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Case 5:05-cv-00334-RMW
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Document 2114
GREGORY P. STONE (SBN 078329) STEVEN M. PERRY (SBN 106154) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Email: [email protected]; [email protected]
6 7 8 9
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
10
PETER A. DETRE (SBN 182619) CAROLYN HOECKER LUEDTKE (SBN 207976) Munger, Tolles & Olson LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Email: [email protected]; [email protected]
11
Filed 08/29/2008
Page 1 of 11
ROLLIN A. RANSOM (SBN 196126) Sidley Austin LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013-1010 Telephone: (213) 896-6000 Facsimile: (213) 896-6600 Email: [email protected] PIERRE J. HUBERT (admitted pro hac vice) CRAIG N. TOLLIVER (admitted pro hac vice) McKool Smith P.C. 300 West 6th Street, Suite 1700 Austin, TX 78701 Telephone: (512) 692-8700 Facsimile: (512) 692-8744 Email: [email protected]; [email protected] Attorneys for Plaintiff RAMBUS INC.
12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
13 14 15 16 17 18 19 20 21 22 23 24 25 26
RAMBUS INC.,
) ) Plaintiff, ) ) vs. ) HYNIX SEMICONDUCTOR INC., HYNIX ) ) SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR ) MANUFACTURING AMERICA INC., ) ) SAMSUNG ELECTRONICS CO., LTD., ) SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., ) SAMSUNG AUSTIN SEMICONDUCTOR, ) ) L.P., ) NANYA TECHNOLOGY CORPORATION, ) NANYA TECHNOLOGY CORPORATION ) U.S.A., ) ) Defendants.
27 28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334 Austin 45623v75
Case No. C 05-00334 RMW RAMBUS INC.’S OPPOSITION TO HYNIX’S MOTION TO STRIKE PORTIONS OF RAMBUS’S FINAL INFRINGEMENT CONTENTIONS Date: Time: Ctrm: Judge:
September 19, 2008 9:00 a.m. 6, 4th Floor Hon. Ronald M. Whyte
Case 5:05-cv-00334-RMW
1 2 3 4 5 6 7 8
Document 2114
HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR MANUFACTURING AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH,
) ) ) ) ) ) ) ) Counterclaim Plaintiffs, ) v. ) ) RAMBUS INC., ) Counterdefendant. ______________________________________ )
9
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334 Austin 45623v7
Filed 08/29/2008
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Case 5:05-cv-00334-RMW
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TABLE OF CONTENTS
2
TABLE OF CONTENTS................................................................................................................. i
3
TABLE OF AUTHORITIES .......................................................................................................... ii
4
I.
INTRODUCTION ...............................................................................................................1
5
II.
BACKGROUND .................................................................................................................1
6
III.
ARGUMENT.......................................................................................................................2 A.
8
The Court Should Permit the Inclusion of Hynix’s GDDR5 Products in Rambus’s Final Infringement Contentions. ..........................................2 1.
The addition of the new GDDR5 products threatens no prejudice to Hynix...................................................................................3
2.
Rambus has acted with diligence in accusing this recently released product line. .....................................................................4
3.
Granting Hynix’s motion would lead to an unnecessary waste of judicial and party resources. .....................................5
9 10
MCKOOL SMITH
Filed 08/29/2008
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7
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Document 2114
11 12 B.
13 14 15
IV.
Rambus’s Final Infringement Contentions Regarding GDDR5 Are Sufficient, and Will Be Amended Once Discovery Is Received and Reviewed......................................................................6
CONCLUSION....................................................................................................................6
16 17 18 19 20 21 22 23 24 25 26 27 28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334 Austin 45623v75
Case 5:05-cv-00334-RMW
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2
Cases
3
Acco Brands, Inc. v. PC Guardian Anti-Theft Prods., Inc., No. C 04-03526, 2008 WL 2168379 (N.D. Cal. May 22, 2008) ....................................... 3
4 5 6 7 8 9 10
MCKOOL SMITH
Filed 08/29/2008
TABLE OF AUTHORITIES
1
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Document 2114
11 12 13
Bd. of Trustees of the Leland Stanford Jr. Univ. v. Roche Molecular Sys., Inc., No. C 05-04158, 2008 WL 624771 (N.D. Cal. Mar. 4, 2008)................................... 3, 4, 6 Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594 (5th Cir. 1981) ............................................................................................. 6 Golden Hour Data Sys., Inc. v. Health Servs. Integration, Inc., No. C 06-7477, 2008 WL 2622794 (N.D. Cal. July 1, 2008)............................................ 4 Seiko Epson Corp. v. Coretronic Corp., No. C 06-06946, 2008 WL 2563383 (N.D. Cal. June 23, 2008) ....................................... 4 ZiLOG, Inc. v. Quicklogic Corp., No. C 03-03725, 2008 WL 563057 (N.D. Cal. Mar. 6, 2006)........................................... 5 Zoltar Satellite Alarm Sys., Inc. v. Motorola, Inc., No. C 06-00044, 2008 WL 913326 (N.D. Cal. Apr. 2, 2008) ........................................... 3
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334 Austin 45623v7
Case 5:05-cv-00334-RMW
1
I.
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INTRODUCTION
2
Hynix has moved to strike portions of Rambus’s Final Infringement Contentions
3
pertaining to Hynix’s recently introduced GDDR5 SDRAM products (“GDDR5”). Hynix’s
4 5
motion should be denied. Rambus included the GDDR5 products in its Final Infringement Contentions in compliance with the Court’s July 16, 2008, scheduling order. (See Dkt. No.
6 7
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
8
1963.) Furthermore, to the extent that the Court’s approval is necessary, under Patent Local Rule 3-7, to add Hynix’s GDDR5 products to this case, that approval should be granted for at least
9
three reasons. First, Hynix will not be prejudiced by the addition of its new GDDR5 products to
10
this litigation. Rambus’s assertions are limited to patent claims that are already at issue in this
11
case, and the technical issues raised by GDDR5 are expected to be fundamentally similar to
12
those raised by other accused memory technologies, such as GDDR3 and GDDR4. Second,
13 Rambus acted diligently in evaluating and accusing Hynix’s recently released GDDR5 products. 14 15
Third, conservation of judicial and party resources counsels denying Hynix’s motion—if Hynix’s
16
GDDR5 products are not addressed in this case, they will need to be addressed in a subsequent
17
case, with additional attendant costs and expenses.
18
II.
BACKGROUND
19
Rambus filed suit against Hynix for patent infringement on January 25, 2005. (See Dkt.
20
No. 1.) Rambus served its first set of Preliminary Infringement Contentions on February 23,
21
2007, and supplemented those contentions on July 20, 2007. (See Dkt. No. 2036, Exs. A and B.)
22 Hynix’s GDDR5 products were not available for purchase or announced as of either of those 23 24
dates. Hynix notes that it issued a press release announcing its GDDR5 products nine months
25
after service of Rambus’s initial contentions, and four months after service of Rambus’s
26
supplemental contentions, in November, 2007. (See Mot., Dkt. No. 2035 at 2-3.) This one-page
27
press release contains few technical details, however, and does not describe the operation of
28
Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
1 Austin 45623v7
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GDDR5 in any depth. (See Dkt. No. 2036, Ex. C.) According to the press release, mass
2
production of Hynix’s GDDR5 products would not begin until “the first half of 2008.” (See id.)
3 4
And importantly, Rambus only became aware of datasheets relating to production-ready GDDR5 products in June, 2008. (See Hubert Decl. ¶ 2.) Shortly thereafter, on July 2, 2008, Rambus
5 6
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
7
requested discovery from Hynix specific to its new GDDR5 products. (See Dkt. No. 2036, Ex. D.) Hynix refused to provide discovery with respect to GDDR5, forcing Rambus to file a motion
8
to compel. (See Dkt. No. 1990.) Lacking the requested discovery regarding specific technical
9
details for Hynix’s GDDR5 products, Rambus included them in its Final Infringement
10
Contentions on information and belief, and expects to provide more detail in its contentions once
11
discovery is provided and reviewed. (See Dkt. No. 2036, Ex. G at 3, n.2.) After denying
12 Rambus the opportunity to fully evaluate the technical operations of Hynix’s new GDDR5 13 14 15 16 17 18
products, Hynix now seeks to strike them from Rambus’s Final Infringement Contentions. III.
ARGUMENT A.
The Court Should Permit the Inclusion of Hynix’s GDDR5 Products in Rambus’s Final Infringement Contentions.
The Court issued its scheduling order on July 16, 2008, setting a date of August 1, 2008, for Rambus to serve its Final Infringement Contentions. In late July, Rambus had only recently
19 20 21
become aware that Hynix had released and was producing its new GDDR5 products. And Rambus’s attempts to procure specific discovery on these new products—initiated at the
22
beginning of the month—had been rebuffed by Hynix. Notwithstanding the lack of publicly
23
available information on Hynix’s GDDR5 products, and Hynix’s failure to meet its discovery
24
obligations regarding those products, Rambus included contentions regarding the GDDR5
25
products in its Final Infringement Contentions on August 1 in compliance with the Court’s
26 27 28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
2
Case 5:05-cv-00334-RMW
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scheduling order.
2
included Hynix’s GDDR5 products.
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Filed 08/29/2008
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Under the circumstances, the Final Infringement Contentions properly
Should the Court find its approval necessary for Rambus to include Hynix’s GDDR5 products in this case, however, such approval should be granted. Patent Local Rule 3-7 provides
5 6
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
7
that the Court may approve any amendment or modification of a party’s infringement contentions when there is “good cause” to do so. PATENT L.R. 3-7. There is good cause for the
8
Court to approve the inclusion of Hynix’s GDDR5 products in Rambus’s Final Infringement
9
Contentions, for at least three reasons: 1) the addition of the GDDR5 products threatens no
10
prejudice to Hynix; 2) Rambus acted with diligence in accusing this newly-released product line;
11
and 3) preventing Rambus from pursuing its contentions regarding Hynix’s GDDR5 products
12 would result in an unnecessary waste of judicial resources. See Bd. of Trustees of the Leland 13 14
Stanford Jr. Univ. v. Roche Molecular Sys., Inc., No. C 05-04158, 2008 WL 624771, at *4 (N.D.
15
Cal. Mar. 4, 2008). In order to “advance fair resolution of the issues on the merits,” therefore,
16
Hynix’s motion to strike should be denied. Zoltar Satellite Alarm Sys., Inc. v. Motorola, Inc.,
17
No. C 06-00044, 2008 WL 913326, at *3 (N.D. Cal. Apr. 2, 2008); see also Acco Brands, Inc. v.
18
PC Guardian Anti-Theft Prods., Inc., No. C 04-03526, 2008 WL 2168379, at *2 (N.D. Cal. May
19 20 21
22, 2008) (noting a preference, in the context of Patent L.R. 3-7, to decide cases on the merits). 1.
The addition of the new GDDR5 products threatens no prejudice to Hynix.
22
Hynix suggests that adding GDDR5 to this litigation will require additional discovery on
23
its part, (see Dkt. No. 2035 at 10), but that discovery poses no threat of prejudice to Hynix. To
24
borrow from the court’s opinion in Roche Molecular Systems, “the gathering and preparing of
25 discovery related to [its GDDR5 products] is not prejudicial to [Hynix]—by refusing to provide 26 27
discovery earlier, [Hynix] has simply delayed production of discovery it was already required to
28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
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produce.” 2008 WL 624771, at *4. And Hynix should have no need to take fact discovery from
2
Rambus with regard to the design and operation of Hynix’s own GDDR5 products. All of the
3 4
relevant factual information regarding Hynix’s devices should be within Hynix’s possession and control. In addition, Hynix will have sufficient opportunities to address Rambus’s infringement
5 6 7
contentions regarding the GDDR5 products during expert discovery. See Golden Hour Data Sys., Inc. v. Health Servs. Integration, Inc., No. C 06-7477, 2008 WL 2622794, at *4 (N.D. Cal.
8
July 1, 2008) (“As expert discovery has not yet begun, Golden Hour’s experts will have the
9
opportunity to consider the amended contentions.”).
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
10 11
Further, Rambus anticipates—and should be able to confirm when Hynix fully complies with its discovery obligations—that Hynix’s GDDR5 memory products are fundamentally
12 similar to memory technology already at issue in this case, such as Hynix’s GDDR3 and GDDR4 13 14
memory products. Rambus thus expects that the addition of GDDR5 to this litigation will
15
require only a de minimis amount of additional work by the parties to prepare for trial in January
16
2009.
17
products to remain in Rambus’s Final Infringement Contentions should threaten no prejudice to
18
Hynix. See, e.g., Golden Hour Data Sys., 2008 WL 2622794, at *4 (finding no prejudice where
19
For this reason, denying Hynix’s motion to strike and permitting Hynix’s GDDR5
amendments did not raise new theories); Seiko Epson Corp. v. Coretronic Corp., No. C 06-
20 06946, 2008 WL 2563383, at *3-4 (N.D. Cal. June 23, 2008) (“Coretronic has not demonstrated 21 22 23 24
how their case strategy would have been different had the [newly accused products] been listed in the preliminary infringement contentions.”). 2.
Rambus has acted with diligence in accusing this recently released product line.
25 Hynix argues that Rambus waited too long to accuse the GDDR5 products, despite the 26 27
fact that this product was only recently introduced, and apparently was not mass produced until
28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
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mid-2008. Hynix supports its argument by reference to a GDDR5-related press release that it
2
issued in November, 2007. (See Dkt. No. 2035 at 2-3.) This one-page press release contains few
3 4
technical details, however, and does not describe the operation of GDDR5 in any depth. (See Dkt. No. 2036, Ex. C.) And according to the press release, mass production of GDDR5 products
5 6 7
MCKOOL SMITH
aware of datasheets relating to production-ready GDDR5 products in June, 2008. (See Hubert
8
Decl. ¶ 2.) Shortly thereafter, on July 2, 2008, Rambus requested discovery from Hynix specific
9
to its new GDDR5 products. (See Dkt. No. 2036, Ex. D.) Hynix refused to provide the
10 A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
would not begin until “the first half of 2008.” (See id.) In any event, Rambus only became
11
requested discovery, forcing Rambus to file a motion to compel.
(See Dkt. No. 1990.)
Notwithstanding the lack of adequate discovery on the new products, Rambus included them in
12 its Final Infringement Contentions on August 1. The approximately two-month time frame from 13 14
Rambus’s discovery and conclusion that the new products might infringe, to this briefing on their
15
inclusion in the case—from June to August, 2008—reflects Rambus’s diligence in the matter.
16
See, e.g., ZiLOG, Inc. v. Quicklogic Corp., No. C 03-03725, 2008 WL 563057, at *1 (N.D. Cal.
17
Mar. 6, 2006) (noting that a delay of three months or less “constitutes sufficient diligence to meet
18
the ‘good cause’ standard”).
19 20
3.
Granting Hynix’s motion would lead to an unnecessary waste of judicial and party resources.
21 22 23 24 25 26 27
Should Rambus be prevented from pursuing its contentions regarding Hynix’s GDDR5 products as accused products in this litigation, Rambus will be forced to file a new patentinfringement suit here against Hynix. That alternative would undoubtedly require more work and expense not only on Hynix’s part, but on the part of the Court as well. The prospect of such an additional suit springing from a grant of Hynix’s motion to strike constitutes “another compelling reason to allow the amendment” to Rambus’s infringement contentions. See Roche
28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
5
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Molecular Systems, 2008 WL 624771, at *4; see also, e.g., Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 599-600 (5th Cir. 1981) (“If the plaintiff cannot amend, his proper recourse is to file a new action . . . . All that is accomplished is that the case is set back on the docket, and disposition of the merits delayed, a result that [FED. R. CIV. P.] 1 directs us to avoid and that undercuts the policy of the federal rules in favor of consolidating litigation to facilitate an efficient and expeditious resolution of disputes.”).
7
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Document 2114
8
Rambus’s Final Infringement Contentions Regarding GDDR5 Are Sufficient, and Will Be Amended Once Discovery Is Received and Reviewed.
9
In addition to its principal argument that the Court should strike Rambus’s GDDR5-
10
related claims from this case—necessarily for litigation in a subsequent one—Hynix also
11 12
B.
complains that the disclosures related to its own GDDR5 products in Rambus’s Final Infringement Contentions are insufficiently detailed. (See Dkt. No. 2050, at 8-9, 18.) There is a
13 14 15
simple answer to this complaint: to the extent that Rambus’s contentions on Hynix’s GDDR5 products lack sufficient detail to satisfy Hynix, that is directly due to the fact that Hynix
16
intentionally withheld the requested discovery on its GDDR5 products. Because little technical
17
detail concerning these accused products is publicly available, Rambus’s ability to draft detailed
18
claim charts was dependent upon Hynix’s willingness to meet its discovery obligations. After
19
thwarting Rambus’s attempts to secure discovery on Hynix’s GDDR5 products, Hynix should
20 not be heard to complain that Rambus’s claim charts lack sufficient detail. As Rambus noted in 21 22
its Final Infringement Contentions, it will supplement its contentions with additional detail once
23
it receives and reviews sufficient discovery from Hynix to determine the specific operation of the
24
accused products. (See Dkt. No. 2036, Ex. G at 3, n.2.)
25 IV.
CONCLUSION
26 27
For these reasons, Rambus respectfully requests that the Court deny Hynix’s motion.
28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
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1 2 Dated: August 29, 2008
Respectfully submitted,
3 MUNGER TOLLES & OLSON LLP SIDLEY AUSTIN LLP MCKOOL SMITH P.C.
4 5 6 7
/s/ Pierre J. Hubert
8
Attorneys for RAMBUS INC.
9
Austin 41241v1
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
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1 2 3 4 5
Document 2114
GREGORY P. STONE (SBN 078329) STEVEN M. PERRY (SBN 106154) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Email: [email protected]; [email protected]
6 7 8 9
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
10
PETER A. DETRE (SBN 182619) CAROLYN HOECKER LUEDTKE (SBN 207976) Munger, Tolles & Olson LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Email: [email protected]; [email protected]
11
Filed 08/29/2008
Page 1 of 11
ROLLIN A. RANSOM (SBN 196126) Sidley Austin LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013-1010 Telephone: (213) 896-6000 Facsimile: (213) 896-6600 Email: [email protected] PIERRE J. HUBERT (admitted pro hac vice) CRAIG N. TOLLIVER (admitted pro hac vice) McKool Smith P.C. 300 West 6th Street, Suite 1700 Austin, TX 78701 Telephone: (512) 692-8700 Facsimile: (512) 692-8744 Email: [email protected]; [email protected] Attorneys for Plaintiff RAMBUS INC.
12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
13 14 15 16 17 18 19 20 21 22 23 24 25 26
RAMBUS INC.,
) ) Plaintiff, ) ) vs. ) HYNIX SEMICONDUCTOR INC., HYNIX ) ) SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR ) MANUFACTURING AMERICA INC., ) ) SAMSUNG ELECTRONICS CO., LTD., ) SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., ) SAMSUNG AUSTIN SEMICONDUCTOR, ) ) L.P., ) NANYA TECHNOLOGY CORPORATION, ) NANYA TECHNOLOGY CORPORATION ) U.S.A., ) ) Defendants.
27 28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334 Austin 45623v75
Case No. C 05-00334 RMW RAMBUS INC.’S OPPOSITION TO HYNIX’S MOTION TO STRIKE PORTIONS OF RAMBUS’S FINAL INFRINGEMENT CONTENTIONS Date: Time: Ctrm: Judge:
September 19, 2008 9:00 a.m. 6, 4th Floor Hon. Ronald M. Whyte
Case 5:05-cv-00334-RMW
1 2 3 4 5 6 7 8
Document 2114
HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR MANUFACTURING AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH,
) ) ) ) ) ) ) ) Counterclaim Plaintiffs, ) v. ) ) RAMBUS INC., ) Counterdefendant. ______________________________________ )
9
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334 Austin 45623v7
Filed 08/29/2008
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TABLE OF CONTENTS
2
TABLE OF CONTENTS................................................................................................................. i
3
TABLE OF AUTHORITIES .......................................................................................................... ii
4
I.
INTRODUCTION ...............................................................................................................1
5
II.
BACKGROUND .................................................................................................................1
6
III.
ARGUMENT.......................................................................................................................2 A.
8
The Court Should Permit the Inclusion of Hynix’s GDDR5 Products in Rambus’s Final Infringement Contentions. ..........................................2 1.
The addition of the new GDDR5 products threatens no prejudice to Hynix...................................................................................3
2.
Rambus has acted with diligence in accusing this recently released product line. .....................................................................4
3.
Granting Hynix’s motion would lead to an unnecessary waste of judicial and party resources. .....................................5
9 10
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1
7
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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11 12 B.
13 14 15
IV.
Rambus’s Final Infringement Contentions Regarding GDDR5 Are Sufficient, and Will Be Amended Once Discovery Is Received and Reviewed......................................................................6
CONCLUSION....................................................................................................................6
16 17 18 19 20 21 22 23 24 25 26 27 28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334 Austin 45623v75
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Page 4 of 11
2
Cases
3
Acco Brands, Inc. v. PC Guardian Anti-Theft Prods., Inc., No. C 04-03526, 2008 WL 2168379 (N.D. Cal. May 22, 2008) ....................................... 3
4 5 6 7 8 9 10
MCKOOL SMITH
Filed 08/29/2008
TABLE OF AUTHORITIES
1
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Document 2114
11 12 13
Bd. of Trustees of the Leland Stanford Jr. Univ. v. Roche Molecular Sys., Inc., No. C 05-04158, 2008 WL 624771 (N.D. Cal. Mar. 4, 2008)................................... 3, 4, 6 Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594 (5th Cir. 1981) ............................................................................................. 6 Golden Hour Data Sys., Inc. v. Health Servs. Integration, Inc., No. C 06-7477, 2008 WL 2622794 (N.D. Cal. July 1, 2008)............................................ 4 Seiko Epson Corp. v. Coretronic Corp., No. C 06-06946, 2008 WL 2563383 (N.D. Cal. June 23, 2008) ....................................... 4 ZiLOG, Inc. v. Quicklogic Corp., No. C 03-03725, 2008 WL 563057 (N.D. Cal. Mar. 6, 2006)........................................... 5 Zoltar Satellite Alarm Sys., Inc. v. Motorola, Inc., No. C 06-00044, 2008 WL 913326 (N.D. Cal. Apr. 2, 2008) ........................................... 3
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334 Austin 45623v7
Case 5:05-cv-00334-RMW
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I.
Document 2114
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INTRODUCTION
2
Hynix has moved to strike portions of Rambus’s Final Infringement Contentions
3
pertaining to Hynix’s recently introduced GDDR5 SDRAM products (“GDDR5”). Hynix’s
4 5
motion should be denied. Rambus included the GDDR5 products in its Final Infringement Contentions in compliance with the Court’s July 16, 2008, scheduling order. (See Dkt. No.
6 7
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
8
1963.) Furthermore, to the extent that the Court’s approval is necessary, under Patent Local Rule 3-7, to add Hynix’s GDDR5 products to this case, that approval should be granted for at least
9
three reasons. First, Hynix will not be prejudiced by the addition of its new GDDR5 products to
10
this litigation. Rambus’s assertions are limited to patent claims that are already at issue in this
11
case, and the technical issues raised by GDDR5 are expected to be fundamentally similar to
12
those raised by other accused memory technologies, such as GDDR3 and GDDR4. Second,
13 Rambus acted diligently in evaluating and accusing Hynix’s recently released GDDR5 products. 14 15
Third, conservation of judicial and party resources counsels denying Hynix’s motion—if Hynix’s
16
GDDR5 products are not addressed in this case, they will need to be addressed in a subsequent
17
case, with additional attendant costs and expenses.
18
II.
BACKGROUND
19
Rambus filed suit against Hynix for patent infringement on January 25, 2005. (See Dkt.
20
No. 1.) Rambus served its first set of Preliminary Infringement Contentions on February 23,
21
2007, and supplemented those contentions on July 20, 2007. (See Dkt. No. 2036, Exs. A and B.)
22 Hynix’s GDDR5 products were not available for purchase or announced as of either of those 23 24
dates. Hynix notes that it issued a press release announcing its GDDR5 products nine months
25
after service of Rambus’s initial contentions, and four months after service of Rambus’s
26
supplemental contentions, in November, 2007. (See Mot., Dkt. No. 2035 at 2-3.) This one-page
27
press release contains few technical details, however, and does not describe the operation of
28
Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
1 Austin 45623v7
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GDDR5 in any depth. (See Dkt. No. 2036, Ex. C.) According to the press release, mass
2
production of Hynix’s GDDR5 products would not begin until “the first half of 2008.” (See id.)
3 4
And importantly, Rambus only became aware of datasheets relating to production-ready GDDR5 products in June, 2008. (See Hubert Decl. ¶ 2.) Shortly thereafter, on July 2, 2008, Rambus
5 6
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
7
requested discovery from Hynix specific to its new GDDR5 products. (See Dkt. No. 2036, Ex. D.) Hynix refused to provide discovery with respect to GDDR5, forcing Rambus to file a motion
8
to compel. (See Dkt. No. 1990.) Lacking the requested discovery regarding specific technical
9
details for Hynix’s GDDR5 products, Rambus included them in its Final Infringement
10
Contentions on information and belief, and expects to provide more detail in its contentions once
11
discovery is provided and reviewed. (See Dkt. No. 2036, Ex. G at 3, n.2.) After denying
12 Rambus the opportunity to fully evaluate the technical operations of Hynix’s new GDDR5 13 14 15 16 17 18
products, Hynix now seeks to strike them from Rambus’s Final Infringement Contentions. III.
ARGUMENT A.
The Court Should Permit the Inclusion of Hynix’s GDDR5 Products in Rambus’s Final Infringement Contentions.
The Court issued its scheduling order on July 16, 2008, setting a date of August 1, 2008, for Rambus to serve its Final Infringement Contentions. In late July, Rambus had only recently
19 20 21
become aware that Hynix had released and was producing its new GDDR5 products. And Rambus’s attempts to procure specific discovery on these new products—initiated at the
22
beginning of the month—had been rebuffed by Hynix. Notwithstanding the lack of publicly
23
available information on Hynix’s GDDR5 products, and Hynix’s failure to meet its discovery
24
obligations regarding those products, Rambus included contentions regarding the GDDR5
25
products in its Final Infringement Contentions on August 1 in compliance with the Court’s
26 27 28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
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Case 5:05-cv-00334-RMW
Document 2114
1
scheduling order.
2
included Hynix’s GDDR5 products.
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Under the circumstances, the Final Infringement Contentions properly
Should the Court find its approval necessary for Rambus to include Hynix’s GDDR5 products in this case, however, such approval should be granted. Patent Local Rule 3-7 provides
5 6
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
7
that the Court may approve any amendment or modification of a party’s infringement contentions when there is “good cause” to do so. PATENT L.R. 3-7. There is good cause for the
8
Court to approve the inclusion of Hynix’s GDDR5 products in Rambus’s Final Infringement
9
Contentions, for at least three reasons: 1) the addition of the GDDR5 products threatens no
10
prejudice to Hynix; 2) Rambus acted with diligence in accusing this newly-released product line;
11
and 3) preventing Rambus from pursuing its contentions regarding Hynix’s GDDR5 products
12 would result in an unnecessary waste of judicial resources. See Bd. of Trustees of the Leland 13 14
Stanford Jr. Univ. v. Roche Molecular Sys., Inc., No. C 05-04158, 2008 WL 624771, at *4 (N.D.
15
Cal. Mar. 4, 2008). In order to “advance fair resolution of the issues on the merits,” therefore,
16
Hynix’s motion to strike should be denied. Zoltar Satellite Alarm Sys., Inc. v. Motorola, Inc.,
17
No. C 06-00044, 2008 WL 913326, at *3 (N.D. Cal. Apr. 2, 2008); see also Acco Brands, Inc. v.
18
PC Guardian Anti-Theft Prods., Inc., No. C 04-03526, 2008 WL 2168379, at *2 (N.D. Cal. May
19 20 21
22, 2008) (noting a preference, in the context of Patent L.R. 3-7, to decide cases on the merits). 1.
The addition of the new GDDR5 products threatens no prejudice to Hynix.
22
Hynix suggests that adding GDDR5 to this litigation will require additional discovery on
23
its part, (see Dkt. No. 2035 at 10), but that discovery poses no threat of prejudice to Hynix. To
24
borrow from the court’s opinion in Roche Molecular Systems, “the gathering and preparing of
25 discovery related to [its GDDR5 products] is not prejudicial to [Hynix]—by refusing to provide 26 27
discovery earlier, [Hynix] has simply delayed production of discovery it was already required to
28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
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produce.” 2008 WL 624771, at *4. And Hynix should have no need to take fact discovery from
2
Rambus with regard to the design and operation of Hynix’s own GDDR5 products. All of the
3 4
relevant factual information regarding Hynix’s devices should be within Hynix’s possession and control. In addition, Hynix will have sufficient opportunities to address Rambus’s infringement
5 6 7
contentions regarding the GDDR5 products during expert discovery. See Golden Hour Data Sys., Inc. v. Health Servs. Integration, Inc., No. C 06-7477, 2008 WL 2622794, at *4 (N.D. Cal.
8
July 1, 2008) (“As expert discovery has not yet begun, Golden Hour’s experts will have the
9
opportunity to consider the amended contentions.”).
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
10 11
Further, Rambus anticipates—and should be able to confirm when Hynix fully complies with its discovery obligations—that Hynix’s GDDR5 memory products are fundamentally
12 similar to memory technology already at issue in this case, such as Hynix’s GDDR3 and GDDR4 13 14
memory products. Rambus thus expects that the addition of GDDR5 to this litigation will
15
require only a de minimis amount of additional work by the parties to prepare for trial in January
16
2009.
17
products to remain in Rambus’s Final Infringement Contentions should threaten no prejudice to
18
Hynix. See, e.g., Golden Hour Data Sys., 2008 WL 2622794, at *4 (finding no prejudice where
19
For this reason, denying Hynix’s motion to strike and permitting Hynix’s GDDR5
amendments did not raise new theories); Seiko Epson Corp. v. Coretronic Corp., No. C 06-
20 06946, 2008 WL 2563383, at *3-4 (N.D. Cal. June 23, 2008) (“Coretronic has not demonstrated 21 22 23 24
how their case strategy would have been different had the [newly accused products] been listed in the preliminary infringement contentions.”). 2.
Rambus has acted with diligence in accusing this recently released product line.
25 Hynix argues that Rambus waited too long to accuse the GDDR5 products, despite the 26 27
fact that this product was only recently introduced, and apparently was not mass produced until
28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
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mid-2008. Hynix supports its argument by reference to a GDDR5-related press release that it
2
issued in November, 2007. (See Dkt. No. 2035 at 2-3.) This one-page press release contains few
3 4
technical details, however, and does not describe the operation of GDDR5 in any depth. (See Dkt. No. 2036, Ex. C.) And according to the press release, mass production of GDDR5 products
5 6 7
MCKOOL SMITH
aware of datasheets relating to production-ready GDDR5 products in June, 2008. (See Hubert
8
Decl. ¶ 2.) Shortly thereafter, on July 2, 2008, Rambus requested discovery from Hynix specific
9
to its new GDDR5 products. (See Dkt. No. 2036, Ex. D.) Hynix refused to provide the
10 A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
would not begin until “the first half of 2008.” (See id.) In any event, Rambus only became
11
requested discovery, forcing Rambus to file a motion to compel.
(See Dkt. No. 1990.)
Notwithstanding the lack of adequate discovery on the new products, Rambus included them in
12 its Final Infringement Contentions on August 1. The approximately two-month time frame from 13 14
Rambus’s discovery and conclusion that the new products might infringe, to this briefing on their
15
inclusion in the case—from June to August, 2008—reflects Rambus’s diligence in the matter.
16
See, e.g., ZiLOG, Inc. v. Quicklogic Corp., No. C 03-03725, 2008 WL 563057, at *1 (N.D. Cal.
17
Mar. 6, 2006) (noting that a delay of three months or less “constitutes sufficient diligence to meet
18
the ‘good cause’ standard”).
19 20
3.
Granting Hynix’s motion would lead to an unnecessary waste of judicial and party resources.
21 22 23 24 25 26 27
Should Rambus be prevented from pursuing its contentions regarding Hynix’s GDDR5 products as accused products in this litigation, Rambus will be forced to file a new patentinfringement suit here against Hynix. That alternative would undoubtedly require more work and expense not only on Hynix’s part, but on the part of the Court as well. The prospect of such an additional suit springing from a grant of Hynix’s motion to strike constitutes “another compelling reason to allow the amendment” to Rambus’s infringement contentions. See Roche
28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
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Molecular Systems, 2008 WL 624771, at *4; see also, e.g., Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 599-600 (5th Cir. 1981) (“If the plaintiff cannot amend, his proper recourse is to file a new action . . . . All that is accomplished is that the case is set back on the docket, and disposition of the merits delayed, a result that [FED. R. CIV. P.] 1 directs us to avoid and that undercuts the policy of the federal rules in favor of consolidating litigation to facilitate an efficient and expeditious resolution of disputes.”).
7
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Document 2114
8
Rambus’s Final Infringement Contentions Regarding GDDR5 Are Sufficient, and Will Be Amended Once Discovery Is Received and Reviewed.
9
In addition to its principal argument that the Court should strike Rambus’s GDDR5-
10
related claims from this case—necessarily for litigation in a subsequent one—Hynix also
11 12
B.
complains that the disclosures related to its own GDDR5 products in Rambus’s Final Infringement Contentions are insufficiently detailed. (See Dkt. No. 2050, at 8-9, 18.) There is a
13 14 15
simple answer to this complaint: to the extent that Rambus’s contentions on Hynix’s GDDR5 products lack sufficient detail to satisfy Hynix, that is directly due to the fact that Hynix
16
intentionally withheld the requested discovery on its GDDR5 products. Because little technical
17
detail concerning these accused products is publicly available, Rambus’s ability to draft detailed
18
claim charts was dependent upon Hynix’s willingness to meet its discovery obligations. After
19
thwarting Rambus’s attempts to secure discovery on Hynix’s GDDR5 products, Hynix should
20 not be heard to complain that Rambus’s claim charts lack sufficient detail. As Rambus noted in 21 22
its Final Infringement Contentions, it will supplement its contentions with additional detail once
23
it receives and reviews sufficient discovery from Hynix to determine the specific operation of the
24
accused products. (See Dkt. No. 2036, Ex. G at 3, n.2.)
25 IV.
CONCLUSION
26 27
For these reasons, Rambus respectfully requests that the Court deny Hynix’s motion.
28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
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1 2 Dated: August 29, 2008
Respectfully submitted,
3 MUNGER TOLLES & OLSON LLP SIDLEY AUSTIN LLP MCKOOL SMITH P.C.
4 5 6 7
/s/ Pierre J. Hubert
8
Attorneys for RAMBUS INC.
9
Austin 41241v1
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike Portions of Rambus’s Final Infringement Contentions Case No. CV 05-00334
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