EN Official Journal of the European Union C 30/15

Final report of the Hearing Officer (1) in Case COMP/38.636 — Rambus

2010/C 30/08

The draft Decision gives rise to the following observations:

1. Background of the case

This draft decision under Article 9 of Regulation (EC) No 1/2003 relates to certain practices of Rambus, a US company which designs, develops and licenses high bandwidth chip connection technologies for computers, consumer electronic and communication products. The allegations concern, in particular, the claiming of potentially abusive royalties for the use of certain patents for ‘Dynamic Random Access Memory’ (‘DRAM’) chips subsequent to an allegedly intentional deceptive conduct in the context of the standard-setting process consisting in not disclosing the existence of patents and patent applications later claimed to be infringed by the adopted standard. The Commission came to the preliminary conclusion that these practices might constitute an abuse of dominant position under Article 82 EC.

2. The preliminary assessment and the ensuing procedure

The case originates from a joint complaint lodged by the companies Infineon (Germany) and Hynix (South Korea) on 18 December 2002, pursuant to Article 3 of Council Regulation No 17. Infineon withdrew its complaint on 5 April 2005, as a result of a private settlement with Rambus.

Rambus received a non-confidential version of the complaint on 28 July 2003 and provided comments thereon on 8 October 2003.

A Statement of Objections (‘SO’), which constitutes the preliminary assessment under Article 9(1) of Regulation (EC) No 1/2003, was issued by the Commission on 27 July 2007 and received by Rambus on 30 July 2007. Access to the file was granted to Rambus on 10 August 2007.

Following specific request by Rambus, I granted Rambus an extension to reply to the SO until 31 October 2007. Rambus replied to the SO in due time.

Several companies requested to be admitted to the proceeding as interested third parties. In response to these requests, I admitted IBM, Hewlett Packard and Micron Technology, Inc. on 5 September 2007; Cray Inc. on 17 September 2007; and Samsung Electronics Corp. and BT Group PLC on 17 October 2007 and 25 October 2007, respectively. All of these parties requested and received a non-confidential version of the SO. Cray Inc., Hewlett Packard, IBM and Hynix provided written comments on that version during the month of October 2007.

At Rambus request, an oral hearing took place on 4 and 5 December 2007, with the participation of five interested third parties (Cray Inc., Hynix, IBM, Micron Technology, Inc., and Samsung Electronics Corp.) and of a representative of the Federal Trade Commission who attended as an observer.

On 23 February 2009, the Commission notified Rambus with a Letter of Facts by which the company was informed: (i) how the Commission might use certain documents already in Rambus possession; (ii) of additional evidence gathered and how this might be used by the Commission in a possible Article 82 Decision. The evidence referred to in the Letter of Facts was provided to Rambus in an enclosed CD-ROM. Rambus submitted its observations on the Letter of Facts on 30 March 2009.

3. Submission of commitments and market test

On 8 June 2009 Rambus submitted commitments (the ‘Commitments’) to the Commission in response to the objections raised in the SO, although it declared it disagreed with the Commission's preliminary findings.

On 12 June 2009, the Commission published a notice in the Official Journal of the European Union pursuant to Article 27(4) of Regulation (EC) No 1/2003 summarising the case and the Commitments and inviting interested third parties to submit their observations within one month. On 23 July 2009, the Commission communicated to Rambus the observations received from interested third parties following the publication of the Notice. On 14 August 2009, Rambus submitted a revised proposal of commitments.

4. Access to file and to market test

Access to file was granted initially to Rambus following the issue of the SO. Moreover, following the issue of the Letter of Facts, Rambus was granted access to the evidence referred therein. Following the market test, Rambus was also provided with non-confidential versions of the observations received in response to the market test.

By its letter of 2 March 2009, Rambus complained to me that it had not been granted full access to file following the issue of the Letter of Facts and that it had not received a complete list of the documents in the file. Moreover, Rambus put forward other procedural complaints, including in particular the allegedly erroneous designation of certain third parties submissions as ‘spontaneous submissions’ and the exclusion from the file of certain exculpatory evidence. After consultation with the relevant service in DG Competition, I came to the conclusion that Rambus had received all substantive documents, except one document which was inadvertently excluded from the file and subsequently provided to Rambus on 11 March 2009 together with a complete list of the file following the Letter of Facts. As regards the other objections raised by Rambus, I considered them as substantially unfounded and they were therefore rejected.

On 31 August 2009, Rambus submitted a declaration to the Commission where it acknowledged that Rambus had received sufficient access to the information it considered necessary to propose the commitments in order to meet the concerns expressed by the Commission.

5. Conclusion

I consider that the rights of the Parties to be heard have been respected in the present case.

Brussels, 29 September 2009. Karen WILLIAMS

(1) Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21.