# Appendix — Federal Trade Trade Commission Commission Commission Commission v. Rambus, Inc. (No. 08-694) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0834%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2008 ## Text Supreme Court, U.S. FILED . LY an 08-694 NOov24 2008 Ss aes ™ In the Supreme Court of the Anited States FEDERAL TRADE COMMISSION, PETITIONER Vv. RAMBUS INCORPORATED ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT APPENDIX VOLUME 2 OF 2 WILLIAM BLUMENTHAL General Counsel DAVID C. SHONKA DAVID P. WALES JR. Principal Deputy General Acting Director Counsel KENNETH L. GLAZER JOHN F. DALY* Senior Deputy Director Deputy General Counsel MELANIE SABO for Litigation Assistant Director WILLIAM E. COHEN RICHARD B. DAGEN Deputy General Counsel SUZANNE MICHEL for Policy Studies PATRICK J. ROACH LESLIE RICE MELMAN Attorneys MARK S. HEGEDUS Bureau of Competition Attorneys Federal Trade Commission Federal Trade Commission 600 Pennsylvania Avenue NW Washington, DC 20580 (202) 326-2244 *Counsel of Record ELLER EEL DEMISE BN EE LEE ELIE BEALE ALD ELE ANC OSI. Fy DD SEDO Sy. BATTERIE Wicson-EPES PRINTING CO.,INC. — (202) 789-0096 — WASHINGTON, D.C. 20002 387a APPENDIX G ** PUBLIC VERSION ** UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES Docket No. 9302 In the Matter of RAMBUS INC., A CORPORATION INITIAL DECISION Before: Stephen J. McGuire Chief Administrative Law Judge FEDERAL TRAI £ COMMISSION February 23, 2004 388a APPEARANCES FOR THE PARTIES Counsel Supporting Counsel for Respondent: the Complaint: M. SEAN ROYALL GEOFFREY D. OLIVER PATRICK J. ROACH GREGORY P. STONE STEVEN M. PERRY PETER A. DETRE SEAN P. GATES MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles. California 90071 A. DOUGLAS MELAMED KENNETH A. BAMBERGER WILMER, CUTLER & PICKERING LLP 2445 M Street, N.W. Washington, D.C. 20037 Of Counsel: MALCOM L. CATT ROBERT P. DAVIS MICHAEL A. FRANCHAK THEODORE A. GEBHARD ANDREW HEIMERT CHARLOTTE MANNING LISA D. ROSENTHAL SARAH E. SCHROEDER JEROME A. SWINDELL JOHN C. WEBER CARY E. ZUK SEAN C. CUNNINGHAM JOHN M. GUARAGNA GARY, CARY, WARE & FREIDENRICH LLP 401 “B” Street, Suite 2000 San Diego, California 92101 BUREAU OF COMPETITION FEDERAL TRADE COMMISSION Washington, D.C. 20580 389a TABLE OF CONTENTS PART ONE: INTRODUCTION. ........c:sscessseeeseees 416a" I. FEDERAL TRADE COMMISS:0N COMPLAINT .....csccsssessscsssseessessssessseessseen 416a Il. | RESPONDENT’S ANSWER ........:0:000000-+ A18a III. ISSUES PRESENTED ..........c.cccccccesseee 419a IV. PROCEDURAL BACKGROUND........... 420a V. EVIDENCE........... ei PE eee 421a VI. SUMMARY OF THE DECISION ............ 423a PART TWO: FINDINGS OF FACT .........c000000-0 4240 I. DRAM AND THE INVENTIONS OF DRS. FARMWALD AND HOROWITZ.... 424a A. DRAM Applications in Computer RN teense onetaerecie ei eeeee 424a 1, TARR EIEITIOE noc ceccvcesescesevscencecesses 424a 2. The Production of DRAMs............. 426a a. The DRAM Manufacturing PN esa eases eee 426a b. The Various Phases of DRAM SIOVOTOUIORE ons cvsivescicessiescsesnevee 428a c. Design Modification During DRAM Production .................... 430a B. The Memory Bottleneck Problem ...... 430a C. Farmwald’s and Horowitz’s Inven- tions Solve the Memory Bottleneck * Pagination modified from original to reflect pagination in Petition Appendix i]. 390a Problem by Addressing Numerous BIE Sicoctindl tees Ornaments Bs SETI FRI os eceainsesciiecrcccensntveves 3. The Memory Interface Protocol .... RAMBUS: COMPANY DEVELOP- MENT AND PUBLIC PROMOTION OF RENE IGE eiccsisvnsiineinpbocisasunsisnavereiaees A. The Founding of Rambus ................... 1. Securing Venture Capital Fund- UNE cass acecasamnecasiversonian ase weeneeeeseets 2. Early Business Plan for the Farmwald/Horowitz Inventions .... The RDRAM Technology..................... The 1990 Business Plan ..................... . RDRAM Promotion and Licensing I dics wincus; actncnnnrnerrss caiman yO E. Presentation of the Rambus Inven- tions to the DRAM Industry ............... 1. Rambus Visits to DRAM Manufacturers and Systems RIN scocisciicvessmncennneens 2. Preparation and Description of the Rambus Inventions Through Various Technical Publications .... a. The May 1990 Technical De- cl iaeasouiaee-oetihinacens b. The November 1990 Technical ROTO. sic wssnccanocirctemcsnasasses 434a 436a 437a 438a 439a 439a 442a 443a 445a 448a 449a 45la 45la 39la c. Siemens Responds With a List of Questions About Rambus OD kecseinniwicecitecteptinnen d. The April 1991 Technical De- IE iia tincucannerocsxcosdcectoens . The March 1992 Press Events ........... . Press Coverage: The March 1992 Mi- croprocessor Report Article ................ . Rambus’s Disclosure of Inventions Through Public Documents ................ 1. The 1992 Marketing Brochure ..... 2. Publications Describing the First Rambus DIAM .............cccccessessceens Presentations of the Proprietary RDRAM Technology and Nondisclo- SUTO PBT OCRIIG oncsceccns cc cnccecevonasersvenes . The June 1992 Business Plan ............. . Rambus Patent Applications ............. 1. The ‘898 Patent Application ......... es oy 8 nn ee 3. The PCT Application ...............:..--. 4. The ‘898 and PCT Applications Describe Numerous Inventions .... a. Description of Access Time I viscscbeiccsceinnsencincaisninsieiien b. Description of Block Size ......... Description of Bus Clock .......... d. Description of Variable Delay Circuitry With a Feedback I ex saccientieraiooimnneaamenacns 392a 5. Review of the ‘898 or PCT Application Should Have Raised Concerns That Rambus Might Be Able to Obtain Claims Over the Four Technologies at Issue ........... Ill. JEDEC IS A COLLABORATIVE STAN- DARD SETTING BODY FOR THE SEMICONDUCTOR INDUSTRY ........... A. Early History of JEDEC ..................... B. The Purpose and Function of JEDEC SOPOT SHEESH EEE EH EEEHEEHEEEHEEHEEEEHEEEOEHEETHHETHH HEB EEEEE C. The Organization of JEDEC .............. 1. Member Companies ....................... 2. The JEDEC Council, Board of Di- rectors and Officers ....................... 3. The JC 42 Committee ................... D. The Standard Development Process .. E. Rambus’s Involvement in JEDEC ..... SOOO TO HET EH EHH HOE EHHHHEO TES EHEHH ETE HE EHEEEHEH HEHEHE EE EEEEE 2. Rambus Representatives Learn About the EIA/JEDEC Patent BUNT ; sivssasnceshdebiNedegpinntavandivstantinconse 3. Rambus Continued to Stay Abreast of JEDEC and SyncLink II inci. ccih ol cnnradavetonectdevanhenes IV. EARLY DEVELOPMENT AND ADOP- TION OF JEDEC DRAM STANDARDS.. A. The Initial SDRAM Standard ............ 1. Demand for a New Generation of SE eta etni iy ean tenn ace A4A77va 480a 480a 48la 48la 48la 483a 484a 486a 488a 488a 489a 393a 2. Proposal of a Fully Synchronous Es scidcaienaichdeniecscetaniuabanchciee ihe 494a 3. Inclusion of Programmable CAS Latency and Burst Length ............ 498a 4. Presentations of Additional Tech- IIE “eb xicomeoca ica Teaeeettie rk dcnedaiantaain 503a | a. Low Voltage Swing Signaling . 503a b. Dual Bank Design .................... 504a C. Avute-Precharg®e ..........00c:00sc00000 505a d. Source Synchronous Clocking . 505a e. Externally Supplied Reference EEN. aniccticatebcudiencteniates ss 506a 5. Adoption of the SDRAM Standard ienaminnebaniaeian cadences anea tn 506a 6. Subsequent Proposals: Costs, CAS Latency and SDRAM Lite .... 508a B. DDR SDRAM—The Next Generation I eis Sane ee es 5lla 1. Work Within and Outside of I oircc een a setstddicsunacnanns eoraaco ised. 5lla 2. Future Synchronous SDRAM Fea- I ie harcg eee ee 51l4a a. Presentation of Programmable CAS Latency and_ Burst NE silanssrocternacasuscccentvaueseoeees 515a b. Discussion of PLL/DLL............. 516a c. Consideration of Dual Edge RNIN do tcccinticneneicceicuncensicheess 520a 3. Subsequent Proposed Features .... 523a 394a a. Externally Supplied Reference WHE sicvicsecnerictashcmeanerenennann b. Source Synchronous Clocking . 4. Adoption of the DDR SDRAM TE escexsicsvinientinmenenaglian 5. Features Incorporated into the URINE, siscccctecieuceeninanan me. Cpe Bie fcicrcsenamecue b. Dual Edge Clocking ................. c. Programmable CAS Latency and Burst Length ..................... C. Interoperability: The Effect of JEDEC’s Specifications versus Manufacturers’ Specifications ............ RAMLINK AND SYNCLINK, THE SYNCLINK CONSORTIUM, INTEL AND DRAM MANUFACTURERS .......... A. The IEEE RamLink and SyncLink Were SIP seivecicncienineiorcenen 1. The IEEE Membership Require- ments and Lack of Patent Disclo- sure Obligations ............... tion,” and he emphasized that “[flragmented competition undermines all DRAM manufac- turers.” (RX 1188 at 2, 6; Tabrizi, Tr. 9073). 540. Another industry consultant, Victor de Dios, also gave a presentation at the June 25, 1998 SLDRAM Executive Summit. (Tabrizi, Tr. 9071-72). De Dios told the assembled exec- utives that “many of the problems are industry problems, not company problems. Competition will not resolve them.” (RX 1204 at 4 (capi- talization omitted)). 541. During his presentation at the June 1998 “Executive Summit,” McComas suggested that the DRAM manufacturers share their RDRAM production plans to determine whether there would be a demand-supply imbalance. (Tabrizi, Tr. 9073-74). 542. In an August 1998 email] to Tabrizi, McComas sent a draft message to DRAM manufacturers which stated that “[dJuring the critical production ramp-up phase of Direct Rambus, DRAM vendors will need a constant flow of information to help make wise decisions and to walk the fine line between a pleasant shortage and a disastrous over-supply.” (RX 1232 at 1). 543. Tabrizi agreed that a _ shortage of RDRAM would please DRAM manufacturers because “[p]rices go up.” (Tabrizi, Tr. 9077). 544. The PC OEMs recognized that for RDRAM to succeed, output of RDRAM had to increase. They tried to influence the DRAM manufacturers to increase RDRAM output. (RX 1287 at 4 (“Intel and major users have 555a been trying to influence improve [sic] RDRAM output”)). As Gross of Compag testified, Intel, Compaq, and other PC OEMs were trying to influence DRAM manufacturers to increase output of RDRAM and to align roadmaps with Intel’s roadmap. These OEMs wanted an RDRAM production ramp-up so that they would have sufficient availability and lower RDRAM prices. (Gross, Tr. 2318-20). 545. It was important to Intel and to the PC OEMs that the DRAM vendors increase the volume of RDRAM because the highest volume parts have a cost advantag~. (RX 1532 at 1). 546. In response, DRAM manufacturers agreed to manufacture RDRAM in larger vol- ume. For example, in 1998, Hyundai com- mitted to produce 30,000 RDRAM units for Compaq. (RX 1302 at 6). Similarly, Micron committed to produce 15,000 RDRAM units for Compaq. (RX 1302 at 6). Neither company, however, met these commitments. (Gross, Tr. 2327-29). According to Compaq, the DRAM manufacturers would not “increase their out- put at the rate at which we needed to support our systems.” (Gross, Tr. 2345-46). 547. Tabrizi, in 1998, believed that Intel would not change course unless RDRAM failed to obtain market penetration. (Tabrizi, Tr. 9082-83). He admitted that one way to cause RDRAM to fail to obtain market acceptance was if the OEMs were convinced that even if volumes went up, pmces would not fall. (Tabrizi, Tr. 9083). If the OEMs were con- vinced of this, they would not adopt RDRAM. (Tabrizi, Tr. 9083). 556a 548. In the fall of 1998, Hyundai gave RDRAM price projections to its customers that were significantly higher than those reflected in its internal pricing documents. (Tabrizi, Tr. 9085-90; RX 1280; RX 1293A). “Intel was telling everybody [that RDRAM is] only going to be a 5 percent premium .... I wanted to make sure my OEM knows it’s going to cost them more than 5 percent .. .” (Tabrizi, Tr. 9091-92). 549. A report prepared by an Infineon engineer about an October 1998 meeting reportedly attended by Tabrizi, along with engineers from Micron and Infineon, states that “[alecording to Farhad Tabrizi, Hyundai has given Rambus ASP projections for end of next year of 2 to 3 times of todays SDRAM prices; they also gave to Intel a production projection of three times their actual plans => They encourage every DRAM manufacturer to do the same in order to let Intel not generate a Rambus oversupply.” (RX 2192 at 2). Tabrizi denied at trial that he had made the statements attributed to him in the Infineon trip report. (Tabrizi, Tr. 9097). 550. In January 1999, Desi Rhoden sent a proposal to all of the major DRAM manu- facturers regarding the transformation of the former SyncLink Consortium (by then called “SLDRAM Inc.”) into a marketing-oriented organization called Advanced Memory Inc. (“AMI2"). (RX 1373 at 1-3). Rhoden became the President and Chief Executive Officer of AMI2. (Rhoden, Tr. 260, 696-97, 1235). Rhoden stated that the focus of the new organization would be 557a to “co-ordinate instead of developing new technology.” (RX 1373 at 3). He also stated that “[iJn the DRAM industry, we are clearly stronger together than we are individually.” (RX 1373 at 1). 551. In a July 1999 email, Mario Martinez of Hyundai recommended to Tabrizi and others at Hyundai that “[w]lith Samsung building significant amounts of product, we need to work with them to limit the supply in the market, otherwise we both will be competing for market share which will result in an oversupply. We have to meet with Samsung and discuss our and their production plan, TAM analysis and targeted market share.” (RX 1487 at 4; Tabrizi, Tr. 9103). 552. Another Hyundai employee responded in the same email: “[I] have connection in samsung, if 1 know, what time you are available, 1 will try setup meeting with key persion [sic] in samsung in seoul korea. [A]nd i will try persuade them. [Al]ctually they also have same idea for rambus business compare with you.” (RX 1487 at 4; Tabrizi, Tr. 9104). 553. Tabrizi admitted at trial that he had told Sang Park, then the President and Chief Operating Officer of Hyundai, that he wanted to “kill” Rambus and force RDRAM from the market. (Tabrizi, Tr. 9105-07). Tabrizi sub- sequently testified that what he meant by “killing” Rambus was really just “Rambus suicide, [with] me watching on the sideline.” (Tabrizi, Tr. 9109). In his June 2000 email to Park, Tabrizi stated: “lilf Inte] does not invest in us, I really want to ask you to let me go back 558a to my old mode of RDRAM killing. I think we were very close to achieving our goal until you said we are absolutely committed to this baby.” (RX.1661 at 2). 554. Gross of Compaq subsequently testified that because the price of RDRAM did not decrease and because Compaq did not believe that it would decrease in the future, Compaq decided to abandon its plans and to shift to DDR. (Gross, Tr. 2339). 555. Similarly, Advanced Micro Devices (“AMD”) shelved plans to adopt RDRAM be- cause, based on what they were told by DRAM manufacturers, it was clear that DDR, not RDRAM would become a commodity product. (Polzin, Tr. 4013). 556. By May 2000, the situation had not improved, and Dell was considering moving into “a low key Rambus mode.” (RX 1636 at 1). The Dell “message” was “pretty straight- forward”: Dell has booked our products over the last year around the assumption that RDRAM prices would decline and close on SDRAM. This would help us create demand... . The memory vendors have shown no desire to drop prices, therefore we are reevaluating our strategies ... so the message to them is drop prices or we will continue to decrease our RDRAM forecasts and we will architect next generation systems around DDR... we will give the memory vendors till the end of May to reply to our request .. . if they still have 559a no desire to drop prices, we should push ahead rearchitecting chipsets around DDR. (RX 1636 at 1). 557. RDRAM failed to command significant market share despite the fact that it was considered by some to be the “best solution.” (RX 1762 at 5). As Peter MacWilliams of Intel put it: [redacted] (MacWilliams, Tr. 5075 (in camera)). 558. Subsequently, in a November 26, 2001 email, a Micron manager named Kathy Rad- ford described the efforts of Infineon and Samsung to raise DDR prices, and stated that Micron intended to try to raise its prices to all of the OEM customers. (RX 1922A at 1). Radford then reported that “[t]he consensus from all suppliers is that if Micron makes the move, all of them will do the same and make it stick.” (RX 1922A at 1). 559. Prices did, in fact, increase in the months after Radford’s email. On March 1, 2002, [redacted] (RX 1991 at 1 (in camera)). 6. The DRAM Industry’s Approach to Addressing RDRAM Problems 560. Intel and Rambus executives discussed ways to fix Rambus’s relationship with the DRAM manufacturers. (MacWilliams, Tr. 4871-72). Rambus “seemed to be sensitive to the fact that they needed to fix” problems with DRAM manufacturers. (MacWilliams, Tr. 4873). 560a 561. In 1998, Intel continued its work to make RDRAM a market success by investing in DRAM companies that developed and supplied RDRAM. (CX 1006 at 1; CX 2522 at 2-3). 562. Intel did not succeed in mending the relationship between Rambus and the DRAM manufacturers. (MacWilliams, Tr. 4874). 7. By 1998 the Rambus-Intel Rela- tionship Was Deteriorating 563. On April 14, 1998, Rambus CEO Geoffrey Tate and Chairman William Davidow met with Pat Gelsinger of Intel to discuss Intel’s concerns about Rambus. (Farmwald, Tr. 8402; CX 1016 at 1; CX 2109 at 175-76 (Davidow, Dep.)). The basic message of the meeting was that in the intermediate term Intel would continue to support RDRAM, but Intel might support a competing architecture for the next generation. (CX 1016 at 1-4). 564. After the April 14, 1998 Rambus-Intel meeting, Tate began strategizing about how to address Intel’s announcement that it would compete with Rambus. (CX 1016 at 1-4). 565. On April 15, 1998, Farmwald responded to Tate’s concerns about Intel’s commitment to RDRAM emailing: “I’m not even sure we want to agree to work together on the next gen- eration memory interface.” (Farmwald, Tr. 8406-07; CX 1021 at 1). 566. On April 16, 1998, Rambus Chairman William Davidow responded to Farmwald’s email by urging a more measured approach. 561la (Farmwald, Tr. 8407; CX 1022 at 1). Davidow suggested that Rambus “try to negotiate something” with Intel. (CX 1022 at 2). 8. Technical Problems and Product Delays With RDRAM 567. During this period, the Camino Chipset, also called the Intel 820 Chipset, “was the first chipset that Intel was developing to interface between their processor and direct Rambus.” (MacWilliams, Tr. 4853; Tabrizi, Tr. 9166, 9185). The Camino Chipset was intended to interface exclusively with RDRAM. (Tabrizi, Tr. 9185-86). 568. In the second half of 1998, Intel encountered electrical issues with RDRAM. (RX 1532 at 2; MacWilliams, Tr. 4852-53). Technical problems with RDRAM forced Intel to delay the Camino Chipset launch several times. (MacWilliams, Tr. 4852-53; Tabrizi, Tr. 9185). 569. Similarly, the design and ramp up phases of DDR SDRAM’s launch experienced delays and difficulties. (Reczek, Tr. 4349-51 (transition to DDR was a major change, and Infineon had to implement three major re- designs before it could achieve acceptable performance); Shirley, Tr. 4208-09 [redacted] (in camera)). 570. In April 1999, Intel’s microprocessor rival, AMD, suspended development work on its RDRAM product due to continuing bad news about RDRAM. (CX 2158 at 1-2). Steven Polzin, of AMD, testified that the information regarding RDRAM costs and yields came from 562a what he was hearing from the memory man- ufacturers. (Polzin, Tr. 4013). In late summer or fall of 1998, AMD shifted its focus to DDR because AMD believed Rambus was going to fail as a commodity part, and that ultimately even Intel would have to go DDR. (Heye, Tr. 3704-05, 3799). 571. In May 1999, Intel’s customers were skeptical that the cost and availability issues with RDRAM could be resolved although some were waiting to see progress. (CX 2529 at 1; MacWilliams, Tr. 4884)). 572. In May 1999, Intel considered adding DDR SDRAM to Intel’s server memory road- map because it was concerned that RDRAM would not achieve the cost points in time to be competitive for the server products. (Mac- Williams, Tr. 4883-84; CX 2529 at 1). 9. Intel’s Announcement That § It Would No Longer Support RDRAM 573. By mid-October 1999, Intel’s road map included SDRAM and DDR SDRAM solutions as well as RDRAM. (CX 2540 at 1). 574. In late October 1999, Intel told Rambus that it wanted to have a comprehensive review of their business relationship. (CX 2887 at 1). 575. Intel announced in its October 26, 1999 letter to Rambus that its chipset roadmap now included alternatives to RDRAM. (CX 2541 at 2; CX 2887 at 2-3). 576. In June 1999, Intel publicly ceased its exclusive support of RDRAM and announced that the Pentium III chipset would support 563a SDRAM. (Tabrizi, Tr. 9201-03; CX 2338 at 57 (in camera)). 577. This was the first time Intel indicated that SDRAM could compete with RDRAM as the interface with Pentium III. (Tabrizi, Tr. 9201-03). 578. In August 1999, Intel confirmed that it would provide support for SDRAM in the Pentium III chipset. (Tabrizi, Tr. 9201-03). 579. After Intel announced its support of SDRAM, Rambus’s percentage of market penetration dropped because customers could choose between SDRAM and Rambus’s tech- nologies. (CX 2338 at 57 (in camera); Tabrizi, Tr. 9203-08). 580. During 1999 and 2000, Intel revised downward its estimates for the total available market for RDRAM multiple times. (CX 2338 at 79 (in camera)). 581. Intel reduced its estimates for the total available market for RDRAM the second and third quarters of 2000. (CX 2338 at 79 (in camera); Tabrizi, Tr. 9193-97). 582. Micron never introduced RDRAM into the market for commercial sale. (Appleton, Tr. 6371-74). 583. On September 2001, Micron Vice-Pres- ident Sadler [redacted] (RX 1883 at 1 (in camera)). 584. As projections for RDRAM declined in the 1999-2000 time frame, the anticipated market share shifted to SDRAM and DDR SDRAM. (Tabrizi, Tr. 9214-15). 564a 585. Samsung, the world’s largest DRAM producer, began commercialization and full production of RDRAM. (Appleton, Tr. 6373). 586. In February 2001, nearly a year and half later, Intel was still announcing that its memory strategy was to shift from SDRAM to RDRAM for desktop space. (RX 1762 at 4). According to Intel’s presentation at the Intel Developer Forum, Spring 2001, RDRAM was the best solution, the best technology for the Intel Pentium 4 Processor Platform, and “RDRAM Remains the Primary Desktop Memory Solution.” (RX 1762 at 5). In its summary, Intel stated, “RDRAM Provides the Best Pentium 4 Processor Platform Now and in the Future.” (RX 1762 at 24). According to Pete MacWilliams of Intel, this statement accur- ately summarized Intel’s position as of Feb- ruary 2001. (MacWilliams, Tr. 4935). EIA/JEDEC PATENT POLICY A. Good Faith Obligations 587. Complaint Counsel rely on the EIA Legal Guides, Section C, for their contention that JEDEC participants were required to act in good faith. (CCPFF 310 citing CX 204, CX 206). 588. The EIA Legal Guides Section C, labeled “Basic Rules For Conducting Program,” states that “[aJll ELA standardization pro- grams shall be conducted in accordance with the following rules: (1) They shall be carried on in good faith under policies and procedures which will assure fairness and unrestricted 565a participation; . . .” (CX 204 at 5; CX 202 at 6 (earlier version of same document)). 589. Section C continues by requiring that participation be extended to all technically qualified members of the industry and that programs serve the public interest objectives of EIA. (CX 204 at 5). The balance of Section C prohibits collusion and price fixing and limits representatives to technical personnel without marketing responsibilities. (CX 204 at 5). 590. The EIA Legal Guides explicitly address patents in Section B, which states that “[s])tandards are proposed or adopted by EIA without regard to whether their proposal or adoption may in any way involve patents on articles, materials, or processes.” (CX 205 at 4). 591. Given the context of Section C, es- pecially when compared with Section B, it is apparent that the “good faith duty” is not directed to individual members, but rather is a general directive to the administrators who “conduct” the EIA’s standardization activities, directing them to adopt “policies and proce- dures which will assure fairness and unre- stricted participation.” (See CX 204 at 5). 592. Complaint Counsel rely on “An Over- view of JEDEC Patent Policy” wntten by John Kelly and dated March 26, 2002 to further support their contention that a good faith duty required Respondent to disclose intellectual property. (CCPFF 310 citing CX 449). 593. This 2002 Overview is not persuasive in interpreting JEDEC patent policy during the time period at issue as it was written after the 566a fact and cites JEDEC Manual 21K, published after Rambus withdrew from JEDEC. (See CX 449 at 1-2). 594. No contemporaneous documents were provided by Complaint Counsel to support their contention that JEDEC members had a duty of good faith or a duty to comply with the spirit of the patent policy. (See CCPFF 310- 315). 595. At trial, JEDEC members testified that there was a good faith duty imposed on mem- bers of JEDEC. (J. Kelly, Tr. 1841 (“companies need to participate in the process openly and honestly and fairly and in good faith and not in bad faith, because bad faith undermines the confidence of everyone in the process.”); G. Kelley, Tr. 2397 (“my mind translated [good faith] to fair treatment for all members”); Rhoden, Tr. 305-06 (“The term ‘good faith’ as used in [the Legal Guides] is that the people . are coming under the premise that they’re going to... work toward the benefit of the end user of the industry itself, and operating in good faith means that you would expect other people to do the same thing.”); Sussman, Tr. 1330 (“Good faith, we’re all competitors, we’re all about ready to dice each other in the marketplace, but seeing we’re talking about or about to talk on intellectual property, I trust you to do something, and I expect that same set of trust back.”)). 596. Despite their trial testimony, some JEDEC members, including those in leader- ship positions, did not always conduct them- selves in a manner consistent with a duty to 567a disclose intellectual property or to act in good faith. (See F. 686-717). For example, G. Kelley, IBM representative and JC 42.3 Committee Chair, on multiple occasions, indicated that IBM would not disclose patents to JEDEC (F. 691-93) and JEDEC Chairman Rhoden failed to disclose a patent application on which he was listed as an inventor. (F. 711-17). 597. Viewing the trial testimony in conjunc- tion with the conduct of JEDEC members and leaders, there is not sufficient evidence to find a duty of good faith imposed on participants of JEDEC. (F. 587-96). B. Open Standards 598. The goal of JEDEC is to develop open standards. (CX 419; Rhoden, Tr. 301, 536; J. Kelly, Tr. 1776-78, 1782, 1787). 599. Open standards may, and often do, include patented features or technologies. The EIA Legal Guides, which governed JEDEC, provide that “[s]tandards are proposed or adopted by EIA without regard to whether their proposal or adoption may in any way involve patents on articles, materials, or proc- esses.” (See CX 204 at 4; CX 206 at 6; J. Kelly, Tr. 1829-30). 600. JEDEC Chairman Rhoden testified that “open standards inside of JEDEC essentially means that we want to set up a mechanism where everyone can participate that wants to, and in the end, the end product is then avail- able to everybody in the world. So, open par- ticipation, open accessability, if you will.” (Rhoden, Tr. 300-01). 568a 601. JEDEC does not include known pa- tented material in JEDEC standards without written assurances from the owner of the intellectual property that it will grant li- censes on reasonable and nondiscriminatory (“RAND”) terms to all applicants. (CX 203A at 11; CX 208 at 19; JX 54 at 9; CX 2191 at 8; see also F.1536-81). 602. JEDEC does not determine what is a reasonable royalty rate because JEDEC does not “have the expertise to be able to determine what’s commercially reasonable in the context of any industry, no less semiconductors. . . That expertise resides in the industry. So, that’s why in the first instance we leave it to the parties themselves to work out what’s reasonable.” (J. Kelly, Tr. 1882-83; see also CX 2089 at 174-75 (Meyer, Infineon Trial Tr.)). 603. Determination of a reasonable royalty rate is left to negotiation and market forces or the courts. (CX 2089 at 174-75 (Meyer, Infin- eon Trial Tr.); J. Kelly, Tr. 1882-83, 2073-74). 604. Hans Wiggers, a JEDEC representative from Hewlett-Packard in the early to mid- 1990's, testified that it was his understanding that the JEDEC patent policy was that, as long as a company licensed its patents after they issued on RAND terms to all interested par- ties, the company had no obligation to disclose its intellectual property. (Wiggers, Tr. 10591). 605. In 1996, in its correspondence to the Commission regarding the Dell case, EIA rec- ognized that by “allowing standards based on patents, American consumers are assured of 569a standards that reflect the latest innovation and high technology the great technical minds of this country can deliver. . . . [T]here is a positive and pro-competitive benefit to incorpo- rating intellectual property in standards.” (RX 669 at 2-3). — C. Manuals 1. JEP 21-H 606. JEDEC Manual of Organization and Procedure 21-H (“JEP 21-H”), dated July 1988, which was still in effect when Rambus joined JEDEC in 1992, contains the following legend: “Electronic Industries Association. Engineer- ing Department.” (CX 205 at 1). 607. JEP 21-H includes in Appendix D a non-liability disclaimer to be incorporated into JEDEC standards. This disclaimer states that “JEDEC standards are adopted without regard to whether or not their adoption may involve patents on articles, materials or processes. By such action JEDEC does not assume any lha- bility to any patent owner, nor does it assume any obligation whatever to parties adopting the Standards.” (CX 205 at 20). - 608. JEP 21-H states that “[alll meetings of the JEDEC Solid State Products Engineering Council and its associated Committees, Sub- committees, Task Groups and other units shall be conducted within the current edition of EIA Legal Guides adopted by the EIA Board of Governors and incorporated herein by refer- ence.” (CX 205 at 14). 570a 609. The 21-H Manual does not provide any guidance regarding intellectual property nghts or an obligation to disclose patents, patent applications, or the intent to file patent appli- cations. (See CX 205). 2. JEP 21-I 610. JEDEC Manual of Organization and Procedure 21-I] (“JEP 21-1”), dated October 1993, contains the following legend: “Electronic Industries Association. Engineering Depart- ment” and displays the trademarks of both JEDEC and EIA. (CX 208 at 1). 611. Section 9.1, JEP 21-I states: “[alJll meetings of the JEDEC Solid State Products Engineering Council and its associated com- mittees, subcommittees, task groups and other units shall be conducted within the current edition of EIA legal guides adopted by the EIA Board of Governors and incorporated herein by reference.” (CX 208 at 18). 612. Section 9.3, JEP 21-I discusses the use of patented products in EIA Standards as follows: EIA and JEDEC standards’ and nonproduct registrations (e.g., package outline drawings) that require the use of patented items should be considered with great care. While there is no restriction against drafting a proposed standard in terms that include the use of patented item’ if technical reasons justify the inclusion, committees should ensure that nc program of standardization shal] refer to a product on which there is a known 571la patent unless all the relevant technical information covered by the patent is known to the formulating committee[,] subcommittee, or working group. If the committee determined that the standard requires the use of patented items, then the committee chairperson must receive a written assurance from the _ organ- ization holding rights to such patents that a license will be made available without compensation to applicants desiring to implement the standard, or written assurance that a license will be made available to all applicants under reasonable terms and conditions that are demonstrably free of any _ unfair discrimination. Additionally, when a known patented item is referred to in an EIA/JEDEC standard, a cautionary note, as outlined in this document, shall appear in the EIA/JEDEC standard (see 9.3.1.). All correspondence between the patent holder and the formulatir, committee, subcommittee, or working group, including a copy of the written assurance from the patent holder discussed above, shall be transmitted to the EIA Engineering Department and the EIA General Counsel at the earliest possible time and, in any case, before the standard is otherwise ready for subcommittee or committee ballot circulatic .. (See the Style Manual, EP-7-A, 3.4 for the required language in an EIA Standard that cites a product with a known patent.) 572a [FN 1]: For the purpose of this policy, the word “patented” also included items and processes for which a patent has been applied and may be pending. (CX 208 at 19). 613. Section 9.3 of JEP 21-I describes the requirements of incorporating known patented products in EIA/JEDEC standards — namely, that all technical information should be known and RAND assurances obtained. (CX 208 at 19). 614. Although this section, through a foot- note, defines “patented” to include pending patents, the section also expressly recognizes that it only applies to “known patents.” (CX 208 at 19). 615. This section does not impose an obli- gation to disclose intellectual property. Rather, it explains the procedure and information necessary for including a known patent into a standard. (CX 208 at 19). 616. Section 9.3.1, JEP 21-I states: 9.3.1 Committee Responsibility Concerning Intellectual Property The Chairperson of any JEDEC committee, subcommittee, or working group must cali to the attention of all those present the requirements contained in the EIA Legal Guides, and call attention to the _ obligation of all participants to inform the meeting of any knowledge they may have of any patents, or pending patents, that might be involved 573a in the work they are’ undertaking. Appendix E (Legal Guidelines Summary) provides copies of viewgraphs that should be used at the beginning of the meeting to satisfy this requirement. Additionally, all participants must be asked to read the statement on the back of each EIA Sign-in/ Attendance Roster. (CX 208 at 19). 617. Section 9.3.1 of JEP 21-I is ambiguous because it refers to the EIA Legal Guides immediately before and immediately after mentioning an “obligation co inform the meet- ing of . . . patents, or pending patents.” (CX 208 at 19). The EIA Legal Guides to which this section refers, however, do not support such an obligation. (See CX 208 at 26-29; CX 204). 618. To satisfy the requirement to call attention to the obligation to disclose patents and patent applications, section 9.3.1 refers to Appendix E and the EIA sign-in/attendance roster. (CX 208 at 19). 619. Appendix E, JEP 21-I explains that “(t}he following material may be made into viewgraphs that can be shown at JEDEC meet- ings to summarize EIA legal guidelines cover- ing the areas of improper activities and pro- grams, patents, and copyright protection. More detailed information in each area is available from the EIA Legal Office.” (CX 208 at 26). 620. Appendix E, JEP 21-I includes the fol- lowing procedure for incorporating patented technology in standards: 574a EIA/JEDEC PATENT POLICY SUMMARY Standards that call for use of a patented item or process may not be considered by a JEDEC committee unless all of the relevant technical information covered by the patent or pending patent is known to the committee, subcommittee, or working group. In_ addition, the committee Chairperson must have received written notice from the patent holder or applicant that one of the following conditions prevails: * A license shall be made available without charge to applicants desiring to utilize the patent for the purpose of implementing the standards(s), or * A license shall be made available to applicants under reasonable terms and conditions that are demonstrably free of any unfair discrimination. In either case, the terms and conditions of the license must be submitted to the EIA General Counsel for review. An appropriate footnote shall be included in the standard identifying the patented item and describing the conditions under which the patent holder will grant a license. (CX 208 at 27). 621. Appendix E of JEP 21-I, which de- scribes itself as an “ETA/JEDEC Patent Policy Summary,” indicates that “a patented item or 575a process may not be considered . . . unless all of the relevant technical information covered by the patent or pending patent is known” and that RAND assurances must be obtained. (CX 208 at 27). This statement does not impose a duty to disclose upon members. Rather, it ex- plains the procedure to follow in utilizing known patented items consistent with the re- quirements of section 9.3. 622. Appendix E does not distinguish be- tween EIA and JEDEC patent policies; it is . labeled the “EIA/JEDEC patent policy.” (CX 208 at 27). 623. Appendix F, JEP 21-I states: Fl. PATENT POLICY APPLICATION GUIDELINES The following points’ describe’ the application of the JEDEC patent policy: * Committee discussion of pending or existing patents is a _ permissible activity and is encouraged when the committee feels that the patented item or process represents the best technical basis for a standard. * Discussion of a pending or existing patent does not’ constitute an acknowledgment of the validity of the patent, because validity is based on prior art and determination of who first made the invention or applied for the patent. The committee’s concern is with technical merits and whether the 576a technical proposal is a sound basis for standardization. * By its terms, the EIA Patent Policy applies with equal force to situations involving: 1) the discovery of patents that may be required for use of a standard subsequent to its adoption, and 2) the initial issuance of a patent after the adoption of a standard. Once disclosure is made, the holder is obligated to provide the same assurances to EIA as are required in situations where patents exist or are known prior to approval of a proposed standard. Thus, if notice is given of a patent that may be required for use of an already approved EIA Standard, a standards developer may wish to make it clear to other standards-making participants that the JEDEC procedures require the patent holder to provide the assurances contained in the Patent Policy or suffer the withdrawal of EIA’s approval of the standard as an EIA Standard and, ultimately, as an American National Standard. (CX 208 at 29). 624. Appendix F of JEP 21-I recognizes that (1) discussion of intellectual property issues is allowed, (2) a disclaimer that such discussions do not constitute an acknowledgment of the validity of the paterts, and (3) the policy ap- plies to (a) the discovery of patents after a 577a standard is adopted and (b) the issuance of a patent after the standard is issued. This section makes clear that EIA will pursue the same procedure in these situations as if the patent were known during the standardization procedure. Finally, this section provides the penalty for failure to provide RAND assur- ances: that the standard may be withdrawn. (CX 208 at 29). 625. At the September 1993 JC 42.3 meet- ing, the committee chairman showed a view- graph containing proposed language from an appendix to the not-yet-published JEP 21-I manual. This viewgraph was expressly marked “DRAFT” and contained a footnote stating that the “material is a proposed revision” that “has not been approved by JEDEC.” (JX 17 at 12). Although this draft did refer to a “patent or pending patent,” it did not mention an obli- gation to disclose intellectual property, nor did it instruct the chairperson to call attention to such an obligation. (JX 17 at 12). 626. The committee chairman also showed a different draft of the 21-I Manual at the December 1992 JEDEC JC 42.3 meeting sim- ilarly marked as a draft. (Crisp, Tr. 2983-88; see JX 14 at 3, 25). 627. It is not clear that JEP 21-I was ever formally adopted by JEDEC. John Kelly, EIA Legal Counsel, testified that JEP 21-I needed a final stamp of approval from EIA’s EDEC and that he did not know whether JEP 21-I ever received that approval. (J. Kelly, Tr. 2104-05). 578a 628. Complaint Counsel did not provide sufficient evidence to find that JEP 21-I re- ceived the approval from EDEC necessary for JEP 21-I to become the controlling manual. 629. Rambus did not receive a copy of 21-I until the summer of 1995. (Crisp, Tr. 3475). 630. JEDEC did not maintain a log of who received copies of manuals and it was not the practice of JEDEC to mail all documents as they were revised. (CX 317 at 1; Grossmeier, Tr. 10944-45). 631. Although JEP 21-I refers to an obligation to disclose intellectual property, it does not provide a basis for the obligation, or a discussion of the extent of the obligation. Moreover, it is facially inconsistent with the EIA sections to which it refers. (See CX 208 at 19). 632. JEP 21-I is ambiguous and can not be construed to impose a clear obligation to dis- close intellectual property. (See CX 208). 3. EIA Legal Guides 633. The EIA Legal Guides include a non- liability disclaimer that “[s]tandards are pro- posed or adopted by EIA without regard to whether their proposal or adoption may in any way involve patents on articles, materials, or processes. By such action, EIA does not as- sume any liability to any patent owner, nor does it assume any obligation whatever to par- ties adopting EIA standards.” (CX 204 at 4). 634. The EIA Legal Guides do not contain any specific reference to any disclosure obli- 579a gation in connection with a member’s intel- lectual property. (See CX 204). 4. EP-3-F and EP-7-A 635. The October 1981 EIA manual known as “EP-3-F” provides the following procedure for using patented items in standards: 8.3 Reference to Patented Products In EIA Standards Requirements in EIA Standards which call for the use of patented items should be avoided. No program of standardization shall refer to a produc. on which there is a known patent unless ali the technical in- formation covered by the patent is known to the Formulating committee, sub- comittee, or working’ group. The Committee Chairman must have also received a written expression from the patent holder that he is willing to license applicants under reasonable terms and conditions that are demonstrably free of any unfair discrimination. Additionally, when a known patented item is referred to in an EJA Standard, a Caution Notice, as outlined in the Style Manual, EP-7, shall appear in the EIA Standard. (CX 203A at 11). 636. The 1990 EIA manual known as “EP- 7-A” provides information about obtaining RAND assurances: 3.4 Patented Items or Processes Avoid requirements in EIA standards that call for the exclusive use of a patented 580a item or process. No- program [of] standardization shall refer to a patented item or process unless all of the technical information covered by the patent is known to the formulating committee or working group, and the committee chairman has received a written expres- sion from the patent holder that one of the following conditions prevails: (1) a license shall be made available with- out charge to applicants desiring to utilize the patent for the purpose of implement- ing the standard, or (2) a license shall be made available to ap- plicants under reasonable terms and con- ditions that are demonstrably free of any unfair discrimination. .. . An appropriate footnote shall be in- cluded in the standard identifying the pa- tented item and describing the conditions under which the patent holder will grant a license (see 6.5.2). (JX 54 at 9-10). 637. The EP-3-F manual and the EP-7-A manual, which were in effect when Rambus joined JEDEC, both contain a requirement that no standard shall refer to a product on which there is a known patent unless all the technical information covered by the patent is known to the committee or working group. (CX 203A at 11-12; JX 54 at 9). 638. The EP-3-F manual and the EP-7-A manual make no explicit reference to an obli- 581la gation on the part of ELA members or others to disclose patents or patent applications. (See J. Kelly, Tr. 1824-25, 1905-06, 2082-83; CX 203A; JX 54). 5. ANSI Patent Policy 639. The ANSI Patent Policy Guidelines were attached to the May 1992 JC 42.3 meeting minutes and were circulated to JC 42.3 members in 1994. (CX 34 at 19). 640. J. Kelly circulated the ANSI Guidelines to JC 42.3 members in 1994 because he “thought they provided insight into the proper interpretation of the EIA and JEDEC patent policy.” (J. Kelly, Tr. 1950). 641. J. Kelly was a member of the ANSI patent policy working group from 1990 until 2002 and was personally involved in the dis- cussions and deliberations leading to the final approval of the ANSI guidelines. (J. Kelly, Tr. 1950-51). 642. At the time that the ANSI Guidelines were circulated to JC 42.3 members in 1994, the language of the EIA patent policy and the ANSI patent policy was essentially identical. (J. Kelly, Tr. 2077-78). 643. The ANSI patent policy guidelines “seek to encourage the early disclosure and identi- fication of patents that may relate to standards under development.” (RX 1712 at 6). 644. The ANSI patent policy guidelines spe- cify that “it is desirable to encourage disclosure of as much information as possible concerning the patent, including the identity of the patent 582a holder, the patent’s number, and information regarding precisely how it may relate to the standard being develuped.” (RX 1712 at 8). 645. The ANSI patent policy guidelines in- dicate that “a standards developer may wish to encourage participants to disclose the exis- tence of pending U.S. patent applications re- lating to a standard under development. Of course, in such a situation the extent of any disclosure may be more circumscribed due to the possible need for confidentiality and uncer- tainty as to whether an application will ma- ture into a patent and what its claimed scope will ultimately be.” (RX 1712 at 8). D. Committee Forms 1. Membership Application 646. The application completed by Rambus upon joining JEDEC does not impose an obli- gation on members to disclose intellectual property. (CX 601 at 1-2). Indeed, there is no mention of intellectual property in the appli- cation. (CX 601 at 1-2). 647. Complaint Counsel did not present sufficient evidence to support their allegation (Complaint J 15) that the JEDEC membership application included an obligation to abide by JEDEC’s rules. (See CX 601). 2. Meeting Attendance Roster (Sign- In Sheet) 648. Participants at each JEDFC meeting were required to record their names on the sign-in sheet or meeting attendance roster. (CX 306; CX 3136 at 135). 583a 649. Sign-in/attendance rosters were not considered an “official form” because they “vary from division to division and almost year-to-year.” (CX 317 at 1). 650. The sign-in/attendance roster states in relevant part: “Subjects involving patentable or patented items shall conform to EIA Policy (reverse side). Consult the ELA General Coun- sel about any doubtful question.” (CX 306 at 1). 651. The sign-in/attendance roster states on the reverse side: REFERENCE TO PATENTED PRODUCTS IN EIA STANDARDS Requirements in EIA Standards that call for the use of patented items should be considered with great care. While there is no objection in principie to drafting a proposed standard in terms that include the use of a patented item, if it is considered that technical reasons justify this approach, Committee Chairmen should ensure that no _ program of standardization shall refer to a product on which there is a known patent unless all relevant and_- reasonably necessary technical information covered by the patent is known to the formulating committee, subcommittee, or working group. The Committee Chairmen must have also received a written assurance from the patent holder that a license will be made available without compensation to the applicants desiring to utilize the license for the purpose of implementing 584a the standard; or a written assurance that a license will be made available to applicants under reasonable terms and conditions that are demonstrably free of any unfair discrimination. Additionally, when a known patent item is referred to in an EIA Standard, a Caution Notice, as outlined in the Style Manual, EP-7, shall appear in the EIA Standard. All correspondence between the patent holder and the formulating committee, subcommittee, or working group, including a copy of the written assurance from the patent holder mentioned above, shall be transmitted to the EIA Engineering Department and the EIA General Counsel at the earliest possible time, but no later than the point when the EJA Standard Proposal is ready for Committee ballot. (See the Style Manual for EIA Publications, EP-7, Section 3.4 _ for required language in an EIA Standard that cites a known patented product). (CX 306 at 2). 652. The sign-in/attendance roster was modified to include the term “patentable” in the early 1990’s around the time of the Wang litigation. (J. Kelly, Tr. 1934-35). For discus- sion of the Wang litigation, see infra F. 689-90. 653. The reference to “patentable or pa- tented items” on the front page of the sign- in/attendance roster is ambiguous because it refers to the EIA guides. The EIA Guides which appear on the reverse side, however, 585a apply only to issued patents. (CX 306 (EIA Legal Guides use the terms: “patented items,” “known patent,” “technical information covered by the patent,” and “patent holder’”)). 3. Committee Ballots 654. The committee ballots used by JEDEC to record votes on standardization proposals contained a variety of voting options, including an option which read: “I do not approve the content of the [ballot topic]. Attached are my detailed reason(s) for this disapproval. (We need your reason(s) in order to understand your view on this matter.) MANDATORY.” (CX 252A at 2). 655. The committee ballots also stated: “If anyone receiving this ballot is aware of patents involving this ballot, please alert the Commit- tee accordingly during your voting response.” (CX 252A at 2). 656. When this language regarding patents was first added to the committee ballots, a JEDEC member asked during a JEDEC meet- ing about the purpose of the new language. The minutes of the JC 42.1 meeting held on September 13, 1989 state that: Council discussed pateiit issue at their June meting [sic] at the request of JC- 42.3. The result was not to change EIA legal requirements as_ outlined = in document EP-7, but to add some wording on JEDEC ballot voting sheets about informing the Committee if any patent covers the balloted material. 586a TI was concerned that Committee members could be held liable if they didn’t inform Committee members correctly on patent matters. Committee responded that the question was added on ballot voting sheets for information only and was not going to be checked to see who said what. (CX 3 at 6). 657. Sussman explained the options on ballots as follows: Yeah, I can approve the ballot. I can not approve the ballot. I can abstain on the ballot. I can approve it with comments. And the bottom one is saying that regardless of what I do, ignoring any of the above things, I can also point out that I know of or I believe there might be a patent that could read on the — on this concept, on this ballot. (Sussman, Tr. 1391). 658. It is clear from the plain language of the committee ballot that a no vote mandates an explanation, while patent disclosure is only requested on a voluntary basis. (See CX 252 at 2). 4. Members’ Manual 659. The introduction to the “JC 42 Mem- bers’ Manual,” dated September 1994, states that “[t]his manual was compiled to assist new (and established) members in achieving full effectivenes [sic] in the standards making process.” (RX 507 at 2). 587a 660. The members’ manual was a document created by Jim Townsend, JC 42 Chairman, and does not display the JEDEC or EIA trade- marks or otherwise purport to be an official EIA publication. (RX 507). 661. The members’ manual was not ap- proved by the JEDEC Council and the meeting minutes indicate that “[slome of this material is not approved by JEDEC ... It should be clear that this manual is not a publication of JEDEC because it has not been balloted by Committee or Council.” (JX 31 at 4). 662. The members’ manual patent policy section states: “Committees adhere rigidly to the EIA patent policy as given in EIA pub- lication EP-7-A, August 1990, Pars.3.4 & 3.5 and in EIA Publication EP-3-F, October 1981, Par 8.3 which require intellectual property disclosure and discussion if proposed stand- ards are affected.” (RX 507 at 15). 663. The members’ manual states that “[{al]ll first presentations must be accompanied by written handouts for all companies present giving complete details of the material being presented. In addition, the presenter must reveal any known or expected patents, within his company, on the material presented.” (RX 507 at 15). 664. The members’ manual is ambiguous because it states that the committee “adheres rigidly to the EIA patent policy” which it de- scribes as requiring intellectual property dis- closure. (RX 507 at 15). However, the EIA pa- tent policy to which it refers does not require 588a disclosure of intellectual property. (See F. 633- 38). 665. The members’ manual is also ambig- uous because the patent policy section suggests a requirement of intellectual property disclo- sure without indicating who is required to disclose, while the “First Presentation” section limits disclosure to those making presenta- tions. (See,.RX 507 at 15). 5. Patent Tracking List 666. A patent tracking list, which was a compilation of patents and patent applications of which Townsend had been made aware through the course of the work inside JEDEC, was maintained by Chairman Townsend. (Rhoden, Tr. 325; Sussman, Tr. 1355). 667. Townsend “began the patent tracking list .. . in May of 1991.” (G. Kelley, Tr. 2407). The patent tracking list had multiple purposes, including record-keeping, a reminder to other participants of the patent issues that were on, and as an educational tool for those who were newcomers to the committee. (G. Kelley, Tr. 2407-08). 668. The patent tracking list was an in- formal, incomplete list of patents and patent applications disclosed to the JC 42.3 commit- tee. (G. Kelley, Tr. 2408). Rhoden explained that it “was Mr. Townsend’s personal list, and I’m not sure that everything was included in it.” (Rhoden, Tr. 334-35). 669. The cover sheet accompanying the pa- tent tracking list included the term “patent- able matters” which JEDEC Chairman Rhoden 589a testified he understood to mean “anything that would be in the patent process. Essentially if you believe that you have ownership of a particular topic or a particular item, then that is what he’s referring to. Patentable, whether a patent had actually been applied for or not.” (Rhoden, Tr. 336). E. Contemporaneous Correspondence 1. The McGhee Memorandum 670. ETSI is the European Telecommuni- cations Standards Institute. As indicated in the EIA letter to the Federal Trade Commis- sion commenting on the Dell consent order, ETSI undertook efforts “to force compulsory licensing on an extraterritorial basis.” (RX 669 at 3). 671. On March 29, 1994, JEDEC Secretary Ken McGhee sent a memorandum to JC 42 Chairman Jim Townsend regarding the “ETSI Policy within JEDEC” that stated that JEDEC’s legal counsel had said that: {H]e didn’t think it was a good idea to re- quire people at JEDEC — standards meetings to sign a document assuring anything about their company’s patent nights for the following reasons: (1) It would have a chilling effect at future meetings (2) A general assurance wouldn’t be worth that much anyway (3) It needs to come from a VP or higher within the company — engineers can’t sign such documents 590a (4) It would need to be done at each meet- ing slowing down the business at hand. (RX 486 at 1). 2. Correspondence Regarding’ the Dell Consent Agreement 672. The Commission issued a complaint and entered into a consent agreement with Dell Computer Corporation (“Dell”) which prohib- ited Dell from enforcing its patent rights against computer manufacturers using the VL- bus. The Commission placed upon the public record the executed consent decree with a re- quest for public comments. In re Dell Computer Corp., 121 F.T.C. 616, 619 (May 1996). 673. In January 1996, a letter was submitted to the FTC on behalf of EIA and its unin- corporated divisions and departments (includ- ing JEDEC), as well as on behalf of the Telecommunications Industries Association (“TIA”), in response to the Dell action. EIA General Counsel J. Kelly’s name and title appear in the signature block. (RX 669 at 5; J. Kelly, Tr. 2092-93). 674. The EIA’s January 1996 comment letter to the Commission states in relevant part: Both EIA and TIA encourage the early, voluntary disclosure of patents that relate to the standards in work. Committee and subcommittee chairs ask during the meetings whether any parties are aware of any patents that relate to the contributions under discussion. When potential patents are disclosed, EIA and 59la TIA staff contact the patent holders to ensure that essential patents will be licensed in accordance with the EIA, TIA and ANSI IPR policies. (RX 669 at 3). 675. The EIA’s January 1996 comment letter to the FTC clarifies that the “EIA, TIA and ANSI IPR policies relate to essential patents” and that “even if knowledge of a patent comes later in time due to the pending status of the patent while the standard was being created, the important issue is the license availability to all parties on reasonable, non-discrimina- tory terms.” (RX 669 at 3, 4). 676. In July 1996, the FTC, in a letter signed by FTC Secretary Donald Clark, responded to the EIA’s January 1996 letter. The FTC’s letter states in relevant part that: “EIA and TIA, following ANSI procedures, encourage the early, voluntary disclosure of patents, but do not require a certification by participating companies regarding potentially conflicting pa- tent interests.” (RX 740 at 1). 677. The FTC’s statement distinguishing the EIA’s patent policy from the policy at issue in the Dell matter, and the FTC’s explanation that the differences in the two patent policies meant that the “expectations of participants in the two standard-setting processes differ,” indicate that FTC Secretary Clark interpreted the ELA’s January 1996 letter to mean that the EIA encouraged, but did not require, the dis- closure by members of intellectual property interests. (RX 740 at 2; see RX 669 at 2). 592a 678. On July 10, 1996, JEDEC Secretary Kenneth McGhee sent a memorandum to Jim Townsend, addressed to “JEDEC Council Members and Alternates,” regarding the FTC’s Final Consent Order in the Dell case, which stated in part that: “the FTC emphasized that it was not intending to signal a general duty to search for patents when a company engages in standards setting (ANSI and EIA do however, encourage early, voluntary disclosure of any known essential patents.)” (RX 742 at 1). 679. These letters clearly state JEDEC’s patent policy was limited to encouraging early, voluntary disclosure of any known essential patents. (RX 669; RX 742). 3. Correspondence Regarding Micron Disclosure 680. On January 28, 2000, Micron drafted a written disclosure of a patent application relat- ing to a proposed standard under consideration in the JC 42.4 subcommittee. (RX 1559 ai 2). 681. On February 1, 2000, JEDEC Secretary McGhee sent an email to members of the subcommittee stating, “I would like to point out that this letter is well intentioned, but lacks a patent number, so it does not complete the requirements for JEDEC patent policy. If, however, a follow-up letter is issued after the patent is issued, then it would comply with JEDEC’s patent policy.” (RX 1559 at 1). 682. Upon receiving McGhee’s email that Micron had not complied with the patent policy because Micron’s disclosure did not include a patent number term, Terry Walther of Micron 593a caused the matter. to be placed on the agenda for the next JEDEC board meeting. (RX 1568 at 25). 683. The minutes of the February 2000 meeting of the JEDEC Board of Directors state: D. Disclosure on Patents Pending Mr. Walther noted that Micron had sent a letter indicating they have _ patents pending on items that may affect com- mittee standards. The issue was whether companies should make public that a patent is pending. The BoD discussed it and noted they encourage companies to make this kind of disclosures even though they were not required by JEDEC by laws. (RX 1570 at 13). 684. In an email written a few days after the February 2000 board meeting, JEDEC Secre- tary Ken McGhee, who had been present at the meeting (RX 1570 at 2), reported to a JEDEC subcommittee that the JEDEC Board had discussed Micron’s “patent pending” disclosure. Secretary McGhee stated that: The JEDEC patent policy concerns items that are known to be patented that are in- cluded in JEDEC standards. Disclosure of patents is a very big issue for Committee members and cannot be required of members at meetings. However, if a company gives early disclosure on a patent they are working on, it definitely gives a lot of assurance to the Committee 594a members regarding development of any standards affecting it. Therefore, in Micron’s letter, by giving early disclosure, they have gone one step beyond the patent policy and _ have complied with the spirit of the law. JEDEC encourages this type of activity from any member. (RX 1585 at 1). 685. Disclosure of patent applications, or pending patents, was “not required” by JEDEC in 2000 even though disclosure was “encour- aged.” (RX 1570 at 13). The “spirit of the law” is to disclose patent applications even though disclosure “cannot be required of members.” (RX 1585 at 1). F. Conduct of Parties in JEDEC 1. SEEQ Issue 686. A company named SEEQ proposed a JEDEC standard called silicon signature. (Sussman, Tr. 1338). SEEQ owned two patents related to the technology, but disclosed and offered to license only cane. (Sussman, Tr. 1338- 39 (SEEQ “was telling us about silicon signa- ture and offering it as a royalty-free license to anyone who wanted it, hoping that just as soon as we standardized this, the second patent, which would be die trace, which he had not said anything about, but because it was almost identical, would be insisted upon by the cus- tomers, and [SEEQ] could put a tax on us.”)). 687. Upon learning of SEEQ’s second patent, the committee was willing to standardize the 595a SEEQ technology, provided that SEEQ agreed to reasonable licensing terms. (CX 3 at 4). 688. When the committee learned that the second patent was not included in the patent release, JEDEC chose to standardize on a dif- ferent technology. (Sussman, Tr. 1338-39). 2. WANG Litigation 689. The Wang litigation involved allega- tions of a failure to disclosure a patent appli- cation on the part of a company that had promoted its technology for standardization. (CX 711 at 188). Wang was “part of the committee, they had helped set a standard, and then they went out and enforced their patents against everybody in the industry who used a SIMM module.” (Williams, Tr. 787). 690. Wang failed to disclose a patent relating to memory modules and later attempted to enforce the patent against the industry which “ended up in a rather lengthy litigation, crossed multiple houses and cost the industry millions of dollars before the patent was found to be invalid.” (Sussman, Tr. 1338; see also Landgraf, Tr. 1697-98; JX 20 at 4). 3. IBM’s Patent Position 691. The minutes of the March 1993 meeting of JC 42.3 state in part that “IBM noted that their view has been to ignore [the] patent disclosure rule because their attorneys have advised them that if they do then a listing may be construed as complete.” (JX 15 at 6). 692. In an August 1993 memo to JEDEC leaders entitled “BGA Patent/License Rights,” 596a IBM JEDEC representative (and JEDEC 42.3 subcommittee chair) Gordon Kelley stated that: IBM Intellectual Property Law attorney’s [sic] have informed me that we will not use JEDEC as a forum for discussing this sub- ject. It is the responsibility of the producer to evaluate the subject and to workout the proper use of rights. So, I can not confirm or deny any IPL rights. (RX 420 at 2). 693. The December 1993 JEDEC 42.3 min- utes state in part that “[a]s a side issue, IBM noted that in the future they will not come to the Committee with a list of applicable patents on standards proposals. It is up to the user of the standard to discover which patents apply.” (JX 18 at 8). 694. Between December 1993 and December 1995 (Rambus’s last meeting), no IBM patent or patent application was added to the “patent tracking list” maintained by JC 42 Chairman Jim Townsend. (See JX 18 at 14-21; JX 19 at 17-23; JX 20 at 15-18; JX 21 at 14-18; JX 22 at 12-17; JX 25 at 18-26; JX 26 at 15-24; JX 27 at 20-25; JX 28 at 12-23). 695. Regarding IBM, Cray representative Grossmeier testified that “IBM said they didn’t feel they had the resources to review their entire patent portfolio every time a proposal was made to see if there was anything in there that was applicable. So, they would not dis- close any patents that they had that were related to the standard.” (Grossmeier, Tr. 597a 10956; His opinion was that “I think they all understood the policy. I think they just elected not to practice it.” (Grossmeier, Tr. 10956-57). 696. A Hewlett-Packard representative to JEDEC, Hans Wiggers, testified that he had attended a JEDEC meeting where IBM repre- sentative and Committee Chair Gordon Kelley said: Look, I cannot. disclose -- my company would not let me disclose all the patents that IBM is working on because, you know, I just can’t do that. The only thing we will do is we will follow the JEDEC guidelines and — or rules on whatever and we will make them available. (Wiggers, Tr. 10592-93). 697. This is consistent with Gordon Kelley’s testimony. G. Kelley testified that he did not disclose IBM patents relating to “toggle mode” in 1990 in part because IBM was “prepared to meet the requirements of the JEDEC commit- tee” to license the patents on reasonable and nondiscriminatory terms. (G. Kelley, Tr. 2715- 16). 698. Complaint Counsel did not present sufficient evidence from which to find that IBM was ever sanctioned for announciag its refusal to disclose the company’s intellectual property. 4. Hewlett Packard’s Patent Position 699. Hewlett Packard’s representative, Wig- gers, testified that when JC 42.3 Chair G. Kelley stated his position at the JEDEC meet- 598a ing regarding IBM’s nondisclosure of patent applications, Wiggers told the meeting attend- ees that HP took the same position. (Wiggers, Tr. 10593-94). 700. Complaint Counsel did not present sufficient evidence from which to find that Hewlett-Packard was ever sanctioned for an- nouncing its refusal to disclose the company’s intellectual property. 5. Texas Instruments’ QUAD CAS Issue 701. On March 9, 1994, Texas Instruments presented a letter to JEDEC regarding ambig- uities in the JEDEC patent policy. This letter began “Texas Instruments believes that the JC 42.3 Committee on RAM Memories should review and clarify its interpretation of the JEDEC Patent Policy.” The letter further states that “TI is concerned that the commit- tee, or at least some of its members, have interpreted the scope of the JEDEC Patent Policy in a manner that is not only incorrect but unworkable as well. The resulting contu- sion has made it impossible for TI and other members to determine the appropriate course of conduct.” (CX 352 at 1). 702. A memorandum to JC 42 committee members dated May 12, 1994 says that TI’s request for clarification of the patent policy was referred to EIA’s legal counsel J. Kelly for response. The memorandum attached a copy of J. Kelly’s response. (CX 355 at 1). 703. John Kelly’s response indicates that “[w]ritten assurances must be provided by the 599a patent holder when it appears to the com- mittee that the candidate standard may require the use of a patented invention.” (CA 355 at 2 (emphasis in original)). 704. The meeting minutes indicate that at the close of a discussion on patents at the March 1994 Committee meeting, the commit- tee felt the patent policy was clear and that discussion would be closed on the subject. (JX 19 at 4-5; Kellogg, Tr. 5028-30). 705. Gordon Kelley indicated: “I believe that the litigation between Micron and Texas In- struments was resolved, a1.d I believe that the ballots that were on hold were removed from hold and the ballots that were in recision were reconstituted.” (G. Kelley, Tr. 2483). In addi- tion, he stated that Texas Instruments “apologized for their representative who had not disclosed — I personally know that they removed him from the committee, he did not come back, and they settled their dispute with Micron and as far as the committee was con- cerned, the issue was at this point resolved.” (G. Kelley, Tr. 2485). 706. Cray representative Grossmeier testified that “some members agreed that [TI] didn’t need to [disclose] and otherjs] felt that they were in violation of the JEDEC policy by not [disclosing].” (Grossmeier, Tr. 10955). 707. This is clear evidence that by 1994, the patent policy was ambiguous. Indeed, in 1994 Texas Instruments explicitly recognized the “confusion” created when some members of the committee “interpreted the scope of the 600a JEDEC Patent Policy in a manner that is not only incorrect but unworkable as well.” (CX 352 at 1). 6. Micron’s Presentation on Burst EDO 708. Brett Williams, of Micron, put together a presentation on Burst EDO that was pre- sented at a January 1995 JEDEC DRAM task group meeting. (JX 23 at 68-77; Williams, Tr. 825-26). Williams was present at the meet- ing and was aware that Micron’s Burst EDO patent application, on which he was a named inventor, was not on the patent tracking list. (JX 23 at 1; Williams, Tr. 963-64). Never- theless, Williams did not disclose the pending patent application on Burst EDO in connection with that presentation and vote. (Williams, Tr. 936-37; see RX 585 at 3-4). 709. It was not until April 1996 that Micron’s Burst EDO patent application was disclosed to JEDEC when Micron offered to license the patents under reasonable terms and conditions, demonstrably free of any un- fair discrimination, if the patents were issued and were required for use of the standard. (CX 364; Williams, Tr. 937). 710. At trial, Williams was questioned about the potential perception of his actions: Q: Okay, So once the patent issued in June of ‘96, if somebody had gone back and looked at that patent, they would have seen — by just looking at the patent, they would have seen, well, Micron cited as prior art early JEDEC meetings, and 601la Micron applied for the patent in December ‘94, after some of the early meetings and before — right before the January ‘95 presentation that you and Mr. Fusco attended, and the patent issued in June of ‘96, and Micron made the disclosure to JEDEC in April of ‘96. That’s the facts they would have seen. A: Yes. Q: And to your knowledge, nobody seeing those facts, no JEDEC member, came to Micron and said, you guys acted in a way inconsistent with the JEDEC policy, did they? | A: I’m not sure if anybody talked to Micron about that or not. Nobody talked to me about it. (Williams, Tr. 941-42.) 7. Hyundai and Mitsubishi’s Presentation on SLDRAM 711. On May 24, 1995, Hyundai and Mit- subishi made presentations at a meeting of the JC 42.3 subcommittee regarding a type of DRAM known as SLDRAM. (JX 26 at 10-11; Rhoden, Tr. 469-71). The minutes note that “(t]he proposal was brought to JEDEC for a pinout standard.” (JX 26 at 10). The Mitsu- bishi presentation showed the pinout for an SLDRAM. (JX 26 at 111; Rhoden, Tr. 471). 712. At a JEDEC meeting on December 9-10, 1997, the SLDRAM pinout standard ballot was approved by the JC 42.3 subcommittee. (JX 41 at 22, 24; RX 1114 at 1; Rhoden, Tr. 1206-08). 602a 713. United States Patent No. 6,442,644 (the ‘644 patent) issued on August 27, 2002. (RX 2086 at 1). Among the inventors named on the patent were JEDEC representatives Hans Wiggers of Hewlett-Packard, Kevin Ryan and Terry Lee of Micron, and JEDEC Chairman Desi Rhoden, formerly of VLSI. (RX 2086 at 1). 714. Rhoden testified that claim 3 of the patent claims the SLDRAM pinout that had been standardized by JEDEC. (RX 2086 at 41; Rhoden, Tr. 1211). 715. The ‘644 patent claims priority to a number of provisional applications, including provisional application 60/069,092 which was filed on December 10, 1997, the very same day that the JEDEC meeting approving the SLDRAM patent was being held. (RX 2086 at 1; RX 2099-43). 716. Wiggers, Ryan and Rhoden were all present at the December 1997 JC 42.3 sub- committee meeting where the SLDRAM pinout standard was balloted and approved. (JX 41 at 2). They were each involved in or affiliated with the “SLDRAM Consortium” or SLDRAM Inc., which subsequently became AMI2, and was assigned the ‘644 patent. (RX 870 at 1; Rhoden, Tr. 696-97, 1235; RX 2086 at 1). 717. The minutes of the meeting do not indicate that any of the three disclused the ‘092 provisional application, (see JX 41 at 22, 24), even though Rhoden testified at trial that even non-member guest scientists or engineers from foreign countries were “absolutely” obligated to disclose patents and patent applications that 603a were related in some general way to a sub- ject being discussed at JEDEC. (Rhoden, Tr. 624-25). G. Trial Testimony 1.A Policy in Transition 718. The evidence suggests an unsuccessful attempt by some members of JEDEC to rede- fine the patent policy after SEEQ and Wang. (See CX 46 at 9). Complaint Counsel, however, did not produce evidence sufficient to find an announced, formal change in policy. 719. Some members of the committee treated the spirit of the policy as the actual policy. Williams testified that between late 1991 to 1993, “[i]Jt was discussed how to revise the wording to ensure that the patent policy was clear so that new members, when they came on board, would know exactly the spirit of the patent policy.” (Williams, Tr. 791). 2. Creation of Ambiguity and Confu- sion Regarding the Policy 720. IBM’s representative Mark Kellogg disclosed, at least twice, an intention on the part of IBM to file a patent application related to a product or feature under consideration for standardization at JEDEC. At his deposition, Kellogg testified that he did not believe the disclosure was required under the JEDEC patent policy. He contradicted this testimony at trial: A: I would appreciate a chance to clarify because there’s a written policy, there was an in-process modified policy, there is an 604a expected policy, there are — there are — so in answer to your question, this refers to the written policy at the time in this document. Q: In the deposition? A: And I do apologize for differing inter- pretations of policy. Q: When I asked you in the deposition whether you believed your disclosure was required under the JEDEC patent policy, what JEDEC patent policy were you refer- encing when you answered no? A: The written policy at the time. Q: Were there more than one JEDEC patent policy that related to the obligations to dis- close intent to file patent applications? A: I believe so. (Kellogg, Tr. 5306-07). 721. Cray representative Grossmeier was unclear on JEDEC’s patent disclosure rules, as evidenced by his trial testimony that in the 1991-96 time frame “[iJt was not real clear on the definition of what patents should be dis- closed. Clearly if the sponsor presented infor- mation that they were developing and patent- ing, they would disclose it, but other parties, it was pretty vague.” (Grossmeier, Tr. 10947 (em- phasis added)). 722. Intel representative Sam Calvin testi- fied that: There was — and I don’t know when it occurred or how early it occurred, but there was a concern about not only 605a patents, but applications for patents. And I’m then real foggy on this, because I knew it was an issue, but when exactly it went from an issue to understanding that to be JEDEC policy is unclear-in my mind. (Calvin, Tr. 1006). 723. The JEDEC patent policy was not clear. (Kellogg, 5306 (“there’s a written policy, there was an in-process modified policy, there is an expected policy”); Grossmeier, Tr. 10947 (pa- tent policy was “not real clear... . it was pretty vague”); Calvin, Tr. 1006 (descnbing patent policy as “unclear”)). This lack of clarity stemmed from an unsuccessful attempt, by some, to redefine the patent policy. 3. Unsuccessful Efforts to Expand the Patent Policy 724. The February 1991 minutes from the 42.5 subcommittee meeting note that “Town- send made a presentation on patent issues in general and made some suggestions as to what could be done in the future to avoid these problems.” (CX 13 at 4). 725. Attached to the meeting minutes were handwritten notes. These notes include a sec- tion labeled “Expectations of Participants” which includes as the only expectation regard- ing disclosure that “[flull disclosure of sponsors regarding restrictions on intellectual property at conceptual phase of draft standard.” (CX 13 at 31 (emphasis added)). 606a 726. The notes include a section labeled “Possible Solutions on Intellectual Property” which includes the following suggestions: Require each member and alternate, each year, to sign an affadavit that they will disclose all knowledge of patents affecting a draft ballot. Requiring a legal statement from the sponsoring company’s Intellectual Property counsel to be attached to an approved ballot when submitted to Council for final approval. Expulsion from JEDEC of a company who attempts to achieve commercial advantage from standardization if they have not disclosed at the beginning their patent position, intention, and royalty objectives on a draft ‘patent.’ Censure by the supplier community of any such company. Establish equivalent standards to provide royalty-free alternatives to the industry. (CX 13 at 32). 727. In a March 11, 1991 letter copied to John Kelly, John Kinn, Vice President of Engineering at JEDEC, in response to a letter from Jim Townsend regarding JEDEC’s patent policy, indicated that “|t]he basic documents containing our policy on patents are: EP-3, EP- 7, The JEDEC Manual JEP-21-H, and the EIA Legal Guide.” (CX 317). 728. Kinn attached a draft revision of the ANSI policy, indicating that it was “arrived at 607a following two years of discussion among legal representatives, from Standard developers and users. Many individuals feel they do not go far enough — others feel they go too far — a classic case of our inability to harmonize conflicting opinions in areas outside those that must obey the laws of physics.” (CX 317 at 1). 729. Kinn noted a discussion from the pre- vious council meeting although “no definitive conclusions were reached other than to await the results of the ANSI work.” (CX 317 at 1). Kinn stated “I agree this issue should be con- tinually reviewed at Council level until we arrive at the best possible policy given mod- ern circumstances and technology. Perhaps JEDEC should sponsor a special workshop .. . and perhaps achieve a consensus on future directions for our policy.” (CX 317 at 2). 730. Meeting minutes from the May 9, 1991 JC 42.3 meeting indicate, regarding intellec- tual preperty, that: Toshiba noted that some of the procedure documents have been issued a long time ago but because of high Committee turnover many reps don’t know what the policies are. Toshiba recommended that at each meeting a showing be made to explain what the intellectual property policies are. Toshiba would also like to have a note on each ballot before it goes to Council from the company lawyer. It was a Council issue, but Toshiba wanted the Committee to deal with it. 608a (JX 5 at 3). 731. G. Kelley, JC 42.3 Chair, testified that “Jim Townsend had suggested that we begin to include patent applications in the concept of a patent and that was brought to the committee in May of 1991 and the vote was taken to agree that the committee would work tio that new definition of patents,” although there is no evidence of such a vote in the May 1991 minutes. (G. Kelley, Tr. 2691; see JX 5). 732. JEDEC Council Minutes from May 18- 19, 1992 state that a “discussion was held concerning patent policy. The Secretary out- lined the genesis for changes and the fact that a new set of policy statements and guidelines have been written that will be circulated to Council for review and comment.” (CX 35 at 9). 733. “Consensus was expressed that more strength is needed in our policy, however under existing laws, it seemed difficult to do. This item will be discussed further in the revision of 21-H,” according to the minutes of the January 19-20, 1993 JEDEC Council meeting. (CX 46 at 9). 734. Some members wanted to redefine the patent policy to include patent applications and the intent to file patent applications. “Consensus was expressed that more strength is needed in our policy” was understood by JC 42.3 Chair G. Kelley to mean “the more strength concept to be the inclusion of patent applications and material that might become patents to the concept of patent requirements 609a within the previous document.” (G. Kelley, Tr. 2421). 735. Existing EIA policy, which controlled JEDEC policy, did not permit such an expansive definition. “However, under existing laws, it seemed difficult to do” was interpreted by JC 42.3 Chair G. Kelley as follows: “[iJn my understanding, the difficulty was that the EIA Legal Guides did not include the patent application and material that might become patents concept, and the question before coun- cil was could we expand the definition under JEDEC Council control vithout endangering our position under the EIA control.” (G. Kelley, Tr. 2422). 736. This helps explain why the possible solutions on intellectual property were never implemented. (See CX 138 at 32). 737. Instead of explicitly and formally changing the JFDEC policy from the EIA policy, the Council unsuccessfully attempted to redefine the word “patent.” JC 42.3 Chair G. Kelley stated that “{aJt the JEDEC council, which was struggling with the change in wording of the JEDEC policy, we discussed the conflict between the EIA wording of their patent policy and the change that we were making, which was patents and patent appli- cations, and we believed as a group that the concept of patents includes patent applica- tions, that the concept of patents is a concept which says avoid patents or material that could become patents, and if you can't avoid them, then you must deal with the RAND requirements.” (G. Kelley, Tr. 2696). - 610a 738. This attempted redefinition of the policy marked a departure both from established JEDEC policy and from EIA patent policy and caused confusion by creating ambiguity in the policy. (See F. 606-38, 718-47). 739. Toshiba representative and JEDEC JC 42 Chairman Jim Townsend led the unsuccess- ful attempt to redefine JEDEC’s patent policy. Townsend was described as “a general with a flagpole patent” (G. Kelley, Tr. 2401-02), as “very sensitized by the WANG case” (Sussman, Tr. 1353), and as someone on “a personal crusade.” (CX 2079 at 38 (Karp Micron Dep.)). Townsend and the rest of the board wanted to ensure that Wang never happened again, so that “the industry was not held hostage again.” (Williams, Tr. 786-87). 4. Changes in Policy Language a. EIA Patent Policy 740. Between 1991 and 1996, JEDEC “was an activity within the EIJA engineering department” (J. Kelly, Tr. 2075) aiso described as “until early 2000, JEDEC was part of the EIA corporate structure.” (J. Kelly, Tr. 1915) “If there was a conflict, the broader rules of EIA would govern.” (J. Kelly, Tr. 1916). J. Kelly testified that in the event of a conflict, any JEDEC manual would be subordinate to the EIA manuals. (J. Kelly, Tr. 1915-6). 741. Gordon Kelley, who was the chair of the JEDEC Council and of the JC 42.3 subcom- mittee during much of the relevant time, testified that he understood there to be a basic conflict between the JEDEC and EIA manuals, 6lla for the EIA manuals intended the word “patents” to mean simply “patents,” while the JEDEC manual (at least by 1993) allegedly intended the word “patents” to mean “patents and patent applications.” (G. Kelley, Tr. 2686- 87; 2695-97). Up until late 1996, G. Kelley understood that EIA’s definition of “patent” had not changed. (G. Kelley, Tr. 2697). 742. This contradicted testimony by EIA General Counsel John Kelly that EIA rules and JEDEC rules concerning disclosure and licensing of patents were consistent. (J. Kelly, Tr. 1915-16, 1919-20). J. Kelly testified that he believes that EIA’s interpretation has always been that the term “patents” as used within EIA and JEDEC includes patent applications. (J. Kelly, Tr. 1887). 743. JEDEC manuals regarding the patent policy consistently refer the reader to the EIA Legal Guides and both JEP 21-H and JEP 21-I state that EIA Legal Guides are controlling. Nothing in the EIA Guides indicates that patents refers to anything other than issued patents. (F. 633-38). b. Changes Found in JEP 21-I 744. Both Gordon Kelley and John Kelly testified that the textual change in the 21-I manual to include a reference to pending patents “was a restatement of the patent policy, and it in no way varied the policy itself.” (J. Kelly, Tr. 1925; see also G. Kelley, Tr. 2415-16). 745. However, G. Kelley contradicted his own testimony regarding whether 21-I repre- 612a sented a change in policy, stating that in January of 1992, “[t]he council was dealing with this revision of 21-I, and some major changes were going to be taking place in the committees as a result of this revision.” He indicated that the changes included “the inclusion of patent applications in the wording of the patent section.” (G. Kelley, Tr. 2411). G. Kelley later explained that the expanded wording “did not change the substance of the practice that we had been performing to this point, it just brought this document up to date to that practice.” (G. Kelley, Tr. 2423). Later he explained, “[wle were including the words in this document which added the requirement of disclosing patent applications to the document as we had been practicing in JC-42 for several years at this point.” (G. Kelley, Tr. 2431). 746. G. Kelley explained this contradiction as based on the ambiguous definition of the word “patent.” When initially asked about his understanding in 1993 of the EIA patent policy as it related to patent applications, G. Kelley stated: “[t]he reason Im struggling is that I understood after the beginning of 1991 that the concept of patent included material that might become published patents and that changing the document [ie 21-I} to include patent applications was just a clarification but not a change in the policy, whether it was JEDEC, EIA or ANSI.” (G. Kelley, Tr. 2679). He explained “what happened with me is my definition of ‘patents’ changed... . [T]he patent policy in the JEDEC manuals, EIA manuals and ANSI manuals only specified ‘patents,’ which in my mind before 1991 meant issued 613a patents. However, beginning in early 1991, it was very clear on the committee that the committee considered the issue of patents to be issued patents as well as material that might become issued patents.” (G. Kelley, Tr. 2694- 95). 747. According to JEDEC Chairman Rhoden, the footnote in JEP 21-I which states that “the word ‘patented’ also includes items and processes for which a patent has been applied and may be pending” was “added to further emphasize for anyone reading the document and to myself the word ‘»atent’ has always applied to all things within the patent process inside of JEDEC, and that’s the explanation that has always been given by myself inside of JEDEC committees, and the footnote was added to add — make sure that everyone under- stood the word ‘patent’ involved everything within the patent process.” (Rhoden, Tr. 316- 17). 5. Conflicts in the Trial Testimony 748. The ELA/JEDEC patent policy cannot be based upon a common understanding of the policy, as the conflicts in the trial testimony show that there was no common _ under- standing. JEDEC meinbers testified not only to different understandings of the policy, but some witnesses’ testimony was not credible and even contradicted their own prior testi- mony. (See F. 749-65). 614a a. Trial Testimony Conflicts Re- garding Whether the Patent Policy Applied to Patent Appli- cations and Intentions to File Patent Applications 749. There was conflicting testimony from JEDEC members regarding whether the patent policy applied to patent applications and intentions to file patent applications. One opinion that was expressed was that the word patents includes patent applications. (Calvin, Tr. 1006-07; J. Kelly, Tr. 1886-88, 1896-97; Landgraf, Tr. 1695-96; Lee, Tr. 6595-96; Williams, Tr. 771, 909-11). 750. Another opinion was that the policy extended to include an intent to file a patent application. For example, JC 42.3 Chair G. Kelley testified that when JC 42 Chairman Townsend used the term “patents,” “I under- stood him to mean an issued patent that was available from the patent office, patent appli- cations that were being worked on. with the patent office, and items that were probably going to become patents.” (G. Kelley, Tr. 2406- 07). 751. JEDEC Chairman Rhoden testified that in his “understanding of the policy, the term ‘patent’ applies to the patent process, anything in that patent process.” (Rhoden, Tr. 636-38). Rhoden was unable to cite a JEDEC or EIA manual that expressly stated that disclosure had to be made of an intention to file a patent application, explaining that “I have seen in those manuals the wording that would say that it is a requirement for patents, and then it 615a would be my interpretation of that that — operating in the committee and in the guise of standardization that that would be covered and would be included.” (Rhoden, Tr. 639-40). 752. ‘Moreover, there was testimony that presenters were required to disclose intel- lectual property before they advocated a par- ticular technology which implies that non- presenting members were not under the same obligation. (See McGrath, Tr. 9273-74). For example, Intel representative Calvin testified. The reason I alluded to two different periods, and I can’t te. you specific dates, is that I was aware initially that there was a policy that any applicable patents that might have effect on standard or development should be disclosed. I was also aware during that early period, and I don’t know whether it was ‘92 or ‘93, but I was aware that the primary obligation was upon the presenting advocate of the standard, but that the secondary obligation, or almost to the same extent, I shouldn’t say almost, it was to the same extent, was to anyone within the body that knew of patents that might have effect upon the standard. (Calvin, Tr. 1004.) b. Trial Testimony Conflicts Re- garding Whether Members Should Disclose Actual Claims or Whether a Patent Number Was Sufficient 753. There was a conflict in the trial testimony regarding what should be disclosed 616a under the policy. For example, one view was that the patent policy required a participant to disclose sufficient information to put the committee on notice as to the nature of the relationship between the proposed standard and the intellectual property that might relate to the proposed standard. (J. Kelly, Tr. 1870- 71; Calvin, Tr. 1010-12; Rhoden, Tr. 627; Williams, Tr. 771-72, 774-75, 793-94). 754. In contrast, other JEDEC members, including Board Chairman Desi Rhoden, testified that it would be sufficient for a member simply to state that it “might have IP relating” to its presentation. (Rhoden, Tr. 1304-05). 755. JC 42.3 Chair G. Kelley testified at trial to a disclosure obligation in direct contra- diction to his own prior testimony. At the hearing, he testified that upon disclosure, a company must “describe the claims of the patent, probably paraphrased, sometimes handed out as a handout the published patent but more often paraphrased so that the committee understood why the issues of that patent material applied to the discussion in JEDEC” and specifically stated that disclosure of a patent number alone was not enough. (G. Kelley, Tr. 2697-98). However, when asked, in reference to his own prior testimony in a Micron transcript, “[djid you testify that you believed the giving of the patent number would be enough and that that would give you the information that you needed to go back and research the details on the patent?” he 617a responded “(t]he patent number would be enough.” (G. Kelley, Tr. 2700). ec. Trial Testimony Conflicts Re- garding Whether More Than Es- sential Patents Were Included in the Policy 756. There was conflicting testimony regard- ing what should trigger disclosure. For exam- ple, JC 42.3 Chair and IBM representative Gordon Kelley testified that disclosure was triggered by a patent claim that “reads on or applies” to the standard, meaning that “if you exercise the design or production of the component that was being standardized [it] would require use of the patent.” (G. Kelley, Tr. 2706-07). 757. Another IBM JEDEC representative, Mark Kellogg, testified that his understanding was that “you have to disclose intellectual property that reads on the standard.” (Kellogg, Tr. 5311). Kellogg also stated that “[s]ome- times we disclose intellectual property that doesn’t [read on the standard] and one would question why. It adds confusion.” (Kellogg, Tr. 5311). 758. Another opinion was that the EILA/ JEDEC patent policy extended to patents and patent applications that “might be involved” in the standards under development. (CX 208A at 19 (“obligation of all participants to inform the meeting of any knowledge they may have of any patents, or pending patents, that might be involved in the work they are undertaking”); G. Kelley, Tr. 2705 (“there were many work items that occurred on the committee that did 618a not become standards . . . My definition says that any claim that might apply to the work of the committee it was required to disclose.”); Landgraf, Tr. 1693-94 (disclose patents or applications “that would potentially be impact- ing the standard or proposed standard.”); Lee, Tr. 6595-96; Rhoden, Tr. 307; Sussman, Tr. 1346 (participants must disclose where there is a “gray” area); CX 2057 at 203-04 (Meyer, Dep.) (disclosed patent when “sufficiently close” to work of JEDEC); Williams, Tr. 910-11 (if “there would be a reasonable possibility that the patent was going to be associated with the work of JEDEC, that you ought to say, hey, I've got something I’m patenting here or there’s something that you’re talking about that I’ve got some IP on.”)). 759. Yet another opinion was that the policy applies “if the intellectual property has any relevance to the work that’s going on, it might be involved — we’re not asking the people that are disclosing to actually try to do a deter- mination of whether it applies or doesn’t apply. We're saying if it’s related, in the same general area,...” (Rhoden, Tr. 322-23). 760. This conflict in trial testimony high- lights the ambiguity of the JEDEC policy. (F. 718-39). d. Trial Testimony Conflicts Regard- ing the Timing of Disclosure 761. Consistent with the EIA patent policy which encourages disclosure of essential patents, early disclosure was encouraged at JEDEC. (J. Kelly, Tr. 1955-56; Williams, Tr. 772; 910-11). 619a 762. Some members understood this to mean that disclosure was expected “[ilf there is any suggestion that the committee’s work should move in a certain direction.” (Williams, Tr. 1984). 763. Another opinion was that any obligation that may have existed was not triggered until the time that a proposal was balloted for approval. (G. Kelley, Tr. 2707). JC 42.3 Chair G. Kelley testified “(t]he policy at JEDEC was that the disclosure should occur as soon as possible in the discussion of the material and certainly by the time it was balloted.” (G. Kelley, Tr. 2702; see also CX 2057 at 211 (Meyer, Dep.) (testimony by Siemens JEDEC representative Willi Meyer that although it was “good practice” to notify the committee before balloting, “the ballot was considered the deadline when it should have been done’”)). 764. Cray representative Grossmeier, al- though he testified that “if a patent holder has a patent that in any way was applicable to a proposed standard, they were to disclose that at the time of balloting within the committee,” pointed out that “[t]here’s probably thousands of patents that are applicable to every device that’s built, basically semiconductor technology patents that undoubtably are being duplicated by other companies. You can’t disclose every ~ I mean, there would be lists of thousands of patents on every standard.” (Grossmeier, Tr. 10945, 10956). 765. Yet another opinion was that disclosure was not tied to any procedural formality in the 620a JEDEC process. (J. Kelly, Tr. 1983-85; Rhoden, Tr. 488-89). H. The Scope of the EILA/JEDEC Patent Policy 1. Disclosures Were Encouraged and Voluntary 766. The controlling EIA manuals do not refer to or impose a mandatory obligation to disclose intellectual property. (See CX 204 at 4; CX 203A at 11; JX 54 at 9-10; see supra F. 633- 38). 767. JEDEC manuals also do not impose any rmandatory disclosure duty. JEP 21-H, in effect when Rambus joined JEDEC, states that “JEDEC standards are adopted without regard to whether or not their adoption may involve patents” and does not provide any further guidance regarding intellectual property. (CX 205 at 20; see supra F. 606-32). JEP 21-] reiers to, but does not impose, an obligation to disclose intellectual property. (CX 208 at 19, 26; see supra F.. 610-32). 768. The committee forms including the membership application, sign-in/attendance roster, committee ballot, members’ manual, and patent tracking list do not refer to or impose an obligation to disclose intellectual property, although the committee ballot re quests those aware of patents involved in the ballot to “please” alert the committee. (CX 601 at 1-2; CX 306 at 1-2; CX 252A at 2; RX 507 at 15; see supra 646-69). 769. The contemporaneous correspondence also shows that disclosure was voluntary. (RX 621a 669 at 3 (EIA, on behalf of JEDEC, told the FTC in a January 22, 1996 letter that it “encouragels| the early, voluntary disclosure of patents that relate to the standards in work.”); RX 742 at 1 (statement in JEDEC Secretary’s 7/10/96 memorandum to JEDEC Council mem- bers that the EIA “encourage[s] early volun- tary disclosure of any known essential pa- tents”); RX 1585 at 1 (statement in JEDEC Secretary’s 2/11/00 email that “[dJjisclosure of patents is a very big issue for Committee members and cannot be required of members at meetings”)). 770. Moreover, there is no evidence that any JEDEC member objected when Gordon Kelley of IBM and Hans Wiggers of Hewlett-Packard announced at JEDEC meetings that they would not be disclosing any intellectual prop- erty from their companies. (JX 15 at 6; RX 420 at 2; JX 18 at 8; Wiggers, Tr. 10592-94; see supra F. 691-700). 771. Complaint Counsel did not provide sufficient evidence from which to find that the ELA/JJEDEC patent policy in effect while Rambus was a member did anything more than encourage the disclosure of patents essential to the standards at balloting. 2. Patent Applications or Intentions To File Patent Applications Were Not Covered by the Policy 772. The controlling ELA manuals refer to “patents,” “known patents,” and “patented item or process,” but never refer to patent ap- plications. (See, e.g., CX 204 at 4; CX 203A at 622a 11; JX 54 at 9-10; see supra F. 633-38). In addition, there was testimony from G. Kelley that EIA’s definition of the word “patent” did not include patent applications. (G. Kelley, Tr. 2686-87; 2695-97). 773. The contemporaneous documents show that the JEDEC patent policy encouraged the disclosure of patents, not patent applications or intentions to file patent applications. The minutes of the February 2000 meeting of the JEDEC Board of Directors state that dis- closure of patent applications is “not required under JEDEC bylaws.” (RX 1570 at 13). A few days after the meeting, JEDEC Secretary Ken McGhee explained to the members of JEDEC 42.4 that the disclosure of patent applications went “one step beyond” the policy and that even disclosure of patents could not be re- quired: “Disclosure of patents is a very big issue for Committee members and cannot be required of members at meetings.” (RX 1582 at 1). 774. The most that she record evidence can be understood to support is an argument that presenters were expected to disclose patent applications that related to technologies they were asking that JEDEC standardize. (RX 507 at 15; McGrath, Tr. 9273-74). 3. Members Were Encouraged To Disclose Patents That Were Essential To Practice the Standard 775. Disclosure was only encouraged of patents that were “essential” to a standard, i.e., those patents that were necessary for the 623a manufacture or use of a product that complied with the standard. (CX 203A at 11 (standards that “call for the use of patented items); JX 54 at 9 (standards “that call for the exclusive use of a patented item or process”); CX 208 at 19 (standards that “require the use of pa- tented items”); RX 742 at 1 (“known essential patents”)). 776. Hewlett-Packard representative Thomas Landgraf testified that he understood the patent policy to involve disclosure if “the standard required someone else’s idea to be used . . . in order for it to operate.” (Landgraf, Tr. 1695). 777. JC 42.3 Chair and IBM representative Gordon Kelley testified that the disclosure duty was triggered by a patent claim that “reads on or applies” to the standard, meaning that “if you exercise the design or production of the component that was being standardized [it] would require use of the patent.” (G. Kelley, Tr. 2706-07). 778. Another IBM JEDEC representative, Mark Kellogg, testified that his understanding was that “you have to disclose intellectual property that reads on the standard.” (Kellogg, Tr. 5311). Kellogg also stated that “[s]ome- times we disclose intellectual property that doesn’t [read on the standard} and one would question why. It adds confusion.” (Kellogg, Tr. 5311). 4. There Was No Duty To Search for Intellectual Property Issues 779. It was undisputed at trial that JEDEC representatives had no obligation to do any 624a investigation, research or inquiry of their own company or its lawyers regarding possible intellectual property interests relating to JEDEC work. (Rhoden, Tr. 623-24; G. Kelley, Tr. 2451, 2700-01; J. Kelly, Tr. 1966-68; CX 2057 at 189, 193 (Meyer, Dep.); see also RX 1712 at 8 (no duty to search under ANSI Guidelines)). 5. The Policy was Limited To Partici- pants With Actual Knowledge 780. The patent policy applied only to people with “actual knowledge.” (Rhoden, Tr. 623-24). JEDEC Board Chairman Desi Rhoden testified that the disclosure obligations under the JEDEC patent policy were “triggered by the actual knowledge of the people that were involved, and that would not be just the representative at the meeting, but all of the people that would have been involved in... The knowledge of the people that are involved in the process.” (Rhoden, Tr. 624; J. Kelly, Tr. 1970). 781. Rambus’s JEDEC representative, Richard Crisp, testified that during the time that Rambus was a JEDEC member, he: (1) had not seen any Rambus patent application with claims over an SDRAM that used any of the four features at issue here; and (2) did not know one way or the other whether Rambus’s pending patent applications covered JEDEC- compliant SDRAMs using any of those features. (Crisp, Tr. 3540-43; 3461-66). 625a 6. The Patent Policy Did Not Apply Af- ter a Company Withdrew From JEDEC 782. After a company left JEDEC it had no obligations under the patent policy. (See G. Kelley, Tr. 2700-01). 7. If Disclosure Was Made, It Was En- couraged No Later Than the Time of Balloting 783. Consistent with EIA patent policy to encourage early disclosure of relevant patents, early disclosure was encouraged at JEDEC. (J. Kelly, Tr. 1955-56; Williams, Tr. 772, 910-11). 784. The committee ballot was considered the deadline for disclosure. (G. Kelley, Tr. 2707; Grossmeier, Tr. 10945). JC 42.3 Chair G. Kelley testified “[t]he policy at JEDEC was that the disclosure should occur as soon as possible in the discussion of the material and certainly by the time it was balloted.” (G. Kel- ley, Tr. 2702; CX 2057 .at 211 (Meyer, Dep.) (testimony by Siemens JEDEC representative Willi Meyer that although it was “good prac- tice” to notify the committee before balloting, “the ballot was considered the deadline when it should have been done”)). 785. This is consistent with the patent tracking list which asked the committee chair to “resolve patent status prior to (choose one),” followed by a list of events, from presentation to balloting. (CX 34 at 7; CX 711 at 169; JX 27 at 7-8; JX 28 at 15-18). VII. 626a JEDEC 42.3 COMMITTEE MEMBERS WERE NOT MISLED BY RAMBUS ON IS- SUES RELATING TO RAMBUS INTEL- LECTUAL PROPERTY A. JEDEC Committee Leaders and Mem- bers Were Fully Aware of Rambus’s Patents With Respect To Features Be- ing Considered for Incorporation into JEDEC Standards 1. Crisp Did Not Mislead JEDEC At the May 1992 Committee Meeting Regarding Rambus’s Intent To Seek Patent Rights Over Certain SDRAM Features a. IBM and Siemens 786. In the spring of 1992, IBM and Siemens (whose former semiconductor division is now called Infineon Technologies) weie cooperating on a joint venture to develop and produce a new DRAM design. (G. Kelley, Tr. 2532; CX 2088 at 277-78, 310 (Meyer, Infineon Trial Tr.)). 787. Both the Siemens JEDEC represen- tative, Willi Meyer, and the IBM JEDEC representative, Gordon Kelley, were involved in the Siemens/IBM DRAM development ef- forts in the spring of 1992. (G. Kelley, Tr. 2620- 21). The efforts included a consideration of the Ramv.~s technology. (G. Kelley, Tr. 2627). 788. In March 1992, G. Kelley prepared a memorandum regarding Rambus. (RX 240 at 1). G. Kelley’s March 19, 1992 memorandum refefs to “unique (and probably patented) Rambus protocol” and “special Microprocessor 627a and DRAM interface (other than industry standard).” (RX 240 at 1). G. Kelley's memo- randum also states that he had asked an IBM in-house lawyer “to get me a copy of Rambus patents.” (RX 240 at 1). 789. On April 23, 1992, G. Kelley attended a presentation at IBM by Rambus founder Mike Farmwald and Rambus executive David Mooring. (G. Kelley, Tr. 2631; RX 273 at 1). 790. According to handwritten notes of the April 23, 1992 Rambus/IBM meeting a Rambus representative stated at the meeting that Rambus intended to obtain “license fee + royalties from IC company.” (CX 2355 at 1). The notes also state that Rambus “want[s] to set industry std.” (CX 2355 at 1). 791. In April 1992, Gordon Kelley prepared a “Rambus Assessment” along with two other IBM employees, Dr. Beilstein and Michael Clinton. (RX 279 at 1). The “Rambus As- sessment” is dated April 24, 1992, the day after Kelley had attended the presentation by Rambus. (RX 279 at 1; G. Kelley, Tr. at 2635). 792. The April 1992 “Rambus Assessment” that G. Kelley co-authored refers to “Unique Rambus Features/Attributes.” (RX 279 at 1). The “Rambus Assessment” also states that “Intel is Rambus licensee” and notes a “potential future Intel memory strategy to marry . . . 586/686 processor with Rambus protocol to corner PC/notebook market with state of the art performance.” (RX 279 at 4). 793. The “Rambus Assessment” states that “Rambus can work technically” and notes “the 628a risk is whether it becomes a standard for the low end — bulk of DRAM bit volume — and that it provides a simple low end solution for anyone to get into the PC business.” (RX 279 at 8). 794. The “Rambus Assessment” states that “lilf Rambus fails to become standard, then it is business as usual for BTV [the acronym for IBM’s Burlington, Vermont operations] and the SDRAM has a significant chance of being standard.” (RX 279 at 7). 795. It is apparent from G. Kelley’s March and April 1992 analyses of Rambus that he was aware of Rambus technology, and its prospects for success in the spring of 1992. (See RX 279; RX 273; RX 240). 796. One week after G. Kelley finalized the April 24, 1992 “Rambus Assessment,” he participated in a conference call with Siemens JEDEC representative Willi Meyer. The call included a discussion of Rambus. (RX 286A at 1). 797. Meyer prepared an April 30, 1992 memorandum reflecting the conference call which states in part: “Rambus: Visited key in- house IBM users. IBM is still keeping its eye on RAMBUS. RAMBUS has announced a claim against Samsung for USD 10 million due to the similarity of the SDRAM with the RAMBUS storage device architecture. For that reason, IBM is seriously considering to preemptively obtain a license as soon as possible (at an introductory price).” (RX 286A at 2; CX 2088 at 317-19 (Meyer, Infineon Trial Tr.)). 629a 798. Meyer testified that during the con- ference call, Gordon Kelley had _ provided the Rambus-related information contained in Meyer’s April 30, 1992 memorandum. (RX 286A; CX 2088 at 317-19 (Meyer, Infineon Trial Tr.)). 799. Siemens executive Martin Peisl sim- ilarly testified that the information regarding Rambus that is contained in Meyer’s April 30, 1992 memorandum “seems to be information coming from IBM or Gordon Kelley.” (Peis}, Tr. 4517). 800. G. Kelley and Meyer were both aware, as of April 30, 1992, of a possibility that Rambus might assert some intellectual prop- erty claims “due to the similarity of the SDRAM with the RAMBUS storage device architecture.” (RX 286A at 2). 801. An April 16, 1992 IBM memorandum referenced the fact that an-in house lawyer, J. Walter, had been asked to review and com- ment upon Rambus related intellectual prop- erty issues. (RX 272 at 2). 802. Meyer also wrote a separate memo- randum dated April 30, 1992 that stated in part that “{t]he original idea behind the SDRAM is based on the basic principle of a simple pulse input (IBM toggle pin) and the complex RAMBUS structure.” (RX 285A at 5). This memorandum also demonstrates Meyer’s awareness of similarities between the SDRAM device and the “RAMBUS structure.” (See RX 285A at 5). 630a 803. On May 6, 1992, Meyer prepared a chart showing the “Pros” and “Cons” of “Sync DRAM,” “Rambus DRAM,” and “Cached DRAM.” (RX 289 at 1). 804. In his May 6, 1992 “Pros” and “Cons” chart, Meyer stated that the “2-bank” synchronous DRAM “may fall under Rambus patents.” (RX 289 at 1). Meyer testified that he did not think Rambus had patents at the time covering 2-bank synchronous DRAM but that there was the potential it could obtain such patents. (CX 2089 at 44 (Meyer, Infineon Trial Tr.)). 805. Meyer testified that at the time, he thought there was a potential that Rambus would obtain patents covering two-bank features that may be included in SDRAMs. (CX 2089 at 44 (Meyer, Infineon Trial Tr.)). 806. Meyer also testified that in 1992, “we were absolutely sure that Rambus was trying to get patents.” (CX 2088 at 75 (Meyer, Infineon Trial Tr.)). b. The May 1992 JC 42.3 Meeting 807. On May 7, 1992, Meyer and G. Kelley attended a JC 42.3 subcommittee meeting in New Orleans, Louisiana. (CX 34). 808. The May 1992 meeting was Richard Crisp’s first formal JC 42.3 subcommittee meeting as Rambus’s JEDEC representative, (CX 34 at 1; Crisp, Tr. 2929), although he had attended a JC 42.3 task group meeting on April 9 and 10, 1992. (Crisp, Tr. 3009-10). 63la 809. At the meeting, Gordon Kelley asked Crisp if he would like to comment on whether Rambus had patents or potential patents covering two bank design. Crisp declined to comment. (CX €73 at 1; CX 2089 at 136-37 (Meyer, Infineon ‘lrial Tr.)). 810. Howard Sussman of NEC commented to the group that he had seen a copy of a Rambus’s foreign patent application. (CX 2092 at 128 (Crisp, Infineon Trial Tr.)). According to Crisp, the essence of the comment was that Sussman had obtained a copy of the appli- cation from the foreign patent office, had read it and concluded that it should not be a concern for the JEDEC standardization effort because, according to Sussman, “many, many claims .. . are anticipated by prior art.” (CX 73 at 1). 811. The witnesses who testified about the May 1992 exchange between G. Kelley and Crisp were Kelley, Crisp, Siemens represen- tative Willi Meyer, IBM representative Mark Kellogg and Intel representative Samuel Calvin. (G. Kelley, Tr. 2662; Crisp, Tr. 3066; Kellogg, Tr. 5055-56; Calvin, Tr. 1066-69; CX 2089 at 169, 136 (Meyer, Infineon Trial Tr.)). 812. Calvin, the Intel representative, testified that he recalls that at the JEDEC meeting, Crisp was asked if he cared to comment about whether Rambus had patents or intellectual property that covered a par- ticular subject. (Calvin, Tr. 1068-69). Calvin recalls that Crisp declined to comment. (Calvin, Tr. 1068-70). 632a 813. Meyer, who was Siemens’s primary JEDEC representative between 1992 and 1996, testified that at the May 1992 meeting, he asked G. Kelley to ask Crisp “whether [he] would like to comment” about whether Ram- bus had patents relating to the use of two banks in a DRAM. (CX 2089 at 133-34 (Meyer, Infineon Trial Tr.); CX 2057 at 66 (Meyer, Infineon Dep.)). 814. Meyer testified that “[t]he way how Kelley formulated the question was: Do you want to give a comment on this?” (CX 2088 at 136, 164 (Meyer, Infineon Trial Tr.)). Meyer testified that Crisp “just shook his head.” (CX 2088 at 136, 164 (Meyer, Infineon Trial Tr.)). 815. Meyer’s trip report of the May 1992 meeting states in part: “Siemens and Philips concerned about patent situation with regard to Rambus and Motorola. No comments given.” (RX 297 at 5). 816. Crisp sent an email on May 6, 1992 that described his exchange with Kelley in this manner: “Siemens expressed concern over potential Rambus Patents covering designs. Gordon Kelley of IBM asked me if we would comment which I declined.” (CX 673 at 1). 817. Gordon Kelley testified that Siemens representative Willi Meyer had raised an “issue of concern with Rambus and Rambus patents” at the May 1992 meeting. (G. Kelley, Tr. 2662). Kelley recalls that Meyer had asked Crisp if he knew whether Rambus “had patentable material on the concept of the synchronous DRAM.” (G. Kelley, Tr. 2543). 633a Kelley recalls that Crisp declined to comment in response to that question. (G. Kelley, Tr. 2662). 818. G. Kelley testified that he could not recall whether he had said anything at the May 1992 JEDEC meeting about possible Rambus patent claims. (G. Kelley, Tr. 2544). 819. G. Kelley also testified that a “no comment” from a JEDEC member in response to a question about intellectual property is “unusual” and “surprising” and “is notification to the committee that there should be a concern... .” (G. Kelley, T:. 2579). 820. IBM representative Mark Kellogg prepared contemporaneous handwritten notes at the May 1992 JEDEC meeting that refer to the concerns Meyer had raised. (RX 290 at 3). Kellogg’s notes state: “Siemens: Kernel of chip similar to Rambus. Patent concerns? (No Rambus comments).” (RX 290 at 3). 821. Kellogg testified that when he used the phrase “kernel of the chip” in his notes, he was referring to Meyer’s concern that “the funda- mental architecture of the SDRAM device” was “similar to Rambus.” (Kellogg, Tr. 5324). 822.Kellogg testified that he took his notes at the May 1992 meeting in part to act as “a log of events” and “also to initiate action on my part or the part of others.” He said that this discussion “would have been a flag, which is why I wrote it down.” (Kellogg, Tr. 5322), 823. Kellogg testified that he considered the discussion a “flag” because JEDEC members 634a were “describing possible intellectual property concerns which may affect our decision process for synchronous DRAM.” He testified that “Itlhat is a concern” and that “[t]he lack of response by Rambus is also a concern.” (Kel- logg, Tr. 5323). 824. The chairman of the meeting, Gordon Kelley, testified that prior to the May 1992 meeting Crisp had spoken to him about the possibility: of Rambus scheduling a_ presen- tation concerning DRAM design. (G. Kelley, Tr. 2553). G. Kelley also testified that he had refused to allow Rambus to present its technology for standardization at JEDEC on this and another occasion, even though he had never barred any other member company from presenting its technology. (G. Kelley, Tr. 2649- 58). 825. G. Kelley had a clear conflict of interest; he made and enforced his unilateral decision to bar Rambus from presenting its technology two weeks after he wrote in an internal company document that his company’s interests were threatened by the Rambus technology and were best served if Rambus “fails to become standard.” (RX 279 at 7). He did not disclose this conflict to Crisp or to anyone else. (G. Kelley, Tr. 2656-57). c. PCT Application 826. A “PCT” application is an international patent application filed pursuant to the Patent Cooperation Treaty. (CX 1454 at 1). Rambus had filed a PCT application on April 16, 1991 that was identical in all material respects to 635a the ‘898 application it had filed at the same time in the U.S. (Fliesler, Tr. 8811; see CX 1451; CX 1454). 827. Pursuant to the procedures governing applications filed under the Patent Coopera- tion Treaty, Rambus’s PCT application became publicly available as of October 31, 1991. (CX 1454 at 1; First Set of Stipulations, Stip. 8). 828. NEC’s Sussman testified that he did not find anything in the PCT application that “related to the work ongoing at JEDEC.” (Sussman, Tr. 1445). d. After the May 1992 JC-42.3 Meeting 829. Roughly one week after the May 1992 meeting, Siemens’s JEDEC representative Willi Meyer also reported that: “Siemens and Philips: concerned about patent situation with regard to RAMBUS and MOTOROLA. No comments given. Motorola patents have priority over RAMBUS’. RAMBUS patents filed but pending.” (RX 297 at 5). 830. In June 1992, G. Kelley gave a presentation about Rambus to a group of about 30 engineers. Half of [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0834%3A02. Public record. Not legal advice.