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Case 5:05-cv-00334-RMW
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Attorneys for RAMBUS INC.
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MCKOOL SMITH
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Page 1 of 12
Rollin A. Ransom (SBN 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: [email protected]
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION RAMBUS INC.,
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Filed 10/24/2008
Gregory P. Stone (SBN 078329) Andrea Weiss Jeffries (SBN 183408) Fred A. Rowley, Jr. (SBN 192298) 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: [email protected] Email: [email protected] Peter A. Detre (SBN 182619) Rosemarie T. Ring (SBN 220769) Jennifer L. Polse (SBN 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: [email protected] Email: [email protected]
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A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Document 2410
Plaintiff, vs. HYNIX SEMICONDUCTOR INC., et al., Defendants.
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) ) ) ) ) ) ) ) ) ) )
Case No. C 05-00334 RMW RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR Hearing Date: December 2, 2008 Time: 2:00 pm Courtroom: 6 (Hon. Ronald M. Whyte)
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RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW Austin 46717v4
Case 5:05-cv-00334-RMW
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Document 2410
RAMBUS INC., Plaintiff,
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vs.
3 SAMSUNG
ELECTRONICS
CO.,
4 et al., 5 Defendants.
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RAMBUS INC.,
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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Plaintiff, vs.
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MICRON TECHNOLOGY, INC., et al.,
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Defendants.
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Filed 10/24/2008
) ) ) ) LTD., ) ) ) ) )
) ) ) ) ) ) ) ) )
Page 2 of 12
Case No. C 05-002298 RMW
Case No. C 06-00244 RMW
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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Austin 46717v4
Case 5:05-cv-00334-RMW
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NOTICE OF MOTION AND MOTION
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that Rambus Inc. hereby moves for an order excluding certain opinions of the Manufacturers’ infringement experts Nader Bagherzadeh, William Hoffman, Michael Runas, and David Taylor (1) regarding aspects of a preferred embodiment from the patent specification that have no bearing on the issue of infringement and cannot fairly be characterized as responsive to Rambus’s expert report on infringement; and (2) that now seek to impart a construction to the term “request,” where the Court’s claim constructions use the term “request” throughout without any construction, and where the Manufacturers failed to argue at the Markman stage that the term “request” itself required special construction. This motion shall be heard on December 2, 2008, at 2:00 p.m., in Courtroom 6 of the above-referenced Court, located at 280 South First Street, San Jose, California 95110. This motion is based upon this Notice of Motion and Motion and the attached Memorandum of Points and Authorities, the papers and pleadings on file in this action, and such other and further evidence as may subsequently be presented to the Court.
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DATED: October 24, 2008
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MUNGER, TOLLES & OLSON LLP SIDLEY AUSTIN LLP McKOOL SMITH PC By:
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/s/Pierre J. Hubert Pierre J. Hubert
Attorneys for RAMBUS INC.
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RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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Austin 46717v4
Case 5:05-cv-00334-RMW
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I.
INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................1
3
II.
ARGUMENT.......................................................................................................................2
4
A.
Under Rule 702 and Daubert, This Court Exercises A Gatekeeping Function To Exclude Unreliable And Unhelpful Expert Testimony....................................................................................2
B.
The Court Should Exclude the Manufacturers’ Infringement Experts’ Opinions Regarding Aspects of Preferred Embodiments from the Patent Specification That Have No Bearing on the Issue of Infringement and Cannot Fairly be Characterized as Responsive to Rambus’s Expert Report on Infringement............................................................................................3
C.
The Court Should Exclude the Manufacturers’ Infringement Experts’ Opinions that Improperly Seek to Impart a Construction to the Term “Request” .........................................................4
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MCKOOL SMITH
Filed 10/24/2008
TABLE OF CONTENTS
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A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Document 2410
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III.
CONCLUSION....................................................................................................................7
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i RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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1 TABLE OF AUTHORITIES
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Page(s) CASES
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Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) .....................................................................................................3 Daubert v. Merrell Dow Pharms., 509 U.S. 579, 595 (1993)...........................................................................................................2 DSU Med. Corp. v. JMS Co., Ltd., 296 F. Supp. 2d 1140 (N.D. Cal. 2003) .....................................................................................3
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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Kumho Tire Co. V. Carmichael, 526 U.S. 137, 147-49 (1999) .....................................................................................................3 Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1065 (9th Cir. 2002) .........................................................................................3 United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979)..............................................................................................2 United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999)...............................................................................................2 Whiting v. Boston Edison Co., 891 F. Supp. 12, 24 (D. Mass. 1995) .........................................................................................2
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ii RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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Austin 46717v4
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MEMORANDUM OF POINTS AND AUTHORITIES
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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I.
INTRODUCTION AND SUMMARY OF ARGUMENT
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On September 26, 2008, the Manufacturers served expert reports from Nader
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Bagherzadeh, William Hoffman, Michael Runas, and David Taylor (hereinafter “the
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Manufacturers’ Infringement Experts”), purportedly in rebuttal to the September 5, 2008, expert
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report of Robert Murphy on infringement issues served by Rambus.1 The Court should preclude
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the Manufacturers’ Infringement Experts from offering opinions on two subjects that are
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common to each of the reports:2
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First, the Court should exclude the opinions of the Manufacturers’ Infringement Experts
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regarding aspects of preferred embodiments from the patent specification – such as a narrow,
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multiplexed bus – that have no bearing on the issue of infringement and cannot fairly be
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characterized as responsive to Rambus’s expert report on infringement. To the extent that the
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preferred embodiments are relevant at all, they relate to the Manufacturers invalidity arguments
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regarding lack of adequate written description and have no place in the testimony of their
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rebuttal experts on infringement. Second, the Court should exclude the opinions of the Manufacturers’ Infringement
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Experts that rely on a newfound construction of the term “request.”
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constructions use the term “request” throughout without any construction and with no indication
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The Court’s claim
1
For the Court’s reference, these reports are attached as Exhibits A, B, C, and D to Dkt. No. 2344 (Rambus’s Motion to Preclude the Manufacturers’ Rebuttal Expert Reports on Infringement), hereinafter Hoffman Report, Bagherzadeh Report, Runas Report, and Taylor Report, respectively. 2 Rambus previously moved to preclude the Manufacturers’ multiple rebuttal expert reports on infringement. Earlier this week, on October 20, 2008, the Court issued its order denying Rambus’s motion, but ordering that at least five days before the commencement of the four expert’s depositions, the Manufacturers must identify the “common” noninfringement issues and the “lead expert” who will testify with respect to each “common” issue, and also must identify any unique noninfringement defenses. The Court’s October 20, 2008 Order has no bearing on the present motion, which seeks to preclude certain opinions common to all of the Manufacturers’ Infringement Experts, regardless of which expert the Manufacturers will designate to offer those opinions. 1 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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that the Court intended to use the term in the narrow sense that the Manufacturers now argue is required. Indeed, the Manufacturers seek to limit the scope even of patent claims that do not use the term “request,” simply because the Court’s construction of other terms, such as “synchronous memory device” and “read operation,” include the word “request.” If the Manufacturers felt that the term “request” itself required special construction, they should have raised it at the Markman stage.
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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II.
ARGUMENT A.
Under Rule 702 and Daubert, This Court Exercises A Gatekeeping Function To Exclude Unreliable And Unhelpful Expert Testimony
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“Expert evidence can be both powerful and quite misleading because of the difficulty in
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evaluating it.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 595 (1993). Moreover, an
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“added aura of reliability” necessarily attaches to testimony offered by an expert witness. United
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States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999). This creates a “substantial danger” that
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expert testimony will confuse and unduly prejudice the jury. United States v. Fosher, 590 F.2d
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381, 383 (1st Cir. 1979).
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Accordingly, Federal Rule of Evidence 702 permits expert testimony only from a witness
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who is “qualified as an expert by knowledge, skill, experience, training, or education.” General
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qualifications as an expert are not sufficient, however. Rather, an expert witness “must be
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qualified in the specific subject for which his testimony is offered.” Whiting v. Boston Edison
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Co., 891 F. Supp. 12, 24 (D. Mass. 1995).
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Rule 702 also places limits on the areas of expertise and the methodologies of experts.
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The rule permits expert testimony only “if (1) the testimony is based upon sufficient facts or
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data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has
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applied the principles and methods reliably to the facts of the case.” Fed. R. Evid. 702.
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Rule 702 further limits the permissible subjects of expert testimony to those which will “assist the trier of fact to understand the evidence or to determine a fact in issue.”
Id.
2 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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Accordingly, “[t]o be admissible, ‘expert testimony must . . . address an issue beyond the common knowledge of the average layman.’” Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1065 n.9 (9th Cir. 2002) (ellipsis in original) (citation omitted). The proponent of expert testimony must establish each of these requirements for admissibility by a preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171, 175-76 (1987). Under Daubert, this Court must act as a “gatekeeper” to ensure, with respect to each proposed expert witness and subject of expert opinion testimony, that “the reasoning or methodology underlying the testimony is scientifically valid” and “can properly be applied to the facts at issue.” DSU Med. Corp., 296 F. Supp. 2d at 1146 (quoting Daubert, 509 U.S. at 592-93 (alteration in original)). In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999), the Supreme Court confirmed that this gatekeeping obligation extends to all forms of expert testimony, whether or not such testimony is “scientific”. While the relevant factors for the Court to consider therefore will depend on the specific nature of the testimony to be presented and the facts of the particular case, the key is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. At 151-52.
17 B.
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The Court Should Exclude the Manufacturers’ Infringement Experts’ Opinions Regarding Aspects of Preferred Embodiments from the Patent Specification That Have No Bearing on the Issue of Infringement and Cannot Fairly be Characterized as Responsive to Rambus’s Expert Report on Infringement
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Each of the Manufacturers’ Infringement Experts opines at some length regarding aspects
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of the Farmwald/Horowitz patent specification, noting that preferred embodiments in the
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specification include a “narrow multiplexed bus,” use “packets,” and/or use an “early clock/late
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clock” clocking scheme. Bagherzadeh Report ¶¶ 52-66, 78, Hoffman Report ¶¶ 19, 69; Taylor
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Report ¶¶ 42-52, 148-150; Runas Report ¶ 46 (incorporating portion of a declaration of Joseph
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McAlexander discussing this subject). The experts do not explain, however, how these aspects
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3 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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In fact, the Manufacturers’ Infringement Experts’ opinions regarding aspects of preferred embodiments in the specification are irrelevant to infringement. The Court already has construed the claims, holding, for example, that the asserted claims are not limited to the “narrow, multiplexed bus” of a preferred embodiment.3
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The Manufacturers’ Infringement Experts
continued recitation of the “narrow, multiplexed bus” mantra would serve no purpose but to confuse the jurors and, perhaps, mislead them into thinking that, contrary to the Court’s claim construction, the asserted claims do require a “narrow, multiplexed bus.” To the extent that testimony regarding the preferred embodiments is relevant to any issue in this case, it is to the Manufacturers’ written description defense and may not be offered through the Manufacturers’ Infringement Experts. The Manufacturers served an expert report of Joseph McAlexander addressing validity on September 5, 2008, when the parties exchanged initial expert reports. Rambus should not be required to rebut the Manufacturers’ Infringement Experts’ collateral attacks on validity.
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arguments.
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Filed 10/24/2008
of preferred embodiments in the specification have any relevance to their non-infringement
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Document 2410
In light of the lack of relevance regarding the preferred embodiments in the specification to the infringement issues that the jury must decide, and the corresponding prejudice that Rambus would suffer, the Court should preclude the Manufacturers’ Infringement Experts from testifying about them.
20 C. 21 22
The Court Should Exclude the Manufacturers’ Infringement Experts’ Opinions that Improperly Seek to Impart a Construction to the Term “Request”
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Each of the Manufacturers’ Infringement Experts argues that the accused products do not
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infringe because they receive “commands” while the claims require “requests.” This, however,
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3
The Court agreed with the Federal Circuit’s construction that a multiplexed bus is not a “part of the claim limitations.” See e.g., Markman Order at 29-30 (“To construe ‘device’ to require the use of a multiplexed bus (among other things) would run counter to the Patent Office and the inventors’ disclosed understandings of the claims”). 4 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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is an untimely claim construction argument: the Manufacturers seek to limit the scope of Rambus’s claims by construing the term “request” as necessarily optional, as opposed to a “command” which they say is mandatory. Indeed, the Manufacturers seek to limit not only the scope of claims that include the term “request,” but all of Rambus’s asserted claims because the Court’s construction of other terms – such as “read operation” – includes the word “request.” This is improper. It is too late for the Manufacturers to raise claim construction arguments. And, even if it were not, the Manufacturers should not be permitted to seize on the Court’s use of the word “request” to limit the scope of claims that do not even include that term, where the Court gave no indication that it was using the word in any restrictive sense. That the Manufacturers’ Infringement Experts are engaged in an untimely claim construction exercise is readily apparent.
The Manufacturers’ Infringement Experts refer
repeatedly to the patent specification in an attempt to construe the term “request” as optional. See, e.g., Bagherzadeh Report ¶ 97 (“The patents explain that the ‘slave’ (i.e. the memory device) may choose not to respond to a ‘request’ issued by the controller.”); Runas Report ¶ 64 (“the Farmwald Patents explain that a memory does not have to accept a memory request”); Hoffman Report ¶ 34 (citing to patent specification for proposition that a “request” can be “denied or postponed”); Taylor Report ¶ 64 (“As the Rambus patents explain, a slave such as a memory may choose not to respond to a ‘request’ with data.”). Notably, at the Markman stage, the Manufacturers proposed constructions of “read request” and “write request” but did not raise any argument that the term “request” itself required construction. The Court rejected the Manufacturers’ proposed constructions, and construed claim terms such as “read request” and “write request” consistent with the Federal Circuit’s opinion in Infineon.
Moreover, the Court used the term “request” in those constructions,
illustrating that the term “request” is understood and requires no construction. See e.g., Claim Construction Order, July 10, 2008, at 35-37. For example, “read request” was construed to mean “a series of bits used to request a read of data from a memory device where the request identifies
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5 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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what type of read to perform.” See id. As shown in the following table, many terms of claimsin-suit contain the term “request,” either in the claim language or in a construction of claim language, without any indication of special meaning:
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According to the Manufacturers’ argument, their SDRAMs (i.e. Synchronous DRAMs) would
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not constitute “synchronous memory devices” within the meaning of the asserted claims, simply
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because the Court used the term “request” in construing the term. See, e.g., Taylor Report, ¶ 116
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(“None of the accused Hynix Products meet the ‘transaction request’ requirement, [a term found
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in the Court’s construction of ‘synchronous memory device,’] because each accused product is
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only capable of receiving ‘commands’ and not ‘requests’”).
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MCKOOL SMITH
Filed 10/24/2008
Claim Term Court’s Construction block size information Information that specifies the total amount of data that is to be transferred on the bus in response to a transaction request. read request A series of bits used to request a read of data from a memory device where the request identifies what type of read to perform. read operation Reading data from the memory array as specified in the read request. request for a write A series of bits used to request a write of data to a memory device operation where the request identifies what type of write to perform. set register request One or more bits to specify that a value be stored in a programmable register. synchronous memory A memory device that receives an external clock signal which governs device the timing of the response to a transaction request. transaction request A series of bits used to request performance of a transaction with a memory device. write request A series of bits used to request a write of data to a memory device. write operation Writing data to the memory array as specified in the write request.
5
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Document 2410
11
19
Further, the Manufacturers’ new construction of the term “request” is plainly contrary to
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the Court’s use of the term. The Manufacturers assert that “request” should be interpreted as
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optional, but the Court’s construction of “set register request” – “one or more bits to specify that
22
a value be stored in a programmable register” – includes no such limitation.
23
Accordingly Rambus objects to the Manufacturers’ Infringement Experts now purporting
24
to define “request” for the jury when the Court chose not to construe that term, and to define it in
25
a manner contrary to the Court’s use of the term. It is not the province of a technical consultant
26
to define a claim term for the jury--only the Court may perform that function. The Court should
27
exclude the Manufacturers’ Infringement Experts’ opinions in the following paragraphs of the 6
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RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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respective Manufacturers’ Infringement Expert’s report: Bagherzadeh Report ¶¶ 92, 96-100, 113-114, 128, 130, 136-137, 145, 149, 153-154, 158, 162, 165, 167, 171, 174, 176, 180-181, 183, 187-188, 190, 194-195, 197, 201, 203, 207; Hoffman Report ¶¶ 27, 31-45, 89, 106-109, 112-127; Runas Report ¶¶ 53, 64-68, 70-71; Taylor Report ¶¶ 63-66, 68-69, 93, 94, 116, 117, 122-123, 128-129, 140-142, 166, 167, 172-173, 182-183, 191-192, 201-202.
6
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
7
III.
CONCLUSION
8
For the foregoing reasons, Rambus requests that the Court grant Rambus’s Daubert
9
motion to exclude portions of expert testimony from Messrs. Bagherzadeh, Hoffman, Runas, and
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Taylor, including the following paragraphs of the respective reports: Bagherzadeh Report ¶¶ 52-
11
66, 78, 92, 96-100, 113-114, 128, 130, 136-137, 145, 149, 153-154, 158, 162, 165, 167, 171,
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174, 176, 180-181, 183, 187-188, 190, 194-195, 197, 201, 203, 207; Hoffman Report at ¶¶ 19,
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27, 31-45, 69, 89, 106-109, 112-127; Runas Report at ¶¶ 46, 53, 64-68, 70-71; Taylor Report at
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¶¶ 42-52, 63-66, 68-69, 93, 94, 116, 117, 122-123, 128-129, 140-142, 148-150, 166, 167, 172-
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173, 182-183, 191-192, 201-202.
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Dated: October 24, 2008
Respectfully submitted, MUNGER, TOLLES & OLSON LLP SIDLEY AUSTIN LLP MCKOOL SMITH, P.C.
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/s/ Pierre J. Hubert Pierre J. Hubert Attorneys for RAMBUS INC.
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7 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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Attorneys for RAMBUS INC.
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MCKOOL SMITH
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Rollin A. Ransom (SBN 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: [email protected]
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION RAMBUS INC.,
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Filed 10/24/2008
Gregory P. Stone (SBN 078329) Andrea Weiss Jeffries (SBN 183408) Fred A. Rowley, Jr. (SBN 192298) 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: [email protected] Email: [email protected] Peter A. Detre (SBN 182619) Rosemarie T. Ring (SBN 220769) Jennifer L. Polse (SBN 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: [email protected] Email: [email protected]
7
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Document 2410
Plaintiff, vs. HYNIX SEMICONDUCTOR INC., et al., Defendants.
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) ) ) ) ) ) ) ) ) ) )
Case No. C 05-00334 RMW RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR Hearing Date: December 2, 2008 Time: 2:00 pm Courtroom: 6 (Hon. Ronald M. Whyte)
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RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW Austin 46717v4
Case 5:05-cv-00334-RMW
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Document 2410
RAMBUS INC., Plaintiff,
2
vs.
3 SAMSUNG
ELECTRONICS
CO.,
4 et al., 5 Defendants.
6 7
RAMBUS INC.,
8
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
9
Plaintiff, vs.
10
MICRON TECHNOLOGY, INC., et al.,
11
Defendants.
12
Filed 10/24/2008
) ) ) ) LTD., ) ) ) ) )
) ) ) ) ) ) ) ) )
Page 2 of 12
Case No. C 05-002298 RMW
Case No. C 06-00244 RMW
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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Austin 46717v4
Case 5:05-cv-00334-RMW
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NOTICE OF MOTION AND MOTION
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
10 11 12 13 14 15 16 17 18
TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that Rambus Inc. hereby moves for an order excluding certain opinions of the Manufacturers’ infringement experts Nader Bagherzadeh, William Hoffman, Michael Runas, and David Taylor (1) regarding aspects of a preferred embodiment from the patent specification that have no bearing on the issue of infringement and cannot fairly be characterized as responsive to Rambus’s expert report on infringement; and (2) that now seek to impart a construction to the term “request,” where the Court’s claim constructions use the term “request” throughout without any construction, and where the Manufacturers failed to argue at the Markman stage that the term “request” itself required special construction. This motion shall be heard on December 2, 2008, at 2:00 p.m., in Courtroom 6 of the above-referenced Court, located at 280 South First Street, San Jose, California 95110. This motion is based upon this Notice of Motion and Motion and the attached Memorandum of Points and Authorities, the papers and pleadings on file in this action, and such other and further evidence as may subsequently be presented to the Court.
19 20
DATED: October 24, 2008
21 22
MUNGER, TOLLES & OLSON LLP SIDLEY AUSTIN LLP McKOOL SMITH PC By:
23
/s/Pierre J. Hubert Pierre J. Hubert
Attorneys for RAMBUS INC.
24 25 26 27
RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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Austin 46717v4
Case 5:05-cv-00334-RMW
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2
I.
INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................1
3
II.
ARGUMENT.......................................................................................................................2
4
A.
Under Rule 702 and Daubert, This Court Exercises A Gatekeeping Function To Exclude Unreliable And Unhelpful Expert Testimony....................................................................................2
B.
The Court Should Exclude the Manufacturers’ Infringement Experts’ Opinions Regarding Aspects of Preferred Embodiments from the Patent Specification That Have No Bearing on the Issue of Infringement and Cannot Fairly be Characterized as Responsive to Rambus’s Expert Report on Infringement............................................................................................3
C.
The Court Should Exclude the Manufacturers’ Infringement Experts’ Opinions that Improperly Seek to Impart a Construction to the Term “Request” .........................................................4
5 6 7 8 9 10
MCKOOL SMITH
Filed 10/24/2008
TABLE OF CONTENTS
1
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Document 2410
11 12
III.
CONCLUSION....................................................................................................................7
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
i RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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1 TABLE OF AUTHORITIES
2 3
Page(s) CASES
4 5 6 7 8
Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) .....................................................................................................3 Daubert v. Merrell Dow Pharms., 509 U.S. 579, 595 (1993)...........................................................................................................2 DSU Med. Corp. v. JMS Co., Ltd., 296 F. Supp. 2d 1140 (N.D. Cal. 2003) .....................................................................................3
9
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
10 11 12 13 14 15 16 17
Kumho Tire Co. V. Carmichael, 526 U.S. 137, 147-49 (1999) .....................................................................................................3 Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1065 (9th Cir. 2002) .........................................................................................3 United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979)..............................................................................................2 United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999)...............................................................................................2 Whiting v. Boston Edison Co., 891 F. Supp. 12, 24 (D. Mass. 1995) .........................................................................................2
18 19 20 21 22 23 24 25 26 27
ii RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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MEMORANDUM OF POINTS AND AUTHORITIES
2
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
3
I.
INTRODUCTION AND SUMMARY OF ARGUMENT
4
On September 26, 2008, the Manufacturers served expert reports from Nader
5
Bagherzadeh, William Hoffman, Michael Runas, and David Taylor (hereinafter “the
6
Manufacturers’ Infringement Experts”), purportedly in rebuttal to the September 5, 2008, expert
7
report of Robert Murphy on infringement issues served by Rambus.1 The Court should preclude
8
the Manufacturers’ Infringement Experts from offering opinions on two subjects that are
9
common to each of the reports:2
10
First, the Court should exclude the opinions of the Manufacturers’ Infringement Experts
11
regarding aspects of preferred embodiments from the patent specification – such as a narrow,
12
multiplexed bus – that have no bearing on the issue of infringement and cannot fairly be
13
characterized as responsive to Rambus’s expert report on infringement. To the extent that the
14
preferred embodiments are relevant at all, they relate to the Manufacturers invalidity arguments
15
regarding lack of adequate written description and have no place in the testimony of their
16
rebuttal experts on infringement. Second, the Court should exclude the opinions of the Manufacturers’ Infringement
17 18
Experts that rely on a newfound construction of the term “request.”
19
constructions use the term “request” throughout without any construction and with no indication
20 21 22 23 24 25 26 27
The Court’s claim
1
For the Court’s reference, these reports are attached as Exhibits A, B, C, and D to Dkt. No. 2344 (Rambus’s Motion to Preclude the Manufacturers’ Rebuttal Expert Reports on Infringement), hereinafter Hoffman Report, Bagherzadeh Report, Runas Report, and Taylor Report, respectively. 2 Rambus previously moved to preclude the Manufacturers’ multiple rebuttal expert reports on infringement. Earlier this week, on October 20, 2008, the Court issued its order denying Rambus’s motion, but ordering that at least five days before the commencement of the four expert’s depositions, the Manufacturers must identify the “common” noninfringement issues and the “lead expert” who will testify with respect to each “common” issue, and also must identify any unique noninfringement defenses. The Court’s October 20, 2008 Order has no bearing on the present motion, which seeks to preclude certain opinions common to all of the Manufacturers’ Infringement Experts, regardless of which expert the Manufacturers will designate to offer those opinions. 1 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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that the Court intended to use the term in the narrow sense that the Manufacturers now argue is required. Indeed, the Manufacturers seek to limit the scope even of patent claims that do not use the term “request,” simply because the Court’s construction of other terms, such as “synchronous memory device” and “read operation,” include the word “request.” If the Manufacturers felt that the term “request” itself required special construction, they should have raised it at the Markman stage.
7 8 9
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
10
II.
ARGUMENT A.
Under Rule 702 and Daubert, This Court Exercises A Gatekeeping Function To Exclude Unreliable And Unhelpful Expert Testimony
11
“Expert evidence can be both powerful and quite misleading because of the difficulty in
12
evaluating it.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 595 (1993). Moreover, an
13
“added aura of reliability” necessarily attaches to testimony offered by an expert witness. United
14
States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999). This creates a “substantial danger” that
15
expert testimony will confuse and unduly prejudice the jury. United States v. Fosher, 590 F.2d
16
381, 383 (1st Cir. 1979).
17
Accordingly, Federal Rule of Evidence 702 permits expert testimony only from a witness
18
who is “qualified as an expert by knowledge, skill, experience, training, or education.” General
19
qualifications as an expert are not sufficient, however. Rather, an expert witness “must be
20
qualified in the specific subject for which his testimony is offered.” Whiting v. Boston Edison
21
Co., 891 F. Supp. 12, 24 (D. Mass. 1995).
22
Rule 702 also places limits on the areas of expertise and the methodologies of experts.
23
The rule permits expert testimony only “if (1) the testimony is based upon sufficient facts or
24
data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has
25
applied the principles and methods reliably to the facts of the case.” Fed. R. Evid. 702.
26 27 28
Rule 702 further limits the permissible subjects of expert testimony to those which will “assist the trier of fact to understand the evidence or to determine a fact in issue.”
Id.
2 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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Accordingly, “[t]o be admissible, ‘expert testimony must . . . address an issue beyond the common knowledge of the average layman.’” Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1065 n.9 (9th Cir. 2002) (ellipsis in original) (citation omitted). The proponent of expert testimony must establish each of these requirements for admissibility by a preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171, 175-76 (1987). Under Daubert, this Court must act as a “gatekeeper” to ensure, with respect to each proposed expert witness and subject of expert opinion testimony, that “the reasoning or methodology underlying the testimony is scientifically valid” and “can properly be applied to the facts at issue.” DSU Med. Corp., 296 F. Supp. 2d at 1146 (quoting Daubert, 509 U.S. at 592-93 (alteration in original)). In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999), the Supreme Court confirmed that this gatekeeping obligation extends to all forms of expert testimony, whether or not such testimony is “scientific”. While the relevant factors for the Court to consider therefore will depend on the specific nature of the testimony to be presented and the facts of the particular case, the key is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. At 151-52.
17 B.
20
The Court Should Exclude the Manufacturers’ Infringement Experts’ Opinions Regarding Aspects of Preferred Embodiments from the Patent Specification That Have No Bearing on the Issue of Infringement and Cannot Fairly be Characterized as Responsive to Rambus’s Expert Report on Infringement
21
Each of the Manufacturers’ Infringement Experts opines at some length regarding aspects
22
of the Farmwald/Horowitz patent specification, noting that preferred embodiments in the
23
specification include a “narrow multiplexed bus,” use “packets,” and/or use an “early clock/late
24
clock” clocking scheme. Bagherzadeh Report ¶¶ 52-66, 78, Hoffman Report ¶¶ 19, 69; Taylor
25
Report ¶¶ 42-52, 148-150; Runas Report ¶ 46 (incorporating portion of a declaration of Joseph
26
McAlexander discussing this subject). The experts do not explain, however, how these aspects
18 19
27 28
3 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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In fact, the Manufacturers’ Infringement Experts’ opinions regarding aspects of preferred embodiments in the specification are irrelevant to infringement. The Court already has construed the claims, holding, for example, that the asserted claims are not limited to the “narrow, multiplexed bus” of a preferred embodiment.3
18 19
The Manufacturers’ Infringement Experts
continued recitation of the “narrow, multiplexed bus” mantra would serve no purpose but to confuse the jurors and, perhaps, mislead them into thinking that, contrary to the Court’s claim construction, the asserted claims do require a “narrow, multiplexed bus.” To the extent that testimony regarding the preferred embodiments is relevant to any issue in this case, it is to the Manufacturers’ written description defense and may not be offered through the Manufacturers’ Infringement Experts. The Manufacturers served an expert report of Joseph McAlexander addressing validity on September 5, 2008, when the parties exchanged initial expert reports. Rambus should not be required to rebut the Manufacturers’ Infringement Experts’ collateral attacks on validity.
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arguments.
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Filed 10/24/2008
of preferred embodiments in the specification have any relevance to their non-infringement
3 4
Document 2410
In light of the lack of relevance regarding the preferred embodiments in the specification to the infringement issues that the jury must decide, and the corresponding prejudice that Rambus would suffer, the Court should preclude the Manufacturers’ Infringement Experts from testifying about them.
20 C. 21 22
The Court Should Exclude the Manufacturers’ Infringement Experts’ Opinions that Improperly Seek to Impart a Construction to the Term “Request”
23
Each of the Manufacturers’ Infringement Experts argues that the accused products do not
24
infringe because they receive “commands” while the claims require “requests.” This, however,
25 26 27 28
3
The Court agreed with the Federal Circuit’s construction that a multiplexed bus is not a “part of the claim limitations.” See e.g., Markman Order at 29-30 (“To construe ‘device’ to require the use of a multiplexed bus (among other things) would run counter to the Patent Office and the inventors’ disclosed understandings of the claims”). 4 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
Case 5:05-cv-00334-RMW
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A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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is an untimely claim construction argument: the Manufacturers seek to limit the scope of Rambus’s claims by construing the term “request” as necessarily optional, as opposed to a “command” which they say is mandatory. Indeed, the Manufacturers seek to limit not only the scope of claims that include the term “request,” but all of Rambus’s asserted claims because the Court’s construction of other terms – such as “read operation” – includes the word “request.” This is improper. It is too late for the Manufacturers to raise claim construction arguments. And, even if it were not, the Manufacturers should not be permitted to seize on the Court’s use of the word “request” to limit the scope of claims that do not even include that term, where the Court gave no indication that it was using the word in any restrictive sense. That the Manufacturers’ Infringement Experts are engaged in an untimely claim construction exercise is readily apparent.
The Manufacturers’ Infringement Experts refer
repeatedly to the patent specification in an attempt to construe the term “request” as optional. See, e.g., Bagherzadeh Report ¶ 97 (“The patents explain that the ‘slave’ (i.e. the memory device) may choose not to respond to a ‘request’ issued by the controller.”); Runas Report ¶ 64 (“the Farmwald Patents explain that a memory does not have to accept a memory request”); Hoffman Report ¶ 34 (citing to patent specification for proposition that a “request” can be “denied or postponed”); Taylor Report ¶ 64 (“As the Rambus patents explain, a slave such as a memory may choose not to respond to a ‘request’ with data.”). Notably, at the Markman stage, the Manufacturers proposed constructions of “read request” and “write request” but did not raise any argument that the term “request” itself required construction. The Court rejected the Manufacturers’ proposed constructions, and construed claim terms such as “read request” and “write request” consistent with the Federal Circuit’s opinion in Infineon.
Moreover, the Court used the term “request” in those constructions,
illustrating that the term “request” is understood and requires no construction. See e.g., Claim Construction Order, July 10, 2008, at 35-37. For example, “read request” was construed to mean “a series of bits used to request a read of data from a memory device where the request identifies
27 28
5 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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what type of read to perform.” See id. As shown in the following table, many terms of claimsin-suit contain the term “request,” either in the claim language or in a construction of claim language, without any indication of special meaning:
12 13
According to the Manufacturers’ argument, their SDRAMs (i.e. Synchronous DRAMs) would
14
not constitute “synchronous memory devices” within the meaning of the asserted claims, simply
15
because the Court used the term “request” in construing the term. See, e.g., Taylor Report, ¶ 116
16
(“None of the accused Hynix Products meet the ‘transaction request’ requirement, [a term found
17
in the Court’s construction of ‘synchronous memory device,’] because each accused product is
18
only capable of receiving ‘commands’ and not ‘requests’”).
6 7 8 9 10
MCKOOL SMITH
Filed 10/24/2008
Claim Term Court’s Construction block size information Information that specifies the total amount of data that is to be transferred on the bus in response to a transaction request. read request A series of bits used to request a read of data from a memory device where the request identifies what type of read to perform. read operation Reading data from the memory array as specified in the read request. request for a write A series of bits used to request a write of data to a memory device operation where the request identifies what type of write to perform. set register request One or more bits to specify that a value be stored in a programmable register. synchronous memory A memory device that receives an external clock signal which governs device the timing of the response to a transaction request. transaction request A series of bits used to request performance of a transaction with a memory device. write request A series of bits used to request a write of data to a memory device. write operation Writing data to the memory array as specified in the write request.
5
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Document 2410
11
19
Further, the Manufacturers’ new construction of the term “request” is plainly contrary to
20
the Court’s use of the term. The Manufacturers assert that “request” should be interpreted as
21
optional, but the Court’s construction of “set register request” – “one or more bits to specify that
22
a value be stored in a programmable register” – includes no such limitation.
23
Accordingly Rambus objects to the Manufacturers’ Infringement Experts now purporting
24
to define “request” for the jury when the Court chose not to construe that term, and to define it in
25
a manner contrary to the Court’s use of the term. It is not the province of a technical consultant
26
to define a claim term for the jury--only the Court may perform that function. The Court should
27
exclude the Manufacturers’ Infringement Experts’ opinions in the following paragraphs of the 6
28
RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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respective Manufacturers’ Infringement Expert’s report: Bagherzadeh Report ¶¶ 92, 96-100, 113-114, 128, 130, 136-137, 145, 149, 153-154, 158, 162, 165, 167, 171, 174, 176, 180-181, 183, 187-188, 190, 194-195, 197, 201, 203, 207; Hoffman Report ¶¶ 27, 31-45, 89, 106-109, 112-127; Runas Report ¶¶ 53, 64-68, 70-71; Taylor Report ¶¶ 63-66, 68-69, 93, 94, 116, 117, 122-123, 128-129, 140-142, 166, 167, 172-173, 182-183, 191-192, 201-202.
6
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
7
III.
CONCLUSION
8
For the foregoing reasons, Rambus requests that the Court grant Rambus’s Daubert
9
motion to exclude portions of expert testimony from Messrs. Bagherzadeh, Hoffman, Runas, and
10
Taylor, including the following paragraphs of the respective reports: Bagherzadeh Report ¶¶ 52-
11
66, 78, 92, 96-100, 113-114, 128, 130, 136-137, 145, 149, 153-154, 158, 162, 165, 167, 171,
12
174, 176, 180-181, 183, 187-188, 190, 194-195, 197, 201, 203, 207; Hoffman Report at ¶¶ 19,
13
27, 31-45, 69, 89, 106-109, 112-127; Runas Report at ¶¶ 46, 53, 64-68, 70-71; Taylor Report at
14
¶¶ 42-52, 63-66, 68-69, 93, 94, 116, 117, 122-123, 128-129, 140-142, 148-150, 166, 167, 172-
15
173, 182-183, 191-192, 201-202.
16 17
Dated: October 24, 2008
Respectfully submitted, MUNGER, TOLLES & OLSON LLP SIDLEY AUSTIN LLP MCKOOL SMITH, P.C.
18 19 20 21
/s/ Pierre J. Hubert Pierre J. Hubert Attorneys for RAMBUS INC.
22 23 24 25 26 27 28
7 RAMBUS INC.’S DAUBERT MOTION TO EXCLUDE PORTIONS OF EXPERT TESTIMONY FROM NADER BAGHERZADEH, WILLIAM HOFFMAN, MICHAEL RUNAS, AND DAVID TAYLOR CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW
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