Intellectual Property Law

Federal Trade Commission Seeks Supreme Court Review of D.C. Circuit?s Decision in Rambus Case

By Lee.Gesmer

The FTC’s decision to seek Supreme Court review in this case was widely expected, but nevertheless, it’s interesting to see that the FTC in fact did what many antitrust practitioners hoped it would do.  For background on this matter, see this posting from May of this year, which discusses the background of this case in some detail.  Additional posts discussing various aspects of Rambus are here, here, here and here.  The D.C. Circuit decision that is the subject of the appeal is here.

The FTC typically dedicates a page to its significant cases, and the FTC Rambus web page is here.  The FTCs cert petition is here. However, the FTC doesn’t put briefs of its opposing parties on its site, so you have to look elsewhere for those documents. Rambus provides some of those documents on its site, here, and we expect to Rambus’ opposition posted there.

Not surprisingly, the FTC’s petition for certiorari argues that standard-setting is an important economic activity, and that the D.C. Circuit’s decision leaves aspects of that process in legal limbo, due to a conflict with another circuit, and a misreading of Supreme Court precedent.  The FTC also suggests that this case is an opportunity for the Supreme Court to address the thorny issues of causation and competitive harm under Section 2 of the Sherman Act.

This will be a very closely watched and hard fought appeal, with many amicus briefs on either side of the issue.  Acceptance rates by the Court are always in the single digits, but this case presents important issues of national economic policy, and therefore I put the odds much higher than that.

Full post as published by Mass Law Blog on November 25, 2008 (boomark / email).