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Case 5:05-cv-00334-RMW

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Document 2344

Gregory P. Stone (State Bar No. 078329) Steven M. Perry (State Bar No. 106154) Sean Eskovitz (State Bar No. 241877) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, California 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Email: [email protected]; [email protected]; [email protected]

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Peter A. Detre (State Bar No. 182619) Rosemarie T. Ring (State Bar No. 220769) Jennifer L. Polse (State Bar No. 219202) MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, California 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Email: [email protected]; [email protected]; [email protected]

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Attorneys for RAMBUS INC.

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Filed 10/03/2008

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Rollin A. Ransom (State Bar No. 196126) SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, California 90013-1010 Telephone: (213) 896-6000 Facsimile: (213) 896-6600 Email: [email protected] Pierre J. Hubert (Pro Hac Vice) Craig N. Tolliver (Pro Hac Vice) McKOOL SMITH PC 300 West 6th Street, Suite 1700 Austin, Texas 78701 Telephone: (512) 692-8700 Facsimile: (512) 692-8744 Email: [email protected]; [email protected]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

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RAMBUS INC., Plaintiff,

17 vs.

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CASE NO.: C 05-00334 RMW

HYNIX SEMICONDUCTOR INC., et al., Defendants.

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Judge: Location: Date: Time:

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RAMBUS INC.,

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27 28

Hon. Ronald M. Whyte Courtroom 6 October 17, 2008 9:00 a.m.

CASE NO. C 05-02298 RMW Plaintiff,

v.

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RAMBUS INC.’S NOTICE OF MOTION AND MOTION TO PRECLUDE THE MANUFACTURERS’ REBUTTAL EXPERT REPORTS ON INFRINGEMENT AND RELATED TRIAL TESTIMONY; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

SAMSUNG ELECTRONICS CO., LTD., et al., Defendants. 6056782.1

RAMBUS’S MOTION TO PRECLUDE REBUTTAL EXPERT REPORTS ON INFRINGEMENT C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW

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CASE NO.: C 06-00244 RMW RAMBUS INC.,

3 Plaintiff, 4 vs. 5 MICRON TECHNOLOGY INC., et al, 6 Defendants. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6056782.1

RAMBUS’S MOTION TO PRECLUDE REBUTTAL EXPERT REPORTS ON INFRINGEMENT C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE THAT ON October 17, 2008 at 9:00 a.m., or as soon

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thereafter as counsel may be heard before the Honorable Ronald M. Whyte, in Courtroom 6 of the

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above-captioned Court located at 280 South First Street, San Jose, California 95110, Plaintiff

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Rambus Inc. (“Rambus”) will bring a motion to preclude the Manufacturers’ rebuttal expert

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reports on infringement and related trial testimony.

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This motion is based on this Notice of Motion and Motion, the Memorandum of

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Points and Authorities attached hereto, the Declaration of Peter A. Detre filed herewith, all of the

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Court’s records and files in this action, and on such other and further written and oral argument

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and authorities as may be presented at or before the hearing on this matter.

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DATED: October 3, 2008

MUNGER, TOLLES & OLSON LLP

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SIDLEY AUSTIN LLP

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McKOOL SMITH PC

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By:

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/s/ Rosemarie T. Ring ROSEMARIE T. RING

Attorneys for Plaintiff RAMBUS INC.

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MEMORANDUM OF POINTS AND AUTHORITIES

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Plaintiff Rambus Inc. respectfully submits this motion to preclude four rebuttal

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expert reports and related trial testimony on infringement offered by the Manufacturers because it

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violates the Joint Case Management Order dated April 24, 2007 (“JCMO”). In an effort to “avoid

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cumulative testimony,” the JCMO limits each side to one testifying expert on any particular issue.

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Rambus is required to “disclose only one testifying expert on any particular issue.” Likewise, the

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Manufacturers are required to “agree on, disclose, and offer only one testifying expert on any

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particular issue common to one or more of the Manufacturers.” If either Rambus or one of the

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Manufacturers intends to offer more than one expert on a particular issue, the JCMO allows that

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party to seek leave from the Court to do so upon a showing of prejudice.

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The Manufacturers’ apparent contention that infringement is not an issue common

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to all of the Manufacturers is belied by their own conduct to date in treating the infringement

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issue collectively, notwithstanding whatever tactical advantage they now see in recasting it as an

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individual issue allowing them to argue to the jury that their four experts all disagree with

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Rambus’s one expert. The status of the infringement issue as a common issue in this case and the

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propriety of the Manufacturer’s decision to treat it as such until now is confirmed by the

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duplicative arguments advanced in the rebuttal expert reports themselves, which provide a

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preview of the “cumulative testimony” the JCMO is meant to prevent. Because infringement is

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an issue common to all of the Manufacturers, and none of them sought leave from the Court to

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offer individual experts on infringement, Rambus’s motion should be granted.

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If Rambus’s motion is granted, and the Court permits the Manufacturers to serve a

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single rebuttal expert report on the issue of infringement consistent with the JCMO, Rambus

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respectfully requests that any such new report be limited to arguments contained in the existing

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four rebuttal expert reports with respect to the Manufacturers’ respective accused products. The

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Manufacturers should not benefit from violating the JCMO by making new arguments in a

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consolidated report developed after the deadline for filing rebuttal expert reports.

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///

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I.

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BACKGROUND In an effort to “avoid cumulative testimony,” the JCMO limits Rambus and,

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collectively, the Manufacturers, to one testifying expert on any particular issue, unless leave is

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given by the Court to offer additional experts upon a showing of prejudice. The JCMO provides,

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in relevant part, as follows:

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Rambus shall disclose only one testifying expert on any particular issue. The Manufacturers shall agree on, disclose, and offer only one testifying expert on any particular issue common to one or more of the Manufacturers that is to be the subject of expert testimony, so as to avoid cumulative testimony. If the Manufacturers are unable to agree on a single expert for a particular issue, they may seek leave of court to offer more than one expert upon a showing of prejudice to one or more party’s interests. Rambus may similarly seek leave to offer more than one expert on a subject matter upon a showing of prejudice if it were not allowed to do so.

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JCMO ¶ 6(b). On July 16, 2008, the Court entered a scheduling order for the patent trial in this

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litigation, which set the deadline for opening expert reports as September 5, 2008, and the

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deadline for rebuttal expert reports as September 26, 2008. On the issue of infringement, Rambus served its opening expert report on

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September 5, 2008. Declaration of Peter Detre, ¶ 2. On September 26, 2008, Micron, Nanya,

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and Samsung served three separate rebuttal expert reports on infringement. Detre Decl., Ex. A

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(Micron’s Expert Report of William K. Hoffman, or “Hoffman Report”); Detre Decl., Ex. B

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(Nanya’s Expert Report of Nader Bagherzadeh, or “Bagherzadeh Report”); Detre Decl., Ex. C

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(Samsung’s Expert Report of Michael Runas, or “Runas Report”). On September 29, 2008,

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pursuant to an extension of time agreed to by the parties, Hynix served a fourth rebuttal expert

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report on infringement. Detre Decl., Ex. D (Hynix’s Expert Report of David L. Taylor, or

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“Taylor Report”). Hereinafter, the four rebuttal expert reports on infringement served by the

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Manufacturers shall be referred to, collectively, as the “Infringement Rebuttal Expert Reports”. Upon receipt of the fourth rebuttal expert report on infringement, Rambus objected

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to the Infringement Rebuttal Expert Reports as violating the JCMO’s requirement that the

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Manufacturers each offer only one testifying witness on any particular issue and requested that

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the Manufacturers inform Rambus as to which of the four experts they would offer as their 6056782.1

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testifying expert on infringement. 1 Detre Decl., ¶ 9. Rambus further informed the Manufacturers

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that, until such steps were taken to comply with the JCMO, Rambus would not be in a position to

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complete expert discovery, as Rambus would take only the deposition of the expert designated by

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the Manufacturers as their testifying expert on infringement. Id.

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On September 30, 2008, the parties met and conferred in good faith regarding

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Rambus’s objections. Detre Decl., ¶ 10. The Manufacturers stated their position that the JCMO

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permits them to offer four separate experts on the issue of infringement. Id. Rambus indicated its

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intent to bring an emergency motion to preclude the Manufacturers’ rebuttal expert reports and

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related trial testimony on infringement and the parties stipulated to extend the expert discovery

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cut-off to allow Rambus to depose the Manufacturers’ infringement expert or experts after the

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Court resolves Rambus’s motion. Id. This motion follows.

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II.

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DISCUSSION A.

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The Manufacturers’ Service of Four Rebuttal Reports On Infringement Violates the JCMO Because Infringement Is an Issue Common to All of the Manufacturers.

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As Rambus recently set forth in its Consolidated Opposition to the Motions of

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Manufacturers for Separate Trials, filed on August 22, 2008, the issue of infringement is common

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to all of the Manufacturers because of the acknowledged similarities among the Manufacturers’

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accused products. As a result, the infringement analysis in this case turns on a common set of

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features used in the accused products—which, by the Manufacturers’ own account, are generally

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based upon the same JEDEC standards and use the same patented features—not issues specific to

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each defendant such as manufacturing, importation, and sales conduct.2

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///

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///

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1

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The Manufacturers have likewise served rebuttal reports from four separate damages experts. Because the Court has not yet ruled on consolidation of the damages issues for a single trial, Rambus has not objected to proceeding forward with depositions of the Manufacturers’ damages experts. Should the Court order a coordinated damages proceeding, Rambus reserves the right to object to the Manufacturers’ offering separate expert testimony on duplicative damages issues. 2

While Micron’s RLDRAM II is not a JEDEC-standard product, and the parties dispute whether gDDR2 fully complies with the JEDEC DDR2 standard, the features accused of infringement in these products mirror the features in the JEDEC-standard products.

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There is substantial overlap among the Manufacturers’ accused products at issue in

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the upcoming patent trial: for Hynix and Samsung, DDR2 and gDDR2, DDR3 and GDDR3, and

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GDDR4; for Micron, DDR2, DDR3 and GDDR3, and RLDRAM II; and, for Nanya, DDR2 and

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DDR3. In Rambus’s opening expert report on infringement, Rambus’s expert, Mr. Robert J.

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Murphy, opines that the accused products infringe the elected claims of Rambus’s patents

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essentially because each of the products incorporate all or some of the six features that the parties

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and the Court have been referring to by the shorthand names programmable burst length,

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programmable read latency, auto-precharge, dual-edge clocking, on-chip DLL, and

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programmable write latency. As one would expect in light of the similarities among the products

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accused of infringement, the Manufacturers have treated the accused products collectively with

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respect to the infringement issue and, when necessary, through the testimony of a single expert.

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During the conduct trial, the Manufacturers made no attempt to draw distinctions

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among their DRAM products, including the accused products at issue in the upcoming patent

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trial. To the contrary, their core factual theory—which the jury rejected—was that Rambus had

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engaged in anticompetitive conduct by obtaining patent protection on features incorporated into

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JEDEC standards, and that the Manufacturers consequently became “locked in” to the continued

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use of these patented features when they began manufacturing products that complied with the

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JEDEC standards. The express premise of this argument is that the Manufacturers’ accused

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products incorporated the common set of DRAM features standardized by JEDEC and covered by

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Rambus patents.

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The Manufacturers argued that each of them designed their DRAM devices based

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upon the JEDEC standards. Hynix, they argued, “manufactures these JEDEC standard DRAMs”

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(Conduct Tr. 235 (opening statement)), and Nanya purportedly “was just relying on that JEDEC

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process to create an open standard” (id. at 234). JEDEC was so central to their products that the

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Manufacturers took the position that “[a]lthough JEDEC is not here today, it’s kind of a party in

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many ways.” Id. at 232 (emphasis added). The Manufacturers also echoed a point made by their

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expert in that trial about the evolutionary nature of JEDEC-standard designs. Id. at 310-12.

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SDRAM, they noted, incorporated programmable burst length, programmable read latency, and 6056782.1

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auto-precharge. Id. With their next generation DRAM device, DDR, JEDEC integrated on-chip

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DLL and dual-edge clocking. Id. DDR2, they explained, “has these other technologies, and a

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bunch of other technologies as well,” including programmable write latency. Id.

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In opposing Rambus’s Motion for Summary Judgment of Literal Infringement, the

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Manufacturers, likewise, did not distinguish among their respective accused products but instead

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treated infringement as a common issue. Detre Decl., Ex. E (Joint Opposition to Rambus’s

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Motion for Summary Judgment of Literal Infringement). The Manufacturers joint opposition was

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supported by a single expert declaration, see Detre Decl. Ex. F (Declaration of Joseph A.

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McAlexander, Oct. 31, 2007), and, treating the accused products of all of the Manufacturers

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collectively, made eleven infringement arguments with respect to the Farmwald/Horowitz

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patents-in-suit:

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(1)

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The commands received by the accused products do not identify the type of read or write to perform;

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(2)

The accused products receive commands not requests;

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(3)

The accused products do not receive bits that specify a read, write, or any

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other type of action;

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(4)

The burst length value received by the mode register of the accused

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products does not specify the total amount of data transferred on the data

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bus;

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(5)

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timing relationship with respect to an external clock;

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(6)

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Read operations performed by the accused products do not have a known timing relationship with respect to an external clock;

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(7)

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The accused products do not output data (for read operations) as a result of a rising or falling edge transition of an external clock;

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(8)

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Write operations performed by the accused products do not have a known

The accused products do not sample an operation code as a result of a rising or falling edge transition of an external clock;

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(9)

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The accused products do not receive an external clock signal which

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governs the timing of read and write operations;

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(10)

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The accused products do not receive or output data before a delay time expires;

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(11)

Rambus does not offer any evidence of indirect infringement. .

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Detre Decl., Ex. E, at i (Table of Contents listing non-infringement arguments A.1 through A.10,

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and C). In light of the admitted similarities among the products accused of infringement, the

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Manufacturers decision to treat them collectively, at least until now, makes perfect sense.

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Although they have now apparently decided to treat infringement as an individual issue, requiring

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four testifying experts at trial, the Infringement Rebuttal Expert Reports confirm that the

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Manufacturers’ initial assessment of infringement as a common issue was correct no matter how

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appealing it may now be as a tactical matter to characterize it as an individual issue.

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In the Infringement Rebuttal Expert Reports, the Manufacturers make the same

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arguments that they made through the testimony of one joint expert in their Joint Opposition to

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Rambus’s Motion for Summary Judgment of Literal Infringement, but now they make them using

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the testimony of four separate experts. After similar background sections, each of the

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Infringement Rebuttal Expert Reports makes some subset of the same arguments that the

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Manufacturers made jointly before. The numbers in the first column of the following table

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correspond to the eleven infringement arguments listed above. The paragraph cites indicate

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where each infringement expert makes one of the above arguments with a blank indicating that

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that particular expert did not make the argument at issue. 3

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Mfrs Past Infringement Arguments

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Bagherzadeh (Nanya)

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¶¶ 115-120

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¶¶ 97-101

Hoffman (Micron)

¶¶ 27-46

Runas (Samsung)

Taylor (Hynix)

¶¶ 51-60

¶¶ 75-86

¶¶ 61-72

¶¶ 62-72

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3

Dr. Bagherzadeh and Mr. Taylor organize their reports on a claim-by-claim basis, and repeat the same arguments with respect to different claims. The table cites to the first occurrence of the argument. 6056782.1

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¶¶ 91-96

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4

¶¶ 77-90

3

5

¶¶ 102-109

¶¶ 48-56, 64-67

¶¶ 73-84

4

6

¶¶ 141-144

¶¶ 57-63

¶¶ 85-97

7

¶¶ 155-157

¶¶ 68-80

¶¶ 98-107

8

¶¶ 202-204

¶¶ 81-88

¶¶ 108-117

9

¶¶ 132-135

¶¶ 89-98

¶¶ 118-128

¶¶ 103-111

10

¶¶ 121-123

¶¶ 99-105

¶¶ 129-138

¶¶ 87-91, 146-156

5 6 7 8

11

9

¶¶157-164

¶¶ 139-140 In support of these arguments, the four infringement experts do not rely on unique

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features of the Manufacturers’ respective accused products, but features common to all. 4

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Likewise, the experts generally rely solely on features apparent from the Manufacturers’ highly

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similar datasheets to make their infringement arguments, rather than any part-specific circuitry. 5

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And the Infringement Rebuttal Expert Reports make similar arguments to rebut Mr. Murphy’s

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conclusions. For example, each of the Infringement Rebuttal Expert Reports reproduces the same

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figure from the book “Memory Systems” by Bruce Jacob et al., in an attempt to rebut Mr.

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Murphy’s citation of that book to show, contrary to non-infringement argument no. 2, that the

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terms “request” and “command” are used interchangeably. Bagherzadeh Report ¶ 100; Hoffman

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Report ¶ 44; Runas Report ¶ 70; Taylor Report ¶ 69.

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4

The only arguable exception is Mr. Hoffman’s reference to the “separate input data clock signal (DKx/DK) in RLDRAM II, rather than the “DQ strobes” in the other products with respect to argument no. 5 (write operations performed by the accused products do not have a known timing relationship with respect to an external clock.) Compare Hoffman Report ¶¶ 64-67 with id. ¶¶ 48-56. But, even here, Mr. Hoffman makes the same non-infringement argument, namely that, in the accused products the timing reference used for data input is a signal, be it the input data clock in RLDRAM II or the DQ strobes in the other products, that does not have a sufficiently tight timing relationship with respect to the external clock to meet the claim limitation. 5 The only references to specific circuitry in the accused products are Mr. Hoffman’s and Mr. Taylor’s citations to Micron and Hynix schematics, respectively, in support of argument no. 7 (that the accused products do not output data as a result of a rising or falling edge transition of an external clock). Hoffman Report ¶ 71; Taylor Report ¶¶ 160-161. The other two experts make the same argument – namely that the accused products output data based on the crossing points of the differential clock’s complementary signals rather than as a result of rising and falling edges of a single clock signal – without feeling the need to resort to schematics. See Bagherzadeh Report ¶¶ 155-157; Runas Report ¶¶ 98-107. 6056782.1

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The above table includes all of the infringement arguments made by the

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Manufacturers’ four infringement experts with but one exception: Mr. Runas argues that the

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accused Samsung products do not meet certain limitations that, according to Mr. Runas, require

4

action by controllers. Runas Report ¶¶ 141-144. However, n making this argument, Mr. Runas

5

does not rely on any feature unique to the accused Samsung products. Id.

6

As a preview of what the Manufacturers intend to present at trial on the issue of

7

infringement, the overlapping and duplicative testimony in the Infringement Rebuttal Expert

8

Reports embody the reason for the provision of the JCMO limiting each side to offering one

9

testifying expert on common issues. Consistent with the Manufacturers’ own treatment of the

10

infringement issue to date, and the stated objective of the JCMO “to avoid cumulative testimony,”

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only one rebuttal report and testifying expert on infringement should be permitted.

12

B.

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Rambus Would Be Severely Prejudiced If the Manufacturers Were Permitted to Proceed with Multiple Infringement Experts. In addition to the significant time at trial that would wasted if the Manufacturers

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were permitted to offer four testifying experts on the common issue of infringement, Rambus

16

would be severely prejudiced, both in its ability to prepare for trial and to present its arguments

17

on infringement at trial. First, allowing four experts to testify at trial regarding the overlapping

18

issues addressed in the Infringement Rebuttal Expert Reports may, at best, confuse the jury, and,

19

at worst, create the impression that, in a “battle of the experts,” the party with the greatest number

20

of experts has the better of the argument. Given the Manufacturers’ own conduct to date in

21

treating infringement as a common issue, showing that it is not only possible but proper to do so,

22

it would be manifestly unfair to Rambus to allow the Manufacturers to change course now simply

23

to gain a tactical advantage at trial.

24

Second, Rambus would be prejudiced in its ability to prepare for trial by having to

25

take the depositions of four experts, instead of one, all of whom would testify to essentially the

26

same overlapping issues addressed in their respective expert reports. Ensuring the fair and

27

efficient conduct of trials is only one reason to preclude duplicative testimony. A corollary to this

28

sound rule of judicial administration, as expressly adopted by this Court in the JCMO, is to allow 6056782.1

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parties to prepare for trial without wasting time and resources addressing and responding to such

2

testimony. While working to meet aggressive deadlines for filing pre-trial motions and otherwise

3

preparing for trial, Rambus would be put at a significant disadvantage if it were required to

4

prepare for and take four, largely duplicative expert depositions.

5

III.

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CONCLUSION For the foregoing reasons, the Court should grant Rambus’s motion to preclude the

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four rebuttal expert reports on infringement served by the Manufacturers and related trial

8

testimony. If this motion is granted, and the Court permits the Manufacturers to serve a single

9

rebuttal expert report on the issue of infringement consistent with the JCMO, any such new report

10

should be limited to arguments contained in the existing Infringement Rebuttal Expert Reports

11

with respect to the Manufacturers’ respective accused products.

12 13

DATED: October 3, 2008

MUNGER, TOLLES & OLSON LLP

14

SIDLEY AUSTIN LLP

15

McKOOL SMITH P.C.

16 By:

17

/s/ Rosemarie T. Ring ROSEMARIE T. RING

18 Attorneys for RAMBUS INC. 19 20 21 22 23 24 25 26 27 28 6056782.1

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