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Joshua Wright, Mar 26, 2009
In November 2008, the Federal Trade Commission petitioned the Supreme Court to review the D.C. Circuit’s decision in FTC v. Rambus. That decision reversed the Commission’s finding that Rambus, a memory chip developer, knowingly failed to disclose a patent to a standard setting organization (“SSO”) and, in so doing, acquired monopoly power in violation of Section 2 of the Sherman Act. In its petition, the Commission asks the Court to resolve two questions: (1) what level of causation must be shown to prove a deceptive act contributed to the acquisition of monopoly power, and (2) whether a deceptive act that allows a party to avoid an otherwise inevitable pricing constraint constitutes an antitrust violation. In February 2009, the Court issued an order declining to hear the Commission’s appeal. This article examines some deficiencies in the Commission’s arguments in support of review, concluding that the Supreme Court was correct to deny the petition.
