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Further to the notion that you cannot claim "all" of the savings afforded by an invention, take a look at the Mobil/Amoco case of 1994. In that instance Mobil wasn't even trying for the whole amount - they tried to claim 1/2 the savings to Amoco as a "reasonable" royalty. Amoco used the existing agreements Mobil had in place to show that the number being asked (the "savings" calculus) was 8 times too high.
So I don't know if Rambus is going to go this route, but I suspect they would not get far, particularly if the existing agreements are significantly below the "savings" figure.
Da Greek
More on reasonable royalty, this article confirms what I was saying about the timing issue:
"... The time dimension is critical: the royalty should depend only on information that was available no later than the date the infringement began. Introducing later market developments can greatly distort the analysis."
www.royepstein.com/epstein_ aipla_2003_article_website.pdf
I don't know when Hynix "officially" became an infringer, but that is the benchmark which one must look at to understand the context of "what" can be looked at. Any later agreements (including IFX) may be cast as irrelevant.
Da Greek
SMD:
Y/N - The likelihood of admissibility of the Hynix agreement w/ Rambus is high
I don't even know if Rambus is trying to get this in.... also, there were two agreements as I recall. So I don't even know which one we are talking about. If Rambus tries to get an agreement which says 2.5% royalty, I'm not even sure Hynix cares if it is admitted.
Y/N - The likelihood of admissibility of the IFX settlement w/ Rambus is low
This is a tricky question because the answer is dependent on "what" you mean from the settlement. The FACT of the settlement agreement may very well be introduced for a variety of reasons. For the parts dealing with what IFX paid, I rate the odds at 50/50.
Y/N - The likelihood of Hynix ATTEMPTING TO ARGUE Rambus's financial size as a factor in the assessment of damages is low
Y/N - The likelihood of Rambus ATTEMPTING TO ARGUE Hynix's financial size as a factor in the assessment of damages is high
Both of these are (usually very) irrelevant to the reasonable royalty calculation for damages. So I don't see either coming in to play. For wilfulness, the infringer's size is also irrelevant: all that matters is their conduct. Now, of course, one can say a reputable company of certain size should do certain things, so there are ways of backdooring the info.
Again, it depends very much on the purpose of the information being offered.
Da Greek
JMONTIM,
SMD pointed out a decent site which explains the VERY lengthy and complex analysis that has to go into a "reasonable royalty" calculation. The problem here is that there is no way to predict "which" factor the Jury will adopt in awarding damages. There is way too much uncertainty.
The patent owner TYPICALLY tries to show that there is an "established" royalty rate that everyone else is paying, and so that is what the infringer should pay too. This has some persuasive value, and can be used to great advantage. In probably 90% of cases you see, this is the tact taken by the litigators.
The difficulty here is we are NOT talking about an apples to apples comparison. That is what Cal is pointing out as well. When Rambus walks in and tells the jury that they are getting 3.5% for their ENTIRE portfolio of 400 patents, the jury will naturally discount the present set - no matter how much you may love them - to some fraction of that. Plus, if they only find infringement for a fraction of the claims that you put on, they will again naturally discount that as well.
With all due respect, I think you are ignoring basic human nature which tries to come to some basic fair split of the difference when there is a dispute. Rarely do they pick all one side or the other, unless there is something to dislike. And, in this case, Rambus so far is the party with a lot of mud on their shoes, hence the reason they are fighting hard to keep out all the IFX/fraud/spoliation stuff from the jury.
Sidenote: In terms of "duplicate" claims - it happens all the time, companies patent very close variants of almost identical scope. I could claim a "Phase locked loop circuit" I could also claim an Integrated Circuit made on silicon with the PLL. They are separate claims, but the gist of the invention is the same.
Here is another good snippet from that article:
A reasonable royalty is the amount that a person,desiring to manufacture, use, and/or sell a patented article, as a business proposition,would be willing to pay as a royalty and yet be able to make, use, or sell the patented article in
the market, at a reasonable profit
Again, I think this is what Cal is getting at. You can't just say "oh, the patent saves you $1, I want that whole $1" - the law allows the person to make a profit off the item. If my profit on the item is .50 because of general cost/supply/demand factors, there is simply no way a Court is going to say "ok, we are giving you that whole $1" ignoring the basic "reasonable profit" still afforded to the infringer. The reason, again, is that no reasonable business person would agree to such a deal in the hypothetical scenario that the case law requires. That is what the statute is getting at - what would a reasonable person do. That is why, too, these cases are so god awful ugly and complex.
The FTC Judge, while competent, did NOT have the benefit of much of a counter analysis. Plus, you are again looking at apples/oranges; he was NOT looking at the same legal theory. He was simply looking to see if the DRAM makers were locked in - not whether the rate requested was a "reasonably royalty" within the meaning of the patent Act. He would not be qualified to render such judgement anyway.
The mess is further complicated by the fact that most of these analyses are done by looking at some percentage of "profits," something which the DRAM companies have not seen most of the time. So quantifying the "benefit" of Rambus technology is challenging for that reason.
In the end I don't know what theory Rambus will use because I'm not sure the agreements are their best source anyway. We will have to see.
I only point all of this out because, at one point in time, you used to behave reasonably and civilly, and maybe I feel there is reason for a second chance and a hope for useful dialogues in the future - but I won't be making second overtures if the tone of the posts continues to be .... well, so Yahoo like. I came here to have a reasonable dialogue, and that is why I typically check my guns at the door. If we don't follow that policy I think we are in for the death spiral here too.
Da Greek
I have maintained since observing Cal's behavior during the evidentiary hearing that he was in essence just another Nic.
There are probably no less than 50 posters on TMF who would pass out laughing if I cross-posted this. I daresay Cal, more than anyone, has been a staunch - OBJECTIVE - supporter of Rambus and their technology for many years, probably before you ever heard of the company. That the new breed of "investors" considers him a heretic just really tells me we have reached the Inquisition stage where anyone not touting the party line is subjected to random taunts.
It would be funny if it were not so sad - the last thing you want to do is antagonize a guy who probably brings more to this discusson from a technical perspective - ON YOUR SIDE OF THE FENCE BTW - than any of the other pseudo experts I have read. But as I said some time ago, the only thing other than a poor stock price the Rambus investors can't handle is a good stock price.
Da Greek
- I believe that rule keeps the IFX deal away from the jury. Nic wants everyone to believe that it keeps all of the previous license deals away from the jury, and the only things admissable would be the IFX deal and what huge companies charge.
Maybe you'd have more success with your arguments if it were truly my position you were arguing with, as opposed to some fabrication of your own mind that you set up to fight about.
Please re-read my prior posts: I said nothing of the sort. I in fact told you what the test was: it has to be a license that bears on the appropriate time frame, and it has to be something which supports the (artificial) framework of a hypothetical arms length transaction. So what I pointed out, if you were to pay attention, is that the other agreements you think are coming in as evidence are no more relevant than the IFX agreement. Hence, absent any other information, it appears the chances of both are about the same for admissibility.
Contrast that with your position that: 1) the older Hynix agreement (and other agreements with third parties) was effectively a done deal; 2) the IFX agreement would never get in. This is clearly nothing than the obvious party line bias - you are not analyzing, you are just regurgitating.
Da Greek
Any comparison between Rambus and IBM is Oscar Meyer...and a waste of IHUB data storage space.
Now that's enlightening; I take it you sent NukeJohn a strongly worded message, too, telling him not to be posting any of that FTC nonsense findings and comparison about IBM as well? For those paying attention, that was the topic of the discussion.
Da Greek
Don't speak for the board, speak for only yourself.
I knew it would take only a few hours before someone would prove my point about Rambus dogma beyond a reasonable doubt.
Da Greek
Believe Mr. Hughes and others have stated certain of Rambus's patents are fundamental to all DRAM.
Hey 3J,
That's the basic refrain of any advanced technology company. Do you have any idea of the "fundamental" areas where IBM controls key patents? It dwarfs Rambus.
My only point in all of this was to suggest that the IBM model which everyone seems to love is not going to fly here.
Da Greek
Cal,
Thanks for setting out the remaining claims in such clean fashion. Its been hard to find a reliable and simplified list anywhere.
I think you are wasting time here using facts and logic. If it doesn't come from the Rambus playbook or official dogma, it is pretty much Chinese to many.
Many now have deluded themselves to the point where they think Whyte is going to believe that Rambus is now equivalent to IBM and so they can charge the same rates (1 - 5%). Unbelievable, a neophyte company with limited patents in DRAM is being compared to a technological collossus with thousands of patents covering almost every aspect of software and hardware made in the past 50 years.
Da Greek
I know because I read the objections/nonobjection lists.
Right; for which part of the case? Introducing a license agreement might be acceptable in the conduct phase or unclean hands phase, but not in the damages phase. It depends on the purpose intended for the document Plus, the "fact" of the license may be introduced, but the specifics of the royalty may be objected to,etc., etc.
I suggest you post a link or a file
Da Greek
Just don’t listen to the greek thing.
Of course, far more preferable to place your faith in complex legal matters with amateurs who don't know have the faintest clue what they are looking at. Gee, sounds like the Yahoo Board already.
Da Greek
Actually, yes! the contract is what Hynix actually agreed to without duress. It is admissable.
No, because it is what Hynix agreed to and signed in 1995 - it has no bearing on what Hynix would have agreed to - or more importantly what a reasonable party would have agreed to - at the time of the infringement, which did not occur until after the agreement expired. I don't think you guys have thought this through, or understand the complexity of the analysis.
The other matter is a settlement number which is not admissable under FRE 408.
While I have not researched this in a LONG time, I am almost certain that rule doesn't even apply, since the IFX agreement is not a settlement for liability. The only basis Rambus can keep it out is along the same lines of my logic above: it is not contemporaneous with the start of the period of infringement.
Da Greek
That completely ignores the testimony and FTC ID that stated that Rambus was asking a rate that was LESS than royalty rates currently being paid by the JEDEC memeber companies. If what you say is true, then why didn't the FTC call you as an expert witness?
JMONTIM,
I will forgive you for not paying attention because you don't hang around MF.
With that said, if you WERE around back in those days, you would have heard (read) me saying that the FTC had botched their case on that front. The messages are crystal clear on that. But that's because the FTC never expected to have to put on a case in the first place for reasons we have well explored. Trust me, the Hynix expert will make no such mistakes.
Rambus' number is probably 5%, Hynix already agreed to 2.5%. Somewhere in between is 3.75%
Hynix's problem is that they already agreed to pay 2.5%.
Right. And fat chance of ever getting any of that evidence in. Do you think for a moment Whyte is going to say, oh, yeah, its ok for Rambus to introduce evidence of THAT contract for DRAM, but keep out the IFX agreement? Stop rubbing the Rambus Buddha and start using your head.
Da Greek
Can you provide a heads-up on the key motions?
From my MF posting:
Just a heads up; there is a lot of material being filed, and I just wanted to pass on what I think are the key items. These are all submissions to the Court to have the Judge exclude evidence that can be shown to the jury. I can't tell you enough how important this is, because you may have a great case, but if the Judge keeps out your proof, you are stuck in a pretty bad bind.
NOTICE OF MOTION AND MOTION in Limine to Preclude Hynix from Presenting Evidence Relating to the Settlement Agreement with Infineon filed by Rambus, Inc.. Motion Hearing set for 2/16/2006 02:00 PM. (dhm, COURT STAFF) (Filed on 1/27/2006)
This is by far the biggie, and probably pivotal to this entire litigation. Rambus needs not only to win the battle, but also the war. So Rambus is trying to keep Hynix from introducing anything relating to the IFX settlement/agreement. If they are successful, the limit on damages is probably much higher - i.e., in the 2% or higher range, while if they are not, the jury will be looking at the IFX agreement (which depending on who you talk to ranges from .2% to .7%).
I would look for one of the analysts to bolt to the door to make a call if Whyte rules in Rambus' favor on this one. I'd love to see the papers, so if anyone has them, please post a link.
NOTICE OF MOTION AND MOTION in Limine to Preclude Hynix from Arguing that the Rambus Patents, or Their Claims or Inventions, are Limited to a Narrow, Multiplesed Bus Architecture filed by Rambus, Inc.. Motion Hearing set for 2/16/2006 02:00 PM. (dhm, COURT STAFF) (Filed on 1/27/2006)
This relates to infringement, of course. While Hynix can't change the claim "interpretation," they are free in their opening/closing arguments to try and paint the bus as something less than that. So Rambus is trying to preempt this subtle poisoning of the waters with the jury. Again, if Hynix is precluded from saying about a narrow bus, the jury is much more likely to find infringement.
NOTICE OF MOTION AND MOTION in Limine to Preclude Hynix from Presenting Evidence Regarding the Practice of Drafting Claims to Cover Competitor's Products filed by Rambus, Inc.. Motion Hearing set for 2/16/2006 02:00 PM. (dhm, COURT STAFF) (Filed on 1/27/2006)
Another huge one. Rambus has learned from Desmarais, and wants to avoid a repeat of the "they watch and they file" argument. This is also a preview of the fight for the jury instructions, and how the Kingsdown instruction will be worded. If Rambus wins on this one, I suspect the Kingsdown instruction will be in their favor. At this point I suspect Whyte will rule in their favor since this is NOT the conduct trial - yet, so there is no reason to be mentioning HOW the claim came into existence.
On the other side, Hynix has filed a motion to preclude Teece from presenting his "expert" testimony on damages. So that is the key one for Hynix. If Rambus can't get their big numbers in, the jury will not have any mileposts for awarding damages.
Anyway, those are the ones that stick out, and if anyone is at the Courthouse that day, these are the items I would pay very close attention to. I make no predictions unless and until I see both sides' papers....
Da Greek
ntp asked for 5.8% judge awarded over 8 percent. qualcom is getting substantially north of that
Every royalty is tied to the economic realities of the market it pertains to. What kind of gross margins do you think RIMM and Qualcomm are seeing? Now compare that to vanilla commodity DRAM.
These are the variables the experts have to set forward to justify any "reasonable" royalty for an invention in a particular field.
Which one do you think is higher? I can certainly tell you from negotiating these things that the best of DRAM portfolios rarely see more than .5% because of the economics of the business.
There is no way a jury gives Rambus anywhere near these numbers. I think they will be lucky to see 2.5%, and will likely see between 1 - 1.5%, because they will, in all likelihood, come in between Hynix's number and Rambus's number.
Da Greek
PS: Cal I hope this answers your post too.
Well - if Calbiker sits next to you, you shouldn't have to worry about those Yahoos. You just have to worry about Calbiker! ;>
Cal and I used to butt heads all the time over on MF; we may disagree at times, but I sense very little in the way of hostility or danger there. In fact I daresay - from reading his posts- that he has grown closer and closer to my feelings about Rambus "the company" since he left MF a few years back.There is much more caution and skepticism than in his earlier years where he seemed to be drinking from the same punch bowl as some of the die hards over there.
Da Greek
I don't buy into the premise that it takes only one claim win to get some 5% royalties.
As well you shouldn't.
There is a bit of "Watzitis" creeping in everywhere, this weird notion that if Rambus wins on JUST one claim, it is game over. Let me tell you, that will be a catastrophe. Rambus is going to have to set a benchmark for the entire set of patents at stake; if the Jury doesn't find infringement on 90% of the claims, what do you think the "reasonable" royalty is going to be for the average juror?
I said it back in 2001, when you were still on the TMF: you can win a whole bunch of battles and then lose the war if you don't do a bang up job on the damages presentation. This is THE most critical part for Rambus right now.
Da Greek
PS: are you going to Whyte's hearing next week? These are going to be some key motions... I was thinking about it but I am concerned about the radical Yahoo element being there and doing what they do best: barking a lot, and I can't bring in my can of mace to the courtroom LOL
I think the Judge will want this trial complete in 2.5 weeks because of the jury also the case seems easier to present than spoliation.
As a general rule jury trials are MUCH slower than bench trials for the same alloted time. The reason is that there is a lot of frictional time associated with picking the jury, moving them in and out for conferences, sidebar interruptions, etc.
So I tend to think this is going to be longer than the unclean hands trial, particularly if there is more time alloted.
Da Greek
Say Nic, is Cal Da Biker going to see you in March? Didn't want to attend, but hell, the last trial persuaded me to buy rmbs, and it provided me with quick 100% gains. Almost feel that I need to continue that tradition. Ha.
It depends very much on my travel schedule, but I might very well try to drop in for a day or two; if I do I'll make a note here and perhaps we can find a way to hook up.
Da Greek
Nic, so you're not going to prognosticate how Whyte will handle the issue of what evid gets in?
Ah, don't you think we ought to see what the evidence is first?
Da Greek
I was asked a question on The Motley Fool about "reasonable royalty rates". I think it is instructive to review the findings of fact from ALJ McGuire's ID at the FTC. The document is searchable so you can enter anything and search it.
Teece's work is very good; the only thing is, it probably won't be relevant in the district court cases; or at least, it will be have be modified quite a bit. The reason is, his mission was to explain why the actual offered rates WERE reasonable, i.e., an after the fact justification, as opposed to explaining what the rate should have been in the first place in accordance with Supreme Court factors such as set out in Georgia Pacific. Teece's evidence was really put up to defend against the charge of lock-in, by suggesting that the offered deal from Rambus was cheaper than the alternative.
In the trial, Rambus and Hynix will be pegging all their evidence to the factors set out in the GP case, and as you can plainly discover on your own, it is a much different test.
The other thing is that the analysis has various weaknesses ( none of which I will point out here for obvious reasons) and I somehow suspect that the O Melveny's of the world are going to do a somewhat more impressive job rebutting this evidence than their rather inept government counterparts. During the FTC trial I in fact pointed out several areas where the Staff presentation was incredibly weak on this point.
All in all it will be a hotly contested issue; the party that gets their evidence "in" will win, so that is the key thing to look for. The jury is secondary in some respects, because they only are allowed to look at the evidence which the Judge allows them to see. So their verdict is to some extent constrained this way.
Right now, I am dubious that they will see 3.5% from a jury; but we will have to wait and see what is allowed at trial.
Da Greek
Seems unusual for you not to opine one way or the other. Any comment?
200 - 300 pages of new pleadings get posted late yesterday afternoon and you think it's unusual I haven't posted LOL?
My you guys are demanding. If I get a break in action where I can do something I will let you know - deal?
Da Greek
Payne can't do it.
Famous last words.
Da Greek
So let's assume an average DDR market of $20B over a five year period and 3.5% royalty.
That's $3.5B in royalties, not including controllers.
I'm sure CC and all the rest of the opportunists are drooling at using these ridiculous inflated numbers in their pleadings.
Just goes to show that gamesmanship can come back to bite you in the a**
Da Greek
One of the more interesting tidbits from yesterday is that Payne asked Desmarais if he would be willing to drop 17200 and Desmarais replied that he would have to confer with his client.
Well that would be HUGE.
I'm surprised its not getting more air time.
This is probably the biggest hurdle Rambus has at this time. If they can turn Payne around on this one, they're halfway there...
Da Greek
3/16/04 581 Minute entry: Payne, J., Diane Daffron, OCR. Parties by counsel. Arguments had on Plaintiff's Motions to Compel. Motions denied. (snea)
Without more, its hard to say, but it does not look positive, that's for sure. It tends to suggest that Payne is giving IFX more protection against any Rambus intrusions.
I'm surprised this has not been plastered everyhere on MF and Yahoo! since it seems kind of pertinent.
Da Greek
Have to survive a USPTO challege as well, it seems. At least the USPTO acts fast.
3Jack,
The Eolas case is interesting. I seriously doubt this initial decision by the PTO will be maintained. The Examiners tend to kow-tow to the Commissioner when this amount of PR is generated, but then they usually change their mind later ( typically under pressure from the patent owner's attorney LOL).
I'm on record as saying that the "eventual" outcome is that the patent stays as is, or, at least, is unscathed enough from the PTO that the original verdict will still stand. This is just the first Office Action, and while they are 90% typically negative, in the end 80% of the patents emerge with no major scars.
Da Greek
Needless to say, this poster (who wrote a letter to Judge McGuire during the FTC trial) has incurred the wrath of his fellows.
3Jack,
Some people aspire to rise to the level of clueless.
Sadly KRF doesn't know enough to even have such aspirations.
Da Greek
You might be right. Understood him to say a DDR license did not extend to DDR2, but could be wrong.
3Jack,
You're getting hung up on some words from Tate which really have no bearing on whether Samsung "needs" a license or not. Samsung HAS a license with Rambus; I don't know EXACTLY what it says, but if it is true to conventional practice, and is consistent with what I have learned in the past, there is no issue about whether they are "covered" for DDR2, DDR3 or DDRXX. Knowning Samsung and their licensing practices, I can almost guaranteed there is no way they would leave the door open for yet another 5 year argument on scope of IP, payment rates, etc.
Da Greek
So the Agreement specifies product on that technology can only be built for IFX?
Typically, even if the deal is announced to be IFX-only, it allows for some private label sales to certain downstream customers. In such instances the foundry DOES have to pay a royalty on the product sold to the third party.
But in the pure IFX directed sales, you are right, there is no royalty.
In addition, as Cor points out, IFX has significant process expertise, and can market that IP quite separately from everything else. For some reason, many people on the Rambus thread don't understand that there is an entire universe of IP outside the interface that is just as critical if you want to actually MAKE DRAM. Its one thing to propose a design, and quite another to build it efficiently and cost effectively in silicon.
Da Greek
IFX and China
3Jack,
As I've alluded to in the chat rooms, IFX clearly wants to become "Rambus"-like by licensing IP to Chinese/Taiwanese startups in the memory market. They want out of DRAM production, and IN for DRAM IP collection.
Da Greek
I really fail to see the hard connection between Micron's amnesty discussion with DOJ and a settlement with Rambus.
I'm with you.
For me, its mostly a matter of two unconnected - and only tenuously connectable - dots. The one does not really deal with the other, even though the media have hyped it that way. My impression from reading his stuff is that Erich Desai (sp?) has also backed down and acknowledged that this DOJ development covers a very different era and set of facts. The purported "production limiting" was not of RDRAM, but of DDR, in order to bolster the price. There was also price discussions for maintaining the price of DDR over a certain level.
In general, one cannot use evidence of a prior (or later) bad act to prove liability for some other act. So I'm not really that impressed with the logic behind the rise, even if I am enjoying the ride.
Da Greek
To talk of 10% or more of TAM for penetration is very unusual. Name me one company which has that sort of penetration?
To me, that's key.
Again, I would challenge Rambus to tell me what their penetration rate is today (looks far less than 1%) and ask how in the world they are going increase that by a factor of 25??? in the span of 3 years.
Cor is right; by any reasonable measure, even if they were "phenomenally" successful and doubled their present market, they'd probably be looking at 2%, not 25%. There are certain fundamental technologies today used in ICs, far more basic than Rambus, that don't see 75% penetration.
Da Greek
After reviewing extensive prior art asserted by Infineon and other Rambus litigation opponents, the EPO upheld the validity of the Rambus patent but required Rambus to add additional language based on a conclusion that the additional language better reflected the scope of claims as originally filed in Europe by Rambus. Under European patent law, unlike US patent law, patent claims cannot generally be amended to expand their scope beyond the claims as initially filed. Rambus is appealing the requirement that it include this additional language in its claim."
3Jack,
Its as simple as this. The EPO is NOT going to let Rambus change the original claims into someting broader. While that practice is allowed in the US, it is much more restricted in Europe. Over there, you get what you file, not what you might conjure up 10 years later as your invention.
The upshot is that the claims, if restricted to the original filing, are extremely limited. They have too much baggage in the way of extraneous limitations.
So Rambus is trying to get the restrictions lifted. If they do that, however, the EPO is suggesting that the prior art will now come into play.
So it is a real mess. There is no easy solution for this; it will be years in the "fixing" because if Rambus succeeds in getting the new language, IFX can march back in and say, ok, now your claims are broad enough to be invalid in light of the prior art. And so on.
Da Greek
I see royalties at 25M per quarter, including the Intel 10M per quarter. Are you already counting in royalties for sdram and DDR which Rambus does not have (as yet)?
You know, Cor, thanks for pointing out how grossly optimistic *I* was being.
You are right, I misread the 10-Q to mean that the $85m was royalties,when in fact only a fraction are that.
Since the Intel number is not going to get any larger, I really would like to have some of that weed they are smoking. Might be better even than the stuff you guys get over there...
Da Greek
Think his calculation is aggressive on all counts: % blended market penetration, % blended royalty, and EPS.
We've seen this before last year, and I think it is grossly irresponsible to put this kind of stuff up without giving some context.
I can put up numbers as well as the next guy based on wild assumptions. But let's stick with reality, such as:
(1) what is the current blended royalty rate; (I'm betting 2%)
(2) what is the current penetration rate? (I'm betting 5%, not anywhere near the 25% he is putting up there)
(3) what in god's earth are they going to do essentially double or triple the first number? Or improve the second benchmark by a factor of.... 10??
Did any of you there see something which suggests that the present model is so immature, inefficient, you name it, that it can be improved by a factor of 10? I mean, they did something similar last year, and I don't see any signicant change to suggest we are on that kind of trajectory.
Royalties right now are 85m per quarter, or about 340m per year. So what percent of the market is this? What blended rate are they seeing right now? From what I can tell, he is at least overstating things by a factor of 300% from the worst case scenario on that chart (at 25%)</I>.
Don't get me wrong; I'd love for my little stake to grow by 300% in a year or two. But these look like wild desparate numbers you see startups selling to VC's to get funding, not responsible numbers from a mature company. Someone should have given him a magic marker and said, "ok Bob, please draw the curve of where we are now, and how we get to one of your rocket paths here on your graph."
Da Greek
Even given the new case law, don't see how Rambus can be penalized for taking too long to file claims when part of the delay was created by the PTO itself.
3Jack,
First, as to the document issue: your post confirms that we don't know who wrote this. Unless there is an author who can confirm that these are his/her words, this could just as well as come off Tate's typewriter. We don't know. We also don't know if he/she accurately transcribed what happened.
That is why we have authentication rules in evidence. That is also probably why this document never made it to trial: it does not measure up without a witness to go with it. Believe me, it happens all the time...
Second, on the point above, in talking this through, I think I can clearly see where IFX is going to go with this. What they will say is the following:
(1) Rambus' internal emails reveal "knowledge" of purported use by JEDEC of Rambus inventions, as early as 1992/1993; I don't think there is any controversy about this.
(2) Rambus intentionally delayed until after leaving JEDEC, 3 or 4 years later, to file claims on the subject matter that they knew was supposedly being taken by JEDEC. Again, since Rambus is arguing exactly this in the FTC (to avoid a finding that they were filing claims while part of the standard group) I think this is pretty much a given.
(3) This intentional delay resulted in (pick your argument):
(a) a "constructive" abandonment of these inventions. Even if what you say is true on the '898, this restriction requirement came down in 1991/1992; so they could have filed the claims right then and there.
(b) a failure to properly follow PTO regulations which require diligent prosecution of cases;
(c) a waiver to the public of these claims;
etc.
The question is, will Payne buy off on any of this. Well, look at it this way: (a) he doesn't like this case; (b) he can "kill" the whole case again, without ever looking at infringement or any technical details, by using precisely this type of legal theory.
Or he could conduct a long, drawn out jury trial extending several weeks.
If you were a not so motivated trial judge, what would you do?
I can see the appeal here (on more than one level LOL)
Just some musings...
Da Greek
At TMF, Nic doesn't seem to think this is too damaging to Rambus' adversaries or it would have been entered into evidence at one of the trials.
3Jack,
The other problems are simply this: (1) ambiguity; (2) authentication.
The first is simply, if I read that statement, I cannot come to the absolute conclusion that Danfort wants to set forth. It just looks like sloppy language. So its certainly not clear enough to be a smoking gun.
The second is who wrote this and in what context? I don't see an author. If this was written by some peon at JEDEC, who had no clue about anything, the value of it is essentially nil. It would have be to shown that the drafter was someone of importance, had some knowledge of the full situation, and was authorized to speak on JEDEC's behalf in this instance.
You have to have some standards, or else we could start quoting the ramblings over on Yahoo! as authority, and we all know where that would lead.
Da Greek
PS: I suspect the "new defense" being considered by IFX and the rest is some kind of estoppel theory based on the delayed prosecution in the PTO. There is some case law now (Symbol) which basically can penalize the patentee for taking too long to appreciate what he considers to be his invention. By that logic, if Rambus "appreciated" the invention back in 1990, they should not have waited until 1997 to file claims. Or they could try a regular estoppel/laches defense, based on Rambus conduct, to suggest that even if they did not break the JEDEC rules, their behavior was such to lead a person to believe they were not going to enforce on a JEDEC standard part (or something to that effect).
The documents are an unknown and Payne is a wild card, I understand, but in your experience is there much chance of the fraud claims being reopened in Richmond, especially after a higher court has reversed the original verdict and the SC has refused to hear the case?
You know, you got me here.
I have never been in a case where it was argued that material unearthed after the trial - and which could and should have been produced during discovery - could be the basis for resurrecting a lost claim. It would take days of research to figure this procedural question out...
But my gut feeling is that Payne would NOT allow a re-try of fraud. The CAFC has killed that pretty good I think, on legal grounds that would not be cured by any missing materials.
The only thing that is confusing is the "JEDEC" language used in this press release. Its possible that IFX is going to argue that the conduct by Rambus was an anti-trust violation under regular federal law (not FTC). I think Payne tossed this out during the regular trial, so IFX COULD ask for that to be reinstated - at least, that is my suspicion.
Again, these are murky areas of complex procedure, so a clean cut answer is not possible. That is also the reason, BTW, that the Rambus language is so slippery in the release: they are not sure either.
Da Greek