The Standards Blog

Rambus Ruling Overturned: A Legal Dispute of Dickensian Proportions Lurches On

Intellectual Property Rights
The one great principle of the English law is, to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings.  Charles Dickens, Bleak House


According to John the Apostle, the poor will be always with us.  So too, it seems, will the never-ending skein of cases enmeshing Rambus, Inc., the brash memory design company that famously participated in a JEDEC standard setting process in the early 1990s, and later asserted various patent claims against implementers of the very standards created by the working group in which it participated.  And while the lawyers may not be to blame in this case (or more properly, these many cases), the flood of litigation involving more than a half a dozen different vendors and government agencies certainly rivals the worst that Jarndyce ever threw against Jarndyce in Charles Dickens' epic tale of litigation gone wild.

The latest turning of the screw was announced this Tuesday, when the US Court of Appeals for the District of Columbia overturned a unanimous ruling by the five Commissioners of the Federal Trade Commission (who had, in their own turn, earlier overturned the decision of an FTC Administrative Law Judge, who had reached a similar result to the Federal Circuit, which had itself earlier overturned the verdict of a trial court that...well, you get the idea).  In a related decision, the FTC had capped the royalties that Rambus could require implementers of the standards to pay.  Now that Jill, too, will go tumbling down after the Jack that fell to the Appeals Court's reinterpretation of the law.

The long and the short of the latest decision is that the Court of Appeals disagreed with the FTC's conclusion that Rambus's activities in JEDEC constituted a violation of antitrust law, and also questioned whether the Commissioners had properly concluded that Rambus had violated JEDEC's patent disclosure policy.  Summarizing and oversimplifying a complex analysis, the FTC had based its conclusions on the assumption that if Rambus had disclosed its patentable inventions in timely fashion, JEDEC would have either chosen another, non-infringing option, or would have required Rambus (under its standing rules) to pledge to make patent licenses available on reasonable and non-discriminatory (RAND) terms.  The higher court held that under existing precedents, both of these alternatives would need to result in a violation of antitrust laws in order for Rambus to be held accountable .

Fortunately for Rambus, the court held that engaging in deceptive conduct to avoid the latter alternative would not violate anticompetition law, even where the result was to create monopoly power.  Or, in the more formalistic language of the Court, "the FTC failed to demonstrate that Rambus's conduct was exclusionary under settled principles of antitrust law".


Meanwhile, there is an ongoing series of cases between Rambus and several implementers of the standards in question, in which Rambus alleges that those vendors colluded against Rambus in connection with the same process.  Several of those vendors have already paid heavy fines to US regulators in settlement of similar charges.  I have written very extensively on all of this, and you can read more than you will likely ever want to know by sampling from this list.

As increasingly seems to be the be case these days when rutting rival vendors butt heads, the standard setting system has become the most notable and innocent victim of collateral damage.  The reason is that whatever the final conclusions at law regarding the bad acts of Rambus et al., documentsdiscovered during the various cases revealed early on that Rambus believed that it was violating JEDEC rules, had been so advised by its counsel, and later destroyed documentary evidence in an attempt to conceal that conduct.  In consequence, when Rambus loses, the credibility of the system, including the ability to look to courts and regulators to punish abuse, is bolstered.  And when Rambus wins, other participants in standard setting activities may pause and wonder whether it's safer and smarter to cheat than to live by the rules. 


As a result, I've filed a total of four pro bono "friend of the court" briefs over the years, advocating for the courts to protect the integrity of the standard setting system.  Those briefs were filed with the Federal Circuit Court that hears patent cases, the Supreme Court, which declined to hear the case, and the FTC (two briefs).  These briefs have not been welcomed by all concerned, as a
long the way, Rambus acquired a cult of stock-owning true believers that are convinced that there is a world-wide conspiracy hell bent on destroying this innocent victim.  They are a refined and introspective lot, and as luck would have it are characteristically willing to share their opinions with me in a respectful and intellectual exchange of ideas.  Consider, for example, this email from "Regina," which I received within hours of the release of this latest opinion:

Looks like the CADC just wiped their collective arses with your precious ”pro bono friend of the court brief”. Hope all those hours whoring yourself for the criminal cartel DRAM makers were worth it.

You can read further thought provoking samples here.

Be that as it may, there have been many ups and downs for both sides along the way, not only with respect to the overall question of liability or the lack thereof, but with respect to specific practices and obligations.  For example, I was shocked when the FTC Administrative Law Judge ruled that there is no duty of good faith as between those engaged in standard setting.  Since the standards process is consensual in nature and inherently based on trust (standard setting organizations rarely have any sanctions, or the means to enforce them), that ruling seriously undercut the entire basis of the standard setting system.  Happily, the Commissioners held otherwise, and it does no appear that this ruling has been disturbed.

What happens next?  Well, the FTC now needs to decide whether to try again.  The Court of Appeals left open to the FTC the opportunity to retreat, or to bravely take the field once again.  Certainly there are some aspects of the higher Court's ruling that I find problematic, and would prefer to see challenged.  To give one example, the Court justified it's holding that there was no anticompetitive effect from the loss of JEDEC's opportunity to extract a RAND commitment from RAMBUS in part on this reasoning:

Indeed, had JEDEC limited Rambus to reasonable royalties and required it to provide licenses on a nondiscriminatory basis, we would expect less competition from alternative technologies, not more; high prices and constrained output tend to attract competitors, not to repel them. [Opinion, page 18]

This represents a rather startling lack of understanding regarding what standards are all about, as the purpose of a standard is not to provide incentives to launch non-compliant alternatives, but to provide incentives for everyone to give up that right in favor of the common good to be found from supporting a single standard.  When they do, true competition does result, as more competitors are attracted to the standard, resulting in greater competition not only on price, but also in providing innovative, value-added features above the layer of standardization - and therefore more variety and choice.

Regardless of what the FTC decides to do, this newest reversal of fortunes for Rambus will give it more bargaining power in its private suits against Hynix and others.  And it also once again casts an ominous and lengthy shadow across the integrity of the standard setting process.

But still.  This is, after all, the Rambus story, and there is always another court, another cause of action, another plaintiff or prosecutor.  Recall that the European Commission also has an open investigation against Rambus for "patent ambush."  So perhaps yes, Regina, there may be a Santa Claus (after all).

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Comments

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It does seem as though the Posner school of antitrust law is lapping at the standards process, doesn't it?

If I read the ruling correctly, the theory is that an abusive monopoly is good for consumers precisely because it's abusive: if it weren't abusive, there would be no incentive for potential competitors to enter the market.

Therefore, all of antitrust law is now a dead letter.  A monopoly which doesn't abuse its position isn't actionable ab initio; a monopoly which doesn't cause harm to consumers is off the hook by precedent; and a monopoly which does harm consumers is really helping them, so see step 2.

QED.

--
D. C. Sessions,
Former chair JEDEC JC-16

One does have to admire the elegant simplicity of their logic.  I can't help thinking of a few lines from Joseph Heller:
Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

"That's some catch, that Catch-22," he observed.

"It's the best there is," Doc Daneeka agreed.

  -  Andy

Permalink

You forgot to mention a jury recently cleared Rambus of any wrong doing at JEDEC after hearing all the evidence.

Your logic appears to be:

1) X is bad

2) Company Y is accused of X

3) Company Y is guilty

Unfortunately you forgot the part about evidence being required to prove a case. Maybe you should accept that possibility that Rambus is not guilty of the wrong doing it is accused of.

 

It depends on which jury or judge you want to listen to.  Different triers of fact have come out different ways.  And the specific evidence that I refer to above has been established.  What varies from case to case are the specific causes of action that the court is asked to rule on, which varies from venue to venue.

  -  Andy

"What varies from case to case are the specific causes of action that the court is asked to rule on, which varies from venue to venue."

In all court cases as they currently stand Rambus has been cleared of JEDEC related charges

1) Rambus vs Infineon - lost at district court, won at CAFC

2) Rambus vs FTC - won at ALJ trial, lost at FTC commission, won at CADC

3)Rambus vs Hynix/Micron/Nanya - won at disctrict court

"And the specific evidence that I refer to above has been established."

The court cases as they currently stand would seem to disagree with your spin of the "evidence".  Or as the CADC stated in the FTC appeal "Once again, the Commission has taken an aggressive interpretation of rather weak evidence."

HMMMMMMMMMMM Let's seeAn organization comprised of vicious corporate competitors, agreeing to voluntarily disclose their trade secrets to their competition, collectively setting standards for the manufacture of products in their market niche.  Smacks of anticompetitive antitrust behavior to me.  As a consumer, I don't like it. Oh, and by the way, if you don't disclose, then I get to use your property for free. Yeah, right!!!!

Hmmm.  do you use a computer?  Hundreds of standards there.  Some sort of mobile device?  More hundreds.  Internet?  Damn - lots more standards again.  Are you sitting somewhere in the real world?  There are without question thousands of implemented standards within 20 feet of you, all created through voluntary consensus-based processes.  The vast majority of them bear no royalties. 

Hell - this just may be a crazy idea enough to work!  That is, as long as there aren't too many people gaming the system. 

  -  Andy

Sorry.  I disagree.  The vast majority of existing standards bear no royalties, period.  Standards occur in all industries, and many of them have few patents, or patents are just not relevant to the design elements involved.  Think performance standards (current voltages, bulb wattages), dimensional standards (plugs, connectors, and so on) and other specifications outside of information and communication technologies that simply don't live in the middle of patent thickets.  And even within ITC, many standards organizations, such as OASIS, Open Geospatial, W3C and many more have simply never had a royalty required from any patent owner, large or small.  The whole world, after all, is not made of silicon (even if more and more is controlled by it).

  -  Andy

That's very much a matter of practice within a given industry sector.  In some areas, royalty-bearing standards are common, and well-tolerated, and no great effort is spent avoiding them, or the patent thicket is so thick, it's just assumed that every standard will infringe patents, and that a RAND with roayalty commitment is the most that can be hoped for.

In others, such as the W3C, every effort to avoid a royalty would be taken, and the IPR policy only has a narrow crack through which such an eventuality could creep.  And in still others (like OASIS) where there are multiple tracks (some open source/no royalty, and some that permit RAND with royalty), no one ever requires a royalty even if they reserved the right to do so.

I see also that I was led astray your use of the word "cross license."  In standards circles, that usually relates to a pre-existing license between two vendors, the result of which is that while some implementers may need to pay a fee, others may not, because the preexisting cross license already covers the patent(s) in question.  I think what you may be referring to is a license requirement whereby an implementer must license back its own necessary claims, which is referred to as "reciprocity."  More common than reciprocity, however, is "defensive suspension."  Under that license term, the patent owner that has made a RAND or other commitment is entitled to rescincd its license to any implementer that asserts its own patent back against the first patent owner.  This levels the playing field as between the two parties involved (and sometimes benefits all implementers as well).

  -  Andy

You very much want to change the subject to SSO's but the title of this thread contains Rambus. As has been pointed out to you but what you want to ignore is that every case has eventually ended up in favor of Rambus. It doesn't seem to matter to you that every finding against Rambus was overturned by a higher court. In this particular situation it maybe the SSO that is not so clean.
Several members of this SSO (JEDEC) have pled guilty to price fixing during the very time period they contend Rambus was 'Deceiving' them. The members that pled guilty are Hynix, Samsung, Infineon (now Qimonda),Elpida, Nanya, and Micron negotiated a squeal deal with DOJ to avoid prosecution. Two of these, Micron and Hynix petitioned the FTC to investigate Rambus. Hmmmm. Do some research, it is all there for anyone with an open mind and basic research skill to find.

>>You very much want to change the subject to SSO's but the title of this thread contains Rambus.

Indeed yes.  All of the cases where Rambus is a defendant relate to it's conduct at an SSO, and whether it broke the rules of the SSOs.  That is my concern and what all of the cases are about where Rambus is a defendant.

>>As has been pointed out to you but what you want to ignore is that every case has eventually ended up in favor of Rambus. It doesn't seem to matter to you that every finding against Rambus was overturned by a higher court. In this particular situation it maybe the SSO that is not so clean.

I am not aware of any allegations that have ever been made to that effect.  It's true that JEDEC may not have had the clearest rules, but they were quite typical of the rules of all organizations of the day.  And more particularly, the evidence shows that Rambus was advised by its lawyers at the time that it was breaking the rules, and believed it.

>>Several members of this SSO (JEDEC) have pled guilty to price fixing during the very time period they contend Rambus was 'Deceiving' them. The members that pled guilty are Hynix, Samsung, Infineon (now Qimonda),Elpida, Nanya, and Micron negotiated a squeal deal with DOJ to avoid prosecution. Two of these, Micron and Hynix petitioned the FTC to investigate Rambus. Hmmmm. Do some research, it is all there for anyone with an open mind and basic research skill to find.

>>I have no reason to doubt that these folks engaged in conduct that was also illegal.  That, however, is irrelevant to whether Rambus also engaged in such conduct.  It is all there for anyone with an open mind and basic research skills to find.

  -  Andy

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How can Rambus be guilty of deception?  Three courts said that they were not.  Only the DRAM cartel (convicted of price fixing by the US DOJ) and the FTC claim they are.  Just because they claim Rambus is deceptive, doesn't make it true.

Three courts said that the rules of JEDEC did not require Rambus to disclose patent applications.  One of those even went so far as to say "had a staggering lack of details on disclosure.  They could have, but they just didn't."  Had Rambus disclosed at JEDEC, they could have lost threir rights to their IP. Even one of the CADC judges in the oral hearing asked the FTC spokesperson. "You realize that by asking Rambus to disclose patent applications, Rambus would essentially be giving up their intellectual assets for free?"  The judge didn't think that companies were at JEDEC to give away the rights to their intellectual property.  Do you?  I don't.  I think companies were there to establish standards based on the best technology available.  But tricking Rambus into giving up these rights is exactly what the cartel wanted.  Willi Meyer even put it in a presentation, when he said the choices with regards to Rambus IP.  We can:

1. license Rambus IP,
2. buy Rambus out, or
3. steal their property and litigate them to death and make their IP public domain.

My bet is that you will see this ENTIRE document at the AT trial in Feb 09.  Not just a couple of the least incriminating pages shown in the Hynix trial. Now, I'm sure even you can determine which door the cartel chose to take.  Door #3.  I knew you could do it!

The good thing going forward is that Rambus will likely never participate in a standard setting meeting ever again, but the DRAM cartel will continue to use Rambus IP.  The Hynix trial already displayed ample evidence of this as JEDEC has continued to knowingly add Rambus IP into their standards long after they have gone. The knowingly adding will likely spell TREBLED damages for the DRAM cartel (other than Hynix).

All roads lead to Rambus (for the cartel AND for the controller companies sitting on the sideline watching the FTC do the cartel's bidding while quietly disclosing in their notes to their financial statements that costs could be substantial).  The sooner the cartel figures this out the better off they will be.  At this point Rambus is NOT required to license any one of them. Wouldn't it be poetic justice if the "death" in this whole situation turned out to be one or more of the DRAM cartel?

Nas

Nas,

Don't assume that I'm defending any other player in this sad drama.  I've often used the analogy that two different bands of bandits arrived at the same bank, at the same time, to rob it.  Just because there is a second band of robbers, though, doesn't exonerate the first.  And don't forget that while some juries found that Rambus was not technically guilty (although every one of them - including the one you quote - also found that Rambus _believed_ it was gaming the system), other courts did find that Rambus was guilty.  So you or I can't no which ones were "right."

Rambus supporters usually miss the fact that I'm not arguing for or against either side - what I am arguing for is in defense of the system, and against anyone who games it (including those that ganged up on Rambus).  However they come out on legal liability, every court has agreed that Rambus was intent on taking advantage of the system, and thought it was breaking the rules at the time.  Only after they were caught did they turn to probing weaknesses in the law to get a court to agree that, whatever their intent, they still shouldn't be found to be guilty. 

  -  Andy

"every court has agreed that Rambus was intent on taking advantage of the system, and thought it was breaking the rules at the time."

I still can't see how Rambus gamed the system. Couldn't they have sat outside of JEDEC and still obtained the same patents? Or do SSOs allow competitors to set standards confidentially?

Can you quote me the direct evidence which shows Rambus thought it was breaking the rules?

What Rambus was accused of doing - and what every fact finder in every case has agreed that it did, regardless of whether it ultimately concluded was a breach of law - was the following:

1.  Join a group that was working on a standard.

2.  Use the knowledge that it gained through that participation to shape the patent claims that it was writing at the time to ensure that the patent, if granted, would be sure to be infringed by standard once it was approved and implemented.

3.  Before the formal date upon which every involved member would have to declare whether it had any patent claims that would be infringed, it resigned as a member, and if so, declare whether it would, or would not license the claims on reasonable and non-discriminatory terms.  This was after its legal counsel had already advised it that it was breaking the rules by continuing to be a member and not step forward and reveal the information.

4.  After it resigned, it continued to solicit information from other members so that it could continue to shape its claims to ensure infringement as the standard continued to evolve.

5.  Only after the standard had been approved, become widely implemented, and its patents granted, did Rambus step forward and begin demanding royalties - a classic "submarine patent" approach.

If you read any of the opinions by any of the courts and at the FTC (including the Administrative Law Judge that found that in favor of Rambus), you will find agreement on these facts.  The current FTC opinion also accepts the findings of fact by the FTC Commissioners whose ruling it is in part over ruling.  The only disagreement is whether or not there should be legal liability arising from conduct that Rambus itself believed was a violation at the time, but after the fact is seeking to find legal reasons to excuse.

My briefs have consistently been focuses on the fact that if a member of a standards body can knowingly and deliberately violate rules in order to avoid the results that those rules were created to ensure, then companies and engineers will not want to join in standard setting, because they have more to lose than to win by obeying the rules.  If that happens, we all lose, because without standards, you and I could not even be having this exchange using a computer, telecommunications and the Internet - all of which are heavily dependent on both the development and implementation of standards.

  -  Andy

To take your points one by one.

1) Correct

2) So what. The information obtained was not confidential and Rambus is allowed to add claims to patents only if supported by the original patent specification which was written before Rambus joined JEDEC. Rambus did not need to be a member of JEDEC to obtain this information - JEDEC meeting minutes were publicly available.

3) First sentence - so what. Second sentence - can you quote the evidence where Rambus lawyers  "advised it that it was breaking the rules". I have followed the cases closely and have never seen such evidence.

4) So what again. Amending of claims to cover competitor products is legal under Kingsdown if supported by the original specification.

5) Wrong. Rambus sued as soon as the patents issued and licencing negotiations broke down. If what you stated was true Rambus would have been found guilty of prosecution laches, which they haven't..

"The current FTC opinion also accepts the findings of fact by the FTC Commissioners "

Wrong again, did you even read the opinion? - "Because of the chance of further proceedings on remand, we express briefly our serious concerns about strength of the evidence relied on to support some of the Commission’s crucial findings regarding the scope of JEDEC’s patent disclosure policies and Rambus’s alleged violation of those policies" and "Once again, the Commission has taken an aggressive interpretation of rather weak evidence".

Responses:

>>2) So what. The information obtained was not confidential and Rambus is allowed to add claims to patents only if supported by the original patent specification which was written before Rambus joined JEDEC. Rambus did not need to be a member of JEDEC to obtain this information - JEDEC meeting minutes were publicly available.

Sorry. You can't have it both ways.  As you say - read the opinion - the court's holding relies heavily on whether the patent claims in question had been filed before or after the disclosure obligation attached.  So if they arose from the existing application, then Rambus loses, and the Appeals Court should have affirmed the FTC.

>>3) First sentence - so what. Second sentence - can you quote the evidence where Rambus lawyers  "advised it that it was breaking the rules". I have followed the cases closely and have never seen such evidence.

It's there, and you can find it if you want.  Go back to the original Virginia case, and it's been referred to many times since.

4) So what again. Amending of claims to cover competitor products is legal under Kingsdown if supported by the original specification.

>>But not under the rules of JEDEC or any other standards group.

5) Wrong. Rambus sued as soon as the patents issued and licencing negotiations broke down. If what you stated was true Rambus would have been found guilty of prosecution laches, which they haven't..

>>This isn't patent laches.  This is failing to disclose what you intended to do while it could be taken into account.  The outcome is the same, from a market impact, whether you waited until for a while after the patent issues or not.

"The current FTC opinion also accepts the findings of fact by the FTC Commissioners "

>>Wrong again, did you even read the opinion? - "Because of the chance of further proceedings on remand, we express briefly our serious concerns about strength of the evidence relied on to support some of the Commission’s crucial findings regarding the scope of JEDEC’s patent disclosure policies and Rambus’s alleged violation of those policies" and "Once again, the Commission has taken an aggressive interpretation of rather weak evidence".

Sorry, that's not a valid interpretation.  This is "dicta," and not a "holding."  The Appeals Court is applying the law to the facts as developed below, and is not acting as a trier of fact, and is only interpreting the record of the court below and expressing concern.  The FTC doesn't have to do anything at all as a result of this expression of  "concern.".  The Appeals Court is just signaling that if you want to come back this way again, you're going to have to flesh this out better and convince us you're right.  Until then, the fact findings stand.

  -  Andy

"Sorry. You can't have it both ways.  As you say - read the opinion - the court's holding relies heavily on whether the patent claims in question had been filed before or after the disclosure obligation attached.  So if they arose from the existing application, then Rambus loses, and the Appeals Court should have affirmed the FTC. "

Do you understand the difference between a patent's specification and claims? The specification was originally filled in 1990 (IIRC) and was disclosed to JEDEC just after Rambus joined.  The case revolves around whether and when patent applications (ie adding/amending claims not changing the specification) or plans to do so were required to be disclosed.

"It's there, and you can find it if you want.  Go back to the original Virginia case, and it's been referred to many times since. "

Can't find it anywhere, there or elsewhere (eg ALJ or commission FTC decision). Surely you have them at hand, having stated this many times and written so many amicus briefs? Before making outrageous claims maybe you should learn to back them up with evidence. Howver I'm sure you'll keep repeating these statements despite being unable to show what you say is correct.

"But not under the rules of JEDEC or any other standards group."

Which rules of JEDEC prevent non (or previous) members from obtaining information about a standard to amend/add patent claims. None, minutes of JEDEC meetings are publicly available and at some stage the standard has to be published.

"Sorry, that's not a valid interpretation.  This is "dicta," and not a "holding."  The Appeals Court is applying the law to the facts as developed below, and is not acting as a trier of fact, and is only interpreting the record of the court below and expressing concern.  The FTC doesn't have to do anything at all as a result of this expression of  "concern.".  The Appeals Court is just signaling that if you want to come back this way again, you're going to have to flesh this out better and convince us you're right.  Until then, the fact findings stand."

Haha, nice red herring argument. You stated "accepts the findings of fact " when they clearly did not. Maybe it is only dicta but CADC certainly did not "accept" that Rambus had a duty to disclose in regards to DDR.

Once again, the Commission has taken an aggressive interpretation of rather weak evidence. For example, the October 1995 survey ballot gauged participant interest in a range of technologies and did not ask those surveyed about their intellectual property (as did the more formal ballots on proposed standards). See CX 260. The Commission nonetheless believes that every member of JC 42.3—membership that included most of the DRAM industry—was duty-bound to disclose

any potential patents they were working on that related to any of the questions posed by the survey. The record shows, however, that the only company that made a disclosure at the next meeting was the one that formally presented the survey results. See Liability Op. at 44-45; ALJ Op. at 58 ¶ 401 (citing Joint Exhibit 28, at 6). For reasons similar to those that make vague but broad disclosure obligations among competitors unlikely, it seems to us unlikely that JEDEC participants placed themselves under such a sweeping and early duty to disclose, triggered by the mere chance that a technology might someday (in this case, more than two years later) be formally proposed for standardization.

 

 

 

The 'SSO System' is a 2way street; if the majority of the participants are crooked, So is the system. The major manufacturing members of JEDEC are demonstrably crooks. Then, JEDEC is broken. I would look with suspicion upon an appologist for a crooked/broken system. [Sound like anyone you know, ANDY..?] peterNaCl

Saltpetre (it's actually KNO3, by the way - no salt at all),

What tests my patience the most about Rambus supporters is their insistence on contending that if other players cheated, somehow that magically means that Rambus didn't cheat.  Sorry.  Life doesn't work that way.  There doesn't seem to be any question that a group of vendors conspired against Rambus.  There also isn't any question on the facts that Rambus believed that it was cheating, too.  And finally, that it wasn't doing so to protect it from the other vendors, since it wasn't aware of their conduct (and vis versa).

You could rightly fault JEDEC for not running a tighter process, as you could many other organizations that assume that people will live by the spirit of the spirit as well as the letter of the law.  But let's not lose sight here that the criminals are those that took advantage of the system - Rambus and the other vendors - and not JEDEC.

The victims here are the other organizations that are impacted by what happened at JEDEC, and that did nothing wrong.  And the first responders in the next natural disaster, your kids (if you have them) at school, you when you sit at your computer, and on and on. 

  -  Andy

nay, nay Andrew... 1] RMBS was originally 'invited into JEDEC' by MM customers. ipso est: the MM cartel were ALWAYS cheating from 1991 on, intending to steal RMBS IP for the standard w/NO royalties. 2] RMBS' employee reps' behavior was contra to NO US laws or legally-defined obligations under the JEDEC code/membership agreements. QED. RMBS OK, MM cartel Crooks. [and I will own a generous portion of all of them before this is over...] peterNaCl [I know the molecules; it's linguistic, not chemical]

Permalink
You state above, in a parenthetical aside, "standard setting organizations rarely have any sanctions, or the means to enforce them".  In my honest opinion, that's the real problem.  That's what needs to be fixed.

It seems to me that given the change in climate - the sudden increase in desire to game the standards environment - that participating in a standards setting organization whose rules do not give them the ability to enforce sanctions, and do not specifically provide for a third-party ruling on conformance with its own rules is pointless.

Basically, what I'm currently thinking is that standards setting orgs should change to having members agree to a formal contract, which stipulates what behaviors they will do, may do, and may not do, as part of the organization.  Furthermore, it will state how their responsibilities will change as a result of departing from the org.  Also, the rules and procedures for the organization, including rules for things like voting, should also be converted into a contract - the responsibilities of the standards organization to its members.  With these things converted to contracts, the local court should have jurisdiction to review and resolve disputes between members and the organization.

I've tried to make headway in that direction for going on 20 years, but sadly with only partial results.  Here's why.

First, there actually is a contract - the membership agreement.  For every organization I represent, I supply an agreement that ends with the statement that the applicant agrees to abide by the Bylaws, the IPR Policy, the Antitrust Policy, and all other policies that the Board from time to time may adopt.  In the case of the IPR policy, any changes can only take effect 60 days after being announced to the membership, so that anyone can quit if they don't like them.

So the problem isn't with the obligation (at least for the orgs I set up), but with what the IPR policy says.  Unfortunately, big companies are paranoid that they'll screw up, and with good reason.  The biggest companies have tens of thousands of patents, are members of more than 300 standards organizations, and may have thousands of engineers attending thousands of work groups.  So there's no way that they can keep track of everything, and they don't want their employees promising their whole patent portfolio away for free. 

Add to that the fact that no one has to join a standard setting organization - and probably even has to pay a lot of money to do so - and you can see that members don't want to obligate themselves to do a whole lot, or be liable for much by way of sanctions if they make a mistake.

The compromise that has resulted is that when I've been able to get sanctions, the most I can get is a promise that if a member finds out later that they have a patent that they didn't realize at the time, that they'll still be obligated to make it available on a RAND basis.  That's not great, if we're talking about a standard that needs to be implemented in open source software, but it's not too bad for an organization that commonly sets standards that require payment of royalties anyway. 

So you're analysis is on target, but the market reailities unfortunately don't lend themselves to making it work as well as it could.

A final comment:  IPR policies tend to be like window locks - they only keep honest people out.  If you made them tighter, the real bad apples just wouldn't join the organization at all; they'd just figure out another way to get the information they need to draft and file a patent that they can later assert.

  -  Andy

"they'd just figure out another way to get the information they need to draft and file a patent that they can later assert."

And in doing so would be doing nothing wrong, they'd be protecting their legally obtained property rights. It seems your beef is with the patent system. You could always move to China where they share your "information wants to be free" philosophy.

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This is what the judge said to manufacturers lawyer at the re-trail hearing for the California jury trial which cleared Rambus of any wrong-doing at JEDEC (evidence was so strong it only took 2 hours for jury to clear Rambus) - “What is your theory on where the JEDEC standards came from? Didn’t JEDEC get the standard from Rambus’ specs?” I guess someone needs to write an amicus brief about manufacturers abusing the SSO process to steal intellectual property from licencing companies. However I won't hold my breath waiting because most people who believe standards are the end all and be all are also part of the "IP is not real property" crowd.

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For a different view that is logical and doesn't resort to loaded language ("patent troll", "submarine patent")  see here

The DC Circuit restores some rationality to antitrust law re Standards Setting Organizations (SSO) in the Rambus case.
Posted By Raymond Nimmer 

....

 "So, what is the problem? Rambus is an innovator. It held valid patents on important technology essential to use the standard promulgated by JEDEC.   JEDEC promulgated the particular standard because it believed that the standard reflected an optimal technology for the particular application.  This enhanced the market value of the Rambus technology.  Rambus deserved to be compensated for use of its property by other companies."

.....

"On the other hand, SSO’s involve group action, often controlled directly or indirectly by competitive companies or their employees, and permitted under antitrust law only so long as anti-competitive effects are not generated by the group.  Action by a group to exclude another competitor because it hold relevant IP rights may be an antitrust violation.