Do we need to make a character judgement?
One final comment on the '987 patent defense.
I promise this will be the last comment on
the upcoming lawsuit for the remainder of 2000.
There appear to be 2 key issues on trial.
First, with the infringement judgement against Lexar Media
already handed down in April, the primary objective must be
a fervent defense of the '987 patent strengths. This will likely
involve a review of the expert testimony to date and whatever
additional information Lexar Media is allowed to present that
may undermine the validity of the patent. As I understand it
the patent is presumed valid until "invalidated" on whatever
grounds Lexar Media intends to present.
A second issue that has come up as a result of Lexar's recent
press release is the issue of whether SanDisk made material
misrepresentations regarding their (undisclosed) intent to
file '987 while the CFA hashed out the CompactFlash standards.
I reviewed the comments I made back in the Spring of 1999 when I
thought I had an understanding of the rationale for forming the CFA.
[The comments I refer to were made in my original G&K presentation.]
I was not aware of Lexar Media's position regarding the alleged
misrepresentation until yesterday. I had never heard this
argument made before and the only way to have specific insight
into this claim is to have been a CFA member at the time.
The court's opinion is that SanDisk did not violate any of the
written rules and regulations of the CFA, although this does
not completely absolve them of their duty to fair disclosure,
however this definition will be interpreted.
Clearly the intention was not to make CompactFlash a strict proprietary
standard that allowed one company to prosper at the expense of all others.
Conversely, the latest court rulings also indicate that the CFA had no written
rules against a company seeking recognition for proprietary technology
which could contribute to the eventual success of the standard.
________________________________________________________________________
Look back at the original formation of the CFA.
Ask yourself the following...
Who were the players involved?
What did they bring to the table?
As it turns out, SanDisk was probably the only member
specializing in flash storage at the inception of the CFA.
Other OEM's likely had other interests, either helping to form
standards so that they may have a head start in incorporating
the CompactFlash slot functionality into their products, or to
develop non-storage modules for the socket.
Here is a paragraph from the CFA site that describes the early founders...
The CFA was founded in October 1995 by Apple Computer Inc., Canon, Eastman Kodak Company, Hewlett-Packard, LG Semicon, Matsushita (Panasonic), Motorola, NEC, Polaroid, SanDisk, Seagate and Seiko Epson. The CFA now has 49 member companies. The latest firms to join include such major industry companies as FUJIFILM Microdevices and Fujitsu Computer Technology.
Recall also that SanDisk had already developed the complete
CompactFlash card in 1994...
CompactFlash™ is a very small removable mass storage device. First introduced in 1994 by SanDisk Corporation, CF™ cards weigh a half ounce and are the size of a matchbook. They provide complete PCMCIA-ATA functionality and compatibility pluse TrueIDE functionality compatible with ATA/ATAPI-4. At 43mm (1.7") x 36mm (1.4") x 3.3mm (0.13"), the device's thickness is less than one-half of a current PCMCIA Type II card.
It would seem at the outset that the basic specifications of the
CompactFlash card were already pretty well known before the CFA was even
formed given that SanDisk already had a functioning prototype
(which was probably already trademarked) in 1994 before the CFA was convened.
If I had been the second CompactFlash storage card manufacturer to
sign up for the CFA I could imagine asking myself exactly what technology
SanDisk, the inventor of CompactFlash memory, would be willing to
part with for free and whether it would be reasonable to expect
that I should get that technology without paying anything for it.
Only the CompactFlash Association membership knows what
was discussed at their meetings and what reasonable expectations
could be constructed as a result of their participation.
SanDisk appears to have given the trademarks for CompactFlash
to the CFA for its free distribution amongst members.
"Specifications" for the card were also made freely
available. My interpretation of "specifications" has always included
things like physical dimensions, number of pin connectors,
operating voltage and the like. Clearly the final products would
also need to conform to the minimum standards for any marketable consumer
memory device such as reliability, durability, flawless interface
with CFA certified host devices, etc...
"Specifications" might mean different things to different people.
Personally, I believe it would be hard to confuse a "spec" with
a proprietary technology that was utilized to meet a spec. That is,
you could, for example, create a memory product that conforms to
all the CompactFlash "specs" that used an alternative
"proprietary" form of non-volatile RAM memory that fulfilled
all the required performance specifications demanded by the CFA.
Would this still be a CompactFlash card? Yes, I imagine it would be.
Would it have some proprietary technology incorporated into its design?
Yes, probably so.
What did SanDisk promise to the second and third and fourth tier members
of the CompactFlash Association who joined expecting to make CompactFlash
storage cards? What was SanDisk required to disclose? Did they violate
CFA regulations by failing to disclose the '987 filing? Did
CFA members react violently when they learned of the filing?
These are all questions that none of us can answer.
It will be interesting to see how things unfold once these types of
details are exposed. In the end it comes down to a character
assessment. Is SanDisk management deceitful and underhanded?
Is Mr. Reimer's account of the sequence of events accurate or have
facts been twisted so as to be useful in their own legal defense.
Is it something inbetween?
To me, its a tough question.
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