Tuesday, November 25, 2008
Posted by D. Daniel Sokol
According to the Commission’s complaint, Rambus engaged in deceptive conduct as a participant in a standard-setting organization (SSO) by withholding vital information about the patents it was seeking, misleading SSO members about its patent interests, and using information it got through its SSO participation, to secretly amend patent applications to ensure that ultimately it would obtain patent interests in industry standards for computer memory technologies. Following an administrative trial, the Commission found that such deception occurred, that it adversely affected competition in the standard-setting process, and that there was an adequate causal connection between the misconduct and Rambus’s achievement of monopoly power in four technology markets. Finding that Rambus’s conduct constituted unlawful monopolization under the standards of Section 2 of the Sherman Act, the Commission issued a cease and desist order under Section 5 of the FTC Act. On appeal, the Commission’s order was vacated by the D.C. Circuit. The Commission subsequently filed a petition for rehearing en banc, which the court denied, leading to the petition for certiorari filed with the U.S. Supreme Court today.