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Case 5:05-cv-00334-RMW
Document 2123
Filed 09/02/2008
Page 1 of 13
1 [Attorneys Listed on Signature Page] 2 3 4 5 6 7 8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
10 RAMBUS INC.,
CASE NO.: C 05-00334 RMW
11 Plaintiff,
JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL
12 v. 13 HYNIX SEMICONDUCTOR INC., et al., 14 Defendants
Judge: Trial Date:
Hon. Ronald M. Whyte September 22, 2008
15 16 17
Plaintiff,
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CASE NO.: C 05-02298 RMW
RAMBUS INC.,
v. SAMSUNG ELECTRONICS CO., LTD., et al., Defendants
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5849711.1
SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL, CASE NOS. 05-00334 RMW; 05-02298 RMW
ERROR! UNKNOWN DOCUMENT PROPERTY NAME.
Case 5:05-cv-00334-RMW
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Semiconductor, L.P. (collectively “Samsung”) hereby submit this Supplemental Joint Pretrial Statement for the trial scheduled to begin on September 22, 2008 (hereinafter the “September 2008 Trial”). This Supplemental Joint Pretrial Statement is being submitted because the parties were not able to reach agreement on the stipulation being negotiated with respect to certain claims and defenses, and therefore pursuant to the parties’ agreement set forth in the Joint Pretrial Statement filed August 27, 2008, the parties are supplementing their pretrial disclosures that would otherwise have been due on August 27, 2008 with respect to those claims and defenses. A.
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STATEMENT REGARDING THE SUBSTANCE OF THE ACTION 1.
Joint Supplemental Statement Regarding the Substance of the Action
In Complaints in the ‘334 and ‘2298 cases, Rambus alleges that a series of “Accused Products,” produced and sold by Samsung, infringe certain Rambus patents in the FarmwaldHorowitz family and two Ware-Hampel patents (the “Patents-in-Suit”). The Accused Products include: SDR SDRAM, DDR SDRAM, SGRAM, GDDR, GDDR2, gDDR2, GDDR3, GDDR4, GDDR5, Mobile-SDRAM, Mobile-DDR-SDRAM, DDR2 SDRAM and DDR3 SDRAM and associated Controllers.1 Rambus asserts that certain claims in the Patents-in-Suit read on the Accused Products. Samsung filed counterclaims and affirmative defenses in response to these claims of infringement. The trial in the above-captioned cases has been bifurcated into the September 2008 Trial on certain claims and defenses, and then a subsequent trial on Rambus’s patent infringement claims and the Manufacturers’ related defenses.
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Samsung Electronics America, Inc., Samsung Semiconductor, Inc., and Samsung Austin
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Filed 09/02/2008
Plaintiff Rambus Inc. (“Rambus”) and defendants Samsung Electronics Co., Ltd.,
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Document 2123
As set forth in the parties’ August 27, 2008 Joint Pretrial Statement, in the September 2008 Trial, Samsung and Rambus will present evidence regarding the following claims made by Samsung against Rambus: (1) Count I: Breach of Section 3.8 of the SDR/DDR IC and
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1
Samsung does not agree that Samsung’s memory controllers and GDDR5 products are accused products in the consolidated proceedings. Samsung contends that Rambus may not assert its claims against Samsung's memory controllers and GDDR5 products, and has moved to strike Samsung memory controllers and GDDR5 products from Rambus's final infringement contentions. The motion to strike is scheduled to be heard by this Court on September 19, 2008.
5849711.1
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Electronics Co., Ltd. (the “SDR/DDR License”), (2) Count II: Breach of Section 8.5 of the SDR/DDR License, and (3) Count III: Breach of the duty of good faith and fair dealing of Sections 3.8 and 8.5 of the SDR/DDR License. Samsung and Rambus will present evidence related to the following defenses raised by Samsung: (1) unclean hands based on spoliation of documents; and (2) estoppel based on the allegations contained in Counts I-III.2 The evidence presented on these claims and defenses may also be pertinent to Samsung’s Count X, which seeks a declaratory judgment of unenforceability. Rambus intends to present evidence regarding the defense of unclean hands asserted by Rambus and to the extent Rambus is permitted to do so, Samsung will respond. The parties were not able to come to agreement on the stipulation referenced in the August 27, 2008 Joint Pretrial Statement. Therefore, the parties supplement that statement with the following additional explanation of the claims and defenses to be tried in the September 22 Trial:
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Filed 09/02/2008
SDR/DDR Memory Module Patent License Agreement Between Rambus Inc. and Samsung
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Document 2123
First, the September 22 Trial is a continuation of the January 29, 2008 coordinated trial on the conditions set forth in the Court’s May 7, 2008 Order. The coordination portion of the trial involved the presentation of evidence and adjudication of claims and defenses related to Rambus’s participation in JEDEC and Rambus’s alleged nondisclosure to the Manufacturers in RDRAM license negotiations. In the September 22 Trial, Samsung and Rambus may continue the presentation of evidence regarding Samsung’s claims for unfair competition under Cal. Bus. & Prof. Code § 17200 (Count VII), its claim for declaratory judgment of unenforceability (Count X), and the affirmative defenses of equitable estoppel, estoppel, and implied license. Rambus may present evidence regarding at least the following defenses asserted by Rambus: (1) conduct of Samsung, (2) release, (3) waiver, (4) estoppel, (5) no loss/damages, (6) failure to mitigate damages, (7) business justification, (8) ratification, (9) statute of limitations, (10) laches,
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2
Rambus disagrees that the pleadings in this case set forth the basis for an estoppel defense based on the allegations contained in Counts I-III. Samsung asserts that the pleadings in the case do set forth the basis for an estoppel defense based on the allegations contained in Counts I-III. Nothing in this Pretrial Statement should be construed as an agreement by the parties on the procedural propriety of such an estoppel defense. 5849711.1
-2SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
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defenses is set forth in Attachments 4 and 5 to the July 31, 2007 Joint Case Management Conference Statement. Second, the September 22 Trial will resolve Samsung’s remaining allegations related to Neil Steinberg’s alleged misuse of Samsung confidential information. The Court’s August 11, 2008 summary judgment order removed Counts IV through VI and the Steinberg-related aspects of Count VII from the trial. Samsung also raises its allegations related to Mr. Steinberg in its affirmative defenses of estoppel, equitable estoppel, and implied license as set forth in Attachment 4 to the July 31, 2007 Joint Case Management Conference Statement. Therefore, Samsung and Rambus may present evidence related to those defenses at the September 22 Trial. Third, Samsung’s Second Amended Answer, Affirmative Defenses, and Counterclaims asserts a Section 17200 claim (Count VII) based on its allegation that Rambus spoliated evidence. The parties will present evidence and argument related to this claim at the September 22 Trial.
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2.
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defenses discussed in the August 27, 2008 Pretrial Statement; thus, Samsung has filed a Motion to Dismiss those claims and defenses without prejudice. Samsung has asked that the Motion to Dismiss be heard on September 5, 2008. Samsung has also asked that if the Motion to Dismiss is denied, the parties have until September 10, 2008 to supplement the joint pretrial statement and to designate testimony and witnesses related to those claims and defenses. 3.
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Samsung’s Supplemental Statement Regarding the Substance of the Action
The parties were unable to reach agreement on the stipulation regarding certain claims and
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the extent Rambus is permitted to do so, Samsung will respond.3 The basis for these claims and
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Filed 09/02/2008
(11) consent, and (12) Noerr-Pennington/First Amendment/California litigation privilege, and, to
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Document 2123
Rambus’s Supplemental Statement Regarding the Substance of the Action
Rambus hereby supplements and adds to its statement regarding the substance of the action as set forth in the August 27, 2008 Joint Pretrial Statement. As this Court is aware, Samsung was excused from participating in the coordinated portion of the trial that began on
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Samsung intends to file a motion to dismiss without prejudice its remaining claims and defenses based on JEDEC, RDRAM licensing non-disclosure, and Neil Steinberg. Rambus will oppose that motion. 5849711.1
-3SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
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Document 2123
Filed 09/02/2008
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January 29, 2008 on the conditions set forth in the May 7, 2008 Order. In the coordinated trial, the Court heard evidence related to the Manufacturers’ allegations based on Rambus’s participation in JEDEC and Rambus’s alleged nondisclosure during RDRAM license negotiations. Now in the September 22 Trial, the parties may present any additional evidence on these issues. Samsung’s claims and defenses related to Rambus’s participation in JEDEC and Rambus’s alleged nondisclosure during RDRAM license negotiations are set forth in Attachment 4 to the July 31, 2007 Joint Case Management Conference Statement and include Samsung’s Section 17200 claim, its declaratory judgment of unenforceability claim, and its affirmative defenses of estoppel, equitable estoppel, and implied license. Through these allegations, Samsung seeks an order that would deny Rambus the right to collect royalties for the Patents in Suit that may be awarded by a future jury in the ‘334 and ‘2298 cases, prevent Rambus from suing Samsung for continuing to infringe Rambus’s patents, and award to Samsung the perpetual free use of Rambus’s patents in devices standardized by JEDEC. The evidence does not support this unprecedented relief. In particular:
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Samsung will be unable to prove that JEDEC’s patent policy required disclosure of
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any of Rambus’s intellectual property interests.
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Samsung will be unable to prove that the disclosure duty it posits arose prior to
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JEDEC balloting.
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Samsung will be unable to show that the JEDEC policy required disclosure of any
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patents other than those necessary to practice the standard, and the Manufacturers
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will be unable to prove that Rambus possessed patents or patent applications that
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covered the JEDEC presentations it relies upon. The parties’ expert testimony
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from the January 29, 2008 trial and the Court of Appeals for the Federal Circuit
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have demonstrated that there were no such patents or applications.
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Samsung will be unable to prove that Rambus led other JEDEC members to
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believe that it would not seek or claim intellectual property rights relating to
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standardized features. The evidence will instead show that Rambus had put
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JEDEC and its members on notice that it would not disclose its intentions with
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respect to intellectual property, that it reserved all rights in that regard, and that, as
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Rambus explained in writing in 1995, Rambus’s “presence or silence at committee
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meetings does not . . . make any statement regarding potential infringement of
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Rambus intellectual property.”
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Samsung will be unable to prove that JEDEC would have adopted different
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features if Rambus had disclosed its hopes and intentions regarding broad patent
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coverage, unable to prove that there were viable alternatives in any event, and
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unable to prove that any equivalent or superior technologies were excluded by
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Rambus’s alleged conduct.
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Samsung will be unable to prove that they and the rest of the DRAM industry are
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now or were ever “locked in” to the use of Rambus’s technologies.
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Samsung will be unable to prove that it relied on any alleged nondisclosure by
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Rambus of the potential scope of its intellectual property. The evidence at the
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September 22 Trial will show that Samsung’s case for reliance is particularly weak
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because Samsung knew the potentially broad scope of Rambus’s intellectual
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property as early as 1991 when it reviewed and analyzed Rambus’s PCT
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application and Samsung sought a non-assertion clause as a result of that
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knowledge to protect it from having to pay royalties for potential future use of
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Rambus’s intellectual property in SDRAM and DDR SDRAM. Samsung will be
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unable to prove the requisite reliance for its affirmative defenses of estoppel and
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equitable estoppel given its undisputed knowledge of the potential scope of
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Rambus’s intellectual property.
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Samsung will be unable to prove damages sufficient to support its Section 17200
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claim.
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Samsung will be unable to prove prejudice sufficient to support is estoppel and
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equitable estoppel defenses.
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-5SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
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and as will be demonstrated in the continuation of that trial starting on September 22, 2008, Samsung will be unable to meet its burden of proof on each of these issues. In addition, Rambus will present evidence at the September 22 Trial that Samsung released and waived its right to bring a Section 17200 claim based on its allegations of Rambus’s wrongdoing at JEDEC and in RDRAM licensing negotiations. This presentation of evidence will center on Section 2.12 of the SDR/DDR License Agreement between Rambus and Samsung and related evidence of the parties behavior, knowledge, and intent. Moreover, Rambus will present evidence at the September 22 Trial that Samsung cannot sustain its affirmative defenses of estoppel, equitable estoppel, and implied license based on its allegations that Neil Steinberg misused Samsung’s confidential information. For the reasons stated in this Court’s August 11, 2008 summary judgment order, there can be no dispute that Samsung was aware of and concerned about Mr. Steinberg’s work for Rambus before, during, and immediately after the signing of the SDR/DDR License agreement in October 2000. Nonetheless, Samsung took no action to investigate, object to, or act as a result of its concern about Mr. Steinberg’s work at Rambus. As a result, Samsung will not be able to sustain its burden of showing reliance sufficient to support its estoppel and equitable estoppel affirmative defenses. Samsung’s defense of implied license based on Mr. Steinberg’s work for Rambus is similarly flawed. In addition, Samsung’s remaining affirmative defenses of estoppel, equitable estoppel, and implied license will fail at the September 22 Trial on their merits because Samsung cannot sustain its burden of showing that Mr. Steinberg did anything improper or used Samsung confidential information in any way in prosecuting Rambus’s patents. B.
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burden on any of them will require dismissal. As was demonstrated in the January 29, 2008 trial,
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Samsung bears the burden of proof on all of these issues, and more; a failure to meet its
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Document 2123
SUPPLEMENTAL LIST OF DISPUTED FACTUAL ISSUES The following is a supplemental list of disputed factual issues intended to supplement
those set forth in the Joint Pretrial Statement filed on August 27, 2008. The parties’ list of factual contentions is not intended to be a comprehensive list of every fact that the parties will prove at
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their inclusion in the lists below does not indicate any agreement by the other parties that the statements are correct. 1.
defenses discussed in the August 27, 2008 Pretrial Statement; thus, Samsung has filed a Motion to Dismiss those claims and defenses without prejudice. Samsung has asked that the Motion to Dismiss be heard on September 5, 2008. Samsung has also asked that if the Motion to Dismiss is denied, the parties have until September 10, 2008 to supplement the joint pretrial statement and to designate testimony and witnesses related to those claims and defenses. 2.
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17
September 2008 Trial: 1.
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alleged in the operative pleadings. 2.
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patents. 3.
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Whether Samsung can show that it did not have knowledge that Rambus’s
intellectual property had the potential to extend to cover SDRAM and DDR SDRAM prior to 1999.
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Whether Samsung can meet its burden of proving that Rambus’s alleged unfair
and anticompetitive business practices were something more than its attempt to enforce its
21 22
Whether Samsung can meet its burden of proving that Rambus engaged in unfair
and anticompetitive business practices against DRAM manufacturers as a member of JEDEC as
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Rambus’s Disputed Factual Issues
Rambus contends that the following additional disputed factual issues will be raised in the
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Samsung’s Disputed Factual Issues
The parties were unable to reach agreement on the stipulation regarding certain claims and
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their claims and defenses. The factual contentions listed are the contentions of the parties, and
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Filed 09/02/2008
the September 2008 Trial. The parties reserve the right to prove additional facts in support of
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4.
Whether Samsung can show that it did not have knowledge that Rambus’s
intellectual property had the potential to extend to cover SDRAM and DDR SDRAM during the 1994 and 1996-1997 RDRAM licensing negotiations.
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-7SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
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5.
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Agreement in 2000. 7.
8.
9.
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10.
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11.
C.
DISPUTED LEGAL ISSUES The following is a supplemental list of disputed legal issues intended to supplement those
set forth in the Joint Pretrial Statement filed on August 27, 2008. The parties’ list of legal contentions is not intended to be a comprehensive list of every legal element that the parties will prove at the September 2008 Trial. The parties reserve the right to raise additional legal arguments in support of their claims and defenses. The legal issues listed are the contentions of the parties, and their inclusion in the lists below does not indicate any agreement by the other parties that the statements are correct. 1.
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Whether Samsung can meet its burden of proving that Rambus did not have a
legitimate business justification for its conduct.
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Whether Samsung can show that it did not release its claims related to Rambus’s
participation in JEDEC and alleged nondisclosure during RDRAM license negotiations.
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Whether Samsung can show that it would have avoided infringement had it not
been misled.
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Whether Samsung can show that it reasonably relied on Rambus’s alleged
conduct.
12 13
Whether Samsung can show that it was misled by Rambus to believe that Rambus
would not seek or enforce patents against a particular product.
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Whether Samsung can show that it had no knowledge or concern about Mr.
Steinberg’s potential misuse of Samsung information prior to signing the SDR/DDR License
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Whether Samsung can meet its burden of proving that it suffered damages or harm
6.
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Filed 09/02/2008
as a result of Rambus’s allegedly anticompetitive conduct.
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Samsung’s Legal Contentions
The parties were unable to reach agreement on the stipulation regarding certain claims and defenses discussed in the August 27, 2008 Pretrial Statement; thus, Samsung has filed a Motion to Dismiss those claims and defenses without prejudice. Samsung has asked that the Motion to
28 5849711.1
-8SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
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designate testimony and witnesses related to those claims and defenses. Rambus has omitted any discussion of its affirmative defenses, other than its defense of unclean hands, in this pretrial statement. As a result, Samsung contends that those defenses, other than unclean hands, are waived. 2.
September 2008 Trial:
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Whether Samsung can meet its burden of proving that Rambus had a duty to
Order Granting Rambus’s Motion for Summary Adjudication Relating to Duty to Disclose at 4 (“Whether there is a duty to disclose must be decided by the Court.”); Restatement (Second) of Torts, § 551 cmt. m (“[W]hether there is a duty to the other to disclose the fact in question is always a matter for determination of the court’). 4.
Whether Rambus’s alleged conduct is protected from liability by the Noerr-
Pennington doctrine, California’s litigation privilege, and/or the First Amendment. 5.
Whether Samsung’s Section 17200 claim is preempted by federal law relating to
patents. 6.
Whether Samsung’s proposed remedy is narrowly tailored, supported by the case
law, and consistent with the patent statute.
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Whether Samsung released and waived its Section 17200 claim based on
disclose information to Samsung regarding its intellectual property. See Court’s January 5, 2008
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2.
3.
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Whether spoliation forms a proper basis for a Section 17200 claim.
negotiations.
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1.
Rambus’s participation in JEDEC and Rambus’s alleged nondisclosure during RDRAM license
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Rambus’s Legal Contentions Rambus contends that the following additional disputed legal issues will be raised in the
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denied, the parties have until September 10, 2008 to supplement the joint pretrial statement and to
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Dismiss be heard on September 5, 2008. Samsung has also asked that if the Motion to Dismiss is
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Document 2123
7.
Whether Samsung failed to comply with the pretrial disclosure requirements of the
Court’s August 22, 2008 Order Regarding Pretrial Calendar for September 22, 2008 Trial, as
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dismissed on their merits. 8.
D.
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2008, the parties hereby submit supplemental witness lists identifying those witnesses the party “intends to call” and those the party “may call” if the need arises. The parties submit those witness lists herewith, as follows: Rambus’s Witness List is attached as Exhibit B. Samsung’s Supplemental Statement Regarding Witnesses To Be Called The parties were unable to reach agreement on the stipulation regarding certain claims and defenses discussed in the August 27, 2008 Pretrial Statement; thus, Samsung has filed a Motion to Dismiss those claims and defenses without prejudice. Samsung has asked that the Motion to Dismiss be heard on September 5, 2008. Samsung has also asked that if the Motion to Dismiss is denied, the parties have until September 10, 2008 to supplement the joint pretrial statement and to designate testimony and witnesses related to those claims and defenses. E.
19
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RELIEF PRAYED 1.
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WITNESSES TO BE CALLED Pursuant to the parties’ agreement as set forth in Joint Pretrial Statement on August 27,
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Rambus reserves the right to raise additional legal issues depending on the
evidence and argument presented by Samsung in its case-in-chief.
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thus have failed to prosecute the claims and defenses set forth herein, which should therefore be
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Filed 09/02/2008
modified by the parties’ agreement set forth in the August 27, 2008 Joint Pretrial Statement, and
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Document 2123
Samsung Prays For The Following Additional Relief:
The parties were unable to reach agreement on the stipulation regarding certain claims and defenses discussed in the August 27, 2008 Pretrial Statement; thus, Samsung has filed a Motion to Dismiss those claims and defenses without prejudice. Samsung has asked that the Motion to Dismiss be heard on September 5, 2008. Samsung has also asked that if the Motion to Dismiss is denied, the parties have until September 10, 2008 to supplement the joint pretrial statement and to designate testimony and witnesses related to those claims and defenses.
26
2.
Rambus Prays for the Following Additional Relief:
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Counterclaims I-III, VII, and X and on all affirmative defenses other than Samsung’s second affirmative defense of noninfringement and third affirmative defense of invalidity, both of which will be tried in the subsequent patent trial. F.
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ESTIMATED TIME OF TRIAL Rambus does not believe that the inclusion of the JEDEC, RDRAM licensing
nondisclosure, and Steinberg allegations will impact the parties’ ability to try this case with 12 hours per side. Samsung believes that the Court’s disposition of Samsung’s Motion to Dismiss will determine whether 12 hours per side will be adequate to try the issues involved. G.
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reasonable attorneys’ fees, and that final judgment be entered in Rambus’s favor on
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Filed 09/02/2008
That Samsung be denied its requested relief, that Rambus be awarded its costs and
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STIPULATIONS The parties were able to finalize a stipulation related to the presentation of evidence from
the Hynix ‘905 unclean hands trial that that aims to streamline that presentation of evidence for the September 22 , 2008 trial. A copy of that stipulation was filed with the Court on August 29, 2008.
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DATED: September 2, 2008
MUNGER, TOLLES & OLSON LLP
20 21 By ____/s/ Carolyn Hoecker Luedtke_____________ 22
Gregory P. Stone Burton A. Gross Carolyn Hoecker Luedtke
23 24
Counsel for Plaintiff RAMBUS INC.
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1 2
DATED: September 2, 2008
WEIL, GOTSHAL & MANGES LLP
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By____/s/ David J. Healey_____________ David J. Healey Anita Kadala Robert S. Berezin
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Counsel for Defendants SAMSUNG ELECTRONICS CO, LTD., et. al.
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1 [Attorneys Listed on Signature Page] 2 3 4 5 6 7 8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
10 RAMBUS INC.,
CASE NO.: C 05-00334 RMW
11 Plaintiff,
JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL
12 v. 13 HYNIX SEMICONDUCTOR INC., et al., 14 Defendants
Judge: Trial Date:
Hon. Ronald M. Whyte September 22, 2008
15 16 17
Plaintiff,
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CASE NO.: C 05-02298 RMW
RAMBUS INC.,
v. SAMSUNG ELECTRONICS CO., LTD., et al., Defendants
21 22 23 24 25 26 27 28
5849711.1
SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL, CASE NOS. 05-00334 RMW; 05-02298 RMW
ERROR! UNKNOWN DOCUMENT PROPERTY NAME.
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Semiconductor, L.P. (collectively “Samsung”) hereby submit this Supplemental Joint Pretrial Statement for the trial scheduled to begin on September 22, 2008 (hereinafter the “September 2008 Trial”). This Supplemental Joint Pretrial Statement is being submitted because the parties were not able to reach agreement on the stipulation being negotiated with respect to certain claims and defenses, and therefore pursuant to the parties’ agreement set forth in the Joint Pretrial Statement filed August 27, 2008, the parties are supplementing their pretrial disclosures that would otherwise have been due on August 27, 2008 with respect to those claims and defenses. A.
24
STATEMENT REGARDING THE SUBSTANCE OF THE ACTION 1.
Joint Supplemental Statement Regarding the Substance of the Action
In Complaints in the ‘334 and ‘2298 cases, Rambus alleges that a series of “Accused Products,” produced and sold by Samsung, infringe certain Rambus patents in the FarmwaldHorowitz family and two Ware-Hampel patents (the “Patents-in-Suit”). The Accused Products include: SDR SDRAM, DDR SDRAM, SGRAM, GDDR, GDDR2, gDDR2, GDDR3, GDDR4, GDDR5, Mobile-SDRAM, Mobile-DDR-SDRAM, DDR2 SDRAM and DDR3 SDRAM and associated Controllers.1 Rambus asserts that certain claims in the Patents-in-Suit read on the Accused Products. Samsung filed counterclaims and affirmative defenses in response to these claims of infringement. The trial in the above-captioned cases has been bifurcated into the September 2008 Trial on certain claims and defenses, and then a subsequent trial on Rambus’s patent infringement claims and the Manufacturers’ related defenses.
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Samsung Electronics America, Inc., Samsung Semiconductor, Inc., and Samsung Austin
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Filed 09/02/2008
Plaintiff Rambus Inc. (“Rambus”) and defendants Samsung Electronics Co., Ltd.,
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Document 2123
As set forth in the parties’ August 27, 2008 Joint Pretrial Statement, in the September 2008 Trial, Samsung and Rambus will present evidence regarding the following claims made by Samsung against Rambus: (1) Count I: Breach of Section 3.8 of the SDR/DDR IC and
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1
Samsung does not agree that Samsung’s memory controllers and GDDR5 products are accused products in the consolidated proceedings. Samsung contends that Rambus may not assert its claims against Samsung's memory controllers and GDDR5 products, and has moved to strike Samsung memory controllers and GDDR5 products from Rambus's final infringement contentions. The motion to strike is scheduled to be heard by this Court on September 19, 2008.
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16 17 18 19 20 21 22 23 24
Page 3 of 13
Electronics Co., Ltd. (the “SDR/DDR License”), (2) Count II: Breach of Section 8.5 of the SDR/DDR License, and (3) Count III: Breach of the duty of good faith and fair dealing of Sections 3.8 and 8.5 of the SDR/DDR License. Samsung and Rambus will present evidence related to the following defenses raised by Samsung: (1) unclean hands based on spoliation of documents; and (2) estoppel based on the allegations contained in Counts I-III.2 The evidence presented on these claims and defenses may also be pertinent to Samsung’s Count X, which seeks a declaratory judgment of unenforceability. Rambus intends to present evidence regarding the defense of unclean hands asserted by Rambus and to the extent Rambus is permitted to do so, Samsung will respond. The parties were not able to come to agreement on the stipulation referenced in the August 27, 2008 Joint Pretrial Statement. Therefore, the parties supplement that statement with the following additional explanation of the claims and defenses to be tried in the September 22 Trial:
14 15
Filed 09/02/2008
SDR/DDR Memory Module Patent License Agreement Between Rambus Inc. and Samsung
11 12
Document 2123
First, the September 22 Trial is a continuation of the January 29, 2008 coordinated trial on the conditions set forth in the Court’s May 7, 2008 Order. The coordination portion of the trial involved the presentation of evidence and adjudication of claims and defenses related to Rambus’s participation in JEDEC and Rambus’s alleged nondisclosure to the Manufacturers in RDRAM license negotiations. In the September 22 Trial, Samsung and Rambus may continue the presentation of evidence regarding Samsung’s claims for unfair competition under Cal. Bus. & Prof. Code § 17200 (Count VII), its claim for declaratory judgment of unenforceability (Count X), and the affirmative defenses of equitable estoppel, estoppel, and implied license. Rambus may present evidence regarding at least the following defenses asserted by Rambus: (1) conduct of Samsung, (2) release, (3) waiver, (4) estoppel, (5) no loss/damages, (6) failure to mitigate damages, (7) business justification, (8) ratification, (9) statute of limitations, (10) laches,
25 26 27 28
2
Rambus disagrees that the pleadings in this case set forth the basis for an estoppel defense based on the allegations contained in Counts I-III. Samsung asserts that the pleadings in the case do set forth the basis for an estoppel defense based on the allegations contained in Counts I-III. Nothing in this Pretrial Statement should be construed as an agreement by the parties on the procedural propriety of such an estoppel defense. 5849711.1
-2SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
Case 5:05-cv-00334-RMW
1 2 3 4
7 8 9 10 11
14
defenses is set forth in Attachments 4 and 5 to the July 31, 2007 Joint Case Management Conference Statement. Second, the September 22 Trial will resolve Samsung’s remaining allegations related to Neil Steinberg’s alleged misuse of Samsung confidential information. The Court’s August 11, 2008 summary judgment order removed Counts IV through VI and the Steinberg-related aspects of Count VII from the trial. Samsung also raises its allegations related to Mr. Steinberg in its affirmative defenses of estoppel, equitable estoppel, and implied license as set forth in Attachment 4 to the July 31, 2007 Joint Case Management Conference Statement. Therefore, Samsung and Rambus may present evidence related to those defenses at the September 22 Trial. Third, Samsung’s Second Amended Answer, Affirmative Defenses, and Counterclaims asserts a Section 17200 claim (Count VII) based on its allegation that Rambus spoliated evidence. The parties will present evidence and argument related to this claim at the September 22 Trial.
15
2.
16 17 18 19 20 21
defenses discussed in the August 27, 2008 Pretrial Statement; thus, Samsung has filed a Motion to Dismiss those claims and defenses without prejudice. Samsung has asked that the Motion to Dismiss be heard on September 5, 2008. Samsung has also asked that if the Motion to Dismiss is denied, the parties have until September 10, 2008 to supplement the joint pretrial statement and to designate testimony and witnesses related to those claims and defenses. 3.
23
25
Samsung’s Supplemental Statement Regarding the Substance of the Action
The parties were unable to reach agreement on the stipulation regarding certain claims and
22
24
Page 4 of 13
the extent Rambus is permitted to do so, Samsung will respond.3 The basis for these claims and
12 13
Filed 09/02/2008
(11) consent, and (12) Noerr-Pennington/First Amendment/California litigation privilege, and, to
5 6
Document 2123
Rambus’s Supplemental Statement Regarding the Substance of the Action
Rambus hereby supplements and adds to its statement regarding the substance of the action as set forth in the August 27, 2008 Joint Pretrial Statement. As this Court is aware, Samsung was excused from participating in the coordinated portion of the trial that began on
26 27 28
3
Samsung intends to file a motion to dismiss without prejudice its remaining claims and defenses based on JEDEC, RDRAM licensing non-disclosure, and Neil Steinberg. Rambus will oppose that motion. 5849711.1
-3SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
Case 5:05-cv-00334-RMW
1 2 3 4 5 6 7 8 9 10 11 12 13 14
Document 2123
Filed 09/02/2008
Page 5 of 13
January 29, 2008 on the conditions set forth in the May 7, 2008 Order. In the coordinated trial, the Court heard evidence related to the Manufacturers’ allegations based on Rambus’s participation in JEDEC and Rambus’s alleged nondisclosure during RDRAM license negotiations. Now in the September 22 Trial, the parties may present any additional evidence on these issues. Samsung’s claims and defenses related to Rambus’s participation in JEDEC and Rambus’s alleged nondisclosure during RDRAM license negotiations are set forth in Attachment 4 to the July 31, 2007 Joint Case Management Conference Statement and include Samsung’s Section 17200 claim, its declaratory judgment of unenforceability claim, and its affirmative defenses of estoppel, equitable estoppel, and implied license. Through these allegations, Samsung seeks an order that would deny Rambus the right to collect royalties for the Patents in Suit that may be awarded by a future jury in the ‘334 and ‘2298 cases, prevent Rambus from suing Samsung for continuing to infringe Rambus’s patents, and award to Samsung the perpetual free use of Rambus’s patents in devices standardized by JEDEC. The evidence does not support this unprecedented relief. In particular:
15
Samsung will be unable to prove that JEDEC’s patent policy required disclosure of
16
any of Rambus’s intellectual property interests.
17
Samsung will be unable to prove that the disclosure duty it posits arose prior to
18
JEDEC balloting.
19
Samsung will be unable to show that the JEDEC policy required disclosure of any
20
patents other than those necessary to practice the standard, and the Manufacturers
21
will be unable to prove that Rambus possessed patents or patent applications that
22
covered the JEDEC presentations it relies upon. The parties’ expert testimony
23
from the January 29, 2008 trial and the Court of Appeals for the Federal Circuit
24
have demonstrated that there were no such patents or applications.
25
Samsung will be unable to prove that Rambus led other JEDEC members to
26
believe that it would not seek or claim intellectual property rights relating to
27
standardized features. The evidence will instead show that Rambus had put
28 5849711.1
-4SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
Case 5:05-cv-00334-RMW
1
Document 2123
Filed 09/02/2008
Page 6 of 13
JEDEC and its members on notice that it would not disclose its intentions with
2
respect to intellectual property, that it reserved all rights in that regard, and that, as
3
Rambus explained in writing in 1995, Rambus’s “presence or silence at committee
4
meetings does not . . . make any statement regarding potential infringement of
5
Rambus intellectual property.”
6
Samsung will be unable to prove that JEDEC would have adopted different
7
features if Rambus had disclosed its hopes and intentions regarding broad patent
8
coverage, unable to prove that there were viable alternatives in any event, and
9
unable to prove that any equivalent or superior technologies were excluded by
10
Rambus’s alleged conduct.
11
Samsung will be unable to prove that they and the rest of the DRAM industry are
12
now or were ever “locked in” to the use of Rambus’s technologies.
13
Samsung will be unable to prove that it relied on any alleged nondisclosure by
14
Rambus of the potential scope of its intellectual property. The evidence at the
15
September 22 Trial will show that Samsung’s case for reliance is particularly weak
16
because Samsung knew the potentially broad scope of Rambus’s intellectual
17
property as early as 1991 when it reviewed and analyzed Rambus’s PCT
18
application and Samsung sought a non-assertion clause as a result of that
19
knowledge to protect it from having to pay royalties for potential future use of
20
Rambus’s intellectual property in SDRAM and DDR SDRAM. Samsung will be
21
unable to prove the requisite reliance for its affirmative defenses of estoppel and
22
equitable estoppel given its undisputed knowledge of the potential scope of
23
Rambus’s intellectual property.
24
Samsung will be unable to prove damages sufficient to support its Section 17200
25
claim.
26
Samsung will be unable to prove prejudice sufficient to support is estoppel and
27
equitable estoppel defenses.
28 5849711.1
-5SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
Case 5:05-cv-00334-RMW
1 2 3 4
7 8 9
12 13 14 15 16 17 18 19 20 21 22 23 24
and as will be demonstrated in the continuation of that trial starting on September 22, 2008, Samsung will be unable to meet its burden of proof on each of these issues. In addition, Rambus will present evidence at the September 22 Trial that Samsung released and waived its right to bring a Section 17200 claim based on its allegations of Rambus’s wrongdoing at JEDEC and in RDRAM licensing negotiations. This presentation of evidence will center on Section 2.12 of the SDR/DDR License Agreement between Rambus and Samsung and related evidence of the parties behavior, knowledge, and intent. Moreover, Rambus will present evidence at the September 22 Trial that Samsung cannot sustain its affirmative defenses of estoppel, equitable estoppel, and implied license based on its allegations that Neil Steinberg misused Samsung’s confidential information. For the reasons stated in this Court’s August 11, 2008 summary judgment order, there can be no dispute that Samsung was aware of and concerned about Mr. Steinberg’s work for Rambus before, during, and immediately after the signing of the SDR/DDR License agreement in October 2000. Nonetheless, Samsung took no action to investigate, object to, or act as a result of its concern about Mr. Steinberg’s work at Rambus. As a result, Samsung will not be able to sustain its burden of showing reliance sufficient to support its estoppel and equitable estoppel affirmative defenses. Samsung’s defense of implied license based on Mr. Steinberg’s work for Rambus is similarly flawed. In addition, Samsung’s remaining affirmative defenses of estoppel, equitable estoppel, and implied license will fail at the September 22 Trial on their merits because Samsung cannot sustain its burden of showing that Mr. Steinberg did anything improper or used Samsung confidential information in any way in prosecuting Rambus’s patents. B.
25 26 27
Page 7 of 13
burden on any of them will require dismissal. As was demonstrated in the January 29, 2008 trial,
10 11
Filed 09/02/2008
Samsung bears the burden of proof on all of these issues, and more; a failure to meet its
5 6
Document 2123
SUPPLEMENTAL LIST OF DISPUTED FACTUAL ISSUES The following is a supplemental list of disputed factual issues intended to supplement
those set forth in the Joint Pretrial Statement filed on August 27, 2008. The parties’ list of factual contentions is not intended to be a comprehensive list of every fact that the parties will prove at
28 5849711.1
-6SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
Case 5:05-cv-00334-RMW
1 2 3 4
9 10 11
their inclusion in the lists below does not indicate any agreement by the other parties that the statements are correct. 1.
defenses discussed in the August 27, 2008 Pretrial Statement; thus, Samsung has filed a Motion to Dismiss those claims and defenses without prejudice. Samsung has asked that the Motion to Dismiss be heard on September 5, 2008. Samsung has also asked that if the Motion to Dismiss is denied, the parties have until September 10, 2008 to supplement the joint pretrial statement and to designate testimony and witnesses related to those claims and defenses. 2.
13
17
September 2008 Trial: 1.
20
alleged in the operative pleadings. 2.
23
patents. 3.
26
Whether Samsung can show that it did not have knowledge that Rambus’s
intellectual property had the potential to extend to cover SDRAM and DDR SDRAM prior to 1999.
24 25
Whether Samsung can meet its burden of proving that Rambus’s alleged unfair
and anticompetitive business practices were something more than its attempt to enforce its
21 22
Whether Samsung can meet its burden of proving that Rambus engaged in unfair
and anticompetitive business practices against DRAM manufacturers as a member of JEDEC as
18 19
Rambus’s Disputed Factual Issues
Rambus contends that the following additional disputed factual issues will be raised in the
15 16
Samsung’s Disputed Factual Issues
The parties were unable to reach agreement on the stipulation regarding certain claims and
12
14
Page 8 of 13
their claims and defenses. The factual contentions listed are the contentions of the parties, and
6
8
Filed 09/02/2008
the September 2008 Trial. The parties reserve the right to prove additional facts in support of
5
7
Document 2123
4.
Whether Samsung can show that it did not have knowledge that Rambus’s
intellectual property had the potential to extend to cover SDRAM and DDR SDRAM during the 1994 and 1996-1997 RDRAM licensing negotiations.
27 28 5849711.1
-7SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
Case 5:05-cv-00334-RMW
1 2
5.
5
Agreement in 2000. 7.
8.
9.
16
10.
19 20 21 22 23
11.
C.
DISPUTED LEGAL ISSUES The following is a supplemental list of disputed legal issues intended to supplement those
set forth in the Joint Pretrial Statement filed on August 27, 2008. The parties’ list of legal contentions is not intended to be a comprehensive list of every legal element that the parties will prove at the September 2008 Trial. The parties reserve the right to raise additional legal arguments in support of their claims and defenses. The legal issues listed are the contentions of the parties, and their inclusion in the lists below does not indicate any agreement by the other parties that the statements are correct. 1.
25
27
Whether Samsung can meet its burden of proving that Rambus did not have a
legitimate business justification for its conduct.
24
26
Whether Samsung can show that it did not release its claims related to Rambus’s
participation in JEDEC and alleged nondisclosure during RDRAM license negotiations.
17 18
Whether Samsung can show that it would have avoided infringement had it not
been misled.
14 15
Whether Samsung can show that it reasonably relied on Rambus’s alleged
conduct.
12 13
Whether Samsung can show that it was misled by Rambus to believe that Rambus
would not seek or enforce patents against a particular product.
10 11
Whether Samsung can show that it had no knowledge or concern about Mr.
Steinberg’s potential misuse of Samsung information prior to signing the SDR/DDR License
8 9
Page 9 of 13
Whether Samsung can meet its burden of proving that it suffered damages or harm
6.
6 7
Filed 09/02/2008
as a result of Rambus’s allegedly anticompetitive conduct.
3 4
Document 2123
Samsung’s Legal Contentions
The parties were unable to reach agreement on the stipulation regarding certain claims and defenses discussed in the August 27, 2008 Pretrial Statement; thus, Samsung has filed a Motion to Dismiss those claims and defenses without prejudice. Samsung has asked that the Motion to
28 5849711.1
-8SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
Case 5:05-cv-00334-RMW
1 2 3
6 7
designate testimony and witnesses related to those claims and defenses. Rambus has omitted any discussion of its affirmative defenses, other than its defense of unclean hands, in this pretrial statement. As a result, Samsung contends that those defenses, other than unclean hands, are waived. 2.
September 2008 Trial:
11
13
16 17 18 19
Whether Samsung can meet its burden of proving that Rambus had a duty to
Order Granting Rambus’s Motion for Summary Adjudication Relating to Duty to Disclose at 4 (“Whether there is a duty to disclose must be decided by the Court.”); Restatement (Second) of Torts, § 551 cmt. m (“[W]hether there is a duty to the other to disclose the fact in question is always a matter for determination of the court’). 4.
Whether Rambus’s alleged conduct is protected from liability by the Noerr-
Pennington doctrine, California’s litigation privilege, and/or the First Amendment. 5.
Whether Samsung’s Section 17200 claim is preempted by federal law relating to
patents. 6.
Whether Samsung’s proposed remedy is narrowly tailored, supported by the case
law, and consistent with the patent statute.
26 27
Whether Samsung released and waived its Section 17200 claim based on
disclose information to Samsung regarding its intellectual property. See Court’s January 5, 2008
24 25
2.
3.
22 23
Whether spoliation forms a proper basis for a Section 17200 claim.
negotiations.
20 21
1.
Rambus’s participation in JEDEC and Rambus’s alleged nondisclosure during RDRAM license
14 15
Rambus’s Legal Contentions Rambus contends that the following additional disputed legal issues will be raised in the
10
12
Page 10 of 13
denied, the parties have until September 10, 2008 to supplement the joint pretrial statement and to
8 9
Filed 09/02/2008
Dismiss be heard on September 5, 2008. Samsung has also asked that if the Motion to Dismiss is
4 5
Document 2123
7.
Whether Samsung failed to comply with the pretrial disclosure requirements of the
Court’s August 22, 2008 Order Regarding Pretrial Calendar for September 22, 2008 Trial, as
28 5849711.1
-9SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
Case 5:05-cv-00334-RMW
1 2 3
6
9 10
dismissed on their merits. 8.
D.
15 16 17 18
2008, the parties hereby submit supplemental witness lists identifying those witnesses the party “intends to call” and those the party “may call” if the need arises. The parties submit those witness lists herewith, as follows: Rambus’s Witness List is attached as Exhibit B. Samsung’s Supplemental Statement Regarding Witnesses To Be Called The parties were unable to reach agreement on the stipulation regarding certain claims and defenses discussed in the August 27, 2008 Pretrial Statement; thus, Samsung has filed a Motion to Dismiss those claims and defenses without prejudice. Samsung has asked that the Motion to Dismiss be heard on September 5, 2008. Samsung has also asked that if the Motion to Dismiss is denied, the parties have until September 10, 2008 to supplement the joint pretrial statement and to designate testimony and witnesses related to those claims and defenses. E.
19
22 23 24 25
RELIEF PRAYED 1.
20 21
WITNESSES TO BE CALLED Pursuant to the parties’ agreement as set forth in Joint Pretrial Statement on August 27,
12
14
Rambus reserves the right to raise additional legal issues depending on the
evidence and argument presented by Samsung in its case-in-chief.
11
13
Page 11 of 13
thus have failed to prosecute the claims and defenses set forth herein, which should therefore be
7 8
Filed 09/02/2008
modified by the parties’ agreement set forth in the August 27, 2008 Joint Pretrial Statement, and
4 5
Document 2123
Samsung Prays For The Following Additional Relief:
The parties were unable to reach agreement on the stipulation regarding certain claims and defenses discussed in the August 27, 2008 Pretrial Statement; thus, Samsung has filed a Motion to Dismiss those claims and defenses without prejudice. Samsung has asked that the Motion to Dismiss be heard on September 5, 2008. Samsung has also asked that if the Motion to Dismiss is denied, the parties have until September 10, 2008 to supplement the joint pretrial statement and to designate testimony and witnesses related to those claims and defenses.
26
2.
Rambus Prays for the Following Additional Relief:
27 28 5849711.1
-10SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
Case 5:05-cv-00334-RMW
1 2 3 4 5 6
9
12
Counterclaims I-III, VII, and X and on all affirmative defenses other than Samsung’s second affirmative defense of noninfringement and third affirmative defense of invalidity, both of which will be tried in the subsequent patent trial. F.
15 16
ESTIMATED TIME OF TRIAL Rambus does not believe that the inclusion of the JEDEC, RDRAM licensing
nondisclosure, and Steinberg allegations will impact the parties’ ability to try this case with 12 hours per side. Samsung believes that the Court’s disposition of Samsung’s Motion to Dismiss will determine whether 12 hours per side will be adequate to try the issues involved. G.
13 14
Page 12 of 13
reasonable attorneys’ fees, and that final judgment be entered in Rambus’s favor on
10 11
Filed 09/02/2008
That Samsung be denied its requested relief, that Rambus be awarded its costs and
7 8
Document 2123
STIPULATIONS The parties were able to finalize a stipulation related to the presentation of evidence from
the Hynix ‘905 unclean hands trial that that aims to streamline that presentation of evidence for the September 22 , 2008 trial. A copy of that stipulation was filed with the Court on August 29, 2008.
17 18 19
DATED: September 2, 2008
MUNGER, TOLLES & OLSON LLP
20 21 By ____/s/ Carolyn Hoecker Luedtke_____________ 22
Gregory P. Stone Burton A. Gross Carolyn Hoecker Luedtke
23 24
Counsel for Plaintiff RAMBUS INC.
25 26 27 28 5849711.1
-11SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
Case 5:05-cv-00334-RMW
Document 2123
Filed 09/02/2008
Page 13 of 13
1 2
DATED: September 2, 2008
WEIL, GOTSHAL & MANGES LLP
3 4
By____/s/ David J. Healey_____________ David J. Healey Anita Kadala Robert S. Berezin
5 6
Counsel for Defendants SAMSUNG ELECTRONICS CO, LTD., et. al.
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5849711.1
-12SUPPLEMENTAL JOINT PRETRIAL STATEMENT FOR SEPTEMBER 22, 2008 TRIAL CASE NOS. 05-00334 RMW; 05-02298 RMW
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