Zeev's Turnips Patch-No Politics (ZEEV)

[TJ Parker]

The FTC case will be dismissed because the antitrust claims require a predicate basis of fraud.

hunh?? this is a bit old, but ...

http://www.theinquirer.net/?article=4533

Rambus to pursue Dramurai until they're in "death spiral"

Attempt to stay FTC antitrust case blocked

By Mike Magee: Sunday 21 July 2002, 09:44

INTELLECTUAL PROPERTY company Rambus has filed for a stay to prevent the Federal Trade Commission (FTC) allegations of antitrust activities based on its appeal in an Infineon trial last year.

But the FTC has hit back against the premise and delivered a lengthy rebuttal that its case against Rambus is anything to do with the Infineon case.

It appears Rambus may fail to get a stay on the FTC antitrust case against it, which alleges that the company will cause consumers harm because of the market power it may exercise on computer memory payments.

It is, however, likely to get a temporary stay of two weeks, the better to prepare its case, it appears.

In the rebuttal, FTC lawyers deny that factual and legal issues in the appeal relate to its complaint, which is that Rambus is allegedly abusing its market power.

While the FTC says that its case against Rambus and the Infineon appeal have common factual grounds, it says Rambus "greatly exaggerates the extent of overlap between the two proceedings".

In strong language, the FTC says Rambus assertions "are seriously misleading, if not patently false". Presumably the FTC lawyers made the pun unintentionally.

The FTC says that Rambus claims that questions of market power will be addressed by the Federal Circuit appeal are not true.

The filing adds: "The Infineon appeal does not now involve, nor has it ever involved, the issue of market power. This is true for a reason that Rambus conveniently, and misleading glosses over: Infineon's two antitrust counterclaims against Rambus, one claiming monopolization and the other attempted monopolization, were both dismissed by Judge Payne long before the case was submitted to the jury". Payne was the presiding judge in the Infineon-Rambus case.

The FTC claims that the Rambus appeal are narrow and are based on the district course's construction of Rambus' patent claims, the country's ruling imposing fraud liability against Rambus, the court's refusal to give a patent related jury instruction, the award of lawyer fees and costs to Infineon, the scope of the court's Rambus injunction, and the court granting judgement for Rambus one of Infineon's two fraud claims.

The phrase "market power" appears in none of the documents relating to the appeal, claims the FTC.

The FTC is only interested in market power and not patents, the document continues.

The government body also says that granting a stay because of the Infineon case would "prolong and potentially exacerbate the serious consumer harm that has been caused by Rambus' anticompetitive conduct".

Rambus might extract royalties worth over one billion dollars from the DRAM industry and has already signed licence agreements with some manufacturers which will give it $50 million to $100 million a year.

The Infineon appeal might last many months and "there could be no end to the delays that Rambus might seek", the FTC claims.

Memory manufacturers that haven't signed up for its patents will be pursued through the courts, alleges the FTC, quoting Infineon's lawyer Kenneth Starr as saying:

"Rambus plays hardball. And there is evdeince... [that Rambus'] chairman of the board Mr Davidow, has essentially told everybody: We're going to keep coming after you and coming after you. If you don't sign up, you are in a – his word – 'death spiral'. That's they way they play... They will continue to sue us."

An attempt by Rambus to stay the FTC action because of litigation between it and Micron also are not connected with market power. µ