Rambus - GCR Balto Wolfram 5 20 08 comment - reformatted

Comment: Rambus v FTC 20 May 2008 “It's Not Over Until It's Over”. David Balto and Richard Wolfram, independent practitioners based in Washington, DC and New York City respectively, examine the recent DC Circuit Court of Appeals decision in Rambus Inc v Federal Trade Commission. Last month, the DC Circuit Court of Appeals, in Rambus Inc v Federal Trade Commission, unanimously reversed the FTC's August 2006 decision that Rambus had violated section 5 of the Federal Trade Commission Act by failing to disclose intellectual property rights to a standard setting organization (SSO). The decision might be seen as the closing chapter in the long saga of Rambus's antitrust battles. But such a view may be mistaken, because the DC Circuit committed significant legal errors that raise the potential for reversal by the en banc DC Circuit or the Supreme Court. As Yogi Berra famously put it, "it's not over until it's over." The background of the case is familiar. Rambus belonged to the Joint Electron Device Engineering Council (JEDEC), an SSO that had a policy requiring disclosure of certain intellectual property rights. The FTC found that Rambus violated the FTC Act by failing to disclose patents under development and patent applications to the SSO. Once JEDEC adopted a standard that practised on the undisclosed patent rights, Rambus sought royalties from the companies practising the technology. In June 2002, the FTC filed a complaint ...