"Rambus v. F.T.C. in the Context of Standard-Setting Organizations, Antitrust, and the Patent Hold-Up Problem"

Joel M. Wallace
2009
efforts of SSOs to set clearer rules at the outset of negotiations are fears that the FTC will invalidate the product of such negotiations as anticompetitive restraints on trade. This Note makes three arguments: (1) the D.C. Circuit's decision is inconsistent with precedent and could cripple the standard setting process by preventing punishment of parties that purposely deceive SSOs; (2) SSOs should require royalty commitments from their members at the outset of the standard-setting process,
more » ... setting process, however, they must be mindful to not over-regulate, thus discouraging the use of their procompetitive processes or hindering innovation; and (3) SSO participants and non-participants should challenge the enforceability of secret patents held by participants during the standard-setting process under the doctrine of waiver. Part I discusses the standard-setting process, the relevant statutory frameworks, and previous litigation relating to antitrust liability in the SSO context. Part II delves into the Rambus litigation by examining the facts and rulings in the FTC and D.C. Circuit. Part III first analyzes the D.C. Circuit opinion. Then, it addresses the ability of SSOs to protect their members from holdup using royalty commitments, and the ability of defendants to protect themselves using the equitable defense of waiver.
doi:10.15779/z386m50 fatcat:yljy4tm4crcdhajlxeidfim2gq