It ain’t over till the fat lady sings

But who is the fat lady; Rambus or Micron?

What is a reasonable person to think? Rambus implies that DRAM manufacturers are ripping off its intellectual property (IP) and should be paying it license fees. Hynix, Micron and other manufacturers say that Rambus is unfairly demanding license fees after indulging in anti-trust practices. Micron also asserts than the Rambus patents are invalid.

That’s a stretch. You don’t own the patents in the first place and you shouldn’t be able to enforce them if you do. How on earth did it come to this bitter pass?

Once upon a time, in the 1990s and in a land called JEDEC (Joint Electron Device Engineering Council) interested parties sat down and hammered out various standards pertaining to DRAM manufacture. Hynix, Micron and Nanya were there because they manufactured DRAM using IP. Rambus was there because it invented IP to be licensed for said manufacturing.

Absolute buckets of money were at stake. If Rambus IP was used then all the JEDEC members making DRAM to the standard would have to negotiate license fees with Rambus. We are talking about millions and millions of dollars here.

The manufacturers assert that Rambus didn’t let on during the JEDEC talks that it owned specific patents relating to IP that was adopted during the talks. When the standard was agreed and manufacturers were all set to manufacture with costs understood then, lo and behold, the evil white witch of the north rode out of her palace brandishing patents and saying: “Pay my license fees.”

Bad faith, they cried, saying that Rambus patents, if they were valid, were, in effect, voided because Rambus was contravening anti-competition and anti-trust rules in the USA.

Cue the lawyers and long, long-drawn out legal hearings. Rambus has convinced a San Jose jury that it did expose enough of its disputed patentry before the JEDEC talks so as to have not behaved anti-competitively and broken anti-trust laws.

Micron is simply not having that; it strongly opposes it, and will appeal.

Micron cites cases in Europe where Rambus sued it on the basis of patents that were subsequently cancelled or restricted, and the cases were dismissed. It is appealing to the US patent office to annul Rambus patents because they are invalid and is having some preliminary success. It is using this to assert that the San Jose jury trial decision is is inconsistent and, in its view, should be reversed or set aside.

Rambus and Micron say other cases in this complicated dispute are still outstanding.

What is a reasonable person to think?

If Rambus owns the IP and the manufacturers use it then the manufacturers should agree license fees with Rambus. If Rambus behaved in an anti-competitive and anti-trust fashion during the JEDEC talks then it should accept that and withdraw or much reduce its license fee claims.

Proving these two points is the crux and, as King Solomon is not around anymore, the US legal system is going to have to produce, eventually, a final and incontrovertible decision.

The manufacturers certainly have a strong grievance against Rambus and believe they have ambushed by a patent pirate. But we might say that they should have checked who held patents during the JEDEC talks, if that were feasible and practical.

Both parties believe that they are in the right, that they have strong and reasonable cases. That’s why it’s taking so very long to resolve.

Much of this case rests on patent validity and patent ownership visibility. All involved would probably agree that patent validity ambiguity is a very bad thing. They would also agree that where hundreds of millions of dollars are at stake it is virtually impossible for differing parties to agree and that recourse to the courts is the only practical way of resolving the issue.

Lawyers may well be making millions of dollars in fees but these are a small fraction of the huge, huge sums at stake. On either side it looks a no-brainer decision to pursue their case through the courts because of this.

Meanwhile the fat lady is free to take other engagements.

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