Here is the Initial Decision
http://www.ftc.gov/os/adjpro/d9302/040223initialdecision.pdf (Warning
19Megabytes). The testimony was discredited by the ALJ because
contemporaneous documents did not support the testimony. Also Gordon
Kelley was shown to have a conflict of interest. Some excerpts below.
756. There was conficting testimony regarding what should trigger
disclosure. For
example IC 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)ometimes we disclose
intellectual property that doesn
(read on the standard) and one would question why. It adds confsion."
(Kellogg, Tr. 5311).
769. The contemporaneous correspondence also shows that disclosure was
voluntary.
(RX 669 at 3 (EIA, on behalf of JEDEC, told the FTC in a January 22,
1996 letter that it
encourage(s) 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 members
that the EIA "encourage(s) early voluntary disclosure of any known
essential patents ); RX 1585
at 1 (statement in JEDEC Secretary s 2/11/00 email that " (d)isclosure
of patents is a very big
issue for Commttee 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 property tfom their companies.
(JX 15 at 6; RX 420 at 2;
JX 18 at 8; Wiggers, Tr. 10592-94; see supra F. 691-700).
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 Ram bus
scheduling a presentation
concerning DRA 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 tfom
presenting its
technology. (G. Kelley, Tr. 2649-58).
825. G. Kelley had a clear confict of interest; he made and enforced
his unilateral
decision to bar Rambus tfom 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 ifRambus "fails to become standard." (R 279 at 7). He
did not disclose this
confict to Crisp or to anyone else. (G. Kelley, Tr. 2656-57).
