Breaking News -
General:
Boston Law Firm And Technology
Groups Team Up
Boston-based law firm Lucash, Gesmer & Updegrove, LLP announced that it had
filed a "friend of the court" brief on behalf of six major standard setting
organizations (SDOs) in an effort to influence the outcome of Rambus v.
Infineon, one of the most closely watched cases in the technology industry.
The organizations supporting the brief boast more than 850 members, including
the great majority of the most prominent technology companies in the
world.
Rambus v. Infineon has been followed with particular interest by the
thousands
of companies that participate in technical standard setting, because the trial
court had concluded that Rambus, at the time a member of the Joint Electron
Devices Engineering Council (JEDEC), had committed fraud by failing to
disclose patent rights which it later asserted against adopters of a JEDEC
memory standard. Infineon was one such adopter, and when it refused to pay
royalties, Rambus sued.
Infineon brought counterclaims, including one which alleged that Rambus had
not only deliberately failed to disclose its patents, but that it had amended
those patents to track the JEDEC standard as it developed. The trial court
believed Infineon, and awarded it more than $7 million in costs and damages,
based on the behavior of Rambus before and during the course of the
litigation.
However, on appeal, a three-judge panel of the United States Court of
Appeals
of the Federal Circuit -- which has jurisdiction over all appeals from U.S.
patent cases -- held in a non-unanimous opinion on January 29, 2003, that
Rambus had not committed fraud. On February 26, Infineon filed a motion
petitioning the entire court to rehear the appeal.
"When the Appeals Court's decision was announced, many were shocked, since
the
trial record seemed to indicate that even Rambus had believed that it had
'gamed' the system," said Andrew Updegrove, a partner with Lucash, Gesmer &
Updegrove, who wrote the brief.
"Moreover, the narrow analysis that the court applied in reviewing the
infringement claims leads some to fear that participating in standard setting
will now be more uncertain and difficult. Due to the many standard setting
clients which we represent, we thought that it was important for the Court to
better understand the consequences of its decision."
The brief filed by Updegrove's law firm seeks to educate the court on the
impact that the existing decision could have on the entire standard setting
process.
In order to demonstrate the seriousness of the situation, Updegrove's firm
contacted its clients and other prominent SDOs, and assembled the group in
less than a week. "We thought that the issues at hand were important enough
that we decided to do this work on a pro bono basis," he said. "This made it
much easier to pull such a comprehensive group together in a short time
frame."
David Schell, the President of Open GIS Consortium, one of the
participating
SDOs, stated, "It's difficult to underestimate the importance of standards in
the modern world -- they underlay all aspects of technology. Since standard
setting is an entirely voluntary process, it's essential that the integrity of
the system not be compromised, and that those who base their strategic
decisions on the resulting standards know that what they agree on will be
upheld by the courts. What is so destructive about the decision to overturn
Rambus is that the voluntary standards process has become the de facto norm
for creation of orderly technology markets. Challenging the basic premises of
trust and fair play goes far beyond the righting of a dispute between two
companies -- it subverts the practical market assumptions that enable the IT
industry to continue to function authentically.
"Lucash, Gesmer and Updegrove, in filing its brief, has provided the
technology community with a valuable service. Legal practice, particularly in
the area of intellectual property rights, needs to evolve in step with the
realities of rapid technology change and the consequent evolution of modern
business practice." The 230 member Open GIS Consortium is based in Wayland,
Mass.
The six participating SDOs include IMS Global Learning Consortium, Inc. (www.imsglobal.org/), OpenGIS Consortium
(www.imsglobal.org/), PCI Industrial
Computer Manufacturers Group (www.picmg.org/), and The Open Group (www.opengroup.org).
For more information about the Rambus v. Infineon case, see
www.consortiuminfo.org/laws/#Rambus and
www.consortiuminfo.org/bulletins/#editorial
For the text of the Amicus Brief, see
www.consortiuminfo.org/laws/#rambus1.
About Lucash, Gesmer & Updegrove, LLP
Lucash, Gesmer & Updegrove, LLP is a Boston law firm that represents
technology clients from the newest startups to Fortune 500 companies, venture
capital funds and major universities. The firm's services include
representation in the areas of business formation, venture capital and
financing, mergers and acquisitions, intellectual property, Internet and
electronic commerce, securities law, litigation, consortium and standard
setting, employment law, licensing and taxation. The firm has helped form
more than 45 standard setting consortia, including some of the largest and
most influential such organizations in the world. In 2002, it launched
www.consortiuminfo.org.
Web site:
www.lgu.com/practice_areas/consortium.shtml
About ConsortiumInfo.org
ConsortiumInfo.org is the most detailed and comprehensive resource on the
Internet on the topics of standard setting and consortia. The thousands of
standards that are maintained by consortia today are what allow the myriad
independent technical elements of our modern, technological world to
interoperate. The site provides everything anyone would want to know about
forming a consortium, participating in a consortium, or understanding standard
setting.
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