UNITED STATES INTERNATIONAL TRADE COMMISSION WASHINGTON, D.C. Before the Honorable Theodore R.

Essex Administrative Law Judge In the Matter of Certain Portable Electronic Communications Devices, Including Mobile Phones and Components Thereof GOOGLE INC.S UNOPPOSED MOTION TO INTERVENE IN INVESTIGATION Ground Rule 3.2 Certification Pursuant to Ground Rule 3.2, Google Inc. certifies that it has made a reasonable, goodfaith effort to contact the Complainants and Respondents in this Investigation at least two business days before filing this motion and resolve the matter that is subject of this Motion. Nokia and HTC have both advised that they do not oppose Googles Motion To Intervene with respect to the 189 patent, the 211 patent, and the 650 patent. Pursuant to 19 C.F.R. 210.19, Google Inc. hereby moves to intervene as a party in the above-referenced Investigation with respect to three of the six patents asserted in the Complaint filed by Complainants Nokia Corp. and Nokia Inc. (collectively Nokia) against Respondents HTC Corp. and HTC America, Inc. (collectively HTC) on May 23, 2013: U.S. Patent No. 6,035,189 (189 patent), U.S. Patent no. 6,711,211 (211 patent), and U.S. Patent No. 8,140,650 (650 patent).1 Google seeks to intervene in this Investigation in order to protect Googles significant interests and defend the Google products and services identified in Nokias Investigation No. 337-TA-885

Although Google requests full participation rights as a party to this Investigation with respect to these three patents, including in all discovery, all motions, and the hearing, as well as pre-hearing and post-hearing briefing, Google is not seeking to be accorded respondent status.

Complaint. Additionally, Googles intervention will aid the Administrative Law Judge in adjudicating infringement and invalidity issues with respect to these three patents, which Nokia alleges to be relevant to certain features of the Android platform and proprietary Android applications that are developed by Google and supplied to HTC. Accordingly, as set forth more fully in the accompanying memorandum, Google respectfully requests that its Motion To Intervene under 19 C.F.R. 210.19 be granted. DATED: July 11, 2013 Respectfully submitted, WHITE & CASE LLP

By /s/ Shamita D. Etienne-Cummings Shamita D. Etienne-Cummings Frank H. Morgan 701 13th Street, N.W. Washington, DC 20005 Tel: 202.626.3600 Fax: 202.639.9355 setienne@whitecase.com fmorgan@whitecase.com Jeannine Yoo Sano Bijal V. Vakil 3000 El Camino Real 5 Palo Alto Square, 9th Floor Palo Alto, CA 94306 Tel: 650.213.0356 Fax: 650.213.8158 jsano@whitecase.com bvakil@whitecase.com Dimitrios T. Drivas Kevin X. McGann 1155 Avenue of Americas New York, NY 10036 Tel: 212.819.8200 Fax: 212.354.8113 ddrivas@whitecase.com kmcgann@whitecase.com Attorneys for Google Inc.

UNITED STATES INTERNATIONAL TRADE COMMISSION WASHINGTON, D.C. Before the Honorable Theodore R. Essex Administrative Law Judge

In the Matter of Certain Portable Electronic Communications Devices, Including Mobile Phones and Components Thereof

Investigation No. 337-TA-885

MEMORANDUM IN SUPPORT OF GOOGLE INC.S UNOPPOSED MOTION TO INTERVENE

I.

INTRODUCTION The applicable factors for intervention weigh in favor of granting Googles request for

intervention under Commission precedent and analogous federal case authority under Fed. R. Civ. P. 24. See, e.g., Certain Garage Door Operators, Inv. No. 337-TA-459, Order No. 5 (Oct. 1, 2001), 2001 WL 1168263, at *1-*2 (There is a strong presumption in favor of intervention.); Chandler & Price Co. v. Brandtjen & Kluge, Inc., 296 U.S. 53, 55 (1935) (manufacturers intervention in infringement action against its customers is necessary for the protection of its interest). The present Investigation involves most of the same parties and accused products as another investigation of an earlier complaint filed by Nokia against HTC, in which the ALJ recognized Googles need for intervention in view of its significant and unique interests in defending against infringement allegations in the complaint identifying Googles products and services. See Certain Electronic Devices, Including Mobile Phones and Tablet Computers, and Components Thereof (Certain Electronic Devices), Inv. No. 337-TA-847, Order No. 3 at 4 (Aug. 3, 2012) (I find that Google has an interest in the investigation and that disposition of Nokias infringement allegations may as a practical matter impair or impede Googles ability to protect that interest.). II. STATEMENT OF FACTS Nokia filed its Complaint under 19 U.S.C. 1337 on May 23, 2013, alleging infringement of six patents by HTC. See Compl. 1-3. The accused HTC products include mobile phones and components thereof that are allegedly manufactured, sold, or imported into the United States by or on behalf of HTC, including the HTC One, HTC One S, HTC One V, HTC One X, HTC Evo 4G LTE, HTC Droid Incredible 4G LTE, HTC Droid DNA, HTC One X+, HTC One VX, and HTC First, which use the Android operating system and/or include Google-proprietary Android applications and Google services such as Gmail, Google Play,

Google Contacts, Google Calendar, Google accounts, and the Android Security Architecture. Id. 3; Compl. Exs. 14, 16, 18. In a previous investigation based on another complaint filed by Nokia against HTC in which Google products and services in the accused HTC devices were similarly implicated, Googles motion to intervene was granted, with full participation rights as a party, including all discovery, all motions, and all pre-hearing and post-hearing briefing, as well as the evidentiary hearing, in view of Googles significant interests and unique position to defend such interests.2 See Certain Electronic Devices, Inv. No. 337-TA-847, Order No. 3 at 4 (Aug. 3, 2012); Hearing Tr. of Sept. 27, 2012 at 3-4, 20-21 (JUDGE PENDER: Google has complete status as an Intervenor. Im not going to stop them from doing anything that I can conceive of at the moment. [NOKIA]: Your Honor. Just very briefly going back to the beginning of the conference, I believe that you were clear and I just want to make sure that with respect to Google as an intervenor there are no restriction on their involvement, is that correct? JUDGE PENDER: Correct.). Similar to Certain Electronic Devices, the claim charts attached as exhibits to Nokias Complaint in this Investigation specifically call out Google products and services in alleging
2

In the previous investigation of the complaint filed by Nokia against HTC, Certain Electronic Devices, Inv. No. 337-TA-847, following full participation by Google as a party, including all discovery requested by Nokia, all of the asserted patents in which Nokia identified Google products or services in its infringement contentions were terminated prior to the hearing. See Order No. 7, Initial Determination Granting HTC s Motion for Partial Termination as to U.S. Patent No. 7,366,529 Pursuant to 19 C.F.R. 210.21(a)(2), 210.21(d) (Feb. 7, 2013), Notice of Commission Determination Not To Review Order No. 7 (Mar. 11, 2013) (terminating investigation as to 529 patent); Order No. 10, Initial Determination Granting Complainants Unopposed Motion for Partial Termination as to U.S. Patent Nos. 7,106,293, 6,141,664, 7,209,911 (Apr. 12, 2013) (terminating investigation as to 664 and 911 patents); Order No. 14, Initial Determination Granting Complainants Unopposed Motion for Partial Termination of the Investigation by Withdrawal of U.S. Patent No. 6,728,530 (May 14, 2013) (terminating investigation as to 530 patent).

infringement by the accused HTC devices. See, e.g., Compl. Ex. 14 (The device includes a Google Play Store that enables loading of new applications in the network to the device."); Compl. Ex. 16 (The device runs the Android version 4.1.2 operating system.); Compl. Ex. 18 (identifying Gmail, Google accounts, and other Google applications; The device stores configuration data sets for multiple accounts, including, for example, social network accounts, email accounts, and Google accounts. The device also stores multiple applications, including, for example, Gmail and other Google applications.). The Commission has only recently instituted this Investigation on June 24, 2013, and HTC has not yet filed its Answer to the Complaint. The preliminary conference has not yet taken place, and no procedural schedule has yet been entered. III. ARGUMENT The Commission Rules provide for a third party to intervene in a pending investigation. See 19 C.F.R. 210.19; Certain Sucralose, Sweeteners Containing Sucralose, and Related Intermediate Compounds Thereof, Inv. No. 337-TA-604, Order No. 7 (July 25, 2007), 2007 WL 3247997, at *2 (The Commission generally follows the Federal Rules of Civil Procedure in determining whether intervention in a particular matter is appropriate.). Google meets all of the criteria for intervention under Commission precedent and relevant case authority on Fed. R. Civ. P. 24.3 See Sucralose, 2007 WL 3247997, at *2 (July 25, 2007) (a party may intervene when it files a timely motion, has an interest relating to the property or transaction which is the subject of

Rule 24 of the Federal Rules of Civil Procedure 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 movants ability to protect its interest, unless existing parties adequately represent that interest.

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.). A. Googles Motion Is Timely.

A motion to intervene is timely when it occurs at a relatively early stage of the investigation. See Sucralose, 2007 WL 3247997, at *3 (motion to intervene filed seven weeks from institution of investigation deemed timely). Since the Investigation was only recently instituted on June 24, 2013 and Respondents have yet to file their answer to the Complaint, Googles Motion is timely. See, e.g., Certain Personal Computers With Memory Management Information Stored in External Memory, Inv. No. 337-TA-352, Order No. 4 (July 15, 1993), 1993 WL 852703, at *1 (granting motion to intervene filed prior to entry of procedural schedule); Certain Cigarettes and Packaging Thereof, Inv. No. 337-TA-424, Order No. 15 (Nov. 19, 1999), 1999 WL 1051120, at *3 (granting motion to intervene filed less than ninety days after publication of the notice of investigation and prior to the initial conference). B. Google Has a Compelling Interest in This Investigation.

Google has a significant and compelling interest regarding the determinations of infringement and invalidity with respect to three of the patents at issue in this Investigation that allegedly implicate Google products, i.e., the Android functionality, Google applications, and Google services that Nokia relies upon in support of its infringement allegations in its Complaint. See 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 Applicants software, and Plaintiff alleges patent infringement based on the Defendants use of Applicants software and technology in connection with making and selling computer products). 4

Google also has a business interest in the continued importation and sales of the accused HTC devices running Google proprietary Android applications. Having invested significant resources into developing and supporting the Android platform for several years, Google has a substantial interest in promoting the use of the Android platform and Android applications and in defending against Nokias allegations of patent infringement directed to Googles products and services in the accused HTC devices identified in the Complaint. See Certain Garage Door Operators, Inv. No. 337-TA-459, Order No. 5 (Oct. 1, 2001), 2001 WL 1168263, at *1-*2 (Microchip seeks intervention in this proceeding alleging that it manufactures, designs and supplies microprocessors and software used by one or more of the named respondents. Microchip further alleges that its microprocessors are identified in the claim charts supplied by [Complainant] the Administrative Law Judge agrees that Microchips status as a designer, manufacturer and supplier of a principle [sic] component of the accused device renders its interest in this investigation substantial.). C. Googles Substantial Interests Are Not Adequately Protected by Any Other Party in This Investigation

As recognized by the ALJ in Certain Electronic Devices, Inv. No. 337-TA-847, Googles substantial interests are not currently adequately protected by any other party in this Investigation. See Ex. 1 at 4 (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 Googles interests.); accord Honeywell Intl Inc. v. Audiovox Commns Corp., 2005 WL 2465898, at *4 (D. Del. May 18, 2005) (granting LCD screen manufacturers motion to intervene where the LCD screen was at the heart of plaintiffs infringement allegations against defendants downstream products); Ancora, 2008 WL 4326788, at *1 (Applicants interest is

not adequately represented by the existing Defendants because none has comparable expertise or incentive to defend Applicants own software and technology.). Since HTC is also subject to claims for infringement of at least three other patents asserted by Nokia, HTCs interests are centered on its own mobile devices, as opposed to the particularities of the Android platform or Googles proprietary products and services. See Compl. 3; Certain Personal Computers with Memory Management Information Stored in External Memory, Order No. 4, 337-TA-352, 1993 WL 852703, at *2 (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 Cyrixs interests.). Unlike HTC, which manufactures, markets and sells numerous devices, including those that run on operating systems other than Android, Google has an undiluted interest in defending the Android platform, as well as its own proprietary Android applications and proprietary products and services. See, e.g., Trbovich v. United Mine Worker, 404 U.S. 528, 538 n.10 (1972) (inadequate representation factor for Rule 24 satisfied if the applicant shows that representation of his interest may be inadequate; and the burden of making that showing should be treated as minimal). Because Googles legal and business interests in this Investigation are not and cannot be adequately represented by any existing party in this Investigation, Googles interest in this Investigation is situated such that disposing of the action may as a practical matter impair or impede [Googles] ability to protect its interest, see Fed. R. Civ. P. 24. Googles Motion should therefore be granted. See Honeywell, 2005 WL 2465898, at *4 ([B]ecause it is uniquely situated to understand and defend its own product, [movants] interests are not adequately represented by existing parties to the litigation.). 6

IV.

CONCLUSION For the foregoing reasons, Google Inc. respectfully requests that its Unopposed Motion

To Intervene as a party with full participation rights in this Investigation under 19 C.F.R. 210.19 be granted. DATED: July 11, 2013 Respectfully submitted, WHITE & CASE LLP

By /s/ Shamita D. Etienne-Cummings Shamita D. Etienne-Cummings Frank H. Morgan 701 13th Street, N.W. Washington, DC 20005 Tel: 202.626.3600 Fax: 202.639.9355 setienne@whitecase.com fmorgan@whitecase.com Jeannine Yoo Sano Bijal V. Vakil 3000 El Camino Real 5 Palo Alto Square, 9th Floor Palo Alto, CA 94306 Tel: 650.213.0356 Fax: 650.213.8158 jsano@whitecase.com bvakil@whitecase.com Dimitrios T. Drivas Kevin X. McGann 1155 Avenue of Americas New York, NY 10036 Tel: 212.819.8200 Fax: 212.354.8113 ddrivas@whitecase.com kmcgann@whitecase.com Attorneys for Google Inc.

CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was served as indicated upon the following parties on July 11, 2013: GOOGLE INC.S UNOPPOSED MOTION TO INTERVENE IN INVESTIGATION AND MEMORANDUM IN SUPPORT THEREOF

U.S. International Trade Commission: The Honorable Lisa Barton Acting Secretary, Office of the Secretary U.S. International Trade Commission 500 E Street, SW, Room 112A Washington, DC 20436 Tel. (202) 205-2000 The Honorable Theodore R. Essex Administrative Law Judge U.S. International Trade Commission 500 E Street, SW, Room 317 Washington, DC 20436 Via First-Class Mail Via Hand-Delivery Via Overnight Delivery Via Facsimile Via Electronic Mail Via EDIS Via First-Class Mail Via Hand-Delivery Via Overnight Delivery Via Facsimile Via Electronic Mail Via EDIS

Counsel for Complainants Nokia Corporation and Nokia, Inc. Jamie D. Underwood Scott J. Pivnick M. Scott Stevens Alston & Bird LLP The Atlantic Building 950 F. Street, NW Washington, DC 20004 Tel. (202) 239-3300 Email: Jamie.underwood@alston.com Email: Scott.pivnick@alston.com Email: Scott.stevens@alston.com Via First-Class Mail Via Hand-Delivery Via Overnight Delivery Via Facsimile Via Electronic Mail Via EDIS

John M. Desmarais Alan S. Kellman Jason Berrebi Desmarais LLP 230 Park Avenue New York, NY 10169 Tel. (212) 351-3400 Email: jdesmarais@desmaraisllp.com akellman@desmaraisllp.com jberrebi@desmaraisllp.com

Via First-Class Mail Via Hand-Delivery Via Overnight Delivery Via Facsimile Via Electronic Mail Via EDIS

Counsel for Respondents HTC Corporation and HTC America, Inc.: Thomas L. Jarvis John Alison Michael Kudravetz Finnegan, Henderson, Farabow, Garrett & Dunner LLP 901 New York Avenue, N.W. Washington D.C. 20001 Tel.: (202) 408-4093 Email: Thomas.Jarvis@finnegan.com Email: John.Alison@finnegan.com Email: Michael.Kudravetz@finnegan.com DATED: July 11, 2013 Via First-Class Mail Via Hand-Delivery Via Overnight Delivery Via Facsimile Via Electronic Mail Via EDIS

Respectfully submitted, WHITE & CASE LLP

By /s/ Shamita D. Etienne-Cummings Attorney for Google Inc.