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Payne is still gonna screw w/ the bus riders.
Suggest you sit down, then . . .
read carefully:
see 2 a on page 3
see 2 c on page 3
see 2 e on page 4
then
see 4 on page 1
see 8 & 9 on page 2
http://investor.rambus.com/downloads/2005-11-8%20Civil%20Order.pdf
My THEORY, b/c it was "request to reconsider or for a mistrial" is that it was DJ related.
I now see WHY Rambus took "advice of counsel" off the table:
due to DJ being involveed actively only up to a point in time, the VALUE of asserting "advice of counsel" was limited
AND
they got DJ'S testimony in testifying as to "what occurred"
I think the issue was this: will DJ's testimony be narrow in scope to fit with the narrow deposition testimony he gave in VA, or will he be allowed to more broadly describe the events leading up to and through the DRP adoption (and implementation?).
Nuke thinks Stone fooled Hynix into allowing the latter, giving them the right to depose DJ in advance, by waiving ACP.
I still don't see an answer to the Q - why wouldn't RMBS counter allegations of bad faith by using "advice of counsel"??? The only plausible theory I have is that DJ was "out of the loop" too early in the implementation to provide any meaningful help on RMBS's good faith in its DRP implementation.
smd
Re: Rambus' Advice of // TOMONTHE
by: smd1234 11/07/05 09:07 am
Msg: 821059 of 821064
TOMONTHE,
I wasn't there, but seems to me Hynix's handling of this phase suffered from
= lack of a coherent theory of the case, a coherent theory of what happened (and therefore what they wanted to prove had happened)
= lack of coherent BACKUP plans for their case, in the event they had to adapt
All in all, though I was not there, sounded to me like a bit of bad luck and a ton of poor lawyering !!!
Posted as a reply to: Msg 821045 by tomonthebus
NUKE,
You misunderstand, I think, why posters are puzzled about the advice of counsel defense.
Posters are confused by Stone's comment in closing, i.e., "RMBS is NOT asserting an advice of counsel defense"
Posters want to know WHY, why RMBS didn't assert an advice of counsel defense, and the answer, best I can tell, is they COULD NOT, b/c DJ's involvement was cut off too early.
JMHO
smd
Posted as a reply to: Msg 821043 by nukejohn
any hints here?
4/22/05
order by Whyte
This court's November 24 Order acknowledged that there was identity of issues between the question of spoliation in the Infineon case and the present litigation. As set forth above, Hynix cites that order for the proposition that there has already been a binding ruling that there is sufficient identity of issues to warrant the application of collateral estoppel. However, Hynix overstates the scope of the court's ruling in that order. The court commenced its discussion by setting aside the issue of dismissal on the basis of unclean hands for Rambus's spoliation and considered whether Judge Payne's previous spoliation findings could be the basis for finding that Rambus had engaged in spoliation sufficient to pierce Rambus's attorneyclient privilege. November 24 Order at 2.
at that point, the question of the application of collateral estoppel was necessarily limited to the question of spoliation as Judge Payne had not issued a ruling on the basis of unclean hands. Thus, this court must now determine whether the issue of unclean hands was actually litigated in the Infineon action. Although it is clear that Judge Payne made his determination to dismiss based upon unclean hands,
The unclean hands doctrine "closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief." Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 841 (9th Cir. 2002) (citing Precision Instr. Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945)). "Application of the unclean hands doctrine requires a finding of inequitableness or bad faith by the party to be dismissed." Rent-A-Center, Inc. v.Canyon Television and Appliance Rental, Inc., 944 F.2d 597, 602 (9th Cir. 1991).
The doctrine of unclean hands does not apply to any misconduct in the abstract, but requires that the misconduct is related to the claim to which it is asserted as a defense. Republic Molding Corp. v. B.W. Photo Utilities, 319 F.2d 347, 349 (9th Cir. 1963) ("What is material is not that the plaintiff's hands
are dirty, but that he dirtied them acquiring the right he now asserts, or that the manner of dirtying renders inequitable the assertion of such rights against the defendant"). The alleged misconduct "must pertain to the very subject matter involved." Id. (citation omitted); accord Dollar Sys., Inc., 890 F.2d at 173 (citation omitted) ("It is fundamental to the operation of the doctrine that the alleged misconduct by the plaintiff relates directly to the transaction concerning which the complaint is made."); Wash. Capitols Basketball Club, Inc. v. Barry, 419 F.2d 472, 478 -79 (9th Cir. 1969) ("The party against whom the doctrine is sought to be invoked directly 'infected' the actual cause of action before the court, and is not merely guilty of unrelated improper past conduct." (citation omitted)).
Absent findings of fact and conclusions of law, this court simply cannot glean from Judge Payne's oral ruling in Infineon the required elements to apply the doctrine of unclean hands in this litigation. Hynix must show that Rambus's misconduct is related to this litigation.
While it is clear he intended to produce a final written decision, absent Judge Payne's findings of fact and conclusions of law or some other more detailed order setting forth the basis for his ruling on spoliation, this court cannot find that Judge Payne's judgment is "supported with a reasoned decision."
Although not a prior inconsistent judgment, the FTC's Chief Administrative Law Judge, after a three-month trial, found that there was no indication that any documents relevant and material to the issues before the FTC were destroyed. In re Rambus, Inc., 2004 WL 390647 at 244 (FTC Feb 23, 2004). Hynix points out that this conclusion is not inconsistent with Judge Payne's ruling because it is the destruction of documents in anticipation of litigation that constitutes unclean hands and not whether relevant and material documents were actually destroyed. Although Hynix's argument has some merit, consideration of the relevance and materiality of any documents likely destroyed may be at least relevant to fashioning an equitable remedy for any unclean hands. See Republic Molding Corp. v. B.W. Photo Utils., 319 F.2d. 347, 350 (9th Cir. 1963).
The court also believes the circumstances surrounding the discovery of the allegedly recently discovered back up tapes, and the contents of those tapes, may shed additional light on the unclean hands issue. This evidence was not before Judge Payne.
but you ARE the 1st BA
Whyte can hammer the bus if he is of a mind to; the facts are there in the record if you buy the theory that the Tate and Davidow controlled board were more concerned about minimizing a "potentially" negative paper trail than being concerned about their duty to preserve relevant evidence. But I cannot see a sanction being applied such as dismissal.
The deal would not get done b/c it would be blocked, and would not get done at that price
Someone said the poison pill is at $65
I'll believe it the same day I see monkeys flyin' outta Payne's a**
As long as the trial is outside of Micronland, I see it as a better way than arbitration.
An arbitrator has far less muscle in a proceeding than Whyte or Jordan
The arbitrator would need to get up to speed on an awful lot
Arbitrations are not appealable.
Costs in atty fees are very high in arbitration, altho less than in full blown jury trial
I see the cases all consolidated before Whyte, so he can do "mediation with a bark" if he wants
========
Maybe they should try the arbitration rooute with Micron...but the arbitrator would need to be privy to all of the DOJ documents....AND....the FTC initial decision which spelled out that Rambus's request was acceptable under RAND and that even higher levels would be acceptable in the industry....and higher levels (punitive) would be OK for those that took the action to court.
Seems like a fair arbitrator would give Rambus a reasonable deal.
short winded explnation:
law of the case
how CAFC ruled originally
suggest you go read it, I'm not explaing well
you're welcome
wikipedia?
actually I just recently discovered how comprehensive it is and how it operates
really very much in line with the original ideals for the internet
late last nite Nic posted on Yahoo that the Hynix motion to reconsider is very likely a non-starter
thanks
smd
have a look
http://en.wikipedia.org/wiki/Epistomology
Is there a link to where Hynix requests a new markman (or whatever) hearing?
=======
it's the link I posted before
posted again here see below
http://investor.rambus.com/downloads/2005-10-18%20Hynix%20Motion%20for%20Reconsideration%20of%20Clai...
Cal,
Thanks for your SJ reporting.
Here's the best I can do:
Sorry but I am wayyyyyyyy out of my area of expertise, so I will sum it up in simple terms as follows (with apologies if I'm being too simple):
As explaimed a little bit below***, Whyte entered various claim construction orders, his "Markman." Once that was completed he was able to determine and rule on issues of infringement for purposes of the summary judgment motions filed by RMBS and Hynix. That is all done now, but there are some infringement issues yet to be resolved, to be resolved in Jan. '06 trial. The trial of infringement issues will use those very same claim construction orders.
***
There are various key terms in the claims of each patent, and he "construed" those terms, i.e., determined their meaning, for purposes of the claim construction orders.
He used a certain "method" as he "construed" those terms, and the method was based on a series of rulings over the years by the CAFC.
This Phillips case involves the CAFC friggin' CHANGING the method.
Sooooooo we have an issue, a question pending, i.e., insofar as Hynix has asked Whyte to use this new method and reverse his own decisions on clain construction as to a very key word, DEVICE, we have to wait and see how he rules on the Hynix request. WHY IT IS SUCH A KEY TERM IS BEYOND MY EXPERTISE! SORRY.
=========
RE: the new method
couple months ago from Nic:
http://patentlaw.typepad.com/patent/2005/09/nystrom_v_trex_.html
This illustrates, per my post many months ago, that the Philips case has had profound influences in the patent arena, and has caused the CAFC to even reverse their opinions in a few occasions. This is why I was certain (and they followed true to form) that Hynix would ask Whyte to revisit some of the claim interpretations.
Even the CAFC is getting less friendly to patent owners. It is a tough arena.
Da Greek
Skeptic-
I am confident Whyte will make no mistake in his decision on unclean hands; he knows the facts, he has latitude in the absence of binding precedent, he's smart, understands the context, etc
I am not a patent lawyer able to comment on the chances that Phillips will cause him to change his Markman, but I think it is worth asking around to some experts; maybe you could report back to us.
The reason I said Whyte could make a claim construction mistake is simply
1 - there is flux now after Phillips, which often takes a while to settle down after an appeals ct makes a change of direction;
2 - CAFC has a high rate of reversing on claim cosnstruction, altho I have not looked into the rate as to Whyte's decisions compared to the ave.; yet another area ripe for some research;
3 - Whyte MIGHT be inclined to do something here on claim construction that is designed to bring about a settlement, especially if he feels his post-Phillips decision is a close call when he reexamines the situation
THE ABOVE IS PURE SPECULATION
=======
SMD - I know Nic's raised the specter of the phillip's case - are you saying you expect Whyte to change his mind on the claims construction for "device"?
Treowth - how is it to be pronounced?
Whyte will not make a mistake on this unclean hands issue, IMO.
He might on re-consideration of "device" in light of this
http://www.fenwick.com/docstore/publications/Litigation/Litigation_Alert_07-13-05.pdf
Nic has a diff opinion than me and you are welcome to hunt his posts down; they all deal w/ his distortion of what Whyte has ruled to date.
MHO - and I am right BTW-
Hynix has to prove, BY CLEAR AND CONVINCING EVIDENCE*
e a c h
element
of its unclean hands defense
beginning with the much discussed Q of when Rambus first was under a duty to preserve relevant evidence.
==========================================
****Is the onus on Rambus or on Hynix?
==========================================
* A RECENT POST OF MINE SAID:
I keep going back to both the burden of proof and the standard of proof, and, while I will always look at a contrary argument, it just seems to me that
A. Hynix has the burden to put on adequate evidence and persuade
B. To my mind, an ambiguous or nebulous body of evidence just does not cut it for Hynix under a clear and convincing standard of proof...........ask yourself this question "On what point in contention has Hynix adduced 'clear and convincing' evidence, i.e., evidence which produces in the mind of the trier of fact an abiding conviction that the truth of a factual contention is 'highly probable.'"
C. If I were Rambus, I'd be hammering these points in what I file.
======================
"Clear and convincing" evidence is evidence which produces in the mind of the trier of fact an abiding conviction that the truth of a factual contention is "highly probable"). Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 2437 (1983). See also Buildex, Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463, 7 USPQ2d 1325, 1327 (Fed. Cir. 1988).
===
"Last Term, the Court made clear that Colorado's proof would be judged by a clear-and-convincing-evidence standard. . . .In contrast to the ordinary civil case, which typically is judged by a "preponderance of the evidence" standard, we thought a diversion of interstate water should be allowed only if Colorado could place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are "highly probable."
========
U.S. Supreme Court
COLORADO v. NEW MEXICO, 467 U.S. 310 (1984)
467 U.S. 310
If he puts forth the Hynix theory as your premise, he MUST explain how Rambus was going to PAY for all this litigation they were gunning for??????
pretty amazing if you ask me
325 EMPLOYEES NOW
35% growth in employees over the last 10 months
221 @ 12/31/03
237 @ 12/31/04
MY BEST GUESS =>
Mediation must have to do with sifting thru, doc by doc to arrive at a new protective order that is agreed upon. (Pretty sure the original order is the product of negotiation btwn the parties.)
Courts hate to spend time on discovery unless there's a legal issue involved. You see Whyte using Ambler as a mediator with a stick, well he's actually more than that as a special master, more like a mini-Whyte.
The AT judge wants the mediator to get the list of "in dispute" docs narrowed as much as possible, then he'll rule.
<=MY BEST GUESS
JEFF,
A few thoughts.
Whyte might do same as Payne did - hopefully 180 degree diff in outcome though - to get settlement talks cookin'
Hynix probaly cannot appeal and won't try, except they might ask Whyte to certify the result so they can pursue the "advice of counsel" aspect to CAFC
Nic thinks spoliation is a for sure, and only the penalty is in question. I think his credibility is low on stuff like this.
Unclean hands? no way
Thanks for your reports
smd
========
Looks like Dell will be pulling the Naz down today. Been waiting for an opportunity to add a few more shares (RMBS). Today might be the day.
I doubt that Whyte will issue a judgement from the bench. He seems to be a thorough judge who will take some time to issue a well thought out written ruling. How long will that take? From what we've seen of Judge Whyte in the past it could be a while. JMDO
Couple of possible outcomes that we could discuss:
1) Will Hynix appeal a favorable Rambus spoliation ruling? It seems likely to me that Hynix would appeal if for no other reason than to add to the delay game.
2) Will Hynix settle after a favorable Rambus spoliation ruling?
3) Will Rambus win the spoliation trial completly?
4) Or will Rambus be guilty of some sort of spoliation or unclean hands? What would be the penalty?
This filing is too early in time to be anything other than a request for reconsideration of the Whyte ruling allowing advice of counsel proof in support of Rambus' position.
Haven't read it, but I cannot imagine there is clear law on their side.
WORSE NEWS BY FAR - motion before Kramer looks like it was kicked out to January
my post on TMF today****. hope that helps.
from Whyte's 4/22/05 order referring to what Payne said:
Plaintiffs Hynix . . .seek to dismiss the patent claims of defendant Rambus Inc. under the doctrine of "unclean hands" on the basis of collateral estoppel. On March 1, 2005, Judge Robert Payne in the Eastern District of Virginia dismissed Rambus's patent claims in Rambus, Inc. v. Infineon Technologies AG, No. 3:00CV524, stating "I have concluded that [Infineon] has proved, by clear and convincing evidence, a spoliation that warrants dismissal of [the patent infringement case] as the only appropriate sanction after having considered the alternatives."
****
Although I am very sure about "clear and convincing" as the standard, here is my email request to Currin yesterday:
(Note: spoliation alone is sanctionable, but proof of unclean hands is needed for an Aptix-type result)
=======
Please follow up and address these, and hopefully get Danforth's confirmation.
# 1 Hynix has the burden of proof on unclean hands, and that means, in the 1st instance the burden of proof on spoliation
# 2 Each element of the proof must be established by "clear and convincing" evidence
<<<The standard (# 2) IS NOT "more likely than not">>>
Hynix must adduce CLEAR AND CONVINCING EVIDENCE IN SUPPORT OF EACH ELEMENT OF ITS DEFENSE!
elements:
= duty to preserve (timeline)
= destruction of evidentiary materials, i.e., not pizza boxes
= materials are RELEVANT EVIDENCE (nexus)
= prejudice to Hynix
THEN, for unclean hands,
= Rambus acted in bad faith or something close to that like "reckless disregard"
Thanks,
Threejack,
Once Whyte rules on the Markman, the amigoes have, effectively, a piss poor hand of cards, and they'll know that. So the only time to get a decent deal outta Rambus is BEFORE Whyte makes that ruling, b/c I doubt Rambus will have high confidence in Whyte ruling their way (confidence yes, high confidence no).
My guess is that Rambus is willing to settle after the spoliation ruling. The Markman issue is very likely to protract out if Whyte rules against Rambus. Remember, Hughes, not Tate, is calling the shots, and that means "get back to biz asap."
(Spoliation ruling = lots of deference to Whyte from CAFC)
(Markman ruling = little deference to Whyte from CAFC, b/c Markman is reviewed "de novo" by CAFC {of course Whyte IS HIGHLY respected in contrast to the blowhard from VA})
smd
please, please stop
CITES FOR MY POST
SEE pp 15-16
http://www.ftc.gov/os/adjpro/d9302/050810ccmosancattach.pdf
and
http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=28&sec=1404
REGARDS TO ALL POSTERS HERE.
I'M SORRY I HAVE NOT VISITED THIS BOARD IN A WHILE.
THANK YOU MUCHO TO THOSE WHO HAVE BEEN POSTING DEVELOPMENTS BEFORE WHYTE!!!!!!!!
I THINK I MAY OWE JEFF A RESPONSE TO AN EARLY OCT POST, CORRECT?
ANYWAY, HERE IS MY RECENT post on TMF:
I cannot see Rambus settling before a spoliation/unclean hands ruling, no way, no way.
Effectively (given Judge Jordan's attitude) Whyte has all the remaining Rambus cases, and there was even talk in July '05 about moving the MU case to CA. (See ### and *** below)
Can HYNIX settle? Here is what I wrote earlier today.
Re: Going Through the Motions
by: zonzgr8 10/29/05 02:06 pm
Msg: 817843 of 817847
Hynix must lose by a ruling - - given all the circumstances of the company - - before they can settle.
I suspect they DO EXPECT Whyte to follow Payne's lead, but we know ...
The real Q is whether Watz is correct, i.e., whether an adverse ruling on unclean hands will be enough of a push to get 'em to settle.
==============================
###
THE COURT: That's a fair position to take.
MR. STONE: Let me make this statement. Rambus
is seeking to bring all of the litigation that has been
filed in California before Judge Whyte, including a recently
filed case against Samsung, including the DDR 11 case, all
of those cases we're seeking to consolidate in front of
Judge Whyte.
There are days when I think even though it's
late in the game, this case may be is properly subject to
1404(a) motion [see *** below] to take these issues before Judge Whyte for the very reason that we are seeking one forum in which to
resolve these issues. It would make no sense for Rambus,
which has all of these other cases lined up in front of
Judge Whyte, if they get an adverse ruling from Judge Whyte
in the first hearing, to think that he would not find in a
bench trial that that same ruling applied in the other
cases. That is a ruling which Rambus will have every
incentive to seek final review of in the Federal Circuit or
the Supreme Court if it were to lose that case.
===
***
Section 1404. Change of venue
(a) For the convenience of parties and witnesses, in the interest
of justice, a district court may transfer any civil action to any
other district or division where it might have been brought.
(b) Upon motion, consent or stipulation of all parties, any
action, suit or proceeding of a civil nature or any motion or
hearing thereof, may be transferred, in the discretion of the
court, from the division in which pending to any other division in
the same district. Transfer of proceedings in rem brought by or on
behalf of the United States may be transferred under this section
without the consent of the United States where all other parties
request transfer.
(c) A district court may order any civil action to be tried at
any place within the division in which it is pending.
(d) As used in this section, the term 'district court' includes
the District Court of Guam, the District Court for the Northern
Mariana Islands, and the District Court of the Virgin Islands, and
the term 'district' includes the territorial jurisdiction of each
such court.
Micron wants to "stay" the case (hold in abeyance) while they appeal a denial of their request to put the dispute into arbitration process rather than litigation.
I didn't even know that Micron had such a motion pending, let alone a denial by the CA judge
smd
================
MICRON DEFTS' MTN TO STAY PROCEEDINGS PENDING RESOLUTION OF INTERLOCUTORY APPEAL FROM DENIAL OF MTN TO COMPEL ARBITRATION
your replies are much appreciated, especially so since I have no patent law background and no clue on the tech aspects.
I'll try to keep the multipart Qs only of the thought provoking variety.
Have there ben posts on the theory behind the way McGuire released the ID - with a one-liner public decision on 2/17 and a week-later [2/23] release of the full ID with the in camera stuff redacted.
Why did he not do the 2/23 release last week?
again thanks for the replies,
Steve D
hey guys - just wandered over from the Yahoo board.
it's a little calmer here so maybe you all can answer some questions, one general and a few about this intel announcement
--what if 17200 c'claim by IFX gets tossed as it should, I 'm curious what defenses IFX can raise in the case, and use to drag rmbs thru the mud - - assuming Payne lets them do it?
--on the Intel announcement?
# Duz the design rely/depend on RMBS's patented technology?
# If so, then what duz it mean to RMBS' ability to collect royalties if the Intel "device" goes to production?
# what duz it mean if it goes to production in '05 - - Intel pays zero beyond the 10 mil/qtr?
# But what about the mfr partner doing the production?
# Once the Intel / RMBS deal expires all production is subject to royalties?
TIA
Steve D