The Antitrust Risks of Unilateral Conduct in Standard Setting, in the Light of the Ftc S Case against Rambus Inc

This article explores the current state of tension between intellectual property rights and antitrust in the standard-setting organization (SSO) context, in light of In re Rambus Inc. (2004) in particular, and offers suggestions for avoiding attendant antitrust risks. Background on the tension between standard setting and antitrust is presented. Past and present FTC enforcement issues in standard setting are discussed. The issues of causation and the required standard of proof to establish competitive harm in antitrust actions aimed at patent holdups in standard setting are examined. A key issue in dispute in Rambus is examined - the extent to which causation can be inferred or assumed from the anticompetitive conduct. Drawing from and contrasting elements of Rambus, typical SSO rules on search, disclosure and licensing are outlined. Assessment is made of some of the choices and potential antitrust pitfalls facing SSO participants when they have intellectual property related to a proposed standard and offer some guidance on dealing with these choices and pitfalls.