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Case 5:05-cv-00334-RMW
1 2 3 4 5 6 7
Document 2428
Filed 10/24/2008
Page 1 of 6
ROBERT E. FREITAS (STATE BAR NO. 80948) CRAIG R. KAUFMAN (STATE BAR NO. 159458) VICKIE L. FEEMAN (STATE BAR NO. 177487) JASON S. ANGELL (STATE BAR NO. 221607) ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: +1-650-614-7400 Facsimile: +1-650-614-7401 Attorneys for Defendants and Counterclaim Plaintiffs NANYA TECHNOLOGY CORPORATION AND NANYA TECHNOLOGY CORPORATION USA
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11 12
RAMBUS INC.,
13 14 15 16 17 18 19 20 21 22 23 24 25
Case No. CV-05-00334 RMW Plaintiff,
v. HYNIX SEMICONDUCTOR INC.; HYNIX SEMICONDUCTOR AMERICA, INC.; HYNIX SEMICONDUCTOR MANUFACTURING AMERICA, INC., SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG AUSTIN SEMICONDUCTOR, L.P.,
NANYA TECHNOLOGY CORPORATION’S AND NANYA TECHNOLOGY CORPORATION USA’S JOINDER TO MICRON’S DAUBERT MOTION NO. 5 TO PRECLUDE ROBERT MURPHY’S INFRINGEMENT OPINION REGARDING DDR SDRAM PRODUCTS Date: Time: Location: Judge:
December 2, 2008 2:00 p.m. Courtroom 6 Hon. Ronald M. Whyte
NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION USA, Defendants. AND RELATED ACTIONS
26 27 28 NANYA’S AND NANYA USA'S J OINDER TO DAUBERT MOTION #5 TO PRECLUDE MURPHY'S OPINION RE DDR CV-05-00334 RMW
Case 5:05-cv-00334-RMW
1 2
Document 2428
Filed 10/24/2008
Page 2 of 6
NOTICE OF JOINDER AND JOINDER TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
3
PLEASE TAKE NOTICE that on December 02, 2008, at 2:00 p.m., or as soon
4
thereafter as the matter may be heard, in the Courtroom of the Honorable Ronald M. Whyte,
5
United States District Court for the Northern Discovery of California, located at 280 First Street,
6
San Jose, California, 95110, Defendants and Counterclaim Plaintiffs Nanya Technology
7
Corporation (“Nanya”) and Nanya Technology Corporation USA (“Nanya USA”) will and hereby
8
do join in Micron’s Daubert Motion No. 5 to Preclude Robert Murphy’s Infringement Opinion
9
Regarding Micron DDR SDRAM Products and move the Court for an order precluding Rambus’s
10
expert witness, Mr. Robert J. Murphy, from testifying regarding whether Nanya’s and Nanya
11
USA’s DDR SDRAM products infringe Rambus’s United States Patent No. 6,182,184 (‘184
12
patent).
13
This motion is made on the grounds that Mr. Murphy’s opinion that Nanya’s and
14
Nanya USA’s DDR SDRAM products infringe Rambus’s ’184 patent, set forth in his September
15
5, 2008, Expert Report on Infringement, is not based on sufficient facts or reliable analysis to be
16
admissible at trial.
17
This motion is based on this Notice of Motion, the accompanying Memorandum of
18
Points and Authorities, the accompanying declaration and documentary evidence in support of the
19
Motion, Micron’s Daubert Motion No. 5 and supporting materials, the proposed order submitted
20
herewith, all papers and pleadings on file in this action, and all matters of which the Court may
21
take judicial notice.
22 23 24 25 26 27 28 -2-
NANYA’S AND NANYA USA'S J OINDER TO DAUBERT MOTION #5 TO PRECLUDE MURPHY'S OPINION RE DDR CV-05-00334 RMW
Case 5:05-cv-00334-RMW
1
Document 2428
Filed 10/24/2008
Page 3 of 6
MEMORANDUM OF POINTS AND AUTHORITIES
2
Nanya Technology Corporation (“Nanya”) and Nanya Technology Corporation
3
USA (“Nanya USA”) respectfully submit this memorandum in support of their joinder in
4
Micron’s Daubert Motion No. 5 to Preclude Robert Murphy’s Infringement Opinion Regarding
5
Micron DDR SDRAM Products and request for an order excluding certain testimony by Robert J.
6
Murphy regarding alleged infringement of United States Patent No. 6,182,184 (“the ’184 patent”)
7
by Nanya’s and Nanya USA’s DDR products. Rambus has not accused Nanya’s or Nanya USA’s
8
DDR products of infringing the ’184 patent. Nor has Rambus ever disclosed any infringement
9
theory or basis for a finding that Nanya’s and Nanya USA’s DDR products infringe the ’184
10 11
patent. Nonetheless, Mr. Murphy proposes to testify at trial that Nanya’s and Nanya
12
USA’s DDR products infringe the ’184 patent, based on a single conclusory statement appearing
13
in his expert report that is unsupported by an infringement analysis. The purpose of Mr.
14
Murphy’s proposed testimony appears to be to provide a basis for Rambus’s damages expert,
15
Professor David Teece, to present a false reasonable royalty damages model.
16
As will be explained in the forthcoming motion to exclude Dr. Teece’s testimony
17
regarding a “hypothetical negotiation” in January 2001, Dr. Teece proposes to use Mr. Murphy’s
18
unsupported testimony regarding infringement of the ’184 patent by DDR to claim that
19
“infringement began” in January 2001 for purposes of determining the date of the “hypothetical
20
negotiation.” January 2001 is when the ’184 patent issued, and DDR was being sold in the
21
United States shortly thereafter. However, since the ’184 patent is not asserted against DDR and
22
is instead only asserted against the Nanya parties’ DDR2 and DDR3 products, “infringement” of
23
the ’184 patent did not “begin” until late 2004, when DDR2 was first imported into and sold in
24
the United States. Mr. Murphy should not now be allowed to provide an unsupported, unreliable
25
and highly prejudicial opinion that Nanya’s and Nanya USA’s DDR products infringe the ‘184
26
patent simply to support Rambus’s flawed damages model.
27 28
Micron has moved to preclude Mr. Murphy from testifying that Micron’s DDR products infringe the ’184 patent on similar grounds. Nanya and Nanya USA join in and -3-
NANYA’S AND NANYA USA'S J OINDER TO DAUBERT MOTION #5 TO PRECLUDE MURPHY'S OPINION RE DDR CV-05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2428
Filed 10/24/2008
Page 4 of 6
1
incorporate by reference portions of Micron’s Daubert Motion No. 5 to Preclude Robert
2
Murphy’s Infringement Opinion Regarding Micron DDR SDRAM Products. Nanya and Nanya
3
USA respectfully submit this separate memorandum to more clearly explain the circumstances as
4
they pertain to Nanya and Nanya USA and for purposes of clarity.
5
I.
6 7
RAMBUS HAS NEVER DISCLOSED ANY INFRINGEMENT THEORY OR BASIS FOR A FINDING THAT NANYA’S AND NANYA USA’S DDR PRODUCTS INFRINGE THE ’184 PATENT. Rambus has never presented any analysis purporting to demonstrate that Nanya’s
8
and Nanya USA’s DDR products infringe any claims of Rambus’s ’184 patent. Local Patent
9
Rule 3-1 requires Rambus to disclose each claim of each patent-in-suit that is allegedly infringed
10
by any accused devices. In its August 1, 2008 Final Infringement Contentions, Rambus asserted
11
that Nanya’s and Nanya USA’s DDR products infringe the 6,324,120 (“the ‘120 patent”), the
12
6,378,020 (“the ‘8,020 patent”), the 6,426,916 (“the ‘916 patent”) and 6,452,863 (“the ‘863
13
patent”) not the ‘184 patent. Heath Decl. Ex. A (Rambus’s Final Infringement Contentions) at
14
4.1 Rather, Rambus’s disclosure indicates that it contends that Nanya’s and Nanya USA’s DDR2
15
and DDR3 devices infringe the ’184 patent. Id. at 2.
16
Consistent with this disclosure, Rambus’s infringement expert, Robert Murphy,
17
submitted an expert report in which he provides an analysis that purports to demonstrate that
18
Nanya’s and Nanya USA’s DDR products infringe certain claims of the ‘120, the ‘8,020, the ‘916
19
and the ‘863 patents and that Nanya’s and Nanya USA’s DDR2 and DDR3 products infringe
20
claim 14 of the ’184 patent. See Exhibit 7 (Murphy’s Expert Report on Infringement) to the
21
Omnibus Declaration of Sven Raz in Support of the Manufacturers’ Summary Judgment and
22
Daubert Motions (“Omnibus Decl.”) ¶¶ 193, 370-373, 395-397, 423-428, and 449-453.
23
In addition, in a single sentence of his September 5, 2008 “Expert Report on
24
Infringement”, Mr. Murphy opines that Nanya’s and Nanya USA’s DDR SDRAM products –
25
products that he admits are “not at issue in this particular case” – infringe a Rambus patent. See
26 1
27 28
Rambus did not accuse Nanya’s and Nanya USA’s DDR products of infringing any Rambus patent until it added DDR (and SDR and DDR3) to this case as accused products by filing its counterclaims in reply on July 9, 2007. Rambus served Supplemental Preliminary Infringement Contentions on July 20, 2007. In that disclosure, Rambus did not assert that Nanya’s DDR products infringed any claims of the ’184 patent. Heath Decl. Ex. B at 4.
-4-
NANYA’S AND NANYA USA'S J OINDER TO DAUBERT MOTION #5 TO PRECLUDE MURPHY'S OPINION RE DDR CV-05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2428
Filed 10/24/2008
Page 5 of 6
1
Omnibus Decl. ¶ 185. Although he provides detailed analysis of other products that he alleges
2
infringe the claims that are asserted against Nanya’s and Nanya USA’s DDR products, Mr.
3
Murphy provides no analysis – detailed or otherwise – of any alleged infringement of the ’184
4
patent by Nanya’s or Nanya USA’s DDR products. Mr. Murphy purports to base this assertion
5
“upon [his] review of the Nanya’s DDR Data Sheets.” Id. Yet, he provides no further
6
explanation for this conclusion and does not provide an element by element analysis as required.
7
Mr. Murphy’s conclusory assertion that Nanya’s and Nanya USA’s DDR products
8
infringe Rambus’s ‘184 patent should be excluded at trial as unsupported, baseless and highly
9
prejudicial. Rule 26(a)(2)(B)(ii) of the Federal Rules of Civil Procedure requires that an expert
10
provide “the data or other information considered by the witness in forming [his conclusions].”
11
Mr. Murphy’s one-sentence conclusion, however, is devoid of any facts, data or information to
12
support his conclusion. See Atmel Corp. v. Information Storage, 189 F.R.D. 410, 415 (N.D. Cal.
13
1999).
14
Mr. Murphy’s testimony should also be excluded under Rules 702 and 703 of the
15
Federal Rules of Evidence and Daubert because his conclusion is not based on sufficient facts,
16
data, or reliable analysis. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589
17
(1993). Furthermore, there is no probative value to such testimony given that Rambus has not
18
accused Nanya’s and Nanya USA’s DDR products of infringing the ‘184 patent and is not
19
seeking damages for infringement of the ’184 patent by those devices. Indeed, given that the
20
January 2009 may involve DDR2 and DDR3 products only, there may be no occasion for a
21
discussion of DDR at all. Mr. Murphy’s unsupported, irrelevant and highly prejudicial
22
conclusion that Nanya’s and Nanya USA’s DDR SDRAM products infringe the ’184 patent
23
should be excluded under Daubert principles and Rule 403, among other rules. The Court should
24
grant Nanya and Nanya USA’s motion and exclude Mr. Murphy’s opinion.
25
II.
26 27 28
MR. MURPHY’S OPINION THAT NANYA’S AND NANYA USA’S DDR SDRAM PRODUCTS INFRINGE THE ‘184 PATENT SHOULD BE EXCLUDED In addition to the matters discussed above, the Nanya parties join Micron’s
Daubert Motion No. 5 to preclude Mr. Murphy’s similar testimony regarding infringement of the -5-
NANYA’S AND NANYA USA'S J OINDER TO DAUBERT MOTION #5 TO PRECLUDE MURPHY'S OPINION RE DDR CV-05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2428
Filed 10/24/2008
Page 6 of 6
1
’184 patent by Micron’s DDR SDRAM products. To avoid duplication of the arguments, Nanya
2
and Nanya USA incorporate by reference the law, analysis, arguments and conclusions set forth
3
in Micron’s Daubert Motion No. 5 at sections II.B., II.C. and II.D.
4
III.
5
CONCLUSION For the foregoing reasons and the reasons set forth in Micron’s Daubert Motion
6
No. 5, Nanya and Nanya USA respectfully asks that this Court grant their motion precluding Mr.
7
Murphy from opining at trial that Nanya’s and Nanya USA’s DDR SDRAM products infringe
8
any claims of Rambus’s ’184 patent.
9
Dated: October 24, 2008
10 11
ROBERT E. FREITAS CRAIG R. KAUFMAN VICKIE L. FEEMAN JASON S. ANGELL Orrick, Herrington & Sutcliffe LLP
12 13 14 15 16
/s/Jason S Angell JASON S. ANGELL Attorneys for Defendants and Counterclaim Plaintiffs Nanya Technology Corporation and Nanya Technology Corporation USA
17 18 19 20 21 22 23 24 25 26 27 28 -6-
NANYA’S AND NANYA USA'S J OINDER TO DAUBERT MOTION #5 TO PRECLUDE MURPHY'S OPINION RE DDR CV-05-00334 RMW
1 2 3 4 5 6 7
Document 2428
Filed 10/24/2008
Page 1 of 6
ROBERT E. FREITAS (STATE BAR NO. 80948) CRAIG R. KAUFMAN (STATE BAR NO. 159458) VICKIE L. FEEMAN (STATE BAR NO. 177487) JASON S. ANGELL (STATE BAR NO. 221607) ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: +1-650-614-7400 Facsimile: +1-650-614-7401 Attorneys for Defendants and Counterclaim Plaintiffs NANYA TECHNOLOGY CORPORATION AND NANYA TECHNOLOGY CORPORATION USA
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11 12
RAMBUS INC.,
13 14 15 16 17 18 19 20 21 22 23 24 25
Case No. CV-05-00334 RMW Plaintiff,
v. HYNIX SEMICONDUCTOR INC.; HYNIX SEMICONDUCTOR AMERICA, INC.; HYNIX SEMICONDUCTOR MANUFACTURING AMERICA, INC., SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG AUSTIN SEMICONDUCTOR, L.P.,
NANYA TECHNOLOGY CORPORATION’S AND NANYA TECHNOLOGY CORPORATION USA’S JOINDER TO MICRON’S DAUBERT MOTION NO. 5 TO PRECLUDE ROBERT MURPHY’S INFRINGEMENT OPINION REGARDING DDR SDRAM PRODUCTS Date: Time: Location: Judge:
December 2, 2008 2:00 p.m. Courtroom 6 Hon. Ronald M. Whyte
NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION USA, Defendants. AND RELATED ACTIONS
26 27 28 NANYA’S AND NANYA USA'S J OINDER TO DAUBERT MOTION #5 TO PRECLUDE MURPHY'S OPINION RE DDR CV-05-00334 RMW
Case 5:05-cv-00334-RMW
1 2
Document 2428
Filed 10/24/2008
Page 2 of 6
NOTICE OF JOINDER AND JOINDER TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
3
PLEASE TAKE NOTICE that on December 02, 2008, at 2:00 p.m., or as soon
4
thereafter as the matter may be heard, in the Courtroom of the Honorable Ronald M. Whyte,
5
United States District Court for the Northern Discovery of California, located at 280 First Street,
6
San Jose, California, 95110, Defendants and Counterclaim Plaintiffs Nanya Technology
7
Corporation (“Nanya”) and Nanya Technology Corporation USA (“Nanya USA”) will and hereby
8
do join in Micron’s Daubert Motion No. 5 to Preclude Robert Murphy’s Infringement Opinion
9
Regarding Micron DDR SDRAM Products and move the Court for an order precluding Rambus’s
10
expert witness, Mr. Robert J. Murphy, from testifying regarding whether Nanya’s and Nanya
11
USA’s DDR SDRAM products infringe Rambus’s United States Patent No. 6,182,184 (‘184
12
patent).
13
This motion is made on the grounds that Mr. Murphy’s opinion that Nanya’s and
14
Nanya USA’s DDR SDRAM products infringe Rambus’s ’184 patent, set forth in his September
15
5, 2008, Expert Report on Infringement, is not based on sufficient facts or reliable analysis to be
16
admissible at trial.
17
This motion is based on this Notice of Motion, the accompanying Memorandum of
18
Points and Authorities, the accompanying declaration and documentary evidence in support of the
19
Motion, Micron’s Daubert Motion No. 5 and supporting materials, the proposed order submitted
20
herewith, all papers and pleadings on file in this action, and all matters of which the Court may
21
take judicial notice.
22 23 24 25 26 27 28 -2-
NANYA’S AND NANYA USA'S J OINDER TO DAUBERT MOTION #5 TO PRECLUDE MURPHY'S OPINION RE DDR CV-05-00334 RMW
Case 5:05-cv-00334-RMW
1
Document 2428
Filed 10/24/2008
Page 3 of 6
MEMORANDUM OF POINTS AND AUTHORITIES
2
Nanya Technology Corporation (“Nanya”) and Nanya Technology Corporation
3
USA (“Nanya USA”) respectfully submit this memorandum in support of their joinder in
4
Micron’s Daubert Motion No. 5 to Preclude Robert Murphy’s Infringement Opinion Regarding
5
Micron DDR SDRAM Products and request for an order excluding certain testimony by Robert J.
6
Murphy regarding alleged infringement of United States Patent No. 6,182,184 (“the ’184 patent”)
7
by Nanya’s and Nanya USA’s DDR products. Rambus has not accused Nanya’s or Nanya USA’s
8
DDR products of infringing the ’184 patent. Nor has Rambus ever disclosed any infringement
9
theory or basis for a finding that Nanya’s and Nanya USA’s DDR products infringe the ’184
10 11
patent. Nonetheless, Mr. Murphy proposes to testify at trial that Nanya’s and Nanya
12
USA’s DDR products infringe the ’184 patent, based on a single conclusory statement appearing
13
in his expert report that is unsupported by an infringement analysis. The purpose of Mr.
14
Murphy’s proposed testimony appears to be to provide a basis for Rambus’s damages expert,
15
Professor David Teece, to present a false reasonable royalty damages model.
16
As will be explained in the forthcoming motion to exclude Dr. Teece’s testimony
17
regarding a “hypothetical negotiation” in January 2001, Dr. Teece proposes to use Mr. Murphy’s
18
unsupported testimony regarding infringement of the ’184 patent by DDR to claim that
19
“infringement began” in January 2001 for purposes of determining the date of the “hypothetical
20
negotiation.” January 2001 is when the ’184 patent issued, and DDR was being sold in the
21
United States shortly thereafter. However, since the ’184 patent is not asserted against DDR and
22
is instead only asserted against the Nanya parties’ DDR2 and DDR3 products, “infringement” of
23
the ’184 patent did not “begin” until late 2004, when DDR2 was first imported into and sold in
24
the United States. Mr. Murphy should not now be allowed to provide an unsupported, unreliable
25
and highly prejudicial opinion that Nanya’s and Nanya USA’s DDR products infringe the ‘184
26
patent simply to support Rambus’s flawed damages model.
27 28
Micron has moved to preclude Mr. Murphy from testifying that Micron’s DDR products infringe the ’184 patent on similar grounds. Nanya and Nanya USA join in and -3-
NANYA’S AND NANYA USA'S J OINDER TO DAUBERT MOTION #5 TO PRECLUDE MURPHY'S OPINION RE DDR CV-05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2428
Filed 10/24/2008
Page 4 of 6
1
incorporate by reference portions of Micron’s Daubert Motion No. 5 to Preclude Robert
2
Murphy’s Infringement Opinion Regarding Micron DDR SDRAM Products. Nanya and Nanya
3
USA respectfully submit this separate memorandum to more clearly explain the circumstances as
4
they pertain to Nanya and Nanya USA and for purposes of clarity.
5
I.
6 7
RAMBUS HAS NEVER DISCLOSED ANY INFRINGEMENT THEORY OR BASIS FOR A FINDING THAT NANYA’S AND NANYA USA’S DDR PRODUCTS INFRINGE THE ’184 PATENT. Rambus has never presented any analysis purporting to demonstrate that Nanya’s
8
and Nanya USA’s DDR products infringe any claims of Rambus’s ’184 patent. Local Patent
9
Rule 3-1 requires Rambus to disclose each claim of each patent-in-suit that is allegedly infringed
10
by any accused devices. In its August 1, 2008 Final Infringement Contentions, Rambus asserted
11
that Nanya’s and Nanya USA’s DDR products infringe the 6,324,120 (“the ‘120 patent”), the
12
6,378,020 (“the ‘8,020 patent”), the 6,426,916 (“the ‘916 patent”) and 6,452,863 (“the ‘863
13
patent”) not the ‘184 patent. Heath Decl. Ex. A (Rambus’s Final Infringement Contentions) at
14
4.1 Rather, Rambus’s disclosure indicates that it contends that Nanya’s and Nanya USA’s DDR2
15
and DDR3 devices infringe the ’184 patent. Id. at 2.
16
Consistent with this disclosure, Rambus’s infringement expert, Robert Murphy,
17
submitted an expert report in which he provides an analysis that purports to demonstrate that
18
Nanya’s and Nanya USA’s DDR products infringe certain claims of the ‘120, the ‘8,020, the ‘916
19
and the ‘863 patents and that Nanya’s and Nanya USA’s DDR2 and DDR3 products infringe
20
claim 14 of the ’184 patent. See Exhibit 7 (Murphy’s Expert Report on Infringement) to the
21
Omnibus Declaration of Sven Raz in Support of the Manufacturers’ Summary Judgment and
22
Daubert Motions (“Omnibus Decl.”) ¶¶ 193, 370-373, 395-397, 423-428, and 449-453.
23
In addition, in a single sentence of his September 5, 2008 “Expert Report on
24
Infringement”, Mr. Murphy opines that Nanya’s and Nanya USA’s DDR SDRAM products –
25
products that he admits are “not at issue in this particular case” – infringe a Rambus patent. See
26 1
27 28
Rambus did not accuse Nanya’s and Nanya USA’s DDR products of infringing any Rambus patent until it added DDR (and SDR and DDR3) to this case as accused products by filing its counterclaims in reply on July 9, 2007. Rambus served Supplemental Preliminary Infringement Contentions on July 20, 2007. In that disclosure, Rambus did not assert that Nanya’s DDR products infringed any claims of the ’184 patent. Heath Decl. Ex. B at 4.
-4-
NANYA’S AND NANYA USA'S J OINDER TO DAUBERT MOTION #5 TO PRECLUDE MURPHY'S OPINION RE DDR CV-05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2428
Filed 10/24/2008
Page 5 of 6
1
Omnibus Decl. ¶ 185. Although he provides detailed analysis of other products that he alleges
2
infringe the claims that are asserted against Nanya’s and Nanya USA’s DDR products, Mr.
3
Murphy provides no analysis – detailed or otherwise – of any alleged infringement of the ’184
4
patent by Nanya’s or Nanya USA’s DDR products. Mr. Murphy purports to base this assertion
5
“upon [his] review of the Nanya’s DDR Data Sheets.” Id. Yet, he provides no further
6
explanation for this conclusion and does not provide an element by element analysis as required.
7
Mr. Murphy’s conclusory assertion that Nanya’s and Nanya USA’s DDR products
8
infringe Rambus’s ‘184 patent should be excluded at trial as unsupported, baseless and highly
9
prejudicial. Rule 26(a)(2)(B)(ii) of the Federal Rules of Civil Procedure requires that an expert
10
provide “the data or other information considered by the witness in forming [his conclusions].”
11
Mr. Murphy’s one-sentence conclusion, however, is devoid of any facts, data or information to
12
support his conclusion. See Atmel Corp. v. Information Storage, 189 F.R.D. 410, 415 (N.D. Cal.
13
1999).
14
Mr. Murphy’s testimony should also be excluded under Rules 702 and 703 of the
15
Federal Rules of Evidence and Daubert because his conclusion is not based on sufficient facts,
16
data, or reliable analysis. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589
17
(1993). Furthermore, there is no probative value to such testimony given that Rambus has not
18
accused Nanya’s and Nanya USA’s DDR products of infringing the ‘184 patent and is not
19
seeking damages for infringement of the ’184 patent by those devices. Indeed, given that the
20
January 2009 may involve DDR2 and DDR3 products only, there may be no occasion for a
21
discussion of DDR at all. Mr. Murphy’s unsupported, irrelevant and highly prejudicial
22
conclusion that Nanya’s and Nanya USA’s DDR SDRAM products infringe the ’184 patent
23
should be excluded under Daubert principles and Rule 403, among other rules. The Court should
24
grant Nanya and Nanya USA’s motion and exclude Mr. Murphy’s opinion.
25
II.
26 27 28
MR. MURPHY’S OPINION THAT NANYA’S AND NANYA USA’S DDR SDRAM PRODUCTS INFRINGE THE ‘184 PATENT SHOULD BE EXCLUDED In addition to the matters discussed above, the Nanya parties join Micron’s
Daubert Motion No. 5 to preclude Mr. Murphy’s similar testimony regarding infringement of the -5-
NANYA’S AND NANYA USA'S J OINDER TO DAUBERT MOTION #5 TO PRECLUDE MURPHY'S OPINION RE DDR CV-05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2428
Filed 10/24/2008
Page 6 of 6
1
’184 patent by Micron’s DDR SDRAM products. To avoid duplication of the arguments, Nanya
2
and Nanya USA incorporate by reference the law, analysis, arguments and conclusions set forth
3
in Micron’s Daubert Motion No. 5 at sections II.B., II.C. and II.D.
4
III.
5
CONCLUSION For the foregoing reasons and the reasons set forth in Micron’s Daubert Motion
6
No. 5, Nanya and Nanya USA respectfully asks that this Court grant their motion precluding Mr.
7
Murphy from opining at trial that Nanya’s and Nanya USA’s DDR SDRAM products infringe
8
any claims of Rambus’s ’184 patent.
9
Dated: October 24, 2008
10 11
ROBERT E. FREITAS CRAIG R. KAUFMAN VICKIE L. FEEMAN JASON S. ANGELL Orrick, Herrington & Sutcliffe LLP
12 13 14 15 16
/s/Jason S Angell JASON S. ANGELL Attorneys for Defendants and Counterclaim Plaintiffs Nanya Technology Corporation and Nanya Technology Corporation USA
17 18 19 20 21 22 23 24 25 26 27 28 -6-
NANYA’S AND NANYA USA'S J OINDER TO DAUBERT MOTION #5 TO PRECLUDE MURPHY'S OPINION RE DDR CV-05-00334 RMW
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