PUBLIC VERSION
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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`In the Matter of
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`lnv. No. 337-TA-882
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`CERTAIN DIGITAL MEDIA DEVICES,
`INCLUDING TELEVISIONS, BLU-RAY
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`DISC PLAYERS, HOME THEATER
`SYSTEMS, TABLETS AND MOBILE
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`PHONES, COMPONENTS THEREOF
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`AND ASSOCIATED SOFTWARE
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`Order No. 17: INITIAL DETERMINATION
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`Granting Google 1nc.’s Motion to Intervene
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`Non-party Google Inc. (“Google”) filed a motion to intervene in this investigatiou, and a
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`memorandum in support thereof. Motion Docket No. 882-18. Complainant Black Hills Media,
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`LLC (“BHM") opposed the motion. Respondents Samsung,l LG,2 and Panasonic3 each filed a
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`response supporting Google’s motion. The Commission Investigative Staff (“Staff”) filed a
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`response opposing Google’s motion.4
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`A prehearing conference was held on August 6, 2013, and the undersigned heard
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`arguments from the private parties,5 the Staff, and Google regarding the motion to intervene.6
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`1 “Samsung” refers collectively to Samsung Electronics Co., Ltd., Samsung Electronics America,
`Inc, and Samsung Telecommunications America, LLC.
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`2 “LG” refers collectively to LG Electronics, 1110., LG Electronics U.S.A., Inc., and LG
`Electronics MobileComm U.S.A., Inc.
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`3 “Panasonic” refers collectively to Panasonic Corporation and Panasonic Corporation of North
`America.
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`4 The Staff later supported Google’s motion. See Prehean'ng Tr. 37-40.
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`5 The private parties to this investigation include BHM, Samsung, LG, Panasonic, respondent
`Toshiba (12.2., Toshiba Corporation and Toshiba America Information Systems, Inc), and
`respondent Sharp (£.e., Sharp Corporation and Sharp Electronics Corporation).
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`BHM Ex. 2004
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`BHM Ex. 2004
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`Leave was granted for Google to file a reply brief, and leave was also granted for BHM to file a
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`Stir-reply. Google and BHM subsequently filed a reply and sur-reply, respectively.
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`Commission Rule 210.19 addresses intervention, and provides in relevant part:
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`Any person desiring to intervene in an investigation or a related
`proceeding under this part shall make a written motion.
`.
`.
`. The
`Commission, or the administrative law judge by initial determination, may
`grant the motion to the extent and upon such terms as may be proper under
`the circumstances.
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`19 CPR. § 210.19.
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`The Commission looks to Federal Rule of Civil Procedure 24 for guidance in determining
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`whether intervention in a particular matter is appropriate. See Certain Electronic Devices With
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`Image Processing Systems, Components Thereof: and Associated Software, 111V. N0.
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`33 ’i-TA-Tt'24, Comm’n Op. 31:57 (Dec. 1, 2011). Based on the factors found in Federal Rule 24,
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`a party’s motion to intervene is most persuasive where (l) the motion is timely, (2) the movant
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`has an interest relating to the property or transaction which is the subject of the action, (3) the
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`movant is so situated that the disposition of the action may as a practical matter impair or impede
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`the movant’s ability to protect that interest, (4) the movant is not adequately represented by
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`existing parties, and (S) the intervention will not unduly delay or prejudice the adjudication of
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`the original parties’ rights.
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`152’. (citing Fed. R. Civ. P. 24; Certain Baseband Processor Chips and
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`Chipsets, Inv. No. 337-TA-543, Order No. 27 (Feb. 15, 2006)).7
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`6 Although Toshiba did not file a written response to Google’s motion, counsel for Toshiba
`indicated during the preheating conference that Toshiba supports the motion. Preheat-Eng Tr.
`44-46.
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`7 A heightened standard applies when a party seeks to intervene as a respondent. See Certain
`Network Interface Cards and Access Points, lnv. No. 337-TA-455, Comm’n Op. at 10 (July 17,
`2001). “In order to be accorded reSpondent status, the moving party must produce relevant
`evidence sufficient to Show that articles supplied by the moving party could, in fact, be found in
`violation of section 337 and could therefore be excluded from entry into the United States if the
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`2
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`BHM Ex. 2004
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`BHM Ex. 2004
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`With respect to the first factor, Google argues that its motion is timely, as this
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`investigation was instituted on June 18, 2013, and Google filed its motion a little more than five
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`weeks later on July 26, 2013. See Mot. at 4, 7. In opposition, BHM argues that “Google could
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`and should have moved to intervene in this action at least one month [earlier]. The Complaint
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`and its attachments have been public since May 2013 and Google was issued a subpoena in June
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`2013 for information in its possession related to the Respondents' devices. Google provides no
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`explanation for why it waited so long to file its motion to intervene.” Opp’n at 7.8
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`With respect to the second and third factors, Google argues that it “has a compelling
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`interest in this investigation as a result of Complainant’s assertion that the alleged infringement
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`is based, in part, on Respondents’ devices and their use of proprietary Google products and
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`services, including Google Play Music, Google Mapsz’Latitude, and YouTube." Mot. at 5.
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`It is
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`argued that “Google also has a business interest in the continued importation and sale of
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`Respondents’ accused products that utilize Google proprietary products and services. Google
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`has invested substantial resources in developing and supporting these products and services and
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`has a strong interest in assuring that Respondents can continue to utilize these products and
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`services by importing their products into the United States.” Id. at 6. 1n opposition, BHM
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`argues that Google is one of twenty third party software and hardware providers that received
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`subpoenas in this investigation, and that Google “offers no facts to compel elevating Google
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`above the other third parties who also happen to possess information relating to Respondents”
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`devices.” Opp'n at 8.
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`It is further argued that Google “has failed to identity a single point or
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`fact upon which its interests diverge from any of the Respondents,” and that “Google does not
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`remedy sought by the complaith were granted.” Id. Google does not request that it be granted
`respondent status in this investigation. See Reply at 11.
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`8 The Staff agrees with Google that the motion is timely. Stafic Resp. at 4.
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`3
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`BHM Ex. 2004
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`BHM Ex. 2004
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`attempt to address how the disposition of these proceedings will impair Google’s interests in any
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`way.” Id. at 9.9
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`With respect to the fourth factor, Google argues that “Google’s products and services are
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`not the only third party products and services that are alleged to infringe the asserted patents, and
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`Respondents’ interests will be more focused on their own accused products as opposed to
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`Google’s proprietary products and services.” Mot. at 7.
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`In opposition, BHM argues that “[t]he
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`Respondents share the same ultimate objective as Google~to establish that Respondents’
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`devices do not infringe the asserted patents andfor to establish that the asserted patents are
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`invalid.” Opp’n at 9.
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`It is argued that “Respondents are no less than five large manufacturers
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`represented by highly qualified and reputable counsel,” and that “Google nowhere suggests that
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`the Respondents will fail to make all necessary arguments, are incapable or unwilling to make
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`such arguments, or that Google would offer any necessary additions to the proceedings that the
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`Respondents would neglect.” Id. at 9-10.10
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`Having considered the arguments of the parties, the administrative law judge finds that
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`Google has demonstrated that it should be granted intervenor status in this investigation. With
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`respect to the first factor, the administrative law judge finds that the motion to intervene was
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`timely filed within weeks of institution of the investigation. With respect to the second and third
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`factors, the administrative law judge finds that Google has an interest in the subject matter of this
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`investigation, and that disposition of this investigation may as a practical matter impair or
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`9 Based on information available at the time it filed its response, the Staff originally argued that
`Google does not have a compelling interest in the subject matter of the investigation. See Staff
`Resp. at 4—7. The Staff later took the position that Google does have a compelling interest in the
`subject matter of the investigation. See Prehearing Tr. 37-40.
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`10 In its written response, the Staff argues that “to the extent the Complainant directly implicates
`the Google products to prove direct or indirect infringement by the ReSpondents’ accused
`products, the Staff would likely support Google’s intervention because Respondents may not
`adequately represent its interests.” Staff Resp. at 8.
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`4
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`BHM Ex. 2004
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`BHM Ex. 2004
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`impede Google’s ability to protect that interest.
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`In particular, it is determined that Google has a
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`compelling interest in this investigation because its software is accused with respect to all six
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`accused patents and all respondents. See Reply at 16. Moreover, inasmuch as [
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`], and inasmuch as [
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`], it is determined that disposition of this investigation may
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`impair or impede Google’s ability to protect its interests. See I'd. at 17. With respect to the
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`fourth factor, the administrative law judge finds that Google’s interests are not adequately
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`represented by the existing parties, inasmuch as [
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`]. See id. Finally, with respect to the
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`fifth factor, the administrative law judge finds that, inasmuch as the investigation is in the early
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`stages of discovery, Google’s intervention at this time will not unduly delay or prejudice the
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`adjudication of the original parties’ rights.
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`Motion No. 882-18 is therefore granted.
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`It is the initial determination of the
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`administrative law judge that Google is granted intervenor status in this investigation, which
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`includes full participation rights as a party with respect to all asserted patents, including
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`discovery, motions practice, prehearing canferences, evidentiary hearings, and pre-hearing and
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`post~hearing briefing. “
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`Pursuant to 19 C.F.R. § 210-.42(h), this initial determination shall become the
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`determination of the Commission unless a party files a petition for review of the initial
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`l1 BHM argues that, in the event the administrative law judge determines that Google should be
`allowed to intervene in this investigation, Google’s participation should be “limited to
`infringement issues that concern Google software and providing limited discovery on that issue.’
`See SUI-Reply at 2. The administrative law judge sees no reason to limit Google’s participation
`to only the issue of infringement.
`It is therefore determined that Google may participate fully as
`to all issues litigated in this investigation.
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`5
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`BHM Ex. 2004
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`BHM Ex. 2004
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`determination pursuant to 19 C.F.R. § 210.43(a), or the Commission, pursuant to 19 C.F.R.
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`§ 210.44, orders on its own motion a review of the initial determination or certain issues
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`contained herein.
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`ML
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`David P. Shaw
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`Administrative Law Judge
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`Issued: August 19, 2013
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`6
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`BHM Ex. 2004
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`BHM Ex. 2004
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`CERTAIN DIGITAL MEDIA DEVICES, INCLUDING TELEVISIONS, BLU-RAY DISC
`PLAYERS, HOME THEATER SYSTEMS, TABLETS AND MOBILE PHONES,
`COMPONENTS THEREOF AND ASSOCIATED SOFTWARE
`
`INV. NO. 337—TA-882
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`PUBLIC CERTIFICATE OF SERVICE
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`1, Lisa R. Barton, hereby certify that the attached ORDER NO. 17 has been served by hand upon
`the Commission Investi ative Attorney, Monisha Deka, Esq., and the following parties as
`indicated, on
`A G 1 4’ 2013
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`6 h 2!;
`£7:
`Lisa R. Barton, Acting Secretary
`U.S. International Trade Commission
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`500 E Street SW, Room 112A
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`Washington, DC 20436
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`FOR CONIPLAINANT BLACK HILLS MEDIA, LLC:
`
`Howard Wisnia
`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKY AND POPEO, P.C.
`3580 Carmel Mountain Road
`Suite 300
`
`(
`(
`(
`(
`
`Via Hand Delivery
`Express Delivery
`) Via First Class Mail
`) Other:
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`San Diego, CA 92130
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`
`
`
`FOR RESPONDENTS SAMSUNG ELECTRONICS CO. LTD., SAMSUNG
`ELECTRONICS AMERICA, INC. AND SAMSUNG TELECOMMUNICATIONS
`AMERICA, LLC:
`
`) Other:
`
`Alexander D. Chinoy
`COVINGTON & BURLING LLP
`1201 Pennsylvania Avenue, NW
`Washington, DC 20004
`
`Via Hand Delivery
`) Express Delivery
`) Via First Class Mail
`
`(
`(
`(
`(
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`BHM Ex. 2004
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`BHM Ex. 2004
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`

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`CERTAIN DIGITAL MEDIA DEVICES, INCLUDING TELEVISIONS, BLU-RAY DISC
`PLAYERS, HOME THEATER SYSTEMS, TABLETS AND MOBILE PHONES,
`COMPONENTS THEREOF AND ASSOCIATED SOFTWARE
`
`INV. NO. 337-TA-882
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`FOR RESPONDENTS LG ELECTRONICS, INC” LG ELECTRONICS U.S.A., INC.
`AND LG ELECTRONICS MOBIL-ECOMM U.S.A., INC.:
`
`Elizabeth A. Niemeyer
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`90] New York Avenue, NW
`Washington, DC 20001
`
`(
`(
`(
`(
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`. Via Hand Delivery
`) Express Delivery
`) Via First Class Mail
`) Other:
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`
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`INFORMATION SYSTEMS, INC:
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`FOR RESPONDENTS PANASONIC CORPORATION AND PANASONIC
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`CORPORATION OF NORTH ANIERICA:
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`Daniel R. Foster
`McDERMOTT WILL & EMERY LLP
`4 Park Plaza, Suite 1700
`Irvine, CA 92614
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`(
`(
`(
`(
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`Via Hand Delivery
`) Express Delivery
`) Via First Class Mail
`) Other:
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`
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`FOR RESPONDENTS TOSHEBA CORPORATION AND TOSHIBA AMERICA
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`Paul F. Brinkman
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`1299 Pennsylvania Avenue, NW
`Suite 825
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`Washingtou, DC 20004
`
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`(
`(
`(
`(
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`Via Hand Delivery
`) Express Delivery
`) Via First Class Mail
`) Other:
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`BHM Ex. 2004
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`BHM Ex. 2004
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`

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`CERTAIN DIGITAL MEDIA DEVICES, INCLUDING TELEVISIONS, BLU-RAY DISC
`PLAYERS, HOME THEATER SYSTEMS, TABLETS AND MOBILE PHONES,
`COMPONENTS THEREOF AND ASSOCIATED SOFTWARE
`
`INV. NO. 337—TA-882
`
`
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`FOR RESPONDENTS SHARP CORPORATION AND SHARP ELECTRONICS
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`CORPORATION:
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`Josh A. Krevitt
`GIBSON DUNN & CRUTCHER LLP
`200 Park Avenue
`New York,NY 10166
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`)
`
`ia Hand Delivery
`Express Delivery
`) Via First Class Mail
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`(
`(
`(
`(
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`) Other:
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`
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`FOR INTERVENOR GOOGLE INC.:
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`
`
`
`
`
`( Via Hand Delivery
`Stefani E. Shanberg
`WILSON SONSINI GOODRICH & ROSATI
`(
`Express Delivery
`
`
`One Market Plaza
`(
`) Via First Class Mail
`
`
`(
`) Other:
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`Spear Tower, Suite 3300
`San Francisco, CA 94105
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`
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`PUBLIC MAILING LIST
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`Lori Hofer, Library Services
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`(
`
`) Via Hand Delivery
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`LEXIS-NEXIS
`
`9473 Springboro Pike
`Miamisburg, OH 45342
`
`(/) Express Delivery
`
`)
`(
`Via First Class Mail
`) Other:
`(
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`
`) Other:
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`Kenneth Clair
`
`Thomson West
`1100 13Lh Street, NW, Suite 200
`Washington, DC 20005
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`) Via Hand Delivery
`Express Delivery
`) Via First Class Mail
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`(
`(
`(
`(
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`BHM Ex. 2004
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`BHM Ex. 2004
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