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The one great principle of the English law is, to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Charles Dickens, Bleak House

According to John the Apostle, the poor will be always with us. So too, it seems, will the never-ending skein of cases enmeshing Rambus, Inc., the brash memory design company that famously participated in a JEDEC standard setting process in the early 1990s, and later asserted various patent claims against implementers of the very standards created by the working group in which it participated. And while the lawyers may not be to blame in this case (or more properly, these many cases), the flood of litigation involving more than a half a dozen different vendors and government agencies certainly rivals the worst that Jardyce ever threw against Jardyce in Charles Dickens’ epic tale of litigation gone wild.

The latest turning of the screw was announced this Tuesday, when the US Court of Appeals for the District of Columbia overturned a unanimous ruling by the five Commissioners of the Federal Trade Commission (who had, in their own turn, earlier overturned the decision of an FTC Administrative Law Judge, who had reached a similar result to the Circuit Court of Appeals, which had itself earlier overturned the verdict of a trial court that…well, you get the idea). In a related decision, the FTC had capped the royalties that Rambus could require implementers of the standards to pay. Now that Jill, too, will go tumbling down after the Jack that fell to the Appeals Court’s reinterpretation of the law.

The long and the short of the latest decision is that the Court of Appeals disagreed with the FTC’s conclusion that Rambus’s activities in JEDEC constituted a violation of antitrust law, and also questioned whether the Commissioners had properly concluded that Rambus had violated JEDEC’s patent disclosure policy. Summarizing and oversimplifying a complex analysis, the FTC had based its conclusions on the assumption that if Rambus had disclosed its patentable inventions in timely fashion, JEDEC would have either chosen another, non-infringing option, or would have required Rambus (under its standing rules) to pledge to make patent licenses available on reasonable and non-discriminatory (RAND) terms. The higher court held that under existing precedents, both of these alternatives would need to result in a violation of antitrust laws in order for Rambus to be held accountable .

Fortunately for Rambus, the court held that engaging in deceptive conduct to avoid the latter alternative would not violate anticompetition law, even where the result was to create monopoly power. Or, in the more formalistic language of the Court, “the FTC failed to demonstrate that Rambus’s conduct was exclusionary under settled principles of antitrust law”.

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• Andy Updegrove

  

  Andy Updegrove is a partner and founder of Gesmer Updegrove LLP, a Boston-based technology law firm, and has represented and helped structure more than 80 worldwide standard setting, open source, promotional and advocacy consortia over the past 20 years. He has also represented hundreds of both emerging as well as established technology companies, and is the founder and editor of both the popular website http://www.consortiuminfo.org and the widely-read Standards Blog

• Karen Copenhaver

  

  Karen Copenhaver is a partner in Choate, Hall & Stewart LLP ‘s Business & Technology practice focusing on technology transfer and licensing of intellectual property with a specific emphasis on open source business models. Most recently, Copenhaver was executive vice president and general counsel at Black Duck Software, Inc.