The Founding of an Empire?

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What Came First, The Invention or the Standard?

Essentially, Rambus is claiming to own several processes that are in common use throughout the industry, and earlier this year, Rambus filed a lawsuit alleging that Hitachi had not responded to complaints about use of patented technology in non-RDRAM-compatible products. Indeed, a story from Semiconductor Business News indicated that though Rambus had licensed its technology to Hitachi to develop DRDRAM devices, Hitachi was not ‘playing ball’. In this article, one quote attributed to Rambus CEO Geoff Tate said “However, to date Hitachi has not produced or marketed any such RDRAM-compatible products”, which seems to indicate that the suit was actually intended as a sort of punitive action.

One of the issues being hotly debated is the practice used by Rambus to list patents as being continuations of previously abandoned applications (as proof of ‘prior art’), creating an even more tangled web to try and work through. Though it is possible to search the USPTO database for all patents issued since 1979, there does not appear to be any simple method for obtaining the contents of abandoned applications. Following is an excerpt from the Hitachi deposition in response to the Rambus lawsuit:

93. A “continuation” is a later application for a patent, usually filed by the same inventor or inventors and containing the same disclosures. If the continuation is filed during the pendency of a “parent” application and makes reference to the parent application, and does not add new matter, then the continuation can be entitled to the benefit of the parent’s filing date.
94. A “divisional” is a later patent application for a separate invention carved out of a prior application. Like a continuation application, a divisional application, if filed during the pendency of a parent application and not adding new matter, can be entitled to the benefit of the filing date of the prior application out of which it was divided.
95. Rambus eventually abandoned the Initial Application. Before doing so, however, it filed at least one continuation and various divisional applications in 1992, and then filed numerous additional continuation and divisional applications in subsequent years, including in the years 1994, 1995, 1996, 1997, 1998, and 1999. Those continuations and divisionals, which led to and include the Patents in Suit, each assert the benefit of the filing date of the Initial Application.

Hitachi’s assertions in this deposition were that Rambus had filed for a patent in 1990, then joined JEDEC in 1991 without disclosing the pending patent, against JEDEC membership guidelines. During the next four years, JEDEC members engaged in discussions about SDRAM, and how to ensure compatibility through common implementations. This information, Hitachi alleged, was used by Rambus to file continuations and divisionals against the original patents (again, without disclosing this information to JEDEC), thus guaranteeing that their patents would be violated by JEDEC members in their SDRAM implementations.

The full Hitachi deposition can be found at The Register’s web site.

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