NVIDIA Might Get Banned Following Rambus Victory

For reasons too complex to go into here, the PTO Reexams are and always have been totally irrelevant.

The fact here is that NVidia lost, an Rambus won ... in fact, Rambus won much more than is apparent on the surface of it.

Those who have followed the Rambus case in detail for 11 years now know that the Rambus "Barth" patents (a group which includes the 3 patents found valid and infringed by the ITC) ARE, with 90%+ or so certainty, in fact valid and infringed.

The "Ware" patents (the 2 found invalid) are weaker and their status is yet to be determined, but the ITC finding that they are invalid is also weak; these patents probably have a 50% chance of ultimately being found valid.

With respect to NVidia, they lost, period, and will be forced, in the relatively near future, to license and pay royalties for their use of Rambus' technology. A bigger issue for them, not discussed in this article, is a full decade of infringing the Rambus "Farmwald & Horowitz" patents, which has run up a cumulative liability that is probably in the range of $1 billion or so. That case is currently being prosecuted separately in a US Federal District Court, and is at least a year from resolution.

But the larger issue is that the Rambus "Barth" patents ARE valid. These don't just cover NVidia, they cover substantially ALL PC memory and controllers (graphics chips and chipsets, in particular, included). For a decade, the industry thought that Rambus' patents covering memory would expire in April, 2010 (the expiration date of the Farmwald & Horowitz patents).

But the real story here is that in the "Barth" patent family, Rambus really has patents that cover almost all memory for another 5 to 6 years yet.

[And we should add that IF the "Ware" patent family ends up being valid, that date goes out to 2020.]

Where do we go from here: Courts trump the PTO, but the final arbitrator of all of this is a special appeals court for patents called the CAFC, which trumps everything except the US Supreme Court (which will never hear any of these cases, there are NO constitutional issues). Rambus and NVidia will BOTH appeal this ruling to the full ITC (Rambus will appeal the 2 patents found invalid, NVidia will appeal the 3 patents found valid). The ITC will hear the the case and render a decision in 2 to 6 months. Most likely, they rule as the ALJ did yesterday, but Rambus has a FAR better chance of having some or all of the Ware patents found valid than NVidia does of having the Barth patents found invalid. REGARDLESS, the loser (or, very likely, both parties) will appeal the ITC ruling to the CAFC, they will hear the case likely early in 2011 and we will have an absolutely final ruling in late 2011.

One other thing to note: The ITC will soon issue an Exclusion Order banning the importation of NVidia infringing products. NVidia will ask that this be stayed while the case is on appeal. THEY MAY OR MAY NOT GET THEIR STAY; quite often, when the outcome of the case does not seem to be in much doubt, the full ITC and the CAFC REFUSE to stay the exclusion order during the appeal. But this varies on a case-by-case basis and remains to be seen. Also, note that the original case was not just against NVidia but named much of the entire PC industry, including HP, Asus, Gigabyte, MSI, Biostar, EVGA and many other firms that make products using NVidia components.

Your very first statement is so full of errors, I have to wonder aboutthe rest of the article:

"Rambus lost a fight against the GPU maker back in late October, when the U.S. Patent Office decided that the former's claims that NVIDIA had violated its patents were groundless. "

The patent office made no determination as to whether or not Nvidia violated Rambus' patents. What they did was initially reject the claims of Rambus' patents, which is standard practice for the PTO when reviewing patents. Until the review is final, neither side can really claim victory, though Nvidia did.

In the meantime, the initial rejections are subject to review, and some have already been decided in Rambus' favor.

As to Nvidia's claims about the ITC, they are claiming that two patents were decided in their favor, while ignoring that three were not. In fact, Nvidia needs to win on ALL of the patents. Rambus only needs to win on one claim of one patent.

So right now, Rambus is in the driver's seat.

Lost a fight? Even the score?There is this ITC suit. that will have a ruling by Feb 2010. And USPTO thing is a fight without result in 6 years. Before 2015, USPTO would be non-factor for what's going on in ITC. But the patents expire in 2015 anyway.

I am sorry to tell all who read this, but Barry Watzman was found dead in his home 2 weeks ago (May 2010). I am his sister-in-law. Please respect my sister and her son's privacy and pray for them. Barry was a very intelligent man and meant well.

http://www.aolnews.com/money/article/rambus-investor-barry-watzman-commits-suicide/19502259