Abstract

http://ssrn.com/abstract=1586430
 
 

Footnotes (359)



 


 



The D.C. Circuit’s Excessively High Causation Standard in Rambus


Michael A. Carrier


Rutgers University School of Law - Camden

April 8, 2010


Abstract:     
In the most important ruling ever on causation and standard-setting, In re Rambus, the D.C. Circuit made it unnecessarily difficult to demonstrate causation. It erected roadblock after roadblock in front of legitimate cases alleging monopolization in the standard-setting context.

The primary hurdle took the form of a dichotomy. The court reasoned that Rambus’s nondisclosure of its patents was responsible for the standard-setting organization (SSO) either (1) adopting its technology or (2) failing to obtain reasonable-and-nondiscriminatory (RAND) royalties. But its reasoning on each prong of the dichotomy cut off legitimate claims.

The first prong, of adoption, received a strict “but for” causation standard that is essentially impossible for a plaintiff to show. The FTC was punished for not “eliminating the possibility” that the SSO might have included Rambus’s technology even if it had been disclosed. But the difficulties of proving a sole cause and predicting a counterfactual setting are extremely difficult. The challenges are even higher in the standard-setting context, in which there are numerous potential technologies, including many that are unpatented and less expensive.

The second prong, addressing RAND royalties, suffered from an excessive reliance on the case of NYNEX Corp. v. Discon, Inc., which presented a far different factual scenario than Rambus. The D.C. Circuit imbued one line in the case, on monopoly pricing, with far more weight than was warranted. In addition, unlike Rambus, the case dealt with the conduct of a party that already had monopoly power.

Number of Pages in PDF File: 25

Keywords: Antitrust, Standard-Setting, Causation, Rambus, Monopolization, Discon

JEL Classification: K21, L12, L41, L63, O31, O34

working papers series


Download This Paper

Date posted: April 8, 2010 ; Last revised: May 25, 2014

Suggested Citation

Carrier, Michael A., The D.C. Circuit’s Excessively High Causation Standard in Rambus (April 8, 2010). Available at SSRN: http://ssrn.com/abstract=1586430 or http://dx.doi.org/10.2139/ssrn.1586430

Contact Information

Michael A. Carrier (Contact Author)
Rutgers University School of Law - Camden ( email )
217 North Fifth Street
Camden, NJ 08102-1203
United States
856-225-6380 (Phone)
856-225-6516 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 936
Downloads: 193
Download Rank: 91,723
Footnotes:  359

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 1.140 seconds