(Rambus) Now it can be told - Empiricum

Perhaps a good subtitle for this article is: "This one's for you, Judge Payne!"

Upon carefully reading and analyzing Judge Ronald Whyte's spoliation and unclean hands Order entered yesterday, one cannot help but think that the ruling was intended to send the above-quoted message to Judge Robert Payne. In all likelihood, when Rambus counsel, Gregory Stone, or his representative, delivers a certified copy of the Order to Judge Payne, he will be murmuring the same message.

Alas! The Waiting Game is over. And Rambus wins!

Noting the Rumsfeld-like "philosophical prowess" of Judge Payne, he probably will be murmuring back at counsel Stone: "Not so fast, Gregory. That Order by my friend Ronald is Hynix specific. Remember how I went around the CAFC ruling that was dumped on my desk? And... Judge McGuire who?"

Yesterday's spoliation / unclean hands Order may be viewed as a 98% victory for Rambus which is far better than the 80% win handed down in Judge Whyte's claim construction Order. One might ask: what and where is the 2%? On pages 30 and 31 of his PDF Order (linked below), Judge Whyte seems to have labored on the definition of "potential litigation" and specifically noted that the Ninth Circuit "has not expressly defined" that term. Instead, he cited a case decided by the Second Circuit then went on to cite the ABA's discovery standard which may be an obiter dictum as the ABA rule is merely directory. Then Judge Whyte went on to uphold a couple of Hynix's arguments.

Although this particular issue might give Hynix a faint hope for appeal, it is submitted that it is not a viable one that warrants a reversal and remand, unless, of course, Hynix simply interposes the appeal for delay.

Be that as it may, overall Rambus is once again vindicated by a court of reputable sense of justice and fundamental fairness!

But there is another matter that is worth noting for which one can say: "now it can be told!" On page 10, lines 13 to 17, we learn how, why and by whom the eastern district of Virginia, the "rocket docket" (and the ITC) were chosen. On this one, it is obvious that it is a failed strategy! Also, it should be noted, once again, that the ITC case was dismissed for "judge shopping."

The bottom line is that we win the waiting game... big time! And it is worth the wait.

Judge Whyte's Findings Of Fact And Conclusions Of Law On Unclean Hands Defense linked here.