With today's discussion, I can proudly say that I have touched and analyzed all the major issues raised on the pending cases since their filing on August 2000. Now that I have said that, I feel like I am suffering from exhaustion. But your support and interest have kept me going through the years. Thank you.
My discussion today will deal on the "shotgun defense" of Rambus' opponents and the DOJ's Motion To Intervene filed the other day in the HYNIX case.
The recent revelation of the existence of ADT, JRA and a common defense strategy puts in perspective all the actions of Rambus' court opponents. I will not be surprised if the cartel even set up a "common defense fund." The question is: who primarily bankrolled it? I trust that the DOJ will look into that too.
It seems that the existence of the JRA group and the common defense documents confirms my earlier theory that the infringement of Rambus' patents was willful and intentional AND is an integral part of an overall elaborate scheme.
In all the cases involving Rambus, we observe the employment of a uniform strategy and common defense issues and arguments including the piercing of the attorney-client privilege, fraud, litigation misconduct, spoliation, unclean hands, equitable estoppel and even the California 17200. I have discussed here and on the message board all these, including the California 17200 relating to unfair competition. But the latter issue needs revisiting in light of what happened in Virginia a few days ago.
In the matter of the DOJ Motion To Intervene, it must be stressed at the outset that as of this very moment the motion and its supporting documents are not yet published. Thus, I must warn everyone that my discussion on this issue is based on speculation. Having due regard to the sensitive nature of the DOJ's DRAM Cartel investigations and respect for the presumption of innocence of people who may be the targets of these investigations, I must, therefore, proceed with caution on this issue. Be that as it may, I think it is safe to assume that the DOJ filed its motion in the Hynix case to discover the membership and purposes of the JRA group and the scope and details of its common defense documents. It may also be that, in the aftermath of Judge Payne's finding of "spoliation" on Rambus' part, the DOJ might also be interested in knowing what exactly are the specific, material and relevant acts of Rambus and the documents that it allegedly destroyed to see if they are relevant to their investigations, including, but not limited to obstruction of justice. I should note that Hynix also raised the "spoliation" issue before Judge Whyte.
IF, and that's a BIG IF, the common defense documents contain in detail their litigation strategy against Rambus, and IF, again that's a BIG IF, that litigation strategy includes the hiring by the FTC a litigation specialist well-versed in the intellectual property field, particularly patent law, to specifically handle the prosecution of Rambus before the FTC, then dark clouds loom in the horizon for some people! Aside from its obvious implications, such act, IF that in fact is the case, is a manipulation of the judicial process and must be dealt with the full force of the law!
It should also be noted that the DOJ filed a related motion to shorten the period of dealing with its motion to intervene. It seems like the DOJ wants the court to expedite the production of the documents being sought. After which, is the DOJ ready to present the matter to the grand jury sitting in San Francisco where the Cartel case is pending? Will the DOJ soon hand down its indictments which MAY include a "big fish"? Stay tuned.
In re: CA 17200:
In VA1, IFX's counsel presented several defenses including, among other things, JEDEC "fraud," unclean hands, collateral estoppel, litigation misconduct, etc.. The CAFC examined carefully all those "bullets" and concluded that they were all duds. Undeterred, when VA2 reopened, Desmarais fired the same bullets and came up with more: "spoliation" of documents and CA 17200, etc. . .
The purpose of my discussion today is to examine CA 17200 to determine if it is also a dud.
On the same day Judge Payne dismissed Rambus' patent infringement claims, it was reported that:
***He left open the possibility of transferring a second allegation of unfair competition by Infineon against Rambus that is based on California law to a California court.*** [TimesDispatch.com Claim against Infineon tossed]
This issue has been sitting on Judge Payne's lap for more than a year now and he is still pondering on what to do with it?! On March 11, 2004, I argued for the dismissal of that claim or defense as you will note on my following posts:
Re: Federal law preemption
Re: Federal law preemption
I expect that Judge Ronald Whyte will eventually examine if this defense is also a dud. When he does, I also expect Rambus' counsel to argue the following points, if they have not done so yet. (I must admit that I have not read their briefs on this matter.)
But first let me cite 17200 and 17040 of the statute for our consideration and review:
***17200. As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.****
***17040. It is unlawful for any person engaged in the production, manufacture, distribution or sale of any article or product of general use or consumption, with intent to destroy the competition of any regular established dealer in such article or product, or to prevent the competition of any person who in good faith, intends and attempts to become such dealer, to create locality discriminations. Nothing in this section prohibits the meeting in good faith of a competitive price. ***[CALIFORNIA BUSINESS AND PROFESSIONS CODE]
In my view, the above statutory provisions are both vague and overbroad and should be declared invalid! This statute can also be attacked on constitutional grounds. In my view, this statute is preempted by federal statutes on unfair competition, monopoly and the like.
I should also stress that, IMHO, Rambus is NOT within the purview of the California statute cited above because it is not a producer, manufacturer, distributor or dealer of goods such as micro chips. It only designs the product and has it patented for licensing. The production, manufacture, distribution and dealership are done by its licensees. So where is the unfair competition here? As I have said before, Rambus would love to license everyone using its patents on reasonable and non-discriminatory terms. This should distinguish the case of Rambus' from that of Microsoft's.
Let me conclude my discussion by adding a few more remarks to my post on the AOL Rambus message board concerning Judge Whyte's "eraser." His ruling would also indicate that he intends to proceed with the case in accordance with his docket schedule and resents a stay of his proceedings during the pendency of the VA2 appeal. It would, therefore, be foolish on Rambus' part to move for, or agree to, a stay by the CAFC.
I trust that my discussions in our Banquets have shown, among other things, that most of Judge Payne's rulings are aberrations in American jurisprudence.
Again, thank you all for coming to our Sunday Brunch.
Have a nice and warm weekend, everyone.
Empiricum
~000~
[DISCLAIMER and DISCLOSURES: The discussions contained above are NOT intended as investment and/or legal advice. Rather, they are for the evaluation and analysis of self-confessed Rambus, Inc., shareholders. The reader is strongly advised to conduct his / her own "due diligence" and / or consult a financial or legal advisor before acting on matters herein discussed. I am a Rambus shareholder since the year 2000 with a long term view on the company. This Forum is created solely on my own initiative and discretion and is NOT being pursued on behalf of Rambus, Inc., or any of its officers or directors, or for anyone for that matter.]
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