The U.S. Patent and Trademark Office has joined the U.S. Department of Justice's Antitrust Division to urge the U.S. International Trade Commission to keep exceptions to its exclusion orders narrow, making the statement in Netlist's case accusing Google and Samsung of infringing its computer memory technology patents.

The USPTO and Antitrust Division took the unusual step Tuesday of filing a joint comment on the public interest in Netlist's case seeking a limited exclusion order prohibiting imports of products that infringe its six patents, including Samsung's dual in-line memory modules and products containing that technology from Google and Super Micro Computer.

Google, Samsung and Super Micro have all urged the ITC to reject Netlist's request for an investigation, arguing that the accused products are vital to the nation's artificial intelligence boom and that interrupting their availability threatens critical infrastructure, such as the healthcare system. The companies cited an executive order from the Trump administration deeming AI vital to national security.

But the USPTO and Antitrust Division argued — although without commenting specifically on the Netlist case — that a public interest exception to ITC exclusion orders applies in only the most limited of circumstances.

"The narrow statutory exceptions for public health, welfare, and competitive conditions should remain just that: narrow exceptions, applied only in extraordinary circumstances, based only on concrete evidence, and never based on speculation or conjecture," the agencies said.

Netlist's ITC complaint, dated Sept. 25, noted that it has pursued district court litigation against both Google and Samsung, the latter of which has led to two jury awards for Netlist. It's seeking a limited exclusion order and argued that the company has had to deal with "rampant infringement of its intellectual property."

"Samsung continues to ship billions of dollars' worth of infringing products into the United States," the company said, adding that Google and Super Micro "continue to import Samsung's infringing memory products and implement them in their own products and services."

But Google contended in a response Tuesday that the company is after "sweeping remedial relief that would exclude the downstream accused Google products," many of which are used to support hospitals and healthcare providers.

"An interruption to Google's supply chain could create cascading operational failures across sectors vital to public health and welfare, degrading the continuity, reliability, and availability of services that millions of Americans depend on daily," the company said.

Samsung made similar arguments in its Tuesday filing, saying that its memory chips are vital to the U.S. economy and the AI industry. The companies asserted that if the ITC chooses to proceed with an investigation, an administrative law judge should take on the public interest component of the case and also seek the contributions of the Office of Unfair Import Investigation to develop a record on the issue.

But the USPTO and Antitrust Division said in their filing that "the public interest favors robust, predictable enforcement of valid patent rights, particularly at the border, where American innovation often confronts foreign imitation."

"The USITC should continue to resist efforts to expand these exceptions into broad categorical exemptions or preliminary barriers to enforcement, as such an approach would undermine the effectiveness of the USITC as a forum for protecting American intellectual property against infringing imports," the agencies said.

And public interest determinations should come after the ITC assesses patent infringement, and not before the agency makes an infringement determination, the agencies added.

The patents-at-issue are U.S. Patent Nos. 12,373,366; 10,025,731; 10,268,608; 10,217,52; 9,824,035; and 12,308,087.

The USPTO is represented by internal counsel Todd J. Tiberi and Austin P. Mayron.

The DOJ is represented by Dina Kallay, Mark H. Hamer, Chetan Sanghvi, Omeed A. Assefi, David B. Lawrence and Alice A. Wang of the U.S. Department of Justice's Antitrust Division.

Netlist is represented by Daniel E. Yonan, Donald R. Banowit, William H. Milliken, Richard M. Bemben and Lauren A. Watt of Sterne Kessler Goldstein & Fox PLLC and Jason Sheasby, Annita Zhong, Andrew Strabone and Lisa Glasser of Irell & Manella LLP.

Google is represented by Gregory F. Corbett, Elizabeth A. DiMarco, Charles T. Steenburg and Anant K. Saraswat of Wolf Greenfield & Sacks PC.

Samsung is represented by Paul F. Brinkman, F. Christopher Mizzo, Michael A. Pearson Jr., Karthik Ravishankar, Azaad Zimmermann, Maranda Johnston, David Corasaniti, Greg S. Arovas, Todd Friedman, James E. Marina, Benjamin Lasky, Greg Polins, Luke Norrell and Cameron Lindsay of Kirkland & Ellis LLP.

Super Micro Computer Inc. is represented by Richard S. Zembek, Charles B. Walker, Daniel S. Leventhal, Talbot Hansum and Ryan E. Meltzer of Norton Rose Fulbright.

The case is Certain Dynamic Random Access Memory (Dram) Devices, Products Containing The Same, and Components Thereof, investigation number 337-TA-3854, at the U.S. International Trade Commission.