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 SAME
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`Investigation No. 337-TA-___DN# 3655
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`COMPLAINANTS AGIS SOFTWARE DEVELOPMENT LLC’S AND
`ADVANCED GROUND INFORMATION SYSTEMS, INC.’S CONSOLIDATED
`RESPONSE TO PROPOSED RESPONDENTS’ REQUESTS FOR NON-
`INSTITUTION AND PUBLIC INTEREST STATEMENTS
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`Complainants AGIS Software Development LLC and Advanced Group Information
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`Systems, Inc. (collectively, “Complainants”) submit this consolidated response to the Public
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`Interest Submissions1 by Proposed Respondents Google LLC, the proposed Panasonic
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`Respondents,2 and the proposed Samsung Respondents,3 and the Non-Institution Requests4 by
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`proposed Respondent Caterpillar Inc. and the proposed Lenovo Respondents.5
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`I.
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`THE PUBLIC INTEREST SUBMISSIONS FAIL TO RAISE ANY ISSUES
`THAT REQUIRE DELEGATION OF FACT-FINDING
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`The Public Interest Submissions fail to raise any issues that warrant the Commission
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`delegating fact-finding on the public interest to the Administrative Law Judge (“ALJ”). Google,
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`the Panasonic Respondents, and the Lenovo Respondents primarily rely on the everyday use of
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`smartphones and tablets to justify delegation, but that alone does not warrant fact-finding to be
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`delegated in this Investigation. Indeed, the Commission recently declined to delegate fact-finding
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`on the public interest in investigations involving smartphones sold by the Lenovo Respondents.
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`See Certain Mobile Elec. Devices (“Elec. Devices (II)”), Inv. No. 337-TA-1324, Notice of
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`Institution of Investigation (“NOI”) (Aug. 16, 2022); Certain Mobile Elec. Devices (“Elec. Devices
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`1 Collectively, the Panasonic Respondents’ Public Interest Statement (Dec. 5, 2022) (“Panasonic’s
`PI Statement”); Public Interest Submission of Google (Dec. 5, 2022) (“Google’s PI Statement”);
`and the Samsung Respondents’ Public Interest Statement (Dec. 5, 2022) (“Samsung’s PI
`Statement”).
`2 Collectively, Panasonic Corporation and Panasonic Corporation of North America.
`3 Collectively, Samsung Electronics Co., Ltd and Samsung Electronics America, Inc.
`4 Collectively, Statement Requesting Non-Institution of Investigation by Caterpillar (Dec. 5, 2022)
`(“Caterpillar’s Non-Institution Request”); and Lenovo Respondents’ Request for Denial of
`Institution-In-Part (Dec. 5, 2022) (“Lenovo’s Non-Institution Request”).
`5 Collectively, Lenovo Group Ltd. (“LGL”), Lenovo (United States), Inc. (“Lenovo US”), and
`Motorola Mobility LLC (“Motorola”).
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`1
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`(I)”), Inv. No. 337-TA-1312, NOI (Apr. 28, 2022). The Commission should likewise decline to
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`delegate fact-finding on the public interest here.
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`A.
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`The Panasonic Respondents’ Public Interest Statement
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`The crux of the Panasonic Respondents’ argument is the conclusory assertion that the
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`public welfare will be harmed if their products are removed from the U.S. market. See Panasonic’s
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`PI Stmt. at 1–4. The Panasonic Respondents claim law enforcement and fire departments rely
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`heavily on their accused products, citing case studies on Panasonics’ website. Id. at 3. Aside from
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`identifying only a handful of law enforcement and fire departments that actually use their accused
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`products, the Panasonic Respondents do not state exactly how persons working in those capacities
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`use the accused products in a manner that materially affects public health and welfare such that
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`the Commission should not enter a remedial order if it finds a violation of Section 337. See id.
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`And, tellingly, Panasonic’s PI Statement does not cite any Commission authority supporting their
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`argument that exclusion of their accused products would cause harm to the public interest.
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`B.
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`Google’s Public Interest Statement
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`Google similarly fails to raise any issues warranting delegation of fact-finding on the public
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`interest. Google claims the relief Complainants seek would eliminate a large portion of Android
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`smartphones and tablets. See Google’s PI Stmt. at 3. But this ignores Complainants’ and their
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`licensees’ capacity to replace any infringing products subject to an exclusion order. Google also
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`includes a toss-in argument in a footnote that Complainants are forum-shopping and using “the
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`threat of an exclusion order as leverage to extract money from Google,” and that the Commission
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`should deny institution on that basis. Id. at 1 n.1. But this argument is without legal support and
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`does not address public interest issues at all. See 19 C.F.R. § 210.8(c)(1) (proposed respondents
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`may address “any public interest issues arising from the complaint and potential exclusion and/or
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`2
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`cease and desist orders,” and “[c]omments that substantively address allegations made in the
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`complaint will not be considered”).
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`C.
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`The Samsung Respondents’ Public Interest Statement
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`Samsung’s PI Statement fares no better, and their proposal for a separate hearing on the
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`public interest is unfounded and unnecessary. Samsung’s PI Stmt. at 1–2. Unless an investigation
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`has been placed in a 100-day proceeding or the interim initial determination program, typical
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`Commission practice is to hold one evidentiary hearing on all issues to be adjudicated during an
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`investigation. The Samsung Respondents raise no unusual circumstances to deviate from that
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`practice. A separate hearing on public interest would needlessly extend the length of this
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`Investigation, which is contrary to Congress’s mandate that the Commission conclude Section 337
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`investigations “at the earliest practicable time.” 19 U.S.C. § 1337.
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`The Samsung Respondents then claim that exclusion of their accused products would result
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`in an Apple monopoly in the U.S. markets for smartphones and tablets. Samsung’s PI Stmt. at 2–
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`4. But this argument overlooks one critical point, which applies equally to all proposed respondents
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`here: the proposed respondents can easily remove the infringing software from their accused
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`products, which would allow for their products to be imported. If they choose not to, then,
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`consistent with public policy, Complainants are within their rights to protect their intellectual
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`property. See, e.g., Certain Baseband Processor Chips & Chipsets, Transmitter & Receiver
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`(Radio) Chips, Power Control Chips, & Prods. Containing Same, Including Cellular Phone
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`Handsets, Inv. No. 337-TA-543, Comm’n Op. at 136–37 (June 19, 2007).
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`II.
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`INSTITUTION IS PROPER AS TO THE LENOVO RESPONDENTS AND
`CATERPILLAR
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`The Non-Institution Requests by the Lenovo Respondents and Caterpillar do not provide
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`any compelling reasons why those entities should not be named as respondents.
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`3
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`A.
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`The Lenovo Respondents
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`The Lenovo Respondents concede that institution as to Motorola is proper. Lenovo’s Non-
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`Inst. Req. at 1–2. Institution as to LGL and Lenovo US is also proper. The Commission recently
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`instituted an investigation and named the Lenovo Respondents as respondents based on similar
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`importation evidence. See Elec. Devices (I), Inv. No. 337-TA-1312, Compl. (Pub. Version) at ¶¶
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`144–153 (Mar. 30, 2022); Id., NOI. During the pre-institution phase of that investigation, the
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`Lenovo Respondents did not challenge the sufficiency of the importation evidence against LGL
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`and Lenovo US. The Lenovo Respondents also admitted they are related entities. See Elec. Devices
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`(I), Inv. No. 337-TA-1312, LGL and Lenovo US’s Resp. to the Compl. (June 7, 2022) at ¶¶ 23
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`(admitting LGL is the ultimate parent company of Lenovo US), 24 (admitting Lenovo US is a
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`subsidiary of LGL), 25 (admitting Motorola is a subsidiary of LGL); Id., Motorola’s Resp. to the
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`Compl. (June 7, 2022) at ¶ 25 (admitting Motorola is a subsidiary of LGL). The Lenovo
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`Respondents also entered into a stipulation of material facts concerning importation of their
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`accused products. See Elec. Devices (II), Inv. No. 337-TA-1324, Joint Stip. of Material Facts
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`regarding Importation & Inventory of Motorola-Branded Subject Prods. (Oct. 24, 2022).6
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`Furthermore,
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`the Lenovo Respondents’ reliance on Certain LTE-Compliant Cellular
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`Communication Devices (“Communication Devices”) is a red herring. In Communication Devices,
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`the complainant did not name LGL and Lenovo US as proposed respondents. See Inv. No. 337-
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`TA-1253, Compl. (Feb. 1, 2021).
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`The Lenovo Respondents also rely on Certain Electronic Devices, Semiconductor Devices,
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`and Components Thereof (“Semiconductor Devices”) to argue that LGL and Lenovo US should
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`not be named as respondents. Lenovo’s Non-Inst. Req. at 3. But the facts in this Investigation are
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`6 This stipulation is confidential, and no public version is available on EDIS (Doc. ID#782913).
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`4
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`readily distinguishable. In Semiconductor Devices, complainant used evidence of importation of a
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`Motorola accused product to establish jurisdiction over a separate company, Qualcomm
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`Technologies Inc., which makes the processing unit used in the Motorola accused product. See
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`Inv. No. 337-TA-1340, Compl. at ¶¶ 64–65 (Oct. 6, 2022). In contrast, Complainants’ importation
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`evidence is sufficient for the Commission to exercise its jurisdiction over the Lenovo Respondents
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`because all three entities are related, and the Commission previously instituted investigations
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`against them based on similar importation evidence presented here. See supra at 4. Notably, the
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`Lenovo Respondents do not dispute importation of the representative imported product or the
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`related Lenovo products identified in the Complaint. Nor do they distinguish the products in any
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`way. The Lenovo Respondents fail to even deny Lenovo US’s involvement in the importation of
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`products. See Lenovo’s Non-Inst. Req. at 2. The Commission should institute as to the Lenovo
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`Respondents based on Complainants’ well-pleaded Complaint.
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`B.
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`Caterpillar
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`Caterpillar also does not provide a compelling reason for the Commission to decline
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`institution as to Caterpillar. Complainants’ importation evidence clearly shows that Caterpillar is
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`involved in the sale after importation of the accused Caterpillar products. See Compl. at ¶¶ 127–
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`129. Caterpillar provides no Commission authority that prevents it from being named as a
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`respondent in a Section 337 investigation solely because it claims only to license the accused
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`products to Bullitt Mobile Limited. This issue is a proper subject for discovery in this Investigation.
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`III. CONCLUSION
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`Complainants respectfully submit that the requested Investigation should be instituted.
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`Complainants further request that the Commission (1) decline to delegate fact-finding on the public
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`interest to the ALJ in this Investigation and (2) instituted the Investigation as to proposed
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`respondents LGL, Lenovo US, and Caterpillar.
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`5
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`Date: December 8, 2022
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` Respectfully submitted,
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`/s/ Evan H. Langdon
`Evan H. Langdon
`Joshua W. Rodriguez
`FABRICANT LLP
`1101 Pennsylvania Avenue, Suite 300
`Washington, DC 20004
`Telephone: (202) 507-4899
`E-mail: AGIS_ITC@fabricantllp.com
`
`Alfred R. Fabricant
`Peter Lambrianakos
`Vincent J. Rubino, III
`Enrique Iturralde
`Justine Minseon Park
`FABRICANT LLP
`411 Theodore Fremd Avenue,
`Suite 206 South
`Rye, New York 10580
`Telephone: (646) 797-4277
`E-mail: AGIS_ITC@fabricantllp.com
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`Counsel for Complainants AGIS Software
`Development LLC and Advanced Ground
`Information Systems, Inc.
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`6
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