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

Abstract

This article examines the patent hold-up problem through the lens of recent litigation involving alleged abuses within standard-setting organizations (SSOs). In Rambus v. Federal Trade Commission, a case addressing antitrust liability for failing to disclose relevant patents to an SSO, the D.C. Circuit held that an SSO member should not face liability unless there is affirmative proof that the SSO would have certainly chosen another standard absent deception. This article argues that the D.C. Circuit's analysis was incompatible with its prior en banc ruling in United States v. Microsoft. Next, this article explores measures SSOs may take to avoid the patent hold-up problem. Finally, this article examines the possibility of expanding the use of equitable defenses by defendants sued by firms that attempt to engage in hold-up.

Keywords: intellectual property, joel wallace, patent, hold-up, antitrust, rambus, broadcom, qualcomm, ftc, f.t.c., standards