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I posted on RMBS board today:

Again disclaiming that I'm no lawyer, I'll make a couple of more observations as someone who has been involved on a couple of big and complex civil cases from the business side.

It has been said on this thread that this countersuit constitutes an admission by Hitachi that the patent complaint is lost. In my experience, however, these civil suits have bunches of sometimes internally inconsistent claims and counterclaims, yet each is accepted or thrown out by the legal system seemingly without much regard to whether it's consistent or inconsistent with other claims. In other words, lawyers tend to throw a bunch of arguments against the wall to see what sticks. One argument which is later deemed frivolous may be inconsistent with another that is not, but it does not seem that the inconsistency diminishes the power of the surviving argument. In addition, they hope to confuse the issues, particularly when they are technologically complex, in order to gain advantage over the adversary. Remember, the judge is not necessarily accomplished in physics or electrical engineering.

bobj33 opines that Hitachi's statement "If Rambus has its way, there will be no competition in the technology market for synchronous DRAM technology or in the market for SDRAM memory and logic ships," the brief said" confirms that DDR infringes on Rambus IP. While the statement would seem to point one in that direction, I don't think these claims by Hitachi would be used to deflate arguments they might make in the patent infringement case. They certainly would argue that DDR does not infringe, and the fact that they've made this statement supporting one argument is unlikely to be held against them in another argument.

Second, I haven't seen the factual evidence of Rambus' representations to the standards body regarding Rambus IP. But it seems to me from the Dell case that Dell represented that the standard did not infringe upon Dell IP, which came back to haunt them in a consent decree. Rambus pulled out of discussions within Jedec, which on the surface is good, but I don't know what statements they made to the body regarding their intellectual property during prior discussions of standards. How this is decided would seem to depend heavily on burden of proof. It would seem to me that this area of argumentation is the only hope Hitachi has in this particular claim.

Third, I think the weakest part of this latest complaint by Hitachi is the claim that RMBS IP claims are designed to stop competition in computer memory. That's just not the case. RMBS licenses its IP on reasonable terms comparable to other licensing arrangements by other companies owning IP. They are just claiming their rightful small share for the inventions, on terms which are consistent with general market practice, applied in a non-discriminatory fashion, creating a level playing field among the manufacturers to compete in the process of delivering product to the market.

Sometimes a lot of legal activity like this signals that the parties are negotiating hard and engaging in legal maneuvers designed to intimidate the other side in the hope of getting a more favorable settlement. Maybe that's part of what's going on here.


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