Traditional monopolization principles – focusing on whether conduct is nakedly exclusionary or has an anticompetitive effect – do not provide a good fit for analyzing exclusionary deception in the standard-setting context. Because determining whether there has been an antitrust violation turns, even under the most aggressive enforcement approach, largely on the underlying duties imposed on participants in standard-setting organizations rules, going beyond those clearly defined duties risks an ad hoc, vague definition of antitrust obligations. Individual cases, such as Rambus, provide strong temptations to loosely analyze those duties and to construe them in a way that provides a remedy for hold-up problems. Those temptations, however, should be avoided.
Available at: http://works.bepress.com/norman_hardee/2/