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Gary:

Looks like the "silverback"'s two year old nephew is already walking on hind legs and sounds like can hear him going.....thump, thumpity, thump!!

listening in tall grass,knee
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I am no lawyer, but it seems to me the purpose of patents is to protect small young companies with useful innovations from large predatory companies with the resources to copy/steal their ideas. Patents do give the holders a temporary legal monopoly over the technology. Hitachi has been trying to rip off RMBS for a while and is getting desperate.
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I use to be somewhat of an antitrust law expert a few years back. But since I never practiced antitrust law its kind of slipped my mind a bit.

But I'll state something that gives the countersuit some credit: RMBS only sued Hitachi (not any other competitor) and we Fools tended to interpret this as a we will hurt Hitachi so the rest of you industry folks better stay in line.

This would be an intent to monopolize and industry. And many of us expressed this very intent without delving into the legal ramifications.

This said, wil is stand up in court? I don't know. A patent is a legal way to get around the Sherman Act. Plus the burden of proof by preponderance of the evidence will be on Hitachi. And any case Hitachi might make will take years.

In the end, unless Hitachi is really serious about this I think it probably amounts more to trying to strengthen their hand for settlement talks. But I have not read the pleadings and have not been privy to the internal workings of the companies. These things can fall on fine factual interpretations.

On a danger scale of 1-10 10 being screaming danger and 1 being mock laughter I put this threat a 3. More than RMBS just laughing at Hitachi but less than something that builds a bead of sweat on the forehead.

Tinker
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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.

--fox



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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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Not an IP litigator but an intent to monopolize is unlawful under the Sherman Act. What is being alleged in this suit is that Rambus was attempting to intimidate the JeDec group through use of the power of its patents. It therefore was attempting to limit alternative technological developments and therefore monopolize the market.

So the counterclaim is not completely baseless, it may stand summary judgment. But to prove such a thing would be approaching incredible - but not impossible.

Tinker
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