The Cartel has gained no advantages via the CAFC decision. Different cases, different issues. Kramer and McBride at the AT have already said that spoliation will play little if any role. The AT case is about the conduct of the cartel, not Rambus.
I believe that Hynix and Micron will be very lucky to settle, and any settlement will on Rambus' terms. Facts are sometimes negotiable. Impressions are not. Imagine a jury's impression of the cartel after learning of all the illegal activity below. It's not even a close call in my view - Rambus wins convincingly, if Hynix and/or Micron are foolish enough to let it get that far.
Exh.73 (Sadler Depo.Exh.567). Dataquest Tactical Memories Newsletters, stating that "no two vendors DDRDRAMs are completely compatible with each other's, "and concluding that "we can expect to see RDRAM as the dominant DRAM technology by 2003.")
1545. Intel’s selection of RDRAM was also significant to the PC OEMs. For example, Compaq, one of the largest producer of personal computers in the world stated in a November 1998 Compaq Memory Update states that Compaq was planning to incorporate RDRAM into all Compaq products. (RX 1302 at 8). Jacquelyn Gross, the Director of Memory Procurement at Compaq (Gross, Tr. 2265), testified that Compaq was planning to transition all of its products - desktops, workstations, etc. - to RDRAM at rate higher than it had ever changed memory technologies before. (Gross, Tr. 2324-27). As described in Compaq’s documents, this was the “[m]ost aggressive, cross divisional memory technology shift ever planned at Compaq.” (RX 1302 at 8). This was planned, even though Compaq considered RDRAM to be “revolutionary.” (Gross, Tr. 2327).
1565. In February 1998, for example, Jeff Mailloux of Micron wrote an email to Mr. Tabrizi stating that Mr. Mailloux had spoken to a reporter for an industry publication called EE Times. (RX 1105 at 1). Mr. Mailloux stated that “I told him that at any density and any process that is available in 1999, RDRAM is at least 30 percent cost adder for Micron,” and then encouraged Mr. Tabrizi to call the reporter with Hyundai’s views. (RX 1105 at 1). Mr. Mailloux asked Mr. Tabrizi to “please visit me if I end up in jail. . . .”
1573. During his presentation at the June 1998 “Executive Summit,” Mr. McComas suggested that the DRAM manufacturers share their RDRAM production plans to determine whether there would be a demand-supply imbalance. (Tabrizi, Tr. 9073-74). 1574. After the meeting, Mr. McComas sought Mr. Tabrizi’s advice on how to implement the project of collecting RDRAM production information. (Tabrizi, Tr. 9076). In an August 1998 email to Mr. Tabrizi, Mr. McComas sent a draft message to DRAM manufacturers which stated that “[d]uring the critical production ramp-up phase of Direct Rambus, DRAM vendors will need a constant flow of information to help make wise decisions and to walk the fine line between a pleasant shortage and a disastrous oversupply.” (RX 1232 at 1).
1594. Hyundai marketing executive Farhad Tabrizi admitted at trial that he had told Sang Park, then the President and Chief Operating Officer of Hyundai, that he wanted to “kill” Rambus and force RDRAM from the market. (Tabrizi, Tr. 9105-07). Tabrizi subsequently testified that what he meant by “killing” Rambus was really just “Rambus suicide, [with] me watching on the sideline.” (Tabrizi, Tr. 9109). In his June 2000 email to Mr. Park, however, Mr. Tabrizi had written only of killing: “[i]f Intel does not invest in us, I really want to ask you to let me go back to my old mode of RDRAM killing. I think we were very close to achieving our goal until you said we are absolutely committed to this baby.” (RX 1661 at 2).