To: Binx Bolling who wrote (16091 ) 10/25/2000 11:08:44 PM From: Ausdauer Read Replies (3) | Respond to of 60323 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 bea 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. Ausdauer