Intellectual Property Law

Amici Briefs Supporting Supreme Court Review in FTC v. Rambus

By Lee.Gesmer

When old engineers (and old lawyers) sit around decades from now reminiscing about the late 1990s and early 2000s and the name of Rambus comes up, the topic will not be the Rambus DRAM (or RDRAM) chip technologies developed by Rambus, but rather the massive currents of litigation that Rambus set off as result of its alleged “patent hold-up” actions and its patent enforcement efforts.

Rambus, the lawyers on either side of its many cases, the courts, antitrust experts and economists, and of course investors in Rambus’ stock (a particularly loyal and obsessive group), have debated the pros and cons of these lawsuits for years, and today (December 24, 2008) yet another Rambus case is taking a run at the Supreme Court.

This case, which both Andy Updegrove and I have written about at length, involves somewhat arcane issues of single-firm conduct under Section 2 of the Sherman Act. However, the case also exists at a level that doesn’t require a legal degree to understand - Rambus is accused of of withholding the fact that it had pending patent applications from an important standards-setting organization (SSO), and then “holding up” the industry for unreasonable royalties when its patented technology was adopted by the SSO.

Patents, antitrust, conspiracies to deceive, very large sums of money (in the form of royalties potentially owed to Rambus by many industry players), and all of this during the technology vortex of the 1990s and 2000s. Is it any wonder that Rambus’s litigation has attracted so much attention?

As discussed here, the Federal Trade Commission found that Rambus’s actions toward the SSO violated the antitrust laws. The Court of Appeals for the D.C. Circuit reversed early this year on highly technical legal grounds. Now, the FTC has asked the Supreme Court to review the case.

Persuading the Supreme Court to review a case is harder than getting into Harvard. In its most recent term the Court decided about 70 cases, out of over 7,000 appealed. However, like admissions at Harvard, the odds aren’t quite so bad once you eliminate the cases that had no chance of review and shouldn’t have been appealed in the first place - “Hail Mary” appeals.

Many people are hopeful that the FTC/Rambus case will be accepted by the Court.  The FTC/Rambus case certainly falls within the “first in class, perfect SAT scores” category, to continue the analogy.  This is a rare opportunity, these advocates believe, for the Court to clarify the law of “single firm” monopoly conduct. And, the standards setting industry believes that the case presents critical issues necessary to the health of standards setting, an area of domestic and international cooperation whose importance is hard to overstate.

I’ve set up an FTC v. Rambus certiorari petition group page on scribed.com to collect filings on this appeal. The first step, of course, is to persuade the USSC to take the case. At present, the Rambus group page holds the D.C. Circuit decision, the FTC’s cert petition, and the amici briefs that have been filed this week.

In addition to the petition of various companies urging the Court to take the case (Hewlett Packard, Cisco, Sun and Oracle), the Rambus group page holds the petition filed by our firm, which was written by Andy Updegrove. The SSO petition was written on behalf of 19 standards setting organizations representing over 13,000 members, and it emphasizes the practical importance of this appeal - its importance to the “law of SSOs”, for lack of a better term.

A pdf copy of the SSO petition is here, and a copy on scribed.com is embedded below.

Will the Court take this case? We will know soon. I’ll continue to add amici petitions (and of course Rambus’s opposition to the appeal, which will be forthcoming soon), to the Rambus group page, as they appear.

Advanced Media, et al., Amicus Brief in FTC v. Rambus

Full post as published by Mass Law Blog on December 24, 2008 (boomark / email).