FILED

,JAN 2 3 2009
OFFICE OF THE CLERK
No. 08-694

IN THE

FEDERAL TRADE COMMISSION,

Petitioner,

RAMBUS INCORPORATED,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

A. DOUGLAS MELAMED
Counsel of Record
PAUL R.Q. WOLFSON
WILMER CUTLER BICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., N.W.
Washington, D.C. 20006
(202) 663-6000
Blank Page
 QUESTIONS PRESENTED

The Federal Trade Commission ruled that Rambus

violated Section 2 of the Sherman Act, 15 U.S.C. § 2, by
not disclosing to a standard-setting organization (SSO)
that it intended in the future to seek patent protection
for technologies it invented that the SSO was consider-
ing for inclusion in standards (and eventually adopted).
The Commission did not find that the SSO would have
adopted different technologies or standards if Rambus
had disclosed its future patent intentions. The court of
appeals ruled that the Commission had therefore not
proven that Rambus’s nondisclosure injured competi-
tion. The questions presented are:
1. Whether the court of appeals correctly vacated
the Commission’s determination that Rambus violated
Section 2 by failing to disclose its future patent inten-
tions, when the Commission did not find that the failure
to disclose affected the standards chosen by the SSO,
excluded rivals, or raised entry barriers, and therefore
did not find that the failure to disclose caused Rambus’s
monopoly.
2. Whether the court of appeals correctly con-
cluded that Rambus’s nondisclosure could not be found
to violate Section 2 solely on the ground that it enabled
Rambus to avoid an SSO’s rule that would have con-
strained its pricing.

(i)
 CORPORATE DISCLOSURE STATEMENT

Respondent has no parent corporation, and no pub-

licly held company owns 10 percent or more of its stock.

(ii)
 TABLE OF CONTENTS
Page
i
QUESTIONS PRESENTED ............................................
CORPORATE DISCLOSURE STATEMENT ............. ii
v
TABLE OF AUTHORITIES ...........................................
1
STATEMENT .....................................................................
13
ARGUMENT .....................................................................
A. The Court Of Appeals’ Decision Is Cor-
14
rect ........................................................................
1. The Court Of Appeals Did Not Im-
pose An Excessive Burden Of Cau-
16
sation ..............................................................
2. A Section 2 Plaintiff Must Show
More Than Disruption Of The
20
Process ...........................................................
3. The Commission Was Required To
Prove More Than That Rambus’s
Conduct Enabled It To Avoid A
22
RAND Commitment ...................................
B. This Case Does Not Merit Review For
26
Other Reasons As Well ......................................
1. There Is No Conflict Among The
Circuits ..........................................................
26
2. Review Is Not Needed Because Of
Possible Inconsistencies In The
27
Future ............................................................
C. The Weakness Of The Commission’s
Case On Deception Further Counsels
31
Against Review ...................................................

(iii)
 iv

TABLE OF CONTENTS---Continued

Page
CONCLUSION ................................................................. 34
 V

TABLE OF AUTHORITIES
CASES
Page(s)
Allied Tube & Conduit Corp. v. Indian Head
17, 29
Inc., 486 U.S. 492 (1987) ......................................
American Society of Mechanical Engineers v.
Hydrolevel Corp., 456 U.S. 556 (1981) ...............17, 29
Aquatherm Industries, Inc. v. Florida Power
& Light Co., 145 F.3d 1258 (llth Cir. 1996) ............21
Association for Intercollegiate Athletics for
Women v. NCAA, 735 F.2d 577 (D.C. Cir.
15
1984) .............................................................................
Barry Wright Corp. v. ITT Grinnell Corp.,
19
724 F.2d 227 (lst Cir. 1983) .......................................
Berkey Photo, Inc. v. Eastman Kodak Co.,
603 F.2d 263 (2d Cir. 1979) ..................................21, 23
Broadcom Corp. v. Qualcomm Inc., 501 F.3d
11, 26
297 (3d Cir. 2007) ..................................................
Brooke Group, Ltd. v. Brown & Williamson
Tobacco Corp., 509 U.S. 209 (1993) ....................14, 21
California Computer Products, Inc. v. IBM
Corp. 613 F.2d 727 (9th Cir. 1979) ............................
15
California Dental Association v. FTC,
23
526 U.S. 756 (1999) .....................................................
Concord Boat Corp. v. Brunswick Corp.,
15
207 F.3d 1039 (8th Cir. 2000) ....................................
Continental T.V., Inc. v. GTE Sylvania Inc.,
15
433 U.S. 36 (1977) .......................................................
Covad Communications Co. v. Bell Atlantic
21
Co., 398 F.3d 666 (D.C. Cir. 2005) ............................
 vi
TABLE OF AUTHORITIES--Continued

Page(s)
Dippin’ Dots v. Mosey, 476 F.3d 1137 (Fed.. Cir.
2007) ...........................................................................
~.21
Discon Inc. v. NYNEX Corp., 86 F. Supp. 2d
154 (W.D.N.Y. 2000) ...................................................
24
FTC v. Indiana Federation of Dentists,
476 U.S. 447 (1986) .....................................................
23
Forsyth v. Humana, Inc., 114 F.3d 1467 (9th
Cir. 1997) ......................................................................
24
Hynix Semiconductor, Inc. v. Rambus Inc.,
Nos. C-00-20905, C-05-00334, C-06-00244,
2008 WL 2951341 (N.D. Cal. July 24, 2008) ............33
Hynix Semiconductor Inc. v. Rambus Inc.,
441 F. Supp. 2d 1066 (N.D. Cal. 2006) ..................... 32
Illinois Tool Works, Inc. v. Independent Ink,
Inc.., 547 U.S. 28 (2006) .............................................. 18
International Salt Co. v. United States,
332 U.S. 392 (1947) ..................................................... 18
Kingsdown Medical Consultants, Ltd. v. Hol-
lister, Inc., 863 F.2d 867 (Fed. Cir. 1988) ..................5
MCI Communications Corp. v. American
Telephone & Telegraph Co., 708 F.2d 1081
(7th Cir. 1983) ..............................................................15
Micron Technologies, Inc. v. Rambus, Inc, No.
Civ. A. 00-792, 2006 WL 1653136 (D. Del.
June 15, 2006) .............................................................. 32
NYNEX Corp. v. Discon, Inc., 525 U.S. 128
(1998) ......................................................................
11, 24
 vii

TABLE OF AUTHORITIES--Continued

Page(s)
New York v. Julius Nasso Concrete Corp.,
202 F.3d 82 (2d Cir. 2000) ..........................................15
Newman v. Universal Pictures, 813 F.2d 1519
(9th Cir. 1987) ..............................................................24
Qualcomm Inc. v. Broadcom Corp., 548 F.3d
1004 (Fed. Cir. 2008) ..................................................29
Radiant Burners v. People’s Gas Light & Coke
Co., 364 U.S. 656 (1961) .............................................17
Rambus Inc. v. Infineon Technologies AG,
318 F.3d 1081 (Fed. Cir. 2003) .............. 4, 6, 13, 32, 33
Schaffer v. Weast, 546 U.S. 49 (2005) ..............................15
Schuylkill Energy Resources, Inc. v. Penn
Power & Light Co., 113 F.3d 405 (3d Cir.
1997) .............................................................................24
Spectrum Sports, Inc. v. McQuillan, 506 U.S.
447 (1993) ............................................................... 14, 20
Stambler v. Diebold, Inc., 11 U.S.P.Q. 2d 1709
(E.D.N.Y. 1988) ..........................................................29
Standard Oil Co. v. United States, 337 U.S. 293
(1949) ............................................................................ 18
Tampa Electric Co. v. Nashville Coal Co.,
365 U.S. 320 (1961) .....................................................18
United States v. Arnold, Schwinn & Co.,
388 U.S. 365 (1967) .....................................................15
United States v. Microsoft Corp., 253 F.3d 34
(D.C. Cir. 2001) ............................................... 10, 14, 19
 ooo
Vlll

TABLE OF AUTHORITIES---Continued

Page(s)
United States v. Westinghouse, Inc., 648 F.2d
¯ 642 (9th Cir. 1981) .................... ....................................
15
Verizon Communications, Inc. v. Law Offices
of Curtis V. Trinko, LLP, 540 U.S. 398
(2004) ...................................................
: ...................10, 23

STATUTES
15 U.S.C.
§ 2 .............................................................................
i, 1, 6
§ 4 .........................................
: ................................ ........
28
§ 14 ................................................................................
18
§ 15 ................................................................................
28
§ 45 ............................................................................
6, 28
§ 53 ................................................................................
28
28 U.S.C. § 2343 ................................................................. 28
OTHER AUTHORITIES
III Areeda, Phillip E. & Hovenkamp, Herbert,
Antitrust Law (3d ed. 2008) ................................ 19, 20
XI Hovenkamp, Herbert, Antitrust Law (2d
ed. 2005) .......................................................................
18
II Hovenkamp, Herbert et al., IP and Anti-
trust (2007 Supp.) ........................................................ 20
II Hovenkamp, Herbert et al., IP and Anti-
trust (2009 Supp.) .................................................. 20, 25
Hovenkamp, Herbert, Standards Ownership
and Competition Policy, 48 B.C.L. Rev. 87
(2007) .......................................................................
20, 29
 ix

TABLE OF AUTHORITIES--Continued
Page(s)
Lemley, Mark A., Intellectual Property Rights
and Standard-Setting Organizations,
32
90 Cal. L. Rev. 1889 (2002) ........................................
Blank Page
 THE

No. 08-694

FEDERAL TRADE COMMISSION,

Petitioner,
Vo

RAMBUS INCORPORATED,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

STATEMENT
The Federal Trade Commission seeks review of a
unanimous decision of the United States Court of Ap-
peals for the District of Columbia Circuit that applied
well-established, uncontroversial principles to set aside
a determination by the Commission that Rambus had
violated Section 2 of the Sherman Act. The court of
appeals held that the Commission’s determination was
erroneous because the Commission did not find that the
allegedly unlawful conduct, which ended more than
twelve years ago, excluded rivals, raised entry barri-
ers, or caused Rambus’s monopoly. The court also dis-
cussed at length other fundamental problems with the
Commission’s determination. The court subsequently
 2
denied the Commission’s request for rehearing en banc,
11-0. The decision of the court of appeals was correct;
there are no conflicts among the circuits; a~ad the Solici-
tor General declined to file a petition for certiorari on
behalf of the Commission. The petition should be de-
nied.
1. Rambus was founded in 1990 by two engineer-
ing professors, Mike Farmwald and Mark Horowitz. In
the late 1980s, Farmwald realized that memory chips
were not keeping pace with increases in computer proc-
essing speeds. The resulting "memory bottleneck"
threatened to impede advances in the computer indus-
try. Farmwald and Horowitz invented new computer
memory interface technologies and, in 1990, filed a pat-
ent application describing those inventions. See Pet.
App. 5a-6a.~ Their inventions vastly increased the use-
fulness of Dynamic Random Access Memc,ry (DRAM),
which is an essential component of most personal com-
puters and other electronic devices.
While Rambus was seeking patent protection for
those inventions, the computer memory industry was
working to standardize DRAM technologies through a
standard-setting organization (SSO) known as the
JEDEC Solid State Technology Association (JEDEC).
JEDEC’s members included manufacturers, such as
IBM, Infineon, Micron, and Samsung, that compete
with one another, as well as non-manufacturing compa-
nies, such as Rambus, that obtain income by licensing

1 Rambus’s original patent application contained so many dif-

ferent patentable inventions that the Patent and Trademark Office
(PTO) required Rambus to separate them into difi~rent applica-
tions. On March 5, 1992, Rambus split the claims between the
original and ten "divisional" applications. Pet. App. 467a-468a.
their inventions and providing services to manufactur-
ers.
Rambus attended its first JEDEC meeting as a
guest in December 1991 and joined JEDEC early in
1992, by which point JEDEC had already begun con-
sidering a DRAM standard that became known as syn-
chronous DRAM (SDRAM). At that time, JEDEC had
no rule requiring members to disclose intellectual prop-
erty, and JEDEC’s members guarded their intellectual
property interests jealously.2 JEDEC’s Manual of Or-
ganization and Procedure did not refer to any obliga-
tion that members disclose intellectual property. AI-
though two publications discussed what committees
should do about known patents, they did not address
pending patent applications or intentions to file or
amend applications in the future. Pet. App. 621a.
Rambus attended JEDEC meetings but did not
participate actively in JEDEC’s standard-setting ac-
tivities. Rambus never promoted or advocated the in-
clusion of any technologies in any JEDEC standard,
and it never voted in favor of any technologies. Pet.
App. 501a-502a, 922a.
In March 1993, a JEDEC committee voted to for-
ward a standard for SDRAM to the JEDEC Council for
approval. The Council adopted the standard on May 24,
1993. At that time, Rambus had no issued patents or
undisclosed claims in pending patent applications that

2 Rambus protected its as-yet-unpatented inventions by en-

tering into nondisclosure agreements with prospective licensees.
Pet. App. 449a-450a. Outside counsel advised Rambus to keep con-
fidential its patent applications, which the company consistently
treated as trade secrets. Id. at 662a-664a.
 4

manufacturers would have had to license; in order to

practice the SDRAM standard. Pet. App. 669a.
In October 1993, after adopting the SDRAM stan-
dard, JEDEC published a revised manual, which di-
rected committee chairs to "call attention 1;o the obliga-
tion of all participants to inform the meeting of any
knowledge they may have of any patents, or pending
patents, that might be involved in the work they are
undertaking." Pet. App. 572a-573a. As the court of ap-
peals observed, even if this language obligated (rather
than encouraged) JEDEC members to die, close issued
patents and pending patent applications, i~ "says noth-
ing of unfiled work in progress on potential amend-
ments to patent applications." Id. at 23a. In litigation
between Rambus and a DRAM manufacturer, the Fed-
.eral Circuit found that JEDEC never required its
members to disclose their "plans or intentions" to file or
amend patent applications in the future. See Rambus
Inc. v. Infineon Techs. AG, 318 F.3d 1081, 1102, 1105
(Fed. Cir. 2003).
In October 1995, JEDEC circulated a "survey bal-
lot" that inquired about the technical benefits from in-
cluding technologies in a next-generation :DRAM stan-
dard. Survey ballots were "straw votes" designed to
solicit early input on possible future standardization
efforts. The October 1995 survey ballot did not ask
members to disclose any patent interests. Pet. App.
25a.
Rambus attended its last JEDEC meeting in De-
cember 1995 and formally notified JEDEC of its with-
drawal by letter on June 17, 1996. The first presenta-
tion at JEDEC on the eventual next-generation stan-
dard known as DDR SDRAM~did not occur until six
months after Rambus’s withdrawal. The committee did
not approve the standard until March 1998, and
JEDEC did not publish the standard until August 1999.
Pet. App. 7a, 100a-101a, 104a.
2. While JEDEC was working slowly toward
adopting the DDR SDRAM standard, Rambus filed
continuation patent applications with new claims better
capturing the range of inventions disclosed in its initial
application. In doing so, Rambus followed well-
accepted patent practice; a patent applicant may amend
claims in the PTO based on marketplace developments
so long as the patent’s original written description
shows that the inventor was in possession of any later-
claimed inventions when he filed the original applica-
tion. See, e.g., Kingsdown Med. Consultants, Ltd. v.
Hollister, Inc., 863 F.2d 867, 874 (Fed. Cir. 1988).
Rambus continued, after it withdrew from JEDEC,
to file applications based on the inventions described in
its initial 1990 application. These applications began
maturing into issued patents in 1999, and Rambus of-
fered to license its patented technologies to DRAM
manufacturers shortly thereafter. Rambus filed its
first patent-infringement suit in January 2000, after a
manufacturer refused to accept a license.
Rambus never had any undisclosed issued or pend-
ing patent claims that read on any existing or proposed
JEDEC standard while it was a JEDEC member.
Rambus has never sued to enforce any patents that is-
sued, or any patent claims for which it applied, while it
was a JEDEC member. All the patents that Rambus
has sued to enforce that cover technologies included in
JEDEC standards were based on applications that
Rambus filed after it withdrew from JE’,DEC.3 The
Commission’s case thus necessarily rests on the conten-
tion that Rambus improperly failed to disc.lose, while it
was a member of JEDEC, its intention to file, in the
future, patent claims that (if they issued and were
valid) Rambus believed would cover technologies then
under consideration at JEDEC (see Pet. App. 22a).
That is what the Commission’s nebulous term "patent
interests" (Pet. 3) means in this case.
3. The Commission instituted this proceeding in
2002. Its complaint alleged that Rambus had engaged
in unlawful monopolization by failing to disclose its pat-
ent interests relating to DRAM standards under con-
sideration by JEDEC. Pet. App. 417a-418a. The pro-
ceeding was formally brought under Section 5 of the
Federal Trade Commission Act, 15 U.S.C. § 45, but the
Commission decided the case solely under the stan-
dards applicable to a monopolization claim under Sec-
tion 2 of the Sherman Act, 15 U.S.C. § 2. See Pet. App.
12a.
After a trial involving 44 witnesses and more than
700 exhibits, the Administrative Law Judge (ALJ)
ruled in favor of Rambus on several independent
grounds. Pet. App. 387a-979a. The ALJ found that
JEDEC’s policies at most encouraged the voluntary
disclosure of patents by JEDEC members (id. at 620a-

3 Despite the Commission’s suggestion to the contrary (Pet.

7), the patent claims that Rambus filed after it lefl; JEDEC were
not based on nonpublic information Rambus obtained while a
member of JEDEC. Indeed, the pertinent standards and JEDEC
minutes discussing the proposed standards were made public be-
fore those claims were filed. Infineon, 318 F.3d at 1085; Pet. App.
490a, 507a.
 7
621a) and did not impose any obligation to disclose pat-
ents, patent applications, or intentions to file or amend
patent applications (id. at 621a-622a). The ALJ also
found that Rambus did not have any undisclosed pat-
ents or patent applications that it should have disclosed
under any JEDEC policy and that there was "no basis"
to conclude that Rambus violated any disclosure duty.
Id. at 664a-676a. The ALJ further concluded that
Rambus had a "legitimate business justification" for
treating its patent applications and intentions as confi-
dential trade secrets, to preserve their value in the
marketplace. Id. at 697a-705a. Finally, the ALJ ex-
haustively analyzed the alternative technologies that
JEDEC might have selected and concluded that Com-
plaint Counsel had failed to prove that any of them was
viable. Id. at 757a-787a. Thus, the ALJ concluded,
Complaint Counsel had not proven that Rambus ac-
quired its monopoly "as a result of" any unlawful con-
duct. Id. at 940a.4
4. The Commission reversed the ALJ. Pet. App.
225a-226a. It concluded that Rambus had engaged in
unlawful monopolization by failing to disclose, in "dis-
regard [of] JEDEC’s policy and practice [and] the duty
to act in good faith," "the potential that Rambus would
be able to impose royalty obligations" on DRAM manu-
facturers. Id. at 33a, 224a. The Commission did not
find that any JEDEC rule explicitly required members
to disclose their "patent interests." But the Commis-
sion concluded that the "cooperative" nature of JEDEC
gave its members--who are otherwise fierce competi-
tors an "expectation" that members would act in

4 The ALJ also found that Rambus’s royalties were reason-

able and nondiscriminatory. Pet. App. 826a-837a.
"good faith" towards one another by disclosing their
patents and patent applications relating to technologies
under consideration for incorporation into a standard.
Id. at 136a, 138a. The Commission did not find, how-
ever, that JEDEC members had any specific expecta-
tion of disclosure of intentions to file or amend patent
applications in the future. See id. at 22a. The Commis-
sion called Rambus’s failure to tell DRAM manufactur-
ers about its patent interests "deception." Pet. App.
138a.5
The Commission did not find that, if Rambus had
disclosed its patent interests, JEDEC would have
standardized different technologies. The Commission
concluded only that there was sufficient evidence to
support "a primafacie showing of a causal link between
Rambus’s conduct and its [monopoly] power." Pet.
App. 149a. The Commission then shifted to Rambus
the burden to prove that its nondisclosures had not
caused JEDEC to adopt its technologies, and concluded
that Rambus had failed to carry that burden. Id. at
161a-184a.
The Commission also did not find that, if Rambus
had made the disclosures, JEDEC would have either
reexamined its standards or instituted ex ante bargain-
ing with Rambus over actual royalty rates.6 Rather,
the Commission believed that JEDEC would have been

5 The Commission also characterized certain ~,~tatements and

actions by Rambus as "deceptive," but it made no finding that any
of those statements or actions had anything to do with JEDEC’s
adoption of the standards at issue. See Rambus C.A. Reply Br. 5-
8.
6 The Commission referred to the theoretical possibility of
such processes (Pet. 4-5, 11) but made nofinding of such activities.
 9

obligated by its rules to request that Rambus commit

to charge "reasonable and nondiscriminatory" (RAND)
royalties, without any elucidation of what such royalty
rates would have been. Pet. App. 114a, 187a. The
Commission thus "infer[red]" that, had Rambus dis-
closed its patent interests, "JEDEC either would have
excluded Rambus’s patented technologies from the
JEDEC DRAM standards, or would have demanded
RAND assurances, with an opportunity for ex ante li-
censing negotiations." Id. at 150a (emphases added).
After further briefing on remedy issues, the Com-
mission ordered Rambus to license its patented tech-
nologies at royalty rates far below its customary rates
for three years, and then to license them for free. Pet.
App. 302a-306a. In reaching that conclusion, the Com-
mission acknowledged that Complaint Counsel had
failed to prove that JEDEC would have chosen alterna-
tive technologies had Rambus disclosed its patent in-
terests (id. at 284a) and thus proceeded on the premise
that Rambus’s technologies would have been chosen
anyway. The Commission concluded that, if the disclo-
sures had been made, JEDEC would have insisted that
Rambus commit to licensing on RAND terms and
Rambus would have agreed to do so. The Commission
made no finding as to what JEDEC members believed
a RAND commitment would have meant. See id. at
292a-296a.
5. The court of appeals set aside the Commission’s
decision and held that its findings, even if supported in
fact, did not establish a violation of Section 2. Pet. App.
1a-26a.
Reviewing this Court’s and its own case law, the
court of appeals first noted that "the mere existence of
a monopoly does not violate the Sherman Act," and that
 10
a Section 2 violation requires proof of "’the willful ac-
quisition or maintenance of that power as .distinguished
from growth or development as a consequence of a su-
perior product, business acumen, or historical acci-
dent.’" Pet. App. 12a (citing, inter alia, Verizon
Commc’ns, Inc. v. Law Offices of Curtis V. Trinko,
LLP, 540 U.S. 398 (2004), and United States v. Micro-
soft Corp., 253 F.3d 34 (D.C. Cir. 2001) (en banc). The
court further observed that, "to be condemned as ex-
clusionary, a monopolist’s act must have ’anticompeti-
tive effect.’ That is, it must harm the competitive proc-
ess and thereby harm consumers. In contrast, harm to
one or more competitors will not suffice." Id. at 13a
(citing, inter alia, Trinko and Microsoft). And, the
court noted, "it is the antitrust plaintiff including the
Government as plaintiff--that bears the burden of
proving the anticompetitive effect of the monopolist’s
conduct." Id. (citing Microsoft).
Applying those settled principles to the case at
hand, the court concluded that the Commission had not
established that Rambus’s nondisclosures had had an
anticompetitive effect. The Commission did state that,
if Rambus had made the supposedly req[uired disclo-
sures, then JEDEC either would have excluded its
technologies or would have demanded an assurance of
licensing on RAND terms. But, the court stressed,
"the Commission did not determine that one or the
other of those two possible outcomes was the more
likely." Pet. App. 13a. Indeed, the court observed, "the
Commission made clear in its remedial opinion that
there was insufficient evidence that JIm’,DEC would
have standardized other technologies had it known the
full scope of Rambus’s intellectual property." Id. at
14a. Thus, the court concluded, it could, sustain the
Commission’s determination of a Section 2 violation
 11
only if the second outcome avoiding "assurances from
Rambus of RAND licensing terms"itself constituted
the required harm to competition. Id.
The court then concluded that merely avoiding a
pricing commitment is insufficient to establish the req-
uisite "anticompetitive effect" for a Section 2 violation.
The court distinguished between conduct that affects
the structure of a market by harming rivals and thus
diminishing competition and conduct that "raises the
price secured by a seller, but does so without harming
competition," which "is beyond the antitrust laws’
reach." Pet. App. 15a. The court explained that "an
otherwise lawful monopolist’s use of deception simply
to obtain higher prices normally has no particular ten-
dency to exclude rivals and thus to diminish competi-
tion." Id. at 16a. As an example, the court pointed to
NYNEX Corp. v. Discon, Inc., 525 U.S. 128 (1998),
where this Court concluded that a utility’s scheme to
"hoodwink[] the regulators" and thus "raise[] prices for
consumers," without causing a "less competitive mar-
ket" for the services the monopolist was offering, did
not raise antitrust concerns. Pet. App. 16a-17a.
For similar reasons, the court distinguished the
Third Circuit’s decision in Broadcom Corp. v. Qual-
comm Inc., 501 F.3d 297 (2007), where that court "held
that a patent holder’s intentionally false promise to a
standard-setting organization that it would license its
technology on RAND terms, ’coupled with [the organi-
zation’sl reliance on that promise when including the
technology in a standard,’ was anticompetitive conduct,
on the ground that it increased ’the likelihood that pat-
ent rights will confer monopoly power on the patent
holder.’" Pet. App. 18a-19a (quoting Broadcom, 501
F.3d at 314). As the court below noted, the Broadcom
decision "rested on the argument that deceit lured the
 12
SSO away from non-proprietary technology" and thus
affected the structure of the technology market,
whereas, in this case, the Commission explicitly stated
that it could not find Rambus’s nondisclosures had had
such an effect (id. at 19a). Because "the Commission
expressly left open the likelihood that JEDEC would
have standardized Rambus’s technologies even if Ram-
bus had disclosed its intellectual property," JEDEC
"lost only an opportunity to secure a RAND commit-
ment from Rambus," and "loss of such a commitment is
not a harm to competition from alternative technologies
in the relevant markets." Id.
Because the court concluded that Rambus’s nondis-
closures did not have an anticompetitive effect, it was
not required to decide whether those nondisclosures
violated any disclosure duty. The court went on, how-
ever, to explicate at length its "serious concerns about
[the] strength of the evidence relied on to support some
of the Commission’s crucial findings regarding the
scope of JEDEC’s patent disclosure policies and Ram-
bus’s alleged violation of those policies." Pet. App. 21a.
First, the court noted that no JEDEC policy appeared
to require disclosure of "not merely [members’] rele-
vant patents and patent applications, but also their
work in progress on amendments to pending applica-
tions that included new patent claims." Id. at 22a. Sec-
ond, because the Commission’s case appeared to rest
not on formal JEDEC disclosure policies but on
JEDEC members’ "expectations," the cot~rt expressed
concern about "the vagueness of any s~ch expecta-
tions," especially given that JEDEC was composed of
marketplace rivals who would normally be expected to
"vigorously protect" their intellectual property as trade
secrets; indeed, the court noted that disclosure of those
trade secrets among competitors "itself implicates anti-
 13
trust concerns." Id. at 23a-24a.7 Finally, the court
noted that the Commission’s case with respect to the
DDR SDRAM standard was particularly weak given
that the supposed nondisclosure came at a very early
stage of development of the standard (id. at 25a) (and
Rambus left JEDEC long before the standard was
adopted, see p. 4, supra).
6. The Commission’s petition for rehearing en
banc was denied, 11-0. Pet. App. 380a-381a.
ARGUMENT
The court of appeals applied well-settled principles
to conclude that (a) the Commission’s findings were in-
sufficient to establish that Rambus’s nondisclosure af-
fected the structure of any market and (b) any effect
that Rambus’s nondisclosures might have had on pric-
ing alone was insufficient to establish a Section 2 viola-
tion. Those rulings do not conflict with any decision of
this Court or any other court of appeals or with the
academic commentary cited by the Commission. The
Commission’s submission that the decision below raises
grave implications for antitrust enforcement is wide of
the mark; indeed, the Solicitor General, who would cer-
tainly be concerned with antitrust enforcement by the
Commission and the Justice Department, declined to
seek this Court’s review.8 The court of appeals also

7 The court echoed an observation by the Federal Circuit that

"JEDEC’s patent disclosure policies suffered from ’a staggering
lack of defining details.’" Pet. App. 23a-24a (quoting Infineon, 318
F.3d at 1102).
8 There is no basis for the assertion by amici Hynix, et al.,
that the Solicitor General "already has informed the Court that
Rambus’s deceptive conduct amounts to an archetypical ’patent
hold-up’" (Hynix Br. 19). The cited Solicitor General amicus brief
 14

noted several serious concerns about the factual under-

pinnings of the Commission’s case. Further review by
this Court is not warranted.

A. The Court Of Appeals’ Decision Is Correct

As the court of appeals recognized, thi~.s case is con-
trolled by two basic principles. First, Section 2 is di-
rected at conduct that injures competition by excluding
rivals by, for example, restricting their ability to enter
the market or raising their costs. See Pet. App. 15a; see
also Brooke Group, Ltd. v. Brown & Williamson To-
bacco Corp., 509 U.S. 209, 224-225 (1993) (smtitrust laws
do not "create a federal law of unfair competition" but
rather are concerned with whether improper conduct
"would monopolize a particular market") (internal quo-
tation marks omitted); Spectrum Sp~rts, Inc. v.
McQuillan, 506 U.S. 447, 459 (1993) ("§ 2 makes the
conduct of a single firm unlawful only when it actually
monopolizes or ... threatens to do so"); Microsoft, 253
F.3d at 58.
Second, the burden of proving this element of a
Section 2 violation--namely, that the defendant’s con-
duct actually had an exclusionary effect--rests with the
plaintiff. Not only has this Court expressly stated that
the burden of proof in antitrust cases rests with the

(from the eBay case) discussed generally what a "hold-up scenario"

might be but nowhere suggested that Rambus in fact had engaged
in such a hold-up; that would have been a most peculiar assertion
in an amicus brief, in a case not involving Rambus, concerning
standards for issuance of a permanent injunction against patent
infringement. Moreover, the Solicitor General stressed a number
of equitable principles in patent law that can address concerns
about patent hold-up and make antitrust intervention unneces-
sary. See 05-130 U.S. Br. 21-22.
 15
plaintiff, see United States v. Arnold, Schwinn & Co.,
388 U.S. 365, 374 n.5 (1967),9 but "the ordinary default
rule [isl that plaintiffs bear the risk of failing to prove
their claims" and must therefore carry the burden on
every element to prevail, see Schaffer v. Weast, 546
U.S. 49, 56-57 (2005). Thus, courts have uniformly held
that "the plaintiff must show that the defendant’s acts
unnecessarily excluded competition from the relevant
market." California Computer Prods~, Inc. v. IBM
Corp., 613 F.2d 727, 735 (9th Cir. 1979) (internal quota-
tion marks omitted); see Association for Intercollegiate
Athletics for Women v. NCAA, 735 F.2d 577, 584 (D.C.
Cir. 1984) (plaintiff must prove that "the defendant in
fact acquired monopoly power as a result of unlawful
conduct"); United States v. Westinghouse, Inc., 648
F.2d 642, 649 (9th Cir. 1981) ("The government bears
the burden of showing causation."); see also Concord
Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1054
(8th Cir. 2000); New York v. Julius Nasso Concrete
Corp., 202 F.3d 82, 88 (2d Cir. 2000); MCI Commc’ns
Corp. v. American Tel. & Tel. Co., 708 F.2d 1081, 1161
(7th Cir. 1983).
Under these principles, the court of appeals cor-
rectly concluded that the Commission’s order could not
stand. The Commission referred to what it called "a
prima facie showing of a causal link" between Ram-
bus’s conduct and JEDEC’s decisions incorporating
Rambus’s technologies into its standards. P~et. App.
149a-150a. As the court of appeals explained, however,
the Commission did not find that Rambus’s nondisclo-
sures actually caused JEDEC’s decisions or otherwise

9 Schwinn was overruled on other grounds in Continental

T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977).
 16
excluded rivals from any market. Id. at 150a. The
Commission found only that Rambus’s nondisclosures
led to either JEDEC’s adoption of Rambus’s technolo-
gies or Rambus’s avoidance of a RAND commitment.
Id. at 14a, 19a. Indeed, the Commission. expressly
stated that Complaint Counsel had failed to establish,
by a preponderance of the evidence, that any improper
conduct by Rambus caused JEDEC to adopt Rambus
technologies as standards. Id. at 284a, 286a. Thus, al-
though the petition states that Rambus obtained a mo-
nopoly "[a]s a result of" exclusionary conduct (Pet. 3, 8),
the Commission itself made no such finding, and its de-
cision Could not be sustained on that basis.

1. The Court Of Appeals Did Not Impose An

Excessive Burden Of Causation
The Commission contends that the court of appeals
applied an impermissibly onerous concept of causation.
Pet. 18-22. That contention rests on a mischaracteriza-
tion of the court’s decision. The court of appeals no-
where denied, as the Commission suggests (Pet. 17-18),
that monopoly power might result from several factors,
including exclusionary conduct. Nor did t:he court hold
that the Commission had to establish that the defen-
dant’s misconduct was the only factor contributing to
the monopoly. The court concluded only ~hat, because
the Commission could not find by a preponderance of
the evidence--after a full-scale retrospective examina-
tion of the JEDEC process--that JEDEC would have
adopted different technologies had Rambus made the
disclosures, Rambus’s nondisclosures cannot be said to
have caused JEDEC to adopt its technologies and thus
to have excluded rivals and caused Rambus’s monop-
 17
oly.1° The Commission did not find that Rambus’s non-
disclosures were either necessary or sufficient to cause
JEDEC to adopt the standards it chose.
Moreover, although the Commission states that the
court of appeals "did not dispute" that Rambus’s non-
disclosures were "likely to weigh heavily in JEDEC’s
choice of technologies for inclusion in the proposed
standards" (Pet. 18), the Commission did not find that
those nondisclosures in fact weighed heavily in
JEDEC’s decision. Instead, in its liability opinion the
Commission addressed the causation requirement only
by requiring a minimal showing of causation--a "prima
facie" showing of a mere "causal link" between the al-
leged conduct and the effect on competitionmand then
requiring Rambus to disprove causation. See Pet. App.
149a, 161a. Indeed, the Commission went so far as to
require Rambus to prove "inevitability" by establishing
that "its patented technologies were superior to all [al-
ternative] technologies" once licensing costs were con-
sidered. See id. at 163a-164a. The Commission thus, in
effect, required Rambus to prove a negative--that its
nondisclosures could not have affected the JEDEC
standard. No law supports that approach to the causa-
tion requirement of Section 2.
The Commission states that "[i]n a case like this,"
the defendant properly bears the risk of uncertainty
(Pet. 14), but the few authorities it cites do not support

lo The Court’s previous standard-setting antitrust cases in-

volved conduct that affected the decisions of the SSO and thereby
excluded rivals. See Allied Tube & Conduit Corp. v. Indian Head,
Inc., 486 U.S. 492, 496-497 (1987); American Soc’y of Mech. Eng’rs
v. Hydrolevel Corp., 456 U.S. 556, 560-564 (1981); Radiant Burners
v. People’s Gas Light & Coke Co., 364 U.S. 656, 659-660 (1961).
 18
that assertion. Standard Oil Co. v. United States, 337
U.S. 293 (1949), provides no support for the Commis-
sion’s Section 2 analysis. The Court’s observations
about the difficulties of proof of market impact were
part of its analysis of the very different Section 3 of the
Clayton Act, 15 U.S.C. § 14, which prohibits practices
"wherever their effect ’may be’ to substantially lessen
competition" and thus, the Court said, requires the
government to prove only that "competition has been
foreclosed in a substantial share of the line of commerce
affected," 337 U.S. at 308-314.11 See also id. at 309
(finding Clayton Act violation even assuming "no im-
provement of Standard’s competitive position" and that
"Standard does not by itself dominate the market").12
Moreover, in Standard Oil, the government sought to

1~ See also XI Herbert Hovenkamp, Antitrust Law ¶ 1800, at

17-18 & n.66 (2d ed. 2005).
1~- Even in the Clayton Act Section 3 context, it is question-
able whether Standard Oil is consistent with the Court’s more
recent antitrust jurisprudence. As the Court explained at length
(337 U.S. at 304-308), it reached its result in that case largely be-
cause of a perceived need to be consistent with International Salt
Co. v. United States, 332 U.S. 392 (1947), where the Court had "re-
jected the necessity of demonstrating economic consequences" in a
tying case under Section 3 when "the volume of business affected
is not insignificant or insubstantial." Standard oil~ 337 U.S. at 304
(internal quotation marks omitted). But the Court’s view of tying
in International Salt was largely repudiated i~a Illinois Tool
Works, Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006). Fur-
thermore, the Court’s strict approach to requirements contracts in
Standard Oil was superseded in Tampa Electric Co. v. Nashville
Coal Co., 365 U.S. 320 (1961). One commentator has described
Standard Oil’s rule of "virtual per se illegality"~i.e., its refusal to
require proof that a requirements contract actually caused anti-
competitive effect--as "the least defensible part" of that opinion.
See XI Hovenkamp, supra, ¶ 1801, at 50.
 19
enjoin ongoing conduct that might harm competition in
the future; here, by contrast, the issue is whether
Rambus obtained its monopoly in the past by conduct
that ended more than twelve years ago.
As it has before, the Commission relies on a pas-
sage in a treatise by Professors Areeda and Hovenk:
amp to the effect that "exclusionary conduct" should
include conduct that "’reasonably appear[s] capable of
making a significant contribution to creating or main-
taining monopoly power.’" Pet. 17 (quoting III Areeda
& Hovenkamp, Antitrust Law ¶ 651g, at 124 (3d ed.
2008)). As before, the Commission has misconstrued
the passage. That passage is directed, not to the causa-
tion element in monopolization cases, but rather to the
antecedent requirement that defendant’s conduct must
be objectionable.~3 On the different and pertinent issue
of causation, the treatise says something very different:
"[T]he plaintiff generally has the burden of... proving
... that anticompetitive behavior has contributed sig-

L3 The Commission-cited portions of Barry Wright Corp. v.

ITT Grinnell Corp., 724 F.2d 227, 230 (1st Cir. 1983), and Micro-
soft, 253 F.3d at 79, also addressed the issue of conduct rather than
causation, as did cases cited by amici (Hewlett-Packard Br. 11-12;
AAI Br. 15 & n.9). None of the cited cases holds that conduct "ca-
pable of ... creating" monopoly power is enough for a violation of
Section 2, without proof of causation. Cfi Microsoft, 253 F.3d at 58-
59, 61-62 (separately addressing the conduct and causation re-
quirements and finding that the multifaceted conduct at issue
there maintained Microsoft’s monopoly by excluding rivals and
raising entry barriers). The Commission’s petition for rehearing
en banc relied heavily on an alleged intracircuit conflict with Mi-
crosoft, but there is no conflict. Indeed, two of the seven judges on
the Microsoft en banc court were on the panel below, and six of the
seven were included among the eleven who voted to deny the
Commission’s petition for rehearing.
 2O
nificantly to the achievement or maintenance of the
monopoly." III Areeda & Hovenkamp, Antitrust Law
¶ 650c, at 92-93 (3d ed. 2008) (emphasis added). The
Commission did not find that here.
Indeed, Professors Hovenkamp, Janis, and Lemley,
in a different treatise, state that in a Section 2 case
based on deception of an SSO, "the competitive risk" is
that the deception "will cause a standard-setting or-
ganization to adopt a standard it otherwise would have
rejected." Thus, they conclude, in editions published
both before and after the court of appeals decision, that
"an antitrust plaintiff must establish that the standard-
setting organization would not have adopted the stan-
dard in question but for the misrepresentation or omis-
sion." II Hovenkamp, Janis, & Lemley, IP and Anti-
trust § 35.5, at 35-37 (2009 Supp.) (citing court of ap-
peals’ decision), § 35.5, at 35-45 (2007 Supp.) (emphasis
added); see also Hovenkamp, Standards Ownership
and Competition Policy, 48 B.C.L. Rev. 87, 105-106,
108-109 (2007).
2. A Section 2 Plaintiff Must Show More Than
Disruption Of The Process
Unable to show by a preponderance of the evidence
that Rambus’s nondisclosures caused its monopoly, the
Commission argues that it is sufficient that those non-
disclosures "disrupted the competitive process" at
JEDEC (Pet. 14), when Rambus did not have monopoly
power. This argument is wrong both as a matter of law
and as a matter of fact.
As a matter of law, this Court has repeatedly held
that objectionable conduct which by its nature dis-
rupts the competitive process and has the potential to
injure competition by excluding rivals---floes not vio-
late Section 2 unless it actually excludes rivals and
 21
causes a defendant’s monopoly (or, in a case of ongoing
conduct unlike the case here, threatens to do so). See,
e.g., Spectrum Sports, 506 U.S. at 459; Brooke Group,
509 U.S. at 225-226.
The lower courts have thus consistently held that
even affirmative acts of deception, even when under-
taken by existing monopolies, do not violate Section 2
unless they are shown to have injured competition.
See, e.g., Berkey Photo, Inc. v. Eastman Kodak Co., 603
F.2d 263, 288 n.41 (2d Cir. 1979) (deceptive advertising
not unlawful absent proof that it actually injured com-
petition); Covad Commc’n Co. v. Bell Atl. Co., 398 F.3d
666, 674-675 (D.C. Cir. 2005) (same); Aquatherm Indus.,
Inc. v. Florida Power & Light Co., 145 F.3d 1258, 1261
(llth Cir. 1996) (deception by monopoly firm does not
violate Section 2 unless it increases defendant’s market
share or barriers to entry); see also Dippin’ Dots v.
Mosey, 476 F.3d 1337, 1346-1347 (Fed. Cir. 2007) (even
fraud on patent office violates Section 2 only if patent
would not otherwise have issued).14
Moreover, the factual premise of the Commission’s
argument is not supported by the Commission’s find-
ings; the Commission’s incorrect legal argument is thus
inapplicable to the facts found by the Commission, and
this case is a poor vehicle for review of that argument.
The Commission made no finding that any "competitive
process" at JEDEC was distorted by Rambus’s nondis-
closure. Specifically, the Commission did not find (and

14 The general discussions in some of the amicus curiae briefs

about the possible consequences of deception in standard-setting
are thus immaterial here, where the issue is not whether deception
can affect competition, but whether the Commission adequately
found that it did so in this case.
 22

there is no evidence) that, if Rambus had made the al-

legedly required disclosures, JEDEC’s members would
have engaged in a more extensive analys.is of compet-
ing technologies, JEDEC would have opened the stan-
dard-setting process to reexamination or competitive
bidding, or JEDEC or JEDEC members would have
negotiated with Rambus over licensing terms.15 To the
contrary, the evidence showed that, when JEDEC
members disclosed their intellectual property, the dis-
closure either was ignored or was followed by a RAND
commitment with no change to the standard.16 At
most, the evidence and findings suggest that, if Ram-
bus had disclosed its "patent interests," J:EDEC would
have requested, and Rambus would have given, a com-
mitment to license its technologies on RAND terms,
and JEDEC would have adopted Rambus’s technolo-
gies-just as JEDEC actually did. In short, Rambus’s
nondisclosures did not affect any "competi[tive process"
attendant to JEDEC’s adoption of the standards.

3. The Commission Was Required To Prove

More Than That Rambus’s Conduct Enabled
It To Avoid A RAND Commitment
Because the Commission’s order cannot be sus-
tained on the theory that Rambus’s nondi[sclosures ex-
cluded rivals, it could be sustained only if the Commis-
sion’s alternate theory--that the nondisclosures en-
abled Rambus to avoid a RAND commitment--was suf-

15 Indeed, Commissioner Rosch noted that l;here is no evi-

dence that "JEDEC or its members had ever negotiated a royalty
rate" ex ante or that "JEDEC or its members even had the exper-
tise to do that." Pet. App. 351a.
Pet. App. 806a-812a.
 23
ficient for a Section 2 violation. The court of appeals
correctly concluded that it was not.
As the court of appeals stated, "an otherwise lawful
monopolist’s use of deception simply to obtain higher
prices normally has no particular tendency to exclude
rivals and thus to diminish competition." Pet. App. 16a.
The Commission’s petition does not dispute that propo-
sition. Rather, the Commission objects to the premise
that Rambus was an otherwise "’lawful monopolist’"
(Pet. 23-24). But that premise was clearly correct in
this context, given that (as the court of appeals had al-
ready observed) the Commission was unable to find
that Rambus obtained its monopoly through deception.
As this Court explained in Trinko, "[t]he mere posses-
sion of monopoly power, and the concomitant charging
of monopoly prices, is not only not unlawful; it is an im-
portant element of the free-market system." 540 U.S.
at 407 (emphasis added); see also Berkey Photo, 603
F.2d at 294 ("Setting a high price may be a use of too-
nopoly power, but it is not anticompetitive.").17
The Commission suggests that avoiding a con-
straint on pricing such as a RAND commitment can it-

17 The Commission’s glancing citations (Pet. 22) to California

Dental Ass’n v. FTC, 526 U.S. 756 (1999), and FTC v. Indiana
Federation of Dentists, 476 U.S. 447 (1986), do not aid its case.
Those cases involved horizontal agreements by which market ri-
vals reduced competition among themselves, in violation of Sec-
tion 1, by withholding output. This Court has always treated
agreements among competitors to restrict their competition as
highly suspicious, see 476 U.S. at 458-459, but a monopolist (which
can unilaterally withhold output) does not violate Section 2 unless
it obtained or maintained its monopoly through the unlawful exclu-
sion of rivals because, absent such exclusion, there is no injury to
competition.
 24

self be deemed to be the unlawful creatiola of a monop-

oly, but that is precisely the proposition that this Court
rejected in NYNEX. NYNEX makes clear that mis-
conduct does not violate the Sherman Act merely be-
cause it harms consumers by enabling a firm to charge
higher prices; a Sherman Act violation requires proof
that the misconduct resulted in "a less competitive
market." See 525 U.S. at 136.is In thi.s case, as in
NYNEX, the "less competitive market" did not result
from misconduct but rather was the result of the lawful
acquisition of a monopolyRin NYNEX, from the com-
pany’s status as a regulated utility and, in this case,
from JEDEC’s adoption of Rambus’s superior, pat-
ented technologies.19

18 The principal issue in NYNEX was whether a buyer’s

agreement to favor one seller over another for improper reasons
violated the per se rule against group boycotts. 525 U.S. at 133,
135. This Court concluded that it did not, even though the ar-
rangement in that case allegedly allowed the buyer, a monopoly
utility, to charge consumers higher prices by deceiving its regula-
tor. See id. at 132. The Court also ruled that a Section 2 claim
could not be stated on that basis, because a harmful effect on price
was not itself impairment of competition. Id. at 139. On remand,
the district court found no rule of reason violation for the same
reason, among others. Discon Inc. v. NYNEX C¢~p., 86 F. Supp.
2d 154, 163-164 (W.D.N.Y. 2000).
19 Several lower court cases, some of which the cour~ of ap-
peals discussed (Pet. App. 18a), also hold that schemes to avoid
pricing constraints, in both regulated and unregulated markets, do
not violate Section 2 where they do not exclude ~ivals. See, e.g.,
Forsyth v. Humana, Inc., 114 F.3d 1467, 1477-147~ (9th Cir. 1997)
(kick-back scheme that caused higher prices); Schuylkill Energy
Res., Inc. v. Penn Power & Light Co., 113 F.3d 405, 414-415 (3d
Cir. 1997) (conduct that violated PURPA and resulted in price in-
creases did not violate Section 2 because it did not "exclude [a]
competitor"); see also Newman v. Universal Pictures, 813 F.2d
 25

The Commission also contends that Rambus’s

avoidance of a RAND commitment injured competition
because JEDEC’s requirement of a RAND commit-
ment "was the means by which JEDEC sought to pre-
serve the benefits of ex ante competition" (Pet. 25). As
discussed above (pp. 8, 22), however, the Commission
made no finding that there was or would have been any
ex ante competition at-JEDEC. Moreover, while a
RAND commitment does require the patent holder to
license the relevant patents on reasonable and nondis-
criminatory terms, there is no evidence of what
JEDEC understood the royalty constraint to mean,
much less any evidence that it was meant to emulate
hypothetical, ex ante bargaining.2°

1519 (9th Cir. 1987) (conspiracy to avoid paying sums owed under
contract). Neither the Commission nor amici cites any case to the
contrary.
2o Without acknowledging the passage and reasoning in the
IP and Antitrust treatise that speak directly to the issue pre-
sented in this case ~see p. 20, supra), the Commission quotes a pas-
sage from the treatise to the effect that, if "the plaintiff can show
that the patent owner would have licensed the patent at a competi-
tive rate" if it had disclosed the patent before the SSO acted "but
charged a higher rate because of the nondisclosure," the over-
charge can be regarded as competitive harm from the nondisclo-
sure. Pet. 25 n.8. But, as noted, there is no evidence that Rambus
would have licensed its technologies at a more competitive rate or
that a RAND commitment would have required it to do so. More-
over, the Commission fails to note that the passage it quotes ex-
plicitly refers to the situation where the SSO "does not require
that [the patents] be licensed." IP and Antitrust (2009 Supp.)
§ 35.5, at 35-47. The passage thus does not apply to the situation
here, in which disclosure is used to trigger a RAND commitment
and thus an obligation to license the patents.
 26
In any event, the Commission’s contention would
mean that any deceptive or other conduct that affects
prices violates Section 2, even if it does not exclude ri-
vals or otherwise affect market structure. The cases
have consistently rejected that contention. See p. 21,
supra.
B. This Case Does Not Merit Review For Other Rea-
sons As Well
. The Commission’s other arguments fi)r review are
also wide of the mark.

1. There Is No Conflict Among The Circuits

The Commission argues that the decision below
conflicts with the Third Circuit’s decision in Broadcom
on the issue whether a patentee’s avoiding a commit-
ment to license its patents on RAND terms is sufficient
by itself to meet the injury to competition requirement
of Section 2. As the court of appeals in this case cor-
rectly recognized, however, Broadcom (wihich reversed
the dismissal of a complaint for failure to state a claim)
rested squarely on the allegation tha~ Qualcomm,
through affirmative misstatements, "induced" the SSO
"to incorporate ... into the" standard a technology it
"would not have considered" otherwise. 501 F.3d at
315.21 In other words, the complaint in Broadcom al-
leged exactly what the Commission was unable to find
here--that the alleged misconduct caused the SSO to
adopt the defendant’s technology in a standard.
The Broadcom court did not decide (because it was
not at issue, given the posture of the case) that a Sec-

21 The court reiterated that point at least six times. See 501
F.3d at 304 (twice), 306, 313, 314, 316.
 27
tion 2 claim might be stated merely by alleging that the
patentee’s deceit had an "impact" on the "competitive
standard-setting process" (Pet. 28), without establish-
ing that the misconduct actually caused incorporation of
patented technology into a standard. It was that ef-
fect--the inclusion of Qualcomm’s patented technology
in the standard--that gave rise to Qualcomm’s monop-
oly. Rambus’s nondisclosure had no such effect.
Although the Commission asserts that the decision
below "departed from the causation standard that other
authorities support" (Pet. 26), it alleges no other circuit
conflict. Instead, the Commission relies for that asser-
tion principally on a passage in a treatise, but as ex-
plained above (p. 19), that passage addresses a different
issuenwhether conduct is exclusionary in nature or
"improper"--not the standard of causation. Whether
the conduct was improper is not the issue here; it is un-
disputed that deception can cause the creation or main-
tenance of monopoly. Pet App. 15a. The question here
is whether Rambus’s nondisclosure in fact had that ef-
fect, and the Commission did not find that it did.
2. Review Is Not Needed Because Of Possible
Inconsistencies In The Future
The Commission suggests that the decision below
"is likely to lead to inconsistent results in monopoliza-
tion cases" in the future (Pet. 26-27). That is a surpris-
ing conjecture given the lack of inconsistency with the
first one hundred-plus years of Sherman Act jurispru-
dence.
The Commission also speculates that parties sub-
ject to future Commission enforcement actions will
seek review in the D.C. Circuit to gain the benefit of
that court’s decision in this case. That concern is over-
stated. First, unlike some provisions for judicial review
 28
of agency orders, 15 U.S.C. § 45(c) does not provide for
judicial review of all Commission orders in the D.C.
Circuit,22 but lays venue there only if the petitioner
"resides" or "carries on business" in the District of Co-
lumbia or if the act or practice in question was used
there. Many firms will be unable to seek review in the
D.C. Circuit under this provision. Further, the Com-
mission, the United States, and private litigants can
enforce Section 2 by bringing actions directly in district
courts, with appeals to the various regional circuits.
See 15 U.S.C. §§ 4, 15(a), 53(b). Should another court of
appeals disagree with the D.C. Circuit’s discussion of
causation, this Court could then decide whether that
conflict warrants its review of the issue. There is no
present conflict.
Moreover, the issue genuinely presented by the
Commission’s petition is quite narrow--wlhether a Sec-
tion 2 violation is established when a fact-finder is un-
able to conclude by a preponderance of the evidence
that alleged deception several years earlier caused an
SSO to adopt a particular technology as l~he standard.
That issue has rarely arisen in litigation.
There is no basis for the Commission’s exaggerated
assertion (echoed by some amici) that, even in the con-
text of standard-setting, the court of appeals’ decision
"would immunize such deception from antitrust liability
in most circumstances’" (Pet. 15; see Hewlett-Packard
Br. 10). The court of appeals did not, for example,
question the Broadcom court’s conclusion that decep-
tion can violate Section 2 if it causes an SSO to adopt

~ Compare 28 U.S.C. § 2343 (venue always proper in D.C.

Circuit for challenges to certain other agency actions).
 29
patented technology. Nor did the court of appeals sug-
gest any doubt about this Court’s decisions that noted
the potential for anticompetitive conduct in standard-
setting, especially by collusion among competitors,23 or
about the availability of other remedies for deception at
SSOs such as fraud, contract, equitable estoppel, and
patent misuse.24
The amicus briefs paint with a broad brush in argu-
ing that this case warrants review because of the im-
portance of standard-setting. Although standard-
setting is indeed important, this case is highly idiosyn-
cratic because the Commission found only that Rambus
violated JEDEC members’ unwritten "expectations" of
disclosuremnot clear SSO rules or policies requiring
disclosure--and that Rambus improperly failed to dis-
close intentions to seek patent protection in the fu-
ture--not already-issued patents or even pending
claims, and because the Commission expressly could
not find that the nondisclosure affected the standards.
Thus, the theoretical concerns raised by amici are inap-
plicable to this case. Some amici are concerned about
violations of explicit SSO disclosure rules, usually cov-

23 See Allied Tube, 486 U.S. at 500; Hydrolevel, 456 U.S. at

471.
24 See, e.g., Qualcomm Inc. v. Broadcom Corp., 548 F. 3d 1004
(Fed. Cir. 2008); Stambler v. Diebold, Inc., 11 U.S.P.Q. 2d 1709
(E.D.N.Y. 1988); see also Hovenkamp, Standards Ownership, 48
B.C.L. Rev. at 105 ("doctrines derived from the patent laws or
contract law, such as equitable estoppel, generally are more ap-
propriate for addressing" these problems); Scholars Br. 15 ("pri-
vate ordering~’ is preferable to antitrust intervention). Such reme-
dies are likely to become more available as SSOs "experiment[]"
with new and different policies. See Hewlett-Packard Br. 4-5.
 3O
ering already-issued or pending patent claims;25 others
are concerned about conduct that prevents ex ante
competition that would otherwise take place or that in-
terferes with the SSO’s choice of standards~-~--none of
which the Commission found in this case. Indeed, sev-
eral of the amici acknowledge that SSO rules vary
widely and are changing, which suggests that review
by this Court should await further private sector and
lower court experience with the issues of concern to
amici.2~
All that is at issue here is whether a firm that ob-
tained a monopoly in part as a result of an SSO’s deci-
sion to adopt its superior technologies but was not
found to have obtained the monopoly by means of
wrongful conduct, or to have violated a~ay SSO rule,
should nonetheless be deemed to have vic,lated Section
2 because it failed to disclose its intentions to file patent

25 See AMWA Br. 4 (discussing SSO "policy’’ that addresses

¯ disclosure of "relevant member-owned claims"); AAI Br. 9-13 (dis-
cussing cases that involved pending or issued patent claims);
Scholars Br. 5 (stating that SSOs "frequently adopt by-laws re-
quiring such things as disclosure of patents or patent applica-
tions").
~ See Hewlett-Packard Br. 6; Nanya Br. 8-9; ;Scholars Br. 5.
27 See Hewlett-Packard Br. 4-5; AMWA Br. 21. Moreover, al-
though several amici advert to costs to standard--setting if firms
were allowed to capture standards through deception (see AMWA
Br. 24; Hynix Br. 16), amici also note that SSOs limit disclosure
requirements to avoid burdening and thus discouraging participa-
tion (AMWA Br. 3-4). Participation would be burdened if firms
were required, as a condition to participating in an SSO, to disclose
trade secret information about their future intentiens to file patent
claims. See note 31, infra (none of 43 surveyed SSOs required such
disclosure).
 31

claims in the future, allegedly in contravention of a

general expectation of good faith. No decision of this
Court or any other appellate court addresses such an
issue. Should that issue turn out to be significant, it
will undoubtedly be subject to appellate consideration
in the future. The Commission has failed to show that
it warrants this Court’s immediate intervention.

C. The Weakness Of The Commission’s Case On De-

ception Further Counsels Against Review
Although the court of appeals found it unnecessary
to resolve Rambus’s challenge to the Commission’s de-
termination that nondisclosure of its "patent interests"
contravened JEDEC disclosure expectations, it noted
at great length its "serious concerns about [the]
strength of the evidence relied on to support some of
the Commission’s crucial findings regarding the scope
of JEDEC’s patent disclosure policies and Rambus’s
alleged violation of those policies." Pet. App. 21a. The
court of appeals’ deep (and well-founded) skepticism
about the factual underpinnings of the Commission’s
case is another factor counseling against review be-
cause, even if this Court were to reverse the court of
appeals’ legal rulings, it is very likely that the court of
appeals would set aside the Commission’s order on an-
other ground.28 At a minimum, that order would be
undergoing judicial review until 2010, at which point
most of the patents at issue would have expired.29

28 Rambus raised several other legal challenges to the Com-

mission’s order that were not addressed by the court of appeals
but would be renewed on remand. See Rambus C.A. Br. 31-76.
29 The principal relief ordered by the Commission was a pro-
spective limitation on the royalties that Rambus could collect un-
 32
The Commission’s case against Rambles rests on its
contention that Rambus had an obligation to disclose to
JEDEC its intentions to file or amend patent claims in
the future. But the Commission did not find that any
JEDEC rule required such disclosure, and as the court
of appeals explained, the evidence of such an obligation
is very thin. At most, JEDEC documents suggested
that members should disclose patent claims already is-
sued by or pending in the PTO, but Rmnbus had no
such claims that were pertinent. Pet. App.. 21a-22a. In
fact, every case that has addressed the question has
concluded that JEDEC rules did not require disclosure
of future patent intentions.3° That is not surprising; a
study of 43 SSOs did not identify even one that obli-
gated members to disclose mere intentio~s to file pat-
ent applications.31 Firms routinely treat their intention
to seek patent protection as a highly sensitive trade se-
cret. If JEDEC had required its members to disclose
such trade secrets, one would expect the obligation to
have been unmistakably clear.

der certain patents for the manufacture, sale, or use of certain

JEDEC-compliant products. See Pet. App. 370a-371a; see also id.
at 371a-372a. The Commission did not seek a stay of the mandate
after the court of appeals issued its decision. Tl~us, even if the
Commission were to prevail on remand, its order could affect only
royalties collected between the date of a new order after remand
and the expiration of the patents.
3o See Infineon, 318 F.3d at 1098; Hynix Semiconductor Inc.
v. Rambus Inc., 441 F. Supp. 2d 1066, 1074 (N.D. Cal. 2006); Mi-
cron Tech., Inc. v. Rambus, Inc., No. Civ. A. 00-792, 2006 WL
1653136, at *2 (D. Del. June 15, 2006); see also Pet. App. 620a-622a.
31 See Lemley, Intellectual Property Rights and Standard-
Setting Organizations, 90 Cal. L. Rev. 1889, 1904-11905, 1973-1975
(2002).
 33
Although no JEDEC rule required disclosure of fu-
ture patent intentions, the Commission found a disclo-
sure obligation on the basis of JEDEC members’ gen-
eral "expect[ations]" of "good faith." (See pp. 7-8, su-
pra.) But, as the court of appeals explained (Pet. App.
23a-24a), resting such a momentous disclosure obliga-
tion on the subjective and vague "expectations" of
commercial rivals would be perilous. Indeed, the Com-
mission did not identify any details of those expecta-
tions (e.g., what kinds of intellectual property were
covered, the relationship between the patent interest
and the proposed standard that triggered the duty, the
timing of the required disclosure, or what kind of dis-
closure would have satisfied the duty). The Commis-
sion’s expectations theory fails to "’define clearly what,
when, how, and to whom the members must disclose.’"
Pet. App. 24a (quoting Infineon, 318 F.3d at 1102).32
Although the court of appeals did not find it neces-
sary to resolve definitively whether Rambus failed to
comply with any JEDEC disclosure obligation, its dis-
cussion of the record strongly suggests that it would
reverse the Commission on that ground. Thus, even if
the legal questions presented by the Commission’s peti-
tion might in some other case warrant this Court’s at-
tention, it is unlikely that the Court’s resolution of
them would affect the ultimate outcome of this case.

32 After a lengthy trial that largely replicated the trial in this

case, a jury found that JEDEC members did not share expecta-
tions that members would disclose information about patent appli-
cations or intentions. See Hynix Semiconductor, Inc. v. Rambus
Inc., Nos. C-00-20905, C-05-00334, C-06-00244, 2008 WL 2951341,
at *2-3 (N.D. Cal. 2008). Several of the amici here were losing par-
ties in that case and are, in effect, seeking to win here what they
lost in their own litigation.
 34
CONCLUSION
The petition for a writ of certiorari should be de-
nied.

Respectfully sub:mitted.

A. DOUGLAS MELAMED
Counsel of Record
PAUL R.Q. WOLFSON
WILMER CUTLER BICKERING
HALE AND DORR LLP
1875 Pennsylvani[a Ave., N.W.
Washington, D.C. 20006
(202) 663-6000

JANUARY 2009