Published: 12/9/12
The Rambus case involved allegations of standard-setting deception rather than FRAND abuse. The European Commission’s decision in Rambus is nevertheless relevant to the FRAND debate because of its analysis of the appropriate royalty base on which a SEP holder may impose a royalty. In the Commission’s market testing of a set of proposed commitments offered by Rambus to license its SEPs on reasonable terms, some respondents expressed the concern that Rambus would seek to “extract royalties based not on the price of the individual chips or controllers, but on the value of the end-product (such as PCs, mobile phones and other devices integrating DRAMs), even if the licensed technologies only represent a small percentage of such end-products.” In response, the Commission made clear that the “royalty shall be determined on the basis of the price of the individually sold chip and not of the end-product. If they are incorporated into other products, the individual chip price remains determinative.”