2541

Case 5:05-cv-00334-RMW

1 2 3 4 5 6 7

Document 2541

Gregory P. Stone (SBN 078329) Andrea Weiss Jeffries (SBN 183408) Fred A. Rowley (SBN 192298) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Email: [email protected] Email: [email protected] Email: [email protected]

12

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, CA 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Email: [email protected] Email: [email protected] Email: [email protected]

13

Attorneys for RAMBUS INC.

8 9 10 11

Filed 11/14/2008

Page 1 of 10

Rollin A. Ransom (SBN 196126) SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013-1010 Telephone: (213) 896-6000 Facsimile: (213) 896-6600 Email: [email protected] Pierre J. Hubert (Pro Hac Vice) Craig N. Tolliver (Pro Hac Vice) McKOOL SMITH PC 300 West 6th Street, Suite 1700 Austin, TX 78701 Telephone: (512) 692-8700 Facsimile: (512) 692-8744 Email: [email protected] Email: [email protected]

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

16

RAMBUS INC.,

17

CASE NO. C 05-00334 RMW

Plaintiff, v.

18 HYNIX SEMICONDUCTOR INC., et al, 19 Defendants.

RAMBUS INC.’S OPPOSITION TO DAUBERT MOTION NO. 5 TO PRECLUDE ROBERT MURPHY’S INFRINGEMENT OPINION REGARDING MICRON AND NANYA DDR SDRAM PRODUCTS

20 Date: December 11, 2008 Time: 2:00 p.m. Location: Courtroom 6 Judge: Hon. Ronald M. Whyte Trial Date: January 19, 2009

21 22 23 24

RAMBUS INC., Plaintiff,

25 26 27 28

CASE NO. C 06-00244 RMW

v. MICRON TECHNOLOGY, INC., et al, Defendants. RAMBUS’S OPP. TO DAUBERT MOT. NO. 5 TO PRECLUDE MURPHY RE MICRON AND NANYA DDR PRODUCTS; CASES NO. 05-334 RMW, 06-244 RMW

Case 5:05-cv-00334-RMW

1

I.

Document 2541

Filed 11/14/2008

Page 2 of 10

INTRODUCTION

2

Micron’s and Nanya’s Daubert Motion No. 5 to preclude Robert Murphy from

3

testifying that their DDR products use certain Rambus inventions claimed in U.S. Patent No.

4

6,182,184 (“the ’184 patent”) should be denied because none of the four bases of their challenge

5

has any merit.1

6

First, contrary to Micron’s contentions, Rambus is not precluded from making

7

arguments regarding Micron’s DDR products just because its infringement claims against those

8

products are proceeding in another court. Micron’s and Nanya’s DDR products are relevant to

9

various issues in the upcoming patent trial, such as the development of the accused post-DDR

10 11

products, and Rambus is entitled to present such evidence at trial. Second, Micron and Nanya are incorrect that Mr. Murphy’s report fails to provide

12

a sufficient disclosure of his opinion under Federal Rule of Civil Procedure 26. In

13

mischaracterizing Mr. Murphy’s opinion as a “one-sentence conclusory statement,” Micron and

14

Nanya neglect to mention that their DDR products share common features with their post-DDR

15

products (e.g., DDR2), and so Mr. Murphy’s detailed analyses as to the later products adequately

16

apprise them of his opinions as to DDR.

17

Third, and for the same reasons, Mr. Murphy’s proposed testimony is based on

18

sufficient facts or data as required under Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993)

19

and Federal Rules of Evidence 702 and 703.

20

Fourth, and finally, because Mr. Murphy’s proposed testimony regarding Micron’s

21

and Nanya’s DDR products is directly relevant to the patent trial and is based on sufficient facts

22

and analyses, its probative value is not substantially outweighed by the speculative and flimsy

23

“dangers” raised by Micron and Nanya under Federal Rule of Evidence 403.

24 25 26 27 28

In this Opposition, Rambus responds to the arguments raised by Micron in its Daubert Motion No. 5, filed in Case No. 06-CV-00244, and to Nanya’s joinder to that motion filed in Case No. 05-CV-00334, which incorporates sections II.B-D of Micron’s motion. Nanya Joinder, Case No. 05-CV-00334, Docket #2428 at 6. -1-

RAMBUS’S OPP. TO DAUBERT MOT. NO. 5 TO PRECLUDE MURPHY RE MICRON AND NANYA DDR PRODUCTS; CASES NO. 05-334 RMW, 06-244 RMW

Case 5:05-cv-00334-RMW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

II.

Document 2541

Filed 11/14/2008

Page 3 of 10

ARGUMENT A.

Rambus is not precluded from making relevant arguments regarding nonaccused products. Micron argues that because Rambus’s infringement case against its DDR products

is proceeding in another court, “Rambus should be precluded from litigating its accusations of infringement against Micron DDR SDRAM products in the upcoming Patent Trial,” and thus, “Mr. Murphy’s opinion whether Micron DDR SDRAM products infringe should be excluded at trial.” Op. Br. at 3. However, evidence of infringement by Micron’s DDR products is relevant to this case, and Rambus would be prejudiced by its preclusion. Micron offers no legal support for the sweeping principle that a patent holder is precluded from referring to or making any arguments from non-accused products. See id. at 2-3. To the contrary, non-accused products may be relevant to various issues in a patent case. See, e.g., Invacare Corp. v. Sunrise Med. Holdings, Inc., No. 1:04CV1439, 2005 WL 1750271, at *2*3 (N.D. Ohio Jan. 21, 2005) (information regarding non-accused precursor products may be relevant to willfulness and to damages); AMP Inc. v. Molex Inc., No. 84 C 2814, 1988 WL 48276, at *1 (N.D. Ill. May 10, 1988) (information “concerning development work after [the accused infringer] received notice of plaintiff’s claims of infringement concerning any product or device intended to serve the same function as the accused product” may be “relevant to whether [the accused infringer] has unsuccessfully attempted to design around the patent”). 1.

Mr. Murphy’s opinion regarding infringement by Micron’s and Nanya’s DDR products is relevant evidence in this case, and its preclusion would unfairly prejudice Rambus.

Although Micron points out that its DDR products are not accused products here, it does not contend that these products are irrelevant to this case. Nanya’s DDR products are accused products here, but Nanya argues that Mr. Murphy’s opinion that they infringe the ’184 patent is irrelevant and has no probative value because “Rambus has not accused Nanya’s and Nanya USA’s DDR products of infringing the ’184 patent and is not seeking damages for infringement of the ’184 patent by those devices.” Nanya Joinder at 5. Nanya notes that Rambus has made formal contentions of infringement against its DDR products only with respect to

28 -2-

RAMBUS’S OPP. TO DAUBERT MOT. NO. 5 TO PRECLUDE MURPHY RE MICRON AND NANYA DDR PRODUCTS; CASES NO. 05-334 RMW, 06-244 RMW

Case 5:05-cv-00334-RMW

1

Document 2541

Filed 11/14/2008

Page 4 of 10

certain other patents-in-suit. Id. at 4.

2

In fact, Micron’s and Nanya’s DDR products are relevant to a number of issues in

3

the upcoming patent trial. Rambus has accused several generations of the Manufacturers’ DRAM

4

products of infringement, and, generally speaking, Rambus contends that the Manufacturers used

5

Rambus’s inventions in their earlier accused products and continued to do so in their later accused

6

products.2 The Manufacturers do not contest that the accused features in their DDR products

7

were carried forward into DDR2 and other products. According to the Manufacturers and their

8

experts, DDR2 and DDR3 are mere “evolutions” of DDR that build upon DDR. For instance,

9

Joseph McAlexander has stated that the accused products, including DDR and DDR2, “have a

10

common set of features,” which he finds “not surprising” since they are “compliant with or based

11

on evolutionary JEDEC standards.” Ex. A (Declaration of Joseph McAlexander in Support of the

12

Manufacturers’ Farmwald and Ware Motions for Summary Judgment)3 ¶¶ 69; see also id. ¶¶ 41-

13

68 (listing accused products); Ex. B at 4, 20 (expert report of Christopher McArdle, opining on

14

“cost of change related to evolutionary extensions of the JEDEC-standard SDRAMs and DDR

15

SDRAMs, including DDR2 SDRAM, DDR3 SDRAM, and graphics versions thereof”).

16

The close relationship between the DDR products and the post-DDR accused

17

products and their common use of Rambus’s inventions are relevant to issues such as the

18

importance and value of Rambus’s inventions and the development of the accused post-DDR

19

products. Nanya itself states in its motion that it supposes that the purpose of Mr. Murphy’s

20

proposed testimony regarding infringement of the ’184 patent by its DDR products is to support a

21

reasonable royalty model proposed by Rambus’s damages expert. Nanya Joinder at 3. Nanya’s

22

apparent argument that its use of Rambus’s inventions, as claimed in the ’184 patent, in its DDR

23

products cannot be relevant to the calculation of a reasonable royalty for its post-DDR products

24 25 26

2

As used herein, the “Manufacturers” refers to the Hynix, Nanya, Samsung, and Micron parties in the ’244, ’334, ’2298, and ’905 cases.

3

27 28

Except as otherwise indicated, the exhibits referred to herein are attached to the Declaration of David C. Yang in Support of Rambus’s Opposition to Micron’s Daubert Motion No. 5, filed concurrently herewith. -3-

RAMBUS’S OPP. TO DAUBERT MOT. NO. 5 TO PRECLUDE MURPHY RE MICRON AND NANYA DDR PRODUCTS; CASES NO. 05-334 RMW, 06-244 RMW

Case 5:05-cv-00334-RMW

Document 2541

Filed 11/14/2008

Page 5 of 10

1

because Rambus has not made a “formal” infringement contention against DDR is unsupported

2

by the case law. See, e.g., Invacare, 2005 WL 1750271, at *2-*3 (information regarding non-

3

accused precursor products may be relevant to the calculation of a reasonable royalty).

4

The feature set of Micron’s and Nanya’s DDR products is also particularly

5

important as evidence of the circumstances surrounding the infringement of Rambus’s patents by

6

Micron’s and Nanya’s accused post-DDR products. As the plaintiff in the infringement action,

7

Rambus bears the burden of proof at trial. In order to tell a complete and cohesive story to the

8

jury, it may be necessary for Rambus to present evidence of the origins of its inventions as well as

9

the origins of the Manufacturers’ infringement. Rambus should be able to argue to the jury, for

10

instance, that its inventions are so valuable and so important that the Manufacturers started using

11

them in their early products, and continued to use them in their subsequent “evolutionary”

12

products. Mr. Murphy’s opinion regarding Micron’s and Nanya’s DDR products directly bears

13

upon these points, and Rambus is thus entitled to present it to the jury. Moreover, the

14

Manufacturers may themselves present evidence of the “evolutionary” nature of their post-DDR

15

products, as they have previously done in trial. This may require Rambus to present evidence

16

regarding infringement by DDR, for instance, to avoid jury confusion as to why Rambus has only

17

accused Micron’s post-DDR products of infringement even though its DDR products are similar.

18

Nanya’s protestation that there “may” be no occasion in the patent trial to discuss DDR does not

19

mean it will not come up. See Nanya Joinder at 5. Thus, the preclusion of Mr. Murphy’s opinion

20

regarding Micron’s and Nanya’s DDR products would prejudice both Rambus’s ability to present

21

its case and to respond to the Manufacturers’ arguments. B.

23

Mr. Murphy’s report adequately discloses his opinions regarding Micron’s and Nanya’s DDR products under Federal Rule of Civil Procedure 26(a)(2)(B).

24

Micron and Nanya characterize Mr. Murphy’s infringement report, dated

22

25

September 5, 2008 (“Murphy Report”),4 as providing only one-sentence conclusory statements

26 4

27 28

A copy of the Murphy Report is attached as Exhibit 7 to the Omnibus Declaration of Sven Raz in Support of the Manufacturers’ Summary Judgment and Daubert Motions, filed in Case No. 05CV-00334, (Docket #2425) and in Case No. 06-CV-00224 (Docket #1504). -4-

RAMBUS’S OPP. TO DAUBERT MOT. NO. 5 TO PRECLUDE MURPHY RE MICRON AND NANYA DDR PRODUCTS; CASES NO. 05-334 RMW, 06-244 RMW

Case 5:05-cv-00334-RMW

Document 2541

Filed 11/14/2008

Page 6 of 10

1

regarding the infringement of the ’184 patent by their DDR products; they argue on that basis that

2

Mr. Murphy’s report does not meet the requirement of Federal Rule of Civil Procedure

3

26(a)(2)(B) that an expert report must provide the “basis and reasons” for a stated opinion. Op.

4

Br. at 3; see also Nanya Joinder at 3-5. However, as set forth below, the detailed analyses

5

provided by Mr. Murphy as to Micron’s and Nanya’s post-DDR products is sufficient to apprise

6

them of the “basis and reasons” for his opinions regarding their DDR products.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The “one-sentence conclusory statement[s]” that Micron and Nanya complain of in Mr. Murphy’s report are highlighted in the following passages: Therefore, in my opinion, Micron’s DDR2, GDDR3, and DDR3 products perform all the steps of the method of operation in claim 13 of the ’184 patent. Though it is my understanding that Micron’s DDR products are not at issue in this particular case, it is also my opinion, based upon my knowledge of Micron’s DDR products and review of Micron’s DDR datasheets, that the features in Micron’s DDR2 products that infringe claim 13 of the ’184 Patent are also present in Micron’s DDR products. Murphy Report ¶ 180 (emphasis added), and Therefore, in my opinion, Nanya’s DDR2 and DDR3 products perform all the steps of the method of operation in claim 13 of the ’184 patent. Though it is my understanding that Nanya’s DDR products are not accused in this particular case of infringing claim 13 of the ’184 Patent, it is also my opinion, based upon my review of the Nanya’s DDR Data Sheet, that the features in Nanya’s DDR2 products that infringe claim 13 of the ’184 Patent are also present in Nanya’s DDR products. Id. ¶ 185 (emphasis added). These passages each follow several paragraphs in which Mr. Murphy explains in detail the bases for his opinions that other products from Micron (DDR2, GDDR3, and DDR3) and Nanya (DDR2 and DDR3) infringe claim 13 of the ’184 patent. There is no dispute as to the adequacy of Mr. Murphy’s opinions as to these other products—in fact, Nanya concedes that Mr. Murphy’s analysis as to these other products is “detailed,” Nanya Joinder at 5—and Micron and Nanya have not moved to challenge those aspects of his proposed testimony. In stating that the infringing features in the DDR2 products from Micron and Nanya “are also present” in their DDR products, Mr. Murphy indicates that it is his view that his detailed analysis regarding DDR2 is equally applicable to their DDR products. Further, by -5-

RAMBUS’S OPP. TO DAUBERT MOT. NO. 5 TO PRECLUDE MURPHY RE MICRON AND NANYA DDR PRODUCTS; CASES NO. 05-334 RMW, 06-244 RMW

Case 5:05-cv-00334-RMW

Document 2541

Filed 11/14/2008

Page 7 of 10

1

stating that he has reviewed DDR datasheets from both Micron and Nanya, Mr. Murphy also

2

makes clear that he has confirmed that their DDR products implement the same feature as their

3

DDR2 products. Mr. Murphy also cites specific passages from Nanya’s datasheet in support of

4

his opinion. See id. ¶ 185 n.71. Thus, it is clear that Mr. Murphy offers the same “bases and

5

reasons” for his opinions regarding infringement of the ’184 patent by Micron’s and Nanya’s

6

DDR products as for their post-DDR products.

7

Micron and Nanya cannot dispute the soundness of Mr. Murphy’s approach, as it

8

is consistent with that offered by their own experts. As the Manufacturers’ own experts have

9

contended, their DDR2 products share common features with, and are mere “evolutions” of, their

10

DDR products. See Ex. A ¶ 28 (declaration of Mr. McAlexander, stating that the DDR2 standard

11

with which the Manufacturers’ products are compliant contains “virtually all of the same features

12

found in its predecessor, the DDR SDRAM”); see also Ex. C ¶¶ 36, 45 (expert report of Nader

13

Bagherzadeh, stating same, and further opining that “all SDRAM and DDR* SDRAM parts are

14

interchangeable”); see also Ex. D ¶ 37 (expert report of Michael Runas, stating that Samsung’s

15

DDR2 products “incorporate all of the features of the accused Samsung DDR SDRAM

16

products”).

17

Accordingly, there is no dispute that, where a particular accused feature is used in

18

different products, the same infringement analysis would apply. Indeed, the Manufacturers

19

themselves have identified a number of “common issues” to their noninfringement cases as to

20

which a single “lead expert” will testify at trial. See Ex. E (Nov. 6, 2008 Beynon email). The

21

Manufacturers have not identified any “unique” issues based on any purported differences

22

between the accused products, either between the generations of accused products (e.g., DDR

23

versus DDR2) or between the same types of products offered by the different Manufacturers. Id.

24

The Manufacturers also took this approach in their earlier motions for summary judgment, in

25

support of which they filed a single declaration from Mr. McAlexander offering common

26

noninfringement arguments for the accused products. See Ex. A ¶ 69.

27 28

In light of the foregoing, any claim by Micron and Nanya that they lack the “bases and reasons” for Mr. Murphy’s opinion—and that they consequently cannot “fully and fairly” -6-

RAMBUS’S OPP. TO DAUBERT MOT. NO. 5 TO PRECLUDE MURPHY RE MICRON AND NANYA DDR PRODUCTS; CASES NO. 05-334 RMW, 06-244 RMW

Case 5:05-cv-00334-RMW

Document 2541

Filed 11/14/2008

Page 8 of 10

1

rebut his testimony at trial, see Op. Br. at 3-4—is simply not credible. Counsel for the

2

Manufacturers recently took the deposition of Mr. Murphy over the course of two days, but did

3

not ask a single question about the opinion that Micron and Nanya are now challenging,

4

suggesting that their challenge is wholly pretextual. And to the extent that Mr. Murphy could

5

have provided even more detail in his report, any failure by him to do so is at worst a harmless

6

omission, in light of the detail he did provide, that does not justify the exclusion of his opinion at

7

trial. See Atmel Corp. v. Info. Storage Devices, Inc., 189 F.R.D. 410, 415 (N.D. Cal. 1999)

8

(failure to disclose information in an expert report justifies excluding that information, “unless

9

such failure is harmless”).

11

Mr. Murphy’s opinion satisfies the requirements of Daubert, and the Patent Local Rules do not apply to the claims from the ’184 patent that Rambus has not asserted against Micron’s and Nanya’s DDR products.

12

Micron and Nanya contend that Mr. Murphy’s opinion regarding their DDR

10

C.

13

products does not meet the requirement, set forth in Daubert, that expert testimony must be based

14

on sufficient facts or data, and does not satisfy Rambus’s obligations under the Court’s Patent

15

Local Rules, which requires, inter alia, an infringement claim chart. See Op. Br. at 4; Nanya

16

Joinder at 4. Thus, according to Micron, Mr. Murphy’s opinion is “wholly conclusory,” with “no

17

analysis,” “no details,” and “no effort to read the claim limitations on the product.” Op. Br. at 4.

18

However, as demonstrated above, Mr. Murphy’s opinion is supported by ample

19

factual bases and analyses, including his review of Micron’s and Nanya’s DDR datasheets and his

20

knowledge—which is consistent with the opinions of Mr. McAlexander and other experts

21

retained by the Manufacturers—that DDR2 contains all of the accused features of DDR and that

22

the same infringement analyses would apply to these shared features.

23

Micron’s and Nanya’s argument based on the Patent Local Rules also is

24

misplaced. Patent Local Rule 3-1(b) requires “[a] chart identifying specifically where each

25

limitation of each asserted claim is found within each Accused Instrumentality.” Because

26

Micron’s DDR products are not accused products in this case, Rambus was not required to serve a

27

claim chart as to those products. Similarly, as Nanya points out, Rambus has not made a formal

28

contention that its DDR products infringe the ’184 patent, and so Rambus was also not required to -7-

RAMBUS’S OPP. TO DAUBERT MOT. NO. 5 TO PRECLUDE MURPHY RE MICRON AND NANYA DDR PRODUCTS; CASES NO. 05-334 RMW, 06-244 RMW

Case 5:05-cv-00334-RMW

1 2

Document 2541

Filed 11/14/2008

Page 9 of 10

serve a claim chart in support of such a contention. D.

The probative value of Mr. Murphy’s opinion is not substantially outweighed by any “dangers” under Federal Rule of Evidence 403.

3 Micron’s and Nanya’s challenge of Mr. Murphy’s opinion under Federal Rule of 4 Evidence 403 is also without merit because it improperly downplays the probative value of Mr. 5 Murphy’s opinion regarding DDR and, in any event, does not state any “dangers” of any 6 significance, much less any that would “substantially outweigh” the probative value of Mr. 7 Murphy’s opinion. 8 Micron makes only one attack on the probative value of Mr. Murphy’s opinion 9 regarding DDR: that it is “conclusory” and unsupported by a report setting forth the “reasons and 10 bases” for the opinion. Op. Br. at 5. However, as discussed above, Mr. Murphy’s report provides 11 ample factual support for his opinion regarding Micron’s use of Rambus’s inventions in its DDR 12 products. Mr. Murphy’s opinion is thus unlike the one at issue in CFM Commc’ns, LLC v. Mitts 13 Telecasting Co., 424 F. Supp. 2d 1229, 1236 (E.D. Cal. 2005), cited by Micron, in which the 14 court excluded as “speculative” and “utterly unhelpful” expert testimony regarding “how the FCC 15 will likely apply statutory and case law precedent” to a particular company’s application to obtain 16 a broadcast station license. 17 Moreover, as also discussed above, Micron’s use of Rambus’s inventions in its 18 non-accused DDR products is relevant to the issues in the patent trial, such as the development of 19 its accused post-DDR products that Micron itself contends to be evolutionary advancements over 20 DDR. Mr. Murphy’s opinion that some infringing features in Micron’s DDR2 products “are also 21 present in Micron’s DDR products” is thus directly on point and highly probative. Nanya’s 22 argument that “there is no probative value to [Mr. Murphy’s] testimony given that Rambus has 23 not accused Nanya’s and Nanya USA’s DDR products of infringing the ’184 patent and is not 24 seeking damages for infringement of the ’184 patent by those devices” fails for the same reasons. 25 Micron and Nanya also fail to articulate any “Rule 403 danger” that would justify 26 the exclusion of Mr. Murphy’s opinion regarding DDR. First, they argue that “there is a danger 27 that the jury will be misled” because it will not be able to “evaluate Mr. Murphy’s opinion 28 -8-

RAMBUS’S OPP. TO DAUBERT MOT. NO. 5 TO PRECLUDE MURPHY RE MICRON AND NANYA DDR PRODUCTS; CASES NO. 05-334 RMW, 06-244 RMW

Case 5:05-cv-00334-RMW

Document 2541

Filed 11/14/2008

Page 10 of 10

1

objectively” without “underlying facts to evaluate.” Op. Br. at 5. However, Micron and Nanya

2

fail to explain how, exactly, they speculate that the jury might be misled and what improper

3

conclusions it might reach. Moreover, as discussed above, Mr. Murphy’s opinion is adequately

4

supported by “underlying facts.” Second, Micron and Nanya argue that allowing Mr. Murphy to

5

testify regarding DDR “threatens to confuse the jury regarding which products are at issue” in the

6

patent trial. Id. But even assuming arguendo that this danger exists, it is greatly overstated by

7

Micron and Nanya, and can easily be ameliorated. Thus, their claim of threatened jury confusion

8

does not justify, as they contend, the preclusion of relevant evidence simply because it may

9

pertain to non-accused products. Third, Micron and Nanya contend that they would be prejudiced

10

“by [their] inability to fully and fairly cross-examine Mr. Murphy effectively” regarding his

11

opinions regarding Micron’s DDR products. Id. However, as demonstrated above, Mr. Murphy

12

has provided sufficient basis for his opinions regarding DDR, and any claim by Micron and

13

Nanya that they have no idea how Mr. Murphy arrived at his conclusions is disingenuous at best.

14

III.

15

CONCLUSION For the foregoing reasons, Rambus respectfully requests that the Court deny

16

Daubert Motion No. 5 to preclude the opinion of Robert Murphy regarding Micron’s and Nanya’s

17

DDR SDRAM products.

18

DATED: November 14, 2008

MUNGER, TOLLES & OLSON LLP

19

SIDLEY AUSTIN LLP

20

McKOOL SMITH PC

21 22 23

By:

/s/ David C. Yang DAVID C. YANG

Attorneys for Plaintiff RAMBUS INC.

24 25 26 27 28 -9-

RAMBUS’S OPP. TO DAUBERT MOT. NO. 5 TO PRECLUDE MURPHY RE MICRON AND NANYA DDR PRODUCTS; CASES NO. 05-334 RMW, 06-244 RMW