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Perry forcing a smile, Estevez looking resigned.
Cartel attys huddling to read something,
usually have a smug smile during/after,
then looking sheepish as they realize they are in court.
This was prior to judge, at about 9:18.
My gut sez bummer.
There will be many surprized attys if THJK doesn't do as they intend. I hope so.
All IMHO
Good luck to all.
Lolo
OK, IV back up at least when I just checked.
Lolo
IV Down Again. odd timing, eh?
lolo
AllMB Overview at TheLion.com handy sanity retention tool
It scans many different RmBS message boards for new posts, including IHuB.
There was some place to join a list of people who would receive the live notes from StraterTele (Gary). Luckily those folks seem to repost fairly promptly at various MB.
I didn't go to court today.
OF
lolo
Thanks man,
Heading up to SF now.
OF
Hey Doug;
Very helpful post, maybe best of the day so far.
Can you put up a similar MFG list of MIL?
TIA
OF
Cryptic Getup Post regarding counterintuitive behaviour left me hanging. I guess we never saw any more lottery-ticket options plays, or perhaps IV was having a down moment when you might have otherwise posted another of your prescient calls.
I, for one, was certainly baffled by the enigmatic message...
OF
They are handling a Tessera issue now. H is trying to argue something arcane and off-topic, so the RfP is not expending their energy to try to translate it into something tweet-ible.
The guy aka OF-LOL
this handle was a joke on Pako Lolo
OF
IN my opinion,
the stay was the reason for the bond, to ensure that
rmbs would not lose their ability to collect against hiney if
hiney finances tanked during the stay.
Hiney probably carried the day today,
('No more stay, no more bond')
but rocky made the following points;
1. In aug06, lynch had agreed with the court that the bond was appropriate when hiney was requesting the stay.
2. acknowledged that he didn't make a showing that hiney finances were weak or weakening,
3. clarified that p3 would already have happened but for the stay
4. said that further delay effort by hiney would be the reason for an ALOC or bond, asked hiney if they were going to ask for more delay in early april, unanswered by nissly
5.Continuing infringement by hiney with ddr2
6. harm to rmbs, both $ and opportunity cost
(design-in of ddr2 instead of xdr because of non-payment of royalty, implied but not stated clearly).
Rocky seemed to be saving his credibility with the court for another day, avoiding wastage of time.
Perry did address the inapplicability of the PF cases finally cited by hiney. Little reiteration , fairly lucid and direct.
LOLo
Resounding validation that email to THJW is INAPPROPRIATE.
expect admonishment from rmbs.
Remember this part when you hear about the Remedy
which will rely upon the world that would exist,
'but-for' the nondisclosure.
I expect many assumptions that alternatives would have been chosen,
etc.
But that would have been against ieee rules anyway.
LOLo
from
http://www.ftc.gov/os/comments/section2hearings/522292-00002.pdf
participants in standard setting as follows: "You must not discuss subjects like the pricing for
use of a patent, how a patent should be licensed, validity or interpretation of a patent claim, or
any terms or conditions of use. These are not appropriate topics for discussion in a standards
developing co~nmittee."~
. TheIEEE bases this prohibition on licensing disclosures that go beyond an offer to
license IP rights on free or reasonable and non-discriminatory ("RAND") terms in significant
part on the need to avoid antitrust liability for the IEEE and its member^.^ Guideline 10 of the
IEEE's "Guide to Standards Meetings Policies" directs participants in IEEE standard-setting
activities to "Refrain from discussions that violate anti-trust laws," including the "validity of
patents or the cost of using them. ,,5
This concern is not unique to IEEE.
Well, Well, When THJW said Fish or cut bait,
and named the date of decision,
lo and behold,
the agency did deliver.
Expect a flurry of motions in every venue, including SFdistrict court, and all those others.
Good luck to us all
LOLo
INCREDIBLY SHOCKING EYEWITNESS NEWS: RAMBUS PR IN ACTION
Sit down,
Calm down,
Not for the faint of heart...
Luckily I had the car on cruise control when I spotted it;
On northbound Highway 101 between Redwood City and the San Carlos Airport (in the SF Bay area)
A Fullsized, traditional RAMBUS XDR Billboard.
I think besides XDR Memory
it said Fast, Faster, Fastest!
semi-purple background?
I'm not sure what color goes with mudflats...
Holy crud, will miracles never cease?
I was trying to guess why there?
Maybe Electronic Arts is in RWC?
Oracle? maybe just a place where the cars go slow?
I was going fast so scant details...
Amazing!
LOLo
Poolwater; You May Not Crosspost nor duplicate
worth a look. Go to findlaw , sign up for the free subscription,
and download it.
case number is 99-56933
file is 9956933p.pdf
Aug 3 2001 ninth circuit
some drivel omitted.
FN3 is not happy news, but the rest is
dy
no
might
AMDO, IANAL
LOLo
some tidbits;
"OVERVIEW
Plaintiffs-appellants Aqua Tri and Pool Water Products
("plaintiffs") allege that defendants-appellees Olin and Superior
Pool Products ("defendants") have engaged in a "whole
host" of anticompetitive activities, including the illegal acquisition
of a fellow dry chemical manufacturer, FMC. That
acquisition was deemed illegal by the Federal Trade Commission
in a separate proceeding. In a series of pretrial motions,
plaintiffs asked the district court to give the FTC decision
prima facie weight in this proceeding under Section 5 of the
Clayton Act, 15 U.S.C. § 16(a). Defendants moved to exclude
plaintiffs' expert from testifying and to dismiss the case
because plaintiffs lacked antitrust standing. The district courtdenied plaintiffs' motion and granted the defendants' motions.
We affirm and hold that plaintiffs failed to meet Section 5's
requirements for giving the FTC decision prima facie weight
and failed to establish that they suffered any antitrust injury."
here some missing drivel including the part which pointed to note1
_____________________________________________________________
Interesting footnote 1
1 For a more detailed description of Olin prior to 1987 and the FMC
acquisition see Olin Corp. v. FTC, 986 F.2d 1296 (9th Cir. 1993), and In
re Matter of Olin Corp., 113 F.T.C. 400 (1990).
__________________________________________________________
more stuff;"B. The FTC Proceedings
The FTC challenged Olin's acquisition of FMC in 1985.
After a 52-day hearing in 1987, an Administrative Law Judge
("ALJ") made 895 findings of fact and six conclusions of law
and ultimately held that the acquisition violated Section 7 of
the Clayton Act and Section 5 of the FTC Act and ordered
divestiture of the FMC assets. See In re Matter of Olin Corp.,
113 F.T.C. 400 (1990). The FTC substantially affirmed the
ALJ's order on June 13, 1990. We denied Olin's petition for
review in a published decision, Olin Corp. v. FTC, 986 F.2d
1295 (9th Cir. 1993), and the Supreme Court denied Olin's
petition for certiorari. 510 U.S. 1110 (1994). At that point
Olin began divesting itself of the FMC assets."
"D. The Proceedings in the District Court
Plaintiffs filed suit against Olin and SPP in 1992 alleging
that Olin and SPP attempted to dominate the dry chemical
pool sanitizer industry and destroy competition. In their Third
Amended Complaint, plaintiffs alleged Olin and SPP had
engaged in the following anticompetitive activities: (1) the
acquisition of FMC's assets, (2) price squeezing of repackagers,
(3) predatory pricing by SPP, (4) price discrimination
against repackagers and distributors, (5) refusal to deal with
Aqua Tri and PWP, (6) vertical integration, (7) exclusive distributorships
of Olin's products, (8) collusion between Olin
and other manufacturers and (9) collusion between Olin and
other distributors. Plaintiffs claim these anticompetitive acts
violated Sections 1 and 2 of the Sherman Act, Section 7 of the
Clayton Act and California law. They claim that Olin and SPP
monopolized or restrained trade in four different product markets:
(1) the sale of cal-hypos by manufacturers to wholesalers
across the entire United States; (2) the sale of isos by
manufacturers to wholesalers across the entire United States;
(3) the sale of branded cal-hypos to retailers in California,
Arizona and Nevada; and (4) the sale of branded isos to retailers
in California, Arizona and Nevada.
In preparation for trial, both plaintiffs and defendants filed
motions in limine to exclude various items of evidence. Plaintiffs
also moved to give prima facie weight to the FTC's judgment
and defendants moved to dismiss the lawsuit for lack of
antitrust injury. On October 28, 1999, the district court denied
plaintiffs' motion to give the FTC ruling prima facie weight
and granted defendants' motions to exclude plaintiffs' sanitizer
pricing study, evidence of below-cost pricing and the liability
and damage testimony of plaintiffs' expert, Dr. Kent
Anderson. After it made these preliminary rulings, the district
court held that plaintiffs had failed to put forward any evidence
that they had suffered antitrust injury. It denied the
remaining motions as moot and entered judgment in favor of
defendants.
DISCUSSION
A. Prima Facie Weight of Prior FTC Proceeding
Plaintiffs moved in the district court to give the findings of
fact and conclusions of law adopted by the FTC in its judgment
against Olin prima facie evidentiary weight pursuant to
Section 5 of the Clayton Act, 15 U.S.C. § 16(a).NOTE2 The district
court held that the judgment and findings could not be given
such evidentiary weight because the issues and facts in the
two proceedings are different. The court did allow the adjudicative
facts of the prior proceedings to be admitted -- i.e.,
documents showing there was an ALJ hearing, the Order
entered by the FTC requiring divestiture and the decision of
this Circuit affirming the FTC. Plaintiffs appeal the district
court's decision regarding the prima facie weight of the find-
_________________________________________________________________
2 This section provides:
A final judgment or decree heretofore or hereafter rendered in
any civil or criminal proceeding brought by or on behalf of the
United States under the antitrust laws to the effect that a defendant
has violated said laws shall be prima facie evidence against
such defendant in any action or proceeding brought by any other
party against such defendant under said laws as to all matters
respecting which said judgment or decree would be an estoppel
as between the parties thereto: Provided, That this section shall
not apply to consent judgments or decrees entered before any testimony
has been taken. Nothing contained in this section shall be
construed to impose any limitation on the application of collateral
estoppel, except that, in any action or proceeding brought under
the antitrust laws, collateral estoppel effect shall not be given to
any finding made by the Federal Trade Commission under the
antitrust laws or under section 45 of this title which could give
rise to a claim for relief under the antitrust laws.
15 U.S.C. § 16(a)."
_______________________________________________________________
"ings and conclusions. We review the district court's decision
de novo. Emich Motors Corp. v. General Motors Corp., 340
U.S. 558, 571 (1951).
Congress' intent in enacting the original version of Section
5 was "to minimize the burdens of litigation for injured
private suitors by making available to them all matters previously
established by the Government in antitrust actions." Id.
at 568. This benefit is not without limits, however. First, it
grants only prima facie weight, not collateral estoppel effect
to findings. Although Section 5 generally does not bar the
application of collateral estoppel, it does so when the FTC
itself makes the findings. See 15 U.S.C.§ 16(a). Second, Section
5 grants prima facie weight only to matters as to which
collateral estoppel would apply had the government itself
brought the suit. See id. This section makes available to a private
litigant as prima facie evidence "all matters respecting
which said judgment or decree would be an estoppel"
between the defendant and the United States. 15 U.S.C.
§ 16(a); Emich Motors, 340 U.S. at 568.NOTE3 Accordingly, the
"evidentiary use" of the prior judgment is"determined by reference
to the general doctrine of estoppel." Id. For that, we
look to Ninth Circuit law.
"Collateral estoppel, or issue preclusion, bars the relitigation
of issues actually adjudicated in previous litigation
between the same parties." Kamilche Co. v. United States, 53
F.3d 1059, 1062 (9th Cir. 1995), as amended, 75 F.3d 1391
(9th Cir. 1996) (internal quotation omitted). It precludes relitigation
of both issues of law and issues of fact. Steen v. John
Hancock Mut. Life Ins. Co., 106 F.3d 904, 910 (9th Cir.
1997). The party asserting collateral estoppel must show that
the estopped issue is identical to an issue actually litigated and
decided in the previous action. Kamilche, 53 F.3d at 1062.
_________________________________________________________________
3 We have previously held that an FTC order constitutes a final judgment
for purposes of Section 5. See Purex Corp., Ltd. v. Procter & Gamble
Co., 453 F.2d 288, 290-91 (9th Cir. 1971)."
__________________________________________________
Preclusive force attaches only to issues that were necessary to
support the judgement in the prior action. Resolution Trust
Corp., v. Keating, 186 F.3d 1110, 1115 (9th Cir. 1999). Litigants
are not precluded from relitigating an issue if its determination
was merely incidental to the judgment in the prior
action. Id.
Even then, not everything capable of collateral estoppel
effect is entitled to prima facie weight under Section 5. Only
those issues in the first proceeding that are relevant in the second
proceeding are admissible. See Twentieth Century Fox
Film Corp. v. Goldwyn, 328 F.2d 190, 225 (9th Cir. 1964).
The district court has the duty, as it does with the admission
of all evidence, to determine what is probative to the proceeding
at hand and can exclude matters that are irrelevant. See id.
Here, plaintiffs asked the district court to give given prima
facie weight to the FTC's findings of fact and conclusions of
law from its proceedings against Olin. The FTC itself acted
on an appeal from the ALJ's decision. See In re Matter of
Olin Corp., 113 F.T.C. 400 (1990). The ALJ held a 52-day
trial and made 895 findings of fact and six conclusions of law
leading up to his ultimate conclusion that Olin violated Section
7 of the Clayton Act and Section 5 of the Federal Trade
Commission Act because the "effect of [the FMC ] acquisition
has been or may be substantially to lessen competition or to
tend to create a monopoly in the aforesaid product and geographic
markets."4 The FTC affirmed the ALJ, concluding
that Olin's acquisition of FMC's assets "may substantially
_________________________________________________________________
4 Under Section 5, prima facie weight is given only to violations of the
"antitrust laws" as defined by the Clayton Act. This does not include violations
of the FTC Act. See Section 1(a) of the Clayton Act, 15 U.S.C.
§12(a); Nashville Milk Co. v. Carnation Co. , 355 U.S. 373, 375-76 (1958);
Yamaha Motor Co., Ltd. v. FTC, 657 F.2d 971, 982 (8th Cir. 1981).
Appellees did not raise the argument in the district court or on appeal that
the findings of fact and conclusions of law made in connection with the
violation of Section 5 of the FTC Act were not entitled to prima facie
weight. Accordingly, we do not address that issue.
____________________________________________________________
lessen competition" in two national markets: (a) the manufacture
and sale of chlorinated isocyanurate and calcium hypochlorite
dry swimming pool sanitizers; and (b) the
manufacture and sale of chlorinated isocyanurate dry swimming
pool sanitizers. (Emphasis added.) The FTC did not,
however, conclude that the FMC acquisition may tend to
create a monopoly, as the ALJ had expressly found. Importantly,
the FTC's judgment stated that it adopted the findings
of fact and initial decision of the ALJ that were not inconsistent
with the findings of fact and conclusions of law in its own
opinion. It did not identify which of the findings and conclusions
were consistent and which were not.
Plaintiffs moved the district court to give prima facie
weight to all of the ALJ's 895 findings of fact and six conclusions
of law. They did not identify for the district court which
findings and conclusions were consistent with the FTC's decision,
which were necessary to support the judgment or which
were identical and relevant to the issues that needed to be
resolved by the district court in this case. Plaintiffs simply
argued that they were entitled to the wholesale admission of
all of the ALJ's findings and conclusions.
Although the prior proceeding and this proceeding are similar
in that they both contend that Olin's acquisition of FMC
is illegal under the antitrust laws, the issues resolved in the
two proceedings are quite different. See Brunswick Corp. v.
Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485-86 (1977)
(describing the differences between actions under Section 4
and Section 7 of the Clayton Act in their treatment of illegal
acquisitions). The FTC was attempting to predict the effects
of the FMC acquisition, not decide whether the acquisition
actually resulted in lessened competition, one of the ultimate
issues in this proceeding. See 15 U.S.C.§ 18; United States
v. Gen. Dynamics Corp., 415 U.S. 486, 505 (1974); Brunswick,
429 U.S. at 485-86. In making its determination, the
FTC relied upon the evidentiary findings of an ALJ who
heard testimony in 1987 and, who, as is advised, see General
Dynamics, 415 U.S. at 505-06, considered only pre acquisition
evidence. Ultimately, the FTC concluded that Olin's
acquisition of FMC assets "is likely substantially to lessen
competition in the markets for dry pool sanitizers and isocyanurates
in violation of Section 7 of the Clayton Act and Section
5 of the FTC Act."
In this proceeding, plaintiffs alleged and tried to prove
that "Olin's acquisition of FMC and its vertical integration
with distributors (including Superior) have substantially lessened
competition and/or tended to create a monopoly in some
or all of the Markets." (Emphasis added.) Unlike in the FTC's
action, plaintiffs here must show they were actually injured
by a lessening of competition. See Associated Gen. Contractors
v. California State Council of Carpenters, 459 U.S. 519,
535 (1983); Brunswick, 429 U.S. at 485-86. Further, the
"Markets," as defined by plaintiffs, are different from the
markets in the FTC proceeding. Here, they allege four markets:
(1) the sale of cal-hypos by manufacturers to wholesalers
across the entire United States; (2) the sale of isos by
manufacturers to wholesalers across the entire United States;
(3) the sale of branded cal-hypos to retailers in California,
Arizona and Nevada; and (4) the sale of branded isos to retailers
in California, Arizona and Nevada. The FTC found there
to be only two markets, only one of which matches any of the
relevant markets alleged in this proceeding. Moreover, the
time period at issue here is different from the period at issue
in the FTC proceeding. Here, the time period is the postacquisition
period (after 1985), as it must be because plaintiffs
must prove an actual lessening of competition. In short, not all
of the issues raised in the first proceedings are identical or relevant
to the issues raised in the second proceeding.
In addition, the great majority of the ALJ's findings of
fact were not necessary to the FTC's ultimate judgment that
the FMC acquisition was likely to substantially lessen competition.
Most of the findings dealt with mundane issues such as
the employment positions held by various witnesses and sum-
maries of documents. These findings cannot be deemed necessary
to whether Olin violated Section 7 of the Clayton Act.
See Keating, 186 F.3d at 1115-16. Lastly, not all of the ALJ's
findings and conclusions were adopted by the FTC. Some of
the ALJ's findings were likely directed to his conclusion that
the FMC acquisition might tend to create a monopoly, a conclusion
the FTC did not make. For all of these reasons, the
district court did not err in refusing to grant prima facie
weight to all of the findings of fact and conclusions of law.
It is probable that some of the ALJ's findings of fact the
FTC adopted were necessary to the FTC's judgment and
would have been identical and relevant to issues raised in the
proceedings here.NOTE5 Plaintiffs argue that the district court
should have admitted all of the findings and conclusions and
that defendants should have filed motions in limine to exclude
the impermissible findings. This misstates the parties' respective
burdens. It is up to the party seeking prima facie weight
to establish that it has met the requirements of Section 5 for
each issue as to which it seeks prima facie weight. See
Kamilche, 53 F.3d at 1062 (stating burden is on party seeking
collateral estoppel to establish that requirements of collateral
estoppel are met). Neither the district court nor the defendant
is required to engage in a "hunt and peck" exercise to ferret
out potentially relevant and necessary findings. Accordingly,
the district court did not err in refusing to give prima facie
weight to the FTC's findings and conclusions, because plaintiffs
failed to establish that the Section 5 requirements were
met for any of the findings and conclusions. Regardless, even
if these findings and conclusions were given prima facie
weight, plaintiffs would have failed to establish antitrust
injury, as we discuss below.
_________________________________________________________________
5 After reviewing the ALJ's conclusions of law, it is clear to us that none
of them is relevant or identical to issues raised in this proceeding for the
reasons discussed above.
______________________________________________________________
B. Antitrust Injury
Plaintiffs allege that defendants have engaged in multiple
acts in violation of the antitrust laws and that these acts have
caused them injury. Assuming defendants had engaged in
these acts and that they are all illegal, plaintiffs have failed to
prove "antitrust injury." All that plaintiffs have claimed is
that their alleged injuries are causally linked to defendants'
illegal activities. That is not enough to maintain a private antitrust
action. See Cargill, Inc. v. Monfort of Colorado, Inc.,
479 U.S. 104, 109 (1986); Brunswick Corp., 429 U.S. at 486-
87.
1. Procedural Posture of the Motion and Standard of
Review
Procedurally, there is an issue as to how the antitrust injury
issue was raised before the district court and how we should
review the district court's decision. Prior to trial, defendants
moved to dismiss the action for lack of antitrust injury. Both
plaintiffs and defendants submitted numerous trial exhibits
and other evidence in connection with the motion. In deciding
the motion, the district court considered materials outside the
pleadings, effectively treating the motion as one for summary
judgment. See Fed. R. Civ. P. 12(b); Am. Ad Mgmt, Inc. v.
Gen. Tel. Co. of California, 190 F.3d 1051, 1054 (9th Cir.
1999) (reviewing district court's dismissal of antitrust claim
on summary judgment); cf. R.C. Dick Geothermal Corp. v.
Thermogenics, Inc., 890 F.2d 139, 145 (9th Cir. 1989) (en
banc) (holding antitrust standing may be considered at any
stage of the litigation). Therefore, plaintiffs' burden to defeat
the motion was to "set forth specific facts showing there was
a genuine issue for trial." Fed. R. Civ. P. 56(e).
On appeal, we review the district court's decision de novo.
Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999)
(en banc); Am. Ad Mgmt., 190 F.3d at 1054. Summary judgment
is appropriate if, viewing the evidence in the light most
favorable to the non-moving party, (a) "the district court correctly
applied the relevant substantive law" and (b) there are
no genuine issues of material fact. Id. For purposes of analysis,
we assume that all the evidence contested in this case is
admissible. Our decision does not depend upon the outcome
of the motions in limine or on whether the FTC decision was
given prima facie weight.
2. Merits
In adopting the federal antitrust laws, Congress allowed
private parties to bring suit.NOTE6
See Section 4 of the Clayton Act,
15 U.S.C. § 15. In addition to the traditional limitations upon
standing imposed by the Constitution, Congress imposed
additional limitations upon those who can recover damages
under the antitrust laws. See Brunswick, 429 U.S. at 485-86;
2 Phillip E. Arreda & Herbert Hovenkamp, Antitrust Law
¶ 335 at 286-303 (2d ed. 2000). These limitations are sometimes
referred to as the antitrust standing requirements. See
Am. Ad Mgmt, 190 F.3d at 1054. The most important limitation
is that the private party "must prove the existence of
`antitrust injury.' " Atl. Richfield Co. v. USA Petroleum Co.,
495 U.S. 328, 334 (1990)("ARCO") (quoting Brunswick, 429
U.S. at 489).
Under Section 4, private plaintiffs can be compensated only
for injuries that the antitrust laws were intended to prevent. It
is not enough to show that one's injury was caused by illegal
behavior. See Cargill, 479 U.S. at 109; Brunswick, 429 U.S.
at 485-86. "To show antitrust injury, a plaintiff must prove
that his loss flows from an anticompetitive aspect or effect of
the defendant's behavior, since it is inimical to the antitrust
_________________________________________________________________
6 The requirements for maintaining an antitrust suit under California law
mirror the federal requirements. Kentmaster Mfg. Co. v. Jarvis Prods.
Corp., 146 F.3d 691, 695 (9th Cir. 1998), as amended 164 F.3d 1243 (9th
Cir. 1999)). Therefore, our resolution of the federal claims also resolves
the state law claims. Id.
____________________________________________________________
laws to award damages for losses stemming from acts that do
not hurt competition. If the injury flows from aspects of the
defendant's conduct that are beneficial or neutral to competition,
there is no antitrust injury, even if the defendant's conduct
is illegal per se." Rebel Oil Co. v. ARCO, 51 F.3d 1421,
1433 (9th Cir. 1995) ("Rebel I") (internal citation omitted)
(emphasis added).
"It is well established that the antitrust laws are only
intended to preserve competition for the benefit of consumers."
Am. Ad Mgmt, 190 F.3d at 1055."Consumer welfare is
maximized when economic resources are allocated to their
best use and when consumers are assured competitive price
and quality." Rebel I, 51 F.3d at 1433 (internal citation omitted).
Accordingly, the antitrust laws are only concerned with
acts that harm "allocative efficiency and raise[ ] the price of
goods above their competitive level or diminish[ ] their quality."
Id.; see also Nelson v. Monroe Reg'l Med. Ctr., 925 F.2d
1555, 1564 (7th Cir. 1991) (Antitrust injury "means injury
from higher prices or lower output, the principal vices proscribed
by the antitrust laws.").
Although defendants may have engaged in "a whole host of
anticompetitive practices," plaintiffs have only presented two
types of injury from those practices -- decreased prices and
decreased market share. Plaintiffs' theory of the case is that
defendants' ultimate goal was to raise prices in the dry swimming
pool sanitizer markets. To accomplish that, defendants
allegedly engaged in a series of anticompetitive actions starting
with the illegal acquisition of FMC's assets and the purchase
of Kern, then moving on to a refusal to deal with Aqua
Tri and predatory pricing by SPP. Defendants' alleged
scheme involved two phases. First, through these various
mechanisms they would increase their market power and
drive prices down. Second, once they had market power, they
would raise prices to supracompetitive levels. The fatal flaw
in plaintiffs' case is that defendants never reached the second
phase. Defendants managed only to drive prices down; they
were never able to raise prices to supracompetitive levels.
Plaintiffs' theory of their injury is that PWP lost profits
through SPP's reduction of the price of cal-hypos and isos and
PWP's loss of market share.
The Supreme Court has made clear, however, that a
decrease in profits from a reduction in a competitor's prices,
so long as the prices are not predatory, is not an antitrust
injury. Brooke Group Ltd v. Brown & Williamson Tobacco
Corp., 509 U.S. 209, 223-24 (1993). Absent proof of predation,
it is immaterial whether the price reduction is the result
of illegal price setting, illegal mergers and acquisitions, collusion,
price discrimination or any other antitrust violation.
"Low prices benefit consumers regardless of how those prices
are set, and so long as they are above predatory levels, they
do not threaten competition . . . . We have adhered to this
principle regardless of the type of antitrust claim involved."
Id. (holding low prices resulting from illegal price discrimination
did not amount to antitrust injury) (quoting ARCO, 495
U.S. at 340 (holding low prices set through an illegal vertical,
maximum price-fixing scheme did not amount to antitrust
injury)); Cargill, 479 U.S. at 114-117 (holding low prices
resulting from an illegal merger did not amount to antitrust
injury). "When prices are not predatory, any losses flowing
from them cannot be said to stem from an anticompetitive
aspect of the defendant's conduct." ARCO, 495 U.S. at 340-
41 (emphasis added).
Accordingly, unless plaintiffs can show that Olin's
prices were predatory -- i.e., "below an appropriate measure
of [SPP's] costs" -- they have failed to show antitrust injury
from the decrease in prices for isos and cal-hypos. Brooke
Group, 509 U.S. at 222. Neither the Supreme Court nor this
Circuit has answered the question of what "an appropriate
measure of costs" is, but we have clearly stated what is not
appropriate. See Rebel Oil Co. v. ARCO, 146 F.3d 1088, 1092
(9th Cir. 1998) ("Rebel II"). In Rebel II, we held that the price
paid from a wholly owned subsidiary to its parent for goods
was not an appropriate measure of costs. That price is considered
a "transfer price, not a sale." Id. at 1096. When there is
a wholly owned subsidiary, "the costs of [the parent] and [the
subsidiary] together must be considered, not simply [the subsidiary's]
costs versus its sales." 146 F.3d at 1096; see also
Volrath Co. v. Sammi Corp., 9 F.3d 1455, 1460 (9th Cir.
1993) (stating that when entities are considered a combined
unit, "then the appropriate consideration is the costs of the
combined group to determine if the combined group sold
below its costs").
Plaintiffs' calculations of SPP's alleged below-cost
pricing did not consider the costs to Olin, the parent company,
in producing and transferring isos and cal-hypos to SPP, its
wholly owned subsidiary, and in some instances expressly
relied upon transfer prices. Nor did plaintiffs calculate any of
the competing measures of "appropriate costs" of isos and
cal-hypos for Olin and SPP -- e.g., marginal variable cost,
average variable cost or average total cost. See Rebel II, 146
F.3d at 1092-93 (describing competing measures of calculating
appropriate costs in determining whether prices are predatory).
Accordingly, plaintiffs have not presented any evidence
that SPP engaged in predatory pricing. See id. at 1096; Volrath,
9 F.3d at 1460. Plaintiffs' reduced profits attributable to
defendants' decrease in prices is therefore not an antitrust
injury. See Brooke Group, 509 U.S. at 222-23; ARCO, 495
U.S. at 340; Rebel II, 146 F.3d at 1096.
Plaintiffs' second alleged antitrust injury is that PWP's
market share decreased -- from about 60 percent of the market
to about 35 percent -- during the time period these
alleged anticompetitive activities occurred. A decrease in one
competitor's market share, however, affects competitors, not
competition. See Cargill, 479 U.S. at 116 ("The kind of competition
that [plaintiff] alleges here, competition for increased
market share, is not activity forbidden by the antitrust laws.").
Shifting PWP's sales to SPP and other competitors in the market
does not directly affect consumers and therefore does not
result in antitrust injury. Id. Increased concentration may
make anticompetitive activity more likely, but in and of itself
it does not amount to antitrust injury. See Brunswick, 429 U.S.
at 486-87.
Plaintiffs argue that they have at least proved antitrust
injury as a result of the FMC acquisition, because this acquisition
was determined to be illegal by the FTC and they suffered
injury from the anticompetitive acts that were made
possible by the acquisition. It is not enough, however, to show
that defendants violated the law and that the plaintiffs suffered
a causally related injury. The critical question for determining
whether there is antitrust injury is whether the harm
is of the kind the antitrust laws were meant to protect against.
See Cargill, 479 U.S. at 109; Brunswick, 429 U.S. at 485-86;
Rebel I, 51 F.3d at 1433. As stated above, reduced profits
from lower prices and decreased market share is not the type
of harm Section 4 was meant to protect against. Accordingly,
the district court did not err in holding plaintiffs failed to
establish antitrust injury.NOTE7
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
AFFIRMED.
_________________________________________________________________
7 Because our determination that plaintiffs have failed to establish antitrust
injury does not depend upon the admissibility of the disputed evidence,
we decline to address the motions in limine.
Ok, I Splain you again it ;
"should apply to the procedure of selecting arbitration.
Hynix and Samsung insist that the words “without reference to” in section 9.2
mean “except as to” or “except in the areas of.” They assert that “without reference to”
means that California law shall be applied “excluding” the “appli[cation]” or
“pertinen[ce]” of rules of arbitration. They submit various definitions from the dictionary
of “without,” such as “exempt or free from.” Hynix also cites dictionary definitions of
“reference,” such as “being pertinent” or “bearing on something” or “the act of
consulting.” Hynix proceeds to insert these definitions into the arbitration clause and
claims that the parties’ arbitration clause means: “ ‘free from [or] excluding’ ‘reference
to rules of . . . arbitration’; or ‘not using’ or ‘apply[ing]’ ‘rules . . . arbitration’; or
‘without’ ‘consulting’ or ‘apply[ing]’ ‘rules of . . . arbitration.’ ”
Hynix and Samsung are attempting to rewrite the arbitration provision. Even if
we were to insert the definitions urged by Hynix and Samsung to “without reference”
into the arbitration clause, we would not agree that this provision would require the court
to apply the procedural arbitration rules of the FAA. Using the definitions provided by
Hynix and Samsung, without rewriting other phrases in the clause, the result is: “The
arbitrator shall apply California law to the merits of any dispute or claim,” free from the
act of consulting “rules of conflicts of law or arbitration. . . .” The plain meaning of the
sentence is that the arbitrator is to apply California law to the merits of any dispute or
claim even if there are contrary rules of law or arbitration from other jurisdictions. The
clause remains silent about the procedural rules that the court should apply in
determining the availability of arbitration.
Not only are Hynix and Samsung attempting to rewrite the arbitration provision,...blah blah blah"
Hey, It wolks for Googer, why not the KoKo twins?
from
the Ca A C.
RORo
P.S., I like they way they refer to 'our supreme court' , in that opinion. Snag your copy before it goes away, only up for 100 hours. Find the site from rtipps or others at IV.
JOindered at the Hip: Korean Twins...
3J;
Thanks for the postings!
LOLo
Duplicitous Gov't manipulation of IP rights of breakthroughs
is not new in the USA.
For those of you unfamiliar with the (curiously parallel)
saga of radio IP in the 20th century,
take a look at
http://en.wikipedia.org/wiki/Edwin_Armstrong
and then do some searching of your own.
OK, here's another;
http://www.ieee.org/portal/cms_docs_iportals/iportals/aboutus/history_center/conferences/che2004/Hon....
a tale of tragedy and invention.
This seems particularly relevant in light of the latest re-reexam.
Of course, there was always some grounds for argument about
exactly who had the first patent that could be claimed to be seminal,
[almost independent of who really packaged up the ideas and got out there with a product],
and the story is never purely about black and white, good and evil...
LOLo
Programming The PS3 Cell; what does it take?
Here's the online version for you all that don't get
SPectrum in the mail;
http://www.spectrum.ieee.org/dec06/4745
Here's a random selection;
"To defend himself, he hurls a spiky ball called a hedgehog at the encroaching monsters. And then, with a few quick taps of the controls, he freezes the demo to show how the Cell is pulling off the action.
The action within the game is divided into what are called “time slices,” lasting roughly one-thirtieth of a second. During each time slice, the PPE is responding to triggers in the game and sending off requests to the SPEs. Take the hedgehog. When the vicious ball explodes, it hurls 50 deadly spikes at the enemies surrounding it. During each time slice, the PPE asks the SPEs if any of the spikes have collided with anything, what that thing is, and where on that thing the spike hit [see illustration, “Spiked”].
When a spike meets a beastly Chimera, for example, the SPE informs the PPE. Each creature in the game has a certain amount of so-called hit points; once they’re gone, the creature dies. In this case, the PPE determines that the Chimera is out of points, so the hit by the hedgehog spike causes its demise.
Though the physics of the collision and the resulting animation are calculated on an SPE, the PPE packages the problem into its simplest form first. In this case, it isolates the spike and beast from everything else in the game so the SPE can figure out how the spike’s momentum transfers to the Chimera’s soon-to-be-mutilated body. All of this happens in a flash: the player sees the ball fly and the enemy collapse into a quivering bloody heap.
But within this elegantly designed display lurks the challenge. The most precious resource in the Cell, Hastings says, is the PPE. With dozens of actions unfolding onscreen, the goal is to maximize the call-and-response of the PPE and SPEs without losing any time. “When the [PPE] is sitting around,” Hastings says, “you pay a dear cost for that. Ultimately, the risk is that you don’t finish the frame loop and drop a frame within the game.” That’s a big no-no. The updates to the screen occur within a 30-hertz cycle. Miss an update and the game will noticeably stutter.
To avoid such a situation, the Insomniac programmers carefully schedule when the PPE should ask something of the SPEs and when it should expect a response. The PS3’s operating system can make such schedules, too, but not as well as the programmer can, according to Hastings. That’s because the programmers can determine, by experimentation, exactly how long a job should take. And if they manage to optimize that bit of code so that it runs faster, they can also tweak the PPE’s schedule to reflect the change and accelerate the game.
Hastings acknowledges that some programmers disagree with such a labor-intensive, hands-on approach, and he expects that other groups are working on improved automatic schedulers. “We’ll do it by hand. With expertise and familiarity, it will get easier,” he says. “I think other teams will have an überscheduler that’s customized to their needs more than the operating system itself. I imagine both models will work.”
In coming years, an “überscheduler” will not be the only trick up game designers’ sleeves. Future tools that help to automatically divide up the work of a program into the format that best plays to the SPEs’ strengths will be key to getting more games out the door. According to Ted Maeurer, IBM’s software development manager for the Cell, IBM is making tools only for general software development and leaving the game-tool servicing to Sony. While Sony provides tools as part of its software developer kit, companies like Insomniac, in order to take full advantage of the Cell, have been designing their own custom tools. One of Insomniac’s several tools is called Luna, a program used when placing and navigating characters through the gaming world.
“Designers and game-play programmers need a solid, fast interface to place characters and other dynamic objects in the game,” Price says. “Luna provides that interface. Luna also allows us to create behavior scripts, which are necessary to tell some of the characters what to do. Not all characters use scripted behavior—many use reactive AI routines or innate behavior. But these routines are generally initialized by scripts created in Luna.” "
LOLo
OK, will call the FTC and ask for transcript,
especially since I've missed a couple of key local CMC's I shoulda covered.
One side note; while scrummaging around in the JEDEC minutes from VTC, I noticced that they hadn't budgeted for making copies for litigation. They concluded that members should pay $1 per page and non-members should pay $3 per page.
What a great bunch of guys, huh?
LOLo
3j
Speaking of monster posts,
I hope you will bend the TOU refresher
to post here a version of your recent IV post.
Those off-campus huddles would seem to be at the
core of the anti-rambus coordinated jedec ripoff.
I think it is valuable to revisit things from the past in light of the new developments.
Despite my relatively diligent efforts, this topic had eluded my notice.
DId the transcripts of the FTC hearings under the ALJ ever get posted? can we expect posting of the November15 hearing transscript, or is some effort needed by a motivated party?
Big thanks,
LOLo
3J, 'You da bomb'...
Simply outstanding!
I wish the FTC would be so prompt to post their transcripts!
LOLo
LongUSA, I've lost track of the tentative DDR2 order,
so, I'm no help. (also don't yet do PACER, hopefully declining an elective ticket to a deeper level of potential ~OCD behavior...)
Glad to see that the exposure to the fount of supreme knowledge had only transient overload effects on you...
I sure wish I knew where to find citations of this kind
333 F.Supp. 123
I can't figure out what these are or where they might be archived. Maybe some legal genius will inform us all. IANAL.
I was trying to track down that dang In re Antibiotic Antitrust Actions original case, and finally had a paid search page pop up.
(westlaw).
http://web2.westlaw.com/signon/default.wl?cite=333+F%2ESupp%2E+278&FN=%5Ftop&path=%2Ffind%2F....
I didn't sign up, yet, but it is apparently another place to find the cited cases, especially the more obscure ones.
I'm not sure we are yet clearly out of the woods on the question of 'PF and CE except in a subsequent 3x damages AT suit on common facts' , as the case above makes specific reference to 3x AT.
The problem as I see it is that the exclusion to the otherwise
'blanket applicability of PF/CE' is expressed in a very narrow language, and hiney has argued they are just outside that narrow zone. Thus, the court may be faced with reinterpreting the intent of the folks who wrote the (arguably gratuitously tight) exclusion to the PF/CE blanket.
I notice that many courts seem to dodge the duty of reinterpretation when they can.
I guess there are at least two main questions; one is whether ftc can conclude AT when they did not allege it, and the other is whether a tribunal conclusion of AT has PF/CE effect.
So, I hereby also share my confusion. I hope you are right that the PACER entry technician was taking Friday off, if it is a date of record...
LOLo
Bow-legged salesman: "Walk this way!"
Customer; "If I could walk that way, I wouldn't need the chafing powder in the first place."
SO, if could answer your question of 'why?', I wouldn't have said what I did.
Anyway, Life Beckons!
LOLo
3J, I have no desire to host/post anything;
I just need a reminder of how to insert gif or jpeg or ?
into messages.
I'll try one here;
Nope, no cigar on drag and drop.
how about copy/paste?
The image “file:///C:/Documents%20and%20Settings/My%20Pictures/2006pix/earth/dtam_subset.jpg” cannot be displayed, because it contains errors.
nope, cut/paste is no cigar.
How did you do it before? you did not reveal the secret voodoo ritual>>>
LOLo
OK, as a last resort I read the FAQ....
I apparently need to publish this gif and hang it somewhere.
I am not comfortable posting such an inflammatory issue.
I would need many more layers of anonymity than I care to learn about...
alright you genii, how do I post the gif/bmp/tiff/jpeg
after the flogging process?
I once did oK with a jpeg which was already on the web,
but I don't have a file hosting facility,
at least one that I know about.
I can do a world class job of file mulching,
but my question is,
where to hang the rendered product???
LOLo
Mr. 3J,
I think you deserve to be paid also,
for consistently civil maintainance of a pivotal facility.
We all deserve it, but the world is not 'Fair'.
We would all do well to consider the sad history of
Ed Armstrong, who brought us superheterodyne radios,
FM radio, and other modern wonders,
but whose soul was crushed by RCA with help from
the US Gov't. (and the pavement he hit after being bankrupted by same.) His widow did eventually collect a portion of his due...
LOLO
BTW, how would you recommend that I post an image taken from page 13 of RX0050? I have the scanned pdf courtesy of Skip at VTC, but it is not suitable for OCR. What is my target filetype for the crop/paste/convert exercise? Where should I try to hang the eventual ~image file?
Okie Dokie, here's the link to Supreme Enlightenment
I'll spare you the tawdry tale of the incredible flailing
it took to stumble onto this page.
I think that one can see the Supreem words without registration,
but then the free registration is relatively painless and then you can also see the SCoCA and even CA appeals courts.
http://caselaw.lp.findlaw.com/casesummary/browse.html
for the Supreem hits by year, try
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&navby=year
or
if you know the volume number ( seems to be that first number in parens of the citation)
then try this one:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&navby=vol
Try to remember what happened on that classic movie,
Forbidden Planet,
when the interloper guy tried to utilize the 'brain-booster';
It nearly caused a blowout of his cranium.
Be cautious when you choose to sip from the streams of knowledge linked above...
Glad to help, thanks for asking
LOLo
I try to post over here on ihub when I think I have something with higher content; it is so much more civilized and not so much about micro-bickering. I don't always achieve high content over here, and throw in a few of my trademark 'way-wrong' comments also.
Regarding 'National Lead' 1957
(Yes, this is the same lead paint now deemed toxic waste)
SO, my previous post was about the National Lead 1947 version of the supremes.
I see that this matter was back at SCOTUS in 1957, about whether they could have a bunch of separate Cease and Desist Orders.
I still think it has nothing to do with setting RAND or removing patent rights.
In fact, I find it downright humoresque that the cited case is about conspiratorial price-fixing for a semi-generic product...
LOLo
This quote is from the 1957 episode of this long-running (multidecade) saga by a conspicuous bad actor, National Lead.
U.S. Supreme Court
F. T. C. v. NATIONAL LEAD CO., 352 U.S. 419 (1957)
352 U.S. 419
"The sole question involved in this proceeding under 5 of the Federal Trade Commission Act 1 concerns the power of the Commission in framing an order pursuant to its finding that respondents had conspired to adopt and use a zone delivered pricing system in their sale of lead pigments. 2 In its general cease and desist order prohibiting concert of action among respondents in the further use [352 U.S. 419, 421] of such system, the Commission inserted a provision directing each respondent individually to cease and desist from adopting the same or a similar system of pricing for the purpose or with the effect of "matching" the prices of competitors. The respondents assert that this is beyond the power of the Commission, and the Court of Appeals agreed, 227 F.2d 825, striking that provision from the Commission's order. We granted certiorari, 351 U.S. 961 . because of the importance of the question in the administration of the Act. We restore the stricken provision of the Commission order, permitting it to stand with the interpretations placed upon it in this opinion. "
"Don't Fence Me In"
Here's an interesting quote from
http://www.usps.com/judicial/1988deci/27-83.htm
admittedly a postal case,
regarding 'fencing-in provisions'
I'm curious about how anyone would claim that
additional violations are likely by rmbs.
It seems that 'fencing-in' is not intended for 'punitive' measures, at least in caselaw that I see so far.
It would apply to future SSO I guess?
IANAL
LOLo
"Paragraph (l) of the recommended Order in this matter prohibits prospective false representations with respect to the contents of any book. A provision such as paragraph (l) which pertains to activities similar to, but not precisely the same as, the activities which are the subject of the proceeding is known as a "fencing-in" provision.
"Fencing-in" provisions have been consistently upheld when (1) they are reasonably related to the unlawful act found to exist, Jacob Siegel Co. v. FTC, 327 U.S. 608, 611-14 (1946), and (2) there is a likelihood, based on the violator's past conduct, that he will commit additional violations, American Home Products Corp. v. FTC, 695 F.2d 681, 705-709 (3rd Cir. 1983). See e.g., FTC v. Mandel Bros., Inc., 359 U.S. 385, 392-93 (1959); FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952); FTC v. National Lead Co., 352 U.S. 419 (1957); Leo Daboub, P.S. Docket No. 19/185 (P.S.D. July 10, 1986). Both conditions exist in this case."
Worth another look; Barbour re; Barbour et aliam
I'm sure this has been posted/dissected before,
but I found value in reflecting upon Harbour's
self-image as a gadfly and a filer of dissenting opinions
(that threaten harsher response to anyone else who might try a similar 'stunt').
http://www.ftc.gov/speeches/harbour/060215HarbourIntrvwC.pdf
I think those years she spent in the NY AG office shaped her bulldog bully routine.
"HARBOUR: Dissenting statements can provide notice to the particular company or companies involved in the case. For example, a dissent could let them know that I might have wanted a stronger remedy. Dissents can also send signals to various groups that I might prefer stronger relief in future cases. This includes the other Commissioners, Commission staff, and sometimes even other agencies, as well as the private bar, other industry participants, and companies in general.
And sometimes a dissent can be used to begin or continue a debate about the propriety of a particular remedy or policy decision. The Genzyme dissent was a good example. My goal was to tee up some of the key issues relating to the analysis of competitive effects and innovation markets.
The Arch dissent was intended to do the same thing with respect to coordinated interaction."
and then there are gems like;
"Chairman Majoras brings to the Commission a diverse and well-rounded set of ..." Is the char(wo)man indeed well-rounded?
Anyway, Perhaps we will see a split decision, with PH and JL holding out for draconian threats, and the others expressing some ~'moderate' RAND rate. I'm betting no reach into DDR2.
If they really wanted to prospectively cut off the DDR royalties, they would have done something a few years back. Now it is almost too late, but they sat on their hands for what, 3 years?
Yikes!
Anyway, make your own conclusions...
LOLo
In light of Hiney Filing for PF treatment;
And the arguments about different Burdens Of Proof
between civil courts and the FTC,
It is instructive to take another look at CC opposition to RMMBS requested stay, at
http://www.ftc.gov/os/adjpro/d9302/020715ccor.pdf
Take a look at page 9:
"Furthermore, collateral estoppel would not apply against the Commission in this instance, even assuming Rambus were to prevail before the Federal Circuit, because of important differences in the burdens of proof involved in the Infineon litigation and this matter. (snip some text here)
, and Infineon's proof of fraud -consistent with Virginia law - was subject to a "clear and convincing" evidence standard, as opposed to the lesser "preponderance of the evidence" standard that applies in civil antitrust cases, including Part III administrative actions before the FTC>"
Plus there is some more on page 10.
and then on page 12, CC does opine that
"Yet the Commission's requested relief is purely prospective.
Thus, every day of delay before a judgement in this action allows an irreversible transfer of wealth ... into the pockets of Rambus."
Garsh what happened to all of that concern for prompt judgement?
OK, and then there are comments from royallty;
http://www.ftc.gov/opa/2003/01/royallstatement.htm
LOLo
Finisar vs. DirecTV
Thanks, very interesting information.
LOLo
From U.S. v. National Lead (1947), The Supreme's Greatest Hits Album...
This text below is part of their first and second finding. NL and Dupont had previously (prior to 1933) colluded to pool patents and allow each other to have sole access to certain geographic markets.
Another ~significant issue is that ~'the action was brought under the Sherman antitrust Act', vs. the present ftc action 'brought' under the ftc act.
Anyway, in more of that lucid 1947 prose they opined:
"'There is no allocation of territory or customers between NL and DP; and each maintains a large, highly trained technical sales force engaged in endeavoring to sell titanium pigments. To a very large extent the salesmen of the two companies are chemists whose contact with consumers ( that is, manufacturers of paint, rubber, glass, etc.) consists in endeavoring to demonstrate that their products merit acceptance on the basis of technical superiority. The buyers of titanium pigments are mainly well-in-formed, experienced purchasing agents. NL and DP sell for identical prices; there is no evidence that such price identity is the product of agreement or collusion.' Finding of Fact 78.
These findings disclose the special conditions which confronted the District Court in framing its decree. They disclose a vigorous, comparatively young, but comparatively large, world-wide industry in which two great companies, National Lead and du Pont, now control approximately 90% of the domestic production in substantially equal shares. The balance of that production is in the hands of two smaller companies. Each of these is affiliated with larger organizations, not parties to this case. The findings show vigorous and apparently profitable competition on the part of each of the four producers, [332 U.S. 319 , 348] including an intimation that the smaller companies are gaining ground rather than losing it. Keen competition has existed both before and after the elimination, by the 1933 agreement and understanding, of certain patent advantages from among the weapons of competition. The competition between National Lead and du Pont has been carried into this Court where today National Lead supports the Government's proposal for royalty-free licenses, while du Pont argues strongly for a complete dismissal of the proceedings and contends that, in any event, if there are to be compulsory licenses they at least should require payment of uniform, reasonable royalties as provided in the present decree.
Assuming, as is justified, that violation of the Sherman Act in this case has consisted primarily of the misuse of patent rights placing restraint upon interstate and foreign commerce, that conduct is not before this Court for punishment. It is brought before this Court in order to secure an order for its immediate discontinuance and for its future prevention. That will be accomplished largely through the strict prohibition of further performance of the provisions of the unlawful agreements. Further assurance against continued illegal restraints upon interstate and foreign commerce through misuse of these patent rights is provided through the compulsory granting to any applicant therefor of licenses at uniform, reasonable royalties under any or all patents defined in the decree. Such patents include not only the patents and patent applications listed in the appendix to the decree, but also, among others, all patents which cover any titanium pigments or any process for the manufacture of such pigments issued to, or acquired by, any of the appellant companies within five years from the date of the decree. It applies also to all such patents of which any of the appellant companies shall become the exclusive licensee within such five years with power to sublicense. [332 U.S. 319 , 349] On the facts before us, neither the issuance of such licenses on a royalty-free basis nor the issuance of a permanent injunction prohibiting the patentees and licensees from enforcing those patents has been shown to be necessary in order to enforce effectively the Anti-Trust Act. We do not, in this case, face the issue of the constitutionality of such an order. That issue would arise only in a case where the order would be more necessary an appropria te to the enforcement of the Anti-Trust Act than here. In the absence of a showing to the contrary, it is obvious that some patents should entitle their owners to receive higher royalties than others. Also, it is clear that several patents, each of equal value, ordinarily should entitle their owners to a larger total return in royalties than would one of them alone. It follows that to reduce all royalties automatically to a total of zero, regardless of their nature and regardless of their number, appears, on its face, to be inequitable without special proof to support such a conclusion. On the other hand, it may well be that uniform, reasonable royalties computed on some patents will be found to be but nominal in value. Such royalties might be set at zero or at a nominal rate. The conclusion, however, would depend on the facts of each case.
Recognizing the difficulty of computing a reasonable royalty,7 nevertheless, that conception is one that already has been recognized both by Congress and by this Court. 8 [332 U.S. 319 , 350] The term frequently has been employed in Sherman Anti-trust case consent decrees. 9 In the present case, the royalties charged to and paid by Zirconium and Virginia Chemical provide enough guidance to indicate that the reasonableness of future royalties may be determined in this case with less difficulty than often might confront a court faced with such a task. Cf. Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689 , [332 U.S. 319 , 351] 697, 698, 739, 88 A.L.R. 496. The growing strength of those two royalty-paying licensees has demonstrated that royalty-free licenses have not been essential to such progress even under past conditions. Finally, the District Court, under paragraphs 7 and 13 of the decree, will retain sufficient jurisdiction to enable it to vacate or modify its orders fixing reasonable royalty rates if it finds such action to be necessary or appropriate. We hold, therefore, that paragraphs 4 and 7 of the decree should not be modified either so as to provide for compulsory royalty-free licenses or so as to enjoin the patentees or licensees from enforcing the terms of the patents involved. "
OK
here's their section B finding;
"B. Request to add a provision requiring National Lead and du Pont each to submit, within a year, a plan for the divestiture by it of one of its two principal titanium pigment plants, together with the related physical property. This request is urged by the Government in No. 89. It is strongly opposed both by National Lead and du Pont. The issue was discussed at length by the parties and the District Court in the reported conferences as to the form of the decree.
We believe there is neither precedent nor good reason for such a requirement. The violation of the Sherman Act is found in these cases in the patent pooling and in the related agreements restraining interstate and foreign commerce. There is neither allegation in the complaint nor finding of fact by the District Court that the physical properties of either National Lead or du Pont have been acquired or used in a manner violative of the Sherman Act, except as such acquisition or use may have been incidental or related to the agreements above mentioned. The cancellation of such agreements and the injunction against the performance of them by the appellant companies eliminate them. Paragraph 8 of the decree goes further. It requires National Lead and it subsidiary, Titan Inc., to present, within one year, a plan for [332 U.S. 319 , 352] divesting themselves of their stockholdings and other financial interests in certain foreign corporations, or for the purchase of the entire stockholdings and other financial interests, direct or indirect, in such corporations or any of them. Such a plan, which was required also to provide for its completion within two years from the date of the decree, will go as far toward divestiture as the findings of fact indicate should be necessary to make the decree effective.
There is no finding of fact, and apparently no evidence, showing that the respective principal titanium plants of National Lead or du Pont were acquired in violation of law, that they ever were separately owned or operated, or that they are adapted to such operation. Presumably, the requested divestiture would be for the purpose of providing four instead of two independent major competing plants in the titanium pigment industry. However, there is no showing whether or not the two licensees, Zirconium ( subsidiary of Glidden Company) and Virginia Chemical (subsidiary of American Cyanamid Company), may not be able to develop, under the decree, even more substantial competition against National Lead and du Pont than would new concerns operating the divested plants. No comparable precedents have been presented.
There is no showing that four major competing units would be preferable to two, or, including Zirconium and Virginia Chemical, that six would be better than four. Likewise, there is no showing of the necessity for this divestiture of plants or of its practicality and fairness. The findings of fact have shown vigorous and effective competition between National Lead and du Pont in this field. The general manager of the pigments of department of du Pont characterized the competition with Zirconium and Virginia Chemical as 'tough' and that with National Lead as 'plenty tough.' Such competition suggests that the District Court would do well to remove [332 U.S. 319 , 353] unlawful handicaps from it but demnstrates n o sufficient basis for weakening its force by divesting each of the two largest competitors of one of its principal plants. It is not for the courts to realign and redirect effective and lawful competition where it already exists and needs only to be released from restraints that violate the antitrust laws. To separate the operating units of going concerns without more supporting evidence than has been presented here to establish either the need for, or the feasibility of, such separation would amount to an abuse of discretion. "
Here's a really nice page about Stream Processing
http://www.blachford.info/computer/Cell/Stream.gif
whoops, can't paste the gif here;
The image “http://www.blachford.info/computer/Cell/Stream.gif” cannot be displayed, because it contains errors.
anyway, the text is good too.
http://www.blachford.info/computer/Cell/Cell2_v2.html
THey say that multiple cells can easily coordinate on larger tasks. THe trick is to stay 'coherent', such that no part of the 'assembly line' gets ahead or behind the rest of the group.
Apparently Cell has all the hooks to stay synchronized, also known as coherent, both internally and when assembled into larger arrays of Cells. Yowza!
LOLo
I think this would be the issue with the recent controls report;
This was taken from the most recent 8K.
THis was the third of 3 problems found;
"Rambus also had three stock option grants during 2003 and 2004 for which the price was set on the same date as a Board of Directors or Compensation Committee meeting date at which a pool of stock options was discussed, but the individual allocations of the stock option pool had not been completed as of the date of those meetings and, consequently, Rambus recorded an incorrect measurement date for those grants."
I assume that the post S-Ox nature of the item above,
would be the reason for the subsequent statement below;
"Additionally, Rambus is evaluating Management’s Report on Internal Control Over Financial Reporting set forth in Rambus’ 2005 Annual Report. Although Rambus has not yet completed its analysis, the results of the investigation confirm Rambus’ determination that it is likely that Rambus had a material weakness in internal control over financial reporting as of December 31, 2005."
SO, I am an LTL, so this may just be whistling in the dark,
but I've decided that the incomplete individual allocation at the time of the date of record is not going to sink the RMBS ship.
LOLo
Wow, The 7 processors of Cell can all eavesdrop on bus traffic.
What would the ACLU have to say about this???
"However, the fact that the PPE and the SPE’s can snoop traffic transported through the EIB, and that coherency traffic can be sent to other CELL processors via a coherent interface, means that the CELL processor can indeed be an interesting processor."
Yowza!
from the flexio section of this tutorial:
http://www.realworldtech.com/page.cfm?ArticleID=RWT021005084318&p=11
LOLo
OK, here's a bit more on the 16MB/sec question;
from
a comment today by 'exdeath' when you scroll down this linkedpated;
http://www.dailytech.com/article.aspx?newsid=4908&ref=y
"You're confused by the way that the memory pools were named, because what you're saying is totally false. It was the interpretation of The Inquirer and the subsequent spread of that sad interpretation that has caused this confusion.
The slide in question was in the context of the graphics subsystem, and local memory refered to the GDDR3. So the 16MB/s of bandwidth is actually for Cell reading from the GDDR3. So basically a non-issue, since that doesn't matter at all.
For the work in which Cell would assist RSX, Cell will either generate in XDR and RSX will pull it from there, Cell will write to GDDR3, or RSX will push to XDR, Cell will operate, and RSX will grab it back (or Cell will push).
Hope this clears up what the slides are refering to, and helps to cement in your mind how terrible the Inquirer is when it comes to any and all hardware analysis."
So, I am not the only one who is sometimes confused!
LOLo
3J, I think the xdr interface is on the cell chip.
There has been some ambiguity in light of the developer kit hardware.
I see that even a usually careful commentator does not accurately restate the claims of a reviewed article, at
http://www.dailytech.com/article.aspx?newsid=2777#cmt36858
I cannot reconcile the suggestion of accesssing main memory via rsx. It is not wired that way, so maybe it is a software construct,
or ?
I also cannot reconcile this question of local memory speed for cell local memory reads.
http://www.theinquirer.net/default.aspx?article=32171
I don't understand the suggested local memory read rate 16 megaBytes/second, especially if the local write rate is 4 GB/s.
An unresolved mystery.
LOLo
OK, Duh, the GDDR3 is integrated inside the rsx module;
THat would explain my prior confusion about speed and long busses.
I'd fix the prior nonsense if I could still edit it.
Maybe when someone posts an insightful analysis I'll have this drivel taken down.
LOLo
Wow, those are some long busses hanging off the RSX
From a topology perspective, I guess the chip on the left edge is the 'video output', assuming that those circular canned parts are output drivers.
Actually, I don't believe what I just wrote, as there is no evidence of nearby connectors. The MARVEL chip looks more like an output device from that regard. So, I can't explain the busses going to either of the chips connected by conspicuous busses to the RSX. Maybe it is component video output? nah...
I further guess that the mysterious lonely silver module at the top on the very, very long bus (by process of elimination) would be the GDDR?
How could that be fast? I don't get it...
I never realized the double-entendre possiblity of the parenthetical phrase above...
LOLo
3J, one easy ticket to backwards compatibility
would be to just reuse the 'legacy' hardware architecture.
It is much cheaper/easier than rewriting software. (!)
One thing I notice on this picture,
http://images.dailytech.com/nimage/2994_large_motherboard_main.jpg
to the right of the CELL BE chip,
is 4 chips (connected via some wiggly lines)
that each have a promiment rambus R as the first letter of the
chip label.
Some folks say those would be the GDDR3 chips because of the wiggles, , but
I cannot reconcile the Rambus badging unless those are the xdr.
Also not sure how to point to the GDDR chips on this photo.
Where are those experts when we need them?
LOLo