Rambus (European Commission, COMP/38.636, 2009)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

By a decision based on Article 9(1) of Regulation (EC) No 1/2003, the Commission makes binding for five years Rambus’s commitments capping the royalties it charges on patents reading on JEDEC DRAM standards (Article 1) and finds that there are no longer grounds for action (Article 2).

The Commission’s preliminary view was that Rambus might be abusing its dominant position by claiming royalties it could not have obtained had it not concealed patents and patent applications while the standards were being developed, a practice described as a patent ambush (recitals 1 to 3 and 27). The decision matters to practitioners because the concern goes to the level of the royalties itself, which the commitments translate into figures.

Facts and procedure

JEDEC, a US standard setting organisation, develops DRAM standards (recital 18). Rambus was a member from 1991 to 1996; it was aware of the obligation to disclose issued and pending patents and allegedly disclosed no patent or application relating to the JEDEC standards (recitals 41 and 42).

Infineon and Hynix lodged a joint complaint (recital 5), which Infineon withdrew on 5 April 2005 (recital 6). The Commission issued a Statement of Objections on 27 July 2007 and held a hearing on 4 and 5 December 2007 (recitals 7 and 9). Rambus offered commitments on 8 June 2009, which were market tested by a notice published in the Official Journal on 12 June 2009, followed by amended commitments on 14 August 2009 (recitals 10 to 12).

The applicable law

The proceedings were brought under Article 102 TFEU and Article 54 of the EEA Agreement. The Commission identifies a worldwide market for DRAM interface technology (recitals 2, 16 and 17) and takes the preliminary view that Rambus has been dominant on it since it began asserting its patents in January 2000 (recitals 2 and 26).

The concern is that Rambus claimed royalties at a level it could not have charged absent the alleged deceptive conduct, in breach of JEDEC policy and of the duty of good faith in standard setting, thereby frustrating the legitimate expectations of other participants and undermining confidence in the standard setting process (recitals 3, 28 and 29).

Question

Do Rambus’s commitments to cap its royalties on DRAM standards meet the concerns expressed under Article 102 TFEU?

Decision

The Commission finds the commitments in their final form sufficient and necessary (recital 71). For DRAM chips, Rambus grants a royalty holiday for the licence term on the SDR and DDR standards, adopted while it was a JEDEC member (recitals 49 and 72), and caps royalties at 1.5% of the unit price for DDR2, DDR3, GDDR3 and GDDR4 (recital 49).

For memory controllers, the cap is 1.5% until April 2010 and 1.0% thereafter for SDR, and 2.65% then 2.0% for DDR, DDR2, DDR3, GDDR3 and GDDR4 (recital 49). The royalty base is the price of the individually sold chip, not of the end product (recital 66). The commitments cover all existing JEDEC DRAM and controller standards, with similar terms for future standards (recital 58), but not past royalties (recital 49). They run for five years, licensees being able to opt out after a minimum one year term (recital 49); the most favoured licensee clause originally proposed was dropped (recital 58) and default licence agreements are published (recitals 50 and 63).

Key points for practice

• The concern combines concealment of patents during standardisation with the level of royalties later claimed (recitals 3, 28 and 29): the analysis rests on that combination, not on the amount alone.
• The caps are expressed as a percentage of the chip price rather than the end product (recital 66), a choice of royalty base that still informs current debates.
• The decision rests on a preliminary assessment (recital 2) and governs the position for the future, without covering past royalties (recital 49).
• Practical point: compliance with the standard setting organisation’s disclosure obligations conditions the patentee’s position; concealment can expose the very level of royalties to an abuse of dominance claim.

Provisions applied

Treaty on the Functioning of the European Union

Art. 102

Other provisions

EEA Agreement, Art. 54; Regulation (EC) No 1/2003, Art. 9(1)

Case law cited

General Court, Air Inter v Commission (T-260/94); General Court, Van den Bergh Foods v Commission (T-65/98); ECJ, Schräder (265/87); ECJ, Zuid-Hollandse Milieufederatie and Natuur en Milieu (C-174/05); Commission decision of 3 May 2000, Hitachi/NEC, DRAM/JV (IV/M.0044)

Prepared by Dhenne Avocats from the text of the decision (European Commission website, ec.europa.eu/competition), consulted on 11 October 2026. Only the official text is authoritative.