Bollocks. The FTC was spanked by the appellate court for stretching flimsy evidence, and essentially told the FTC that a Section 5 case probably wouldn’t fly either. That case used the “uncovered suppressed evidece”, which basically showed that Rambus was in a competitive environment, and chose to wait until their patents actually issued to pursue infringers.

Given that the CAFC and the FTC’s own ALJ had already said that JEDEC had no disclosure rules for patent applications, or intentions to file future applications, Rambus’ actions were entirely proper.

The fact still remains that the JEDEC members knew that Rambus could, and probably would file additional claims that would cover SDRAM, and the JEDEC members knew from their own discussions with Rambus and their own talks together that Rambus felt they had claims on DDR. Yet none of those members ever asked Rambus for RAND assurances. That continued in 2002 with DDR2, which was after they CLEARLY knew that Rambus had patents that would likely issue, since Rambus’ other patents that the JEDEC members were sure would not issue due to prior art actually did issue.

JEDEC knew what was going on, it was an open attack to steal Rambus IP and put it into the free public domain, just like Willie Meyer said in the presentation that none of the maufacturers can remember who was at.

I am the former general counsel of Rambus (from late 2001 through mid 2006) and have previously shared my own views (not the company’s) about some of the factual errors, procedural shortcomings, structural infirmities and other unfortunate influences that led the FTC to bring and pursue the Rambus case.

Those interested in these issues will find that they not only highlight errors in the outcome reached by the Commission in this particular case. These same issues also ought to call into serious question the way FTC enforcement actions are currently initiated, tried and appealed.

My first article on these issues, in the Legal Times of Washington, can be found here:

http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1209546325201, or http://www.investorvillage.com/smbd.asp?mb=3666&mn=215579&pt=msg&mid=4693185

Some of the other pieces I have written include a commentary on the FTC’s en banc petition in the Rambus case. That en banc petition highlights – indeed amplifies — some of what the DC Circuit called the FTC’s “aggressive use of weak evidence.” See

http://www.scribd.com/doc/3429039/080616-John-Danforth

Those who want to see even more of the case (as it was presented to the FTC’s Chief ALJ in a four month trial in 2003) should read the ALJ’s February 23, 2004 “Initial Decision”, which made extensive findings of fact and relied on multiple independent grounds to recommend dismissal of all charges against Rambus. It is included as Appendix Volume 2 to the FTC’s cert. petition and can be found here:

http://www.ftc.gov/os/caselist/0110017/081124rambuspetvol2.pdf

The full commission threw out the ENTIRE 330 page initial decision without so much as one paragraph of discussion, saying essentially that the ALJ used the wrong legal standard to throw out that verbal testimony. They then concluded on that basis that Rambus was guilty.

Should the SC take this case? No. The Appellate Court already slapped the FTC for stretching questionable evidence in finding Rambus guilty. So before the SC takes this case, the FTC should have to prove that Rambus actually did something wrong.

The FTC’s case lies in deception and supposed non-disclosure by Rambus. Yet the ALJ detailed that at least some JEDEC members were aware of Rambus’ patents, and knew that Rambus could, and probably would file additional claims and patents that would cover SDRAM (DDR development occurred after Rambus left JEDEC). The CAFC in the Infineon case actually looked at Rambus’ claims and patents, and concluded that if JEDEC actually DID have a disclosure policy, Rambus had no claims or patents that would trigger a disclosure.

Did the full commission actually review Rambus’ patents? No.

Just remember that when Rambus asked to present their technology to JEDEC they were denied. The ONLY company that JEDEC has not let present their technology, yet all of the major JEDEC members had already learned of Rambus’ technology under non-disclosure agreements.

So who is the FTC really being operated by, and who are they protecting in persuing Rambus?