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MCKOOL SMITH

A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS

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Document 2577

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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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]

Attorneys for RAMBUS INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION RAMBUS INC.,

) ) Plaintiff, ) vs. ) ) HYNIX SEMICONDUCTOR INC., et al., ) ) Defendants. ) ) ) ) RAMBUS INC., ) ) Plaintiff, ) v. ) SAMSUNG ELECTRONICS CO., LTD.,) ) ) et al., Defendants. ) )

Case No. C 05-00334 RMW RAMBUS INC.’S OPPOSITION TO SAMSUNG’S MOTION FOR SUMMARY JUDGMENT OF NONINFRINGEMENT OF METHOD CLAIMS (MSJ NO. 12) Judge: Hon. Ronald M. Whyte Date: December 11, 2008 Time: 2:00 p.m. Courtroom: 6, 4th Floor Case No. C 05-002298 RMW

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I.

INTRODUCTION ...............................................................................................................1

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II.

ARGUMENT.......................................................................................................................1

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A.

Summary Judgment Standards.................................................................................2

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B.

Summary Judgment Regarding Direct Infringement of the Method Claims Should Be Denied ..........................................................................2

C.

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Summary Judgment Regarding Inducing or Contributory Infringement of the Method Claims Should Be Denied ..........................................3

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1.

There is Ample Evidence of Direct Infringement By Third Parties.................................................................................................4

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There is Ample Evidence of Samsung’s Inducement and Intent .....................................................................................................9

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TABLE OF CONTENTS

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A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS

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III.

CONCLUSION..................................................................................................................11

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1 TABLE OF AUTHORITIES

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Page(s) CASES

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Anderson v. Liberty Lobby, 477 U.S. 242 (1986)...................................................................................................................2 Bio-Technology Gen. Corp. v. Duramed Pharms., 325 F.3d 1356 (Fed. Cir. 2003)..................................................................................................4 Broadcom Corp. v. Qualcomm, Inc., 543 F.3d 683 (Fed. Cir. 2008)..............................................................................................9, 11

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CBS Broad., Inc. v. EchoStar Communs. Corp., 450 F.3d 505 (11th Cir. 2006) ...................................................................................................9 Celotex Corp v. Catrett, 477 U.S. 317 (1986)...................................................................................................................2 Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303 (Fed. Cir. 1998)................................................................................................10 Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993)...................................................................................................................7 Fuji Photo Film Co. v. Jazz Photo Corp., 394 F.3d 1368 (Fed. Cir. 2005)............................................................................................9, 10 Liquid Dynamics Corp. v. Vaughan Co., 449 F.3d 1209 (Fed. Cir. 2006)..............................................................................................3, 4 MEMC Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d 1369 (Fed. Cir. 2005)................................................................................................10 Mentor H/S, Inc. v. Med. Device Alliance, Inc., 244 F.3d 1365 (Fed. Cir. 2001)................................................................................................10 Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354 (Fed. Cir. 2004)................................................................................................10 Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261 (Fed. Cir. 1986)..........................................................................................3, 4, 5 Oxford Gene Tech. Ltd. v. Mergen Ltd., 345 F. Supp. 2d 444 (D. Del. 2004)...........................................................................................4

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Semiconductor Energy Lab. Co. v. Chi Mei Optoelectronics Corp., 531 F. Supp. 2d 1084 (N.D. Cal. 2007) .....................................................................................4

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Sharper Image Corp. v. Target Corp., 425 F. Supp. 2d 1056 (N.D. Cal. 2006) ...............................................................................5, 10

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iii Rambus Inc.’s Opposition to Samsung’s MSJ No. 12 Case Nos. CV 05-00334 RMW, CV 05-002298 RMW Austin 47122v2

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INTRODUCTION Defendants Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., Samsung

Semiconductor Inc., and Samsung Austin Semiconductor, L.P. (collectively “Samsung”) have moved for partial summary judgment that they do not infringe the four method claims Rambus Inc. (“Rambus”) has elected for trial in these cases.1

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Samsung has failed to meet its burden of establishing an absence of evidence supporting Rambus’s infringement claims. There is extensive evidence of Samsung’s infringement of these method claims – including testimony of Samsung’s own 30(b)(6) corporate representative, Samsung’s own documents, and the opinions of Rambus’s expert witness, Mr. Robert Murphy. This evidence establishes that Rambus should prevail on these claims and thus forecloses the summary judgment Samsung seeks. Infringement is itself a question of fact, and Samsung’s motion at best raises precisely the sort of factual issues that preclude summary judgment. Accordingly, Samsung’s motion should be denied.

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II.

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ARGUMENT Before Samsung filed the instant motion, Rambus moved for summary judgment that

Samsung infringes the claims elected for trial, including the method claims for which Samsung now seeks summary judgment of noninfringement. Rambus hereby incorporates by reference its previous summary judgment filings (C 05-00334 Dkt. Nos. 489, 496, 505, 510, 725, 726; C 0600244 Dkt. Nos. 200, 201, C 05-02298 Dkt. Nos. 355, 357, 341, 350, 550, 551) as if fully set forth here. Rambus also incorporates by reference its discussion of Samsung’s infringement of the method claims included in a separate opposition Rambus is filing concurrently herewith. (See Rambus’s Omnibus Opp. to Mfrs’ Damages-Related MSJs and Daubert Motions).

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Samsung does not seek summary judgment regarding infringement of the eight apparatus claims Rambus has elected for trial.

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Summary Judgment Standards

On summary judgment, it is the movant’s – in this case, Samsung’s – burden to demonstrate the absence of any genuine issue of material fact. See Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding a summary judgment motion, a court must determine whether genuine issues of material fact exist….” Anderson v. Liberty Lobby, 477 U.S. 242 (1986). In doing so, the court must “resolv[e] any doubt in favor of the party opposing the motion” – in this case, Rambus. Id. Accordingly, the evidence presented by the nonmoving party “is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.

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10 B.

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Summary Judgment Regarding Direct Infringement of the Method Claims Should Be Denied

12 Samsung seeks summary judgment that it has not directly infringed the method claims

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elected for trial, claiming there is a lack of evidence that it performed the patented methods in the

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United States. Samsung’s extensive sales of accused products in the United States, as detailed in its own

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expert damages report, and its significant presence in the United States, including its

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manufacturing facility in Austin, Texas, indicate that Samsung at least operates the accused

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products in the United States – be it for sales or technology demonstrations, general internal use

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of its computer systems, or testing or design verification activities it carries out for its products.

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See Ex. A 2 (11/07/08 Jung-Bae Lee Depo), 81:11-14, 114:12-16, 143:17-22). Such operation of

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the accused products necessarily entails performing the steps of the method claims, and thus

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infringes them, as is shown by Samsung’s own datasheets.3

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2

Unless otherwise indicated, “Ex.” refers herein to exhibits to the Declaration of Trent E. Campione (“Campione Decl.”) filed herewith. 3 See 11/14/2008 Decl. of Robert J. Murphy ISO Rambus’s Opps. To Mfrs’ MSJs (“Murphy Decl.”) filed herewith, ¶8; Omnibus Decl of Sven Raz ISO Mfrs’ SJ and Daubert Mos. (Dkt. No. 1504) (“Raz Decl.”), Ex. 7 (9/5/08 Murphy Rpt), ¶¶49, 186-190, 194, 210-214, 218, 222, 284290, 454-458, 462, 466, 468; Ex. B (Murphy Rpt Ex. S (claim charts)); Ex. C (Murphy Rpt Ex. W (Samsung data sheets)); 11/16/07 Murphy Decl. ISO MSJ Reply (Dkt. 726), ¶2.

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The law is clear that “[a] patentee may prove direct infringement or inducement of infringement by either direct or circumstantial evidence.” Liquid Dynamics Corp. v. Vaughan Co., 449 F.3d 1209, 1219 (Fed. Cir. 2006) (citing Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 1272 (Fed. Cir. 1986) (noting “it is hornbook law that direct evidence of a fact is not necessary”)). “There is no requirement that direct evidence be introduced, nor is a jury's preference for circumstantial evidence over direct evidence unreasonable per se.” Id. (citation omitted). Indeed, “[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” Moleculon Research, 793 F.2d at 1272 (quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960)).

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Accordingly, the evidence of Samsung’s direct infringement at the very least raises genuine issues precluding summary judgment of noninfringement, particularly when viewing the evidence in the light most favorable to Rambus.4

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C.

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Summary Judgment Regarding Inducing or Contributory Infringement of the Method Claims Should Be Denied

Samsung also seeks summary judgment that it has not indirectly infringed the method

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claims, purportedly because there is inadequate evidence of direct infringement by a third party

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or that Samsung knowingly induced any third party to practice the patented methods.5 Samsung

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is wrong on both issues.

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4

Indeed, in the related Hynix I case, this Court found similar evidence of infringement sufficient to grant summary judgment in Rambus’s favor that Hynix’s DRAM products, similar in all material respects to Samsung’s accused DRAM products, perform all the steps of, and thus infringe, one of the method claims asserted here. (See Rambus MSJ Reply (Dkt. No. 725) at § I (pp. 1-3); Raz Decl., Ex. 7 (9/5/08 Murphy Rpt), ¶¶61-62). 5 Samsung does not argue there is any lack of evidence regarding substantial noninfringing uses for the accused products, or any other fact that may relate to contributory or inducing infringement. As discussed above, operation of the accused products entails performing the steps of the elected method claims, and thus infringes those claims.

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There is Ample Evidence of Direct Infringement By Third Parties a.

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Direct Infringement Is Established Even Absent Evidence of Specific Instances of Direct Infringement

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Rambus need not point to specific instances of direct infringement by third parties who

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use the accused products to perform the patented methods. “[I]f use of the [accused product] by

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the defendant's customers necessarily infringes the patent, actual proof of an instance of direct

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infringement is not required.” Oxford Gene Tech. Ltd. v. Mergen Ltd., 345 F. Supp. 2d 444, 465

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(D. Del. 2004) (citing Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1275-76

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(Fed. Cir. 2004)); see Bio-Technology Gen. Corp. v. Duramed Pharms., 325 F.3d 1356, 1360-61

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(Fed. Cir. 2003) (reversing grant of summary judgment of noninfringement where expert

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testified regarding necessary infringement by third party using accused product); Semiconductor

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Energy Lab. Co. v. Chi Mei Optoelectronics Corp., 531 F. Supp. 2d 1084, 1112 (N.D. Cal. 2007)

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(rejecting argument that evidence of actual, specific infringing importations by defendant’s

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customers must be shown). Moreover, “[a] patentee may prove … inducement of infringement

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by either direct or circumstantial evidence.” Liquid Dynamics, 449 F.3d at 1219 (citation

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omitted). Indeed, “[c]ircumstantial evidence is not only sufficient, but may also be more certain,

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satisfying and persuasive than direct evidence.” Moleculon Research, 793 F.2d at 1272

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(quotation omitted).

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Accordingly, in Symantec Corp. v. Computer Assocs. Int'l, Inc., the Federal Circuit

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concluded there were genuine issues of material fact as to whether defendant induced its

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customers to infringe, and vacated summary judgment, because the use of the accused products

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necessarily infringed:

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This is not a case where the customers may be using the product in either an infringing way or a non-infringing way; [defendant’s] customers can only use the [accused] products in an infringing way. Under these circumstances, [plaintiff] has produced sufficient circumstantial evidence of direct infringement to create a genuine issue of material fact, even though [plaintiff] has not produced evidence that any particular customer has directly infringed the [patent-in-suit]. Direct evidence of infringement, as opposed to circumstantial evidence, is not necessary.

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the same here because Samsung’s customers, including its many customers in the United States – like the third party direct infringers in Symantec – can use the accused products only in an infringing way.6 Moreover, even if Samsung’s accused products could be used in noninfringing ways, summary judgment for Samsung would nevertheless be inappropriate. Samsung’s dissemination of its datasheets, which describe and promote use of the accused DRAM products in a manner Rambus contends infringes the method claims,7 is itself adequate evidence of third party direct infringement that forecloses summary judgment for Samsung. See Sharper Image Corp. v. Target Corp., 425 F. Supp. 2d 1056, 1065-66 (N.D. Cal. 2006) (concluding that “circumstantial evidence that those who followed the product instructions infringed” the patent rendered summary judgment inappropriate, even though there was “evidence that some, and possibly many, consumers did not infringe” because a trier of fact could reasonably infer that at least some customers did follow the instructions).

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522 F.3d 1279, 1293 (Fed. Cir. 2008) (citations omitted, emphasis added). The result should be

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Samsung’s extensive U.S. sales, reflected in its own expert’s opinions on damages, also are sufficient evidence of direct infringement by Samsung’s customers. See Moleculon Research, 793 F.2d at 1272 (concluding plaintiff met its burden of proving inducement by offering circumstantial evidence of extensive product sales and dissemination of documents teaching the patented method). And for good reason – it defies logic to conclude that, of the many thousands of end-users in the United States who collectively have purchased millions of dollars of accused Samsung DRAM products, none are using the products.

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See 11/14/2008 Murphy Decl., ¶8; Raz Decl., Ex. 7 (9/5/08 Murphy Report), ¶¶49, 186-190, 194, 210-214, 218, 222, 284-290, 454-458, 462, 466, 468; Ex. B (Murphy Rpt Ex. S (claim charts)), Ex. C (Murphy Rpt Ex. W (Samsung data sheets)); 11/16/07 Murphy Decl. ISO MSJ Reply (Dkt. No. 726), ¶2. 7 Ex. C (Murphy Rpt Ex. W (Samsung data sheets)); see, e.g., id. at 17 (“Any system or application incorporating random access memory products should be properly designed, tested and qualified to ensure proper use or access of such memory products.”).

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Third party use and direct infringement of the method claims is further evidenced by Samsung’s admissions that it provides samples to its customers,8 many of which are located in the United States. If these customers did not in fact operate the sample DRAM products, there would be little purpose for Samsung to devote its resources to providing them.

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Accordingly, there is sufficient evidence that Samsung’s customers operate the accused products in the United States in an infringing manner, and summary judgment of noninfringement would be inappropriate.

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Though it is not required to do so, Rambus has also submitted extensive evidence of specific instances of infringement by third parties in the United States. As set out in Mr. Murphy’s expert report, Computer Memory Testing Labs (“CMT Labs”), located in California, tests DRAM products to certify that they will work properly with other components. (See Raz Decl., Ex. 14 (Murphy Ex. Z)). CMT Labs has operated and tested hundreds of accused Samsung products and published the results. (See Ex. D (Murphy Rpt Ex. AC)). Several other companies in the United States also have published detailed test reports documenting their testing of the accused Samsung products. (See Raz Decl., Ex. 8 (Murphy Report, Ex. AA)). All of these reports show specific instances of infringement by third parties because such operation and testing of the accused products entails performing the method claims.9

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Though it is Not Required to Do So, Rambus Has Also Adduced Evidence of Specific Instances of Direct Infringement by Third Parties

Samsung’s attempt to discount this evidence is unavailing. First, Samsung’s argument that there is no evidence that CMT Labs’ testing took place in the United States is belied by documentation identifying Huntington Beach, California as CMT Labs’ test site. (Ex. E at 1).

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8

Ex. A (11/7/08 Lee Depo), 16:1-18:5. See 11/14/2008 Murphy Decl., ¶8; Raz Decl., Ex. 7 (9/5/08 Murphy Report), ¶¶49, 186-190, 194, 210-214, 218, 222, 284-290, 454-458, 462, 466, 468; Ex. B (Murphy Rpt Ex. S (claim charts)); Ex. C (Murphy Rpt Ex. W (Samsung data sheets)); 11/16/07 Murphy Decl. ISO MSJ Reply (Dkt. 726), ¶2.

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All indications are that the testing conducted by the remaining third parties was carried out in the United States as well – it involved U.S. products and was directed to a U.S. audience. Even if there were other evidence that the tests were conducted elsewhere, it would only raise a factual dispute as to where the testing occurred, which also precludes summary judgment. Second, Samsung argues that Mr. Murphy’s testimony regarding testing should not be considered because he did not personally observe the tests carried out by CMT Labs and other independent third parties, and because Mr. Murphy had some assistance in compiling the test data. This argument is misconceived – “[u]nlike an ordinary witness . . . an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592 (1993). Third, Samsung contends that the documentation of third party testing should not be considered on a motion for summary judgment because it is hearsay. To the contrary, these documents are properly relied upon by Mr. Murphy under Federal Rule of Evidence 703, and fit within at least one hearsay exception. Rule 703 explicitly authorizes an expert to rely upon facts or data that may otherwise not be admissible: Bases of Opinion Testimony by Experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

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Fed. R. Evid. 703.

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The documentation of CMT Labs’ testing is not only “of a type” reasonably relied upon

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by experts in the DRAM field; it is itself relied upon by experts in the computer industry. (See,

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e.g., 11/14/2008 Murphy Decl., ¶7). For example, industry leader Intel relies on the CMT Labs

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reports for the technical information they provide, in order to ensure the accused DRAM

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products are compatible with Intel products with which they may be used in a computer

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through its technical support website so that others seeking testing information may also use and rely upon it.11 Intel technical support documents posted on its website also describe the rigorousness of CMT’s testing processes, indicating that Intel and others rely on the CMT Labs reports not only to establish that the DRAM was operated, but additionally for numerous details regarding specific steps carried out in testing that are not required to infringe the asserted method claims. (See, e.g., n. 10 supra). Earmarks of reliability for all the third party testing reports include the substantial detail and volume of information these independent third parties have published regarding their testing; that the data was not prepared in the context of litigation; and the apparent lack of motivation to falsify reports that the accused DRAM was operated. Moreover, Samsung has not pointed to any actual errors in these documents or any other reason to doubt their reliability.

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system.10 Furthermore, Intel provides the CMT Labs testing and certification information

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This testing data thus constitutes precisely the sort of facts or data Rule 703 permits an expert to use as support for an opinion, particularly for the limited purpose of supporting the opinion that the accused devices were operated at all, regardless of testing details described at 10

See, e.g., Ex. F (Intel® Memory List Test Report Summary), at 6 (“Memory qualification for Intel’s Server Board products is performed by … an independent external test laboratory, Computer Memory Test Lab (CMTL). CMTL is a leading memory testing organization responsible for testing a broad range of memory products. Memory devices tested by Intel’s MVL or CMTL must undergo rigorous tests to ensure that the product will perform the intended server functions.”), 6 n. 1 (“Receiving a “PASS” after being tested by CMTL, means that a product functions correctly and consumers can use it to perform the intended server functions.”), 21 (“Memory capability is a major factor your customers consider. …The list of memory modules, which have undergone testing through the CMTL facility, should be referenced when considering modules for integration into this Intel server product. Intel routinely audits the CMTL facility to ensure all procedures, process handling, and testing methodologies are met.”). The Intel documents cited herein are not hearsay because they show reliance by Intel and others, regardless of the truth of their contents. Moreover, they are properly considered under Rule 703 and excepted from the hearsay rule because they are generally used and reasonably relied upon by experts and other participants in the computer and memory fields. (See 11/14/2008 Murphy Decl., ¶7); Fed. R. Evid. 803 (17) (“Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.”). 11 Ex. G (http://www.intel.com/support/motherboards/desktop/dg31pr/sb/cs-027918.htm) (“3rd Party Tested Memory” hyperlink to CMT Labs website; “3rd party tested memory occurs as requested by the memory vendors and is tested at an independent memory house that is not a part of Intel - Computer Memory Test Labs (CMTL).”).

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length in the reports. See, e.g., CBS Broad., Inc. v. EchoStar Communs. Corp., 450 F.3d 505, 517 n. 25 (11th Cir. 2006) (finding trial court properly admitted expert testimony based on analyses performed by third party company and not admitted as evidence).

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CMT Labs’ testing reports also qualify as an exception to the hearsay rule because they are generally used and relied upon by participants in the computer and memory fields. (See 11/14/2008 Murphy Decl., ¶7); Fed. R. Evid. 803 (17).

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There is Ample Evidence of Samsung’s Inducement and Intent

8 Samsung suggests, without citing any authority, that Rambus cannot show Samsung

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knowingly induced direct infringement by any third party such as CMT Labs absent evidence

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that Samsung requested the testing or had a direct “connection” or “contact” with that third party,

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or evidence that a particular third party direct infringer actually relied on Samsung’s datasheets.12

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Samsung’s position, however, is not supported by the law. To prove a claim of inducing infringement, the requisite “intent may be established

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through circumstantial evidence.” Broadcom Corp. v. Qualcomm, Inc., 543 F.3d 683, 689 (Fed.

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Cir. 2008) (citing DSU Medical Corporation v. JMS Company, 471 F.3d 1293, 1306 (Fed. Cir.

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2006)). “Moreover, the requisite intent to induce infringement may be inferred from all of the

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circumstances.” Id. (internal quotation omitted). “The drawing of inferences, particularly in

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respect of an intent-implicating question . . . is peculiarly within the province of the fact finder

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that observed the witnesses.” Id. at 700 (quotation omitted); see Fuji Photo Film Co. v. Jazz

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Photo Corp., 394 F.3d 1368, 1378 (Fed. Cir. 2005) (declining to disturb jury's verdict because

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intent to induce infringement “is a factual determination particularly within the province of the

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trier of fact”). At least the following evidence of Samsung’s inducement and intent precludes summary

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judgment:

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Samsung does not argue there is any absence of evidence regarding its knowledge of the patents or any other facts that may relate to inducing infringement. Of course, Samsung has had knowledge of the patents-in-suit and the alleged infringement at least since this action was filed.

28 Rambus Inc.’s Opposition to Samsung’s MSJ No. 12 Case Nos. CV 05-00334 RMW, CV 05-002298 RMW

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Page 14 of 15

which describe and promote use of the accused DRAM products in a manner Rambus

3

contends infringes the method claims.13 See, e.g., Symantec Corp, 522 F.3d at 1293;

4

Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1365 (Fed. Cir.

5

2004) (finding active inducement of infringement based on defendant’s publications

6

describing and promoting use of patented method); Chiuminatta Concrete Concepts,

7

Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1312 (Fed. Cir. 1998).

8

• Samsung’s providing product samples14 and technical support.15 See MEMC

9

Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d 1369 (Fed. Cir.

10

MCKOOL SMITH

Filed 11/14/2008

• Samsung’s promotional activities, including dissemination of its datasheets,

2

A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS

Document 2577

2005) (reversing summary judgment against patentee on its claim of inducement of

11

infringement where defendant provided technical support to direct infringers);

12

Sharper Image, 425 F. Supp. 2d at 1065-66.

13

• Samsung’s continuing sale of products designed specifically for use in an

14

infringing manner.16 See Mentor H/S, Inc. v. Med. Device Alliance, Inc., 244 F.3d

15

1365, 1379 (Fed. Cir. 2001) (upholding a jury verdict of induced infringement where

16

the defendant chose to continue selling products designed for use in an infringing

17

manner).

18

• Samsung’s failure to offer any opinion of counsel. See Broadcom, 543 F.3d at

19

699 (“we … hold that the failure to procure such an opinion [of counsel] may be

20

probative of intent in this context.”).

21 22 23 24 25 26 27

13

Ex. C (Murphy Rpt Ex. W (Samsung datasheets)); see, e.g., id. at 17 (“Any system or application incorporating random access memory products should be properly designed, tested and qualified to ensure proper use or access of such memory products.”). 14 Ex. A (11/7/08 Lee Depo), 16:1-18:5. 15 See, e.g., http://www.samsung.com/us/support/main/supportSupportMain.do. 16 See 11/14/2008 Murphy Decl., ¶8; Raz Decl., Ex. 7 (9/5/08 Murphy Report), ¶¶49, 186-190, 194, 210-214, 218, 222, 284-290, 454-458, 462, 466, 468; Ex. B (Murphy Rpt Ex. S (claim charts)), Ex. C (Murphy Rpt Ex. W (Samsung data sheets)); 11/16/07 Murphy Decl. ISO MSJ Reply (Dkt. 726), ¶2.

28 Rambus Inc.’s Opposition to Samsung’s MSJ No. 12 Case Nos. CV 05-00334 RMW, CV 05-002298 RMW

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Case 5:05-cv-00334-RMW

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III.

2 3

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Filed 11/14/2008

Page 15 of 15

CONCLUSION For the foregoing reasons, Samsung’s Motion for Summary Judgment No. 12 should be

denied.

4 5

Dated: November 14, 2008 Respectfully submitted,

6 MUNGER TOLLES & OLSON LLP SIDLEY AUSTIN LLP MCKOOL SMITH P.C.

7 8 9

/s/ Pierre J. Hubert Pierre J. Hubert

MCKOOL SMITH

A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS

10 11

Attorneys for RAMBUS INC.

12 13

Austin 41241v1

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rambus Inc.’s Opposition to Samsung’s MSJ No. 12 Case Nos. CV 05-00334 RMW, CV 05-002298 RMW

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