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Case 5:05-cv-00334-RMW
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Attorneys for RAMBUS INC.
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MCKOOL SMITH
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Filed 02/02/2009
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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A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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Page 1 of 9
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]
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
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RAMBUS INC., Plaintiff, vs. HYNIX SEMICONDUCTOR INC., et al.,
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Defendants.
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) ) ) ) ) ) ) ) ) ) ) ) )
Case No. C 05-00334 RMW RAMBUS, INC.’S REPLY IN SUPPORT OF RAMBUS’S MOTION TO STRIKE (1) PORTIONS OF THE SECOND SUPPLEMENTAL MCALEXANDER EXPERT REPORT AND (2) SUPPLEMENTAL SECTION 282 NOTICES Judge: Hon. Ronald M. Whyte Date: February 5, 2009 Time: 9:00 a.m. Courtroom: 6, 4th Floor
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Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244 Austin 48387v7
Case 5:05-cv-00334-RMW
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RAMBUS INC., Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD.,
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et al.,
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Defendants. RAMBUS INC.,
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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Plaintiff, vs. MICRON TECHNOLOGY, INC., et al.,
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Defendants.
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Filed 02/02/2009
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Case No. C 05-002298 RMW
Case No. C 06-00244 RMW
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Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244 Austin 48387v7
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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Filed 02/02/2009
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The Manufacturers’ Opposition to Rambus’s motion to strike certain portions of Mr. McAlexander’s second supplemental report traffics in generalities, but nowhere explains why Mr. McAlexander’s newfound opinions would not have been just as relevant under the Court’s prior construction of “memory device.” In fact, the opinions to which Rambus objects are in no way tied to the clarified construction of “memory device” – indeed, Mr. McAlexander apparently seeks improperly to extend these opinions even to claims that do not contain the term “memory device.” The Manufacturers seek to use the Court’s clarified construction of “memory device” to inject opinions of Mr. McAlexander into the case that they could have, and should have, presented in Mr. McAlexander’s original report. The Court should strike the offending portions of Mr. McAlexander’s second supplemental report as well as the Manufacturers’ untimely supplemental section 282 notices.
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I.
THE COURT SHOULD STRIKE MR. MCALEXANDER’S OPINIONS PRESENTED UNDER THE SECTIONS “AUTOPRECHARGE” AND “PROGRAMMABLE LATENCY” OF HIS SUPPLEMENTAL REPORT, AS UNRELATED TO “MEMORY DEVICE”
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Mr. McAlexander’s second supplemental report contains sections entitled
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“autoprecharge” and “programmable latency,” that go beyond any conceivable ramifications of
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the clarified construction of “memory device.” Indeed, Mr. McAlexander does not even attempt
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to tie his new opinions to the Court’s clarified construction.
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The Manufacturers seek to justify Mr. McAlexander’s new opinions regarding
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“autoprecharge” and “programmable latency” by arguing that the term “memory device” cannot
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be divorced from the rest of the claim, Opp’n at 5, but this argument proves too much and would,
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apparently, justify any and all new opinions from Mr. McAlexander despite the Court’s
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admonition that Mr. McAlexander’s supplemental report should be narrowly focused. The
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Manufacturers do not even attempt to explain why Mr. McAlexander’s opinions regarding these
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other limitations would not have been equally relevant under the Court’s original construction of
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“memory device.” In fact, Mr. McAlexander’s report does not restrict these opinions to claims 1
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Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244 Austin 48387v7
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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For example, in paragraph 48, Mr. McAlexander discusses the purported mechanics of precharging in Bowater with reference to a “page mode operation,” but Mr. McAlexander does not mention any “memory device” or establish any link between his opinion on “page mode operation” and the clarified construction of “memory device.” Mr. McAlexander also does not appear to restrict his opinion to “memory device” claims. In paragraph 49, Mr. McAlexander opines that he thinks there is “nothing unique or inventive about sending the precharge information during the command instructing the memory to perform a read or write rather than after,” and opines that “the timing of the precharge information is simply a design choice.” Again, Mr. McAlexander’s opinion as to timing is unrelated to the construction of “memory device,” and does not appear to be restricted to “memory device” claims.
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Similarly, in paragraph 50, Mr. McAlexander opines that it would have been obvious to include precharge “in the art of packetized memory requests.” Again, there appears to be no link between this opinion and the term “memory device,” or any indication that the opinion is limited to “memory device” claims.
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are unrelated to that term).
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Filed 02/02/2009
that recite “memory device” (nor would there have been any reason to do so, since the opinions
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Mr. McAlexander was not granted permission to supplement his opinions so broadly, as they extend to opinions unrelated to the clarified construction of the term “memory device,” and reach even claims that do not recite this term. Accordingly, the Court should strike the portions of Mr. McAlexander’s report labeled “autoprecharge” and “programmable latency.” 1
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The Manufacturers appear to argue that they should be excused for submitting an overbroad report because Mr. Murphy thereafter submitted a report responsive to Mr. McAlexander’s opinions. See Opp’n at 4. The Manufacturers even go so far as to suggest that Mr. Murphy’s responsive report somehow causes “prejudice” to the Manufacturers. See id. But, if Mr. Murphy had not responded in his report, he would have had to respond at trial without having served an expert report. Thus, the Manufacturers’ claim of prejudice is exactly backwards. Rambus’s service of a responsive expert report helped guard against prejudice to the Manufacturers, but the Manufacturers’ overly broad supplemental report has prejudiced Rambus. 2 Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244
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II.
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THE COURT SHOULD STRIKE MR. MCALEXANDER’S OPINIONS REGARDING AN ALLEGED “INTEGRATION TREND”
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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The Manufacturers do not appear to dispute that the opinions in Mr. McAlexander’s
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supplemental report regarding a trend towards integration simply seek to bolster his earlier
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opinions on the same topic. Opp’n at 6-7. Instead, the Manufacturers take the position that they
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should be allowed to bolster Mr. McAlexander’s earlier opinions on the eve of trial because,
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prior to the Court’s recent ruling on “memory device,” “integration was a peripheral issue
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involving only those three asserted claims, [referring to claims reciting ‘integrated circuit’].”
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Opp’n at 7. That is not so.
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Integration has been a central issue since well before the Court issued its clarified
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“memory device” construction, impacting not only three “integrated circuit” claims, but also
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claims reciting, for example, a “synchronous dynamic random access memory device” and a
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“synchronous semiconductor memory device.” Nor is it the case, as the Manufacturers assert,
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that “Rambus never sought to construe these ‘narrower’ preambles separately.” Opp’n at n.2.
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To the contrary, the parties jointly construed “synchronous semiconductor memory device” as “a
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synchronous memory device constructed with semiconductor material,” and “synchronous
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dynamic random access memory device” as “a synchronous semiconductor memory device
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which includes one or more arrays of DRAM cells.” See Dkt. No. 157 (Joint Claim Construction
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Statement) at 3 (Emphases added.). In addition, the Court’s original July 10, 2008 claim
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construction order specifically notes that such “additional limits on the scope of ‘memory
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device’… demonstrat[e] that Rambus knew how to limit its claims to a single chip when it
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wished to do so.” Dkt. No. 1392 at 35.
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Hence integration has been more than a “peripheral” issue since well before the Court
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clarified its construction of “memory device” —a fact the Manufacturers explicitly acknowledge
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by having included material regarding the alleged trend towards integration in Mr.
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McAlexander’s opening report in the first place. Mr. McAlexander could and should have
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presented all of his opinions regarding an “integration trend” in his original report. The Court’s
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3 Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244
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clarification of the construction of “memory device” did not change the importance of “integration” to the Manufacturers’ invalidity arguments. As such, the Court should strike the portions of Mr. McAlexander’s report relating to an “integration trend,” as indicated in Rambus’s opening brief.
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III.
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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Mr. McAlexander failed to rely on the Morgan (CVAX) deposition in his original report, but claims that it has only now become relevant because of the Court’s clarified construction of “memory device.”2 There is no reason that Mr. McAlexander could not have relied on this deposition in a timely fashion. Indeed, Hynix played this very deposition in the Hynix I patent trial, so the Manufacturers were well aware of any relevance it may have to validity issues, and Mr. McAlexander could have addressed it in his original report. In addition, Mr. McAlexander could have addressed the “programmable timing control” features it purportedly makes obvious, independent of any construction of the term “memory device.”
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THE COURT SHOULD STRIKE MR. MCALEXANDER’S OPINIONS REGARDING THE MORGAN (CVAX) DEPOSITION AS WELL AS THE HOROWITZ, FU, AND MOUSSOURIS ARTICLES
Nonetheless, the Manufacturers argue that prior to the Court’s clarification of its construction of “memory device,” “integration was simply not a live issue” for programmable latency claims because “all four claims that require programmable timing control are ‘memory device’ claims rather than ‘integrated circuit’ claims.”
Opp’n at 8.
The Manufacturers’
argument is unavailing for two reasons. First, they fail to connect the alleged “programmable timing control” in the prior art and the Court’s “memory device” construction. Second, two of the four claims on which the Manufacturers rely in pressing this argument are not simply “memory device” claims, but claims to a “synchronous dynamic random access memory device.” See Claim 27 of the ‘051 Patent and Claim 4 of the ‘696 Patent. (Emphasis added.) As
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Mr. McAlexander should not be entitled to rely on the CVAX reference at all, because he has not asserted that it is an anticipatory reference and it is not included on the Manufacturers Selection of Obviousness Combinations. 4 Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244
Case 5:05-cv-00334-RMW
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A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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Filed 02/02/2009
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explained above, contrary to the Manufacturers’ argument that these preambles have no construction, the Joint Claim Construction Statement states that a “synchronous dynamic random access memory device” is “a synchronous semiconductor memory device which includes one or more arrays of DRAM cells.” (Emphasis added.) Integration therefore was an issue for these claims even before the Court clarified the “memory device” term. Accordingly, the alleged importance of integration does not justify Mr. McAlexander waiting to disclose his reliance on the Morgan (CVAX) deposition until his supplemental report.
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Similarly, because integration has been an issue for the Manufacturers throughout this case, regardless of the clarified construction of “memory device,” the Manufacturers should have disclosed Mr. McAlexander’s opinions with respect to the additional Fu, Horowitz, and Moussouris references in a timely fashion. The Manufacturers’ opposition does not provide any substantive response to Rambus’s motion with respect to these references, stating only that they were “properly discussed.” See Opp’n at 8 (Section E). For the reasons set forth in Rambus’s opening brief and in this reply with respect to the other portions of Mr. McAlexander’s report, the Court should strike these portions of Mr. McAlexander’s report as well.
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IV.
THE COURT SHOULD STRIKE THE MANUFACTURERS’ PURPORTED SUPPLEMENTAL SECTION 282 NOTICE
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The Manufacturers argue that their untimely supplemental Section 282 notices should not
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be stricken because after they submitted them, the Court continued the trial date.
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continuance, however, does not justify the Manufacturers’ supplementation of their Section 282
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notices with new alleged prior art. The short continuance was ordered solely to allow the parties
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and the Court to address entirely unrelated collateral estoppel issues, and did not reopen
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discovery or otherwise allow Rambus a meaningful opportunity to respond to the new references.
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The Manufacturers offer no excuse for their failure to include the supplemental
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references in their earlier disclosures. The Manufacturers’ continuing stream of late-disclosed
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prior art clearly prejudices Rambus.
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The
Already, the Manufacturers submitted the Bennett 5 Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244
Case 5:05-cv-00334-RMW
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reference, among others, very late in the litigation. Although one Micron attorney submitted a declaration stating that he himself had discovered it in 2008,3 after the briefing on that issue Rambus discovered that Micron had cited Bennett much earlier during the prosecution of one of its own patents (see, e.g., United States Patent No. 6,043,558 to Micron Technology, citing Bennett patent), raising the issue of exactly when Micron could and should have disclosed its reliance on the Bennett patent. At some point, there should be finality in the Manufacturers’ prior art disclosure. The Manufacturers served their untimely supplemental Section 282 notices too late and without any justification, and the notices should be stricken.
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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V.
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CONCLUSION For the foregoing reasons, and for all the reasons set forth in the briefing and supporting
papers, Rambus respectfully requests that this Court strike the Manufacturers’ untimely supplemental Section 282 disclosures as well as those portions of the McAlexander Second Supplemental Expert Report, as set out above and in Rambus’s moving papers, that do not fairly relate to the modification of the Court’s construction of the term “memory device” and that could have been disclosed earlier.
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Cf. Dkt. No. 1832 (Order on Rambus’s Motion to Strike) at 5 (“Although the Eisenberg Declaration does not clearly state that the Manufacturers were unaware of the Bennett patent until July 25, 2008, it does support the inference that the Manufacturers did not know of the Bennett patent when the October 2007 summary judgment filing deadline passed.”). 6 Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244
Case 5:05-cv-00334-RMW
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Dated: February 2, 2009
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Respectfully submitted,
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MUNGER, TOLLES & OLSON LLP SIDLEY AUSTIN LLP MCKOOL SMITH, P.C.
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/s/ Pierre J. Hubert Pierre J. Hubert Attorneys for Rambus Inc.
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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7 Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244
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Attorneys for RAMBUS INC.
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MCKOOL SMITH
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Filed 02/02/2009
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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A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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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]
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
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RAMBUS INC., Plaintiff, vs. HYNIX SEMICONDUCTOR INC., et al.,
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Defendants.
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) ) ) ) ) ) ) ) ) ) ) ) )
Case No. C 05-00334 RMW RAMBUS, INC.’S REPLY IN SUPPORT OF RAMBUS’S MOTION TO STRIKE (1) PORTIONS OF THE SECOND SUPPLEMENTAL MCALEXANDER EXPERT REPORT AND (2) SUPPLEMENTAL SECTION 282 NOTICES Judge: Hon. Ronald M. Whyte Date: February 5, 2009 Time: 9:00 a.m. Courtroom: 6, 4th Floor
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Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244 Austin 48387v7
Case 5:05-cv-00334-RMW
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RAMBUS INC., Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD.,
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et al.,
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Defendants. RAMBUS INC.,
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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Plaintiff, vs. MICRON TECHNOLOGY, INC., et al.,
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Defendants.
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Filed 02/02/2009
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Case No. C 05-002298 RMW
Case No. C 06-00244 RMW
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Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244 Austin 48387v7
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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The Manufacturers’ Opposition to Rambus’s motion to strike certain portions of Mr. McAlexander’s second supplemental report traffics in generalities, but nowhere explains why Mr. McAlexander’s newfound opinions would not have been just as relevant under the Court’s prior construction of “memory device.” In fact, the opinions to which Rambus objects are in no way tied to the clarified construction of “memory device” – indeed, Mr. McAlexander apparently seeks improperly to extend these opinions even to claims that do not contain the term “memory device.” The Manufacturers seek to use the Court’s clarified construction of “memory device” to inject opinions of Mr. McAlexander into the case that they could have, and should have, presented in Mr. McAlexander’s original report. The Court should strike the offending portions of Mr. McAlexander’s second supplemental report as well as the Manufacturers’ untimely supplemental section 282 notices.
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I.
THE COURT SHOULD STRIKE MR. MCALEXANDER’S OPINIONS PRESENTED UNDER THE SECTIONS “AUTOPRECHARGE” AND “PROGRAMMABLE LATENCY” OF HIS SUPPLEMENTAL REPORT, AS UNRELATED TO “MEMORY DEVICE”
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Mr. McAlexander’s second supplemental report contains sections entitled
17
“autoprecharge” and “programmable latency,” that go beyond any conceivable ramifications of
18
the clarified construction of “memory device.” Indeed, Mr. McAlexander does not even attempt
19
to tie his new opinions to the Court’s clarified construction.
20
The Manufacturers seek to justify Mr. McAlexander’s new opinions regarding
21
“autoprecharge” and “programmable latency” by arguing that the term “memory device” cannot
22
be divorced from the rest of the claim, Opp’n at 5, but this argument proves too much and would,
23
apparently, justify any and all new opinions from Mr. McAlexander despite the Court’s
24
admonition that Mr. McAlexander’s supplemental report should be narrowly focused. The
25
Manufacturers do not even attempt to explain why Mr. McAlexander’s opinions regarding these
26
other limitations would not have been equally relevant under the Court’s original construction of
27
“memory device.” In fact, Mr. McAlexander’s report does not restrict these opinions to claims 1
28
Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244 Austin 48387v7
Case 5:05-cv-00334-RMW
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5 6 7
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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For example, in paragraph 48, Mr. McAlexander discusses the purported mechanics of precharging in Bowater with reference to a “page mode operation,” but Mr. McAlexander does not mention any “memory device” or establish any link between his opinion on “page mode operation” and the clarified construction of “memory device.” Mr. McAlexander also does not appear to restrict his opinion to “memory device” claims. In paragraph 49, Mr. McAlexander opines that he thinks there is “nothing unique or inventive about sending the precharge information during the command instructing the memory to perform a read or write rather than after,” and opines that “the timing of the precharge information is simply a design choice.” Again, Mr. McAlexander’s opinion as to timing is unrelated to the construction of “memory device,” and does not appear to be restricted to “memory device” claims.
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Similarly, in paragraph 50, Mr. McAlexander opines that it would have been obvious to include precharge “in the art of packetized memory requests.” Again, there appears to be no link between this opinion and the term “memory device,” or any indication that the opinion is limited to “memory device” claims.
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are unrelated to that term).
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that recite “memory device” (nor would there have been any reason to do so, since the opinions
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Mr. McAlexander was not granted permission to supplement his opinions so broadly, as they extend to opinions unrelated to the clarified construction of the term “memory device,” and reach even claims that do not recite this term. Accordingly, the Court should strike the portions of Mr. McAlexander’s report labeled “autoprecharge” and “programmable latency.” 1
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The Manufacturers appear to argue that they should be excused for submitting an overbroad report because Mr. Murphy thereafter submitted a report responsive to Mr. McAlexander’s opinions. See Opp’n at 4. The Manufacturers even go so far as to suggest that Mr. Murphy’s responsive report somehow causes “prejudice” to the Manufacturers. See id. But, if Mr. Murphy had not responded in his report, he would have had to respond at trial without having served an expert report. Thus, the Manufacturers’ claim of prejudice is exactly backwards. Rambus’s service of a responsive expert report helped guard against prejudice to the Manufacturers, but the Manufacturers’ overly broad supplemental report has prejudiced Rambus. 2 Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244
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II.
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THE COURT SHOULD STRIKE MR. MCALEXANDER’S OPINIONS REGARDING AN ALLEGED “INTEGRATION TREND”
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
2 3
The Manufacturers do not appear to dispute that the opinions in Mr. McAlexander’s
4
supplemental report regarding a trend towards integration simply seek to bolster his earlier
5
opinions on the same topic. Opp’n at 6-7. Instead, the Manufacturers take the position that they
6
should be allowed to bolster Mr. McAlexander’s earlier opinions on the eve of trial because,
7
prior to the Court’s recent ruling on “memory device,” “integration was a peripheral issue
8
involving only those three asserted claims, [referring to claims reciting ‘integrated circuit’].”
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Opp’n at 7. That is not so.
10
Integration has been a central issue since well before the Court issued its clarified
11
“memory device” construction, impacting not only three “integrated circuit” claims, but also
12
claims reciting, for example, a “synchronous dynamic random access memory device” and a
13
“synchronous semiconductor memory device.” Nor is it the case, as the Manufacturers assert,
14
that “Rambus never sought to construe these ‘narrower’ preambles separately.” Opp’n at n.2.
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To the contrary, the parties jointly construed “synchronous semiconductor memory device” as “a
16
synchronous memory device constructed with semiconductor material,” and “synchronous
17
dynamic random access memory device” as “a synchronous semiconductor memory device
18
which includes one or more arrays of DRAM cells.” See Dkt. No. 157 (Joint Claim Construction
19
Statement) at 3 (Emphases added.). In addition, the Court’s original July 10, 2008 claim
20
construction order specifically notes that such “additional limits on the scope of ‘memory
21
device’… demonstrat[e] that Rambus knew how to limit its claims to a single chip when it
22
wished to do so.” Dkt. No. 1392 at 35.
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Hence integration has been more than a “peripheral” issue since well before the Court
24
clarified its construction of “memory device” —a fact the Manufacturers explicitly acknowledge
25
by having included material regarding the alleged trend towards integration in Mr.
26
McAlexander’s opening report in the first place. Mr. McAlexander could and should have
27
presented all of his opinions regarding an “integration trend” in his original report. The Court’s
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3 Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244
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clarification of the construction of “memory device” did not change the importance of “integration” to the Manufacturers’ invalidity arguments. As such, the Court should strike the portions of Mr. McAlexander’s report relating to an “integration trend,” as indicated in Rambus’s opening brief.
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III.
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
10 11 12 13 14 15
Mr. McAlexander failed to rely on the Morgan (CVAX) deposition in his original report, but claims that it has only now become relevant because of the Court’s clarified construction of “memory device.”2 There is no reason that Mr. McAlexander could not have relied on this deposition in a timely fashion. Indeed, Hynix played this very deposition in the Hynix I patent trial, so the Manufacturers were well aware of any relevance it may have to validity issues, and Mr. McAlexander could have addressed it in his original report. In addition, Mr. McAlexander could have addressed the “programmable timing control” features it purportedly makes obvious, independent of any construction of the term “memory device.”
16 17 18 19 20 21 22 23 24
THE COURT SHOULD STRIKE MR. MCALEXANDER’S OPINIONS REGARDING THE MORGAN (CVAX) DEPOSITION AS WELL AS THE HOROWITZ, FU, AND MOUSSOURIS ARTICLES
Nonetheless, the Manufacturers argue that prior to the Court’s clarification of its construction of “memory device,” “integration was simply not a live issue” for programmable latency claims because “all four claims that require programmable timing control are ‘memory device’ claims rather than ‘integrated circuit’ claims.”
Opp’n at 8.
The Manufacturers’
argument is unavailing for two reasons. First, they fail to connect the alleged “programmable timing control” in the prior art and the Court’s “memory device” construction. Second, two of the four claims on which the Manufacturers rely in pressing this argument are not simply “memory device” claims, but claims to a “synchronous dynamic random access memory device.” See Claim 27 of the ‘051 Patent and Claim 4 of the ‘696 Patent. (Emphasis added.) As
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2
Mr. McAlexander should not be entitled to rely on the CVAX reference at all, because he has not asserted that it is an anticipatory reference and it is not included on the Manufacturers Selection of Obviousness Combinations. 4 Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244
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A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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explained above, contrary to the Manufacturers’ argument that these preambles have no construction, the Joint Claim Construction Statement states that a “synchronous dynamic random access memory device” is “a synchronous semiconductor memory device which includes one or more arrays of DRAM cells.” (Emphasis added.) Integration therefore was an issue for these claims even before the Court clarified the “memory device” term. Accordingly, the alleged importance of integration does not justify Mr. McAlexander waiting to disclose his reliance on the Morgan (CVAX) deposition until his supplemental report.
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Similarly, because integration has been an issue for the Manufacturers throughout this case, regardless of the clarified construction of “memory device,” the Manufacturers should have disclosed Mr. McAlexander’s opinions with respect to the additional Fu, Horowitz, and Moussouris references in a timely fashion. The Manufacturers’ opposition does not provide any substantive response to Rambus’s motion with respect to these references, stating only that they were “properly discussed.” See Opp’n at 8 (Section E). For the reasons set forth in Rambus’s opening brief and in this reply with respect to the other portions of Mr. McAlexander’s report, the Court should strike these portions of Mr. McAlexander’s report as well.
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IV.
THE COURT SHOULD STRIKE THE MANUFACTURERS’ PURPORTED SUPPLEMENTAL SECTION 282 NOTICE
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The Manufacturers argue that their untimely supplemental Section 282 notices should not
20
be stricken because after they submitted them, the Court continued the trial date.
21
continuance, however, does not justify the Manufacturers’ supplementation of their Section 282
22
notices with new alleged prior art. The short continuance was ordered solely to allow the parties
23
and the Court to address entirely unrelated collateral estoppel issues, and did not reopen
24
discovery or otherwise allow Rambus a meaningful opportunity to respond to the new references.
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The Manufacturers offer no excuse for their failure to include the supplemental
26
references in their earlier disclosures. The Manufacturers’ continuing stream of late-disclosed
27
prior art clearly prejudices Rambus.
28
The
Already, the Manufacturers submitted the Bennett 5 Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244
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reference, among others, very late in the litigation. Although one Micron attorney submitted a declaration stating that he himself had discovered it in 2008,3 after the briefing on that issue Rambus discovered that Micron had cited Bennett much earlier during the prosecution of one of its own patents (see, e.g., United States Patent No. 6,043,558 to Micron Technology, citing Bennett patent), raising the issue of exactly when Micron could and should have disclosed its reliance on the Bennett patent. At some point, there should be finality in the Manufacturers’ prior art disclosure. The Manufacturers served their untimely supplemental Section 282 notices too late and without any justification, and the notices should be stricken.
9
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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V.
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CONCLUSION For the foregoing reasons, and for all the reasons set forth in the briefing and supporting
papers, Rambus respectfully requests that this Court strike the Manufacturers’ untimely supplemental Section 282 disclosures as well as those portions of the McAlexander Second Supplemental Expert Report, as set out above and in Rambus’s moving papers, that do not fairly relate to the modification of the Court’s construction of the term “memory device” and that could have been disclosed earlier.
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Cf. Dkt. No. 1832 (Order on Rambus’s Motion to Strike) at 5 (“Although the Eisenberg Declaration does not clearly state that the Manufacturers were unaware of the Bennett patent until July 25, 2008, it does support the inference that the Manufacturers did not know of the Bennett patent when the October 2007 summary judgment filing deadline passed.”). 6 Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244
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Dated: February 2, 2009
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Respectfully submitted,
2
MUNGER, TOLLES & OLSON LLP SIDLEY AUSTIN LLP MCKOOL SMITH, P.C.
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/s/ Pierre J. Hubert Pierre J. Hubert Attorneys for Rambus Inc.
6 7 Austin 48387v3
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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7 Rambus’s Reply in Support of Rambus’s Motion to Strike Portions of the Second Supplemental McAlexander Expert Report and Supplemental Section 282 Notices Case Nos. 05-00334, 05-002298, and 06-00244
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