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UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
- COMMISSIONERS:
- Robert Pitofsky, Chairman
- Sheila F. Anthony
- Mozelle W. Thompson
- Orson Swindle
DOCKET NO. 9288
DECISION AND ORDER
The Commission having heretofore issued its complaint
charging the respondent named in the caption hereof with violations of
Section 5 of the Â鶹´«Ã½ Trade Commission Act, as amended, 15 U.S.C.
§ 45, and the respondent having been served with a copy of that
complaint, together with a notice of contemplated relief; and
The respondent, its attorneys, and counsel for the
Commission having thereafter executed an agreement containing a consent
Order, an admission by respondent of all the jurisdictional facts set
forth in the complaint, a statement that the signing of said agreement
is for settlement purposes only and does not constitute an admission by
respondent that the law has been violated as alleged in such complaint,
or that the facts as alleged in such complaint, other than
jurisdictional facts, are true and waivers and other provisions as
required by the Commission's Rules; and
The Secretary of the Commission having thereafter
withdrawn this matter from adjudication in accordance with
§ 3.25(c) of its Rules; and
The Commission having considered the matter and having
thereupon accepted the executed consent agreement and placed such
agreement on the public record for a period of sixty (60) days, and
having duly considered the comments filed thereafter by interested
persons pursuant to § 3.25(f) of its Rules, now in further conformity
with the procedure prescribed in § 3.25(f) of its Rules, the Commission
hereby makes the following jurisdictional findings and enters the
following Order:
1. Respondent Intel Corporation is a corporation
organized, existing and doing business under and by virtue of the laws
of the State of Delaware with its office and principal place of business
located at Mission College Boulevard, Santa Clara, California 95052.
2. The Â鶹´«Ã½ Trade Commission has jurisdiction of the
subject matter of this proceeding and of the respondent, and the
proceeding is in the public interest.
ORDER
I.
IT IS ORDERED that, as used in this
Order, the following definitions shall apply:
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A. "Intel" or "Respondent" means
Intel Corporation, its directors, officers, employees, agents,
representatives, predecessors, successors, and assigns; its joint
ventures, subsidiaries, divisions, groups and affiliates controlled
by Intel, and the respective directors, officers, employees, agents,
representatives, successors, and assigns of each.
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B. "Commission" means the Â鶹´«Ã½ Trade
Commission.
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C. "Advance Technical Information" or
"AT Information" means confidential product information
regarding a general purpose Intel microprocessor of the type
necessary to enable a customer to design and develop systems
incorporating those microprocessors in time for introduction into
the marketplace by the official release date for such
microprocessors, namely (1) the electrical, mechanical, and thermal
characteristics of such microprocessor, (2) samples of such
microprocessor, (3) errata and workarounds or fixes thereof for such
microprocessors, (4) technical support for items (1) - (3) at a
level equivalent to that provided at a time period immediately prior
to the event which engendered the IP Dispute, and (5) other
equivalent enabling information. For purposes of this Order, it
shall be presumed that disclosures of AT Information no later than 6
months before the official release date of a microprocessor are
sufficient to enable a customer to design and develop a system
within the time prescribed herein, and that AT Information does not
include detailed microprocessor design information not generally
provided to Respondent's customers, nor information relevant solely
to designing semiconductors.
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D. "Intellectual Property Dispute" or
"IP Dispute" means any circumstance where a customer of
Respondent has (1) directly or indirectly asserted or threatened to
assert any patent, copyright or trade secret right concerning
computer technology against Respondent or any other customer of
Respondent where the asserted infringement relates to a product
supplied by Respondent; or (2) refused a request by Respondent to
license or otherwise convey the rights to a patent, copyright or
trade secret right to Respondent.
II.
IT IS FURTHER ORDERED that,
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A. Except as otherwise provided in Paragraph II.B.
below, for a period of ten (10) years from the date this Order
becomes final, subject to the proviso set forth in this paragraph,
Respondent shall cease and desist from taking the following actions
or threatening to take the following actions: (1) impeding,
altering, suspending, withdrawing, withholding or refusing to
provide access by any microprocessor customer to AT Information for
reasons related to an Intellectual Property Dispute with such
customer if at the time of such IP Dispute such customer is
receiving AT Information from Respondent or (2) basing any supply
decisions for general purpose microprocessors upon the existence of
an IP Dispute. Provided, however, that any obligation set
forth in this Paragraph II.A. shall be inapplicable with regard to
any AT Information or product supply decision specific to any Intel
microprocessor that the customer has asserted is infringing its
patent, copyright or trade secret rights unless that customer agrees
in writing not to seek an injunction against the manufacture, use,
sale, offer to sell, or importation of all Intel microprocessors
that are based upon the same core microarchitecture (e.g. P5, P6) as
the Intel microprocessor that is the subject of the assertion of
infringement; provided further, however, that Respondent shall not
take action prohibited in this Paragraph II.A. for the reason that
such customer is seeking or has sought compensation, damages or any
other legal or equitable remedies other than injunction as herein
provided.
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B. Nothing in Paragraph II.A. of this Order shall be
construed to:
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prohibit Respondent from seeking all available legal
or equitable remedies with regard to any of its patent, copyright,
trade secrets, mask work, trademark, or other intellectual property;
provided that a dispute as to such remedies or compensation sought
for the AT Information shall not affect Respondent's obligation to
continue to provide the AT Information to a customer as provided in
Paragraph II.A. above;
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prohibit Respondent from withholding AT Information
or demanding the return of previously provided AT Information from a
customer based on business considerations unrelated to the existence
of the IP Dispute, including but not limited to a customer's breach
of an agreement between the customer and Respondent regarding the
disclosure or use of the AT Information;
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limit Respondent's right to make product (including
sample) supply decisions based upon business considerations
unrelated to the existence of the IP Dispute, including but not
limited to constrained product (including sample) supply, customer's
order rate and payment history, or customer's breach of an agreement
between the customer and Respondent regarding the supply or use of
such products;
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require Respondent to provide AT Information or
supply general purpose microprocessors to a customer to facilitate
the design or development of a type of system (e.g., server,
workstation, desktop, mobile unit) that such customer has not
designed or developed or demonstrated plans to design or develop
within the preceding year;
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prohibit Respondent from restricting the use of AT
Information to the customer's design and development of computer
systems that incorporate the microprocessor to which the AT
Information pertains;
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require Respondent to disclose AT Information or
supply general purpose microprocessors, when such AT Information or
products (including samples) are not otherwise available for
disclosure or supply to Respondent's customers; or
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otherwise limit Respondent's intellectual property
rights, including the disposition of those rights.
III.
IT IS FURTHER ORDERED that:
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A. Within five (5) days of the date this Order
becomes final, and for a period of thirty (30) days thereafter,
Respondent shall publish this Order on its World Wide Web site.
Notice of such publication shall be made in a manner calculated to
be viewed by all of Respondent's customers. For purposes of this
provision, notice will be deemed satisfactory if it is made by
providing a direct link to the Order from a notice in the following
language: "FTC and Intel Settle Antitrust Litigation"
posted as the first link under the "In the News" section
of the "developer's" page (developer.Intel.com) as the
Intel site is constituted on the date this Order is signed. In the
event that Intel changes its site structure, an equivalent notice in
terms of ease of access and conspicuousness must be provided. After
such thirty (30) day period, Respondent shall maintain a link from
the "developer's" page (or its equivalent) to the Order in
a manner that provides reasonable notice to interested parties.
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B. Within ten (10) days after the date on which any
person becomes a director or corporate officer, Respondent shall
provide a copy of this Order to such person.
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C. Within sixty (60) days after the date this Order
becomes final, Respondent shall file with the Commission a verified
written report setting forth in detail the manner and form in which
Respondent is complying and has complied with this Order.
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D. One (1) year from the date this Order becomes
final, annually for the next five (5) years on the anniversary of
the date this Order becomes final, and at such other times as the
Commission may require, Respondent shall file a verified written
report with the Commission setting forth in detail the manner and
form in which it has complied and is complying with this Order, and
setting forth in detail any action taken in connection with the
activities covered by this Order.
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E. For a period of five (5) years after the date
this Order becomes final, Respondent shall maintain and make
available to the Â鶹´«Ã½ Trade Commission staff for inspection and
copying, upon reasonable notice, records adequate to describe in
detail any action taken in connection with the activities covered by
Paragraph II. of this Order.
IV.
IT IS FURTHER ORDERED that Respondent
shall notify the Commission at least thirty (30) days prior to any
proposed change in the Respondent such as dissolution, assignment, sale,
or reorganization resulting in the emergence of a successor corporation
or association, or the creation or dissolution of subsidiaries or any
other change in the corporation that may affect compliance obligations
arising out of this Order.
V.
IT IS FURTHER ORDERED that, for the
purpose of determining or securing compliance with this Order, upon
written request, Respondent shall permit any duly authorized
representative of the Commission:
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A. Access, during office hours and in the presence
of counsel, to all facilities and access to inspect and copy all
books, ledgers, accounts, correspondence, memoranda and other
records and documents in the possession or under the control of
Respondent relating to any matters contained in this Order; and
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B. Upon five days' notice to Respondent and without
restraint or interference from them, to interview officers,
directors, or employees of Respondent, who may have counsel present.
IT IS FURTHER ORDERED that this Order
shall terminate on August 3, 2009.
By the Commission, Commissioner Swindle dissenting.
Benjamin I. Berman
Acting Secretary
SEAL
ISSUED: August 3, 1999 |