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
