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Micron Seeking Amnesty in DoJ Antitrust Probe?
deaddeng writes "Memory maker Micron Technology is allegedly seeking amnesty from a US Dept. of Justice grand jury investigation of price fixing, collusion, and antitrust by the memory industry, according to numerous news services, including the LA Times and Reuters. Last week, a Micron regional marketing employee pled guilty to charges brought under the same DoJ investigation for destruction of evidence and lying to the grand jury. The DoJ is investigating charges that major memory makers colluded to prevent the success of Rambus memory favored by Intel, and once that was achieved, colluded again to raise prices for DDR-SDRAM in 2001-02. If Micron is granted amnesty, it can keep its executives from facing criminal prosecution, but it may still face civil court challenges."
I can see the +5 funny posts now:
./, I don't know who to cheer for!"
"Wait, geeky price-fixing is evil! But patent-abusing RAMBUS is evil, too! Who's the good guy, help me
Don't be fooled into thinking there's a good guy in all of this. There isn't. There is, however, a bad guy, and it's called capitalism.
And Rambus Inc.'s practices are better?
Case in point for why being a responsible consumer can actually pay off for the person doing it. The average computer repair shop has a regimen of troubleshooting/burn-in tools that while effective for diagnosing many simple problems is simply not representative of the actual uses and requirements of their customers. At the place I pick up my systems from, the process is tailored to the uses the consumer has for the equipment -- they start with the standard toolkit (POST card, power supply checker, RAM tester, troubleshooting diskette, virus scan, 3D benchmarking suite), but will also try some of the latest games, office software, and any of the stuff you bring in for them to test (basic hourly fee applies if testing goes beyond two hours.) They even run some stuff past the web browser; apparently, certain web features demonstrate sound or display problems even among the same versions of a web browser on different systems due to often overlooked plugin incompatibilities, and some OEM systems come without certain "webfonts" that these guys will put on to make web pages look more like the designer intended. One has to pay a little more for this level of service, but the result is a finely-tuned system without the weeks of learning PC/Windows fundamentals.
Service varies a great deal depending on where you go. Some businesses are just skimming along without a good deal of regard to the customer, but others are more than eager to throw in everything but the kitchen sink for something like 120%-150% of what the skimmers charge. Local businesses competing against chain stores realize that every edge is important in remaining viable, and their owners/employees tend to be pretty cool people.
Unfortunately, what we're talking about here is the consumer's choice being limited to two giants: SDRAM and Rambus. This isn't to the benefit of the customer, and I feel strongly that we need to request another standard of memory that is truly Open and Free so that anybody can manufacture it without a patent submarine or limiting consumer freedoms. The playing field is so restricted right now that we're pretty much beholden to pay what they charge if we want the product, and whether or not they're taking unfair advantage of it this isn't a situation that is to our longterm benefit.
Try not. Do or do not, there is no try.
-- Dr. Spock, stardate 2822-3.
The DoJ is investigating charges that major memory makers colluded to prevent the success of Rambus
So? Yeah, beat 'em down if they were fixing prices, but I'm not so upset w/ a conspiracy against Rambus. Hell, if they asked me, I would have joined up!
I have a hard time remembering who are the good guys and who are the bad guys. We still hate the RIAA and love Linux, right? We've got so many jihads, I can't keep them straight!
If this were a socialist country, or Micron was a monopoly like Microsoft, then such a thing would be possible. However, this is a free market, and any company who wants to sell a lot of RAM would not join a price fixing collusion, but exclude themselves from it. If Micron was doing such a thing, why wouldn't Crucial, Buffalo, Geil, Kingston, and so forth lower their prices and blow the competition away? Most of what happened was because Rambus RAM was attempting to become an overpriced proprietary monopoly (and fortunately failed), plus that huge RAM factory burned down in 2001.
Obviously, a rival is bribing -- I mean, influencing through political contributions -- high-ranking officials to target Micron alone. Perhaps RAMBUS wants to be like SCO and take honest people to the grave with them? Micron deserves amnesty.
Not that it is much of a similarity in actions, but the end goal reminds me of the Roxio case discussed earlier on /.
From a Slashdot Discussion earlier on the Roxio case
To see a world in a grain of sand, and then to step back and see the beach where the sand lies
of course, if I requested amnesty for strangling a child to death, it would be a different story. it's not that different you know.
Cretin - a powerful and flexible CD reencoder
Rambus, Inc.'s misbehavior is well-known, so Micron is hardly alone here. If Micron is guilty of collusion, the pregnant question is, "With whom were Micron colluding?"
You might get it - or at least a light sentence.
Clear, Dark Skies
The point is almost well made. The issue is that if they were colluding then it had to be with OTHER large manufacturers to fix the prices. You can't actually collude on your own, the whole point is that you are working with others.
So maybe what the DoJ is doing is going after the one where they have the evidence in the knowledge that this will cause the others to fall as well. The RAMBUS issue is a mute one for the same reason that Passport failed for Microsoft, an existing monopoly wanted to make more cash by supporting an standard they felt they could make cash out of while trying to lock others out.
And on a final point, RAM is cheap, its getting cheaper at Moore's Law rates, and the margins are not insane. Why doesn't the DoJ go and have a look at other areas where companies charge 69% margins on their products, or even more. De Beers ? Microsoft Office ? In a free and open market how is that possible ?
An Eye for an Eye will make the whole world blind - Gandhi
One is a political ideology, the other is an economic philosophy. Unfettered corporate capitalism leads to fascism (the state regulation of the economy) in that the state becomes a tool of the corporations, rather like you see in the USA today. A well-structured capitalist society *requires* government intervention, for the same reasons a well-structured civil society requires government intervention (in the form of the police, and the judicial arm of the government). Even if you ignore the travesty of corporations-as-entities as practiced by the USA today, and concentrate on corporations-as-public-charters (such as the the US had before about 1880 or so), you still need regulation and monitoring. Otherwise, the biggest corporations will carry the most power, and therefore have the ability to "regulate" (in the political and economic sense) the functioning of corporations of lesser power. This is why the US has the Sherman Act, and anti-trust laws. Now, these laws are not followed, as is evidenced by the recent anti-trust ruling against Microsoft, and the refusal by the US government to follow through on any meaningful penalty. But, even criminal law doesn't work against corporations, as seen by the recent inaction of the US government against the Enron corporation, and its executives responsible for those crimes. The "true principals of capitalism" work no better than the true principles of communism. (*NOT* that there has been an implementation of true communism, except on extremely small scales. The most we've ever seen practiced by as large as a country is socialism.)
Crucial is owned by Micron. Its a memory seller. That's why here in Boise, ID (Mircon's HQ's) we have the Crucial.com (TM) Humanitarian Bowl at Boise State.
Take Two entertainment has revealed plans for a new GTA game. It is said to be about the memory maker giant Micron and there practice to "kill the Rambus makers". I guess Tommy Vercetti is suppose to take out corporations that try to get any part of the market share. Sounds kinda interesting.
Too many people are passive consumers. That's why you can't buy a TV that lasts more than three years anymore, that's why you can't legally play DVDs under Linux, and that's what's gonna get us all DRM in our hardware. Modding someone down who happens to believe in supporting your local economy instead of the multinational clusterfsck where we all work 80 hour weeks for $4/hr seems to be the action of someone in fundamental denial of our situation (and their power as a customer).
I never vote for anyone. I always vote against.
-- W.C. Fields
...and I'll freely admit that I haven't RTFA yet...
but Rambus surreptitiously cuts a deal with Intel to make their patented technology the new industry standard for memory, and when it backfires, the rest of the industry is guilty of collusion against Rambus?
The inmates are running the asylum, kiddos, and it's getting nuttier by the minute!
Blogging Weight Loss, Distance Education, and more at verlin.com
I think it is time that we make individuals inside organisations accountable and make laws that they are not able to hide behind a corporate legal enity.
The manager screws things up? than that manager has to be accountable.
If lower rank personel makes a mistake they often see themselfs without a job and lot of troubles.
I want the same for managers, full accountability for the person that screwed up.
This is also saver for a company as a whole as it can go on without having a bad rep if their management instead of the corporate legal entity was made accountable.
Arrrggghhhh. It is amazing to me that we move quite a bit quicker on Stewart and on this while we seem to be ignoring two of the worse stock manipulations yet.
You don't mind memory makers getting together and artificially inflating the price you pay for RAM? How interesting.
VHS
Betamax
VHS
Great Taste
Less Filling
Great Taste
Less Filling
Kirk: Emotional
Spock: Logical
Kirk: Emotional
Spock: Logical
Rambus
DDR-SDRAM
Rambus
DDR-SDRAM
At least 2 choices is better than 1, as long as both choices can be kept viable enough to prevent the other one from becoming a monopopoly. That's when you really get stuck with high prices and no choices.
Where the hell was the FTC when all this started? Rambus sucks, they are scumbag Intellectual Property company and no more. They didn't develop shit, they stole the designs from conferences and got a patent, and proceeded to sue the real inventors. Nice. Anyway, dirty tricks were the only way DDR makers could compete against Rambus. Intel all but shut out DDR makers.
I'm a lawyer, but IMHO, isn't it better to use a standard that is cooperatively shared amongst several companies than to use a monopolist's standard? Isn't always cheaper to buy the product from the competitive market than the monopolist?
Please, this is more insane head-up-ass thinking from dubya's washington. They are big business's guard dog, and they are merely protecting their master's house - master being the most corrupt corporations ever.
It just kills me that Rambus contends that the memory makers colluded to keep DDR memory cheap to price RDRAM out of the market, but Michael Dell says that they colluded to raise the prices of DDR to make Dell, et al, pay more money for memory.
Other than Samsung, the other major DRAM companies were in very real danger of running out of money - even Hynix, with its government subsidies, so keeping prices low just doesn't make sense. And if the aim was to raise them, well, they did a pretty piss-poor job.
So, since Bloomberg is running a story based on rumors, I'll make a wild guess of my own and say that I doubt that Micron is cutting such a deal because there wasn't any collusion at all.
-h-
The whole Rambus debacle has a lot of layers to it. It includes Enron, the Bush's, Micron, et al. Take a good look, this is big business being true to form. As a company, Micron is one of the better behaved, but when billions of dollars start flying around unfettered or watched, bad things happen.
Remember when every technologist under the sun was poo-pooing Rambus, that every stock analyst was pumping them up. Rambus was one of the darling stocks for the longest time despite a lack of positive cash flow or any real manufacturing capacity. Enron was responsible for a pump up in the DRAM markets before, during and after the plant fire in Japan. From one perspective, this seems like good business, but from another perspective it looks like collusionary and wrong. My spin is that it was an unethical but perfectly legal business practice. Enron got a little greedy and, well, the rest is history. They did a lot of very bad things. The Bush's get in there through Enron's energy division and their buddy Tom White, now secretary of the Army (OBTW, only two people were directly responsible for the day to day ops of the energy division at Enron and the other guy was exonerated from wrong doing over the energy crisis in California...that leaves guess who).
Like I said, lots of layers (and a good consipracy theory). It is also business as usual for the people with power and money every where in the world in all moments in history.
Just thinking out loud...cheers.
[RIAA] says its concern is artists. That's true, in just the sense that a cattle rancher is concerned about its cattle.
Yeah, but get caught smoking your first joint and get 20 to life. Our justice system has it's priorities backwards.
The following is testimony from the FTC trial showing how Bert McComas help Micron, Infineon and Hyundai collude on RDRAM production.
1567. In April 1998, Bert McComas, an industry consultant, gave an "exclusive" seminar for DRAM manufacturers about Intel's selection of RDRAM (Rambus memory). (RX 1138 at 1; Tabrizi, Tr. 9061-62). Mr. McComas pre-cleared his seminar invitation and list of topics with Mr. Tabrizi. (Tabrizi, Tr. 9064).
1568. Mr. McComas's invitation asked its recipients not to forward the invitation to Rambus or Intel. (RX 1138 at 1). A few days later, Desi Rhoden (now Chairman of the Board of JEDEC) sent an email to Mr. Tabrizi about the attendance restrictions. (RX 1149; Tabrizi, Tr. 9064-65). Mr. Rhoden's e-mail stated that he knew McComas and that his "main focus appears to make sure that Rambus and Intel do not attend and therefore has been very restrictive on who can attend. If he says everyone except Rambus and Intel, then it is restraint of trade; while if he says only suppliers, then most of who he wants can attend without there being a charge of restraint of trade." (RX 1149 at 1).
1569. During his April 1998 seminar presentation to the DRAM manufacturers, Mr. McComas stated that a manufacturer that chose to build RDRAMs was making a "guaranteed bad bet for margin enhancement" (RX 1482 at 12), and he stated that RDRAM "deepens [the manufacturer's] financial dilemma." (RX 1482 at 26). As a "possible strateg[y]," Mr. McComas suggested that DRAM manufacturers "tape out but do not fully productize or cost reduce" the RDRAM device, in the hopes of "resist[ing] popular deployment" of RDRAM. (RX 1482 at 34-35).
***************
1571. Mr. McComas spoke at the June 25, 1998 SLDRAM Executive Summit about the problems faced by DRAM manufacturers. One of the "tactical" problems he identified was how to "Manage Price Competition, Profitability." (RX 1188 at 1). He also talked about how manufacturers could "Respond to the Strategic Threat of Intel/Rambus," and he asked the question, "Who will control the DRAM industry?" (RX 1188 at 1). McComas warned that "Intel/Rambus are using your money to take control of the DRAM industry" and that Intel would "[o]rchestrate early oversupply situation," and he emphasized that "[f]ragmented competition undermines all DRAM manufacturers." (RX 1188 at 26).
***************
1574. After the meeting, Mr. McComas sought Mr. Tabrizi's advice on how to implement the project of collecting RDRAM production information. (Tabrizi, Tr. 9076). In an August 1998 email to Mr. Tabrizi, Mr. McComas sent a draft message to DRAM manufacturers which stated that "[d]uring the critical production ramp-up phase of Direct Rambus, DRAM vendors will need a constant flow of information to help make wise decisions and to walk the fine line between a pleasant shortage and a disastrous oversupply." (RX 1232 at 1).
[Note, this is competitors conspiring to control supply]
Let's review the closing arguments in the FTC case. Pay close attention to Judge McGuire's questions.
FTC VS Rambus: Oral Arguments
JUDGE McGuire: All right, thank you, Mr. Royall. If you want, you can just stay up there, because I'm going to inquire of you, and then what I intend to do during this phase is to -- I have a few inquiries I want to make. Some of them will go to a party, and I won't require the other side inherently to respond. Other inquiries I may make will be open 1 questions for either side offered in their argument. With that in mind, having gone through all the arguments and the briefs, it is the argument of the FTC that the patent policy of EIA and JEDEC was clear. Now, one of the things that I'm challenged in this case to do is that -- what I intend to do is take the evidence that speaks to the policies themselves, the express terms of the policy, put them in one pile. In a second pile, I'm going to put all the evidence that deals with what we can call the course of conduct that occurred at the time in question. And in one other pile, I'm going to put all the evidence and the trial testimony after the fact and see if I can't make a coherent understanding of what the policy was. Again, it's your argument that the policy in this case was clear. In the context of just the express patent policies, and at this point not course of conduct and not any trial testimony on the issue, how does complaint counsel comport its argument that the patent policy required participants to disclose patents and patent applications when the EIA policy seemed to indicate and the correspondence to the FTC stated that the EIA patent policy is to encourage the voluntary disclosure of certain patents? How can I, trying to determine all the evidence on the express statements of the policy, put those two together and uphold your argument? MR. ROYALL: If I understand it, there are two questions there, and Mr. Oliver may want to comment on part of this, but one thing that I can say with respect to the question about patents and patent applications, obviously by October '93 -- JUDGE McGuire: Right. MR. ROYALL: -- the 21-I manual referred to patent applications. It's hard -- I do think that it is hard to fully answer -- to sever the manuals and the written evidence from the testimony, because there were understandings obviously that were key and there were 2 discussions in the meetings that were key, and Mr. Oliver went through a lot of that evidence today and what Mr. Townsend said. So, it's hard to sever the two, but the testimony from people like John Kelly -- JUDGE McGuire: All right, I'm not interested in testimony -- MR. ROYALL: Okay. JUDGE McGuire: -- in the context of this question. So, what your answer seems to be is I cannot base an interpretation on what the policy was unless I clearly invoke the course of conduct at the time by all the parties involved. Is that correct?
MR. ROYALL: Well, I think it's absolutely necessary to reach a correct factual determination here definitely to take into account the course of conduct and the testimony, yes. JUDGE McGuire: Now, if that's the case, the evidence shows that at JEDEC, we had some companies that clearly disclosed patent applications. We have evidence that other companies had not disclosed patent applications. If that's the case, then how does that speak to the clarity of the patent policy, and if, in fact, the policy was clear, then what does that say to how the policy was enforced in JEDEC? MR. ROYALL: I think Mr. Oliver may be better to answer, having worked with more of the witnesses on this issue. JUDGE McGuire: Go ahead, Mr. Oliver. MR. ROYALL: Before he does, could I -- just so we don't lose the question about the letter to the FTC, because you mentioned that? JUDGE McGuire: Well, that was part of the EIA policy, but go ahead and tell me. MR. ROYALL: If I could just cover that and 3 defer to Mr. Oliver on the other part. JUDGE McGuire: Go ahead. MR. ROYALL: I mainly would just point you to our briefs on this. Mr. Kelly's testimony was very thorough on this question of what he meant by encouraging voluntary disclosure, and he went through the ANSI and -- JUDGE McGuire: I understand that, and I understand -- like I say, I am going to analyze all this evidence in the context of three aspects of the evidence. The testimony at trial is going to speak for itself. The course of conduct at the time is going to speak for itself. And the express terms of the policy is going to speak for itself. MR. ROYALL: Yes. JUDGE McGuire: So, I don't have inquiries about the after-the-fact trial testimony. MR. ROYALL: Understood. JUDGE McGuire: Okay. MR. ROYALL: Perhaps then I could ask Mr. Oliver to answer your question. JUDGE McGuire: All right, Mr. Oliver. MR. OLIVER: Your Honor, as I understand at least part of your question is how one can reconcile the evidence with respect to EIA and with respect to JEDEC, and I believe that Mr. John Kelly was very clear on this in that the meaning of the word "patent" when used in the EIA materials included patent application, and the reason the 21-I manual was amended was in order to make that clearer. JUDGE McGuire: Now, how did he acquire that interpretation of the EIA policy including applications in the term "patent"? I mean, where did that come from? Because the EIA policy was in effect before the 21-I was published. So, where did his interpretation 4 come from that the term "patents" in the EIA policy included patent applications? MR. ROYALL: I apologize, Your Honor, for going -- no, please, stay up here. Because I handled Mr. Kelly at trial, I want to answer this, because he did testify when he arrived at EIA/JEDEC, in late 1990, he had meetings with the existing general counsel, with I believe the president of EIA, and they explained to him what the policies meant, and he explained that it was from that very time when he started that he was told and he understood -- and he never heard different -- that "patent" meant both patent and patent application.
...it is subsuming of the state to corporate/industrial interests, perhaps to the point where the CEO class attain government offices that oversee their activities; also the corporate state focus collapses into a narrow buildup of "real power" including the imposition of military values on society, and using the military to grab resources for said power structure. When things become tough and uncertain for multinational corporations, they may try to clutch onto state power and turn it into the means for their prosperity. The politicians will assume the nation prospers by proxy.
Communism on a large scale tends to have a similar result, except that the corporations are conceived by the state in the first place. When fascists try to "liberate" people from communists, they are fighting over identity: the nation/race/aristocracy vs the state/proletariat/masses.
Fascism is just what unfettered capitalism resorts to when it finds it does not live in an ideal world.
Personally, I prefer European social-democracy. You need to be able to appreciate both capitalism and socialism and borrow heavily from them in order to foster a prosperous, equitable and stable society.
JUDGE McGuire: Okay, if I assume for argument's sake that that's the case and that the policy clearly obligated participants to disclose patents and patent applications, how should I construe the evidence in this case that shows that some companies in JEDEC comported with that policy and other companies had not comported, and other than the episodes involving TI, quad CAS and WANG, was there any evidence that would show that the other five or six companies, IBM, Samsung, Toshiba, several of those, was there any enforcement ever taken by JEDEC because they did not offer and disclose their patent applications? MR. OLIVER: Your Honor, you ask a very difficult question, because there are many different companies and -- JUDGE McGuire: It's one I have to answer, so I'm giving you a chance to offer me some assistance.
MR. OLIVER: Certainly, absolutely. I simply want to point out that there are many different companies with different factual situations. I will start with IBM, but I think it's -- 5 JUDGE McGuire: I'm really not interested in going into the facts. If we can stipulate for purposes of this question that there were some companies who did not disclose patent applications, then what does that say about the clarity of the patent policy, where some companies have disclosed and some have not? And also, how should I interpret the fact that there was apparently no enforcement action taken other than the three episodes that I have described with those companies that had not disclosed patent applications? MR. OLIVER: Your Honor, I think part of my point is I don't think the record evidence shows that companies did not disclose patent applications. I said this morning, is it possible, yes, it's possible, but I don't think the evidence shows that, and IBM, just as an example, Rambus has made a great deal about the way in which Mr. Kelley's statements were taken down in the minutes, but the fact shows that IBM did disclose not only patents, not only patent applications, but even their intention to file before they even filed for a patent application. We've heard -- JUDGE McGuire: Now, was there one episode? Is there evidence in this record that shows that IBM had at least one patent where the co-inventor was, in fact, the chairman of JEDEC and that that patent was not disclosed to JEDEC -- the application was not disclosed to JEDEC during the time that the technology was being offered before the presentation by IBM? Is that in dispute? MR. OLIVER: I'm sorry, could you repeat that, please? JUDGE McGuire: It's my understanding of the evidence -- now, tell me if I have construed it properly -- that there was at least one episode where a patent application of IBM was not disclosed to JEDEC during the period of time when IBM was even offering a presentation of that application or technology, but yet it was not disclosed. Is that not true? If it's not true, then I'll drop the question.
MR. OLIVER: I don't recall that, Your Honor.
JUDGE McGuire: Mr. Stone, I believe you had indicated in your arguments that IBM had failed to disclose patent applications. Is that an issue in dispute?
MR. STONE: IBM announced in 19 --
JUDGE McGuire: I know it announced it was not going to file applications or it was not going to disclose applications, but was there not at least one episode where they had a patent application -- and if not, just tell me, and I'll just drop this. I may have misunderstood the evidence.
MR. STONE: There is one instance with IBM. They weren't the presenter, but it was the no-write transfer mode that they had a patent application on that they did not disclose in that time period. So, that's in our findings. So, there's that one. We have other examples.
JUDGE McGuire: Okay, Mr. Oliver, I just want to stay with IBM. Is that an issue, what he's just said?
MR. OLIVER: Your Honor, I would have to go look at the evidence, but again, I simply want to point out that simply because a patent application was not disclosed does not establish, for example, that there was knowledge that that was relevant at the time.
JUDGE McGuire: Okay, but I guess I'm trying to inquire as to how shall I interpret, one, the policy when we have companies doing two different things? Now, the respondents have said, well -- if we adopt their argument -- that the policy was, in fact, to encourage voluntary disclosure, then that might well speak as to why some people disclosed applications and some didn't, but I've tried to put the context of my question on the assumption that the patent policy has required patents and applications. How should I interpret the course of conduct at the time where some companies disclosed, some companies have not, and the fact that there apparently was not a lot of enforcement against those companies that had not disclosed by JEDEC?
MR. OLIVER: If I can answer that, it's a two-part answer, Your Honor. First of all, even taking the assumption that there were patent applications that were relevant but were not disclosed, there's still a question as to whether participants were aware of the patents. We heard, for example, in the case of IBM how many different facilities they had, how many different research and development plants that they had. Mr. Kelley said a number of times, and the reason the statement appears in the minutes, is that it was impossible for him to know of all the patents and applications going on within IBM.
JUDGE McGuire: Right.
MR. OLIVER: So, even if there was a patent application, for example, from IBM that was relevant, that in no way shows that Mr. Kelley somehow violated --
JUDGE McGuire: And I understand that in the context of IBM, but how about some of the other companies that have failed to disclose, Samsung and Toshiba? Do you want to go into those facts?
MR. OLIVER: Again, Your Honor, I'm not certain which instances you're referring to, but I don't think that there has been record evidence that would show that they had patent applications that were relevant to the work going on in JEDEC -
JUDGE McGuire: Okay, so that's an issue. Are you saying that, Mr. Stone? Because I'm taking this from your argument.
MR. STONE: Yes, yes.
JUDGE McGuire: Are you saying that the applications by these other companies that had not been disclosed are just applications but had no real pertinence to the standard?
MR. STONE: No, the IBM inventor was present at the meeting when the write transfer was talked about with regard to SyncLink, which was one of the ones I raised. Desi Rhoden was a named inventor on a SyncLink patent application. He did not disclose it and no one else disclosed it when they sought standardization of the SyncLink pin-out. Brett Williams of Micron was present at the meetings. Micron presented and asked that they standardize the burst EDO standard, and nobody from Micron -- Brett Williams, who was a named inventor or no one else -- disclosed those. That's just a few of the examples that are set out in more detail.
JUDGE McGuire: Mr. Oliver, let's talk about that episode with Micron.
MR. OLIVER: Yes, Micron --
JUDGE McGuire: Now, first of all, Mr. Stone, that was a technology that did have bearing on the standard being proposed?
MR. STONE: Absolutely. Micron was asking for standardization of the very technology on which they had patents.
JUDGE McGuire: All right, Mr. Oliver, could you respond to that?
MR. OLIVER: Yes, Your Honor. My recollection is that Micron did, in fact, disclose 15 to 16 months later. As I mentioned this morning, there was disclosure that was late, but they did disclose. They disclosed voluntarily.
JUDGE McGuire: All right, voluntarily. Okay, let me ask you --
MR. OLIVER: Your Honor, because they understood it to be their obligation. In other words, it was not that someone else caught them. They came forward and they disclosed. That last exchange was quite revealing. It even prompted Mr. Danforth of Rambus to comment on it in the recent earnings conference call. Ultimately, the exchange ended with the FTC saying that Micron had disclosed voluntarily. On seeing the judge pick up on "All right voluntarily" of course the complaint counsel did try to clean it up by saying "it was not that someone else caught them. They came forward and they disclosed."
JUDGE McGuire: Okay. You've made argument today and in your briefs regarding the policy contained in 21-I, which again involves the disclosure of patents and patent applications. That policy was published in October of '93. If I understand the evidence correctly, the approval of the SDRAM standard was made earlier that year, I think -- was it April of '93 or say March of '93? Is that correct from an evidentiary point of view?
MR. OLIVER: The 42.3 committee adopted the SDRAM standard in March.
JUDGE McGuire: In March.
MR. OLIVER: Approved by the council in May.
JUDGE McGuire: Okay. If that's the case, then how could the policy contained in 21-I, adopted and published in October of that year, have any application to any perceived obligation to disclose as it may apply to the SDRAM standard?
MR. OLIVER: The overwhelming weight of the evidence, which is laid out in great detail in our findings of fact, states that there was no change in 10 the policy, that that was, in fact, the policy that existed prior to that. The 21-I manual was changed only to clarify the existing policy.
The memory industry is a lot like the guitar string industry. Excluding makers of goat, nylon, and other kinds of strings for classicals, there are only 4 manufacturers of steel core guitar strings. There are plenty of rebranders out there, but the odds are 50% any brand you buy is going to be made by the same company. One company dominates more than half of the total production with the remaining three slugging it out for their piece of the pie.
...in whatever they
In the face of such limited competition it is in the interest of all companies to price their products similarly, and to keep the prices to rebranders within a very small range of the same. Low enough to keep others from wanting to spend the enormous sums to start their own production facility, high enough because they can.
This really isn't very different from the memory chip manufacturers. You basically have 4 companies that produce almost all of the memory. Tons of others
rebrand it and claim it as theirs, some even handle
small bits of the production process. So they had a
nice situation going where even if it wasn't overt,
or even if it was, collusion was very practical and
beneficial for them. Then enters Rambus, and they want
a cut of every stick of the new kind of ram made,
and are trying to force their way in via IP law.
Of course the 4 big companies are going to resist this.
It's clearly in their interest to keep others out
of the market, and to keep from having to pay royalties
to someone outside of their control setting the
standards for what they will produce.
If a company were to enter the string market with a
proprietary kind of electric guitar string that
others had to pay a fee to make, and it was a total
newcommer to the industry -- you know the other string
makers would fight it tooth and nail. Even if they had
to collude to slash their cost to make the other
unappealing, or in the case that they manufactured the
competeting product for the invading company, to do it as slowly & inefficently as possible.
Do I think we win out of this? Yes, I do. Think for a minute about just how volitile the technology market is. How many companies can you rattle off in the last 20 years that no longer exist but were big players several years ago? When those companies go, the support goes, the support for the platform goes, the grouping of
people with the unique expertise
made..is diluted into the wider makerplace or
disappears entirely. If a few more of them had been
able to survive, we would have more divergent platforms
better long term upgradability, more choices in what
we got locked into, and we would be able to count on
XXX company being there 5-10-15 years down the line to
support out hardware/software/what have you.
Yes, we do pay more for this. Yes, an open standard
would be nice. But we get something as well, we get a
concentration of the people who are the absolute
experts in their field churning out our memory,
and they will use that expertise to churn out future
memory standards whatever they are. (As long as they
come without a fee, heh).
JUDGE McGuire: So, that goes back to your earlier comment that the EIA policy as interpreted through JEDEC was that "patents" also included patent applications -- the term "patents" also incorporated the term "patent application"?
MR. OLIVER: Yes, Your Honor.
JUDGE McGuire: Okay. Did you want to comment? You don't have to, Mr. Stone.
MR. STONE: I just want to make one comment on that. I don't want to go back through all the evidence, but I want to remind the Court that Gordon Kelley, the chairman of 42.3-B and the chairman of the JEDEC Council, said "patent" as used in the EIA manuals meant only patent and did not mean patent application. So, if Mr. Oliver's right, that the policy for EIA was always that "patent" meant patent and application, then Gordon Kelley didn't know it, and that means it was not clear. We have a lot of other evidence as well in the record, but I did want to make that one point.
JUDGE McGuire: Okay. Mr. Oliver, what is the agreement here between participants in JEDEC and JEDEC? Is it based on contract? Is it construed as a private agreement? What are the antitrust implications in this case? I know that's -- I know you feel -- but if -- first of all, is the involvement here between JEDEC and its companies that are involved with JEDEC, is that -- could that be construed as a private agreement for antitrust purposes?
MR. OLIVER: Your Honor, I would prefer not to look at it in terms of contract law or private agreement, but rather in terms of antitrust law. As I think I tried to emphasize this morning, the EIA Legal Guides, which establish the basic rules for standardization, spoke of the importance of not conducting standardization programs in a way that would exclude competition or work to the benefit of any particular competitor or groups of competitors, and I believe that Mr. Kelley also testified that those are found at the heart of antitrust concerns. I think that is the core of what we are dealing with. Exchange #5: What needed to be disclosed? Were specific claims required?
JUDGE McGuire: If we assume for the context of the coming question that the patent policy was that you had to disclose patents and applications, was there ever an obligation on companies to disclose the claims that comprise an application?
MR. OLIVER: You mean the specific language of the claims?
JUDGE McGuire: Yes.
MR. OLIVER: No, the obligation was to disclose sufficient information about the application that JEDEC members could understand to what technology it applied and understand what the ramifications would be.
JUDGE McGuire: And in fact, isn't that what happened when the CEO of Kentron testified that he would not disclose claims or applications but yet he gave sort of a broad overview of what the application entailed? Would that comport to the patent policy if we assume it was mandatory to disclose patents or applications?
MR. OLIVER: So long as it was sufficient to disclose the relationship between the patent application and the ongoing work at JEDEC, yes.
JUDGE McGuire: Okay. Mr. Stone, I want you to address this.
MR. STONE: Yes, thank you, Your Honor.
JUDGE McGuire: What kept your client from -- and I understand the argument about how it had interests and a justification to protect its claims and their IP. What kept your client from disclosing a broad-based concept of the application and still being able to protect its IP and the claims as what occurred with the CEO of Kentron?
MR. STONE: Okay, they did. They did, and the Federal Circuit addressed that at page 1098 of their decision, 318 F.3d 1098. They said if you didn't have to disclose claims and you only had to disclose your invention, then Rambus' disclosure of the '703 patent satisfied all of its obligations, because the only distinction between the '703 patent and any of the applications that were otherwise pending was in the claims. So, by disclosing the '703 patent, they disclosed the complete written description of their inventions, and that's what the Federal Circuit said. If the only difference between the '703 and all these applications is in the claims, and if you don't have to disclose the claims, as counsel just said, then all that you could have been required to disclose was disclosed when Rambus disclosed the '703 patent.
JUDGE McGuire: Mr. Oliver, what is next --
MR. OLIVER: I'm sorry, Your Honor, could I follow up on that?
JUDGE McGuire: Sure.
MR. OLIVER: We do take great issue with that, Your Honor. That is a theoretical, abstract argument that is completely divorced from the facts of this case. We've heard large volumes of evidence in this case that witnesses did not understand the nature of the claims that Rambus could obtain from review of the general application, and we've heard a great deal of information from Professor Jacob as to exactly why that was the case, the distinction between narrow versus wide bus, the multiplex versus nonmultiplex architecture, packetized versus nonpacketized architecture, et cetera. The fundamental fact is at the time they disclosed the '703 patent, they did not provide sufficient information for JEDEC members to understand how the Rambus patent applications or the work that they were doing related to the ongoing JEDEC work
MR. STONE: May I respond just briefly, Your Honor? I have two responses. The only difference between the '703 and those others was in the claims. Mr. Oliver just said we didn't have to disclose the claims, but he says, oh, we have lots of testimony that people couldn't read that WIPO application of the '703 patent and understand what the invention was all about. We have the Mitsubishi documents, and they go through claim by claim by claim in the WIPO application, and they show how it has applications to SDRAM. They write about a number of applications to SDRAM. They write about it being DDR in any kind of a DRAM. They go through each of the features at issue here, and they see them all in the application. If we didn't have attorney-client privilege that protected the DRAM manufacturers' analysis of Rambus' patent applications, I suggest, Your Honor, that we'd have the same sort of analysis done by the manufacturers that would show the same thing, and so we have testimony from our expert, we have testimony from the Mitsubishi documents, and -- we have the evidence of the Mitsubishi documents, and we have the patent office's determination that all of those inventions were fairly disclosed in the written description in either the WIPO application or the '703 patent. That's one and the same.
JUDGE McGuire: I have a question that came up during closing arguments of respondent, and that is, first of all, is there any dispute as to whether the technologies and the architecture within DDR are inherently about the same as that of the RDRAM? Is that in dispute?
MR. OLIVER: Your Honor, there is some dispute. I think Professor Jacob in particular discussed the differences and the way in which the technologies were described in the specification and the '898 application.
JUDGE McGuire: But the DDR standard did, in fact, contain the four technologies at issue in this proceeding, did it not?
MR. OLIVER: I'm sorry, the DDR standard --
JUDGE McGuire: The DDR standard did incorporate the four technologies in RDRAM. Isn't that true?
MR. OLIVER: Well, DDR certainly included programmable CAS latency, programmable burst length --
JUDGE McGuire: And dual-edge clock, the four technologies.
MR. OLIVER: That's right.
JUDGE McGuire: So, it's true that the standard incorporated the four technologies of DRAM. Is that true?
MR. OLIVER: The only reason I'm quibbling, Your Honor, is that those technologies were used in a slightly different way in RDRAM, and the DDR standard certainly uses the four technologies that Rambus claims to have patent rights over, but they were used in slightly different ways in the RDRAM architecture, and 15 they were described in different ways in the patents than they were used in the DDR SDRAM standard.
JUDGE McGuire: All right, Mr. Stone, how were they different?
MR. STONE: I quibble just slightly on a different point, Your Honor, that our view is on-chip DLL is not required by the DDR standard. Some manufacturers use it. We don't believe it's required by the standard. Otherwise, we think the four features are either in the products today or three of the four features are required by the standard.
JUDGE McGuire: Okay. I know as far as the RDRAM goes, there's the argument of complaint counsel and that of its experts that said that RDRAM did not do well in the industry because of its high cost. There's also evidence in this record that certain DRAM companies acted in concert to perhaps artificially drive up the cost of RDRAM. If the Court were to incorporate all of those findings, that one, perhaps there's evidence that it did cost more, but yet there's evidence that it cost more because of the actions of other DRAM companies, and you said that RDRAM did not do well, and acknowledging that there might be some slight variations between DDR and RDRAM, then why couldn't you say the same about DDR? It obviously has done well in the market, so why didn't RDRAM do almost as well?
MR. OLIVER: If I could give you a two-part answer, Your Honor. First of all, I do want to be clear that the evidence indicates that RDRAM was not doing well since 1991 or 1992. Indeed from other documents that we went through this morning, it showed in April of 1992 evidence that the industry was already very concerned about issues such as high cost, low latency and royalties. Even accepting the face value of the evidence of conspiracy -- which I do not, I do not believe that has been shown -- even if that were to be accepted, the evidence indicates that RDRAM was not doing well long before that. 16 Second, Your Honor, there's considerable additional evidence that you have not mentioned. In particular, the technical problems with RDRAM, including problems that Intel had with their chipset that interfaced with RDRAM, and I believe that the testimony indicated and the documents also indicated that perhaps even more than the cost issues were these technical problems and creating the conditions in which RDRAM ultimately failed.
JUDGE McGuire: We've discussed how DDR II, which has just been approved here of late, incorporated as well the same four technologies contained in RDRAM, and you've made the argument that, in fact, they contain those four technologies not because they offer the best answer to the DRAM industry, but because industry was, in fact, locked in to these technologies. Other than the testimony of your experts on this issue, was there any evidence at the time the DDR II was being debated, was there any evidence that people had discussed that, yeah, we can't pursue alternative technologies because we are locked in?
MR. OLIVER: Yes, Your Honor, there is a great deal of evidence. There are a number of documents throughout 1998 and 1999 that Mr. Macri in particular explained that really traced the history of DDR II starting in April of 1998, and one of the very first questions they asked, of course, is, okay, what should be used as a starting parameter, if you will, and it was very quickly decided that there was no interest in using anything other than DDR SDRAM as a starting point for DDR II, and from that moment, all technologies in DDR were presumed to carry over to DDR II. By the time the Rambus patents became known -- actually, almost two years later, there had already 17 been substantial work done on the DDR II standard. A number of companies had actually already begun their own individual work on DDR II. In addition, as I mentioned a few moments ago, there were concerns about backward compatibility, and companies like IBM, as Mr. Kellogg testified, wanted to be able to use chipsets to be compatible with both DDR and DDR II. So, I think that record is established not only through the series of documents, but through the testimony of Mr. Macri in particular, also the testimony of Mr. Kellogg, the testimony of Mr. Lee, and to a lesser extent, the testimony of Mr. Polzin. MR. STONE: That goes directly to the point I made earlier. Once they learned about the patents, they went and looked at all the alternative technologies that Mr. Oliver has suggested were substitutes. They looked at them, spent time on them. They didn't say we can't do them because of backward compatibility, they didn't say we were locked in. They ultimately rejected them on their merits because the four technologies were superior.
MR. OLIVER: If I could respond to that, Your Honor, we have heard a lot of testimony about the differences that different JEDEC members had in terms of opinions, what technology they felt was better, as well as the effect to the companies, and this is exactly a case in point. I believe it was Mr. Rhoden testify that if you have 10 engineers in a room, you have 12 opinions, and this is very much on point here. We heard, for example, from Mr. Lee and Mr. Kellogg. Now, Mr. Lee said that Micron was proposing changes. They wanted to work around these technologies. For them, the lock-in issues were less important than the four technologies, and they were willing to make the changes. Mr. Kellogg, for example, when he was reviewing the proposal to change dual-edge clocking, he believed that it was not suitable for IBM, that backward compatibility was too important for IBM. This is simply an example that simply because some companies propose change does not mean that nobody is locked in; 18 rather, it simply means that companies are positioned differently. Some companies may be willing to change, but others are not. The DDR II evidence indicates that the majority were locked in and were not in a position to change.
MR. STONE: Mr. Oliver is just wrong about the last point. IBM in the document that we cited to earlier today said single data rate is preferred. They didn't say we have to go double data rate. They said we prefer single data rate. They preferred it. They didn't go with it because it didn't work.
JUDGE McGuire: Okay. In this complaint, I've been asked if I uphold these counts, these antitrust allegations, that to impose a sanction that would in essence preclude the patent holder from exercising its due rights under the patent issued by the patent office, and there has been no showing of any fraud on the patent office. So, my question is, what authorization in law does the FTC have and by implication does this Court have to impose the type of sanction that I've been asked to impose in this case?
MR. OLIVER: If I could just as a preliminary comment, before directly answering your question, I simply do want to make clear that the remedy we are seeking would preclude enforcement of certain aspects of their patents; that is, only with respect to patents with priority before 1996, and only --
JUDGE McGuire: And all those that claim priority back to the '898?
MR. OLIVER: Yes, and again, they would be free to assert their RDRAM.
JUDGE McGuire: Right, but to those patents, I'm talking about the ones that you've included in your complaint and have asked me to impose the sanction, my question is what authorization in law does this Court have and does the FTC have to do that?
MR. OLIVER: Your Honor, the most direct precedent is the Dell matter. The Dell consent laid out the authorization it has, and it relies in part on principles of equitable estoppel.
JUDGE McGuire: Outside of Dell -- because that's a consent agreement -- outside of Dell, is there any other legal authority, because it seems to me like if that -- you know, if there is no authority in law, then to impose such a sanction would in some way be an unconstitutional exercise to take their property without proper compensation. So, other than Dell, what authorization in law is there for the FTC and this Court to impose that kind of sanction?
MR. OLIVER: Your Honor, it clearly would not be a taking of property unconstitutionally. This clearly is an important issue for you, for Your Honor, and I would suggest if it appropriate that perhaps we could submit a short brief on that.
JUDGE McGuire: At this point, I'm not going to ask you to do that. Okay, Mr. Stone, did you want to offer anything on that?
MR. STONE: No, Your Honor. I think we addressed that fully in our brief that we filed.
JUDGE McGuire: Okay.
MR. OLIVER: Your Honor, if I could just follow up briefly, the most direct precedent other than the Dell matter would be American Cyanamid. JUDGE McGuire: Okay. Can there be any antitrust implications if a patent policy is unclear? 20 MR. OLIVER: In terms of the JEDEC policy? JUDGE McGuire: In terms of JEDEC. MR. OLIVER: Absolutely there can, Your Honor. JUDGE McGuire: Absolutely there can? MR. OLIVER: Yes, there can. As I stressed this morning, the Commission's complaint looked at three separate sources. It was not just rules, but rather it was basic purposes of the organization, and it was the basic principles by which the organizations operate.
JUDGE McGuire: Can there be antitrust implications purely on a conclusion that a participant in JEDEC did not act in good faith?
MR. OLIVER: Yes, Your Honor, there can. Again, that is set forth particularly in paragraphs 47 through 55 of the complaint.
MR. ROYALL: If I could just supplement that by noting the testimony at trial relating to rules of JEDEC and EIA that required good faith, and these rules are not just mere aspirations. They're rules that has been enforced, just as the patent policy has been enforced, so it's really no different.
MR. MELAMED: Your Honor, could I speak briefly to the last question about fuzzy rules and good faith and so forth? JUDGE McGuire: Go ahead, Mr. Melamed.
MR. MELAMED: Very briefly. If that's all they have, I don't think they have an antitrust claim. Certainly citing their complaint doesn't establish that there's authority for it. The reason for that is this: The antitrust laws -- and this goes back to something Mr. Royall said a few moments ago -- the antitrust laws are intended to encourage people to be aggressive competitors up to but not across the line. They require clear lines. Here, the issue is not do we welcome conduct in standard-setting organizations that offends Mr. Royall's or complaint counsel's sense of fair play. It's under what circumstances do we require companies to surrender their trade secrets, their intellectual property? And I think the basic antitrust principles that say you want clear rules so that companies know what they have to do and can go aggressively up to the line applies here as well.
MR. ROYALL: Could I respond briefly, Your Honor? The Allied Tube case, again, Your Honor, says that you can impose antitrust liability when someone subverts a standard-setting organization even if there's no rule, and that's exactly what the Supreme Court said, and I pointed it out earlier, that because of the public concern around standard-setting and the potential for anti-competitive risk, the law will not allow someone to subvert and get away with an abusive monopolistic manipulation of a standard-setting process and be immune from any liability simply because the standard-setting organization itself has failed to write a rule to prohibit. If it was subversive, anti-competitive conduct in that setting and it results in anti-competitive effect, the Supreme Court says that is exclusionary conduct that is within the reach of the antitrust laws.
MR. STONE: If I could just respond briefly, Mr. Royall has conceded earlier in this case that if Rambus hadn't joined JEDEC, it would have had no obligation to disclose anything. Rambus' failure to disclose is not like Allied Tube's collusive Section 1 violation. All that Rambus did was not
sorry...stopped in midsentence from previous post All that Rambus did was not disclose certain applications. It had every right not to do that but for what complaint counsel say is a violation of the rules.
MR. ROYALL: Your Honor, could I very briefly? That argument is a non sequitur. Obviously this company did join JEDEC. It participated for four and a half years. We've shown all of the evidence of what it knew, exactly what it was doing. It engaged in a scheme, and it achieved its end, and it has a monopoly now, and it has caused serious harm. Clearly that can be condemned under the antitrust laws, and it is clearly within the authority of this agency to impose a remedy that does what? Restores competition. That is something that clearly this agency can do.
JUDGE McGuire: Okay, let me --
MR. ROYALL: And the remedy we propose is designed to do that.
JUDGE McGuire: Let me ask you a question on this, Mr. Royall. If I understood your argument earlier today, you said you really do not take issue with the fact that in this case, I guess that respondent -- you aren't taking issue with the fact that they added claims to their patent applications that covered the JEDEC standards, but your argument with them is they did not then disclose those efforts and those claims to JEDEC. So, as a matter of patent law, you aren't taking any issue with the act of what they did in adding claims that cover the standards, but your whole point is that having done that, they have an obligation to JEDEC to inform them of that fact?
MR. ROYALL: Yes, Your Honor. If Rambus, contrary to fact, had never joined JEDEC and just amended its patent applications to cover JEDEC standards or something else, well, the patent law, as I understand it, wouldn't allow you to challenge that and we wouldn't challenge it in antitrust law, but there's an interesting analogy here, though. Under Kingsdown and other cases that they have cited, the patent law would not allow you to challenge the mere act of amending a patent application to preclude a competitive product, but under patent law, what you can do -- and there are many cases that we've cited -- is challenge the act of engaging in a misleading way in a standard-setting organization by not disclosing patents. That is called equitable estoppel. There's lots of authority for that. That's the type of claim that we're making, but we're making it in an antitrust context, and I would tell you -- I would also say that there is substantial authority for taking conduct that can be a violation in the patent law context and challenging it in the antitrust context when it results in anti-competitive effects. Walker Process is exactly that. Handgards is exactly that. And what this case does is it takes these equitable estoppel concepts, and it challenges them in an antitrust context when the very same conduct that in patent law could result in equitable estoppel has an anti-competitive effect.
. JUDGE McGuire: Okay, I think that's all the inquiry I have of complaint counsel at this time.
JUDGE McGuire: -- there is evidence in this case that there were certain emails that were sent by -- internal emails by CEO Tate and Crisp regarding the fact that -- and you touched on this somewhat today -- that let's not tell our partners that we think that DDR may infringe on RDRAM, and so that implies that the partners could not determine on their own that that was the case, then does that not stand in conflict with your overall argument that because these patent applications were out there in the industry, that an engineer exercising skill in the art could have interpreted all the way back to the '898 application that these four technologies were, in fact, included? If that was the case, then why did you feel that your partners hadn't caught onto that?
MR. STONE: I think I can answer that by reference to the testimony and the record, and there's quite a bit of deposition testimony from Mr. Tate that addresses this as well as from others, and what they say is that it makes a lot of sense when they say we don't want to go to our partners and say you're infringing a patent until we have a patent and we know for sure it's infringed. The fact that Rambus might be seeking claims or claims to have inventions or describe inventions broad enough that might result in those patents could certainly be determined by them. At the point in time when Mr. Tate wrote that and the other emails that were written, they did not have any patents or any patent claims that were infringed by any of their partners, and what Tate was advising was sound advice, both business and legal. He said until you have an issued patent that you know is infringed, don't go threaten somebody. A, it can make them mad; B, you might be breaking the law or doing something improper by threatening them when you don't have it; and C, if you don't have it and you're not ready to file a lawsuit, if you go out and threaten somebody, they may sue you under a declaratory judgment action. That's the legal advice part. I don't know if that's part of it or not, but we know that's good, sound legal advice. What we do know is that at the time he was saying that, they did not have claims that were infringed, because when they got those claims, they did ultimately, immediately start the negotiations and ultimately the lawsuit was filed first with Hitachi and then the others.
JUDGE McGuire: Mr. Royall?
MR. ROYALL: The only thing I would add to that is Mr. Stone has given an explanation for why Rambus might have wanted to wait in disclosing patents, but there's lots and lots of other evidence of another explanation, which is the concern about the patents being worked around and the potential that if they were to disclose and to let people know, then they could work around in the standards and avoid the patents. Now, he didn't mention that, but there's lots of evidence that that is something that was very much in the minds of people like Mr. Tate and Mr. Crisp who were making decisions about whether to disclose or to conceal.
MR. STONE: Well, I am not going to engage in any "yes, you're right/no, you're not" argument with Mr. Royall, but if you look through the findings, you're not going to find any evidence to support Mr. Royall's proposition that that was the thinking that Mr. Tate had in the time frame that you're asking about. It's not there.
JUDGE McGuire: All right. Mr. Stone --
MR. OLIVER: Could I have one word on this, Your Honor? JUDGE McGuire: Go ahead.
MR. OLIVER: First of all, I think your question goes directly to the heart of the matter. Why is it that engineers couldn't figure this out on their own? Why did Rambus make the effort to conceal from the industry to an extent its potential patents? I simply want to point out that it's not only the one document that you reference, but there are 10 or 12 that we've listed. For example, the Karp document with regard to their patents, that is simply inconsistent with the explanation given by Mr. Stone.
JUDGE McGuire: Thank you, Mr. Oliver. Mr. Stone, the arguments you've made regarding the patent applications that were out there in the industry and those companies that had gone through them and determined that they would not issue due to prior art, did those applications pertain to RDRAM?
MR. STONE: The application that most everyone was looking at was the WIPO application, the original '898 application, which the U.S. Patent Office split into a bunch of them, and that was a patent that ultimately resulted in patents that applied specifically to RDRAM, that also applied generally to SDRAM and patents that applied to DDR SDRAM.
JUDGE McGuire: And to the extent that they might have applied to RDRAM, then why, if these companies all felt that these patents would not issue because of the prior art, then why was it important that some of the DRAM companies that you've alleged acted in concert to keep Intel from adopting RDRAM in its processors and why to the extent that some of these applications that they felt would not issue due to the prior art, then why was that effort so important?
MR. STONE: I think there's probably two answers. One, I think they thought some of the very specific features of the RDRAM were likely to result in patents regardless, even if they didn't think the patents would have any breadth, I think they thought there was likely to be specific patents on RDRAM, and two, Rambus and Intel were offering a deal, and Rambus was offering a license, much more than just patents. Rambus was offering the technology, the design, the cookbook or how-to kit, if you will, and they were partnered with Intel in a way that let the DRAM companies fear -- led them to fear that what would happen is future technologies would be dictated and designed by a team of Rambus and Intel, and that's why we have the documents that talk about Rintel at some points, where they combined the two, and their fear was not that we can or can't get around the patents. Their fear was our technology is going to be dictated to us by Intel, and Intel will drive the price down, and we won't make any money.
JUDGE McGuire: And we touched on this earlier, Mr. Stone, but again, on kind of the same topic, how certain DRAM companies in the industry had some knowledge of these patent applications and for whatever reason they determined that they would not issue due to prior art. How would that understanding, though, be imputed to JEDEC as a whole?
MR. STONE: Well, they said it at some of the meetings. We have minutes where they describe the Rambus application, the '898 application, when it was discussed -- I believe the second time it was discussed at the JEDEC meeting, where it was disclosed as -- described as simply a collection of prior art. So, it was discussed at the JEDEC meetings where they said we don't think it's going to issue, it's stuck in the patent office, we think it's just a collection of prior art. So, I think everyone in attendance heard that, and it's reflected in memos and notes from those meetings.
JUDGE McGuire: Mr. Oliver?
MR. OLIVER: If I could respond to that, Your Honor, this again goes to a fundamental point that I was making this morning that there is a clear distinction between a vague statement that, you know, either Rambus has patents or Rambus has patents that may apply to SDRAM versus a specific disclosure that Rambus itself believes it has patents that apply to a particular technology. Only with that latter disclosure is it a context that permits members really to conduct an appropriate analysis. I submit that it's just not -- it's not probative of what would have happened at JEDEC to engage in this type of speculation.
MR. STONE: And I would add that in 1994, when Betty Prince gave her presentation to Samsung, based, as she told us, wholly on public information, she explained how the concern of the DRAM manufacturers had lessened due to their analysis of the application and her understanding that they thought there was a lot of prior art.
JUDGE McGuire: Okay, one last question on that issue -- well, just one last question. In terms of your client's understanding of what it perceived to be the patent policy at the time, there's evidence in this record that its rep, Crisp, had sent an email regarding the technology of the PLL/DLL presented and disclosed by a company called MOSAID, that it had disclosed its application on PLL/DLL, and in that email sent by Crisp, he had indicated back internally to Rambus that he felt that that comported with the patent policy of JEDEC under the policy manual 21-I. How does that email and his understanding of the patent policy at that point in time speak to the overall understanding of the patent policy through JEDEC by Rambus?
MR. STONE: I understand, Your Honor. Could I defer to Mr. Perry who spoke to that today?
JUDGE McGuire: Sure.
MR. PERRY: Your Honor, with respect to the MOSAID disclosure, actually the minutes show that MOSAID didn't actually disclose it themselves, somebody told on them, but in terms of Mr. Crisp's email, I believe that what you're referring to is an email that describes what the gentleman from MOSAID said, which was that if it is an implementation patent, it wouldn't matter, people can get around it, but if it's a patent that is required to be used, they would agree to RAND. Mr. Crisp's email is not about the disclosure issue. It's about them saying that they would license it and then everybody went forward and standardized it. He is not talking about a disclosure being in compliance with anything. He is talking about the fellow from MOSAID saying under what circumstance is he promising to give reasonable and nondiscriminatory licensing assurances.
JUDGE McGuire: Thank you, Mr. Perry. Mr. Royall, were you going to comment, because I've only got about two more questions.
MR. ROYALL: Oh, you do? I was going to respond --
JUDGE McGuire: Not on this issue, but if you want to follow up, go ahead, and then I'm almost done.
MR. ROYALL: Your Honor, I had understood that that was your last question. I was just going to stand up to respond to something Mr. Stone had said earlier.
JUDGE McGuire: How much earlier?
MR. ROYALL: How much do I have to say?
MR. PERRY: April.
JUDGE McGuire: Let's move on.
MR. ROYALL: That's fine.
JUDGE McGuire: And this actually goes back to a question I had of complaint counsel. The argument has been offered here that the '327 patent, which was not included apparently in the inventory of patents given to JEDEC at the time of the termination of JEDEC by Rambus, the argument is that the '327 patent really had no pertinence to any SDRAM or DDR standard at JEDEC. If that's the case, then why is it important that they did not include that in their inventory of patents to JEDEC at the time they terminated their relationship?
MR. OLIVER: Thank you, Your Honor, I'm glad you asked that question. That was a note that I had made that I wanted to respond to if I had the opportunity. That frankly was just a complete red herring. The issue here is whether JEDEC would have had the opportunity to work around patents by using other alternatives. If the '327 patent had been disclosed and JEDEC knew that Rambus had patents on dual-edge clocking technology, they would have had the opportunity to use a different clocking technology that would have avoided the patents that Rambus is currently seeking that do cover dual-edge clocking.
MR. STONE: Except that the '327 was on a list sent to every JEDEC member in early 1998, before they standardized on DDR, and they didn't work around it, and we know that they didn't have to work around it to do so because it didn't infringe on what they were doing. So, there is no witness that testified, if I had only seen the '327, I would have moved away from DDR. No evidence in the record, and in fact, they knew about it, it was on a list circulated in JEDEC in early '98, and they did nothing. Exchange #15: If Rambus had been allowed to make their presentations would these issues of disclosure have been resolved then?
JUDGE McGuire: Again, another question for complaint counsel, and again, this was an argument that you made here this afternoon, that if there had been disclosure of the four technologies at issue earlier in the process to JEDEC, then perhaps they could have pursued alternative technologies. Couldn't you say that would also be true other than for the fact that they were precluded from making a presentation of this technology to JEDEC?
MR. OLIVER: No, Your Honor. That issue is that Rambus was considering making a presentation with respect to RDRAM-related technology. That was not related to the technologies that were being incorporated within the SDRAM or the DDR SDRAM standard.
JUDGE McGuire: All right, then I'm confused, because I was thinking that they had attempted to make a presentation of RDRAM to JEDEC, but then that was not allowed, so my question was then, well, had they made that presentation, then wouldn't that have put everyone in JEDEC on notice that now maybe we should consider alternative technology?
MR. OLIVER: No, absolutely not, Your Honor.
JUDGE McGuire: Okay.
MR. OLIVER: Because the presentation that would have been made would have either been RDRAM itself, in other words, a narrow bus, multiplexed, packetized system, which again people knew about. I think there's very little dispute that everyone knew about that, but what they didn't understand was that the Rambus patents extended beyond that to reach the wide bus, nonpacketized, nonmultiplexed architecture that they were working on in JEDEC, and that was information that Rambus did not supply to JEDEC.
...Now that DDR manufacturers have colluded to raise prices on them, if I want 512 MB of memory, I can choose to buy:
- 2 x 256 MB Simpletech RDRAM at $95 each for a total of $190.00
Or
- 1 x 512 MB Crucial PC-2700 DDR SDRAM at $72.00
What makes this story ridiculous is that the DDR manufacturers didn't *have* to collude to price Rambus out of the market; Rambus is just a whole heck of a lot more expensive... partly just because you have to buy them in tandem.
Don't you wish your girlfriend was a geek like me?
JUDGE McGuire: Okay. Mr. Perry, are you --
MR. PERRY: Yes, could I just respond briefly to that? It's Gordon Kelley's testimony that in May 1992, he had refused to allow Mr. Crisp to present the RDRAM technology, and if it was the case that presenters would have to disclose their patents and patent applications, as Mr. Crisp later said he came to understand, and if he had presented the RDRAM technology in '92 and if he had been told he had to give up those patents and applications, then JEDEC would have known what we were after. So, I think you have pointed to an niche there that actually I hadn't thought about.
JUDGE McGuire: Okay, that's all that I have. You were going to make I believe a motion, Mr. Stone?
MR. STONE: No, I don't think I'm going to make a motion to dismiss, Your Honor. I think I'd just ask you in your findings, when you conclude this case, to ultimately dismiss the complaint. That's the relief we think is appropriate.
JUDGE McGuire: Okay, counsel, that's it. I apologize to the audience and to counsel. I actually told someone this morning that I thought we'd be done certainly be 12:00 noon, so this has gone on now for ten or so hours, and again, I want to thank each side. You've done an excellent job here today and throughout the course of this case. You've made my job somewhat easier and somewhat more complicated, so you've done your jobs, and now it's time for me to do mine. Again, it's been an honor to be involved in this case.
MR. STONE: Thank you very much, Your Honor.
MR. ROYALL: Thank you.
JUDGE McGuire: Hearing adjourned.
Show me where someone holding a single joint got twenty years. Anywhere in the US - any time frame.
No hurry, I'll wait.
Clear, Dark Skies
Obviously, when you read my post exaggeration never entered your mind...
Let me explain: I was using exaggeration to say that our judicial system cannot seem to get it right. We release a murderer after a few years but have virtually no mercy on someone who was caught with drugs.
I almost fell out of my chair when I saw that, principles of enrichment, huh? The rich are only rich because they're the ones who own Sony and Britney Spears. If the poor stopped buying those things, the rich would get poorer, not richer. Those principles of enrichment of which you speak involve using technology to economically replace poorer products (mariachi bands) with higher quality ones like Britney Spears. That's the reason the third-worlder will buy the CD and the CD player. That's the reason the rich are rich.
"I assumed blithely that there were no elves out there in the darkness"
when you "exaggerate" to make a point, it's called "lying".
Clear, Dark Skies
Here you go.
You said "20 years for smoking your first joint" - That's a bit different from dealing.
Clear, Dark Skies
If every Oil Producing and Exporting Country sucked up and sold oil as fast as they could, gas would be under $1 a gallon and all these countries would be poor. OPEC exists to keep oil production at market equilibrium. Similarly, if every DRAM manufacturer produced at 100% capacity, RAM would be $.10 a meg, and all the producers would go out of business. I see nothing wrong with manufacturers agreeing to only produce to market equilibrium, it's better than the alternative of wild swings between high and low price as companies go bankrupt and reappear. I'll also note that there's a difference between agreeing on how much DRAM to produce and letting the market determine the price, and fixing the price in house.
The situation with Rambus vs. JEDEC (the industry group that comes up with DRAM standards) is essentially identical to SCO vs. Linux. Rambus sat on the JEDEC to develop the DDR SDRAM spec, while failing to note, as the JEDEC rules required, that certain technologies were covered by Rambus patents. They waited a few years until DDR SDRAM was popular, then said "Hey, we own that. Give us money." Rambus was pure evil, out to make DDR so expensive due to license fees that their own vastly inferior RDRAM was the only option. Anything the RAM manufacturers could do to fight the Rambus threat was welcome, in my view.
"Rambus sat on the JEDEC to develop the DDR SDRAM spec, while failing to note, as the JEDEC rules required, that certain technologies were covered by Rambus patents."
That is a total lie!! Rambus was not a member of JEDEC when JEDEC was developing DDR. RAMBUS officially left JEDEC in 1996 amd JEDEC hadn't start on DDR until 1997 and not set the DDR standard until 2000 (this was in the JEDEC record and all the courts agreed on this). The CAFC who has Judge RADAR on it, Judge RADAR is the foremost legal authority on patent law in the world, had stated that "there was no rquirement of a member of JEDEC that once they left JEDEC that had any legal responsibility to JEDEC". Even Judge Payne, the first trial judge, in Richmond ruled that no former member of JEDEC had any responsibility to JEDEC.
The enblanc, this is an appeal to all of the 9 Appeals Courts, and the Supreme Court all agreed with the CAFC Judge Radar opinion.
So what you stated has absolutely NO BASIS IN LAW and is just a plain lie!!!!
Educate yourself and read the FTC script that was posted here and ACTUALLY learn what is going on.
Not only has the DOJ found price fixing by MIRCON and several other member of JEDEC they also found them trying to kill RAMBUS from the market palace and the FTC has also uncovered edvience of this as well!!
"They waited a few years until DDR SDRAM was popular, then said "Hey, we own that. Give us money." Rambus was pure evil, out to make DDR so expensive due to license fees that their own vastly inferior RDRAM was the only option. Anything the RAM manufacturers could do to fight the Rambus threat was welcome, in my view."
Nothing that you have posted here is true!! It's is all LIES!! By your statements you prove you have NO KNOWLEDGE of this case because no where is there any edvidence to support your lies!!
Are you Jack Robertson or Bert or Sherry? Because it appears they were a major part of the FUD campaign too!
DO yourself a favor and EDUCATE yourself. Read the FTC transcript that is posted here!!!
It is apparent that you do not understand patent law or the law because the Supreme Court, CAFC and the enblanc ALL SUPPORT RAMBUS.
Because of MICRON's effort's they have forced upon you an INFERIOR MEMORY SOLUTION, DDR AT A MUCH HIGHER PRICE than the better memory solution RDRAM!!! (That was actually in the Richmond trial and the FTC testimony.) Very interesting stuff, you shoud read the trial record expically the CAFC decision.
But don't worry because by the time JEDEC gets done with DDR it will be RDRAM!! They only need to steal a few more patents from RAMBUS to accomplish that. So MIRCON will have sold you RDRAM memory calling it DDR about 15 years after you could have brought it!!
These tie jerk MFers need to be locked up with Bubba so they can be his new girl friend.
This is what is wrong with the system. Poor people go to jail and MFers like this with their money goes free
Just goes to show in the US it isn't a matter of right or wrong. Guitly or not but how much money you have and how good your shark is.