Broadcom Corp. v. Qualcomm Inc.

OPINION OF THE COURT

This appeal presents important questions regarding whether a patent holder’s deceptive conduct before a private standards-determining organization may be condemned under antitrust laws and, if so, what facts must be pled to survive a motion to dismiss. Broadcom Corporation (“Broadcom”) alleged that Qualcomm Inc. (“Qualcomm”), by its intentional deception of private standards-determining organizations and its predatory acquisition of a potential rival, has monopolized certain markets for cellular telephone technology and components, primarily in violation of Sections 1 and 2 of the Sherman Act and Sections 3 and 7 of the Clayton Act. The District Court dismissed the Complaint, and Broadcom appeals. For the reasons that follow, we conclude that Broadcom has stated claims for monopolization and attempted monopolization under § 2 of the Sherman Act — Claims 1 and 2 of the Complaint. We also conclude, however, that Broadcom lacks standing to assert a claim for unlawful monopoly maintenance in a market in which it neither competes nor seeks to compete — Claim 7 — and that it has failed to allege an antitrust injury sufficient to state a claim under § 7 of the Clayton Act — Claim 8. We will, accordingly, affirm in part, reverse in part, and will order the reinstatement of Broadcom’s state and common-law claims.

I. Background

A. Mobile Wireless Telephony and the UMTS Standard

Mobile wireless telephony is the general term for describing the technology and equipment used in the operation of cellular telephones. A cellular telephone contains one or more computer “chipsets”- — the core electronics that allow it to transmit and receive information, either telephone calls or data, to and from the wireless network. Chipsets transmit information, via radio waves, to cellular base stations. Base stations, in turn, transmit information to and from telephone and computer networks. It is essential that all components involved in this transmission of information be able to communicate seamlessly with one another. Because multiple vendors manufacture these components, industry-wide standards are necessary to ensure their interoperability. In mobile wireless telephony, standards are determined privately by industry groups known as standards-determining organizations (“SDOs”).

Two technology paths, or families of standards, are in widespread use today: “CDMA,” which stands for “code division multiple access”; and “GSM,” which stands for “global system for mobility.” Cellular telephone service providers operate under one or the other path, with, for example, Verizon Wireless and Sprint Communications operating CDMA-path networks, and Cingular (now AT&T) and T-Mobile operating GSM-path networks. The CDMA and GSM technology paths are not interoperable; equipment and technologies used in one cannot be used in the *304 other. For this reason, each technology path has its own standard or set of standards. The standard used in current generation GSM-path networks is the third generation (“3G”) standard created for the GSM path, and is known as the Universal Mobile Telecommunications System (“UMTS”) standard. 1

The UMTS standard was created by the European Telecommunications Standards Institute (“ETSI”) and its SDO counterparts in the United States and elsewhere after a lengthy evaluation of available alternative equipment and technologies. Qualcomm supplies some of the essential technology that the ETSI ultimately included in the UMTS standard, and holds intellectual property rights (“IPRs”), such as patents, in this technology. Given the potential for owners of IPRs, through the exercise of their rights, to exert undue control over the implementation of industry-wide standards, the ETSI requires a commitment from vendors whose technologies are included in standards to license their technologies on fair, reasonable, and non-discriminatory (“FRAND”) terms. Neither the ETSI nor the other relevant SDOs further define FRAND.

Broadcom alleged that Qualcomm was a member of the ETSI, among other SDOs, and committed to abide by its IPR policy. Specifically, Broadcom alleged, the ETSI included Qualcomm’s proprietary technology in the UMTS standard only after, and in reliance on, Qualcomm’s commitment to license that technology on FRAND terms. The technology in question is called Wide-band CDMA (“WCDMA”), not to be confused with the CDMA technology path. Although it represents only a small component of the technologies that collectively comprise the UMTS standard, WCDMA technology is said to be essential to the practice of the standard.

B. Broadcom’s Complaint

Broadcom filed this action in the U.S. District Court for the District of New Jersey on July 1, 2005, and filed its First Amended Complaint (the “Complaint”) shortly thereafter. The Complaint alleged that Qualcomm induced the ETSI and other SDOs to include its proprietary technology in the UMTS standard by falsely agreeing to abide by the SDOs’ policies on IPRs, but then breached those agreements by licensing its technology on non-FRAND terms. The intentional acquisition of monopoly power through deception of an SDO, Broadcom posits, violates antitrust law.

The Complaint also alleged that Qual-comm ignored its FRAND commitment to the ETSI and other SDOs by demanding discriminatorily higher (i.e., non-FRAND) royalties from competitors and customers using chipsets not manufactured by Qual-comm. Qualcomm, the Complaint continued, has a 90% share in the market for CDMA-path chipsets, and by withholding favorable pricing in that market, coerced cellular telephone manufacturers to purchase only Qualcomm-manufactured UMTS-path chipsets. These actions are alleged to be part of Qualcomm’s effort to obtain a monopoly in the UMTS chipset market because it views competition in that market as a long-term threat to its existing monopolies in CDMA technology.

*305 Broadcom claims to have been preparing to enter the UMTS chipset market for several years prior to its filing of the Complaint. After Broadcom purchased Zyray Wireless, Inc., a developer of UMTS chip-sets, Qualcomm allegedly demanded that Broadcom license Qualcomm’s UMTS technology on non-FRAND terms. Broad-com refused, and commenced this action. Qualcomm also allegedly acquired Flarion Technologies, a competitor in the development of technologies for inclusion in the forthcoming B3G and 4G standards, in an effort to extend Qualcomm’s monopolies into future generations of standards.

Based on the above factual allegations, the Complaint asserted claims under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2; Sections 3 and 7 of the Clayton Act, 15 U.S.C. §§ 14, 18; and various state and common-law claims.

C. The District Court’s Opinion

Qualcomm moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. On August 30, 2006, 2006 WL 2528545, little more than a year after the filing of the Complaint and while discovery was ongoing, the District Court granted the motion. In dismissing Broadcom’s claim of monopolization in the WCDMA technology markets, the Court reasoned that Qualcomm enjoyed a legally-sanctioned monopoly in its patented technology, and that this monopoly conferred the right to exclude competition and set the terms by which that technology was distributed. Acknowledging that industry-wide standards merit “additional antitrust scrutiny” (App. at A18), the Court nevertheless quickly concluded that the inclusion of Qualcomm’s WCDMA technology in the UMTS standard did not harm competition because an absence of competition was the inevitable result of any standard-setting process. That inclusion of Qualcomm’s technology may have been the product of deception was of no moment under antitrust law, the Court continued, because no matter which company’s patented technology ultimately was chosen, the adoption of a standard would have eliminated competition. (Id. at A21 (“[I]t is the SDO’s decision to set a standard for WCDMA technology, not Qualcomm’s ‘inducement,’ that results in the absence of competing WCDMA technologies.”).) The Court did not discuss the possibility that the FRAND commitments that SDOs required of vendors were intended as a bulwark against unlawful monopoly, nor did it consider the possibility that the SDOs might have chosen nonproprietary technologies for inclusion in the standard.

As to the claim that Qualcomm was attempting to obtain a monopoly in the UMTS chipset market by exploiting its monopolies in WCDMA technology and CDMA-path chipsets, the District Court faulted the Complaint for not providing “information on the composition or dynamics of the market for UMTS chipsets to enable the Court to infer that Qualcomm’s conduct is anticompetitive.” (Id. at A23.) The Court also dismissed Broadcom’s claim for unlawful maintenance of monopoly, reasoning that the combination of patent rights and an industry-wide standard foreclosed the possibility of unlawful monopoly, and that the Complaint did not describe the composition of the 3G CDMA chipset market in sufficient detail.

The District Court, next, dismissed Broadcom’s claims for unlawful tying and exclusive dealing, finding that Qualcomm’s mere refusal to offer discounts and market incentives to potential licensees who did not purchase Qualcomm chipsets was neither coercive nor an unlawful agreement not to use a competitor’s goods that foreclosed a substantial share of commerce. The Court also dismissed the final federal claim, the claim relating to Qualcomm’s *306 purchase of Flarion, finding Broadcom’s alleged injuries “too speculative.” (Id. at A44.) Absent a federal claim, the Court declined to exercise supplemental jurisdiction over the remaining state and common-law claims, and dismissed the Complaint with leave to amend. Choosing to stand on its Complaint, Broadcom filed this timely appeal.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction to decide Broadcom’s federal antitrust claims under 28 U.S.C. §§ 1331 and 1337, and § 4 of the Sherman Act, 15 U.S.C. § 4. Supplemental jurisdiction over Broadcom’s state and common-law claims was proper under 28 U.S.C. § 1367. We have jurisdiction to review the final order of the District Court under 28 U.S.C. § 1291.

Our review of a district court’s dismissal of a complaint for failure to state a claim is plenary. Lum v. Bank of America, 361 F.3d 217, 223 (3d Cir.2004). In reviewing a dismissal under Rule 12(b)(6), “we accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002).

III. Discussion

Broadcom raises these issues on appeal: whether deception of an SDO may give rise to antitrust liability under the circumstances alleged, whether the Complaint adequately pled claims of attempted monopolization and monopoly maintenance, and whether the claim relating to Qualcomm’s acquisition of Flarion was properly dismissed. Broadcom does not appeal the dismissal of its claims for tying and exclusive dealing.

A. The District Court erred in dismissing Claim 1—the monopolization claim—on the ground that abuse of a private standard-setting process does not state a claim under antitrust law.

Claim 1 of the Complaint alleged that Qualcomm monopolized markets for WCDMA technology by inducing the relevant SDOs to include Qualcomm’s patented technology as an essential element of the UMTS standard. Qualcomm did this by falsely promising to license its patents on FRAND terms, and then reneging on those promises after it succeeded in having its technology included in the standard. These actions, the Complaint alleged, violated § 2 of the Sherman Act, 15 U.S.C. § 2.

1. Unlawful Monopolization under § 2: Monopoly Power

Section 2 of the Sherman Act, in what we have called “sweeping language,” makes it unlawful to monopolize, attempt to monopolize, or conspire to monopolize, interstate or international commerce. 2 It is, we have observed, “the provision of the antitrust laws designed to curb the excesses of monopolists and near-monopolists.” LePage’s Inc. v. 3M, 324 F.3d 141, 169 (3d Cir.2003) (en banc). Liability under § 2 *307 requires “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superi- or product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). Monopoly power is the ability to control prices and exclude competition in a given market. Id. at 571, 86 S.Ct. 1698. If a firm can profitably raise prices without causing competing firms to expand output and drive down prices, that firm has monopoly power. Harrison Aire, Inc. v. Aerostar Inti, Inc., 423 F.3d 374, 380 (3d Cir.2005).

The existence of monopoly power may be proven through direct evidence of supracompetitive prices and restricted output. United States v. Microsoft Corp., 253 F.3d 34, 51 (D.C.Cir.2001) (en banc); Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1434 (9th Cir.1995). It may also be inferred from the structure and composition of the relevant market. Harrison Aire, 423 F.3d at 381; Microsoft, 253 F.3d at 51. To support an inference of monopoly power, a plaintiff typically must plead and prove that a firm has a dominant share in a relevant market, and that significant “entry barriers” protect that market. Harrison Aire, 423 F.3d at 381; Microsoft, 253 F.3d at 51. Barriers to entry are factors, such as regulatory requirements, high capital costs, or technological obstacles, that prevent new competition from entering a market in response to a monopolist’s su-pracompetitive prices. Microsoft, 253 F.3d at 51; Rebel Oil, 51 F.3d at 1439; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 591 n. 15, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (“Without barriers to entry it would presumably be impossible to maintain supracompetitive prices for an extended time.”).

Proving the existence of monopoly power through indirect evidence 3 requires a definition of the relevant market. See SmithKline Corp. v. Eli Lilly & Co., 575 F.2d 1056, 1062-63 (3d Cir.1978). The scope of the market is a question of fact as to which the plaintiff bears the burden of proof. Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 436 (3d Cir.1997); Weiss v. York Hosp., 745 F.2d 786, 825 (3d Cir.1984). Competing products are in the same market if they are readily substitutable for one another; a market’s outer boundaries are determined by the reasonable interchangeability of use between a product and its substitute, or by their cross-elasticity of demand. Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). Failure to define the proposed relevant market in these terms may result in dismissal of the complaint. Queen City Pizza, 124 F.3d at 436.

*308 2. Unlawful Monopolization under § 2: Anticompetitive Conduct

The second element of a monopolization claim under § 2 requires the willful acquisition or maintenance of monopoly power. As this element makes clear, the acquisition or possession of monopoly power must be accompanied by some anticompetitive conduct on the part of the possessor. Verizon Commcn’s Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004). Anticompetitive conduct may take a variety of forms, but it is generally defined as conduct to obtain or maintain monopoly power as a result of competition on some basis other than the merits. LePage’s, 324 F.3d at 147. Conduct that impairs the opportunities of rivals and either does not further competition on the merits or does so in an unnecessarily restrictive way may be deemed anticompetitive. Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 604-05 & n. 32, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985). Conduct that merely harms competitors, however, while not harming the competitive process itself, is not anticompetitive. See Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 224, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993) (“It is axiomatic that the antitrust laws were passed for ‘the protection of competition, not competitors.’ ” (quoting Brown Shoe, 370 U.S. at 320, 82 S.Ct. 1502)); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993) (“The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself.”).

In activities that enjoy First Amendment protection, such as lobbying, firms may enjoy broad immunity from antitrust liability for concerted efforts to influence political action in restraint of trade, even when such efforts employ unethical or deceptive methods. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136-38, 144-45, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); Mine Workers v. Pennington, 381 U.S. 657, 669—72, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); see also Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499-500, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). “[I]n less political arenas,” however, such as here, “unethical and deceptive practices can constitute abuses of administrative or judicial processes that may result in antitrust violations.” Allied Tube, 486 U.S. at 500, 108 S.Ct. 1931. Private standards-determining organizations, in contrast to legislative or quasi-legislative bodies, have historically been subject to antitrust scrutiny. Id.; Am. Soc. of Mech. Eng’rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 571, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982) (“[A] standard-setting organization ... can be rife with opportunities for anticompetitive activity.”).

The primary goal of antitrust law is to maximize consumer welfare by promoting competition among firms. Areeda & Ho-venkamp, supra, ¶ 100a; see also Le-Page’s, 324 F.3d at 169. Private standard setting advances this goal on several levels. In the end-consumer market, standards that ensure the interoperability of products facilitate the sharing of information among purchasers of products from competing manufacturers, thereby enhancing the utility of all products and enlarging the overall consumer market. See Allied Tube, 486 U.S. at 501, 506-07, 108 S.Ct. 1931 (noting the procompetitive benefits of private standard setting); Areeda & Ho-venkamp, supra, ¶ 2233 (referring to the foregoing benefits as “network externalities”); see also Letter from Thomas O. Barnett, Assistant Attorney Gen., Antitrust Div., Dep’t of Justice, to Robert A. Skitol, Esq. [hereinafter “Skitol Letter”] 7 *309 (Oct. 30, 2006), available at 2006 WL 3326742; Deborah Platt Majoras, Chairman, Fed. Trade Comm’n, Recognizing the Procompetitive Potential of Royalty Discussions in Standard Setting, Remarks (Sept. 23, 2005), available at 2005 WL 2406107, at *1; Gerald F. Masoudi, Deputy Assistant Attorney Gen., Address at the High-Level Workshop on Standardization, IP Licensing, and Antitrust, Tilburg Law & Economics Center, Tilberg University (Jan. 18, 2007), available at 2007 WL 969967, at *3. (Br. of Amici Curiae American Antitrust Institute and Consumer Federation of America [hereinafter “AAI/CFA Br.”] 18; Br. of Amici Curiae The Institute of Electrical and Electronics Engineers, Inc. et al. [hereinafter “IEEE Br.”] 17-18.) This, in turn, permits firms to spread the costs of research and development across a greater number of consumers, resulting in lower per-unit prices. (Br. of Amici Texas Instruments Inc. et al. [hereinafter “Texas Instruments Br.”] 4.) Industry-wide standards may also lower the cost to consumers of switching between competing products and services, thereby enhancing competition among suppliers. (Id.)

Standards enhance competition in upstream markets, as well. One consequence of the standard-setting process is that SDOs- may more readily make an objective comparison between competing technologies, patent positions, and licensing terms before an industry becomes locked in to a standard. (AAI/CFA Br. 19.) Standard setting also reduces the risk to producers (and end consumers) of investing scarce resources in a technology that ultimately may not gain widespread acceptance. (Texas Instruments Br. 5.) The adoption of a standard does not eliminate competition among producers but, rather, moves the focus away from the development of potential standards and toward the development of means for implementing the chosen standard. (Cf. id. at 17.) 4

Each of these efficiencies enhances consumer welfare and competition in the marketplace and is, therefore, consistent with the procompetitive aspirations of antitrust law. See Areeda & Hoven-kamp, supra, ¶ 100a. Thus, private standard setting—which might otherwise be viewed as a naked agreement among competitors not to manufacture, distribute, or purchase certain types of products—need not, in fact, violate antitrust law. See Allied Tube, 486 U.S. at 500-01, 108 S.Ct. 1931; see also Standards Development Organization Advancement Act of 2004, 15 U.S.C. §§ 4302, 4303 (Supp.2004) (providing that private standard-setting conduct shall not be deemed illegal per se, and insulating such conduct from treble damages); Pub.L. 108-237, Title I, § 102, June 22, 2004, 118 Stat. 661 (noting congressional finding of “the importance of technical standards developed by voluntary consensus standards bodies to our national economy”).

This is not to say, however, that acceptance, including judicial acceptance, of pri *310 vate standard setting is without limits. Indeed, that “private standard-setting by associations comprising firms with horizontal and vertical business relations is permitted at all under the antitrust laws [is] only on the understanding that it will be conducted in a nonpartisan manner offering procompetitive benefits,” Allied Tube, 486 U.S. at 506-07, 108 S.Ct. 1931 and in the presence of “meaningful safeguards” that “prevent the standard-setting process from being biased by members with economic interests in stifling product competition,” id. at 501, 108 S.Ct. 1931; Hydrolevel, 456 U.S. at 572, 102 S.Ct. 1935; see also Clamp-All Corp. v. Cast Iron Soil Pipe Inst., 851 F.2d 478, 488 (1st Cir.1988) (acknowledging possibility of antitrust claim where firms both prevented SDO from adopting a beneficial standard and did so through “unfair, or improper practices or procedures”). As the Supreme Court acknowledged in Allied Tube, and as administrative tribunals, law enforcement authorities, and some courts have recognized, conduct that undermines the procompeti-tive benefits of private standard setting may, at least in some circumstances, be deemed anticompetitive under antitrust law.

a. Patent Hold-up

Inefficiency may be injected into the standard-setting process by what is known as “patent hold-up.” An SDO may complete its lengthy process of evaluating technologies and adopting a new standard, only to discover that certain technologies essential to implementing the standard are patented. When this occurs, the patent holder is in a position to “hold up” industry participants from implementing the standard. Industry participants who have invested significant resources developing products and technologies that conform to the standard will find it prohibitively expensive to abandon their investment and switch to another standard. They will have become “locked in” to the standard. In this unique position of bargaining power, the patent holder may be able to extract supracompetitive royalties from the industry participants. See In the Matter of Rambus, Inc., No. 9302, at 4 (F.T.C. Aug. 2, 2006), available at 2006 WL 2330117; Skitol Letter, supra, at 8; Ma-joras, supra, at *1; Masoudi, supra, at *3; see also Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 476, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (describing the lock-in that causes purchasers of expensive office equipment to tolerate supracompetitive service prices before changing brands); Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B, 2007 WL 2296441, at *34 (S.D.Cal. Aug. 7, 2007) (characterizing such conduct as an attempt at “holding hostage the entire industry desiring to practice the ... standard”).

In actions brought before the Federal Trade Commission (“FTC”), patent holders have faced antitrust liability for misrepresenting to an SDO that they did not hold IPRs in essential technologies, and then, after a standard had been adopted, seeking to enforce those IPRs. In 1996, the FTC entered into a consent order with Dell Computer Corporation. The complaint issued in conjunction therewith alleged that Dell participated in an SDO’s adoption of a design standard for a computer bus (i.e., an information-carrying conduit), but failed to disclose that it owned a patent for a key design feature of the standard, and even certified to the SDO that the proposed standard did not infringe any of Dell’s IPRs. After the design standard proved successful, Dell attempted to assert its IPRs, prompting the FTC to commence an enforcement action under § 5 of the FTC Act, 15 U.S.C. § 45, for unfair methods of competition in or affecting commerce. Dell’s actions, it was alleged, created uncertainty that hindered *311 industry acceptance of the standard, increased the costs of implementing the standard, and chilled the willingness of industry participants to engage in the standard-setting process. In the Matter of Dell Computer Corp., 121 F.T.C. 616, 618 (May 20, 1996).

The consent order required, among other things, that Dell cease and desist from asserting that the use or implementation of the standard violated its IPRs. Significantly, the FTC’s announcement that accompanied the order stated that in the “limited circumstances ... where there is evidence that the [SDO] would have implemented a different non-proprietary design had it been informed of the patent conflict during the certification process, and where Dell failed to act in good faith to identify and disclose patent conflicts ... enforcement action is appropriate to prevent harm to competition and consumers.” Id. at 624. It also noted that once the standard had gained widespread acceptance, “the standard effectively conferred market power upon Dell as the patent holder. This market power was not inevitable: had [the SDO] known of the Dell patent, it could have chosen an equally effective, non-proprietary standard.” Id. n. 2. One Commissioner, writing in dissent, conceded that “[i]f Dell had obtained market power by knowingly or intentionally misleading a standards-setting organization, it would require no stretch of established monopolization theory to condemn that conduct.” Id. at 629. She objected, nevertheless, to imposing antitrust liability on Dell absent specific allegations in the proposed complaint that Dell misled the SDO intentionally or knowingly, and that it obtained market power as a result of its misleading statements. Id. at 629-30.

In 2005, the FTC entered into a consent order resolving allegations that Union Oil Company of California (“Unocal”) made deceptive and bad-faith misrepresentations to a state standards-determining board concerning the status of Unocal’s IPRs. The administrative complaint had alleged that the board relied on these misrepresentations in promulgating new standards governing low-emissions gasoline, and that Unocal’s misrepresentations led directly to its acquisition of monopoly power and harmed competition after refiners became locked in to regulations that required the use of Unocal’s proprietary technology. Unocal’s anticompetitive conduct was alleged to have violated § 5 of the FTC Act. The consent order required Unocal, among other things, to cease and desist from all efforts to enforce its relevant patents. In the Matter of Union Oil Co. of Cal., No. 9305 (F.T.C. July 27, 2005), available at 2005 WL 2003365.

Most recently, a landmark, 120-page opinion in In the Matter of Rambus, Inc., was entered on the docket on August 2, 2006 by a unanimous FTC. Rambus, a developer of computer memory technologies, was found to have deceived an SDO by failing to disclose its IPRs in technology that was essential to the implementation of now-ubiquitous computer memory standards, by misleading other members of the SDO into believing that Rambus was not seeking any new patents relevant to the standard then under consideration, and by using information that it gained from its participation in the standard-setting process to amend its pending patent applications so that they would cover the ultimate standard. Id. at 3, 4. Noting that such conduct “has grave implications for competition,” id. at 3, the FTC found that Rambus had distorted the standard-setting process and engaged in anticom-petitive hold-up. For the first time, the FTC held that deceptive conduct of the type alleged in Dell Computer and Union Oil constituted “exclusionary conduct” under § 2 of the Sherman Act, as well as *312 unlawful monopolization under § 5 of the FTC Act. Id. at 3. 5

Rambus is particularly noteworthy for its extensive discussion of deceptive conduct in the standard-setting context and the factors that make such conduct anti-competitive under § 2 of the Sherman Act. The FTC likened the deception of an SDO to the type of deceptive conduct that the D.C. Circuit found to violate § 2 of the Sherman Act in Microsoft. There, the Court found that Microsoft had marketed software-development tools that would permit software developers to create programs that, ostensibly, did not need to run on Microsoft’s ubiquitous operating system, but that, in fact, could operate properly only on Microsoft’s operating system. The Court found that in an environment in which software developers reasonably expected Microsoft not to mislead them, Microsoft’s deceptive conduct was anticom-petitive. Microsoft,