EN Official Journal of the European Union C 30/17

Summary of Commission Decision

of 9 December 2009

relating to a proceeding under Article 102 of the Treaty on the functioning of the European Union and Article 54 of the EEA Agreement

(Case COMP/38.636 — RAMBUS)

(notified under document C(2009) 7610)

(Only the English text is authentic)

(Text with EEA relevance)

2010/C 30/09

On 9 December 2009, the Commission adopted a decision relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union (TFEU) (1). In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (2), the Commission herewith publishes the name of the party and the main content of the decision, having regard to the legitimate interest of undertakings in the protection of their business secrets. A non-confidential version of the decision is available on the website of the Directorate-General for Competition at the following address:

http://ec.europa.eu/competition/antitrust/cases/

(1) The case concerns Rambus Inc. (hereafter Rambus) and its claiming of potentially abusive royalties for the use of certain patents for ‘Dynamic Random Access Memory’ (hereafter DRAM) chips subsequent to an allegedly intentional deceptive conduct in the context of the JEDEC standard-setting process. This conduct consists in not disclosing the existence of patents and patent applications later claimed by Rambus to be relevant to the standards adopted by JEDEC.

(2) In its preliminary assessment, the Commission took the view that the practices by Rambus of claiming royalties for the use of its patents against the JEDEC-compliant DRAM manufacturers at a level which, in the absence of its allegedly intentional deceptive conduct, it would not have been able to charge raised concerns as to the compatibility with then Article 82 EC (now Article 102 TFEU). In the preliminary assessment, the Commission considered it was important to properly assess Rambus’ conduct in the light of the special circumstances of the case, in particular the standard-setting context.

(3) The Commission considers that an effective standard-setting process is, in the sector relevant to the present case, a precondition to technical development and the development of the market in general to the benefit of consumers. The Commission's Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements outline that standards must be set via ‘non-discriminatory, open and transparent procedures’ (3) to safeguard against anti-competitive outcomes.

(4) The Commission considers that the commitments offered by Rambus following the preliminary assessment and the observations submitted by interested third parties are sufficient to address the identified competition concerns.

(5) First, Rambus agrees not to charge for the SDRAM and DDR standards that were adopted by JEDEC during the time in which Rambus was a member and engaged in its allegedly intentional deceptive conduct.

(6) Secondly, Rambus commits to a maximum royalty rate of 1,5 % for the later generations of standards adopted by JEDEC after Rambus’ resignation, which is below the 3,5 % Rambus has been charging before for DDR in its existing contracts.

(7) Thirdly, Rambus offers this maximum rate to all market participants and guarantees industry will not have to pay more. This predictability and certainty has a clear value for business. Potential new entrants will also have a clear perspective of future royalty costs, facilitating a decision to enter the market.

(8) The decision finds that, in view of the commitments, there are no longer grounds for action by the Commission. The commitments shall be binding on Rambus for a total period of five years from the date of the adoption of the decision.

(9) The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 28 September 2009.

(1) With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and 102, respectively, of the TFEU; the two sets of provisions are in substance identical. For the purposes of this Decision, references to Articles 101 and 102 of the TFEU should be understood as references to Articles 81 and 82, respectively, of the EC Treaty where appropriate.

(2) OJ L 1, 4.1.2003, p. 1.

(3) Commission Notice — Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements, OJ C 3, 6.1.2001, paragraph 163.