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But what if you are caught?

A precedent for the current situation was set in 1996 when Dell Computer failed to disclose patents relating to a standard setting organization similar to JEDEC. In this case, the Federal Trade Commission issued an antitrust complaint against Dell accompanied by a consent decree and order resolving the matter. The outcome was that Dell was prohibited to enforce the patents since Dell had failed to disclose them (In re Dell Computer Corp., 121 F.T.C. 616, FTC LEXIS 291, May 20 1996).

In short, if you are caught in the act, none of your patents will do you any good.

But if you don’t want to get caught?

The Dell case can be considered an eye opener for anyone trying to sneak in patents targeting the abuse of industry standards. However, there is still a chance of getting away with murder. The easiest way is to leave the organization spied upon, on the way out, flood them with a confusing number of patents pending that do not relate to the organization and, nonchalantly, forget to disclose the relevant applications. Since nobody else is aware of the patents pending, one can afford to wait a few years until the ideas covered in the applications have become industry standard and, then, use the patents to extract exorbitant royalties from the manufacturers.

In early June 1996 (compare to the Dell consent decree), Rambus announced it was leaving JEDEC. The announcement was made in a letter listing certain Rambus patents already issued and stating that: Rambus has also applied for a number of additional patents in order to protect Rambus technology without further disclosing the nature of the applications pending or disclosing any information of applications claiming priority to the Initial Application.

Interestingly enough none of the patents disclosed by Rambus relates to the SDRAM or DDR DRAM standards. More interestingly, Rambus specifically failed to disclose a patent issued prior to the date of the letter in which dual clock edge operation was targeted. Coincidentally, dual clock edge operation had been the subject of the work discussed at JEDEC in the months preceding Rambus’ leaving JEDEC and is a part of the current DDR DRAM standard.

Paragraph 65 of the suit filed by Micron Technologies aginst Rambus states:

65. By participating in the JEDEC standards development process without disclosing its pending patent applications relating to features that it now claims its patents cover, and by revising its applications and later filing related applications to attempt to make its patent portfolio cover all products manufactured in accordance with the JEDEC standards, Rambus intentionally misled JEDEC members, who promulgated standards that Rambus now claims are covered by its patents.

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