Tuesday, December 16, 2008

Danforth questions Grove

Dear Andy,

If a business or law school ever does a case study of Rambus that focuses on the lingering pernicious effects of long-disproved litigation claims I fear your recent posting here will – contrary to your best intentions -- be a prime piece of evidence.

A careful reader of your post will see that (like the FTC in its pleadings on appeal) you use the phrase “deception” broadly when describing Rambus’ conduct at JEDEC, and that even with that broad usage you frequently retreat to what you say is proof of an “intent” to deceive. I understand why you do this. The FTC does it too.

There is no plausible case any longer (if there ever was) that Rambus actually (whatever its intent – although I would argue with you there too) deceived anyone with respect to patents or patent applications that it had while at the standard setting organization JEDEC. The FTC’s Chief ALJ in 2003 gave multiple independent reasons why no liability exists (e.g., no disclosure obligation, no lock in, no viable alternatives, notice to JEDEC). Five years later, the DC Court of Appeals was absolutely correct that JEDEC-related claims against Rambus require an “aggressive use of weak evidence.”

I have written previously about the multiple red flags that the FTC ignored (over and over again) in continuing to pursue its case against Rambus. You can find a copy of one or my pieces here: 


Your continued defense of the FTC and its conduct with respect to Rambus is also, I believe, on the wrong side of history for other reasons. Just last week eight senators on the Senate Judiciary Committee wrote a letter to the FTC Chairman showing that there is growing concern as to how (wearing multiple hats and with significant conflicts of interest) the FTC goes about its antitrust business. A copy of the Senate letter is here:


Finally, I read with great interest your assertions of independence with respect to this case. I take as true, certainly, your assertions that you are doing this work pro bono. But, of course, we all have an ax to grind and I respectfully submit that yours seems fairly clear. 

Lawyers promoting their practice areas need to be careful that they not oversell the risks they hope to help their clients and prospective avoid. You seem to feel that you have a professional interest in sustaining old views of Rambus as some sort of a bogeyman for standards setting organizations (SSOs). As far as I can tell, your practice revolves around telling standard SSOs how to improve their rules governing intellectual property disclosure. That is important work. I am glad you are doing it. And, properly applied, the Rambus case can certainly help. The Rambus case teaches us, for example, about the dangers of limited and vague (perhaps purposefully vague) SSO rules. I would be happy to discuss this with you. We might also discuss the great danger (to quote the Court of Appeals for Federal Circuit in an earlier Rambus case) that those vague JEDEC rules will be “morphed” after the fact to cover conduct they were never intended to cover. 

Best regards,
John Danforth 
(Former general counsel for Rambus, 2001-2006, current shareholder-- writing only on my own behalf, not for the company) 

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