No. 08-694I

Supreme Court of the United States

EDERAL

RADE

OMMISSION

Petitioner

AMBUS

NCORPORATED

Respondent.

ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

OUGLAS

ELAMED

Counsel of Record

AUL

R.Q.

OLFSON

ILMER

UTLER

ICKERING

ALE AND

ORR LLP

1875 Pennsylvania Ave., N.W.Washington, D.C. 20006(202) 663-6000

(i)

QUESTIONS PRESENTED

The Federal Trade Commission ruled that Rambusviolated Section 2 of the Sherman Act, 15 U.S.C. § 2, bynot disclosing to a standard-setting organization (SSO)that it intended in the future to seek patent protectionfor technologies it invented that the SSO was consider-ing for inclusion in standards (and eventually adopted).The Commission did not find that the SSO would haveadopted different technologies or standards if Rambushad disclosed its future patent intentions. The court of appeals ruled that the Commission had therefore notproven that Rambus’s nondisclosure injured competi-tion. The questions presented are:1. Whether the court of appeals correctly vacatedthe Commission’s determination that Rambus violatedSection 2 by failing to disclose its future patent inten-tions, when the Commission did not find that the failureto disclose affected the standards chosen by the SSO,excluded rivals, or raised entry barriers, and thereforedid not find that the failure to disclose caused Rambus’smonopoly.2. Whether the court of appeals correctly con-cluded that Rambus’s nondisclosure could not be foundto violate Section 2 solely on the ground that it enabledRambus to avoid an SSO’s rule that would have con-strained its pricing.