Upon review of the allegations in the Hitachi litigation, and the claims in the Dell case, it does not appear that there is a very compelling analogy in support of an FTC complaint.
In the Dell case, "a Dell representative allegedly certified that he knew of no patent, trademark or copyright that the bus design would violate." The Dell rep also voted in favor of the standard. In reality, the patent had already issued in Dell's favor at the time of the vote. Dell then waited until the standard was adopted in the industry, and then attempted to pursue a patent claim. This is the essence of "sandbagging."
Here, unlike the Dell case, RMBS pulled out of the JEDEC meetings because, apparently, JEDEC was requiring that they disclose and/or waive their patent claims. There does not appear to have been any instance in which a RMBS rep certified that no RMBS rights were implicated, nor does it appear that RMBS ever voted in favor of the standard. Finally, the dispositive RMBS patents were not issued until 1999, unlike the Dell case where the patents had already issued at the relevant time. It does not seem like a very similar situation. Moreover, it would be a real novel concept if companies even participating in standards groups were compelled to disclose pending applications which involve processes or claims which the companies may also be seeking to protect through the trade secret process.
An FTC allegation may get some strong press, but it does not appear that a claim would be well founded based on the facts currently publicly available.
Prophet |
