Here's the whole exchange from itclyr:
Yahoo
by: itclyr 01/31/01 10:18 pm EST
Msg: 215726 of 215896
Thanks to Jim Kelley for taking the notes from the shareholders meeting. I just wanted to post a quick clarification on one point. Jim wrote:
"- Comments on the 'obviousness' of Rambus patents:
Rambus was being told in the early 1990s that they were nuts to propose such a radical new memory by the manufacturers. The proposal that was met with high skepticism then has now become obvious to the litigants."
The first sentence has legal significance but the second sentence makes no sense. When a defendant (e.g. Infineon) asserts as a defense to a claim of infringement that the patent is invalid because it was "obvious" (i.e. a routine engineering development) over the prior art, a patentee can rebut the invalidity defense by showing that the invention was initially such a radical change that persons working in the field didn't believe it would work. The general principle here is that a solution met with sneering disdain at first but ultimately acknowledged as sound cannot, as a matter of law, be considered a mere obvious modification of existing designs. It appears that Rambus will be introducing testimony that engineers/scientists circa 1990 initially scoffed when shown Rambus' architecture. This is a legal point a court (or jury) must consider when deciding whether the patents are invalid for obviousness.
ITC
question for itclyr . . .
by: LOUMFSG (35/M/San Francisco) 01/31/01 10:47 pm EST
Msg: 215731 of 215897
itclyr - I have a question for you. Hyundai had 4 claims in their original complaint against RMBS. RMBS motioned to dismiss three of them, and was successful on Claim 2. Claim 1 is still open, and seems to hinge on the JEDEC argument fitting within the "knowing and willful fraud within the meaning of Walker Process" exception to antitrust immunity for patent-holders (if you assume Tate is correct when he claims "illegal tying" is not an issue). Claim 3 seems to follow Claim 1. Is this a fair summarization? Also, Claim 4 - "Breach of Contract - Promissory Estoppel" was not addressed by RMBS. I don't have any feel for what is involved with this claim, (or has it been dropped?)
My last question is this: If RMBS is successful in defending these claims, it would still have to prove patent infringement by Hyundai (I guess they will get their first shot in Europe). Would that be a "slam dunk" if RMBS wins the anti-trust case, because Hyundai's defenses would have already been shot down, or could you see RMBS winning the anti-trust case, but losing a patent infringement case anyway. Thanks in advance.
by: itclyr 02/01/01 10:01 am EST
Msg: 215781 of 215896
Lou, I think your summary is a fair one. "Walker Process" is a famous 1965 US Supreme Court case holding that it is at least possible for a patentee to be guilty of an antitrust violation by attempting to enforce a patent it KNEW was invalid. The burden of proof is EXTREMELY high in establishing an antitrust claim under Walker Process, even higher than establishing an inequitable conduct defense for patent infringement, which itself is extremely high. I don't see any way a Walker Process claim could be successful against RMBS.
Nonetheless, every patent defendant who has even a ray of hope on inequitable conduct (which is a defense to an infringement claim) also generally raises an affirmative claim for relief on its own by asserting a Walker Process antitrust claim. It uses the same conduct to play offense instead of defense.
The main point to remember is that Walker Process claims are essentially never successful. In fact, I sometimes wonder why they are even raised since it tells the patentee very clearly that the defendant is grasping at every straw it can reach.
As for your second question, yes it is quite possible to win on the antitrust case and lose on the infringement claims. They are pretty much independent.
ITC
Re: question for itclyr . . .
by: LOUMFSG (35/M/San Francisco) 02/01/01 10:32 am EST
Msg: 215794 of 215896
Thanks, itclyr. I understand that the antitrust and infringement cases are independent. In this particular case, however, do you see Hyundai having much of a defense against infringement if they lose their antitrust case. I have the impression that the infringement defenses all center around the patents being invalid. If the patents hold up under the antitrust case, do you think Hyundai would give in at that point, choosing not to risk losing a patent infringement case?
Re: question for itclyr . . .
by: itclyr 02/01/01 11:14 am EST
Msg: 215809 of 215896
The antitrust claims are in my opinion merely chaff ejected by Hyundai, Infineon and MU to raise RMBS' litigation costs and divert lawyer time better spent elsewhere. I doubt that in any of the defendants' minds there is much significance to them, so I don't think they'll "give up" if they lose on the antitrust claims. More to the point, those claims are likely to be resolved AFTER the infringement issues, not before them.
There are two basic aspects to the defenses raised by Hyundai, Infineon and MU. First, they claim traditional invalidity defenses over prior art. I haven't reviewed the prior art, but would have suspected much more press if any of the defendants had found anything. More to the point, we'd have far fewer licencees (like Samsung, Toshiba, etc.) if there were anything that COULD be found. I suspect that the prior art defenses are weak, which is why the defendants are pressing the inequitable conduct defenses based on JEDEC. This in my opinion is the ball game.
From what I've seen, I think RMBS has the better likelihood of prevailing, but I've been in enough trials to know that if Hyundai can portray RMBS as the villain, and make them look like cheap shakedown artists who really didn't invent anything of consequence, then RMBS could lose. But I don't think that will happen, since RMBS will have the best legal talent available trying to prevent it. My thoughts aside, the market seems to think that the RDRAM v DDR issue is important to RMBS' future, so unless RMBS can begin to make the case we've seen on this board about new revenue streams outside memory like SER/DES and controllers, we may find ourselves just drifting with the market until SOME court decides this issue one way or the other.
If RMBS loses the first court case, the war isn't over, because RMBS will have to lose everywhere (or nearly so) to lose the war. Remember that the defendants are dealing with actual products being sold. If they are locked out of selling in an important country like Germany or the US, they can't make a profit. So if RMBS wins anywhere, anytime, they're in deep trouble, especially whoever loses first, since RMBS has already said that company won't be licensed. It's high stakes and not for the faint of heart. But from what I know, my money is still in RMBS, not MU, Hyundai or Infineon.
ITC |
