Rambus: Another Step Toward the January Trial on JEDEC

Implications: One of the concerns facing Rambus as it prepares for trial this January is the worry that the court will simply defer to the FTC's factual conclusions about Rambus' behavior at JEDEC and the implications thereof.  This week, that risk was diminished, as the court not only declined to defer, but also implicitly suggested that some previously settled facts were again up for grabs.

Analysis: The Rambus story has been told so often that by now it is surely familiar.  Rambus was involved with a standard-setting organization known as JEDEC and influenced that organization's decision to adopt certain technologies, all the while never revealing that Rambus had patent applications relevant to the chosen technologies.

Several courts have looked at this possible misdeed, and the results have been split.  The Federal Circuit thought that Rambus had played by the rules; sure, disclosure would have been nice, but it was not required by the organization's bylaws.  The Federal Trade Commission disagreed, finding that Rambus' act of deception was illegal and indeed justified severe limits on the firm's ability to use the relevant patents.

In January, the JEDEC issue is slated to go before yet another court and yet another jury, this time in a combined case that involves several accused patent infringers including Hynix and Samsung.  At issue right now is the question of whether the FTC's factual conclusions should be imported into the January case, or whether instead the January trial should benefit from a clean slate.

This week, the judge in the January case declined to import the FTC findings into at least one aspect of the January case.  The judge's reasoning was that the FTC's findings were general findings about how Rambus misled the industry, but did not include a specific finding that Hynix itself was misled.  Fine.  But then the judge wrote something more jarring: "[Moreover, here,] there are disputed factual issues as to what would have occurred if Rambus disclosed its intent which have a bearing on the reach of any equitable estoppel defense."

The implication of that latter quote is that the judge really is not deferring to the FTC at all.  The FTC has already determined that Rambus' acts directly caused market harm, and already specifically addressed various Rambus contentions that combined to argue that Rambus' bad acts did not really matter.  For the judge to write what he wrote, he must not be accepting the FTC's conclusions in that regard either.  So, while his official ruling was that the FTC's decision does not bind merely because it was general to the industry and not specific to litigant Hynix, the reality might be much broader than that.  Even the specific findings are up for grabs, it seems.

Don't misread me: Rambus might still lose these issues anew; my point here is only that it seems that the judge is going to give Rambus that chance, rather than holding Rambus to the loss it already incurred at the FTC.