UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

In the Matter of
INTEL CORPORATION, a corporation.

DOCKET NO. 9288

AGREEMENT CONTAINING CONSENT ORDER

The Agreement herein, by and between Intel Corporation, a corporation, by its duly authorized officer, herein sometimes referred to as respondent, and its attorney, and counsel for the Federal Trade Commission, is entered into in accordance with the Commission's Rule governing consent order procedures. In accordance therewith the parties hereby agree that:

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. Respondent has been served with a copy of the complaint issued by the Federal Trade Commission charging it with violation of section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, and has filed answers to said complaint denying said charge.

3. Respondent admits all the jurisdictional facts set forth in Paragraphs 1 and 3 of the Commission's complaint in this proceeding.

4. Respondent waives:

a. any further procedural steps;

b. the requirement that the Commission's Decision contain a statement of findings of fact and conclusions of law;

c. all rights to seek judicial review or otherwise to challenge or contest the validity of the order entered pursuant to this Agreement; and

d. any claim under the Equal Access to Justice Act.

5. Respondent shall submit, within thirty (30) days of the date this agreement is signed by Respondent, an initial report, pursuant to § 2.33 of the Commission's Rules, signed by the Respondent, setting forth in detail the manner in which the Respondent will comply with the Order when and if entered. Such report will not become part of the public record unless and until the accompanying agreement and order are accepted by the Commission for public comment.

6. This Agreement shall not become part of the public record of the proceeding unless and until it is accepted by the Commission. If this Agreement is accepted by the Commission it will be placed on the public record for a period of sixty (60) days and information in respect thereto publicly released. The Commission thereafter may either withdraw its acceptance of this Agreement and so notify the Respondent, in which event it will take such action as it may consider appropriate, or issue and serve its Decision, in disposition of the proceeding.

7. This Agreement is for settlement purposes only and does not constitute an admission by Respondent that the law has been violated as alleged in the Complaint, or that the facts as alleged in the Complaint, other than the jurisdictional facts set forth in Paragraphs 1 and 3 of the Complaint, are true.

8. This Agreement contemplates that, if it is accepted by the Commission, and if such acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of section 3.25(f) of the Commission's Rules, the Commission may, without further notice to Respondent, (1) issue its Decision containing the following Order to cease and desist in disposition of the proceeding, and (2) make information public with respect thereto. When so entered, the Order to cease and desist shall have the same force and effect and may be altered, modified or set aside in the same manner and within the same time provided by statute for other orders. The Order shall become final upon service. Delivery by the U.S. Postal Service of the Decision containing the agreed-to Order to Respondent's address as stated in this Agreement shall constitute service. Respondent waives any right it may have to any other manner of service. The complaint may be used in construing the terms of the Order, and no agreement, understanding, representation, or interpretation not contained in the Order or the Agreement may be used to vary or contradict the terms of the Order.

9. Respondent has read the complaint and the Order contemplated hereby. Respondent understands that once the Order has been issued, it will be required to file one or more compliance reports showing how it is complying and has complied with the Order. Respondent further understands that it may be liable for civil penalties in the amount provided by law for each violation of the Order after it becomes final.

ORDER

I

IT IS ORDERED that, as used in this Order, the following definitions shall apply:

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.

B. "Commission" means the Federal Trade Commission.

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.

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.

IT IS FURTHER ORDERED that,

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.

B. Nothing in Paragraph II.A. of this Order shall be construed to:

1. 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;

 

2. 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;

 

3. 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;

 

4. 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;

 

5. 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;

 

6. 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

otherwise limit Respondent's intellectual property rights, including the disposition of those rights.

III.

IT IS FURTHER ORDERED that:

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.

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.

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.

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.

E. For a period of five (5) years after the date this Order becomes final, Respondent shall maintain and make available to the Federal 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.

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:

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

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 ten (10) years after the date on which it is issued.

Signed this _____ day of _______________, ____.

* On behalf of Robert N. Cook, William R. Vigdor, Geoffrey Oliver, Tara L. Koslov, Erica Mintzer, Jeffrey Lin, Randall Conner, James W. Frost, Geoffrey Green, Fred Horne, Brian K. Grube