Full opinion text
PHASE III (CONDUCT TRIAL) FINDINGS OF FACT AND CONCLUSIONS OF LAW RONALD M. WHYTE, District Judge. This patent/antitrust litigation involves dynamic random access memory (“DRAM”) interface technology patented by Rambus and incorporated into industry-standard DRAMs. The litigation involves four actions. In the first action (Case No. 00-20905 or “Hynix /”), Hynix (then Hyundai Electronics Industries Co., Ltd. and its subsidiaries) sued Rambus for a declaratory judgment regarding various Rambus patents. The court divided the issues into three trial phases. The issue in the first phase concerned whether Ram-bus’s patent infringement counterclaims were barred by the doctrine of unclean hands. On January 5, 2006 the court issued its Findings of Fact and Conclusions of Law on Unclean Hands in favor of Rambus. Hynix Semiconductor Inc. v. Rambus Inc., 591 F.Supp.2d 1038 (N.D.Cal.2006). The second phase concerned Rambus’s allegations that Hynix’s DRAMs infringed several of its patents. On April 26, 2006 a jury returned a verdict that Rambus’s patent claims were infringed and not invalid and that Rambus was entitled to $306,967,272 in damages. The court remitted the jury’s award to $133,584,129, which Rambus accepted. The third phase concerned Hynix’s allegations that Rambus obtained its patents in violation of a disclosure obligation to members of the Joint Electron Device Engineering Council (“JEDEC”), a standards setting organization of which Rambus was a member. Hynix alleged that Rambus committed antitrust and related violations by attempting to assert its patent claims against manufacturers of DRAMs that complied with the JEDEC standard. Hynix also raised a number of defenses to its infringement based on this conduct. On March 26, 2008 a jury returned a verdict in favor of Rambus and against the Manufacturers on their legal claims. With these Findings of Fact and Conclusions of Law on the equitable claims and defenses, all issues in Hynix I have been resolved. As mentioned, there are three other cases involving Rambus, DRAM manufacturers, and Rambus’s conduct at JEDEC. The court and the parties identified the issues regarding Rambus’s conduct common to these cases and Hynix I and the court consolidated those issues for trial. Thus, these findings and conclusions apply equally to these further cases as discussed below. I. THE SCOPE OF THE CONSOLIDATED TRIAL PROCEEDINGS These Findings of Fact and Conclusions of Law are made with respect to the non-jury claims and defenses asserted by the following entities: Hynix in cases C-00-20905 and C-05-00334; Nanya Technology Corp. and Nanya Technology Corp. U.S.A. (“Nanya”) in case C-05-00334; and Micron Technology, Inc., and Micron Semiconductor Products, Inc. (“Micron”) in case C-06-00244. The court refers to these entities collectively as “the Manufacturers.” The court consolidated for trial the claims and defenses delineated in Attachments 1-3 and 5 of the parties’ July 31, 2007 Joint Case Management Statement. The trial, which the court and the parties refer to as “the Conduct Trial,” involved the following claims and defenses: A. Consolidated Issues From Hynix I The Hynix I action commenced on August 29, 2000, when Hyundai Electronics Industries Co., Ltd. and Hyundai Electronics America sought a declaratory judgment of noninfringement, invalidity, and unenforceability with respect to the following Rambus patents: U.S. Patents Nos. 5,915,105, 5,953,263, 5,954,804, 5,995,443, 6,032,214, 6,032,215, 6,034,918, 6,035,365, 6,038,195, 6,067,592, and 6,101,152. Hyundai Electronics Industries Co., Ltd. and Hyundai Electronics America amended their complaint on October 17, 2000 to add Hyundai Electronics U.K., Ltd. and Hyundai Electronics Deutschland GmbH as plaintiffs and to add antitrust and other claims against Rambus. In response, Rambus counterclaimed on February 5, 2001 for infringement of the patents listed above. Hynix filed a Second Amended Complaint on June 11, 2001, which added claims against Rambus for fraud and constructive fraud and reflected the intervening change in the names of the Hynix entities. On November 25, 2002, Rambus amended its counterclaim to add infringement of four additional Rambus patents: U.S. Patents Nos. 6,324,120, 6,378,020, 6,426,916, and 6,452,863. On December 16, 2002, Hynix answered the counterclaims and asserted various affirmative defenses. As discussed, the court held a bench trial in 2005 on Hynix’s unclean hands defense. Hynix contended that Rambus spoliated evidence resulting in prejudice to Hynix. The court rejected Hynix’s allegations of unclean hands. In the second phase of trial, held in' March and April 2006, Rambus elected to assert infringement of certain claims from the '105, '918, '120, '020, '916 and '863 patents. A jury found that the patents-in-suit were not invalid and infringed by Hynix’s DDR SDRAM, GDDR SDRAM, DDR SGRAM, DDR2 SDRAM, GDDR2 SDRAM, DDR3 SDRAM, and GDDR3 SDRAM devices, and that a subset of those claims were also infringed by Hynix’s SDRAM, SGRAM, and Handy SDRAM products. As a result pf the prior two trial phases and the court’s rulings on Rambus’s mptions for summary adjudication, the following claims and defenses involving Hynix were left for trial in the consolidated Conduct Trial: Claim/Defense . Nature Trier of Fact First Claim For Relief ■ Monopolization (15 U.S.C. § 2) Jury Second Claim for Relief_Attempted Monopolization (15 U.S.C. § 2)_Jury Third Claim For Relief Unfair Competition (Cal. Bus. & Prof.Code Court ’_ § 17200)_ Eighth Claim For Relief_Actual Fraud_■ Jury Fifth Affirmative Defense Equitable: Estoppel “relating to Court JEDEC [and] JEDEC’s Disclosure Rules” Sixth Affirmative Defense Equitable Estoppel based on Rambus’s conduct Court during the course of its RDRAM relationship with Hynix Seventh Affirmative Waiver Court Defense__ Ninth Affirmative Defense Prosecution Laches Court Eleventh Affirmative Unclean Hands (not including spoliation) Court Defense B. Consolidated Issues From Case No. 05-00334 The '334 action commenced on January 25, 2005, when Rambus sued Hynix, Infineon, Nanya, and Inotera Memories, Inc. for infringement of the following Rambus patents: U.S. , Patent Nos. 6,182,184, 6,260,097, 6,266,285, 6,314,051, 6,324,120, 6,378,020, 6,426,916,' 6,452,863, 6,493,789, 6,496,897, 6,546,446, 6,564,281, 6,584,037, 6,697,295, 6,71)1,446,' 6,715,020, 6,781,696, and 6,807,598. Inotera Memories, Inc. and Infineon were later dismissed from the case. Rambus filed its First Amended Complaint on June 6, 2005, asserting the same patents as the original January 25, 2005 complaint, but adding the Samsung entities as defendants. Hynix answered the First Amended Complaint and counterclaimed on June 27, 2005. It filed a First Amended Answer and First Amended Counterclaims on February 22, 2007. Nanya answered the First Amended Complaint and counterclaimed on July 18, 2005. Nanya filed a First Amended Answer and First Amended Counterclaims on July 9, 2007. The Hynix and Nanya answers and counterclaims assert equitable defenses including prosecution laches, equitable estoppel, waiver, laches, and claims for declaratory judgment, monopolization, attempted monopolization, fraud, and unfair competition (Cal. Bus. & Prof. Code § 17200). In response to Hynix and Nanya’s answers and counterclaims, Rambus filed its answer and Counterclaims in Reply on July 9, 2007 and July 24, 2007 respectively. In these Counterclaims in Reply, Rambus added infringement claims against, inter alia, DDR3 SDRAM and GDDR4 SDRAM products. On July 30, 2007, Hynix replied to Rambus’s Counterclaims in Reply and filed its own Counterclaims in Reply to the Counterclaims in Reply, alleging the same claims and defenses as its First Amended Answer and First Amended Counterclaims had alleged. Rambus replied to Hynix’s Counterclaims in Reply on August 20, 2007. On December 21, 2007, Nanya replied to Rambus’s Counterclaims in Reply and filed its own Counterclaims in Reply to the Counterclaims in Reply, alleging the same claims and defenses as its First Amended Answer and First Amended Counterclaims had alleged earlier. From these pleadings, the court consolidated for trial the following claims and defenses: 1. Hynix’s Claims and Defenses in C-05-00334 Hynix’s claims and defenses from the '334 action that were tried in the Conduct Trial are: Claim/Defense Nature Trier of Fact First Counterclaim Monopolization (15 U.S.C. § 2) Jury Second Counterclaim Attempted Monopolization (15 U.S.C. § 2) Jury Third Counterclaim Unfair Competition (Cal. Bus. & Prof.Code Court _§ 17200)_ Fourth Counterclaim Fraud Jury Eighth Affirmative Defense Prosecution Laches Court Ninth Affirmative Defense Estoppel regarding JEDEC Court Tenth Affirmative Defense Estoppel regarding “Other DRAM” Court Eleventh Affirmative Waiver Court Defense Twelfth Affirmative Defense Unclean Hands (not including spoliation) Court Thirteenth Affirmative Laches Court Defense 2. Nanya’s Claims and Defenses Nanya’s claims and defenses from the '334 action that were tried in the Conduct Trial are: Claim/Defense Nature Trier of Fact First Counterclaim Monopolization (15 U.S.C. § 2) Jury Second Counterclaim Attempted Monopolization (15 U.S.C. § 2) Jury Third Counterclaim Unfair Competition (Cal. Bus. & Prof.Code Court _§ 17200)_ Fourth Counterclaim Fraud Court Seventh Counterclaim Declaratory Judgment of Unenforceability Court Eighth Affirmative Defense Prosecution Laches Court Ninth Affirmative Defense Estoppel regarding JEDEC Court Eleventh Affirmative Laches Court Defense Twelfth Affirmative Defense Equitable Estoppel Court Thirteenth Affirmative Waiver Court Defense Sixteenth Affirmative Patent Misuse Court Defense C. Consolidated Issues From Case No. 06-00244 The '244 action commenced on January 13, 2006, when Rambus sued Micron for patent infringement. Rambus then filed a Corrected First Amended Complaint on April 18, 2006 alleging infringement of the following Rambus patents: U.S. Patent Nos. 6,182,184, 6,260,097, 6,266,285, 6,314,051, 6,493,789, 6,496,897, 6,546,446, 6,564,281, 6,584,037, 6,697,295, 6,701,446, 6,715,020, 6,781,696, and 6,807,598. Micron answered the Corrected First Amended Complaint and alleged its own Counterclaims on June 2, 2006. It then filed a First Amended Answer and First Amended Counterclaims on May 30, 2007. Micron’s answer and counterclaims include equitable defenses of prosecution laches, equitable estoppel, waiver, implied license, promissory estoppel, laches, and claims for declaratory judgment, monopolization, attempted monopolization, fraud, and unfair competition (Cal. Bus. & Prof. Code § 17200) and fraud. In response to Micron’s answers and counterclaims, Rambus filed its answer and Counterclaims in Reply on July 9, 2007. In these Counterclaims in Reply, Rambus added infringement claims against DDR3 SDRAM products. On December 3, 2007, Micron replied to Rambus’s Counterclaims in Reply and filed its own Counterclaims in Reply to the Counterclaims in Reply, alleging the same claims and defenses as its First Amended Answer and First Amended Counterclaims had alleged. Rambus answered Micron’s Counterclaims in Reply on December 26, 2007. Micron’s claims and defenses from the '244 action that were tried in this phase of the trial of this action are: Claim/Defense Nature Trier of Fact Fifteenth Counterclaim Monopolization and Attempted Monopolization (15 Jury U.S.C. § 2) Eighteenth Counterclaim Fraud Jury Twenty-first Counterclaim Unfair Competition (Cal. Bus. & Prof.Code Court § 17200) First through Fourteenth Declaratory Judgments of Unenforceability Court Counterclaims Ninth Affirmative Defense Implied License Court Thirteenth Affirmative Equitable Estoppel Court Defense Fourteenth Affirmative Waiver Court Defense Sixteenth Affirmative Laches Court Defense II. FINDINGS OF FACT The focus of the Conduct Trial was on the disclosure obligation, if any, that Ram-bus had to JEDEC or its members with respect to possible patent coverage of any DRAM built in accordance with industry standards adopted by JEDEC. The court first makes findings of fact with respect to whether JEDEC members had an expectation that Rambus would disclose any intent it had to seek patent coverage of any standard being proposed at JEDEC. The court then sets forth its factual findings relevant to whether Rambus misled any of the Manufacturers by its conduct at JE-DEC. Finally, the court makes findings relevant to whether Rambus misled any Manufacturer by its dealings with that Manufacturer. A. 1991-1996: Rambus and its Involvement with JEDEC 1. Rambus was founded in 1990 by two professors, Dr. Michael Farmwald and Dr. Mark Horowitz, who had been working together to address the increasing gap between microprocessor performance and DRAM performance. Conduct Trial Transcript at 4079:8-4081:24, 4091:9-4095:10, 5489:23-5490:3 (“Tr__”). 2. On April 18, 1990, Drs. Farmwald and Horowitz filed a patent application, serial number 07/510,898 (“the '898 application”) containing numerous claims relating to their efforts to solve this performance gap problem. Exh. 5131. 3. On April 16, 1991, Rambus filed an international patent application pursuant to the Patent Cooperation Treaty (the “PCT application”). Exh. 3583. The PCT application was published on October 31, 1991. The specification contained in the PCT application was identical to that contained in the '898 application and described, according to Rambus, the inventions that are at issue in Rambus’s infringement claims. Id. 4. Rambus attended its first JEDEC meeting as a guest on December 4-5, 1991. Ex. 3001 at 2. Rambus attended its final JEDEC meeting in December 1995. Tr. 1288:5-9. Rambus formally resigned from JEDEC by letter in June of 1996. Tr. 960:24-961:4. 5. Hynix was found to infringe all the patents Rambus selected to assert in the Hynix I trial. None of those patents were applied for until well after Rambus had resigned from JEDEC. Those patents are: Patent Date of Date of Number_Title_Application_Issue 5,915,105 Integrated Circuit I/O Using a High 11/26/1997 06/22/1999 _Performance Bus Interface_ 6,034,918 Method of operating a Memory 02/19/1999 03/07/2000 Having a Variable Data Output Length and a Programmable _Register_ 6,324,120 B2 Memory Device Having a Variable 02/08/2001 11/27/2001 _Data Output Length_ 6,378,020 B2 System Having Double Data 04/10/2000 04/23/2002 Transfer Rate and Integrated _Circuit Therefor_ 6,426,916 B2 Memory Device Having a Variable 02/27/2001 07/30/2002 Data Output Length and a _Programmable Register_ 6,452,863 B2 Method of Operating a Memory 02/27/2000 09/17/2002 Device Having a Variable Data _Input Length_ 6.Rambus’s patent infringement claims against Hynix, Nanya and Micron in the '334 and '244 eases have been consolidated for trial but trial has not yet occurred. Not one of the patents Rambus has selected for assertion in the consolidated proceeding was applied for until approximately three-and-one-half years after Rambus resigned from JEDEC. Those patents include the '120, '020, '916, and '863 listed above plus the following: Patent Date of Date of Number_Title_Application_Issue 6,182,184 Method of Operating a Memory 02/22/2000 01/30/2001 Device Having a Variable Data _Input Length_ 6,266,285 Method of Operating a Memory 05/08/2000 07/24/2001 _Device Having Write Latency_ 6,314,051 Method of Operating a Memory 07/31/2000 11/06/2001 _Device Having Write Latency_ 6,546,446 Synchronous Memory Device Having 12/21/2001 04/08/2003 _Automatic Precharge_ 6,584,037 Memory Device Which Samples Data 02/04/2002 06/25/2003 _after an Amount of Time Transpires_ 6,751,696 Memory Device Having a 04/13/2001 06/15/2004 _Programmable Register_ B. Background Regarding JEDEC 7. JEDEC is a standards development organization. It develops standards for semiconductor products, including DRAMs. Tr. 444:9-24. 8. JEDEC is a non-profit organization. It formerly existed as part of the Electronic Industry Association (EIA), but it is now an independent organization. Tr. 457:13-^458:3; 619:5-621:18. While Rambus was a member of JEDEC, JEDEC operated as part of the EIA. 9. JEDEC has a board of directors. Below the board of directors, JE-DEC has approximately 50 committees. See Tr. 457:21-460:13. 10. The DRAM standards relevant to this case were developed by one such committee, JC^42.3. See Tr. 539:1-11. 11. JEDEC’s membership comprises numerous companies involved in industries related to semiconductors. It includes manufacturers like Hynix, Micron, Nanya and Samsung. It also includes users like HP, IBM, Intel and Sun. Tr. 446:5-446:25. 12. The JC-42.3 committee met about four to seven times a year. Meetings typically revolved around presentations made by committee members, which triggered discussions about the technology or feature that was the subject of the presentation. See Tr. 460:14-462:13. Meetings also included balloting during which members voted (2/3 majority required) on the contents of the standard being developed. Tr. 463:21-464:9. 13. JEDEC typically prepared minutes for all of its committee meetings. The minutes covered the “highlights” of activity at the meetings and are distributed to every member. Tr. 464:10-24. The minutes strived to reflect the “key decisions” and to “note presentations.” Id. After a meeting, the minutes were distributed to every member. Tr. 464:21-24. A meeting’s minutes were normally approved at the next committee meeting. See, e.g., Ex. 3005 at 4 (agenda item immediately following introductions was corrections and approval of prior meeting minutes). The fidelity of the minutes is significant because on various topics the minutes disagree with the trial testimony of various witnesses. Given that approximately fifteen years have elapsed and the natural biases of many of the witnesses, the court finds that the minutes are a more trustworthy source of evidence regarding what happened at JC-42.3’s meetings than most of the witness testimony. C. JEDEC’s Patent Policy — JEDEC’s Manuals 14. When asked whether JEDEC had a “big rule book,” Desi Rhoden — a JEDEC board member and paid expert witness of the Manufacturers — responded, “Not really. Engineers wouldn’t read it anyway, I suppose.” Tr. 479:25-480:2. 15. Nonetheless, a few manuals existed. When Rambus joined JEDEC in 1991, JEDEC Manual of Organization and Procedure 21-H was in effect. Tr. 595:22-596:5; Ex. 6769. Manual 21-H lacks any rules or guidelines regarding disclosure of patent rights. See Ex. 6769. 16. Thus, while Manual 21-H was in effect, any written patent policy applicable to JEDEC trickled down from EIA’s rules. See Tr., 620:8-622:9. For example, at Richard Crisp’s first JEDEC meeting, the minutes reflect that JC-42.3 chairman Jim Townsend presented “the EIA patent policies.” Ex. 3002 at 5; Tr. 1039:8-1040:6. The “patent policy,” section 3.4 of the EIA Style Manual from August 1990, shown to the attendees was: Avoid requirements in EIA standards that call for the exclusive use of a patented item or process. No program standardization shall refer to a patented item or process unless all of the technical information covered by the patent is known to the formulating committee or working group, and the committee chairman has received a written expression from the patent holder that one of the following conditions prevails: (1) a license shall be made available without charge to applicants desiring to utilize the patent for the purpose of implementing this standard, or (2) a license shall be made available to applicants under reasonable terms and conditions that are demonstrably free of any unfair discrimination. Ex. 3002 at 28; see Tr. 1040:7-1041:15. 17.The EIA patent policy shown at the February 1992 JC-42.3 meeting says nothing about patent applications. It says nothing about a member’s intentions to file for patent coverage. It is unclear whether or how it imposes a duty on members of JEDEC to disclose issued patents, but it does require JEDEC not to include patented items or processes in a standard unless certain licensing conditions pertain. 18. At the September 1993 JC-42.3 meeting, the attendees saw a different patent policy presented. Tr. 506:10-507:16; 509:10-510:6; Ex. 3214 at 10. This “EIA/JEDEC PATENT POLICY SUMMARY” read as follows: Standards that call for the use of a patented item or process may not be considered by a JEDEC committee unless all of the relevant technical information covered by the patent or pending patent is known to the committee, subcommittee, or working group. In addition, the committee Chairperson must have received written notice from the patent holder or applicant that one of the following conditions prevails: (1) a license shall be made available without charge to applicants desiring to utilize the patent for the purpose of implementing this standard(s), or (2) a license shall be made available to applicants under reasonable terms and conditions that are demonstrably free of any unfair discrimination. Ex. 3214 at 12 (emphasis added to note substantive changes); see Tr. 509:10-15. At page 3 of the minutes, this attachment is described as “the policies.” Ex. 3214 at 3. On the actual attachment, the policy is clearly marked “JEDEC Manual No. 21-1 (Draft 3.1).” Ex. 3214 at 12. It also states “This material is a proposed revision of Std. 21-H and has not been approved by JEDEC.” Id. 19. Unlike the EIA policies previously shown at JC-42.3 meetings, this policy mentions patent applications but still does not mention “intentions” to file patent applications. The policy remains focused on the work of the committee and whether it may approve standards including patented technology. The policy does not clearly explain any disclosure mechanism. 20. The “final” version of Manual 21-1 contains language that is much more detailed than the draft summary shown in September 1993. The version of Manual 21-1 in evidence contains three provisions touching on patent disclosure, section 9.3, 9.3.1, and 9.3.2. See Ex. 3215, 19-20; Tr. 517:14-22 (admitting exhibit 3215). 21. The pertinent portion of section 9.3, titled “Reference to Patented Products in EIA Standards,” reads as follows: EIA and JEDEC standard and nonproduct registration (e.g., package outline drawings) that require the use of patented items should be considered with great care. While there is no restriction against drafting a proposed standard in terms that include the use of a patented item* * if technical reasons justify the inclusion, committees should ensure that no program of standardization shall refer to a product on which there is a known patent unless all the relevant technical information covered by the patent is known to the formulating committee [sic] subcommittee, or working group. If the committee determines that the standard requires the use of patented items, then the committee chairperson must receive a written assurance from the organization holding the rights to such patents that a license will be made available without compensation to applicants desiring to implement the standard, or written assurance that a license will be made available to all applicants under reasonable terms and conditions that are demonstrably free if any unfair discrimination. * * For the purpose of this policy, the word “patented” also includes items and processes for which a patent has been applied and may be pending. 22. The pertinent portion of section 9.3.1, titled “Committee Responsibility Concerning Intellectual Property,” reads as follows: The Chairperson of any JEDEC committee, subcommittee, or working group must call to the attention of all those present the requirements contained in the EIA Legal Guides, and call attention to the obligation of all participants to inform the meeting of any knowledge they may have of any patents, or pending patents, that might be involved in the work they are undertaking. Appendix E (Legal Guidelines Summary) provides copies of viewgraphs that should be used at the beginning of the meeting to satisfy this requirement. Additionally, all participants must be asked to read the statement on the back of each EIA Sign-in/Attendance Roster.... 23. Section 9.3.2, “Policy Statements on EIA/JEDEC Sign-in/Attendance Rosters,” states that “[t]he policy statements reproduced on the reverse side of EIA/JEDEC Sign-in/Attendance Rosters shall become an integral part of all Committee and working group meetings’ minutes, and a statement shall be included in the minutes indicating compliance with the foregoing policy.” 24. Finally, Appendix E includes the sample viewgraph that was intended to convey the patent policies to committee meeting attendees. Ex. 3215 at 27. The sample viewgraph is substantially similar to the one shown at the September 1993 meeting and reproduced above in paragraph 18. The sample viewgraph does not mention section 9.3.1’s “obligation of all participants to inform the meeting of any knowledge they may have of any patents, or pending patents, that might be involved in the work they are undertaking.” 25. It is not clear when or whether JEDEC Manual 21-1 was approved. The admitted version of manual 21-1 bears the date “October 1993.” See Ex. 3215 at 1. Mr. Rhoden believed that the seals and appearance of the manual confirm that it was approved by JEDEC by October 1993. Tr. 767:4-768:1. On the other hand, testimony from John Kelly, the president of JE-DEC and general counsel to EIA in 2001, suggested that manual 21-1 was never properly approved by the appropriate governing body. See Tr. 5168:24-5169:221; Docket No. 3573 (Mar. 19, 2008) (lodged video testimony of John Kelly played at trial). 26. It is also not clear when or how JEDEC Manual 21-1 was distributed to JEDEC members. Rambus’s JEDEC representative Richard Crisp did not receive a copy of Manual 21-1 until the middle of 1995, and he received it only after making a special request for “some rules” because “[he] was considering making a proposal for standardization.” Tr. 1083:14-1084:8. 27. Putting aside whether Manual 21-1 was ever officially approved, it appears to have guided JEDEC’s activities throughout the remaining period of Rambus’s attendance, at least in name. Tr. 771:13-772:5. For example, the minutes from the JC-42.3 committee meeting of September 1994 conclude with the prominent statement “THIS MEETING WAS CONDUCTED IN ACCORDANCE WITH EIA • LEGAL GUIDES AND THE JE-DEC MANUAL OF ORGANIZATION AND PROCEDURE 21-1.” Ex. 3005 at 13; Tr. 611:3-14; 1208:10-20 (admitting exhibit into evidence). On the other hand, the “patent policies” presented by the chairman, Jim Townsend, and included as attachment A to the minutes of the September 1994 meeting, continue to recite the EIA policy from 1990 discussed above and attached to the 1992 minutes. See Ex. 3005 at 14; Tr. 611:21-612:10. Attachment A does not include the viewgraph purportedly required by Manual 21-1. It does not mention an obligation by members to disclose anything. 28. Whichever official manual governed JEDEC’s conduct, it is clear from the testimony of the secretary of JC-42 Kenneth McGhee and the manuals in evidence that no written policy ever required a JEDEC member to “reveal its intention ... to file patent applications in the future.” Docket No. 3551 (Mar. 17, 2008) (lodged video testimony of Kenneth McGhee played at trial). D. JEDEC’s Patent Policy — JEDEC’s Sign-in Sheets 29. Mr. Rhoden also testified at length about the sign-in sheets used at JC-42.3 meetings. See Tr. 520:17-522:6; Ex. 3233. According to Mr. Rhoden, JEDEC’s patent policies were “very important” and the sign-in sheets “ma[de] sure that nobody can forget it.” Tr: 521:17-21. To that end, the sign-in sheet included on its backside language about JEDEC’s patent policies. Tr. 521:23-522:6. 30. The sample sign-in sheet reproduces what, at first glance, appears to be section 9.3 of Manual 21-1. Compare Ex. 3233 at 2 with Ex. 3215 at 19. Upon inspection, an important difference emerges. The sample sign-in sheet refers only to a “patented item.” It does not mention anything about features covered by pending applications. The sample sign-in sheet also lacks any language resembling section 9.3.1 of Manual 21-1. The sign-in sheet says nothing about any obligation to disclose any known patents or applications. It speaks only of using “great care” in considering whether to use a patented feature in a standard and of the obligation of the committee chairperson to ensure that no standard include a patented feature unless assurances have been made. 31.Notably, the sign-in sheet includes other reminders aimed at ensuring JEDEC’s and its members’ compliance with the antitrust laws. Among those provisions is the reminder that “the exchange of company information relating to future plans affecting the design, research and development, production, and distribution or marketing of products” is improper. Ex. 3233 at 2; see Tr. 623:8-627:24. From the evidence presented at trial, a JEDEC member did not have guidance and would probably not understand, at least from any information acquired from JE-DEC, how a JEDEC member could safely comply with both (a) the purported duty requiring a member to disclose its “intentions” to file a patent application as advocated by the Manufacturers and (b) the duty not to disclose a company’s future plans relating to the research and development of products given the intertwined nature of conducting research and preparing a patent application. 32. By contrast to Mr. Rhoden’s testimony that JEDEC’s patent policies were “very important” and that the sign-in sheets were used to “make sure that nobody can forget it,” Micron’s Terry Lee (a JEDEC representative) explained the flaws in the sign-in process: “[T]he way the sign-in process worked is they would just pass around a stapled form and you’d check your name off, or you’d sign your name on. And if I was out of my seat at the time, I would sign in. But sometimes you were out of the room talking or checking in or out of the hotel.” Tr. 3169:10-22. This process explains why Mr. Lee “usually” but “not always” signed in at meetings. Tr. 3169:10-15. Based on Mr. Lee’s testimony, it is doubtful that many JEDEC representatives read the EIA patent policy on the reverse side of the sign-in sheet or that it meaningfully informed their expectations. E. JEDEC’s Patent Policy — JEDEC’s Ballots 33. In addition to sign-in sheets, Mr. Rhoden testified that JEDEC’s ballots were “another expression of the importance that JEDEC placed upon disclosure of [intellectual property].” Tr. 524:1-4. The Manufacturers submitted a ballot from June 1992 as a sample of the “ballot form used at JEDEC at or about [1992].” Id. 522:12-523:3; Ex. 3613. 34. The Manufacturers did not submit ballot forms from the 1993-1996 period, leading the court to infer that JEDEC did not change the ballot forms with respect to patent disclosure during that time period. 35. The 1992 ballot form states: “If anyone receiving this ballot is aware of patents involving this ballot, please alert the committee accordingly during your voting response.” Ex. 3613 at 2; Tr. 522:17-25. The ballot form does not state that anyone receiving the ballot must disclose patent applications or intentions to file applications of which the recipient is aware. 36. Rambus’s JEDEC representatives received ballots instructing them to disclose such patents. Tr. 524:5-9. 37. When asked whether Rambus “actually voted in any of the elections that they ... were presented ballots for,” Mr. Rhoden testified: “Yes. They, they voted quite often, actually. I counted the ballots. That’s how I know.” Tr. 524:10-25. He further testified: “The chairman — the person that’s actually doing the, the distribution of the ballots is the person that winds up counting them. So in this case, it was associated with SDRAM, and I was the one who actually counted the ballots. So, yes, I counted their ballots many times.” Id. 38. To the extent Mr. Rhoden’s testimony suggests that Rambus voted at more than one meeting, it is misleading. On the contrary, the unrebutted evidence of Rambus’s voting record presented at trial is as follows. Rambus voted at only one meeting. Tr. 1003:23-1004:6. The ballots concerned four technologies that the committee was considering to be included in SDRAM. Id. Rambus’s representative at the time, Richard Crisp, voted “no” as to each technology. Id.; Tr. 1154:23-25; Tr. 1383:12-18. The technologies on the ballot included programmable CAS latency and programmable burst length. See Ex. 3613 at 3. 39. After Rambus voted “no,” Hitachi’s representative Farhad Tabrizi criticized Rambus for its vote. Tr. 1385:7-23 (Crisp); Tr. 3780:9-13 ■ (Tabrizi). Mr. Tabrizi explained . that his criticism was based on his opinion that Rambus’s “no” vote was intended to delay the standardization of SDRAM. Tr. 3780:9-3782:16. While Mr. Tabrizi initially testified that he made this criticism privately, Tr. 3780:20-3781:1, his refreshed recollection was that he criticized Rambus in front of many other JEDEC members and that the rest of the committee agreed with his criticism of Rambus, Tr. 3782:8-16. 40. Following this incident, Mr. Crisp’s superior Dave Mooring instructed him not to vote at JEDEC meetings. Rambus (through Mr. Crisp) never voted again. Tr. 1385:24-1386:9. F. JEDEC’s Patent Policy — Other Minutes’ Records of the Patent Policy Presentations 41. As • discussed above, the JC 42.3 committee meeting minutes from February 1992 attached EIA’s policy referring to the use of features covered by issued patents. The September 1993 minutes attached a draft of the “policy summary” of Manual 21-1 that suggested that standards should not include features covered by pending patents. The September 1994 minutes state that Manual 21-1 governed the conduct of the meeting, but attached the old EIA guidelines that do not mention pending patents. 42. The minutes from the September 11, 1995 meeting include the familiar 1990 EIA policy (seen in the February 1992 and September 1994 minutes) regarding the use of features covered by issued patents. Ex. 3224 at 20; Tr. 1107-20-1109:5 (admitting the exhibit into evidence). The attachment of the “patent policy” does not include the 21-1 viewgraph mentioning applications. The minutes include no other “patent policy.” 43. The attachment from the September 1995 meeting lays out the following procedure: — Show JEDEC Patent Policy at each Task Group and Committee meeting. — Include JEDEC Policy in each committee’s official minutes. — Request Presentation Sponsors to state their Company’s patent position. — Continue to ask for ballot response forms to indicate patent position. — Submit proposed ballot items known to have patents to EIA Legal Counsel. —. Review items identified as of potential patent interest at each meeting, and resolve patent status prior to (choose one): A. Presentation B. Approval to go to Ballot C. Ballot Approval D. Ballot Submission to Council E. Ballot Approval by Council Ex. 3224 at 20. An identical “procedure” appears in the attachment to the September 1994 minutes. See Ex. 3005 at 14. 44. This procedure — in use long after the purported adoption of Manual 21-1 — “requested] presentation sponsors to state their Company’s patent position.” Such a requirement accords well with principles of equitable estoppel — that a JEDEC member could rely on the assumption that if a sponsor advocated a particular standard the sponsor’s company did not have and had not applied for patent coverage on the standard. A reasonable inference, however, is that members other than presentation sponsors were not expected to disclose any knowledge they possessed of patents, patent applications, or intentions to file patent applications anytime such materials related to the work of the committee. Also curious is the procedure’s repeated reference to a need to ‘‘continue to ask for ballot response forms to indicate patent position.” The sensible inference from this bullet point in the patent policy procedure is that members of JC-42.3 repeatedly failed to disclose patent positions on ballots, despite the wording on the ballots. Such repeated failure does not reconcile with Mr. Rho-den’s belief that JEDEC members shared a broad disclosure expectation. 45.Before every JC-42.3 meeting, JE-DEC held a plenary session for all of the JC-42 committees. Tr. 3839:16-25. At the December 9, 1996 JC-42 plenary session (i.e., shortly after Rambus’s resignation), the combined committees went over the “EIA/JEDEC patent policies” and attached them. Ex. 8307 at 4; Tr. 3838:23-3839:4 (admitting pages 1, 4 and 10 of Ex. 8307). Page 10 of the minutes show the “patent policy.” Tr. 3840:21-3841:3. The attached “patent policy” is an updated (1995) version of the EIA rule urging the committee to “avoid requirements in EIA Standards that call for use of a patented item or process.” Ex. 8307 at 10. No mention of patent applications appears in the attachment. See id. No mention of disclosure obligations appears in the attachment. See id. The same 5-step procedure discussed above also appears in the December 1996 plenary session minutes. Id. 46. In 1997 in correspondence between Hynix’s Farhad Tabrizi and JE-DEC, Mr. Tabrizi asked for “a copy of the JEDEC patent laws or part of the JEDEC bylaws that deals with patent and patent disclosure and licensing.” Jim Townsend wrote back: “[T]hat is in every set of minutes we shgow [sic] it at the plenary session each time. The exact paragraphs [sic] are cited and reproduced as part of the cover material.” Ex. 6293; Tr. 3835:10-3838:5. Mr. Tabrizi understood Mr. Townsend to be telling him that if Mr. Tabrizi consulted the minutes, he would find the patent policy. Tr. 3838:2-5. 47. Minutes from other JC^42.3 meetings following the 21-1 policy were authenticated, e.g., December 1994 (Ex. 3491), March 1995 (Ex. 3492), May 1995 (Ex. 3033), January 1996 (Ex. 3070), and March 1996 (Ex. 3080). Tr. 1301:17-1304:5. Most of these exhibits were never received into evidence, and the pages of the exhibits that were eventually received did not relate to patent policies. G. JEDEC’s Patent Policy — Patent Tracking List 48. A prominent feature of the committee’s minutes was Jim Townsend’s “patent tracking list.” According to Desi Rhoden, the list kept track of everything “that has been disclosed inside the committee so we can make appropriate decisions as we’re moving forward on the standards.” Tr. 471:21-473:13. 49. Jim Townsend introduced the patent tracking list at JC-42.3’s meeting in December of 1991 (Rambus’s first meeting). See Ex. 3003 at 11. The minutes reflect that Texas Instruments (TI) “asked what the purpose of the list was.” Id. The minutes note the response: “The purpose was only to track and identify patented items of Committee proposals. Companies who hold patents identified can respond to Committee, if they wish.” Id. (emphasis added). 50. When confronted with the minutes’ statement that members could respond to the patent tracking list “if they wish,” Mr. Rhoden testified “well, they — they—perhaps the wording is not right. But they are required to disclose. They were required to disclose at this time. So the — they can respond if they wish, but it was — it’s not optional.” Tr. 637:17-22. Mr. Rhoden previously testified that the minutes reflect the “highlights” and “key decisions” of meetings. He conceded that no one corrected the minutes to reflect the “not optional” nature of patent disclosure in 1991. Id. 637:23-638:8. 51.The patent tracking list from the September 1993 meeting was admitted into evidence and discussed. See Tr. 471:13-474:22; Ex. 3005 at 16-18. The entries listed the “patent number,” holder, subject matter or feature, the source of the information, and the committee whose work the patent involved. Ex. 3005 at 16-18. A portion of the September 1993 tracking list is reproduced below: Patent Issues to Track Patent Number Holder Subject Source Status 3,771,145 P. Weiner ROM Addressing Toshiba JC42.3 9 AMD Slew Rate-CTT Ram-tron JC42.3 Negative GTL AT&T JC16 Japan? AMP Small Outline SIMM AMP JC42.5 (3) AMP SIMM SOCKETS AMP JC42.5 4,851,834 DEC 3-Port VRAM DEC JC42.3 Foxconn card polarization Foxconn JC42.5 pending Fujitsu VSMP Fujitsu JC42.3 Gould ZIP-SIP HP JC42.5 4,811,299 Hitachi WCBR Hyundai JC42.3 pending Hitachi ST-ZIP Package Hitachi JC42.5 Further Study Hitachi? Addressing with Redundant Address IBM JC42.3 4,928,265 Hitachi SDRAM Toshiba JC42.3 5,083,296 Hitachi SDRAM Toshiba JC42.3 4,984,214 IBM Half SAM IBM JC42.3 pending IBM 8 byte SIMM IBM JC42.5 IBM? BGA Toshiba JC42.3 5,126,975 IDTI Burst Mode Unisys JC42.3 52. A few aspects of the list deserve attention. First, the entire list runs three pages and contains sixty entries. Three of the entries (all included in the excerpt shown above) are “pending,” i.e., patent applications. In other words, the patent tracking list reflects that as of September 1998 there had been only three instances of a JEDEC representative disclosing a pending patent application that related to the work of the committee. 53. Approximately one-third of the entries on the list reflect a “source” that is different than the “holder.” In other words, a substantial portion of the “patent issues to track” were not voluntarily disclosed but first raised by others. This explains why the patent tracking list was referred to as “the squealer’s list” among the members of JC-42.3. Tr. 4707:17-4708:9 (testimony of Alan Grossmeier, Cray’s JEDEC representative). 54.The last patent tracking list in evidence comes from JC 42’s plenary session from December 1996. See Ex. 8307 at 11-12; Tr. 8341:4-17 (admitting pages 11 and 12). For comparison, the same portion of the list is reproduced below: 55. The list is notable for its similarities. The three previously disclosed “pending” patent applications remain pending, over three years later. The Hitachi matter that required “further study” in September of 1993 continued to require “further study” at the end of 1996. 56. In total, the tracking list as of December 1996 comprised 84 entries. In addition to three prior “pending” disclosures (all of which remained “pending”), the list identified two further disclosures of “pending” applications related to a feature. 57.In other words, over the span of two years (implying at least eight meetings of JC-42), the committee had identified 24 new patent issues to track, or approximately 3 per meeting. At each meeting of JC 42’s various committees, Desi Rho-den believed that “fifty or one hundred [presentations] would not be uncommon.” Tr. 463:6-11. Based on Mr. Rhoden’s approximation and the two patent tracking lists, the court estimates that roughly (and generously) 1 in 15 presentations about a feature or technology at JEDEC also included a disclosure of a “patent issue.” Compare with Tr. 552:2-22 (Rhoden testimony about how disclosures happened at presentations). 58. The December 1996 list reflects no disclosures of Hyundai (now Hynix) intellectual property. The list reflects two disclosures of Micron intellectual property, both of which were on the September 1993 list. The list reflects no disclosures of VLSI (Desi Rhoden’s employer) intellectual property. In other words, trial witnesses Farhad Tabrizi, Terry Lee, and Desi Rhoden made no disclosures of their companies’ intellectual property between 1993 and 1996. 59. In its June 1996 resignation letter, Rambus identified a number of patents. JEDEC did not add any of those patents to the December 1996 patent tracking list. Compare Ex. 3120 at 2 with Ex. 8307 at 11-12. 60. As seen on both of the patent tracking list excerpts reproduced above, Toshiba suggested by September of 1993 that IBM might have intellectual property rights to “BGA” or “ball grid array.” This confrontation produced substantial testimony at trial about how the patent tracking list and any JE-DEC disclosure duty functioned in practice, e.g., Tr. 644:14-654:5. 61. Following Toshiba’s disclosure, IBM’s representative, Gordon Kelley, responded regarding the BGA feature with an August 31, 1993 fax to JC-42.3 chairman Jim Townsend and JC-42.3 secretary Ken McGhee. See Ex. 6092. The subject of the fax was “BGA Patent/License Rights” and read: Jim: IBM Intellectual Property Law attorney’s [sic] have informed me that we will not use JEDEC as a forum for discussing this subject. It is the responsibility of the producer to evaluate the subject and to workout [sic] the proper use of rights. So, I can not confirm or deny any [intellectual property law] rights, Gordon Kelley IBM Member JC-42.3 62. Mr. Kelley testified that he believed that his response complied with his understanding of any disclosure duty. He explained that he further investigated the subject of whether IBM had patents to ball grid arrays, and his investigation uncovered 5,000 (five thousand) such patents held by IBM and relating to ball grid arrays. He “looked at the first 200 to 300 of those patents” and determined that those patents did not apply to the standard under consideration and that he told this to the JC-42.3 committee following the fax. Tr. 3605:12-3608:9; see also Docket No. 3508 (lodged Kelley video testimony). 63. The December 1993 JC-42.3 meeting also involved “lots of patent issues” (related to TI) and more involvement by Gordon Kelley. Tr. 654:6-656:5. The minutes state that “[a]s a side issue, IBM noted that in the future they will not come to the Committee with a list of applicable patents on standards proposals. It is up to the user of the standard to discover which patents apply.” Ex. 6098 at 8. 64. Mr. Rhoden testified that with both BGA and this December 1993 disclosure, Mr. Kelley actually said to the committee that IBM would not search their patent database. This did not bother Mr. Rhoden because he understood JEDEC’s policy to be that if a member does not disclose a patent, that member could not enforce the patent against the standard. Thus, Mr. Rhoden felt that IBM’s declination was “no harm, no foul.” Tr. 656:6-658:4. Mr. Rhoden’s testimony on this point is not credible because the actual documents — the minutes and the August fax — are inconsistent with the theory that IBM did not intend to assert its BGA, or other, patents. They are also inconsistent with Mr. Kelley’s “promise” to the committee that he would “give you all of the information that I am aware of as the member for IBM, but I cannot promise to give you all of the tens of thousands of patents that are created annually by IBM Corporation.” Docket No. 3508 (lodged Kelley video testimony). 65. Gordon Kelley also testified that he disclosed more patents and patent applications than ended up on the patent tracking list. See Tr. 3627:9-21. Mr. Kelley admitted that he made no effort to correct the minutes to reflect such additional disclosures. Id. 3627:22-3628:9. To the extent Mr. Kelley did make disclosures on IBM’s behalf that do not appear on the patent tracking list, it appears that Mr. Kelley would have made those disclosures in conflict with directions he received from IBM’s lawyers. See id. 3628:10-3629:3. This might explain Mr. Kelley’s failure to correct the minutes, but raises the possibility that JEDEC representatives like Mr. Kelley deliberately disobeyed their principals’ instructions in favor of JE-DEC. Furthermore, his testimony calls into question the accuracy of the minutes and their trustworthiness. In short, if the testimony is true, it implies that JEDEC’s records are deliberately incomplete and that some JEDEC representatives acted in JEDEC’s interests at the expense of their principals’. This is a plausible interpretation of the evidence, but the court is more inclined to believe that Mr. Kelley’s memory about additional disclosures was incorrect, that the patent tracking list is accurate, and that JEDEC representatives like Mr. Kelley did not act at cross-purposes to their lawyers. The court therefore declines to credit the testimony that additional disclosures were made that were not reflected on the list. 66.Mr. Rhoden testified that the patent tracking list helped the committee “make appropriate decisions as we’re moving forward on the standards.” After a critical analysis of the patent tracking lists in evidence, how the lists were updated, and how many entries there are, the court draws three conclusions. First, if any disclosure duty within JEDEC was as broad as suggested, the patent tracking list should have been substantially longer. Second, the gaps and failures to follow up on “?” entries on the list suggest that JEDEC’s members did not consider tracking patent issues to be terribly important. Third, the JEDEC disclosure duty advocated by the Manufacturers could not have possibly accomplished the purported goal of creating an “open standard” because the alleged duty was limited to the knowledge (and potential willful ignorance) of JE-DEC’s member representatives. Because it would have been ineffectual, it is less likely the disclosure duty advocated by the Manufacturers existed. H. JC-42.3 Committee Members’ Expectations and Recollections 67. Desi Rhoden testified that his understanding of JEDEC’s patent disclosure policy was: “JEDEC members are required to disclose anything in the patent process for which they have knowledge that’s relevant to or involving • work for JEDEC.” Tr. 481:15-19; see id. 473:4-13;- 510:7-22. He believed such disclosures had to be made “as early as possible whenever presentations are made.” Id. 552:23-553:8. He summarized it as “early and often” and testified that disclosures had to be repeated. Id. 553:9-13. 68. Richard Crisp, Rambus’s representative, believed that he should disclose any patents or pending patents that he thought related to a feature if he proposed that feature, but that he also had the impression that any disclosure was voluntary. Tr. 1368:7-13; 1400:12-1401:16. 69. Richard Crisp’s contemporaneous documents from his time as a JE-DEC representative support the prevailing confusion about the scope of any duty. See Tr. 1057:22-1059:22; Ex. 3030. Exhibit 3030, an email of Mr. Crisp’s reporting on a December 1992 JE-DEC meeting, indicated that a patent lawyer from Bronson, Bronson, & McKinnon had come to speak to the committee and that the lawyer was unclear on what JEDEC required its members to disclose and that it would be “inadvisable” to require the disclosure of patent applications. Ex. 3030. 70. Alan Grossmeier was Cray’s representative-at JC-42.3 meetings from 1989 through 2000. Tr. 4704:14-4705:3. There was no indication that Mr. Grossmeier was biased in favor of either Rambus or the Manufacturers. On the other hand, Mr. Grossmeier conceded that “patent issues were not necessarily the priority for [him]” and that others at JEDEC were more interested in the requirements of-tbe patent policy. ' Id. 4710:8-15. Taken as a whole, the court found Mr. Grossmeier’s testimony credible. 71. Mr. Grossmeier recalled Jim Townsend’s presentations ■ differently than Desi Rhoden: “Typically he would flash these, slides, usually not long enough to read them. He would, just kind of, these are the JEDEC patent policy and don’t worry about reading them. They will be in the minutes. ,He would flash the, the first couple slides and then he -had a tracking list of, it was humorously- referred to as the squealer’s list, basically.” Id. 4707:9-20. 72. Mr. Grossmeier recalled that Mr. Townsend presented EIA’s patent policy and that JEDEC was governed by EIA’s patent policy. Tr. 4708:18-4709:1. He did not recall “any formal documentation” of the patent policiés and “[his] interpretation was based more on how the committee members themselves handled it.” Id. 4709:2-11. 73. Mr. Grossmeier believed that JE-DEC required sponsors presenting features to disclose patents and that the rules were otherwise vague about disclosing issued patents. Tr. 4709:12^1709:25. He was adamant that patent applications did not have to be disclosed. Id. 4710:1-7 (“They were not. They were not. No, I did not expect that someone would [disclose applications].”). 74. Gordon Kelley of IBM testified that he understood the JEDEC disclosure duty to require members to disclose patents and patent applications of which the member was aware that would be required for use of the patented feature. Tr. 3602:13-3603:3. He felt the need to be clear though that any duty was limited to the JEDEC representative’s personal knowledge; he was not willing “to crawl through 5,000 patents” held by IBM. Docket No. 3508 (Mar. 11, 2008) (lodged video testimony of Gordon Kelley); Tr. 3620:12-16.- 75. The Manufacturers also presented expert testimony from Graham Allan, an engineer who attended JC-42.3 meetings and was “very active” in setting the SDRAM, DDR, and DDR2 standards. Tr. 2578:10-2580:22. ■ Mr. Allan represented Mosaid, a “third party designer” that does not build DRAMs; rather, Mosaid designs memory schematics for other people. See id. 2578:4-9; 2578:15-2579:1. Despite Mr. Allan’s intimate involvement with JEDEC, the Manufacturers explicitly declined to ask him about his expectations and understanding of any disclosure duties. See id. 2581:12-21. Although the Manufacturers had their reasons for not asking Mr. Allan such questions, the court infers that had Mr. Allan testified on this topic, his testimony would not have supported the broad disclosure duty urged by the Manufacturers. 76.Hynix’s JEDEC representative, Farhad Tabrizi, testified that his understanding of the JEDEC disclosure duty was: “The policy was you have to disclose anything that you know about your intention of patent, patent application, your intention of filing. If you don’t disclose, you cannot collect later.” Tr. 3722:25-3724:1. Squaring Mr. Tabrizi’s testimony about his memory of the disclosure duty with his 1997 email requesting copies of “the JE-DEC patent laws or part of the JEDEC bylaws that deals with patent and patent disclosure and licensing” is somewhat difficult. Mr. Tabrizi’s testimony supports a broad disclosure duty based on expectations, but his writing in 1997 suggested that he (a) did not know where to find JEDEC’s rules regarding patent disclosure, and (b) believed that such rules would be written down. Further, his intense bias against Rambus may have colored his testimony. 77.Micron’s JEDEC representative, Terry Lee, also testified about the JEDEC disclosure duty from 1994 to 1996. See Tr. 3242:17-3243:25. His testimony corroborated Mr. Grossmerier’s that the committee chairman Jim Townsend would take a transparency and “stick one down on the overhead and say this is the patent policy.” Id. 3243:12-18. He described Mr. Townsend as a “colorful character” and that sometimes people would ask him questions about the policy and “Jim would usually answer them.” Id. 3243:15-21. Mr. Lee remembered the disclosure duty as: “a requirement to disclose any patents or patent pending that may relate to the work of the committee. And the committee had the responsibility to avoid the use of the patents in the standard. And in the case that a patent was identified, then there was a requirement to provide what we called a rand licensing term, or whoever held the patent had to agree on a reasonable and non-discriminatory licensing term.” Id. 3244:17-3245:1. In other words, Mr. Lee — a Micron witness — did not recall a duty to disclose intentions to file patent applications. He did, however, testify that he believed he had to disclose patent applications. I. Rambus Did Not Breach Any Clearly Defined Disclosure Expectation 78. The evidence suggests that the scope of a JEDEC member’s expectation of disclosure ranged from non-existent to astonishingly broad. The jury found that the JEDEC members did not share a clearly defined expectation that members would disclose relevant knowledge they had about patent applications or the intent to file patent applications: Disclosure expectations. “Did JEDEC members share a clearly defined expectation that members would disclose relevant knowledge they had about patent applications or the intent to file patent applications on technology being considered for adoption as a JEDEC standard? No.” Special Verdict Form ¶ 45. 79. It does appear, however, that members at least expected those making sponsoring presentations to disclose any patents the sponsoring company had covering the advocated standard. The members may well have had a broader disclosure expectation. However, Mr. Rho-den’s testimony suggesting that the applications Rambus had in prosecution during its membership should have been disclosed was equivocal and lacking in analysis. He testified that he believed certain applications should have been disclosed based on his reading of the claim language. Tr. 553:14-559:2. This analysis was cursory and turned on Mr. Rhoden’s belief that the applications should have been disclosed because they “involved the work of JEDEC,” a standard that has no clear definition or meaningful support. In any event, Rambus’s alleged conduct— failing to disclose intentions to seek patents and failing to disclose certain applications it had in prosecution (which were based on the same specification that was disclosed twice to JEDEC) — did not violate any clearly defined disclosure expectation. By the time it withdrew from JEDEC, Rambus had not filed a patent application claiming a standardized feature under consideration during its JEDEC membership. J. Rambus’s Representations at JE-DEC — The 1992 SDRAM Ballot The Manufacturers’ also base their estoppel defense arising from JEDEC on the nature of the few statements Rambus actually made at JEDEC. 80. As discussed above, Rambus voted on one set of ballots involving SDRAM. The members of JC-42.3 were aware of Rambus’s voting and publicly disapproved of Rambus’s behavior because of their belief that Rambus was trying to stall the standardization of SDRAM. 81. In light of the narrow scope of the duty to disclose defined on the ballot, no reasonable person within JEDEC could interpret Rambus’s ballots as a statement that Rambus would not seek intellectual property on matters related to the ballot. K. Rambus’s Representations at JE-DEC — Richard Crisp’s Head Shake 82. According to Mr. Rhoden, the JC-42.3 chairman Gordon Kelley asked Richard Crisp “if Rambus had any, any I.P. that related to any of the things that were present.” Tr. 539:1-17. Mr. Rhoden testified that Mr. Crisp “just shook his head. He didn’t say a word.” Tr. 539:21. Mr. Rhoden testified that he personally witnessed this because he was in the room at the time. Tr. 540:4-5. Mr. Rhoden could not recall clearly when this occurred however. Tr. 538:14-19. 83. Mr. Crisp remembered the interaction differently. See Tr. 1138:21— 1139:1. Mr. Crisp testified that “he asked me if I cared to comment.” Mr. Crisp says that he declined to comment. Tr. 1138:21-1139:10. Mr. Crisp did this by shaking his head “no.” Tr. 1140:7-14. Mr. Crisp also testified that no one followed up on his refusal to comment or complained that “not commenting” was forbidden. Id. 1347:5-1348:9. 84. Mr. Crisp sent contemporaneous emails from JEDEC meetings to other Rambus personnel. In an email he sent from this JEDEC meeting, Mr. Crisp wrote: “Siemens expressed concern over potential Rambus Patents covering 2 bank designs. Gordon Kelly [sic] of IBM asked me if we would comment which I declined.” Ex. 3412; Tr. 1144:12-23 (admitting exhibit). 85. The portions of the JEDEC minutes from the meeting in evidence contain no mention of this discussion. See Tr. 1128:8-13; Ex. 3003, 1-2, 30-37. The court infers from the absence of evidence in the record that the minutes lack any record of this event. 86. The deposition testimony of Gordon Kelley accords with Mr. Crisp’s version of events. See Docket No. 3568, 379:14-380:2 (“I remember that both Motorola and Rambus were represented at that meeting and did not comment on those patent