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Umm, comments anyone?

Hitachi's reply to Rambus: you violated antitrust act, Jedec rules
By Jack Robertson
Semiconductor Business News
(03/24/00, 07:58:45 PM EDT

I am not an IP litigator and my antitrust knowledge is limited to one class in law school, but Hitachi's counterclaim sounds pretty dumb. Hitachi alleges that RMBS is attempting to enforce its patents to decrease competition. DUH! Patents, by definition, are anti-competitive. The reference to Dell is somewhat of a concern, but the counterclaim sounds weak to me, but what do I know.

The mere filing of a counterclaim is no big deal and should have been expected. In any commercial case, a common tactic is for the defendant to file a counterclaim in order to give the plaintiff something to lose. Rarely does a plaintiff miscalculate such that the defendant's counterclaim has more merit than the plaintiff's claim, but it happens, usually when the plaintiff sued pre-emptively; i.e., the plaintiff is really the wrongdoer and sues first, both to deflect attention from the bad acts that the plaintiff did that was about the result in a law suit and, more importantly, to pick the venue. In this case, nobody is claiming that RMBS sued pre-emptively in anticipation of Hitachi's antitrust claim.

I am vaguely familiar with something called the Noerr-Pennington (sp?) doctrine which says that the First Amendment right to petition exempts companies from the antitrust consequences of attempting to get the government to limit competition; i.e., it is okay for companies to hire lobbyists to try to get the government to screw over their competitors. I am not sure if this applies to patents, but the logic of the argument suggests that it does. RMBS sued to enforce its patents; i.e., RMBS is petition the government to limit competition; therefore, any antitrust violations are trumped by the First Amendment. I could be wrong on this one.

Any IP litigators around?
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