Rambus the stock lives somewhere ...in Bizarro world. Yesterday it was down big in a positive market, today it is up big in negative market. Apparently people are placing their bets on an injunction ruling before August. Good luck with that!
I updated the entries in the scorecard table to include links to the actual Patent Office filings as I obtained them. For those of you worried about viruses and other cooties download them yourself if you like.
But first, a word about interpartes reexam.
There was some interesting investor literature circulated a few months back by Tessera suggesting that interpartes reexams aren’t so serious after all, because (they claim) the PTO just takes so long to determine these things there is nothing to fear. The patents are all valid and enforceable they say while the reexam is going on.
That may be true, but that’s like saying a prisoner on death row is still alive and kicking. Just because the PTO may take its time to rule doesn’t mean you aren’t going to get the ax in the end. What they forget to tell you are a couple of things: (1) the BPAI has something like a 95% plus rejection rate for patent owners who appeal the Examiner, so most everyone capitulates rather than waste $$ and time in the PTO; (2) the longer the patent takes to re-issue with a new certificate, the greater the potential damages the patent owner forfeits as a result of intervening rights. So, sure, you can delay the PTO all you want if you don’t mind potentially losing all those infringement damages prior to the date the PTO re-births the patent for you.
Oh, and by the way, if you happened to get lucky and file your infringement action before the reexam started the Court might not stop your case dead in its tracks. But don’t think about filing a case while your case is in reexam purgatory, your chances are effectively … nill. Even the ED Texas Courts are suddenly realizing it makes no sense to be hearing cases when a more qualified technical body such as the PTO can first tell you if the patent is valid or not.
I note also that these comments were made by inhouse folks at Tessera (I don’t think any outside attorney concerned about his malpractice insurance would make these kinds of fanciful claims) and further that Tessera dumped one of their patents in the ITC litigation (6,458,681) in May voluntarily shortly a reexamination was filed. Thus the suggestion that interpartes reexam is nothing to worry about is just plain silly in my opinion, and it seems like the marketplace sure doesn’t believe that fantasy either.
In any event, back to Rambus, and round 2 of their reexam
The second issue the Examiner considered was related to the first, namely, whether the claims of the ‘020 patent, by virtue of reciting “operation codes” and “block size information” were only described as part of a “packet” and thus must be part of a “multiplexed” bus. This was just an attempt to get a second bite at the apple, and again they apparently reached too far.
This argument was made by Samsung for claims 1, 2, 5-7, 9-19, 21, 25 – 35, 37-38, 41-42 and 44-49 of the ‘020 patent.
The Examiner shot them down with substantially the same analysis that he used before: the language is not in the claims, so you lose. He notes that there is nothing categorical in the specification that mandates a multiplexed bus. Once again he didn’t resort to any fancy appendices, charts or expert testimony (see a pattern here?)
Rambus should win this 2nd round of the reexamination as well, so score is 2 - 0. Tomorrow we look at Samsung’s argument that there is no support in the specification for a “…second plurality of output drivers.”