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Patent Ambush: The Future of Standard Setting


Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog, Inc.
Principal Lecturer, PLI Patent Bar Review Course
Posted: March 7, 2009 @ 2:06 pm

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On Tuesday, March 10, 2009, at 1pm ET, the Practising Law Institute will host a 1 hour telephone briefing discussing the future of standard setting bodies in the wake of the recent decision of the United States Court of Appeals for the Federal Circuit in Qualcomm v. Broadcom.  This discussion of standard setting is particularly topical at the moment given that just two weeks ago the United States Supreme Court decided not to accept the appeal of the Federal Trade Commission in the Rambus matter.  You may recall that on Monday, November 24, 2008, the Federal Trade Commission filed a petition for certiorari with the United States Supreme Court (see also Appendix Vol 1 and Appendix Vol 2) seeking review of the April 22, 2008 decision of the United States Court of Appeals for the District of Columbia in Rambus Inc. v. Federal Trade Commission, which was an enormous victory for Rambus due to the fact that the DC Circuit did not find any support in the record to support the FTC’s determinations that Rambus engaged in unfair and deceptive activities while participating in a standard-setting organization without disclosing its relevant patents. The FTC had petitioned to seek a rehearing of the case by the entire DC Court of Appeals rather than just letting the panel decision stand, but this rehearing request was denied, thereby necessitating this appeal to the Supreme Court. 

On Monday, December 2, 2008, the United States Court of Appeals for the Federal Circuit issued a decision affirming in part the district court’s ruling in the patent dispute between Broadcomm and Qualcomm. See Qualcomm Inc. v. Broadcom Corp.  This patent infringement case involved the consequence of silence in the face of a duty to disclose patents in a standards-setting organization. The district court concluded that Qualcomm breached its duty to disclose U.S. Patent No. 5,452,104 and U.S. Patent No. 5,576,767 to the Joint Video Team (“JVT”) standard setting organization. As a remedy, the district court ordered the ‘104 and ‘767 Patents (and related patents) unenforceable. Additionally, based on both Qualcomm’s JVT misconduct and its litigation misconduct, the district court determined that this was an exceptional case and awarded Broadcom its attorney fees.  The Federal Circuit affirmed the district court’s determinations that Qualcomm had a duty to disclose the asserted patents to the JVT, that it breached this duty, and that the JVT misconduct and litigation misconduct were proper bases for the court’s exceptional case determination. Because the scope of the remedy of unenforceability was too broad, however, the Federal Circuit vacated the unenforceability judgment and remanded with instructions to enter an unenforceability remedy limited in scope to H.264-compliant products.

The Federal Circuit pointed out that he language of the JVT policies did not expressly require disclosure by all participants in all circumstances, but it did require at least best efforts to disclose relevant patents even apart from the submission of technical proposals. The Court then went on to explain that even by Qualcomm’s own admission, it did not present evidence of any efforts, much less best efforts, to disclose patents associated with the standardization proposal to the JVT prior to the release of the H.264 standard. This seemed to lead the Federal Circuit to conclude that Qualcomm, as a participant in the JVT prior to the release of the H.264 standard, did have at least some disclosure obligations and those disclosure obligations were not satisifed.

But how does one reconcile the Federal Circuit’s decision in Qualcomm and the DC Circuit’s decision that Rambus did not engage in anti-competitive activities by not disclosing its patent applications?  It seems to be a matter of proof and not that what Rambus was alleged to have done was acceptable.  In the opinion issued by the DC Circuit in the Rambus matter the court explained that the case turned on the fact that those who participated in the standard setting were obligated to disclose information about patents and patent applications, but that there was no formal finding by the FTC that the policies actually contained such a requirement. In fact, the DC Circuit was disturbed by the fact that the FTC relied on witness testimony from those who had an interest in the outcome of the litigation. Thus, it would seem that the DC Circuit did not rule that what Rambus was alleged to have done was appropriate, but rather that there was no hard and impartial evidence that suggested what they did violated the rules set for participation in standard setting.

As high-technology markets proliferate, the importance of interoperability standards that permit products from different vendors to work together will only continue to grow. The legal regime governing these industry standard-setting activities, however, remains very much in flux, and no doubt there will remain differences of opinion as to what is appropriately required to participate in standard setting organizations.  Given that the United States Supreme Court has elected not to weigh in on the Rambus matter, it seems likely that in the future those participating in standard setting organizations will continue to open themselves up to charges of inappropriate conduct, and potential investigation and prosecution by the Federal Trade Commission. 

Anyone interested in these issues should strongly consider attending the PLI presentation – Standard Setting and “Patent Ambush”: Lessons from the Federal Circuit’s Recent Qualcomm v. Broadcom Decision.  Presenters Susan A. Creighton of Wilson Sonsini Goodrich & Rosati, P.C., Michael A. Lindsay of Dorsey & Whitney LLP and M. Sean Royall of Gibson, Dunn & Crutcher LLP will discuss:

  • The Qualcomm v. Broadcom decision
  • How Qualcomm v. Broadcom compares with recent actions by the FTC and other courts
  • The significance of Qualcomm v. Broadcom for companies that are participants in industry standard-setting activities

CLE credits are available for attorneys practicing in Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, North Carolina, North Dakota, New Hampshire, New Mexico, Nevada, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.


About the Author

  Eugene R. Quinn, Jr.
President & Founder of IPWatchdog, Inc.
US Patent Attorney (Reg. No. 44,294)

B.S. in Electrical Engineering, Rutgers University
J.D., Franklin Pierce Law Center
L.L.M. in Intellectual Property, Franklin Pierce Law Center

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Gene is a US Patent Attorney, Law Professor and the founder of IPWatchdog.com. He teaches patent bar review courses and is a member of the Board of Directors of the United Inventors Association. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, CNN Money and various other newspapers and magazines worldwide.

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Posted in: Federal Circuit, Federal Trade Commission, IP News, IPWatchdog.com Articles, Patents

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

16 comments
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  1. Gene, you’ve leaned over backwards more than a few times to argue the possibility that Rambus was guilty of bad standards setting behavior.

    Over and over (again) you have ignored the sworn testimony and evidentiary record established in court with both juried and judicially directed results.

    Till now, EVERY judgment against Rambus AND no judgment against the lying, thieving cartel has been reversed on appeal. In fact, the weirdly reasoned judgments, findings, proceedings of the FTC and the EDVA (Judge Payne) have been TOTALLY defeated.

    And yet, you attempt to make ‘lemonade’ by writing, “Thus, it would seem that the DC Circuit did not rule that what Rambus was alleged to have done was appropriate, but rather that there was no hard and impartial evidence that suggested what they did violated the rules set for participation in standard setting.” duh.

    If you review the established record, you’ll note that it points to incredibly deceitful behavior of your dearly beloved standards setting JEDEC board. The board was led by several hacks intent on using the JEDEC proceedings as part of the memory cartel’s collusive criminal attempt to kill Rambus and make off with its IP (and, I guess, it’s best engineers).

    Gene, are you in the looking glass acting like Alice’s Queen of Hearts?

    I guess you think it’s me, but wait a few months and we’ll see who’s closer to the truth of the matter.

  2. Peter-

    I am not trying to argue that Rambus did anything wrong. It seems to me that the case is now finally resolved and the outcome is that there was no evidence that Rambus did anything wrong. All I was trying to point out was that what Rambus was alleged to have done is not something that is legally acceptable. So if there had been proof I think Rambus would have lost. I was just trying to reconcile the outcome of the Rambus case with that of the Qualcomm case.

    I will admit that for a long time, like many, I did think that Rambus was guilty of what they were charged with. It seemed difficult to believe that with so much smoke there was not at least a little fire. It always seemed to me that in order for the Rambus defenders to be correct there had to be an enormous conspiracy, and that conspiracy needed to reach within the FTC. I am not typically a big conspiracy theorist, but the things that I have seen from the government and throughout the US economy make me wonder what is going on these days.

    So let me be clear. If Rambus had done what the FTC said they did it would not have been appropriate, and the outcome for Rambus would then have likely been much like the outcome for Qualcomm. There is, however, no proof or judicial ruling that Rambus did anything inappropriate. So Rambus is in the clear, having had to probably waste millions of dollars in attorneys fees to get to this point. Thus, it seems that Rambus did not get justice at all.

    -Gene

  3. “But how does one reconcile the Federal Circuit’s decision in Qualcomm and the DC Circuit’s decision that Rambus did not engage in anti-competitive activities by not disclosing its patent applications?”

    Because Rambus never had patents or patent applications that read on the JEDEC standard. The FTC even agrees with this statement. Their whole case is built on the fact that Rambus held patent interests that one day could be amended to be RELATED to the standard (ie not required to practice the standard). JEDEC disclosure duties did not cover this situation, and it would probably be an anti-trust violation in itself to require competitors to disclose their future intentions with each other.

    From the CADC opinion overturning the FTC’s case:
    “First, the Commission evidently could find that Rambus violated JEDEC’s disclosure policies only by relying quite significantly on participants’ having been obliged to disclose their work in progress on potential amendments to pending applications, as that work became pertinent…Indeed, the parties stipulated that as of Rambus’s last JEDEC meeting it held no patents that were essential to the manufacture or use of devices complying with any JEDEC standard, and that when JEDEC issued the SDRAM standard Rambus had no pending patent claims that would necessarily have been infringed by a device compliant with that standard.”

  4. PT-

    Thanks for your comment. I think things are starting to gel in my mind with respect to a number of seemingly unrelated things. It strikes me that the FTC didn’t like the fact that Rambus could potentially add claims to pending patent applications that might read on the standard. This concern seems to me to be consistent with the concern by those at the USPTO and certain academics insofar as continuation practice is concerned. The idea that there is a need to curb continuation practice stems from the fact that applicants can file a very broad disclosure and then continue to go back and add claims in continuation after continuation. The only problem is that the law specifically allows this practice, which is why Judge Cacheris struck down the PTO rules that tried to limit claims and continuations.

    It seems that government agencies have growing hostility toward continuation practice and would like to see an end to the practice of constantly trying to broaden patent rights by adding new claims. This viewpoint is inconsistent with the law though, and ignores the fact that those with pending applications are not broadening their invention years later. In order for new claims to be added the original disclosure must support the making of those claims, so by definition there is not new matter.

    I wonder if this is what caused the FTC to have such singular focus on Rambus? Thoughts anyone?

    -Gene

  5. Gene, the problem of Jedec standard setting body was that after Rambus withdraw from Jedec, Jedec did not distribute that letter to their members. You also have this major problem in that Rambus invented fundamental dram invention to solve the bottleneck problem but Jedec members do not want to pay for them but instead planned long time ago to try to make them public domain. Rambus was not allowed to present their technology in Jedec meetings twice when asked by Rambus. Jedec denied. In fact, Rambus was the only company ever been denied such request.

    Rambus was called a Menace to the dram industry because they do not cross license which is another major problem with standard bodies.

    Those who participate in standard bodies in the future better be warned that once you enter such body you giveup your patent rights because the FTC will go after you even if you did nothing wrong. This way your patents loses their potential and no one pays for them as the FTC will make sure you suffer even when you did nothing wrong except you enter a standard body.

    So, in the future, only big corporations will join standard bodies and willing to give away their IP for free. Now, if big corporations want to make money from their inventions then they will not join any standard bodies. They will giveup their patents only if there are other patents from other companies that are needed to make the standard. Some big corpoartions are willing to give them away for this reason as they can sell more products.

  6. there’s a well documented revolving door between the memory manufacturer’s lawfirms and the ftc…in fact, it’s well documented that micron wrote most if not all of the ftc’s briefs/opinions

  7. Gene I say bravo! to you. There are many who felt like you, that Rambus must have done something wrong. I think your eyes are finally opened to what really transpired with the FTC.

    Put in context, the Appellate Court and the Supreme Court did nothing further than confirm what the FTC’s Chief Administrative Law Judge Stephen McGuire said in his 330 page Initial Decision. Specifically, that the only indication that Rambus did anything wrong was the testimony of the self interested witnesses, and that that testimony was contradicted by written evidence that supported that Rambus acted properly in JEDEC.

    The over 1500 findings of fact in the initial decision were completely ignored by the full commission, who ruled that Judge Mcguire should have believed the testimony of those witnesses that there was an unwritten, touchy feely duty to disclose. Note though, that the full commission never even heared the witnesses themselves. The full commission had to do it that way, because in the absence of a duty to disclose, any actions Rambus to wait and see if their patents were even awarded, or if JEDEC would even spec their technology, would be entirely legal, which it was.

    At best, the FTC originally felt like you, that if there was smoke, Rambus must have done something wrong. But that is more than offset by the revolving door of former FTC employees such as William Baer and Sean Royall, who wound up in cushy jobs at law firms representing the companies those JEDEC witnesses were employed by. Even more nefarious is the cover page from outside law firms (and billing records) that show that those JEDEC companies attorneys were working on briefs and presentations for the FTC’s case, but not billing the FTC.

    Rambus didn’t trick JEDEC, and JEDEC member companies knew that Rambus could and probably would, legally add claims that could cover technologies used in SDRAM. They knew this from reading the written description of the patents that Rambus released to JEDEC.

    The whole argument after that really is, if the standard doesn’t require the technology, do you have to disclose to JEDEC? If you are not a member of JEDEC, do you have to disclose that you have a a patent, when there are other methods that could be used to meet the standard. And finally, if JEDEC themselves say “keep your applications under your hat” , and a future standard POSSIBLY could use your technology, but you haven’t filed for the patent yet, do you have to notify?

    Judge McGuire properly ruled that the time to notify was not at the speculation stage, but when actual work began on the standard. JEDEC’s own Desi Rhoden said that work didn’t actually begin on the DDR standard, long after Rambus was no longer a member of JEDEC.

    The Appellate Court and the Supreme Court got it right both the Qualcomm and Rambus cases. Rambus is innocent of the “Rambus tricked us” lies, and the press should respect that Rambus has spent millions to clear their name.

  8. Gene,

    You wrote:

    “I wonder if this is what caused the FTC to have such singular focus on Rambus? Thoughts anyone?”

    Follow the money.

  9. you should look at whyte recent decision re hynix – and in part others. not that many earlier decisions didn’t make clear what many refused to see.

  10. “It always seemed to me that in order for the Rambus defenders to be correct there had to be an enormous conspiracy, and that conspiracy needed to reach within the FTC. I am not typically a big conspiracy theorist, but the things that I have seen from the government and throughout the US economy make me wonder what is going on these days.”

    Gene, you are now on the right track. It is a fact that large businesses are unable to produce the breakthrough inventions they need to prevail in their markets. What they lack in inventiveness they make up for in lobbying, massive media propaganda campaigns painting their victims as evil trolls, abuse of the process of law, and yes industry wide conspiracies whose goal is to subvert the rights and steal the profits of the real inventors.

    We need a thorough investigation into the conduct of the companies involved in persecution of Rambus. It is my hope that the deal that Justice gave to the ringleader will not protect them from being prosecuted for for their conduct.

    I believe that such conduct goes far beyond the players who did their best to do in Rambus and believe that it is time to give all the members of the Coalition for Patent Fairness much closer scrutiny.

    I believe that RAMBUS is an ethical company who is a victim of dirty tricks perpetrated by a number of other members of the “Coalition for Patent fairness” & PIRACY.

    Both the USPTO and the group at the FTC who has attacked Rambus have become very open to carrying water for Piracy Coalition members.

    All of you need to do is start digging past the Piracy Coalition’s media propaganda and look for the truth. If you dig into the Rambus story you will find that there was collusion between makers of RAM and computer builders to exclude what was truly an incredible breakthrough in RAM design.

    Ronald J. Riley

  11. All quite a revelation, allegedly. Poor Rambus was “ripped off” of their RamBus invention in the JEDEC committee after all., just as the fable they concocted always postulated.

    Unfortunately, the “invention” that was allegedly ripped off, comprising “DLL on a DRAM”, “register on a DRAM”, “rising edge and falling edge clocked sense amp samplers” and “burst length technology (consisting of receiving data)” wasn’t exactly the assemblage of useless abandoned junk they presented to the patent office in 1990.

    When the actually wanted to synchronize transmitters and receivers to a clock in their RDRAM interface they used the technology of this patent:

    http://www.google.com/patents?id=QNkgAAAAEBAJ&dq=5485490

    no doubt a cause of more consternation than evidence remains of in Rambus’s well maintained corporate records when they went to sue Wingyu at Mosaid.

    When they wanted to receive “low voltage swing”signals on their Rambus they used the technology of this patent:

    http://www.google.com/patents?id=LqAgAAAAEBAJ&dq=5355391

    and abandoned the “clocked sense amplifiers” copied from their associates at Stanford and Horowitz’s graduate student’s thesis:

    http://www-vlsi.stanford.edu/papers/jag_thesis.pdf

    You’ll find that that document discusses the incorporation onto devices incorporating DRAM arrays of delay line PLLs as developed at Xerox and any number of other locations prior to “RamBus Inc’s” “invention”, along with any number of registers to provide control of any number of device operational characteristics, including the delay between extracting data from the DRAM core and presenting it to the device output pins.
    There’s also a casual statement of the obviousness of increasing the effective data rate for accesses to sequential data in the DRAM array by the use of multiplexing techniques.

    Unlike the RamBus patent, the Gasbarro thesis accomplished reduction of the practices both constructively and actually, rather than “suggesting” that a device might respond to receiving, for instance, “block sizze information” by receiving and storing some defined number of data transfers while providing no specific means of even decoding the “command” or “request” that allegedly would result in those operations, much less any actual technology that would carry out the task.

    It’s not that Rambus filed a “broad” patent disclosure as you opine that has allowed them to make such progress in vexatious litigation; it’s that they filed such a vague, non-specific and nebulous (where not flat out wrong and useless) disclosure. The particular genius of Rambus is their lack of any compunction about withholding material information known to them that would impeach the patentability, validity and the inventorship of Farmwald and Horowitz of claims that they gained specifically “directed at” existing competitive alternative technologies at the time of their prosecution and subsequently at the time of their assertion in court.

  12. @TIG,

    Are you aware that over $1B of total (Rambus and it’s antagonists) lawyer’s fees have been wasted in the last ten years of litigation?

    Given the best patent law firms in the land have been fighting so hard, how do you explain the fact that no one from Micron, Samsung, Elpida, nVidia, Itel, Toshiba, IBM, Mototrola, whatever, has made your argument stick either with the PTO or the Federal Courts?

    What are the odds that you know something that $1,000,000,000 doesn’t know?

  13. Does anyone know who TIG is? It is obvious what group they work for.

    I repeat that it is time that a bunch of corporate crooks are held accountable. Rambus has survived but how many other really inventive people and companies have expired with a whimper when faced with this kind of racketeering? How many inventions were stillborn and how many jobs lost?

    American ingenuity is legendary. It is the only thing which will allow us to survive globalization with some semblance of prosperity. The conduct of some transnational corporations is nothing less than treason.

    Ronald J. Riley

  14. The benighted Rambus investors find it clear and convincing that TIG is a kingpin in the global “cartelite” anti-Rambus conspiracy?

    How after the “victory” of being compelled to abandon exclusionary rights that have been claimed and tried against JEDEC compliant DRAM interface specifications could anyone think that there’s any problem with Rambus’ monopoly on “bus” (any bus) gained through claims allegedly based on their 1990 “invention” that they’ve never used?

    No one could possibly think that Rambus has ever been “obstructive at best” in their discover obligations in civil cases within the United States and around the world, or that they have been “misleading at worst” in their testimony in support of their ever-expanding exclusionary rights. No one could possibly come to the conclusion that, in its litigation campaign, Rambus exhibited an abusive disregard of its obligations in adversarial proceedings in our courts including: “failure to list documents on its privilege log , false and misleading testimony by Rambus executives, obfuscatory discovery responses, refusing to admit facts not genuinely at issue (e.g., date of Rambus’s JEDEC membership), and destroying documents before suit but after sending cease and desist letters to Infineon”. Who would ever think that they have engaged in a venue shopping expedition to find a favorable district and jurist in which, and on whom their “privileged litigation strategy” would produce their desired engineered outcome (other than at least four judges at the federal level in various capacities)?

    Ignoring for a moment my “obvious” involvement with the thieving, price-fixing memory cartel, so cleverly deduced by the geniuses who have had the incredible foresight to invest in the bargain-basement priced securities of this wonderful “company”; let’s think for a moment about what the public will gain on April 18, 2010 as a result of Rambus’ inventive disclosures to them.

    Will they gain the ability to make, sell and use the basic means by which a Rambus device (an RDRAM of the Base, Concurrent or Direct generations) generates internal clocks to control the transmission and reception of data to and from the various components on which those interfaces can be implemented (RAMs, ROMs, FPUs, Disc Controllers, Video Interfaces, Bus expansion devices, Bus Bridges, etc. etc.)?

    Apparently not, since the actual basic means of that synchronization doesn’t involve the generation of a single clock and its complement “with zero skew relative to all the other device clocks”, so that when the public is allowed to implement the teachings of the Farmwald family of patents, their abilities to transmit and receive information “synchronously with respect to an external clock” will be actually impaired and inferior to the ability that Rambus has surreptitiously provided for itself as embodied in the teachings of “Wing’s patent” referenced above:

    http://www.google.com/patents?id=QNkgAAAAEBAJ&dq=5485490

    Where the “method for clock synchronization” implemented by the Byzantine waste of die area, power, transistors and brain cells disclosed implements a technology that results in very beneficial and useful skew from device to device along the “Rambus” of separate transmit and receive clocks which independently “operate” “transmitters” and receivers in modules along the bus. These clocks, rather than being aligned to effect a “low skew” in their timing by being synchronized to a “midpoint” between active edges of sampled at a module at two nodes of the characteristic “Rambus” clock loop are rather derived independently to implement the scheme of the 1992 Gasbarro et. al. patent:

    http://www.google.com/patents?id=ekYiAAAAEBAJ&dq=5432823

    where the skew to be minimized is taught to be that between internal transmit and receive clocks derived independently from “Clock to Master” and “Clock from Master” and through their skew relative to other “device clocks” resulting in a useful solution to the transmission and reception of data within a Rambus system (not that anyone could give a hoot about a Rambus system).

    Now I don’t want to belabor the subject (yeah, right) but we can discuss all of the other alleged “inventions” of the Farmwald family of patents (they’re all of similar quality) and evaluate the bounds of the Rambus properties established by the associated claims if some entertainment would be derived from such an exercise. I’ll just wait a while on that until I’m corrected in my misunderstandings above by the erudite and technically skilled heard of Ramboids that police the thoughts expressed by “Rambus bashers”, “naked shorts”, “cartelite stooges” and “corrupted hacks”.

    Rambus’ “ingenuity” may or may not be unparalleled, but as far as their provision for useful improvements on the prior state of the interface arts in the “invention” disclosure that they claim to be the basis for the reduction to and its relation to claims that a reasonable person of ordinary skill in the electronics arts would give them rights within the synchronization of data to clocks within a synchronous interface system would have good reason tho be entirely at odds with their litigation position; not to mention being of the opinion that they are bald faced liars engaged in a racketeering operation involving abuse of the patent system and legal process. If there’s anyone confused enough to think that in giving Rambus a moment;’s benefit of the doubt as to their actual contribution to prosperity through honest contribution to the advancement of the useful arts and sciences, they’d better become disabused of that falsely solicited notion quickly.

    And as far as some jingoist appeal to a false sense of patriotic duty to uphold the actions of charlatans and snake oil salesmen intended to result in their unjust enrichment at the expense of the public, one can waste one’s breath preaching to the holders of Rambus litigation lottery tickets.

  15. TIG,

    Not everyone posting here is a Rambus investor, just like not everyone who bashes Rambus is working for a memory manufacturer. The story is extremely interesting in the eyes of the law.

    The fact is, there is massive evidence of collusion and price-fixing by the memory manufacturers (MM’s). They have admitted to this basis via the guilty pleas, monetary fines and executive prison sentences when they charges were brought up by the Department of Justice. To argue otherwise is silly.

    What is also silly is you quoting Judge Robinson’s Delaware decision. Although you integrated select quotes from her so nicely in your message, it is too bad her decision will definitely be overturned. Her finalized ruling will go up along with Judge Whyte’s favorable spoilation ruling for Rambus to the CADC to settle this mess. If you had read both decisions, it is clear which one was more thorough and well analyzed. Judge Robinson’s decision also goes against Aptix, where it was held even if spoilation was true (and in Aptix there was no question there was), that you cannot take away inventions and decide they are unenforceable and invalid.

    Also, please do not talk about forum shopping for favorable court venues. Hynix chose the Northern Distric of California and look where that got them. Also, keep in mind, Rambus has won a significant portion of their litigation saga and has NEVER lost on appeal. Either $1 billion spent and a bunch of judges are crooked, or your reasoning is misguided. I will give you the benefit of the latter.

  16. Well, there are signs of life after all. But the response isn’t adequate to enlighten me as to the error of my ways in thinking that the “clock synchronization technologies” of the patents that Rambus has brought to suit and which form the basis of their “DLL on a DRAM” claims isn’t at all the means by which a Rambus device is synchronized to an external clock for the transmission and reception of data or anything else and that the circuitry allegedly supporting claims they assert against anyone who would implement a “DLL on a DRAM” is in fact incapable of operating in any mode that they have found acceptable to be implemented i any of the devices that they have caused their licensees to brand as being “Rambus”. It hasn’t dissuaded me from the conviction, which seems adequately well founded in documents produced by Rambus, but not discovered to the court or their adversaries in the litigations Rambus has brought about, that other means not generating a single “true system clock” and its complement aligned to other such internal clocks derived by other such circuitry in modules distributed along their Rambus is the actual “best mode” in which they had intended to operate their Rambus, while at the same time they continued to prosecute claims against the publics use of the preexisting technologies of “DLL” and “PLL” on the basis of a useless and discarded disclosure of alleged “invention”.
    You’ve said:

    *******

    “Not everyone posting here is a Rambus investor, just like not everyone who bashes Rambus is working for a memory manufacturer. The story is extremely interesting in the eyes of the law.”

    ——-

    Well, the first two statements are true of me. Whether “the story” is interesting in the eyes of the law or whether its simply a nuisance that no one wants to dispose of once and for all is another question. I’d prefer that the law be more interested in the truth of matters in which there are justiciable adversarial positions taken by parties before it rather than the “stories” that some of them tell. In too many cases plaintiffs and defendants concoct “stories” to be told to our courts in lieu of the truth; this appears to be a practice that Rambus decided to adopt at a point in time concurrent with formulating their “Lexington” litigation strategy in response to the foreseeable failure of their Direct RDRAM product in the marketplace.

    *******

    “The fact is, there is massive evidence of collusion and price-fixing by the memory manufacturers (MM’s). They have admitted to this basis via the guilty pleas, monetary fines and executive prison sentences when they charges were brought up by the Department of Justice. To argue otherwise is silly.”

    ——-

    All of which is immaterial to the patentability of Rambus’ alleged “inventions” either those purportedly arising from the Farmwald et. al. ‘898 filing of April 18,1990. To argue that anything else has any bearing is rather sillier than what I’ve argued and you are in the process of leaving thoroughly and defectively un-addressed.

    *******

    “What is also silly is you quoting Judge Robinson’s Delaware decision. Although you integrated select quotes from her so nicely in your message, it is too bad her decision will definitely be overturned. Her finalized ruling will go up along with Judge Whyte’s favorable spoilation ruling for Rambus to the CADC to settle this mess. If you had read both decisions, it is clear which one was more thorough and well analyzed. Judge Robinson’s decision also goes against Aptix, where it was held even if spoilation was true (and in Aptix there was no question there was), that you cannot take away inventions and decide they are unenforceable and invalid.”

    ——-

    Judge Robinson’s decision seems rather clear and well founded to me. Rambus has repeatedly lied under oath in her court and in other venues about the extent, motivation and even the times at which it carried out its “document retention / destruction” (their words) activities. They made perjured testimony in the Virginia court, before the FTC and in the Delaware court on numerous occasions and instead of complying with duly issued discovery orders into at least those activities (I’d argue that they’ve not complied with any discovery obligation at all, and have good reason to believe I can prove it) they falsely claimed privilege, withheld material information from the courts, ascribed their activities to be in compliance with advice of outside council when no such advice was given and in general abused the court’s good graces and deliberately stood in an obstructive position against proper and reasonable inquiry into their handling (and particularly destruction) of information material to the resolution of their case. In particular, they looked to retain what they believe would support the “inventorship” or “conception” of a variety of “Rambus technologies” by Farmwald and Horowitz prior to the date at which they became members of JEDEC. This is similar to the fashion in which Paul Michael Farmwald made claim that he actually conceived his “Rambus technologies” while at MIPS. prior to becoming aware of the work of the IEEE Scalable Coherent Interface committee. Judge Robinson’s ruling addresses the perjured testimony and obstreperous behavior of Rambus by declaring the claims of patents they’ve asserted against Micron in her courtroom to be unenforceable against Micron in her courtroom. Judge Whyte can play private appeals court for Rambus in that instance as he has in any number of instances if he feels like it, after all it’s his court; although it’s not the CAFC. Which segues nicely into our next topic, doesn’t it.

    *******

    “Also, please do not talk about forum shopping for favorable court venues. Hynix chose the Northern District of California and look where that got them. Also, keep in mind, Rambus has won a significant portion of their litigation saga and has NEVER lost on appeal. Either $1 billion spent and a bunch of judges are crooked, or your reasoning is misguided. I will give you the benefit of the latter.”

    ——-

    No I won’t bother talking about forum shopping. Rambus just decided to attempt to vacate any and all cases pending in their litigation frenzy into NDCa on the first hint of a favorable ruling and vacate everything out of EDVA, for instance and now DeD is not a particularly favored forum in which to tell their “Rambus story”.

    I will talk about their losses in their litigation saga, however, just to fog your rose colored glasses a bit.

    They lost the appeal of rejection of their patents by the TBA reviewing the action of the EPO.

    They lost every case they filed in Europe. That’s England, Germany, France and Italy not buying into their “story”.

    Of course they lost in Infineon I and Infineon II, but Infineon decided to use them as an attack dog against the rest of the industry in the hopes that they’d gain some advantage while a thinly veiled campaign of trade libel was carried out by Rambus in its “protected petitioning” of the courts for “redress” (apparently for not having been able to gain a monopoly over data interfaces with the “Rambus” they patented in 1990 but never found useful enough as an entire invention to actually induce the production of).

    They “won” briefly before the FTC’s ALJ on the basis of their patent “ideas” and “concepts” being just so darned gosh awful full of awesomeness and complicated and stuff that that ist sure shouldn’t make any difference that they would become abusive, expansionist monopolists if anybody took seriously the notion that the useless bile of incoherent drivel they filed in 1990 was the “one true bus” and the “foundation of all modern digital electronics” the way they peddle it when they’re not laughing up their sleeves at how gullible some people are.

    Almost finally, they lost badly in Delaware as you seem to have noticed.

    They’ve also lost in the Northern District of California, where they’ve been deprives of their independent rights going forward to preclude the manufacture of devices incorporating the alleged “Rambus inventions” at suit by Hynix which comply with the JEDEC SDRAM standards.

    Oh, and by the way, they lost on appeal of Infineon I, where Judge Rader affirmed:

    “The district court found that Rambus’s misconduct included: failure to list documents on its privilege log, false and misleading testimony by Rambus executives, obfuscatory discovery responses, refusing to admit facts not genuinely at issue
    (e.g., date of Rambus’s JEDEC membership), and destroying documents before suit but after sending cease and desist letters to Infineon. Although arguing that the award of fees was improper under § 285, Rambus addresses only the claim construction and the fraud grounds. In sum, Rambus does not contest the district court’s holding of litigation misconduct.”

    Now, none of this stuff has invalidated their Farmwald family of patents in the U.S.

    That’s what happens next, though.

    Now, as requested, enlighten me as to where I’m wrong in thinking that Rambus, by withholding material information known to them at the time of filing of their original patent application and a growing and even more material set of information they were aware of when continuing to prosecute claims against continuations and divisionals known to them to have no utility whatsoever in the making, selling or using of any Rambus device or any RDRAM or other DRAM has not engaged in fraud against the people of the United States through their Patent and Trademark Office and dealt inequitably with the public by extracting valuable rights in patent in exchange for a pile of useless nonsense.

    Have at it.