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Case 5:05-cv-00334-RMW

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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, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Email: [email protected] Email: [email protected] Email: [email protected]

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Peter A. Detre (SBN 182619) Rosemarie T. Ring (SBN 220769) Jennifer L. Polse (SBN 219202) MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105-2907 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Email: [email protected] Email: [email protected] Email: [email protected]

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Attorneys for RAMBUS INC.

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Filed 01/27/2009

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Rollin A. Ransom (SBN 196126) SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013-1010 Telephone: (213) 896-6000 Facsimile: (2130 896-6600 E mail: [email protected] Pierre J. Hubert (Pro Hac Vice) Craig N. Tolliver (Pro Hac Vice) MCKOOL SMITH PC 300 West 6th Street, Suite 1700 Austin, TX 78701 Telephone: (512) 692-8700 Facsimile: (512) 692-8744 Email: [email protected] Email: [email protected]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

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RAMBUS INC.,

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Plaintiff,

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CASE NO. C 05-00334 RMW

vs. HYNIX SEMICONDUCTOR INC., et al.,

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Defendants.

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RAMBUS INC.’S OPPOSITION TO SAMSUNG’S MOTION TO TAKE JUDICIAL NOTICE AND TO RE-OPEN THE RECORD OF THE UNCLEAN HANDS SEPTEMBER TRIAL SOLELY TO ADMIT EVIDENCE RELATED TO COLLATERAL ESTOPPEL, AND TO HYNIX’S REQUEST FOR JUDICIAL NOTICE AND NOTICE OF JOINDER IN SAMSUNG’S MOTION TO TAKE JUDICIAL NOTICE

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Date: January 30, 2009 Courtroom: 6 Judge: Hon. Ronald M. Whyte

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Trial Date: February 17, 2009

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RAMBUS’S OPP. TO SAMSUNG AND HYNIX’S REQUESTS FOR JUDICIAL NOTICE; CASE NOS. 05-334; 05-2298; 06-244; 00-20905

Case 5:05-cv-00334-RMW

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RAMBUS INC.,

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Filed 01/27/2009

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CASE NO. C 05-02298 RMW Plaintiff,

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Document 3155

vs. SAMSUNG ELECTRONICS CO., LTD., et al.,

5 Defendants. 6 RAMBUS INC.,

CASE NO. C 06-00244 RMW

7 Plaintiff, 8 vs. 9 MICRON TECHNOLOGY INC., et al., 10 Defendants. 11 12

HYNIX SEMICONDUCTOR, INC., et al.,

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CASE NO.: CV 00-20905 RMW

Plaintiffs,

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vs.

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RAMBUS INC.,

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Defendant.

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

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Semiconductor, Inc., and Samsung Austin Semiconductor, L.P. (collectively “Samsung”) have

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asked this Court to take judicial notice of a raft of exhibits in support of Samsung’s motion for

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collateral estoppel and summary judgment (the “Samsung Exhibits”). (See Samsung’s Notice of

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Motion and Motion to Take Judicial Notice and to Re-Open the Record of the Unclean Hands

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September Trial Solely to Admit Evidence Related to Collateral Estoppel, Jan. 19, 2009

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(“Samsung RFN”).) These exhibits include everything from court judgments (e.g., Declaration of

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Steven Cherensky (“Cherensky Decl.”) at ¶ 3), to trial transcripts (e.g., id. at ¶ 26), to

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demonstrative charts apparently prepared by Samsung for its summary judgment motion (e.g., id.

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at ¶ 22). Midday on January 26, 2009, Hynix Semiconductor Inc., Hynix Semiconductor

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America Inc., Hynix Semiconductor Manufacturing America Inc., Hynix Semiconductor U.K.

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Ltd., and Hynix Semiconductor Deutschland GmbH (collectively “Hynix”) joined the Samsung

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RFN and requested judicial notice of 14 additional documents (the “Hynix Exhibits”). (See

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Hynix’s Request for Judicial Notice and Notice of Joinder in Samsung’s Motion to Take Judicial

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Notice, January 26, 2009 (“Hynix RFN”).) Hynix’s requests all relate to PTO reexamination

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documents. (See Hynix RFN, at 1-2.) For the reasons set forth below, Rambus opposes Samsung

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and Hynix’s requests.

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Rambus agrees that court documents are public records of which judicial notice

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may be taken. The permissible extent of such notice, however, is (1) the existence of the

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documents, (2) that the documents were filed or generated in a given proceeding, and (3) that the

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documents include certain statements. It is absolutely not proper to take judicial notice of these

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documents for the truth of the statements contained therein. See Lee v. City of Los Angeles, 250

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F.3d 668, 689-90 (9th Cir. 2001) (“[W]hen a court takes judicial notice of another court’s

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opinion, it may do so not for the truth of the facts recited therein, but for the existence of the

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opinion, which is not subject to reasonable dispute over its authenticity.” (internal quotation

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marks and citation omitted)).

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Thus, to take one example, Rambus does not oppose this Court’s taking notice of, and Samsung’s arguing from, the fact that on September 23, 2008, Jay Shim testified in this 7001274.1

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Court. (See Cherensky Decl. at ¶ 26; id. Ex. 25 [Sept. Trial Tr.] at 304:19-306:21.) But Rambus

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emphatically does oppose Samsung’s use of that testimony in order to assert the truth of Shim’s

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allegations: “Rambus, desperate to avoid its one-time choice of forum in Virginia in order to

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remain before this Court, issued an ultimatum to Samsung in June 2005: either permit Rambus to

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select the forum should litigation ensue in thirty days or face immediate termination of the license

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and litigation.” (See Samsung’s Motion for Entry of J. of Unenforceability of Rambus’s Asserted

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Patents or, in the Alternative, for Summ. J. (“Samsung CE Mot.”), 5 (citing Ex. 25).) To the

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extent Samsung is attempting to use its request for judicial notice of these documents as a way of

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establishing the truth of such contested facts, the request is improper and must be denied. The

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same problem arises with, inter alia, all of the briefing filed in the Delaware Court as to which

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Samsung seeks judicial notice (Cherensky Decl. ¶¶ 12-18), the contents of which—rather than the

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existence of which—Samsung employs in its brief. (See, e.g., Samsung CE Mot., at 11 n.8.)

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Distinct from these documents—which can be judicially noticed, but not taken as

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true—are Samsung’s charts, of which judicial notice cannot be taken at all. (See Cherensky Decl.

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¶ 23-24; id. at Exs. 22-23.) Samsung has articulated no grounds on which these would be the

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proper subject of judicial notice, and in fact they are not subject to such notice. A party to a

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litigation is plainly not “a source whose accuracy cannot reasonably be questioned” for purposes

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of judicial notice in that very action. Fed. R. Evid. 201(b).

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Accordingly, Rambus categorically opposes judicial notice of Samsung’s Exhibits

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22 and 23, and opposes judicial notice of all other Samsung Exhibits to the extent Samsung or

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Hynix seeks judicial notice of the truth of their contents, rather than the fact of their existence.

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Rambus also opposes judicial notice of all Hynix Exhibits because they are

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irrelevant to any issue before the Court, including whether to stay the action. See Rosco, Inc. v.

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Mirror Lite Co., 2007 WL 2296827, at *3 (E.D.N.Y. Aug. 6, 2007) (refusing to stay injunction

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pending outcome of reexamination proceedings in light of prejudice to patentee); Magnesystems,

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Inc. v. Nikken, Inc., 1994 WL 808421, at *7 (C.D. Cal. Aug. 8, 1994) (refusing to stay injunction

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pending outcome of reexamination proceedings because “this Court may not abdicate its

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responsibility to adjudicate this matter to the PTO”). Cf. Fresnius Med. Care Holdings, Inc. v. 7001274.1

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Baxter Int’l, Inc., 2007 WL 1655625, at *5 (N.D. Cal. June 7, 2007) (refusing to stay damages

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phase of trial despite first office action rejecting claims where “[o]nly once Fresnius received an

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adverse judgment—nearly four years after initiating the litigation before this Court rather than

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seeking the alternative route of reexamination—did it suggest that these proceedings should yield

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to the reexamination process”); NTP v. Research In Motion, Ltd., 397 F. Supp. 2d 785, 788 (E.D.

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Va. 2005) (refusing to stay proceedings pending reexamination, despite issuance of first office

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actions, where “any attempt at suggesting a likely time frame and outcome of the PTO

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reexamination process is merely speculation”). To the extent the Court concludes that the fact of

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the reexamination proceedings is relevant, Rambus nonetheless opposes judicial notice of the

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contents of those proceedings.

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Finally, Rambus opposes Samsung’s request to reopen the record of its September

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spoliation trial. (See Samsung RFN, at 5-6.) Samsung has made no showing that the documents

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it now seeks to put into evidence were unavailable to it at the time of trial, nor has it made any

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effort to show that these documents are not duplicative or cumulative of evidence already

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submitted, or even relevant to the issues in the case. “The purpose of a Rule 59(a)(2) motion ‘is

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to correct manifest errors of law or fact, or, in some limited situations, to present newly

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discovered evidence’ … not ‘to introduce new evidence that was available at the time of trial but

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was not proffered, to advance new theories, or to secure a rehearing on the merits.’” Waugh v.

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Williams Companies, Inc., 2008 WL 3835729, at *1 (N.D. Okla. 2008) (quoting Lyons v.

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Jefferson Bank & Trust, 793 F.Supp. 989, 991 (D. Colo. 1992)).

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DATED: January 26, 2009

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MUNGER, TOLLES & OLSON LLP SIDLEY AUSTIN LLP McKOOL SMITH P.C.

24 By:

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/s/ Gregory P. Stone GREGORY P. STONE

Attorneys for RAMBUS INC.

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