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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
Document 3170
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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 FOR LEAVE TO FILE MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING UNCONTESTED CLAIM LIMITATIONS Judge: Hon. Ronald M. Whyte Date: February 5, 2009 Time: 9:00 a.m. Courtroom: 6, 4th Floor
24 25 26 27 28 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244 Austin 48388v5
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
Document 3170
Plaintiff, vs. MICRON TECHNOLOGY, INC., et al.,
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Defendants.
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Filed 02/02/2009
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Page 2 of 9
Case No. C 05-002298 RMW
Case No. C 06-00244 RMW
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244 Austin 48388v5
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 fails to meet their burden of coming forward with evidence on the merits to counter Rambus’s motion for summary judgment.1
Indeed, the
Manufacturers do not even address most of the claim limitations that are the subject of Rambus’s motion. Their only arguments on the merits consist of (1) an argument going to a single claim limitation based on their having mistaken one limitation for another; and (2) Nanya’s argument with respect to its DDR3 product, following Nanya’s refusal to enter into a stipulation with respect to this product pursuant to the Court’s invitation.
That is the sum total of the
Manufacturers’ opposition on the merits of the underlying motion.
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Rather than addressing Rambus’s motion on the merits, the Manufacturers spend the bulk of their Opposition complaining that the motion is duplicative of a motion in limine, or untimely. First, Rambus’s underlying motion is a summary judgment motion, not a motion in limine. Absent this motion or some other mechanism, Rambus would need to spend substantial trial time satisfying its burden of proving infringement by presenting evidence of infringement with respect to claim limitations that cannot, and will not, be contested by the Manufacturers’ experts. Second, the Manufacturers should not be heard to argue that Rambus’s motion came when “trial was scheduled to begin less than one week later” because week over week, the Manufacturers have ignored repeated requests from Rambus to reach an appropriate stipulation on the present issues following receipt of the Court’s summary judgment ruling, with Rambus’s first request coming approximately one week after the Court’s order on summary judgment.
Rambus
respectfully requests that the Court grant its motion for partial summary judgment, so that Rambus need present to the jury only the infringement-related evidence that is actually disputed by the parties.
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1
The parties agreed that the Manufacturers would oppose Rambus’s underlying motion on the merits in addition to opposing Rambus’s motion for leave. See email from Hynix’s counsel, attached to the Declaration of Craig Tolliver (“Tolliver Decl.) filed concurrently here with, Ex. 1. 1 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244 Austin 48388v5
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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I.
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Filed 02/02/2009
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CONTRARY TO THE MANUFACTURERS’ ARGUMENTS, RAMBUS’S MOTION FOR SUMMARY JUDGMENT IS DIFFERENT FROM ITS MOTION IN LIMINE; IT IS NECESSARY TO AVOID WASTE OF TIME AT TRIAL; AND IT IS TIMELY A.
Rambus’s Motion is Different from Its Motion in Limine, and Would Greatly Reduce the Number of Issues to Be Presented to the Jury
The Manufacturers spend most of their Opposition chastising Rambus for filing what the Manufacturers call a “useless” motion. Although the Manufacturers pretend not to appreciate the distinction between the present motion and Rambus’s motion in limine, Rambus’s present motion would obviate the need for Rambus to spend a substantial amount of trial time presenting infringement-related evidence that the Manufacturers’ experts cannot and will not dispute. The Manufacturers point to the substantial similarities between Rambus’s present Motion and Rambus’s motion in limine no. 7 in an attempt to convince the Court that Rambus’s present motion is unnecessary. See Mnfrs. Opp. at 1. However, while the two motions address many of the same claim limitations, the relief sought is different. The motion in limine, of course, targets what arguments the Manufacturers may raise in opposing infringement, whereas Rambus’s motion for summary judgment seeks judgment as a matter of law as to certain limitations that the Manufacturers’ experts cannot and will not dispute. Absent the Court granting the latter motion, Rambus would still need to meet its burden on infringement by introducing evidence of infringement as to all the claim limitations, disputed or not. Rambus sought leave to file the present motion in order to avoid taking the jury’s and the Court’s time with infringement evidence relating to claim limitations that the Manufacturers’ cannot and will not contest. The Manufacturers next argue that Rambus’s motion, in part, seeks an entry of summary judgment for claim limitations that the Court already held to be infringed. See Mnfrs. Opp. at 2. The Manufacturers are correct, but again miss the point. As Rambus explained in its motion, the Court, in its summary judgment ruling, granted summary judgment as to certain of the Manufacturers’ non-infringement arguments, but with the exception of claim 16 of the ’285 Patent, on which the Court granted summary judgment in its entirety, did not expressly identify the claim limitations resolved by the Court’s order. Rambus’s present motion simply sets forth 2 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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the claim limitations that the Manufacturers can no longer contest in light of the Court’s order. While Rambus agrees that the Court’s summary judgment ruling is dispositive as to these limitations, Rambus seeks to streamline the trial by identifying and resolving disagreements, should any exist, as to how the Court’s summary judgment holdings map onto the actual claim language. Rambus believes that the parties should have been able to reach agreement as to the claim limitations resolved by the Court’s summary judgment.
Indeed, the Manufacturers, when
proposing not to contest infringement, filed letters with the Court identifying the very same remaining disputed infringement issues as Rambus identifies in its current motion. See Rambus Mot., Attachment A, at 1-2, 5. Unfortunately, the Manufacturers refused Rambus’s repeated invitations to enter into a stipulation, necessitating the present motion. See Rambus Mot., Attachment A, at 5-6; see also Section I(B), infra.
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B.
Rambus’s Motion Is Timely
The Manufacturers should not be heard to argue that Rambus’s motion came when “trial was scheduled to begin less than one week later.” For weeks the Manufacturers ignored repeated requests from Rambus to reach an appropriate stipulation on the present issues following receipt of the Court’s summary judgment ruling, with Rambus’s first request coming approximately one week after the Court’s order on summary judgment, as set forth in Rambus’s motion for leave and again below. The Court ruled on Rambus’s original motion for summary judgment of infringement on November 24, 2008. With the exception of claim 16 of the ’285 Patent, for which the Court granted summary judgment, the Court’s partial summary judgment ruling of infringement focused on claim features and/or arguments relating to those claim features, rather than the corresponding claim language. See November 24, 2008 Order, Dkt. No. 1611, cv-244 Case. Accordingly, Rambus sought to reach agreement with the Manufacturers as to the specific claim limitations subject to the Court’s ruling. 3 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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that remained in dispute in view of the Court’s Order and the noninfringement arguments raised in the Manufacturers’ own expert reports served on September 26, 2008. See Rambus Mot. For Leave at 1. The Manufacturers ignored Rambus’s request altogether. See id. Rambus re-forwarded the same stipulation and asked for a response on December 9, 2008. The Manufacturers again ignored Rambus’s request. See id. On December 19, 2008, the Manufacturers sent the first of several letters to the Court in which they advised that the Manufacturers did not plan to contest infringement and proposed a protocol to remove infringement as an issue from the case. See id. at 2. After the deficiencies in the Manufacturers’ protocol were revealed, Rambus re-forwarded the stipulation yet again on December 29, 2008, again asking for a response. Micron and Samsung again ignored Rambus altogether. Nanya and Hynix both responded in a vague manner, stating that it would not be “appropriate” to enter into the stipulation or that the stipulation could not be agreed to “under the circumstances.” See id. at 2.
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proposed stipulation on December 3, 2008, seeking to reach agreement as to the claim limitations
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Filed 02/02/2009
As explained in Rambus’s opening brief, Rambus first provided the Manufacturers with a
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Given this background, the Manufacturers should not be heard to argue that Rambus’s motion came “less than one week” before trial (which it did not) or otherwise is untimely. Following the November 24, 2008 Order, the parties should have been able to reach agreement as to what the Court’s ruling covered, and Rambus approached the Manufacturers on that point. After it became apparent that the Manufacturers’ proposal to not contest infringement was untenable, and after the Manufacturers repeatedly ignored Rambus’s attempt to work towards an agreement, Rambus promptly filed its motion for leave with the Court.2
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2
To the extent the Manufacturers argue that Rambus’s motion comes after the deadline for summary judgment briefing, the Manufacturers completely ignore that Rambus’s earlier summary judgment briefing did, in fact, separately identify individual limitations as bases for summary judgment. See Dkt. 725, -334 Rambus’s Consolidated Reply; Dkt. 725-2 Exhibit (identifying and collecting limitations of claims as bases for summary judgment). 4 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244
Case 5:05-cv-00334-RMW
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Filed 02/02/2009
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2
RAMBUS’S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE THE MANUFACTURERS’ OPPOSITION RAISES NO GENUINE DISPUTE ON THE MERITS
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The parties agreed that the Manufacturers’ opposition would involve not just the motion
4
for leave to file the summary judgment motion, but also the underlying summary judgment
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motion. See Tolliver Decl. Ex. 1 (January 15, 2009 email from T. Brown to P. Detre) (Hynix’s
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counsel stating his understanding that the briefing would involve both motions).
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Manufacturers, however, failed to raise any legitimate substantive dispute with Rambus’s
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motion, despite the Manufacturers’ burden on opposing a motion for summary judgment.
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II.
Document 3170
The
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The first part of Rambus’s motion concerns claim limitations subject to the Court’s
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partial summary judgment ruling, as the Manufacturers now admit. See Mnfrs. Opp. at 2. The
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Manufacturers do not dispute that the claim limitations identified in Rambus’s motion are
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covered by the Court’s summary judgment ruling. To the contrary, the Manufacturers readily
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agree that the claim limitations identified by Rambus have been resolved:
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First, it seeks to have the Court enter partial summary judgment for those claim elements highlighted in Exhibit B to its motion. To what end? The Court has already entered partial summary judgment of infringement of these claim elements. Mnfrs. Opp. at 3. Rambus’s motion therefore should be granted as to the “resolved” claim limitations, listed with particularity in Exhibit B to Rambus’s Motion. See Rambus Mot., Attachment A, at Ex. B (List of Resolved Claim Limitations, appended to Rambus’s brief). With regard to the second part of Rambus’s motion, relating to the uncontested claim limitations, the Manufacturers raise only one issue. The Manufacturers state that they contested the “receiving the operation code . . . synchronously with respect to an external clock signal” language in claim 16 of the ‘863 Patent, referring to page 42 of the Hoffman expert report. See Mnfrs. Opp. at 3. Page 42 of Hoffman’s report, however, contends that the products do not “[receive] data synchronously with respect to the external clock signal,” and refers to section VI.B.1. of his report. See Dkt. No. 2344, Ex. A (Hoffman Report) at 42, ¶ 120 (emphasis added). Section VI.B.1 of his report contains Mr. Hoffman’s opinion regarding the timing relationship between the external clock, the data strobe, and data to be input during a write 5 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244
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operation -- not the receipt of an operation code. See id. at 16. While, Mr. Hoffman has a separate section of his report that concerns the sampling of an operation code in response to the rising edge of an external clock, see Dkt. No. 2344, Ex. A (Hoffman Report) at 29, he does not dispute that the operation code is received synchronously with respect to the external clock.3 The Manufacturers’ argument with respect to the single claim limitation that they address is simply mistaken.
The Manufacturers identify no other alleged deficiency relating to the
uncontested claim limitations identified by Rambus, despite the Manufacturers’ burden. Accordingly, the Court should grant Rambus’s motion pertaining to the uncontested claim limitations. See Rambus Mot., Attachment A, at Ex. A (List of Uncontested Claim Limitations).
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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III.
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THE COURT ALSO SHOULD GRANT RAMBUS’S MOTION AS TO NANYA’S DDR3 DEVICES As the Court previously recognized, Rambus did not possess a Nanya DDR3 datasheet at
the time of its original motion, but now does. See Rambus Mot. at 10-11. Mr. Murphy relied on the Nanya DDR3 datasheet in his expert report analysis regarding infringement, an analysis which he is prepared to present at trial. See id. In response to Rambus’s motion, Nanya offers no reason why its DDR3 device should be treated differently from the other Manufacturers’ DDR3 devices. Nor can Nanya explain why its own DDR3 product would not be subject to the Court’s summary judgment determination, just as the other devices were adjudicated to infringe based on nearly identical datasheet evidence. As with Rambus’s attempts to reach agreement with the Manufacturers as to uncontested claim limitations discussed above, Nanya simply ignored repeated requests from Rambus that it enter into a stipulation pursuant to the invitation in the Court’s November 24, 2008 order. In view of the parties’ unsuccessful attempts to reach a stipulation, the Court should grant Rambus’s motion as to Nanya’s DDR3 device.
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3
Mr. Hoffman admits that his argument that operation codes are not received in response to the rising edge of an external clock signal pertains only to two claims -- not claim 16 of the ’863 Patent, the claim discussed on the page of his report referenced by the Manufacturers. See id. 6 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244
Case 5:05-cv-00334-RMW
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IV.
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CONCLUSION For the foregoing reasons, Rambus respectfully requests that the Court grant Rambus’s
summary judgment motion attached to its motion for leave at Attachment A, so that the infringement issues for trial are streamlined.
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Dated: February 2, 2009
Respectfully submitted,
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MUNGER, TOLLES & OLSON LLP SIDLEY AUSTIN LLP MCKOOL SMITH, P.C.
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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/s/ Pierre Hubert
12 Attorneys for Rambus Inc. 13 Austin 48388v3
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7 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations 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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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 FOR LEAVE TO FILE MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING UNCONTESTED CLAIM LIMITATIONS Judge: Hon. Ronald M. Whyte Date: February 5, 2009 Time: 9:00 a.m. Courtroom: 6, 4th Floor
24 25 26 27 28 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244 Austin 48388v5
Case 5:05-cv-00334-RMW
1
RAMBUS INC., Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD.,
5
et al.,
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Defendants. RAMBUS INC.,
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Document 3170
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
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244 Austin 48388v5
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 fails to meet their burden of coming forward with evidence on the merits to counter Rambus’s motion for summary judgment.1
Indeed, the
Manufacturers do not even address most of the claim limitations that are the subject of Rambus’s motion. Their only arguments on the merits consist of (1) an argument going to a single claim limitation based on their having mistaken one limitation for another; and (2) Nanya’s argument with respect to its DDR3 product, following Nanya’s refusal to enter into a stipulation with respect to this product pursuant to the Court’s invitation.
That is the sum total of the
Manufacturers’ opposition on the merits of the underlying motion.
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Rather than addressing Rambus’s motion on the merits, the Manufacturers spend the bulk of their Opposition complaining that the motion is duplicative of a motion in limine, or untimely. First, Rambus’s underlying motion is a summary judgment motion, not a motion in limine. Absent this motion or some other mechanism, Rambus would need to spend substantial trial time satisfying its burden of proving infringement by presenting evidence of infringement with respect to claim limitations that cannot, and will not, be contested by the Manufacturers’ experts. Second, the Manufacturers should not be heard to argue that Rambus’s motion came when “trial was scheduled to begin less than one week later” because week over week, the Manufacturers have ignored repeated requests from Rambus to reach an appropriate stipulation on the present issues following receipt of the Court’s summary judgment ruling, with Rambus’s first request coming approximately one week after the Court’s order on summary judgment.
Rambus
respectfully requests that the Court grant its motion for partial summary judgment, so that Rambus need present to the jury only the infringement-related evidence that is actually disputed by the parties.
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1
The parties agreed that the Manufacturers would oppose Rambus’s underlying motion on the merits in addition to opposing Rambus’s motion for leave. See email from Hynix’s counsel, attached to the Declaration of Craig Tolliver (“Tolliver Decl.) filed concurrently here with, Ex. 1. 1 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244 Austin 48388v5
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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I.
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Filed 02/02/2009
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CONTRARY TO THE MANUFACTURERS’ ARGUMENTS, RAMBUS’S MOTION FOR SUMMARY JUDGMENT IS DIFFERENT FROM ITS MOTION IN LIMINE; IT IS NECESSARY TO AVOID WASTE OF TIME AT TRIAL; AND IT IS TIMELY A.
Rambus’s Motion is Different from Its Motion in Limine, and Would Greatly Reduce the Number of Issues to Be Presented to the Jury
The Manufacturers spend most of their Opposition chastising Rambus for filing what the Manufacturers call a “useless” motion. Although the Manufacturers pretend not to appreciate the distinction between the present motion and Rambus’s motion in limine, Rambus’s present motion would obviate the need for Rambus to spend a substantial amount of trial time presenting infringement-related evidence that the Manufacturers’ experts cannot and will not dispute. The Manufacturers point to the substantial similarities between Rambus’s present Motion and Rambus’s motion in limine no. 7 in an attempt to convince the Court that Rambus’s present motion is unnecessary. See Mnfrs. Opp. at 1. However, while the two motions address many of the same claim limitations, the relief sought is different. The motion in limine, of course, targets what arguments the Manufacturers may raise in opposing infringement, whereas Rambus’s motion for summary judgment seeks judgment as a matter of law as to certain limitations that the Manufacturers’ experts cannot and will not dispute. Absent the Court granting the latter motion, Rambus would still need to meet its burden on infringement by introducing evidence of infringement as to all the claim limitations, disputed or not. Rambus sought leave to file the present motion in order to avoid taking the jury’s and the Court’s time with infringement evidence relating to claim limitations that the Manufacturers’ cannot and will not contest. The Manufacturers next argue that Rambus’s motion, in part, seeks an entry of summary judgment for claim limitations that the Court already held to be infringed. See Mnfrs. Opp. at 2. The Manufacturers are correct, but again miss the point. As Rambus explained in its motion, the Court, in its summary judgment ruling, granted summary judgment as to certain of the Manufacturers’ non-infringement arguments, but with the exception of claim 16 of the ’285 Patent, on which the Court granted summary judgment in its entirety, did not expressly identify the claim limitations resolved by the Court’s order. Rambus’s present motion simply sets forth 2 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244
Case 5:05-cv-00334-RMW
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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the claim limitations that the Manufacturers can no longer contest in light of the Court’s order. While Rambus agrees that the Court’s summary judgment ruling is dispositive as to these limitations, Rambus seeks to streamline the trial by identifying and resolving disagreements, should any exist, as to how the Court’s summary judgment holdings map onto the actual claim language. Rambus believes that the parties should have been able to reach agreement as to the claim limitations resolved by the Court’s summary judgment.
Indeed, the Manufacturers, when
proposing not to contest infringement, filed letters with the Court identifying the very same remaining disputed infringement issues as Rambus identifies in its current motion. See Rambus Mot., Attachment A, at 1-2, 5. Unfortunately, the Manufacturers refused Rambus’s repeated invitations to enter into a stipulation, necessitating the present motion. See Rambus Mot., Attachment A, at 5-6; see also Section I(B), infra.
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B.
Rambus’s Motion Is Timely
The Manufacturers should not be heard to argue that Rambus’s motion came when “trial was scheduled to begin less than one week later.” For weeks the Manufacturers ignored repeated requests from Rambus to reach an appropriate stipulation on the present issues following receipt of the Court’s summary judgment ruling, with Rambus’s first request coming approximately one week after the Court’s order on summary judgment, as set forth in Rambus’s motion for leave and again below. The Court ruled on Rambus’s original motion for summary judgment of infringement on November 24, 2008. With the exception of claim 16 of the ’285 Patent, for which the Court granted summary judgment, the Court’s partial summary judgment ruling of infringement focused on claim features and/or arguments relating to those claim features, rather than the corresponding claim language. See November 24, 2008 Order, Dkt. No. 1611, cv-244 Case. Accordingly, Rambus sought to reach agreement with the Manufacturers as to the specific claim limitations subject to the Court’s ruling. 3 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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that remained in dispute in view of the Court’s Order and the noninfringement arguments raised in the Manufacturers’ own expert reports served on September 26, 2008. See Rambus Mot. For Leave at 1. The Manufacturers ignored Rambus’s request altogether. See id. Rambus re-forwarded the same stipulation and asked for a response on December 9, 2008. The Manufacturers again ignored Rambus’s request. See id. On December 19, 2008, the Manufacturers sent the first of several letters to the Court in which they advised that the Manufacturers did not plan to contest infringement and proposed a protocol to remove infringement as an issue from the case. See id. at 2. After the deficiencies in the Manufacturers’ protocol were revealed, Rambus re-forwarded the stipulation yet again on December 29, 2008, again asking for a response. Micron and Samsung again ignored Rambus altogether. Nanya and Hynix both responded in a vague manner, stating that it would not be “appropriate” to enter into the stipulation or that the stipulation could not be agreed to “under the circumstances.” See id. at 2.
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proposed stipulation on December 3, 2008, seeking to reach agreement as to the claim limitations
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As explained in Rambus’s opening brief, Rambus first provided the Manufacturers with a
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Given this background, the Manufacturers should not be heard to argue that Rambus’s motion came “less than one week” before trial (which it did not) or otherwise is untimely. Following the November 24, 2008 Order, the parties should have been able to reach agreement as to what the Court’s ruling covered, and Rambus approached the Manufacturers on that point. After it became apparent that the Manufacturers’ proposal to not contest infringement was untenable, and after the Manufacturers repeatedly ignored Rambus’s attempt to work towards an agreement, Rambus promptly filed its motion for leave with the Court.2
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2
To the extent the Manufacturers argue that Rambus’s motion comes after the deadline for summary judgment briefing, the Manufacturers completely ignore that Rambus’s earlier summary judgment briefing did, in fact, separately identify individual limitations as bases for summary judgment. See Dkt. 725, -334 Rambus’s Consolidated Reply; Dkt. 725-2 Exhibit (identifying and collecting limitations of claims as bases for summary judgment). 4 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
Filed 02/02/2009
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2
RAMBUS’S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE THE MANUFACTURERS’ OPPOSITION RAISES NO GENUINE DISPUTE ON THE MERITS
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The parties agreed that the Manufacturers’ opposition would involve not just the motion
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for leave to file the summary judgment motion, but also the underlying summary judgment
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motion. See Tolliver Decl. Ex. 1 (January 15, 2009 email from T. Brown to P. Detre) (Hynix’s
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counsel stating his understanding that the briefing would involve both motions).
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Manufacturers, however, failed to raise any legitimate substantive dispute with Rambus’s
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motion, despite the Manufacturers’ burden on opposing a motion for summary judgment.
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II.
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The
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The first part of Rambus’s motion concerns claim limitations subject to the Court’s
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partial summary judgment ruling, as the Manufacturers now admit. See Mnfrs. Opp. at 2. The
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Manufacturers do not dispute that the claim limitations identified in Rambus’s motion are
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covered by the Court’s summary judgment ruling. To the contrary, the Manufacturers readily
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agree that the claim limitations identified by Rambus have been resolved:
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First, it seeks to have the Court enter partial summary judgment for those claim elements highlighted in Exhibit B to its motion. To what end? The Court has already entered partial summary judgment of infringement of these claim elements. Mnfrs. Opp. at 3. Rambus’s motion therefore should be granted as to the “resolved” claim limitations, listed with particularity in Exhibit B to Rambus’s Motion. See Rambus Mot., Attachment A, at Ex. B (List of Resolved Claim Limitations, appended to Rambus’s brief). With regard to the second part of Rambus’s motion, relating to the uncontested claim limitations, the Manufacturers raise only one issue. The Manufacturers state that they contested the “receiving the operation code . . . synchronously with respect to an external clock signal” language in claim 16 of the ‘863 Patent, referring to page 42 of the Hoffman expert report. See Mnfrs. Opp. at 3. Page 42 of Hoffman’s report, however, contends that the products do not “[receive] data synchronously with respect to the external clock signal,” and refers to section VI.B.1. of his report. See Dkt. No. 2344, Ex. A (Hoffman Report) at 42, ¶ 120 (emphasis added). Section VI.B.1 of his report contains Mr. Hoffman’s opinion regarding the timing relationship between the external clock, the data strobe, and data to be input during a write 5 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244
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operation -- not the receipt of an operation code. See id. at 16. While, Mr. Hoffman has a separate section of his report that concerns the sampling of an operation code in response to the rising edge of an external clock, see Dkt. No. 2344, Ex. A (Hoffman Report) at 29, he does not dispute that the operation code is received synchronously with respect to the external clock.3 The Manufacturers’ argument with respect to the single claim limitation that they address is simply mistaken.
The Manufacturers identify no other alleged deficiency relating to the
uncontested claim limitations identified by Rambus, despite the Manufacturers’ burden. Accordingly, the Court should grant Rambus’s motion pertaining to the uncontested claim limitations. See Rambus Mot., Attachment A, at Ex. A (List of Uncontested Claim Limitations).
MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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III.
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THE COURT ALSO SHOULD GRANT RAMBUS’S MOTION AS TO NANYA’S DDR3 DEVICES As the Court previously recognized, Rambus did not possess a Nanya DDR3 datasheet at
the time of its original motion, but now does. See Rambus Mot. at 10-11. Mr. Murphy relied on the Nanya DDR3 datasheet in his expert report analysis regarding infringement, an analysis which he is prepared to present at trial. See id. In response to Rambus’s motion, Nanya offers no reason why its DDR3 device should be treated differently from the other Manufacturers’ DDR3 devices. Nor can Nanya explain why its own DDR3 product would not be subject to the Court’s summary judgment determination, just as the other devices were adjudicated to infringe based on nearly identical datasheet evidence. As with Rambus’s attempts to reach agreement with the Manufacturers as to uncontested claim limitations discussed above, Nanya simply ignored repeated requests from Rambus that it enter into a stipulation pursuant to the invitation in the Court’s November 24, 2008 order. In view of the parties’ unsuccessful attempts to reach a stipulation, the Court should grant Rambus’s motion as to Nanya’s DDR3 device.
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3
Mr. Hoffman admits that his argument that operation codes are not received in response to the rising edge of an external clock signal pertains only to two claims -- not claim 16 of the ’863 Patent, the claim discussed on the page of his report referenced by the Manufacturers. See id. 6 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244
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IV.
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CONCLUSION For the foregoing reasons, Rambus respectfully requests that the Court grant Rambus’s
summary judgment motion attached to its motion for leave at Attachment A, so that the infringement issues for trial are streamlined.
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Dated: February 2, 2009
Respectfully submitted,
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MUNGER, TOLLES & OLSON LLP SIDLEY AUSTIN LLP MCKOOL SMITH, P.C.
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MCKOOL SMITH
A PROFESSIONAL CORPORATION • ATTORNEYS DALLAS, TEXAS
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/s/ Pierre Hubert
12 Attorneys for Rambus Inc. 13 Austin 48388v3
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7 Rambus’s Reply in Support of Rambus’s Motion for Leave to File Motion for Partial Summary Judgment Regarding Uncontested Claim Limitations Case Nos. 05-00334, 05-002298, and 06-00244
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