Analyze This! Deconstructing Rambus Following the Supreme Court’s Denial of Certiorari The Mechanics of How the D.C. Circuit’s Decision Jumped the Tracks

Richard Wolfram, Independent Practitioner - American Antitrust Institute

6/17/2009
(Original Publish Date: 4/27/2009)

In late February, the Supreme Court denied the FTC's petition for certiorari in its seven-year case against Rambus Inc. for alleged monopolization of DRAM computer memory technology through patent hold-up in standard setting. In April 2008, the D.C. Circuit had concluded that the Commission could not show that Rambus's deceptive avoidance of a standard setting organization (SSO) obligation to license on reasonable and non-discriminatory (RAND) terms constituted exclusionary conduct under Section 2 of the Sherman Act. The FTC had acknowledged that it could not rule out the possibility that after Rambus, hypothetically, disclosed its intellectual property relevant to the standard, the SSO members, rather than choose an alternative technology, might instead have selected Rambus's technology for the standard after extracting a RAND commitment. On this basis, the court found that Rambus's deception did not necessarily exclude rival technology in the competition for selection as the standard and that it therefore could have lawfully acquired monopoly power.