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Source link: http://archive.mises.org/8200/when-antitrust-and-patents-collide-rambus-v-ftc/

When Antitrust and Patents Collide (Rambus v. FTC)

June 15, 2008 by

As I noted in The Schizo Feds: Patent Monopolies and the FTC, the state grants patent monopolies and then uses antitrust law to attack the beneficiaries of those monopolies. As one commentator noted in a related thread, “It is amusing, watching one agency of government applying a system whose entire purpose is the creation of monopolies, and then another agency tasked with preventing monopolies turning up and trying to do something about it.” A case in point is the flack about the Cipro drug where the state whines about the prices charged for Cipro during the anthrax scare a few years back and threatened to choke back on the patent monopoly it had granted for it. The state is schizo in many other ways too, of course–it foisted MTBE (a gasoline additive) on the country and then, years later, after fears of groundwater contamination, mandated that MTBE be phased out (I’m sure that the lobbying of ADM for ethanol to be used instead had nothing to do with that).I previously noted the Rambus v. FTC case. Rambus was part of a standards-setting organization “working on standardization of DRAM chips.” As a court later summarized this,

After lengthy proceedings, the Federal Trade Commission determined that Rambus, while participating in the standard-setting process, deceptively failed to disclose to the [standards-setting organization] SSO the patent interests it held in four technologies that were standardized. Those interests ranged from issued patents, to pending patent applications, to plans to amend those patent applications to add new claims…. Finding this conduct monopolistic and in violation of § 2 of the Sherman Act, … the Commission went on to hold that Rambus had engaged in an unfair method of competition and unfair or deceptive acts or practices prohibited by § 5(a) of the Federal Trade Commission Act.

The FTC then sought to compel Rambus to license its patents at “reasonable royalty rates.” Rambus appealed to the U.S. Court of Appeals for the DC Circuit and, in April, won its appeal, clearing the way for Rambus to try to extract maximum royalties from its former partners.

The FTC has filed a petition for rehearing. Skip Oliva has filed an amicus brief opposing the FTC’s petition. Now I agree with Oliva that it’s troubling when the state formulates new theories of antitrust liability. But from the libertarian view, the patent system and the FTC are all just internal parts of the state. So under the result favored by the FTC, what we really have is the state granting a slightly more limited patent monopoly to Rambus (that is, a patent for which only state-approved “reasonable royalty” rates may be charged) than is normally granted. I don’t see what all the hubbub is about. What the state giveth, the state taketh away.

My view is that anything that chokes back the state-granted patent monopoly is, ceteris paribus, to be favored. And I agree with the general idea that it is detestable for a company to secretly seek patents on the technology of the SSO the company is part of, and that these patents should not be enforceable. The default contractual rule should be that if you work with others to adopt a technological standard, you implicitly agree not to use state-granted patent monopolies on that technology to block or extract royalties from use of that standard. I would say that derogation from this default rule should be explicitly spelled out. Imagine what response you would get from other SSO members if you try to add a clause saying that you may secretly apply for patents and enforce them against other members or companies using the standard.

{ 23 comments }

Rolv Heggenhougen June 15, 2008 at 12:09 pm

Stephan:

How about some FACTS?

# In June 2000, Hitachi settles with Rambus, RMBS share price closes at all-time high of $117.38 (06/23/2000).
# From 06/27 – 07/15/2000, a flurry of emails between Hynix, Infineon and Micron on Joint Defense are sent.
# On 07/16/2000, a Draft of the Joint Defense Agreement was created (entry #139).
# On 07/17/2000, Jack Robertson reports “Rambus ties strained as Intel, DRAM makers ponder FTC antitrust suit”.
# On 08/08/2000, Rambus sues Infineon.
# On 08/10/2000, Joint Defense agreement was signed (entry #141).
# On 08/18/2000, Jack Robertson reports “Infineon won’t be alone in fight against Rambus”
# On 08/21/2000, Jack Robertson reports “McComas said he also expects Intel to allow third-party vendors to supply DDR chipsets for Penitum 4.” “In order to avoid legal problems with its partner, Rambus Inc., Intel is likely not to officially license third-party DDR chipset suppliers, but simply to “look the other way” when the core-logic devices are rolled out, McComas said.”
# On 08/28/2000, Micron sues Rambus. The press reports. Please note that it was NOT Rambus sueing Micron!
# Just one day (!) later, Hyundai (now Hynix) sues Rambus. (again, not vice-versa!)
# On 10/09/2000, Hyundai was freed from DRAM tariff imposed by the U.S. Commerce Department.
# On 11/17/2000, Micron “firmly believes that Rambus will remain a high-end, niche player”, Micron CEO Appleton told EE Times, adding that “no customers have asked the memory maker to build RDRAM parts.” However, Intel had given them $500M to produce RDRAM.
# On 11/22/2000, Intel launches P4: Samsung increased quarterly RDRAM chips production by 20% while Infineon said “OEM customers can live off the amount of Direct RDRAM chips we produced for them this summer.”
# Also on 11/22/2000, Jack Robertson reports “Micron, Hyundai ask FTC to charge Rambus on antitrust violations”
# In February 2001, the FTC starts investigating Rambus.
# Also in February 2001, Intel confirms that they are “sticking with Rambus”, but announces a DDR chipset for 2002. “We believe that RDRAM is the best solution when the memory costs are comparable” in a PC, Pete MacWilliams of Intel’s desktop platforms group, told CNET News.com
# In May 2001, Rambus loses the “should-have-been” infringement trial lead by Judge Payne in the District Court of Virginia against Infineon on a counter claim of Infineon. The jury found Rambus guilty of committing fraud. All infringement claims were thrown out prior to trial by Judge Payne on summary judgment (which was shown to be clear error by the CAFC later).
# In June 2001, newly appointed FTC chairman Timothy Muris announces the appointment of Sean Royall to Deputy Director of the FTC’s Bureau of Competition. Royall had worked at Gibson, Dunn & Crutcher LLP in Los Angeles, which represents Micron. Later, he became the lead attorney in the FTC vs Rambus case that started in June 2002.
# In June 2001, Joseph Simons gets appointed as Director of the FTC’s Bureau of Competition by Chairman Muris.
# In August 2001, the FTC starts asking the Amigos about Rambus.
# In September 2001, Intel and Rambus announce a Cross-License Agreement with Intel paying Rambus $10M per quarter over five years. “This broad agreement will help Intel continue to be a leader in providing high- performance chipsets,” said Craig Barrett, Intel president and chief executive officer. “We also look forward to continued cooperation with Rambus in the further development of RDRAM-compatible chipsets and communications chips as well as the company’s support of InfiniBand* and future initiatives.”
# In May 2002, the FTC stops short of confirming Rambus antitrust suit. Legal sources said the FTC had earlier wanted to proceed with an antitrust lawsuit against Rambus but has balked. According to one former FTC lawyer, making a case against Rambus has proven difficult because “the facts in the case are somewhat nebulous.”
# In June 2002, the FTC decides to bring their antitrust suit against Rambus. One week later, RMBS share price closes at all-time low of $3.33 (06/26/2002).
# One day later, the Justice Department’s Antitrust Division launches a federal grand jury investigation of the DRAM makers. “It sounds as if [the Justice Department] saw a spike in the DRAM prices and decided to take a look at it,” said Mary Azcuenaga, an antitrust attorney and former Federal Trade Commissioner. “If they find evidence of price fixing, I expect them to be aggressive in pursuing a case” against DRAM makers.

“Micron will cooperate in the investigation”, a spokesman said, adding that the company “does not believe it has violated U.S. antitrust laws.” The spokesman also emphasized the volatility of the DRAM market and recent historic low prices on the spot market.
# In July 2002, the DRAMurai appear to be involved on merger talks.
# In November 2002, Sean Royall, the Deputy Director of the FTC Bureau of Competition communicates with Rambus’s attorney Steven Perry about Rambus’s discovery efforts. Document has wrong time-order: You need to read first Exhibit B, then C, then A. Note that the first letter Exhibit B is referring to is not available.
# On 01/08/2003, Rambus reply to Complaint Counsel’s motion to limit discovery of collusion of the DRAMurai
# On 01/15/2003, the FTC Chief Administrative Law Judge (ALJ) James Timony rejects Rambus’s request to allow discovery relating to the collusion evidence of the ongoing DOJ Grand Jury investigation of the DRAM manufacturers.
# One day later, the FTC Complaint Counsel asked the ALJ to skip the trial and directly go to default judgment against Rambus! On p.116 on the pdf: Thus, this truly is a case in which “the guilty party has engaged in such a wholesale destruction” that “effective issue-related sanction[s]” cannot be fashioned or would “effectively dispose[] of the merits anyway.” [citation] In other words, this truly is a case in which “the entry of a default judgment is the _only_ means of effectively sanctioning the defendant and remedying the wrong.” [citation]
# On 01/29/2003, the Federal Court of Appeals overturns the fraud verdict of the jury trial in Virginia under Judge Payne, issues a completely new claims construction and remands back to Virginia for re-trial on infringement. Here is the Court of Appeals of the Federal Circuit (CAFC) decision by Judge Rader, which is now law as the US Supreme Court (SC) rejected to hear the case in October 2003.

“In sum, the district court erred in its construction of each of the disputed terms. In light of the revised claim construction, this court vacates the grant of JMOL of noninfringement and remands for the district court to reconsider infringement.”
“In sum, substantial evidence does not support the jury’s verdict that Rambus breached its duties under the EIA/JEDEC policy. Infineon did not show the first element of a Virginia fraud action and therefore did not prove fraud associated with the SDRAM standard. No reasonable jury could find otherwise. The district court erred in denying JMOL of no fraud on the SDRAM verdict. Because of these holdings, the new trial and injunction issues are moot.”

Read the statement of Royall regarding the CAFC decision.
# A few days later, FTC Chief ALJ James Timony retires after 27 years as an FTC ALJ. Chairman Timothy Muris appointed Stephen McGuire to serve as new Chief ALJ. McGuire had adjudicated over 200 administrative cases at that time.
# In March 2003, FTC Complaint Counsel tries to keep evidence of collusion out of the trial, by calling it “Irrelevant”, “Immaterial to the issues in this case”, “Needless consumption of time”, “Confusion of issues”, “Misleading”, “Undue delay” and “Waste of time”.
# In July 2003, Joseph Simons resigns from the FTC.
# In October 2003, Sean Royall suddenly leaves the FTC (note that the footer URL indicates an August date, probably when the release was first prepared). He returned to private practice at Gibson, Dunn & Crutcher LLP in Los Angeles.
# Four days later, the US Supreme Court turns the CAFC decision into law by rejecting to hear the case.
# In December 2003, the law clerk of Judge Payne, who worked on the Rambus case, suddenly gets elected partner at Gibson, Dunn & Crutcher LLP in LA. That is the same law firm that Sean Royall, the former Deputy Director of the FTC’s Bureau of Competition, went back to 2 months earlier.
# On 12/17/2003, a Micron Executive agrees to plead guilty to obstructing a price-fixing investigation involving computer memory chips by the DOJ grand jury.
# On 12/29/2003, Electronic Business News with prominent author Jack Robertson goes forever…
# On 01/08/2004, Judge Payne learned that the damage claim in the Rambus vs Infineon trial is not about 3 million dollars, but in the neighborhood of a hundred million dollars. He seemed to be pretty unaware of that fact (p.19). [Note: I wonder how he thought that Rambus would spend around $5M a quarter on litigation cost for a total of $3M damage claims...]
# On 02/11/2004, Farhad Tabrizi, former VP of world-wide memory marketing of Hynix, suddenly leaves Hynix. He was at the center of the DRAM makers long battle against Rambus Inc. At one point he served as chairman of the Sync Link Consortium, an early attempt to develop a rival DRAM standard to RDRAM. When Sync Link was overtaken by DDR, Tabrizi aggressively promoted the new double data rate standard. “Hynix is in a good position and I felt I could leave without causing any major impact.”
# On 02/12/2004, European Patent Office Technical Board of Appeal EPO revokes “RAMBUS” patent EP 0 525 068 on a “Semiconductor Memory Device”, after having used about 9 years to grant it. Rambus repeatedly requested the written decision, which is available here
# On 02/17/2004, the FTC Chief Administrative Law Judge Stephen McGuire issues his written Initial Decision (ID). It completely (100%) exonerates Rambus on over 340 pages. John Danforth of Rambus refers to it as a “seminal document”. From the FTC ID:

“Complaint Counsel have failed to sustain their burden of proof with respect all three of the violations alleged in the Complaint. A review of the three violations alleged in the Complaint shows that although Respondent is in possession of monopoly power in the relevant markets, Complaint Counsel have failed to demonstrate that Respondent engaged in a pattern of exclusionary, anticompetitive conduct which subverted an open standards process, or that Respondent utilized such conduct to capture an unlawful monopoly in the technology-related markets. Analyzing the challenged conduct under established principles of economics and antitrust law and utilizing the preponderance of evidence standard, Complaint Counsel have not proven the elements necessary to support a finding of liability.”

The FTC ID contains a lot of factual evidence about apparent collusion against Rambus (p.70ff), based for a later antitrust lawsuit filed by Rambus, here just 2 excerpts from the FTC ID:

526. In September 1996, Hyundai executive and SyncLink Consortium chairman Farhad Tabrizi wrote an email that expressed a concern that “the real motive of Intel is to control DRAM manufacturers. . . .” According to Tabrizi, Intel’ s actions would give it “control of DRAMs and other CPU makers. We will become a foundry for all Intel activities and Intel would like and desires to do business with us then we may get a small share of their total demand. ” (RX 778 at 1). Tabrizi concluded his email stating: “I urge you to please educate others and get their agreement to say ‘NO TO RAMBUS AN NO TO INTEL DOMINATION.’”
553. Tabrizi admitted at trial that he had told Sang Park, then the President and Chief Operating Officer of Hyundai, that he wanted to “kill” Rambus and force RDRAM from the market. (Tabrizi, Tr. 9105-07). Tabrizi subsequently testified that what he meant by “killing Rambus was really just “Rambus suicide, (with) me watching on the sideline.” (Tabrizi Tr. 9109). In his June 2000 email to Park, Tabrizi stated: ” (i)f Intel does not invest in us, I really want to ask you to let me go back to my old mode of RDRAM killing. I think we were very close to achieving our goal until you said we are absolutely committed to this baby.” (R 1661 at 2).
# On 03/03/2004, in the remanded trial (Rambus vs Infineon) for infringement in Virginia, Judge Payne is cited on this transcript (p.34) as having said the following:
“Well, you make sure this, Mr. Stone: If you have a motion for summary judgment on infringement, given the posture of this case and what I already know about the evidence in it, it better be good because I don’t want to spend any time over something like that only to realize that it’s really right back where we were with just a few little twists on it by virtue of the federal circuit’s opinion. Maybe there’s something there. Maybe there’s not. But I don’t really see that that would be a prudent move on your part.”

Remember that the CAFC/SC had said the following: “In sum, the district court erred in its construction of each of the disputed terms. In light of the revised claim construction, this court vacates the grant of JMOL of noninfringement and remands for the district court to reconsider infringement.”
# On 03/20/2004, Andrew Updegrove announces on his website that the FTC awarded an extension of the Appeal filing deadline. However, the FTC made their public statement of the extension only on 03/26/2004, backdated to 03/18/2004.
# On 03/26/2004, Infineon’s CEO quits after boardroom revolt. The press speculates on the reasons.
# On 04/15/2004, Andrew Updegrove files a Amicus Curiae Brief in support of the FTC Complaint Counsel. Its conclusion: “Due to the profound and pervasive adverse effects anticipated from the Initial Decision in this matter as described above, amici curiae respectfully request that the Commission hold that the behavior of Rambus is in violation of applicable law.”
# On 04/16/2004, FTC Complaint Counsel files an appeal against the Initial Decision of Chief ALJ Stephen McGuire: “His Initial Decision is riddled with legal and factual error. The decision departs radically from the appropriate antitrust analysis.”
Read the FTC Complaint Counsel’s Appeal Brief. Rambus filed a crossappeal.
# On 04/15/2004, Amicus Curiae Brief in support of FTC Complaint Counsel is filed by Economics Professors and Scholars whose primary author is paid by Hynix (see footnote on page 4).
# On 04/22/2004, Micron lawyers seem to have prepared the FTC Complaint Counsel document:
Check the last page, the certificate of service: original version (April 22 2004) … and… corrected version (May 14 2004)
# On 05/05/2004, Rambus files an antitrust suit against each of the Three Amigos (and Siemens) at the Superior Court of the State of California, read the Civil Complaint. “We can’t ignore the strength of this evidence,” said Rambus general counsel John Danforth. “We have a fiduciary obligation to our shareholders to do something about this.”
# On 05/11/2004, FTC Chairman Timothy Muris announces his plans to leave the FTC this summer after 3 years of his 7-year appointment. Press reports: “It was not immediately clear why he decided to leave”.

Muris appears to get replaced by Deborah P. Majoras, deputy assistant attorney general at the Department of Justice Antitrust Division, who has extensive experience in governmental investigations and price-fixing conspiracies. She went to the University of Virginia and currently works for Jones, Day, Reavis & Pogue. This law firm has been involved in the FTC case against Rambus and has experience in patent litigation.
# On 05/19/2004, Dr. Harald Eggers, Head of Memory Products Business Group at Infineon, decides to leave the company at his own request. From 1996 to 2000, Seifert went on to lead the White Oak Semiconductor plant, Infineon’s joint venture with Motorola in Richmond VA, USA, to success, gaining wide-ranging expertise in the memory products area in the process.
# On 06/22/2004, Rambus files a writ for mandamus to get the CAFC to help them in court against Judge Payne, errh, Infineon. What a wonderful document!
# On 07/20/2004, Infineon sets aside $263 millon for potential antitrust fines and ruines the quarterly results. Read the story.
# Late July 2004, Judge Payne denies SJ on dismissal of Monopolization and 17200 counterclaims. It would be “manifest injustice” if he applied case law…
# On 08/19/2004, the CAFC (Judges Prost and Linn) denies Rambus’ petition for writ of mandamus on the piercing of Attorney-Client-Priviledges by Judge Payne. The dissenting Judge Gajarsa warns that “that ruling has no basis in the law, and is likely to have widespread negative consequences across the corporate world.” However, the ruling was not declared precedential. Rambus requested an en banc rehearing and files another petition for writ of mandamus on 17200, Monopolization and Equitable Estoppel.
# On 09/08/2004, the former FTC Chairman Timothy Muris joins O’Melveny & Myers, the law firm representing Hynix in the FTC case against Rambus. What a coincidence!
# On 09/27/2004, the CAFC denies the en banc rehearing of the first writ.
# On 09/16/2004, Infineon pleads guilty to federal “price-fixing” charge, and to “suppress and eliminate competition”, read the plea agreement.
# On 10/22/2004, the CAFC denies the second writ without a written opinion.
# On 11/15/2004, Judge Whyte issues the Markman ruling. People begin to speculate on a summary judgement favorable to Rambus.
# On 12/02/2004, four Infineon executives go to jail.
# Have a look at a Rambus timeline slide
# On 01/04/2005, Judge Whyte rules on the Motion for Summary Jugment, very favorably to Rambus: Hynix infringes29 claims by Rambus.
# On 01/19/2005, Judge Whyte revised his ruling and decided that about half of the claims will be tried by a jury in the upcoming trial, since there are issues of fact involved in the term “read request” and some claims shouldn’t even have been part of the Summary Jugdment. But still, there are a number of claims infringed by Summary Judgment!
# On 03/21/2005, Rambus settles with Infineon for a measily $50 million, with a possible extension to another $100 million, if Rambus enters into additional agreements with certain other DRAM manufacturers. This settlement was basically done to get rid of Judge Payne, who didn’t want to allow a patent trial on infringement to happen, but rather punish Rambus for alleged spoliation of documents, without further investigating the issue.
# On 04/25/2005, the Inquirer starts writing about the price-fixing scheme and admits that Rambus was right all along, darn it.
# On 05/23/2005, the FTC Commission Rejects in Part and Grants in Part Motion to Add to Rambus Record. Basically, they wanted to allow Payne’s adverse decisions to save the face of the FTC. But don’t expect any decision from the Commission anytime soon. Delay tactics.
# On 06/07/2005, one day after Rambus brought a patent infringement suit against Samsung in California, Samsung brought suit against Rambus in Virginia. It asked for a judgment against Rambus based upon collateral estoppel of the spoliation that was found in the Infineon case, and that Rambus’ claims of Samsung infringement should be nullified for the four patents that were involved in the Infineon suit.
# On 06/15/2005, Rambus adds Samsung as a defendant in its Antitrust suit. Rambus is playing hardball.
# On 09/27/2005, a few days after Judge Payne starts issuing adverse orders, Rambus wants to dismiss the Samsung case, as they fear that Judge Payne might just have another go-around at negatively affecting other proceedings.
# On 10/13/2005, Samsung pleads guilty to price-fixing and pays $300 million fine to the DOJ. Rambus is not mentioned specifically, but people start to understand.
# On 10/31/2005, people start to realize that the court of San Francisco has documents that might allow Rambus to make the Antitrust case an even bigger slam dunk. The news reports about Rambus and a Price-Fixing Tale.
# 10/20/2005 (?) until 11/02, Hynix vs. Rambus: Part 1: Spoliation Trial. Observers of the trial notice that Hynix seeks end to Rambus lawsuit, since after two weeks of cross-examinations, no spoliation of Rambus documents was found. Even better, people in court laugh at Hynix’ desperate hopes of a miracle.
# On 11/08/2005, 02/23/2006 and 07/19/2006, Judge Payne rules that the Samsung case is exceptional and Rambus is guilty of spoliation. He basically says that he (by law) needs to issue a written ruling even though Rambus has withdrawn their case – just to mark a precedent!
# On 11/29/2005, the connection between Samsung price-fixing and conspiracy against Rambus is made. New court documents show that Samsung screwed Rambus using price fixing.
# On 01/03/2006, a great start of the year: Rambus signs a $75 million licensing deal with AMD, the once hated enemy of good old Intel. Now, they seem to be aware of the benefits an XDRAM interface could bring when combined with an Opteron CPU. Just like IBM and Sony noticed for their Cell processor design. While $75 million over 5 years might not sound like a lot, don’t forget that the market share of AMD is relatively small. Besides, it’s only for the patents, not for any particular design by Rambus. More deals are expected to follow.
# On 01/04/2006, after-hours, Judge Whyte issues his ruling on spolation from the October trial. Rambus wins 100%. There was no spoliation, it’s a complete victory for Rambus. Or, as the Judge puts it: “Here, the court does not find dismissal to be an appropriate sanction because it does not find the application of the unclean hands doctrine to be warranted. Further, the evidence presented does not bear out Hynix’s allegations that Rambus adopted its Document Retention Policy in bad faith. The evidence also does not demonstrate that Rambus targeted any specific document or category of relevant documents with the intent to prevent production in a lawsuit such as the one initiated by Hynix. The evidence here does not show that Rambus destroyed specific, material documents prejudicial to Hynix’s ability to defend against Rambus’s patent claims. Therefore, Hynix’s unclean hands defense fails.”
# On Friday 13, with the stock above $30, Rambus files new patent suit against Micron, after a Delaware court lifted a stay preventing Rambus from filing the suit earlier.
# On 01/19/2006, Hynix asks for a re-trial or permission to appeal Judge Whyte’s appeal-proof spoliation ruling… wishful thinking?
# On 01/31/2006, price-fixing guilty-plea #4: Japanese Elpida Guilty of Price Fixing. Who would have thought that, ha!
# On 03/01/2006, 4 Hynix executives Head For Jail in DRAM Scandal. Just a few hours later, The Honorable Judge Whyte issues his rulings on the motions in limine (jury instructions for the upcoming infringement and damages trial), vastly supporting Rambus’ claims.
# On 03/13/2006, the FIRST Infringement jury trial kicks off.
# On 03/17/2006, IBM expands their Cell Broadband Engine-Based License with Rambus, after it indicated that it would base their future chip designs on the Cell chip.
# On 03/22/2006, 3 Samsung executives Head to Jail.
# On 03/30/2006, MarketWatch mentions rambus.org in an article called The Rambus rumble.
# On 04/20/2006, Thursday noon PST, the jury decides that they won’t render their decision before the weekend. A hedge fund gets to know this information and causes a brutal 35% selloff, fueled by stop losses and nervous investors. The stock went from $46.14 all the way down to $29.52 and back to close at $38.50 after word came out that the jury did not render a bad verdict.
# On 04/24/2006, Monday, the jury decides that Rambus wins $306 million from Hynix. Here’s the actual jury verdict form: 37 to 0!
# However positive the verdict was, the nervous Rambus longs didn’t have enough buying power to buy more shares, and since there was still no money flowing into Rambus’ pockets and the markets had a tough time in general, caused by option scandals, the stock started to drift down.
# On 05/30/2006, Rambus announced their own Stock Option Scandal. A day later, the stock trades around $25.
# On 06/01/2006, The famous 12 e-mails” get into Rambus’ hands. The press reports quickly that Micron, Hynix e-mails indicate price fixing.
# On 07/05/2006, Rambus finally announced news. They extended an existing license deal with Toshiba on SDRAM and DDR SDRAM memory conrollers. The shares close at $22.77. A day later, Rambus also licenses Matsushita for the same memory controllers.
# On 07/10/2006, Judge Whyte slashes Rambus damages award from the jury verdict in the recent Hynix case from $306.5 down to $113.6m. He basically reduced the award to 4.25% on DDR on US-sales without any punitive damages. This was ‘Surprising And Very Negative’, according to Forbes. Downgrades, class action lawsuits and dissappointing days followed for Rambus investors as reports emerged about ‘significant expenses’ to restate the earnings back to 2003. The stock drops to below $15.
# On 08/02/2006, the FTC says Rambus unlawfully monopolized memory markets. The five politically appointed members of the FTC Commission decided unanimously that Rambus distorted the standard-setting process. They will decide on the remedy in the following months. This came four and a half years after their own Chief Administrative Law Judge had completely exoneratored Rambus on all counts after a month-long trial with dozends of witnesses and millions of documents. Doesn’t matter of course, in the following days, the stock goes down to $12 after the largest individual shareholder, Stuart Steele, sells more than 6 million shares at once.
# On 08/15/2006, Rambus ex-CEO Tate resigns from the board. He was the CEO and the sole member of the stock option committee during the time of the backdating…
# On 08/16/2006, Rambus gets Nasdaq non-compliance notice and faces potential delisting.
# On the same day, Rambus files an appeal against Judge Payne’s “exceptional case” and spoliation findings in the Samsung case (that should have been dismissed already). In a most unusual case of legal posturing, Rambus recommended to the CAFC (Judge Rader) that their own appeal be denied because Judge Payne’s declaration has no legal standing since it did not have jurisdiction for a case that no longer existed.
# On 08/23/2006, Judge Whyte stays the Hynix case until the final FTC remedy ruling is out. Still, the shares surge. “The company said the court attributed the move to the potential for resolution of the case once the FTC sets royalty rates on the SDRAM and DDR SDRAM chip types and to give Hynix ninety days to establish the applicability of any FTC findings on the case.”
# On 11/15/2006, Thomas Lavelle replaces John Danforth as General Counsel, who stepped down in July. Danforth will remain at Rambus as Senior Legal Advisor and will focus on the antitrust cases.
# On 01/03/2007, Qimonda signs up for Rambus licence. Nice start of the year – just like in 2006. Ten days later, Spansion takes a Rambus licence as well.
# On 02/05/2007, The Federal Trade Commission Issues Remedy in Case against Rambus. Here is the actual order. It basically allows Rambus to collect for 95% of the DRAM memory market, both going forward and backward. A complete victory for Rambus, although called a “remedy”. Here a diagram showing the actual impact of the ruling. Rambus shares jump 24% to $23.50 after the ruling came out. Of course, Rambus will still appeal the FTC “remedy” in order for it not to have collateral estoppel effects.
# On 02/07/2007, The NASDAQ’s Listing counsel decided that Rambus stock will remain listed for now.
# On 03/19/2007, The FTC Commission granted Rambus’ request for a Stay of portions of the remedy order. Now the appeal at an Appeals Court can follow and other cases should finally get going again.
# On 04/04/2007, Rambus appeals the FTC “remedy” order. Even though the remedy order didn’t really affect any royalties, it still hurt Rambus’ ongoing business. Lots of additional paperwork and uncertainty caused potential customers to “just wait and see”.
# On 08/23/2007, The EU brings an antitrust case against Rambus. The Wall Street Journal reported that the EU alleges Rambus charged royalties that were over the odds for memory patents that became industry standards… I wonder why they would say that… and not complain about illegal price-fixing instead. Must be some political pressure.
# On 09/07/2007, Rambus settles a class action suit related to its accounting for stock option grants by agreeing to pay $18 million.
# On 09/14/2007, Rambus files fiscal 2006 financial statements and completes the first step in the option mess: Rambus recorded a $169.4 million noncash, pretax charge from 1997 from 2005.
# On 10/17/2007 and over the following two weeks, Rambus regains Nasdaq compliance by filing all remaining 2007 financial statements. This marks the end of the option mess. Total cost: around $190 million, noncash (i.e. lost shareholder value). Thanks ex-Management…
# On 11/15/2007, David J. Novak, of Virginia, is nominated to replace Judge Payne as District Judge for the Eastern District of Virginia. Judge Payne may finally have retired! (He might still be handling pending cases though.)
# On 01/29/2007, The “Phase 3″ conduct phase in the case in front of Judge Whyte goes in front of a jury. I will determine whether Rambus’ conduct at JEDEC was good enough to validate the royalties due to Rambus by Micron, Hynix, Nanya and Samsung on SDRAM and DDR DRAM. Later this year, extension to (G)DDR2,3,4 will follow up, hopefully on summary judgements by Judge Whyte as there are no JEDEC-related questions, it’s all about patent technicalities that have already been decided.
# On 01/30/2008, Rambus’ stock jumps 20% on Bloomberg’ frontpage story about a possible favorable outcome for Rambus in the Hynix DDR case. Pacific American Securities analyst Michael Cohen is cited as estimating a potential payout of up to $10 billion, based on 4.25 percent royalties and treble damages on past due royalties on all DDR flavors by all infringing companies. This would be the “best case” outcome of the case in front of Judge Whyte.
# On 02/15/2008, Judge Kramer promised to issue a trial date for the antitrust case on April 15 2008. There’s still hope that Rambus can present “dynamite” evidence later this year which would increase the pressure on the remaining Cartel members such as Micron, Hynix and Samsung.

Prufrock June 15, 2008 at 4:55 pm

I just read these words on this site about Ludwig Von Mises:

“Mises concluded that the only viable economic policy for the human race was a policy of unrestricted laissez-faire, of free markets and the unhampered exercise of the right of private property, with government strictly limited to the defense of person and property within its territorial area.

Poor old Ludwig must be spinning like a top at Mr. Kinsella’s opinion piece which supports the perfect example of violation of the right of private property.
I know that IP attorneys, most attorneys for that matter, tend to promote increased litigation within their field of expertise. It’s good for future business!

But……………Mr. Kinsella, do yourself a favor and read Judge McGuire’s definitive ID on the FTC vs. Rambus. The alligator tears that you weep for the SSO’s members is ridiculous. IBM told JEDEC they would NEVER disclose their patents or applications. The FTC didn’t go after them, or try to destroy their property rights. The FTC, in the utter absence of ANY evidence or any written JEDEC policy, wants to punish Rambus for not disclosing the possible future IP (two years into the future for DDR DRAM) that they might someday patent. What a joke! Read it in Judge Radar’s appeal decision (Infinion v. Rambus). Rambus had no duty to disclose. Read Judge Whyte (Hynix v. Rambus): no duty to disclose. Read Judge McGuire’s ID at the FTC v Rambus: no duty to disclose.

It is beyond ludicrous that the criminal Memory Manufacturers (Hynix, Micron, Samsung, Infinion, and others) who formed a cartel to destroy Rambus didn’t know that Rambus would file patents on their inventions. After all, Rambus had gone to each of these company long before JEDEC and demonstrated their revolutionary technologies and obtained ndas (non-disclosure agreements). After all, the MMs knew that Rambus was an IP only company dependant solely on their patents for revenue. After all, the MMs collaborated illegally to “kill Rambus”, “boycott Rambus”, and they (Hynix and Micron) petitioned the FTC to litigate Rambus to death so that they could steal their inventions.

How do you confront the fact that the commissioners have NEVER ruled against their complaint counsel when independent ALJ’s cases have gone against the FTC? Of course, the commissioners don’t even have to read the ID and/or deal with the real facts in evidence because they can dream up a case in the “but for” world of theoretical FTC law which blames the victim for the crime. The appeals court saw through their flimsy contrived cartwhells. But, since there are no actual limits on this rogue agency (are you listening Ludwig?) the FTC can continue this expensive, wasteful, collusive, exclusive persecution ad infinitum. Whoopie! More work for IP lawyers.
Pathetic.

Prufrock

peterNaCl June 15, 2008 at 5:44 pm

I’m gonna strain to be civil…

I hope no government agency goes after YOUR property in order to SHARE it with OTHERS…

[Oh, wait... on principle, you don't agree with yourself, right..??]

peter

daversue5450 June 15, 2008 at 5:51 pm

Stephan … you’re a very confused man. Either you ARE a libertarian, or you’re not. You claim that whenever a patent monopoly collides with anti-trust “monopoly” theory (ie – in the case of Rambus; or in the case of the Cipro patents) YOU opt in favor of anti-trust theory instead of in favor of property rights.

You must be the only person on the planet who holds such mutually exclusive beliefs!

Next time you catch anthrax who ya gonna call, the FTC or the inventors of Cipro?!

You sadly, badly confused man! You’ve been spending so much time reading FTC anti-trust sci-fi that your brain has turned to mush. There’s a cure for that …. but it’s patented, so “no zoop for you”!

Dave

Elmer June 15, 2008 at 8:15 pm

What about intelligence in the main part of the blog?

If you don’t know anything about the Rambus case, why post anything? If you think it’s important, why not investigate?

Rambus was not allowed to present to Jedec, so how did they help define a standard?

The memory manufacturers knew what Rambus had, since it had previously been disclosed to them. Their whole purpose in getting Rambus to Jedec was for an excuse to steal their property, as they have done successfully (to the extent that they haven’t been made to pay..yet) ever since.

This has all been documented. Libertarians should respect property rights and facts. Please issue a retraction of your post after you have looked at them.

Jonathan Bostwick June 15, 2008 at 9:05 pm

Patents are not a form of property. They are a privilege to exclude others from competition. They are against economic freedom and destructive of economic well being.

Clearly a government granted monopoly is not covered by any libertarian theory of property rights.

charles wright June 15, 2008 at 10:55 pm

The grant of a patent is comparable to the title of real property. It is a right to exclude others from the use and enjoyment of something useful. The land title office is as much an “internal part of the state” as is the patent system or the FTC. By your logic, it would be a good thing for the state to impose reasonable rents on real estate just as you would have them impose reasonable royalties on patents.

You are the first self described libertarian I have ever heard arguing for rent control.

Brent June 15, 2008 at 11:53 pm

Nine of the above posts are very strange. Did anyone bother to read Kinsella’s post? Here’s a summary: It had to do with the state trying to have it both ways (granting monopoly privileges and then trying to bust up the monopoly).

BlackSheep June 16, 2008 at 12:52 am

I had a laugh at how Charles defined property as «a right to exclude others from the use and enjoyment of something useful». :)

Kevin Carson June 16, 2008 at 1:57 am

All property rights are the right to exclude others from the enjoyment of something, true enough. The question is whether an entity is appropriately subject to such exclusion. A finite physical object, which cannot be possessed by one person without prejudice to possession by another, is an appropriate object for a property title. On the other hand, the right to do something, like combine bits of information in a particular pattern, when the subject matter of the “property right” is not finite, is not an appropriate subject matter for property right.

I will at least give Charles Wright credit. He’s the only copyright apologist in this thread who even attempted a principled argument for IP as a genuine property right. All the others just asserted it as a self-evident truth.

Murray Rothbard warned long ago of the perils of utilitarian property rights theory (i.e., defending all de jure “property rights” without any regard to issues of legitimacy). And Karl Hess stated that libertarians don’t automatically defend all that is called “property,” as such.

IP, while formally a property right, is a “property” in the right to perform a particular operation and prohibit all others from doing so. What’s more, unlike genuine (i.e., tangible) property rights, the defense of IP requires the invasion of others’ genuine property rights. My defense of my own legitimate, tangible property follows automatically from the act of possession. Defense of IP, on the other hand, requires an intrusive surveillance state, legislative DRM mandates, and the like, to limit the technical features of others’ hardware and to invade their space and make sure it’s not being used in a particular way.

You can’t enforce IP, any more than drug laws, without a police state.

Libertarians who defend everything that is called “property” without any regard to legitimacy or justice in acquisition are basically saying: “OK, no stealing, starting… NOW!”

IP is not property, it is theft.

Ludwig June 16, 2008 at 8:42 am

I find Steven Kinsella’s attack on Skip Oliva and intellectual property protected by patent to be ignorant and ill-informed. Steven’s position reminds me of those allegedly noble nomadic savages who populated America prior to European settlement and who claimed all of America as theirs while simultaneously denying the existence of private property.

In this light, I respectfully submit that Steven’s position against private property and support of antitrust is properly viewed as a step back toward savagery, albeit today’s law-school, lawyer/hack variety.

Skip Oliva June 16, 2008 at 8:58 am

Stephan Kinsella’s defense of the FTC’s unconstitutional acts and attacks on individual rights is a testament to his intellectual dishonesty and lack of morality. He is one reason (among many) that I am proud to say that I am no longer a libertarian nor a supporter of the Mises Institute.

Stephan Kinsella June 16, 2008 at 10:00 am

Mr. Oliva has criticized me in a post on the Investor Village forum.

Above Oliva writes, “Stephan Kinsella’s defense of the FTC’s unconstitutional acts and attacks on individual rights is a testament to his intellectual dishonesty and lack of morality. He is one reason (among many) that I am proud to say that I am no longer a libertarian nor a supporter of the Mises Institute.” What a bizarre comment.

I didn’t defend the FTC’s actions in this case. My position is simply that it does not violate a patent holder’s rights when the state that issues him this false monopoly privilege limits the scope of that false monopoly privilege.

I would also add that not only is the FTC unconstitutional, but most of federal law is. Sure. But constitutionality is not really that relevant, for us libertarians. The patent system is constitutional, but that does not justify it.

I find it utterly bizarre that Mr. Oliva would declare me an “enemy” (as he did–for the second time now–in email), or disassociate with the Mises Institute, because of my very civil post and a possible disagreement between us on a particular libertarian issue. To defame me as being “dishonest” and “immoral” for having a different opinion from him is irresponsible and itself immoral.

Below I reprint my comment on the Investor Village forum:

Mr. Oliva has now twice declared me an “enemy” because I … disagree with him on a couple of issues. I don’t understand this way of interacting, but to each his own.

To be clear: as I am a practicing, registed patent attorney I am well aware of what patent rights are, and how they are obtained and used.

I am also a radical libertarian. As such I certainly oppose anti-trust law, which is utterly evil. There is nothing wrong with natural “monopolies”, and the state has no right to interfere with any voluntary arrangement on the market. In fact the only real monopolies are state-granted ones, which is one reason I oppose the state itself and its various monopolies; and it’s why I oppose the state’s granting of monopoly rights to private companies–namely, patent and copyright. Therefore, I oppose the state granting artificial IP rights which are not genuine property rights but which actually undermine real property rights. (I’ve published on all this a great deal — my libertarian related writing is at http://www.StephanKinsella.com/publications.)

When the state issues false rights, and then finds ways to choke them back and attach strings to them, it should not be a surprise. This is yet another drawback of relying on or having the state be involved in the market.

In my post, I took no position as to whether Rambus is guilty of what the FTC alleges. I made two general points which do not rely on making this assumption. First, it is good when patent rights are weakened. If the state does not grant to Rambus a monopoly which can be used to shut down competitors, but which can only be used to extract “reasonable royalties” from victims in the market, then this is good. It does not matter what internal squabbling inside the state results in the state choking back patent rights.

Second, I made the general comment that I find it despicable when private companies get in bed with the state and use state monopoly power in deceptive ways when they are part of standards-setting organizations. This is fairly common, and I think it’s bad. When this happens, I certainly do not shed tears over these companies having their patent rights choked back a bit.

Whether this did indeed happen in the Rambus case I do not know, nor did I state an opinion about this. Several people seem to have a passionate opinion that Rambus did nothing wrong. Well, other than trying to obtain patent monopolies from the state and fight to be free to use them to sue other, innocent companies, that is. They may well be right. I have no dog in this fight.

The FTC alleges that this was a case involving

“a scheme by one SSO member to obtain monopoly power by deceptively circumventing rules that were intended to prevent such an outcome. The case has broad implications for the ability of antitrust law to protect against “hold-up” by patent owners who acquire market power by engaging in deception or other exclusionary conduct in the standard-setting process.

“Respondent Rambus, after joining an SSO known as the Joint Electron Device Engineering Council (“JEDEC”), participated in proceedings in which JEDEC members debated which technologies to select for proposed industry standards for a widely-used type of computer memory. From the outset, Rambus worked deliberately to subvert JEDEC’s standard-setting work. Rambus concealed its patent interests in technologies JEDEC was considering and–using information that it gained in standard-setting proceedings–filed amendments to its pending patent applications. Ultimately, JEDEC – not knowing about Rambus’s patent interests – incorporated Rambus technologies into standards that were implemented by nearly all of the computer memory market.

After instituting administrative proceedings and reviewing a voluminous record, the FTC found that, but for Rambus’s deception, either (1) JEDEC would have selected alternative technologies, or (2) JEDEC – before adopting the standards – would have required Rambus to agree to license its patents to users of the standards on “reasonable and non-discriminatory” (“RAND”) terms, as mandated by JEDEC rules.”

Is this true? I don’t know. It rings true to me, but it could very well be that the FTC is inept or corrupt here. The same could be true of the federal courts involved in this matter. They are all just agencies of a criminal state.

Anyway, I oppose both antitrust law and patents. The FTC is an abomination, as is the patent office. Most of the people getting upset about the Rambus case and my comments are apparently pro-patent. But anyone who is pro-patent has no grounds to whine–to be pro-patent is to maintain that the federal government–clearly a criminal organization–is legitimate. But if you legitimize the federal government, you have no right to whine about other agencies and laws it will predictably create, such as the FTC and anti-trust law. The only consistent position is to oppose both antitrust law and patent law–and to deny the federal government legitimacy.

Murray June 16, 2008 at 10:06 am

Stephan,

Just ignore the tired rantings of the Rambus stockholders who feel the need to defecate on every post in the blogosphere that might show even a hint of disagreement with Rambus’ attempts to gain a monopoly on the computer memory market.

The Patent Office vs. FTC battles are mildly interesting, but at the end of the day we all know how incompetent the PTO is at examining patents. The fact that a company like Rambus, who doesn’t own a memory fabrication facility, and doesn’t know how to do anything but draft patent applications (since they don’t make any product) may, through government fiat, become a monopolist over the entire computer memory industry. If that is a “free market” then any notion of capitalism is truly dead in this country.

nate June 16, 2008 at 10:56 am

murray, stephan, et.al.,
where does rambus having their patents stolen and the memory manufacturers illegally colluding in price fixing against rambus products meet up with your ideas of a “free market”?…those are the facts…the ftc was totally bitch-slapped by the cadc, as has been pretty much every other decision against rambus…of the two sides in this battle, rambus and the memory manufacturers, only one side has had multi-million dollar fines levied against them, pled guilty to related crimes in federal courts, and had their executives imprisoned for related actions – and that side is not rambus

Johnson June 16, 2008 at 11:09 am

Nate,

So, were you in on the three “shred days” held at Rambus headquarters on the eve of litigation? Or did you buy their stock after they destroyed the evidence of their wrongdoing?

Just because Rambus has gotten away with breaking the law doesn’t mean they’re in the right. It just means the courts are incompetent. Except for Judge Payne in Virgnia. After he concluded that Rambus destroyed evidence, Rambus quickly settled with Infineon. Rambus doesn’t like to talk about that, they’d rather talk about the imaginary “conspiracy” against them.

Michael A. Clem June 16, 2008 at 11:45 am

You know, it’s sometimes quite FASCINATING to see how people’s assumptions and impressions affect their reactions to other people, especially when they confuse statements of fact and logical implications with opinions. Seeing the same story from different perspectives and all that.
But not always.

Stephan Kinsella June 16, 2008 at 2:42 pm

nate: “where does rambus having their patents stolen and the memory manufacturers illegally colluding in price fixing against rambus products meet up with your ideas of a “free market”?.”

I am not aware that the latter occurred. But if it did, libertarians of course oppose antitrust law and do not believe there is anything wrong with price-fixing or collusion.

As for the former, patents are an unjust monopoly privilege granted by the state to certain applicants for this privilege. It gives patentees a bludgeon to threaten other companies. Making the bludgeon a bit less dangerous to others is not “stealing” anything from them. To refer to this as “stealing” patents presupposes the legitimacy of patent rights and the federal government itself.

nate June 16, 2008 at 5:19 pm

stephan,

#1. “I am not aware that the latter (memory manufacturers illegally colluding in price fixing against rambus products) occurred”
— this is a direct quote from micron vp linda turner’s june 2001 email that is in evidence: “…We want DDR to explode into the marketplace so have actually been requesting Infineon, Samsung and Hynix to lower their DDR pricing to help it become a standard (and drive Rambus away completely)…”

#2. “libertarians of course oppose antitrust law and do not believe there is anything wrong with price-fixing or collusion” – well, there you go again ;-)

#3. “patents are an unjust monopoly privilege granted by the state” – so in your world how do inventions ever happen?…how does technology advance?…would a cancer drug ever be researched?…anyone developing something new is just a philanthropist?

BC June 16, 2008 at 8:26 pm

“may, through government fiat, become a monopolist over the entire computer memory industry. If that is a “free market” then any notion of capitalism is truly dead in this country.”

The MM’s were completely “free” to not use Rambus’ revolutionary inventions in their chips (and still are today), and instead could have continued using the far inferior chips they had been using. Rambus didn’t hold a gun to their heads or anything. Heck, they weren’t even allowed to present at JEDEC.

The computer industry FREELY allowed themselves to be subject to Rambus’ royalty rates by using (stealing) their technology.

JonBostwick June 16, 2008 at 9:19 pm

“So in your world how do inventions ever happen?…how does technology advance?…would a cancer drug ever be researched?…anyone developing something new is just a philanthropist?”

How did inventions happen before the creation of the patent office? Guaranteed profits are anti-market.
They are morally wrong, and economically destructive. Patents, rather than causing innovation, stifle it. If the law prevents anyone from competing with me I have no need to improve my product. I can turn out the same thing year after year.

The Industrial Revolution did not begin when Watt invented the steam engine. It began when his patent expired and an entire steam engine industry was allowed to form.

Thomas IV June 22, 2008 at 2:40 am

“Intellectual property” is fraud… just imagine someone taxing (!) you for thoughts.

Why should someone have the right to control your thoughts and your (usage of your) property against your will?

Just because someone went earlier to some “bureau of the state” and they assured him, that he was the first person “coming up” with an idea? Thats ridiculous and has nothing to do with righteousness and property rights. Thats just some sort of getting a bureaucratical privilege (like a “privilege” to “own” slaves).

Do some of you really think that way? Then you are not categorically different to other leftists/monopolists in time an space…

Thomas IV June 22, 2008 at 2:52 am

I have to add:

It does not make any difference, whether someone has some sort of idea, method, musical composition etc. that he wants protected and monopolized through force.

Imagine someone trying to monopolize a cooking receipt; or the idea and method of sexual reproduction in the species homo sapiens… ;)

Or imagine someone “inventing” a hamburger. Now think about this person trying to prevent other persons replicating that hamburger with some gizmo in the distant future: What kind of right do you think he has to stop others doing that by force?

Nobody is forced to give away his original idea, method etc.

But if he is giving it away, than it is the same situation as someone abandoning real property. Mr. Constitution (Thomas Jefferson) knew that. And you are assumed to be standing on his shoulders (remember: “standing on the shoulders of giants”).

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.” – Thomas Jefferson

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