UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`Before The Honorable David P. Shaw
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN DIGITAL MEDIA DEVICES,
`INCLUDING TELEVISIONS, BLU-RAY
`DISC PLAYERS, HOME THEATER
`SYSTEMS, TABLETS AND MOBILE
`PHONES, COMPONENTS THEREOF
`AND ASSOCIATED SOFTWARE
`
`Investigation No. 337-TA-882
`
`MOTION TO INTERVENE IN INVESTIGATION
`AND SUPPORTING MEMORANDUM OF GOOGLE INC.
`
`MOTION
`
`Pursuant to Commission Rule 210.19, Google Inc. (“Google”) moves to intervene
`
`in this investigation. Google seeks to intervene to protect its significant interests and to
`
`defend the Google and YouTube, LLC (“YouTube”) proprietary products and services
`
`that are identified in the Complaint and the accompanying claim charts or that are
`
`otherwise within the scope of this investigation. YouTube is a wholly-owned subsidiary
`
`of Google. As set forth in more detail in the following memorandum, Google respect-
`
`fully requests that its motion to intervene (“Motion”) be granted.1
`
`1 Google presently seeks to intervene only as an intervenor and not as a respondent.
`Should its motion be granted, however, Google reserves the right to file a motion to
`change its status to that of a respondent
`if additional facts come to light
`in the
`investigation that would support such a request.
`
`- 1 -
`
`BHM Ex. 2004
`
`
`Washington, D.C.
`
`Before The Honorable David P. Shaw
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN DIGITAL MEDIA DEVICES,
`INCLUDING TELEVISIONS, BLU-RAY
`DISC PLAYERS, HOME THEATER
`SYSTEMS, TABLETS AND MOBILE
`PHONES, COMPONENTS THEREOF
`AND ASSOCIATED SOFTWARE
`
`Investigation No. 337-TA-882
`
`MOTION TO INTERVENE IN INVESTIGATION
`AND SUPPORTING MEMORANDUM OF GOOGLE INC.
`
`MOTION
`
`Pursuant to Commission Rule 210.19, Google Inc. (“Google”) moves to intervene
`
`in this investigation. Google seeks to intervene to protect its significant interests and to
`
`defend the Google and YouTube, LLC (“YouTube”) proprietary products and services
`
`that are identified in the Complaint and the accompanying claim charts or that are
`
`otherwise within the scope of this investigation. YouTube is a wholly-owned subsidiary
`
`of Google. As set forth in more detail in the following memorandum, Google respect-
`
`fully requests that its motion to intervene (“Motion”) be granted.1
`
`1 Google presently seeks to intervene only as an intervenor and not as a respondent.
`Should its motion be granted, however, Google reserves the right to file a motion to
`change its status to that of a respondent
`if additional facts come to light
`in the
`investigation that would support such a request.
`
`- 1 -
`
`BHM Ex. 2004
`
`
`
`As required by Ground Rule 5(e), Google has made a reasonable and good-faith
`
`effort to contact and seek to resolve the subject matter of this Motion two days prior to
`
`filing this Motion. Respondents Samsung Electronics Co., Inc., Samsung Electronics
`
`America, Inc., Samsung Telecommunications America, L.L.C., LG Electronics, Inc.,
`
`LG Electronics, Inc., LG Electronics, U.S.A., Inc., LG Electronics MobileComm U.S.A.,
`
`Inc., Panasonic Corporation, Panasonic Corporation of America, Toshiba Corporation,
`
`Toshiba Corporation America Information Systems, Inc., Sharp Corporation, and Sharp
`
`Electronics Corporation (“Respondents”) indicated they do not oppose the Motion.
`
`Complainant Black Hills Media, LLC (“Black Hills” or “Complainant”) indicated that it
`
`will oppose the Motion. The Commission Investigative Staff has indicated that it will
`
`take a position after it reviews the Motion.
`
`MEMORANDUM
`
`I.
`
`STATEMENT OF FACTS
`
`This investigation was instituted on June 18, 2013, as a result of a Complaint that
`
`was filed by Black Hills on May 13, 2013, alleging infringement of six patents by one or
`
`more of twelve Respondents, including OEMS for Android devices, Samsung Electronics
`
`Co., Inc., Samsung Electronics America, Inc., Samsung Telecommunications America,
`
`L.L.C., LG Electronics, Inc., LG Electronics,
`
`Inc., LG Electronics, U.S.A., Inc.,
`
`LG Electronics MobileComm U.S.A.,
`
`Inc., Panasonic Corporation, Panasonic
`
`Corporation of America, Toshiba Corporation, Toshiba Corporation America Information
`
`Systems, Inc., Sharp Corporation, and Sharp Electronics Corporation.
`
`The claim charts that accompanied the Complaint specifically identify certain
`
`proprietary Google and YouTube products and services operating on Android devices
`
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`BHM Ex. 2004
`
`
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`manufactured by each of the Respondents as allegedly infringing or allegedly providing a
`
`portion of the infringing functionality of various patent claims. Specifically, Google
`
`Maps and Google Latitude were identified in the claim charts for U.S. Patent 6,618,593.
`
`Google Play Music was expressly identified in the claim charts for U.S. Patent
`
`Nos. 8,045,952 and 8,050,652. YouTube was expressly identified in claim charts for U.S.
`
`Patent Nos. 8,028,323, 8,214,873, and 8,230,099.
`
`In addition, Black Hills has served subpoenas on both Google and its wholly-
`
`owned subsidiary YouTube, copies of which are attached as Exhibits 1 and 2. The
`
`subpoena to Google defines “Google Device Locator Applications” as “software applica-
`
`tions that enable device users to identify and locate on a map, via global positioning
`
`system data, other wireless communication devices. Device Locator Applications include,
`
`without limitation, Google Latitude, AT&T Family Map, and all other reasonably similar
`
`applications.” Ex. 1 at 4. The subpoena defines “Google Media Sharing Applications”
`
`as “YouTube and applications for managing and sharing digital media and other network
`
`connected devices including music sharing applications, such as Google Play Music and
`
`reasonably similar applications, as well as, second screen and DIAL video sharing
`
`applications, and other reasonably similar applications.” Id. The subpoena to YouTube,
`
`Google’s wholly owned subsidiary, defines “YouTube Products” as “YouTube software
`
`used in conjunction with respondents’ devices including, but not limited to, YouTube
`
`applications and services and YouTube discovery and launch (‘DIAL’), second screen, or
`
`remote control functionality.” Ex. 2 at 5.
`
`- 3 -
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`BHM Ex. 2004
`
`
`
`II.
`
`ARGUMENT
`
`A.
`
`Legal Standard
`
`The Commission’s rules expressly provide for a third party to intervene in a
`
`pending investigation. Rule 210.19; Certain Sucralose, Sweeteners Containing Sucralose,
`
`and Related Intermediate Compounds Thereof, Inv. No. 337-TA-604, Order No. 7
`
`(July 25, 2007) (“The Commission generally follows the Federal Rules of Civil
`
`Procedure in determining whether intervention in a particular matter is appropriate.”)2
`
`The Commission evaluates the following factors in determining whether intervention is
`
`appropriate:
`
`(1) was the motion timely; (2) does the moving party have “an interest
`
`relating to the property or transaction which is the subject of the action;” (3) is the
`
`moving party “so situated that the disposition of the action may as a practical matter
`
`impair or impede its ability to protect that interest;” and (4) is the moving party “not
`
`adequately represented by existing parties.” Id.
`
`B.
`
`GOOGLE SATISFIES THE STANDARD FOR INTERVENTION
`
`1.
`
`Google’s Motion is Timely
`
`A motion to intervene is timely if filed at a “relatively early” stage of the
`
`investigation. Id. Google’s motion is timely, as this investigation was only instituted on
`
`June 18, 2013, a little more than five weeks ago, and the preliminary hearing before the
`
`ALJ will not occur until August 6, 2013.
`
`See Certain Portable Electronic
`
`Communication Devices, Including Mobile Phones and Components Thereof, Inv.
`
`2 Federal Rule of Civil Procedure 24 provides: “On timely motion, the court must
`permit anyone to intervene who .
`.
`. claims an interest relating to the property or
`transaction that is the subject of the action, and is so situated that disposing of the action
`may as a practical matter impair or impede the movant’s ability to protect its interest,
`unless existing parties adequately represent that interest.”
`
`- 4 -
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`BHM Ex. 2004
`
`
`
`No. 337-TA-885, Order No. 5 (July 16, 2013) (motion timely when filed “within weeks
`
`of the institution of the investigation”); Certain Cigarettes and Packaging Thereof, Inv.
`
`No. 337-TA-424, Order No. 15 (Nov. 19, 1999) (granting motion to intervene filed less
`
`than ninety days after publication of the notice of investigation and prior to the initial
`
`conference).
`
`2.
`
`Google Has a Compelling Interest in This Investigation
`
`Google has a compelling interest in this investigation as a result of Complainant’s
`
`assertion that the alleged infringement is based, in part, on Respondents’ devices and
`
`their use of proprietary Google products and services, including Google Play Music,
`
`Google Maps/Latitude, and YouTube. See Certain Portable Electronic Communication
`
`Devices, Including Mobile Phones and Components Thereof, Inv. No. 337-TA-885,
`
`Order No. 5 (finding Google established that it has a substantial interest due to the
`
`alleged infringement of HTC devices that run Google products or services); Certain
`
`Electronic Devices, Including Mobile Phones and Tablet Computers, and Components
`
`Thereof, Inv. No. 337-TA-847, Order No. 3 (Aug. 3, 2012) (finding Google established
`
`that it has a substantial interest because “proprietary Android applications developed by
`
`Google and imbedded [sic] in the accused HTC devices form the basis of Nokia’s
`
`infringement allegations”); see also, Ancora Tech., Inc. v. Toshiba Am. Info. Sys., Inc.,
`
`2008 WL 4326788 at *1 (C.D. Cal. Sept. 22, 2008) (granting motion to intervene where
`
`“[a]pplicant has a significantly protectable interest because the Defendants are important
`
`OEM customers who make and sell computer products equipped with Applicant’s
`
`software, and Plaintiff alleges patent infringement based on the Defendants’ use of
`
`- 5 -
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`BHM Ex. 2004
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`
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`Applicant’s software and technology in connection with making and selling computer
`
`products”).
`
`Google also has a business interest in the continued importation and sale of
`
`Respondents’ accused products that utilize Google proprietary products and services.
`
`Google has invested substantial resources in developing and supporting these products
`
`and services and has a strong interest in assuring that Respondents can continue to utilize
`
`these products and services by importing their products into the United States. See
`
`Certain Garage Door Operators, Inv. No. 337-TA-459, Order No. 5 (Oct. 1, 2001)
`
`(party’s status as “a designer, manufacturer and supplier” of a principal component of
`
`“the accused device renders its interest in this investigation substantial”).
`
`3.
`
`Google’s Substantial Interests Are Not Adequately
`Protected by the Respondents
`
`In two prior investigations involving Google’s proprietary products and services,
`
`with closely analogous facts, the Commission found that the respondents could not
`
`adequately protect Google’s interests. See Certain Electronic Devices, Including Mobile
`
`Phones and Tablet Computers, and Components Thereof, Inv. No. 337-TA-847, Order
`
`No. 3 (Aug. 3, 2012) (“I find that HTC, as the accused device manufacturer, but not the
`
`developer of the Android applications embedded in those devices, does not adequately
`
`represent Google’s interests.”); Certain Portable Electronic Communication Devices,
`
`Including Mobile Phones and Components Thereof, Inv. No. 337-TA-885, Order No. 5
`
`(“The ALJ finds that Google’s interests are not adequately protected by existing parties”).
`
`The same holds true in this investigation.
`
`- 6 -
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`BHM Ex. 2004
`
`
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`Moreover, Google’s products and services are not the only third-party products
`
`and services that are alleged to infringe the asserted patents, and Respondents’ interests
`
`will be more focused on their own accused products as opposed to Google’s proprietary
`
`products and services.
`
`See Certain Personal Computer with Memory Management
`
`Information Storied in External Memory, Inv. No. 337-TA-352, (July 15, 1993) (“Cyrix
`
`will not be adequately represented by the other parties in this investigation. The
`
`Twinhead respondents have an interest in selling personal computers, not necessarily
`
`those with Cyrix microprocessors. . . . Cyrix should not be forced to depend on the other
`
`parties to litigate issues which will have a very substantial effect on Cyrix’s interests.”).
`
`III.
`
`CONCLUSION
`
`For all these reasons, Google respectfully requests that its Motion to Intervene in
`
`Investigation as a party with full participation rights under Rule 210.19 be granted.
`
`Dated: July 26, 2013
`
`Respectfully submitted,
`
`/s/ Stefani E. Shanberg
`Stefani E. Shanberg
`Jennifer J. Schmidt
`Robin L. Brewer
`Michael J. Guo
`Madeleine E. Greene
`WILSON SONSINI GOODRICH & ROSATI
`Professional Corporation
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, California 94105
`Telephone:
`(415) 947-2000
`Facsimile:
`(415) 947-2099
`E-Mail:
`sshanberg@wsgr.com
`jschmidt@wsgr.com
`rbrewer@wsgr.com
`mguo@wsgr.com
`mgreene@wsgr.com
`
`- 7 -
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`BHM Ex. 2004
`
`
`
`Larry L. Shatzer
`WILSON SONSINI GOODRICH & ROSATI
`Professional Corporation
`1700 K Street, N.W., Fifth Floor
`Washington, D.C. 20006
`Telephone:
`(202) 973-8800
`Facsimile:
`(202 973-8899
`E-Mail:
`lshatzer@wsgr.com
`
`Counsel for GOOGLE INC.
`
`- 8 -
`
`BHM Ex. 2004
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