10 See, e.g., https://www.cnet.com/tech/computing/global-chip-shortage-gives-us-
`manufacturing-a-boost/
`11 See, e.g., Global smartphone shipments to contract in 2022 as China's Covid-19 lockdowns
`disrupt manufacturing, logistics (yahoo.com); https://www.cnet.com/tech/mobile/
`smartphone-market-hurt-by-supply-chain-issues-in-thirdquarter/.
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`in sight, the Legislative branch recently took action in an attempt to deal with the problem and its
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`effects.12 AGIS’s requested relief would complicate and potentially frustrate these initiatives.
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`The effects of AGIS’s requested relief, including exclusion of the Google accused
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`products, would also be detrimental to health and education initiatives that make use of these
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`products. For example, Google has worked with hospital systems to outfit Pixel devices for use in
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`healthcare settings,13 and it has provided numerous donations of products and money to serve
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`educators and students.14 Google also jointly created the Exposure Notification System for
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`Android devices, including the Google accused products, to aid in the fight against the COVID-19
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`pandemic and help save lives. Many U.S. city health departments and public health officials rely
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`on that system for their contact tracing efforts.15 Google has also worked with U.S. governmental
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`agencies to push potentially lifesaving alerts to its devices in real-time, including alerts for
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`catastrophic weather events, AMBER alerts, and presidential alerts.16 Many other U.S. consumers
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`rely on the Pixel’s accessibility features to function in daily life.17 AGIS’s requested relief would
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`thwart all these public health, safety, and welfare efforts.
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`III.
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`There Are Insufficient Like or Directly Competitive Articles Made in the United
`States That Could Replace the Subject Articles
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`AGIS asserts that its “licensees, including AGIS Inc. and others, adequately supply the
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`market and will continue to do so.”18 AGIS’s assertion lacks credibility. For example, AGIS’s
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`12 See, e.g., https://science.house.gov/chipsandscienceact. Additional measures from both the
`Executive and Legislative branches are expected.
`13 See, e.g., https://blog.google/products/android-enterprise/healthcare-response-community/.
`14 See, e.g., https://edu.google.com/intl/ALL_us/why-google/for-your-institution/k-12-solutions/;
`https://edu.google.com/intl/ALL_us/why-google/our-commitment/.
`15 See, e.g., https://www.google.com/covid19/exposurenotifications/.
`16 See, e.g., https://www.androidcentral.com/amber-alerts-and-android-what-you-need-know.
`17 See, e.g., https://blog.google/outreach-initiatives/accessibility/first-time-i-was-able-call-my
`-23-year-old-son/; https://gizmodo.com/the-pixel-6s-accessibility-features-make-me-hopeful
`-for-1847997736; https://support.google.com/pixelphone/answer/6006564?hl=en.
`18 AGIS Public Interest Statement at 4.
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`requested relief could potentially exclude 40% of the mobile phone market.19 AGIS itself does not
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`manufacture or supply the accused smartphones, tablets, or computers. AGIS points to Apple as
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`an alternative supplier with a 50% or more share in the smartphone market, but it does not point
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`to anything demonstrating Apple’s ability to make up an additional 40% should its requested
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`orders be entered. AGIS does not point to any other suppliers. The global pandemic and supply
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`chain disruption have made clear that these markets, suppliers, and manufacturers cannot turn on
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`a dime.20 The lack of replacement articles is a real risk of the requested remedial orders.
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`IV.
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`Conclusion
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`The foregoing demonstrates that AGIS’s requested relief would have significant adverse
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`effects on public health and welfare, competitive conditions in the U.S., and U.S. consumers. The
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`negative effects would not be limited to these proposed respondents or a single industry. Instead,
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`as shown by the impact that the chip shortage has had on the U.S. and global economy, the negative
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`effects would cascade quickly into many other aspects of the U.S. economy, exacerbating the harm
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`to the public interest. Accordingly, Google respectfully submits that the Commission should
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`delegate the public interest factors to the ALJ to develop a full evidentiary record and that Staff be
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`designated to participate in any investigation.
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`DATED: December 5, 2022
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`/s/ D. Sean Trainor
`D. Sean Trainor
`dstrainor@omm.com
`O’MELVENY & MYERS LLP
`1625 Eye Street, N.W.
`Washington, DC 20006
`Telephone: (202) 383-5300
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`19 See https://www.counterpointresearch.com/us-market-smartphone-share/ (identifying
`smartphone market share, including that of Android OEMS Samsung, Lenovo, and OnePlus).
`20 See, e.g., https://www.theguardian.com/technology/2022/nov/07/apple-warns-iphone
`-shipments-will-be-delayed-due-to-covid-restrictions-at-foxconn-plant.
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`Facsimile: (202) 383-5414
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`Darin W. Snyder
`dsnyder@omm.com
`Mark Liang
`mliang@omm.com
`O’MELVENY & MYERS LLP
`Two Embarcadero Center, 28th Floor
`San Francisco, CA 94111
`Telephone: (415) 984-8700
`Facsimile: (415) 984-8701
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`Counsel for Proposed Respondent Google LLC
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`CERTIFICATE OF SERVICE
`The undersigned certifies that on December 5, 2022, true and correct copy of the
`foregoing document were served upon the following parties as indicated below:
` Via Hand Delivery
`The Honorable Katherine M. Hiner
`Via Electronic Filing (EDIS)
`Acting Secretary to the Commission
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`U.S. International Trade Commission
`500 E Street, S.W., Room 112A
`Washington, D.C. 20436
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` /s/ Brian Treggs
`Brian A. Treggs
`Case Manager
`O’Melveny & Myers LLP
`400 South Hope Street
`Los Angeles, CA 90071
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