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Case 5:05-cv-00334-RMW
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Document 3145
Filed 01/26/2009
Page 1 of 16
[Parties Listed On Signature Page]
2 3 4 5 6 7 8
UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
11 12
RAMBUS INC.,
Case No. C 05-00334 RMW Plaintiff,
13 14
v.
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HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR MANUFACTURING AMERICA INC.,
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SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG AUSTIN SEMICONDUCTOR, L.P.,
MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE (1) PORTIONS OF THE SECOND SUPPLEMENTAL MCALEXANDER EXPERT REPORT, AND (2) SUPPLEMENTAL SECTION 282 NOTICES Hearing Date: February 5, 2009 Time: 9:00 AM Courtroom: 6, 4th Floor Judge: Ronald M. Whyte
NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION U.S.A., Defendants.
23 24 25 26 27 28 MANUFACTURERS' OPPOSITION TO RAMBUS’S MOTION TO STRIKE
CASE NOS. 05-00334; 05-002298; 06-00244
Case 5:05-cv-00334-RMW
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Document 3145
RAMBUS INC.,
2
Plaintiff, v.
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SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG AUSTIN SEMICONDUCTOR, L.P.,
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Page 2 of 16
Case No. C 05-02298 RMW
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5
Filed 01/26/2009
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Defendants.
8 9
RAMBUS INC.,
10 11 12 13 14
Case No. C 06-00244 RMW Plaintiff,
v. MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC., Defendants.
15 16 17 18 19 20 21 22 23 24 25 26 27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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CASE NOS. 05-00334; 05-002298; 06-00244
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Document 3145
Filed 01/26/2009
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TABLE OF CONTENTS
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Page
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I. INTRODUCTION ....................................................................................................................... 1
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II. RESPONSE TO RAMBUS'S STATEMENT OF “RELEVANT” FACTS............................... 2
5
III. ARGUMENT ............................................................................................................................ 4
6
A.
Rambus's Request to Strike is Fundamentally Unfair............................................. 4
7
B.
The Opinions in Mr. McAlexander’s Second Supplemental Report Properly Responded to Rambus’s December 23, 2008 Letter............................................... 5
C.
Rambus’s Request to Strike Mr. McAlexander’s Opinions Regarding Integration Is Without Merit ................................................................................... 6
D.
Rambus’s Request to Strike Mr. McAlexander’s Opinions Related to the Morgan Deposition Is Misleading........................................................................... 8
E.
Rambus’s Request to Strike the Opinions Related to the Horowitz, Fu, and Moussouris Articles Should Be Denied .................................................................. 8
F.
The Manufacturers Properly Supplemented Their Section 282 Notices................. 8
8 9 10 11 12 13 14
IV. CONCLUSION......................................................................................................................... 9
15 16 17 18 19 20 21 22 23 24 25 26 27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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TABLE OF AUTHORITIES
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Page
3
CASES
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Immersion Corp. v. Sony Computer Entertainment America, Inc. C-02-0710 (N.D. Cal., Feb. 26, 2004) ................................................................................ 5
5 6
STATUTES AND RULES
7 8
35 U.S.C. § 282 ............................................................................................................................... 1
9
Fed. R. Civ. P. 26(a)(2)(C).......................................................................................................... 7, 8
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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I.
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INTRODUCTION
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Rambus’s latest Motion to Strike (’334 D.E. 3107, “Motion”) is a transparent attempt to
3
foreclose Mr. McAlexander from fully addressing at trial the late-disclosed “opinions” of Mr.
4
Murphy about the Court’s recently modified construction of “memory device.”
5
The Court made significant changes to its construction of memory device on November
6
21, 2008. By that time, the date for completing expert discovery and deposing experts had long
7
since passed. On December 23, 2008, Rambus submitted a letter to the Court which made clear
8
that Mr. Murphy intends to offer additional opinions at trial about the Manufacturers’ prior art
9
positions in light of the Court’s modified construction. Accordingly, and with express permission
10
from the Court, the Manufacturers properly served Mr. McAlexander’s Second Supplemental
11
Expert Report (“Report”) to address Rambus’s letter, the description of Mr. Murphy’s
12
contemplated opinions set forth therein, and the effect of those opinions on Mr. McAlexander’s
13
previously disclosed opinions. In doing so, Mr. McAlexander explained why it still would have
14
been obvious to implement the features recited in Rambus's asserted claims under the Court’s
15
new construction of “memory device.”
16
Rambus now complains that Mr. McAlexander's opinions were not limited to the issue it
17
wanted him to address—whether certain prior art disclosures meet the Court's modified
18
construction of “memory device.” Rambus's argument is predicated on the incorrect view that the
19
“memory device” recitation in 9 of the 12 asserted claims is an abstract stand-alone requirement
20
entirely divorced from the actual claims.
21
implementing specific features on a “memory device.”
22
properly directed to the issues affected by Rambus’s letter—whether the prior art disclosed or
23
rendered obvious the specifically recited features on a “memory device” under the Court’s
24
modified construction. Rambus’s request to bar Mr. McAlexander from addressing the Court’s
25
modified construction in the context of the claims should be denied.
To the contrary, those claims are directed to Mr. McAlexander’s opinions were
26
Rambus also seeks to strike the Manufacturers’ Supplemental Section 282 Notices as
27
untimely. Section 282 requires “notice . . . at least thirty days before the trial.” 35 U.S.C. § 282.
28
The Manufacturers served their supplemental Section 282 Notices no later than December 31, MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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2008. The trial is scheduled to start no earlier than February 17, 2009, which is more than 30
2
days after December 31, 2008. Moreover, given that the Court gave the Manufacturers leave to
3
supplement Mr. McAlexander’s report on December 30, 2008, the Manufacturers clearly had
4
good cause to supplement their Section 282 Notices.
5
II.
6
RESPONSE TO RAMBUS'S STATEMENT OF “RELEVANT” FACTS 1.
On July 11, 2007, the parties submitted a Joint Claim Construction and Prehearing
7
Statement, which set forth their positions on claim construction.
8
Manufacturers asked the Court to construe “memory device” to mean a “device in which
9
information can be stored and retrieved electronically.” (’334 D.E. 254, Appx. A at 22-23.)
10
Rambus argued that “memory device” means “an integrated circuit device in which information
11
can be stored and retrieved electronically.” Id.
12
2.
(’334 D.E. 254.)
The
Following briefing and argument, on July 10, 2008, the Court issued its Claim
13
Construction Order. The Order adopted the Manufacturers' proposed construction of “memory
14
device.” (’334 D.E. 1960 at 88.)
15
3.
The Manufacturers and Mr. McAlexander used the Court’s July 10, 2008
16
constructions in preparing their subsequent disclosures and filings, including the Manufacturers'
17
Final Invalidity Contentions and Mr. McAlexander's Expert Report.
18
4.
Not satisfied with the Court’s July 10, 2008 claim construction order, on August 19,
19
2008, Rambus filed a Motion for Leave to File a Motion for Reconsideration of the Claim
20
Construction Order for the Farmwald/Horowitz Patents and Motion for Clarification. (’334 D.E.
21
2066, “Motion for Reconsideration.”) Rambus's Motion for Reconsideration again sought to limit
22
the term “memory device” to single chip implementations and repeated the same arguments that
23
had been made to, and rejected by, the Court. Id. at 2.
24
5.
On November 21, 2008 – long after expert reports had been exchanged and expert
25
depositions had been taken – the Court issued its Order Clarifying its Construction of “Memory
26
Device” (’334 D.E. 2603, “Order Construing ‘Memory Device’” The Court neither maintained
27
its prior construction as requested by the Manufacturers, nor adopted the single chip requirement
28
urged by Rambus. Id. at 2, 4. The Court substantially changed its construction, construing the MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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term “memory device” as follows: “[A] component of a memory subsystem in which information
2
can be stored and retrieved electronically. It is smaller in physical size than that of a prior art
3
memory board and has low power dissipation so it can be closely spaced to other components of
4
the memory subsystem such as a processing device.” Id. at 4. In addition, although not stated in
5
the Court’s modified construction itself, the Order stated that “[a] ‘memory device’ does not
6
include a microprocessor like a CPU or memory controller.” Id. at 3.
7
6.
On December 10, 2008, the Manufacturers requested additional expert discovery to
8
understand what each side’s expert would say because the Court’s new construction of “memory
9
device” came after the close of expert discovery and close to the pretrial conference scheduled for
10
December 19, 2008. (See Lee Decl., Ex. A, 12/10/2008 Hearing Transcript at 129:20-131:8.)
11
Rambus opposed. See id. at 131:17-132:3. The Court agreed with the Manufacturers in part and
12
instructed Rambus to notify the Manufacturers as to whether Rambus would assert that any prior
13
art references would no longer be relevant under the Court’s modified construction of “memory
14
device.” See id. at 134:15-21. On December 19, 2008, the Court gave the Manufacturers
15
permission to supplement Mr. McAlexander’s report in response to Rambus’s position on
16
“memory device.” (See Lee Decl., Ex. B, 12/19/2008 Hearing Transcript at 13:13-21.)
17
7.
On December 23, 2008, Rambus submitted a letter to the Court regarding the
18
memory device issue (’334 D.E. 2994.) The letter states that Mr. Murphy would opine that five
19
prior art references relied upon by the Manufacturers failed to meet the Court's modified
20
construction of “memory device.” In response, and with the Court’s permission (Lee Decl., Ex. B
21
at 13:13-21), the Manufacturers served the Second Supplemental Expert Report of Joseph
22
McAlexander Regarding Invalidity on December 30, 2008. The report responded to Rambus’s
23
letter, the description of Mr. Murphy’s contemplated opinions set forth therein, and the effect of
24
the opinions on Mr. McAlexander's previously disclosed opinions. On January 13, 2009, without
25
leave of Court, Rambus responded to Mr. McAlexander’s report by serving a supplemental report
26
from Mr. Murphy.
27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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On December 30 and 31, 2008, the Manufacturers served Supplemental Section 282
2
Notices disclosing the prior art references relied upon in Mr. McAlexander's Second Supplement
3
Report.
4
9.
During a hearing on January 14, 2009, the Court scheduled jury selection to begin
5
no earlier than February 17, 2009. Thus, the Manufacturers served their supplemental Section
6
282 Notices more than 30 days before the start of the upcoming patent trial.
7
III.
ARGUMENT
8
A.
9
Rambus’s “Statement of Relevant Facts” section omits one key fact—that the Court did
10
not issue a modified construction sua sponte, but rather did so in response to Rambus’s motion
11
for reconsideration. (’334 D.E. 2603 at 2.) Rambus effectively seeks to take the direct benefit of
12
convincing the Court to revise its construction, and also to derive indirect benefit by raising
13
objections to the Manufacturers’ legitimate attempts to address that new construction and
14
Rambus’s expert’s opinions on the impact of that construction. By succeeding in its quest to
15
narrow the construction, Rambus made it necessary for Mr. McAlexander to address that
16
narrowed construction. A ruling to the contrary would unfairly prejudice the Manufacturers’
17
right to defend against Rambus’s claims.
Rambus's Request to Strike is Fundamentally Unfair
18
Further, it is telling that Rambus does not allege any prejudice resulting from Mr.
19
McAlexander’s opinions. Were the Court to consider the issue of prejudice, that factor would
20
heavily favor the Manufacturers. On January 13, 2009, Rambus served a Supplemental Expert
21
Report from Mr. Murphy.1
22
Rambus did not seek leave to submit Mr. Murphy’s Supplemental Report, nor did it tie the
23
admissibility of the opinions disclosed in that report to the outcome of its motion to strike. In
24
effect, Rambus asserts that the deadlines for the disclosure of expert opinions apply only to the
25
Manufacturers. As Rambus itself urged in a previous motion to strike, resolution of this dispute
That report responds to Mr. McAlexander’s disputed opinions.
26 1
27 28
Mr. Murphy’s January 13, 2009, Supplemental Expert Report was actually his second supplemental report. A previous supplemental report on validity was served on November 14, 2008. Both supplemental reports were served after the close of expert discovery and without leave of Court. MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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must seek “to preserve the fundamental fairness of the litigation process.” (’334 D.E. 2278 at 10
2
(citing Immersion Corp. v. Sony Computer Entm’t Am., Inc. C-02-0710, slip op. at 7 (N.D. Cal.,
3
Feb. 26, 2004).) On that basis alone, Rambus’s motion should be denied.
4
B.
5
The Opinions in Mr. McAlexander’s Second Supplemental Report Properly Responded to Rambus’s December 23, 2008 Letter
6
Rambus first requests that the Court strike portions of Mr. McAlexander’s report that
7
“relate to ‘programmable latency’ and ‘autoprecharge,’ not ‘memory device.’” (’334 D.E. 3107
8
at 6.) Rambus supports this request by ignoring the language of the asserted claims. Instead,
9
Rambus treats the term “memory device” as an abstract concept entirely divorced from the
10
parties’ validity disputes.
11
McAlexander’s report are directly related to “memory device,” because they provide his opinion
12
that it would have been obvious to a person having ordinary skill in the art to implement
13
“programmable latency” and “auto precharge” on a “memory device” as provided in the Court’s
14
modified construction.
Contrary to Rambus’s argument, the cited portions of Mr.
15
Where Rambus’s argument goes awry is in failing to address the actual live validity issues
16
in this case—whether the prior art anticipates or renders obvious implementing claimed features
17
on a memory device. For example, the dispute regarding the validity of claim 27 of the ’051
18
patent will involve a determination at trial of whether the prior art discloses or renders obvious
19
programmable write delay on a memory device. Similarly, the dispute regarding the validity of
20
claim 34 of the ’037 patent will involve a determination at trial of whether the prior art discloses
21
or renders obvious auto precharge on a memory device. Contrary to Rambus’s unsupported
22
allegation that the disputed opinions “have no bearing on the ‘memory device’ issue” (’334 D.E.
23
3107 at 5), whether it would have been obvious to a person having ordinary skill in the art to
24
implement those features on a memory device goes to the very heart of the “memory device”
25
issue.
26
Indeed, when the latency and auto precharge issues are placed in the context of the
27
opinions originally disclosed by Mr. McAlexander, the relevance of his supplemental opinions to
28
the “memory device” issue becomes even more apparent. For example, in his original report, Mr. MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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McAlexander opined that U.S. Patent No. 5,301,278 to Bowater et al. (“Bowater”) disclosed
2
implementing the latency and auto precharge features on a memory device comprising a memory
3
controller and memory chips. (See Lee Decl., Ex. C, 9/15/2008 McAlexander Corrected Report
4
at ¶¶ 285-90.)
5
construction of memory device. (’334 D.E. 2994 at 2.) Based on that purported conflict, Rambus
6
concludes without support that the latency and auto precharge features disclosed in Bowater
7
somehow disappear. To the contrary, and as demonstrated in Mr. McAlexander’s supplemental
8
report, those disclosures remain equally as relevant under the Court’s modified construction as
9
they were under the prior construction. The change is the precise wording of the issue, which
10
previously related to whether Bowater disclosed those features on a memory device, and now
11
relates to whether it would have been obvious to implement those features on a memory device.
12
Mr. McAlexander’s Second Supplemental Report provides his opinion on this “memory device”
13
issue as it relates to the validity of the claims in light of the prior art.
According to Rambus, that opinion conflicts with the Court’s narrowed
14
It is also important to note that Rambus’s letter, to which Mr. McAlexander was
15
responding, is not limited to arguing whether certain devices are memory controllers, and
16
therefore, are outside the Court’s modified construction of memory device. Instead, as to four of
17
the five references discussed, Rambus’s proposed new opinions extend to the disclosed memory
18
controllers “alone or in combination with separate memory chips.”
19
(emphasis added).) What a person having ordinary skill in the art would conclude from a prior art
20
disclosure of a memory controller “alone or in combination with” memory chips is not an issue
21
that was resolved by the Court’s modified construction. Mr. McAlexander should be permitted to
22
provide his opinion regarding these combinations, which is what he did in his supplemental
23
report.
24 25
C.
(’334 D.E. 2994 at 2
Rambus’s Request to Strike Mr. McAlexander’s Opinions Regarding Integration Is Without Merit
26
Rambus next requests that the Court strike portions of Mr. McAlexander’s Report directed
27
to “the existence of an integration trend.” (’334 D.E. 3107 at 6.) According to Rambus, these
28
opinions are improper because “Mr. McAlexander did include a lengthy section on integration in MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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his original report and cannot dispute this fact.” Id. at 7 (emphasis in original). Rambus does not,
2
of course, argue that the opinions are irrelevant or untimely. Instead, Rambus manufactures a
3
new “no bolstering” limitation on supplemental expert reports.
4
Rambus’s argument consists of an irrelevant citation to the disclosure requirement in the Federal
5
Rules of Civil Procedure. Id. at 7-8. Because Mr. McAlexander’s disclosure was pursuant to an
6
order from this Court, and responds directly to the contents and implications of Rambus’s
7
December 23 letter, there is no basis to argue that it was improper. Fed. R. Civ. P. 26(a)(2)(C).
The sole legal support for
8
The core of Rambus’s argument is that, because certain asserted claims as construed by
9
the Court already include a single-chip requirement, Mr. McAlexander “had every reason to
10
include opinions regarding integration in his original invalidity report.” (’334 D.E. 3107 at 6-7.)
11
This argument improperly shifts the focus of the dispute to claims unaffected by the Court’s
12
modified construction from the relevant claims.
13
undisputed fact that Rambus’s letter relates to the application of the prior art to the nine asserted
14
claims that include the “memory device” language.
15
This dispute should be resolved by the
Further, even if Rambus is correct that the three claims which do not include “memory
16
device” should be considered, Rambus’s argument fails.
17
construction, integration was a peripheral issue affecting only those three asserted claims and the
18
subset of features recited therein.2 In view of the Court’s modified construction, the integration
19
issue now touches all twelve asserted claims. The suggestion that Mr. McAlexander’s “reason to
20
include opinions regarding integration” remains unchanged is unsupportable.
Prior to the Court’s modified
21 22 23 24 25 26 27 28
2
The “integrated circuit” claims are claim 36 of the ’020 patent and claims 3 and 4 of the ’446 patent. Rambus argues that it “asserted claims with preambles narrower than ‘memory device’ . . . [f]or example . . . ‘synchronous semiconductor memory device.’” (’334 D.E. 3107 at 6). Nothing in that claim language—either as written or as previously construed by the Court— required a specific level of integration. Indeed, Rambus never sought to construe those “narrower” preambles separately. Regardless, the fact that a “memory device” is synchronous or is comprised of semiconductor material is irrelevant to the integration issue. MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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D.
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Rambus’s Request to Strike Mr. McAlexander’s Opinions Related to the Morgan Deposition Is Misleading
2 3
Rambus also objects to Mr. McAlexander’s citation to the “Morgan (CVAX) deposition”
4
to support his opinion “that it would have been obvious ‘to have integrated the programmable
5
timing control feature disclosed in CVAX.’” (’334 D.E. 3107 at 8.) Rambus’s argument is that
6
“integration has been an issue for Mr. McAlexander throughout this case.” Id. What Rambus
7
fails to tell the Court, however, is that all four claims that require programmable timing control
8
are “memory device” claims rather than “integrated circuit” claims.3 Integration was simply not a
9
live issue for those claims prior to the Court’s modified construction.
10
Mr. McAlexander’s Report properly addresses whether it would have been obvious to
11
integrate the timing control feature of CVAX onto a memory device as the Court has construed
12
that term. Rambus’s argument, which again relies upon excising the “memory device” language
13
from the claims of which they are a part, is in error.
14
E.
Rambus’s Request to Strike the Opinions Related to the Horowitz, Fu, and Moussouris Articles Should Be Denied
15 Rambus also requests that the Court strike Mr. McAlexander’s references to the Fu,
16 17
Horowitz, and Moussouris articles.
This request is based on the same flawed “bolstering”
18
argument discussed above. Again, these materials were properly discussed based on the content
19
and implications of Rambus’s December 23 letter and Rambus’s discussion of the Court’s
20
modified construction.
21
F.
The Manufacturers Properly Supplemented Their Section 282 Notices
22
Finally, Rambus requests that the Court strike the Manufacturers’ supplemental Section
23
282 Notices because the “deadline had passed.” (’334 D.E. 3107 at 9.) According to the current
24
schedule, trial is not set to begin until February 17, 2009, at the earliest. Rambus’s argument that
25
the December 30th and December 31st disclosures were outside the 30-day window, therefore, is
26
in error.
27 3
28
Claim 16 of the ’285 patent, claim 27 of the ’051 patent, claim 28 of the ’916 patent, and claim 4 of the ’696 patent.
MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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In addition, as discussed above, the Court granted the Manufacturers leave to submit a
2
supplemental expert report in response to Rambus’s December 23 letter. It follows that the
3
Manufacturers also had good cause to disclose the prior art references discussed in the
4
supplemental report and to supplement their Section 282 Notices accordingly.
5
IV.
6 7
CONCLUSION For the foregoing reasons, the Manufacturers respectfully request that the Court deny
Rambus’s Motion to Strike.
8 9 10
Dated: January 26, 2009
11
By:
12
/s/ Jared Bobrow
JARED BOBROW (Bar No. 133712) Email: [email protected] SVEN RAZ (Bar No. _222262) Email: [email protected] WEIL GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: (650) 802-3034 Facsimile: (650) 802-3100
13 14 15 16 17
ELIZABETH STOTLAND WEISWASSER Email: [email protected] DAVID LENDER Email: [email protected] WEIL, GOTSHAL & MANGES LLP New York Office 767 Fifth Avenue New York, NY 10153 Telephone: (212) 310-8000 Facsimile: (646) 842-0505
18 19 20 21 22 23
WILLIAM C. PRICE (Bar No. 108542) Email: [email protected] HAROLD A. BARZA (Bar No. 80888) Email: [email protected] JON R. STEIGER (Bar No. 229814) Email: [email protected] ROBERT J. BECHER (Bar No. 193431) Email: [email protected] QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 865 South Figueroa Street, 10th Floor
24 25 26 27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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Los Angeles, CA 90017 Telephone: (213) 443-3000 Facsimile: (213) 443-3100
2 3
Attorneys for Defendants MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC.
4 5 6
By:
7
/s/ Robert Berezin
8
MATTHEW D. POWERS Email: matthew.powers @weil.com STEVEN S. CHERENSKY Email: [email protected] WEIL GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: (650) 802-3034 Facsimile: (650) 802-3100
9 10 11 12 13 14
ROBERT S. BEREZIN (pro hac vice) Email: [email protected] MATTHEW J. ANTONELLI (pro hac vice) Email: [email protected] WEIL, GOTSHAL & MANGES LLP New York Office 767 Fifth Avenue New York, NY 10153 Telephone: (212) 310-8000
15 16 17 18 19
Attorneys for Defendants SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., and SAMSUNG AUSTIN SEMICONDUCTOR, L.P.
20 21 22 23
By: /s/ DANIEL J. FURNISS (Bar No. 73531) Email: [email protected] THEODORE G. BROWN, III (Bar No. 114672) Email: [email protected] JULIE J. HAN (Bar No. 215279) Email: [email protected] TOWNSEND and TOWNSEND and CREW LLP 379 Lytton Avenue
24 25 26 27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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Filed 01/26/2009
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Palo Alto, California 94301 Telephone: (650) 326-2400 Facsimile: (650) 326-2422
2 3
KENNETH L NISSLY (Bar No. 77589) Email: [email protected] SUSAN van KEULEN (Bar No. 136060) Email: [email protected] O’MELVENY & MYERS LLP 2765 Sand Hill Road Menlo Park, California 94025 Telephone: (650) 473-2600 Facsimile: (650) 473-2601
4 5 6 7 8 9
KENNETH R. O’ROURKE (Bar No. 120144) Email: [email protected] WALLACE A. ALLAN (Bar No. 102054) Email: [email protected] O’MELVENY & MYERS LLP 400 South Hope Street, Suite 1060 Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407
10 11 12 13 14
Attorneys for HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR MANUFACTURING AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH
15 16 17 18 19
By:
20 21
/s/ Vickie L. Feeman
ROBERT E. FREITAS (Bar No. 80948) Email: [email protected] CRAIG R. KAUFMAN (Bar No. 159458)
22 23 24 25 26 27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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3 4 5 6
Attorneys for Defendants NANYA TECHNOLOGY CORPORATION and NANYA TECHNOLOGY CORPORATION U.S.A.
7 8 9
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Email: [email protected] VICKIE L. FEEMAN (Bar No. 177487) Email: [email protected] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: (650) 614-7400 Facsimile: (650) 614-7401
2
10
Filed 01/26/2009
ATTESTATION CLAUSE REGARDING SIGNATURES I hereby attest that I have on file permission to sign for counsel indicated by a “conformed” signature (/s/) within this document. /s/ Jared Bobrow (Bar No. 133712) Email: [email protected]
15 16 17 18 19 20 21 22 23 24 25 26 27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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Document 3145
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[Parties Listed On Signature Page]
2 3 4 5 6 7 8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11 12
RAMBUS INC.,
Case No. C 05-00334 RMW Plaintiff,
13 14
v.
15
HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR MANUFACTURING AMERICA INC.,
16 17 18 19 20 21 22
SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG AUSTIN SEMICONDUCTOR, L.P.,
MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE (1) PORTIONS OF THE SECOND SUPPLEMENTAL MCALEXANDER EXPERT REPORT, AND (2) SUPPLEMENTAL SECTION 282 NOTICES Hearing Date: February 5, 2009 Time: 9:00 AM Courtroom: 6, 4th Floor Judge: Ronald M. Whyte
NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION U.S.A., Defendants.
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Document 3145
RAMBUS INC.,
2
Plaintiff, v.
4
SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG AUSTIN SEMICONDUCTOR, L.P.,
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Page 2 of 16
Case No. C 05-02298 RMW
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5
Filed 01/26/2009
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Defendants.
8 9
RAMBUS INC.,
10 11 12 13 14
Case No. C 06-00244 RMW Plaintiff,
v. MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC., Defendants.
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TABLE OF CONTENTS
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Page
3
I. INTRODUCTION ....................................................................................................................... 1
4
II. RESPONSE TO RAMBUS'S STATEMENT OF “RELEVANT” FACTS............................... 2
5
III. ARGUMENT ............................................................................................................................ 4
6
A.
Rambus's Request to Strike is Fundamentally Unfair............................................. 4
7
B.
The Opinions in Mr. McAlexander’s Second Supplemental Report Properly Responded to Rambus’s December 23, 2008 Letter............................................... 5
C.
Rambus’s Request to Strike Mr. McAlexander’s Opinions Regarding Integration Is Without Merit ................................................................................... 6
D.
Rambus’s Request to Strike Mr. McAlexander’s Opinions Related to the Morgan Deposition Is Misleading........................................................................... 8
E.
Rambus’s Request to Strike the Opinions Related to the Horowitz, Fu, and Moussouris Articles Should Be Denied .................................................................. 8
F.
The Manufacturers Properly Supplemented Their Section 282 Notices................. 8
8 9 10 11 12 13 14
IV. CONCLUSION......................................................................................................................... 9
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TABLE OF AUTHORITIES
2
Page
3
CASES
4
Immersion Corp. v. Sony Computer Entertainment America, Inc. C-02-0710 (N.D. Cal., Feb. 26, 2004) ................................................................................ 5
5 6
STATUTES AND RULES
7 8
35 U.S.C. § 282 ............................................................................................................................... 1
9
Fed. R. Civ. P. 26(a)(2)(C).......................................................................................................... 7, 8
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I.
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INTRODUCTION
2
Rambus’s latest Motion to Strike (’334 D.E. 3107, “Motion”) is a transparent attempt to
3
foreclose Mr. McAlexander from fully addressing at trial the late-disclosed “opinions” of Mr.
4
Murphy about the Court’s recently modified construction of “memory device.”
5
The Court made significant changes to its construction of memory device on November
6
21, 2008. By that time, the date for completing expert discovery and deposing experts had long
7
since passed. On December 23, 2008, Rambus submitted a letter to the Court which made clear
8
that Mr. Murphy intends to offer additional opinions at trial about the Manufacturers’ prior art
9
positions in light of the Court’s modified construction. Accordingly, and with express permission
10
from the Court, the Manufacturers properly served Mr. McAlexander’s Second Supplemental
11
Expert Report (“Report”) to address Rambus’s letter, the description of Mr. Murphy’s
12
contemplated opinions set forth therein, and the effect of those opinions on Mr. McAlexander’s
13
previously disclosed opinions. In doing so, Mr. McAlexander explained why it still would have
14
been obvious to implement the features recited in Rambus's asserted claims under the Court’s
15
new construction of “memory device.”
16
Rambus now complains that Mr. McAlexander's opinions were not limited to the issue it
17
wanted him to address—whether certain prior art disclosures meet the Court's modified
18
construction of “memory device.” Rambus's argument is predicated on the incorrect view that the
19
“memory device” recitation in 9 of the 12 asserted claims is an abstract stand-alone requirement
20
entirely divorced from the actual claims.
21
implementing specific features on a “memory device.”
22
properly directed to the issues affected by Rambus’s letter—whether the prior art disclosed or
23
rendered obvious the specifically recited features on a “memory device” under the Court’s
24
modified construction. Rambus’s request to bar Mr. McAlexander from addressing the Court’s
25
modified construction in the context of the claims should be denied.
To the contrary, those claims are directed to Mr. McAlexander’s opinions were
26
Rambus also seeks to strike the Manufacturers’ Supplemental Section 282 Notices as
27
untimely. Section 282 requires “notice . . . at least thirty days before the trial.” 35 U.S.C. § 282.
28
The Manufacturers served their supplemental Section 282 Notices no later than December 31, MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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2008. The trial is scheduled to start no earlier than February 17, 2009, which is more than 30
2
days after December 31, 2008. Moreover, given that the Court gave the Manufacturers leave to
3
supplement Mr. McAlexander’s report on December 30, 2008, the Manufacturers clearly had
4
good cause to supplement their Section 282 Notices.
5
II.
6
RESPONSE TO RAMBUS'S STATEMENT OF “RELEVANT” FACTS 1.
On July 11, 2007, the parties submitted a Joint Claim Construction and Prehearing
7
Statement, which set forth their positions on claim construction.
8
Manufacturers asked the Court to construe “memory device” to mean a “device in which
9
information can be stored and retrieved electronically.” (’334 D.E. 254, Appx. A at 22-23.)
10
Rambus argued that “memory device” means “an integrated circuit device in which information
11
can be stored and retrieved electronically.” Id.
12
2.
(’334 D.E. 254.)
The
Following briefing and argument, on July 10, 2008, the Court issued its Claim
13
Construction Order. The Order adopted the Manufacturers' proposed construction of “memory
14
device.” (’334 D.E. 1960 at 88.)
15
3.
The Manufacturers and Mr. McAlexander used the Court’s July 10, 2008
16
constructions in preparing their subsequent disclosures and filings, including the Manufacturers'
17
Final Invalidity Contentions and Mr. McAlexander's Expert Report.
18
4.
Not satisfied with the Court’s July 10, 2008 claim construction order, on August 19,
19
2008, Rambus filed a Motion for Leave to File a Motion for Reconsideration of the Claim
20
Construction Order for the Farmwald/Horowitz Patents and Motion for Clarification. (’334 D.E.
21
2066, “Motion for Reconsideration.”) Rambus's Motion for Reconsideration again sought to limit
22
the term “memory device” to single chip implementations and repeated the same arguments that
23
had been made to, and rejected by, the Court. Id. at 2.
24
5.
On November 21, 2008 – long after expert reports had been exchanged and expert
25
depositions had been taken – the Court issued its Order Clarifying its Construction of “Memory
26
Device” (’334 D.E. 2603, “Order Construing ‘Memory Device’” The Court neither maintained
27
its prior construction as requested by the Manufacturers, nor adopted the single chip requirement
28
urged by Rambus. Id. at 2, 4. The Court substantially changed its construction, construing the MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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term “memory device” as follows: “[A] component of a memory subsystem in which information
2
can be stored and retrieved electronically. It is smaller in physical size than that of a prior art
3
memory board and has low power dissipation so it can be closely spaced to other components of
4
the memory subsystem such as a processing device.” Id. at 4. In addition, although not stated in
5
the Court’s modified construction itself, the Order stated that “[a] ‘memory device’ does not
6
include a microprocessor like a CPU or memory controller.” Id. at 3.
7
6.
On December 10, 2008, the Manufacturers requested additional expert discovery to
8
understand what each side’s expert would say because the Court’s new construction of “memory
9
device” came after the close of expert discovery and close to the pretrial conference scheduled for
10
December 19, 2008. (See Lee Decl., Ex. A, 12/10/2008 Hearing Transcript at 129:20-131:8.)
11
Rambus opposed. See id. at 131:17-132:3. The Court agreed with the Manufacturers in part and
12
instructed Rambus to notify the Manufacturers as to whether Rambus would assert that any prior
13
art references would no longer be relevant under the Court’s modified construction of “memory
14
device.” See id. at 134:15-21. On December 19, 2008, the Court gave the Manufacturers
15
permission to supplement Mr. McAlexander’s report in response to Rambus’s position on
16
“memory device.” (See Lee Decl., Ex. B, 12/19/2008 Hearing Transcript at 13:13-21.)
17
7.
On December 23, 2008, Rambus submitted a letter to the Court regarding the
18
memory device issue (’334 D.E. 2994.) The letter states that Mr. Murphy would opine that five
19
prior art references relied upon by the Manufacturers failed to meet the Court's modified
20
construction of “memory device.” In response, and with the Court’s permission (Lee Decl., Ex. B
21
at 13:13-21), the Manufacturers served the Second Supplemental Expert Report of Joseph
22
McAlexander Regarding Invalidity on December 30, 2008. The report responded to Rambus’s
23
letter, the description of Mr. Murphy’s contemplated opinions set forth therein, and the effect of
24
the opinions on Mr. McAlexander's previously disclosed opinions. On January 13, 2009, without
25
leave of Court, Rambus responded to Mr. McAlexander’s report by serving a supplemental report
26
from Mr. Murphy.
27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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On December 30 and 31, 2008, the Manufacturers served Supplemental Section 282
2
Notices disclosing the prior art references relied upon in Mr. McAlexander's Second Supplement
3
Report.
4
9.
During a hearing on January 14, 2009, the Court scheduled jury selection to begin
5
no earlier than February 17, 2009. Thus, the Manufacturers served their supplemental Section
6
282 Notices more than 30 days before the start of the upcoming patent trial.
7
III.
ARGUMENT
8
A.
9
Rambus’s “Statement of Relevant Facts” section omits one key fact—that the Court did
10
not issue a modified construction sua sponte, but rather did so in response to Rambus’s motion
11
for reconsideration. (’334 D.E. 2603 at 2.) Rambus effectively seeks to take the direct benefit of
12
convincing the Court to revise its construction, and also to derive indirect benefit by raising
13
objections to the Manufacturers’ legitimate attempts to address that new construction and
14
Rambus’s expert’s opinions on the impact of that construction. By succeeding in its quest to
15
narrow the construction, Rambus made it necessary for Mr. McAlexander to address that
16
narrowed construction. A ruling to the contrary would unfairly prejudice the Manufacturers’
17
right to defend against Rambus’s claims.
Rambus's Request to Strike is Fundamentally Unfair
18
Further, it is telling that Rambus does not allege any prejudice resulting from Mr.
19
McAlexander’s opinions. Were the Court to consider the issue of prejudice, that factor would
20
heavily favor the Manufacturers. On January 13, 2009, Rambus served a Supplemental Expert
21
Report from Mr. Murphy.1
22
Rambus did not seek leave to submit Mr. Murphy’s Supplemental Report, nor did it tie the
23
admissibility of the opinions disclosed in that report to the outcome of its motion to strike. In
24
effect, Rambus asserts that the deadlines for the disclosure of expert opinions apply only to the
25
Manufacturers. As Rambus itself urged in a previous motion to strike, resolution of this dispute
That report responds to Mr. McAlexander’s disputed opinions.
26 1
27 28
Mr. Murphy’s January 13, 2009, Supplemental Expert Report was actually his second supplemental report. A previous supplemental report on validity was served on November 14, 2008. Both supplemental reports were served after the close of expert discovery and without leave of Court. MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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must seek “to preserve the fundamental fairness of the litigation process.” (’334 D.E. 2278 at 10
2
(citing Immersion Corp. v. Sony Computer Entm’t Am., Inc. C-02-0710, slip op. at 7 (N.D. Cal.,
3
Feb. 26, 2004).) On that basis alone, Rambus’s motion should be denied.
4
B.
5
The Opinions in Mr. McAlexander’s Second Supplemental Report Properly Responded to Rambus’s December 23, 2008 Letter
6
Rambus first requests that the Court strike portions of Mr. McAlexander’s report that
7
“relate to ‘programmable latency’ and ‘autoprecharge,’ not ‘memory device.’” (’334 D.E. 3107
8
at 6.) Rambus supports this request by ignoring the language of the asserted claims. Instead,
9
Rambus treats the term “memory device” as an abstract concept entirely divorced from the
10
parties’ validity disputes.
11
McAlexander’s report are directly related to “memory device,” because they provide his opinion
12
that it would have been obvious to a person having ordinary skill in the art to implement
13
“programmable latency” and “auto precharge” on a “memory device” as provided in the Court’s
14
modified construction.
Contrary to Rambus’s argument, the cited portions of Mr.
15
Where Rambus’s argument goes awry is in failing to address the actual live validity issues
16
in this case—whether the prior art anticipates or renders obvious implementing claimed features
17
on a memory device. For example, the dispute regarding the validity of claim 27 of the ’051
18
patent will involve a determination at trial of whether the prior art discloses or renders obvious
19
programmable write delay on a memory device. Similarly, the dispute regarding the validity of
20
claim 34 of the ’037 patent will involve a determination at trial of whether the prior art discloses
21
or renders obvious auto precharge on a memory device. Contrary to Rambus’s unsupported
22
allegation that the disputed opinions “have no bearing on the ‘memory device’ issue” (’334 D.E.
23
3107 at 5), whether it would have been obvious to a person having ordinary skill in the art to
24
implement those features on a memory device goes to the very heart of the “memory device”
25
issue.
26
Indeed, when the latency and auto precharge issues are placed in the context of the
27
opinions originally disclosed by Mr. McAlexander, the relevance of his supplemental opinions to
28
the “memory device” issue becomes even more apparent. For example, in his original report, Mr. MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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McAlexander opined that U.S. Patent No. 5,301,278 to Bowater et al. (“Bowater”) disclosed
2
implementing the latency and auto precharge features on a memory device comprising a memory
3
controller and memory chips. (See Lee Decl., Ex. C, 9/15/2008 McAlexander Corrected Report
4
at ¶¶ 285-90.)
5
construction of memory device. (’334 D.E. 2994 at 2.) Based on that purported conflict, Rambus
6
concludes without support that the latency and auto precharge features disclosed in Bowater
7
somehow disappear. To the contrary, and as demonstrated in Mr. McAlexander’s supplemental
8
report, those disclosures remain equally as relevant under the Court’s modified construction as
9
they were under the prior construction. The change is the precise wording of the issue, which
10
previously related to whether Bowater disclosed those features on a memory device, and now
11
relates to whether it would have been obvious to implement those features on a memory device.
12
Mr. McAlexander’s Second Supplemental Report provides his opinion on this “memory device”
13
issue as it relates to the validity of the claims in light of the prior art.
According to Rambus, that opinion conflicts with the Court’s narrowed
14
It is also important to note that Rambus’s letter, to which Mr. McAlexander was
15
responding, is not limited to arguing whether certain devices are memory controllers, and
16
therefore, are outside the Court’s modified construction of memory device. Instead, as to four of
17
the five references discussed, Rambus’s proposed new opinions extend to the disclosed memory
18
controllers “alone or in combination with separate memory chips.”
19
(emphasis added).) What a person having ordinary skill in the art would conclude from a prior art
20
disclosure of a memory controller “alone or in combination with” memory chips is not an issue
21
that was resolved by the Court’s modified construction. Mr. McAlexander should be permitted to
22
provide his opinion regarding these combinations, which is what he did in his supplemental
23
report.
24 25
C.
(’334 D.E. 2994 at 2
Rambus’s Request to Strike Mr. McAlexander’s Opinions Regarding Integration Is Without Merit
26
Rambus next requests that the Court strike portions of Mr. McAlexander’s Report directed
27
to “the existence of an integration trend.” (’334 D.E. 3107 at 6.) According to Rambus, these
28
opinions are improper because “Mr. McAlexander did include a lengthy section on integration in MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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his original report and cannot dispute this fact.” Id. at 7 (emphasis in original). Rambus does not,
2
of course, argue that the opinions are irrelevant or untimely. Instead, Rambus manufactures a
3
new “no bolstering” limitation on supplemental expert reports.
4
Rambus’s argument consists of an irrelevant citation to the disclosure requirement in the Federal
5
Rules of Civil Procedure. Id. at 7-8. Because Mr. McAlexander’s disclosure was pursuant to an
6
order from this Court, and responds directly to the contents and implications of Rambus’s
7
December 23 letter, there is no basis to argue that it was improper. Fed. R. Civ. P. 26(a)(2)(C).
The sole legal support for
8
The core of Rambus’s argument is that, because certain asserted claims as construed by
9
the Court already include a single-chip requirement, Mr. McAlexander “had every reason to
10
include opinions regarding integration in his original invalidity report.” (’334 D.E. 3107 at 6-7.)
11
This argument improperly shifts the focus of the dispute to claims unaffected by the Court’s
12
modified construction from the relevant claims.
13
undisputed fact that Rambus’s letter relates to the application of the prior art to the nine asserted
14
claims that include the “memory device” language.
15
This dispute should be resolved by the
Further, even if Rambus is correct that the three claims which do not include “memory
16
device” should be considered, Rambus’s argument fails.
17
construction, integration was a peripheral issue affecting only those three asserted claims and the
18
subset of features recited therein.2 In view of the Court’s modified construction, the integration
19
issue now touches all twelve asserted claims. The suggestion that Mr. McAlexander’s “reason to
20
include opinions regarding integration” remains unchanged is unsupportable.
Prior to the Court’s modified
21 22 23 24 25 26 27 28
2
The “integrated circuit” claims are claim 36 of the ’020 patent and claims 3 and 4 of the ’446 patent. Rambus argues that it “asserted claims with preambles narrower than ‘memory device’ . . . [f]or example . . . ‘synchronous semiconductor memory device.’” (’334 D.E. 3107 at 6). Nothing in that claim language—either as written or as previously construed by the Court— required a specific level of integration. Indeed, Rambus never sought to construe those “narrower” preambles separately. Regardless, the fact that a “memory device” is synchronous or is comprised of semiconductor material is irrelevant to the integration issue. MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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D.
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Rambus’s Request to Strike Mr. McAlexander’s Opinions Related to the Morgan Deposition Is Misleading
2 3
Rambus also objects to Mr. McAlexander’s citation to the “Morgan (CVAX) deposition”
4
to support his opinion “that it would have been obvious ‘to have integrated the programmable
5
timing control feature disclosed in CVAX.’” (’334 D.E. 3107 at 8.) Rambus’s argument is that
6
“integration has been an issue for Mr. McAlexander throughout this case.” Id. What Rambus
7
fails to tell the Court, however, is that all four claims that require programmable timing control
8
are “memory device” claims rather than “integrated circuit” claims.3 Integration was simply not a
9
live issue for those claims prior to the Court’s modified construction.
10
Mr. McAlexander’s Report properly addresses whether it would have been obvious to
11
integrate the timing control feature of CVAX onto a memory device as the Court has construed
12
that term. Rambus’s argument, which again relies upon excising the “memory device” language
13
from the claims of which they are a part, is in error.
14
E.
Rambus’s Request to Strike the Opinions Related to the Horowitz, Fu, and Moussouris Articles Should Be Denied
15 Rambus also requests that the Court strike Mr. McAlexander’s references to the Fu,
16 17
Horowitz, and Moussouris articles.
This request is based on the same flawed “bolstering”
18
argument discussed above. Again, these materials were properly discussed based on the content
19
and implications of Rambus’s December 23 letter and Rambus’s discussion of the Court’s
20
modified construction.
21
F.
The Manufacturers Properly Supplemented Their Section 282 Notices
22
Finally, Rambus requests that the Court strike the Manufacturers’ supplemental Section
23
282 Notices because the “deadline had passed.” (’334 D.E. 3107 at 9.) According to the current
24
schedule, trial is not set to begin until February 17, 2009, at the earliest. Rambus’s argument that
25
the December 30th and December 31st disclosures were outside the 30-day window, therefore, is
26
in error.
27 3
28
Claim 16 of the ’285 patent, claim 27 of the ’051 patent, claim 28 of the ’916 patent, and claim 4 of the ’696 patent.
MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
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In addition, as discussed above, the Court granted the Manufacturers leave to submit a
2
supplemental expert report in response to Rambus’s December 23 letter. It follows that the
3
Manufacturers also had good cause to disclose the prior art references discussed in the
4
supplemental report and to supplement their Section 282 Notices accordingly.
5
IV.
6 7
CONCLUSION For the foregoing reasons, the Manufacturers respectfully request that the Court deny
Rambus’s Motion to Strike.
8 9 10
Dated: January 26, 2009
11
By:
12
/s/ Jared Bobrow
JARED BOBROW (Bar No. 133712) Email: [email protected] SVEN RAZ (Bar No. _222262) Email: [email protected] WEIL GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: (650) 802-3034 Facsimile: (650) 802-3100
13 14 15 16 17
ELIZABETH STOTLAND WEISWASSER Email: [email protected] DAVID LENDER Email: [email protected] WEIL, GOTSHAL & MANGES LLP New York Office 767 Fifth Avenue New York, NY 10153 Telephone: (212) 310-8000 Facsimile: (646) 842-0505
18 19 20 21 22 23
WILLIAM C. PRICE (Bar No. 108542) Email: [email protected] HAROLD A. BARZA (Bar No. 80888) Email: [email protected] JON R. STEIGER (Bar No. 229814) Email: [email protected] ROBERT J. BECHER (Bar No. 193431) Email: [email protected] QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 865 South Figueroa Street, 10th Floor
24 25 26 27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
9
CASE NOS. 05-00334; 05-002298; 06-00244
Case 5:05-cv-00334-RMW
Document 3145
1
Filed 01/26/2009
Page 14 of 16
Los Angeles, CA 90017 Telephone: (213) 443-3000 Facsimile: (213) 443-3100
2 3
Attorneys for Defendants MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC.
4 5 6
By:
7
/s/ Robert Berezin
8
MATTHEW D. POWERS Email: matthew.powers @weil.com STEVEN S. CHERENSKY Email: [email protected] WEIL GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: (650) 802-3034 Facsimile: (650) 802-3100
9 10 11 12 13 14
ROBERT S. BEREZIN (pro hac vice) Email: [email protected] MATTHEW J. ANTONELLI (pro hac vice) Email: [email protected] WEIL, GOTSHAL & MANGES LLP New York Office 767 Fifth Avenue New York, NY 10153 Telephone: (212) 310-8000
15 16 17 18 19
Attorneys for Defendants SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., and SAMSUNG AUSTIN SEMICONDUCTOR, L.P.
20 21 22 23
By: /s/ DANIEL J. FURNISS (Bar No. 73531) Email: [email protected] THEODORE G. BROWN, III (Bar No. 114672) Email: [email protected] JULIE J. HAN (Bar No. 215279) Email: [email protected] TOWNSEND and TOWNSEND and CREW LLP 379 Lytton Avenue
24 25 26 27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
10
CASE NOS. 05-00334; 05-002298; 06-00244
Case 5:05-cv-00334-RMW
Document 3145
1
Filed 01/26/2009
Page 15 of 16
Palo Alto, California 94301 Telephone: (650) 326-2400 Facsimile: (650) 326-2422
2 3
KENNETH L NISSLY (Bar No. 77589) Email: [email protected] SUSAN van KEULEN (Bar No. 136060) Email: [email protected] O’MELVENY & MYERS LLP 2765 Sand Hill Road Menlo Park, California 94025 Telephone: (650) 473-2600 Facsimile: (650) 473-2601
4 5 6 7 8 9
KENNETH R. O’ROURKE (Bar No. 120144) Email: [email protected] WALLACE A. ALLAN (Bar No. 102054) Email: [email protected] O’MELVENY & MYERS LLP 400 South Hope Street, Suite 1060 Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407
10 11 12 13 14
Attorneys for HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR MANUFACTURING AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH
15 16 17 18 19
By:
20 21
/s/ Vickie L. Feeman
ROBERT E. FREITAS (Bar No. 80948) Email: [email protected] CRAIG R. KAUFMAN (Bar No. 159458)
22 23 24 25 26 27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
11
CASE NOS. 05-00334; 05-002298; 06-00244
Case 5:05-cv-00334-RMW
Document 3145
1
3 4 5 6
Attorneys for Defendants NANYA TECHNOLOGY CORPORATION and NANYA TECHNOLOGY CORPORATION U.S.A.
7 8 9
11 12 13 14
Page 16 of 16
Email: [email protected] VICKIE L. FEEMAN (Bar No. 177487) Email: [email protected] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: (650) 614-7400 Facsimile: (650) 614-7401
2
10
Filed 01/26/2009
ATTESTATION CLAUSE REGARDING SIGNATURES I hereby attest that I have on file permission to sign for counsel indicated by a “conformed” signature (/s/) within this document. /s/ Jared Bobrow (Bar No. 133712) Email: [email protected]
15 16 17 18 19 20 21 22 23 24 25 26 27 28 MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE
12
CASE NOS. 05-00334; 05-002298; 06-00244
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