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EXHIBIT 20
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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RAMBUS INC.,
) ) PLAINTIFF, ) ) VS. ) ) HYNIX SEMICONDUCTOR, INC., ) HYNIX SEMICONDUCTOR AMERICA ) INC., HYNIX SEMICONDUCTOR ) MANUFACTURING AMERICA INC., ) ) SAMSUNG ELECTRONICS CO., ) LTD., SAMSUNG ELECTRONICS ) AMERICA, INC., SAMSUNG ) SEMICONDUCTOR, INC., SAMSUNG) AUSTIN SEMICONDUCTOR, L.P, ) ) NANYA TECHNOLOGY ) CORPORATION, NANYA ) TECHNOLOGY CORPORATION USA, ) ) ) DEFENDANTS. ) ____________________________) ) RAMBUS INC., ) ) PLAINTIFF, ) ) VS. ) ) SAMSUNG ELECTRONICS CO., ) LTD., SAMSUNG ELECTRONICS ) AMERICA, INC., SAMSUNG ) SEMICONDUCTOR, INC., SAMSUNG) AUSTIN SEMICONDUCTOR, L.P, ) ) DEFENDANTS. ) ____________________________)
C-05-00334 RMW C-05-02298 RMW C-06-00244 RMW SAN JOSE, CALIFORNIA JANUARY 14, 2009 PAGES 1-68
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RAMBUS INC.
) ) PLAINTIFF, ) ) VS. ) ) MICRON TECHNOLOGY, INC. AND ) MICRON SEMICONDUCTOR ) PRODUCTS, INC., ) ) DEFENDANTS. ) ____________________________)
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TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE RONALD M. WHYTE UNITED STATES DISTRICT JUDGE
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A P P E A R A N C E S:
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FOR RAMBUS:
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MUNGER, TOLLES & OLSON BY: GREGORY P. STONE, FRED ROWLEY, AND MARK R. YOHALEM 355 SOUTH GRAND AVE, 35TH FLOOR LOS ANGELES, CALIFORNIA 90071
16 BY: ROSEMARIE T. RING 560 MISSION STREET, 27TH FLOOR SAN FRANCISCO, CALIFORNIA 94105
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SIDLEY, AUSTIN, LLP BY: ROLLIN A. RANSOM 555 W. FIFTH STREET, SUITE 4000 LOS ANGELES, CALIFORNIA 90013
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FOR SAMSUNG:
WEIL, GOTSHAL & MANGES BY: MATTHEW D. POWERS AND STEVEN S. CHERENSKY 201 REDWOOD SHORES PARKWAY REDWOOD SHORES, CALIFORNIA 94065
APPEARANCES CONTINUED ON NEXT PAGE
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1 2
APPEARANCES (CONTINUED)
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FOR MICRON:
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WEIL, GOTSHAL & MANGES BY: JARED BOBROW 201 REDWOOD SHORES PARKWAY REDWOOD SHORES, CALIFORNIA
94065
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FOR NANYA:
ORRICK, HERRINGTON & SUTCLIFFE BY: ROBERT E. FREITAS 1000 MARSH ROAD MENLO PARK, CALIFORNIA 94025
FOR HYNIX:
O'MELVENY & MYERS, LLP BY: KENNETH L. NISSLY 2765 SAND HILL ROAD MENLO PARK, CALIFORNIA
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94025
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TOWNSEND AND TOWNSEND AND CREW BY: THEODORE G. BROWN, III 379 LYTTON AVENUE PALO ALTO, CALIFORNIA 94301
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OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR CERTIFICATE NUMBER 9595
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1
SAN JOSE, CALIFORNIA
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JANUARY 14, 2009
P R O C E E D I N G S
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(WHEREUPON, COURT CONVENED AND THE
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FOLLOWING PROCEEDINGS WERE HELD:)
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THE COURT:
GOOD AFTERNOON, EVERYONE.
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MR. STONE:
GOOD AFTERNOON, YOUR HONOR.
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MR. BOBROW:
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THE COURT:
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OUGHT TO BE GIVEN AN OPPORTUNITY TO BRIEF THE
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EFFECT OF JUDGE ROBINSON'S ORDER AND WHAT THAT
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REQUIRES THIS COURT TO DO; AND IF THEY FEEL THAT A
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SUMMARY JUDGMENT MOTION IS APPROPRIATE, THAT THEY
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MAKE THAT MOTION BASED ON THE SCHEDULE THEY
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PROPOSE.
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SCHEDULED, AND MY THOUGHT IS THAT FEBRUARY 16TH
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SHOULD BE THE TRIAL DATE, AND WE'LL SET A COUPLE OF
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PRETRIAL SESSIONS IN THE WEEK BEFORE.
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THE COURT:
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IT SEEMS TO ME THAT THAT ACCOMPLISHES
GOOD AFTERNOON, YOUR HONOR. I'M GOING TO GIVE YOU SOME
THOUGHTS, AND THEN I'LL BRIEFLY HEAR COMMENT FROM ANYONE WHO WISHES TO MAKE COMMENT. MY THINKING IS THAT THE MANUFACTURERS
I ALSO FEEL THAT WE SHOULD KEEP THE TRIAL
THE REPORTER:
FEBRUARY 16TH IS A
HOLIDAY. FEBRUARY 17TH, THEN.
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FAIRNESS TO BOTH SIDES IN THE SENSE THAT IT ALLOWS
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ISSUES TO BE RAISED AND RESOLVED, BUT DOES NOT
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UNREASONABLY PUT OFF THE TRIAL IF THAT'S THE
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APPROPRIATE WAY TO GO.
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THERE ARE TWO BASIC APPROACHES THAT COULD BE TAKEN
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WITH, OBVIOUSLY, PROBABLY REFINEMENTS TO EACH.
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NEEDS TO BE DONE TO ENTER JUDGMENT IN THE
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HYNIX/RAMBUS DISPUTE; TO FINISH THE ISSUES THAT ARE
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UNDER SUBMISSION FROM HAVING BEEN TRIED IN THE
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CONSOLIDATED CASE AND IN THE SEPARATE
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RAMBUS/SAMSUNG LITIGATION, OR ASPECT OF THE
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CONSOLIDATED LITIGATION; AND FOR THE COURT THEN --
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THEN HYNIX WOULD BE IN A POSITION TO FULLY APPEAL
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AND THE COURT COULD CERTIFY FOR APPEAL THE CLAIM
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CONSTRUCTION RULING IN THE CONSOLIDATED
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PROCEEDINGS, THE JURY VERDICT IN THE CONSOLIDATED
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PROCEEDINGS, THE SPOLIATION ISSUE WITH SAMSUNG AND
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THE LICENSING ISSUE WITH SAMSUNG; AND STAY THE
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PATENT TRIAL PENDING RESOLUTION OF THESE ISSUES ON
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APPEAL.
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THAT BEING SAID, IT SEEMS TO ME THAT
BUT IT SEEMS TO ME THAT ONE WAY TO PROCEED WOULD BE FOR THE COURT TO FINISH UP WHAT
THE OTHER APPROACH, IT SEEMS TO ME, WOULD BE TO GO FORWARD WITH THE PATENT TRIAL AS, AS IT
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NOW IS PENDING, WITH PROBABLY A STAY AS TO MICRON.
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I FEEL, AT LEAST TENTATIVELY, THAT MICRON
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AND RAMBUS HAD THEIR DAY IN COURT ON THE SPOLIATION
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ISSUE, ALTHOUGH THE DECISION IS CONTRARY TO MY
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CONCLUSION ON THE ISSUE IN HYNIX, BUT THAT'S WHERE
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THEY, MICRON AND RAMBUS, TRIED THE CASE AND THE
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RESULT IS WHAT IT IS.
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THE PARTIES, I WOULD LIKE TO HAVE THEM BRIEFLY
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ADDRESS THE BENEFITS OF -- TO THE PARTIES IF I
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ADOPTED ONE OF THE TWO PROPOSALS THAT I JUST
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OUTLINED, AND THE PREJUDICE OR DETRIMENT TO THE
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PARTIES IF I ADOPTED ONE OF THE TWO PROPOSALS.
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MY THOUGHT WITH RESPECT TO THE BRIEFING
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SCHEDULE, TO SOME EXTENT I AGREE WITH RAMBUS THAT
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THE ISSUE OF COLLATERAL ESTOPPEL, RES JUDICATA
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ISSUE PRECLUSION HAS BEEN PREVIOUSLY BRIEFED, AND I
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THINK EVERYBODY MAY NOT AGREE, BUT EVERYBODY'S GOT
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A PRETTY GOOD IDEA AS TO WHAT THEY FEEL THE LAW
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PROVIDES IN THAT REGARD.
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RESPECT TO THE APPLICATION IN THIS PARTICULAR
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SETTING THAT PROBABLY DESERVE SOME MORE ATTENTION.
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SO WHEN WE GET TO HEARING FROM EACH OF
THERE ARE, HOWEVER, SOME ISSUES WITH
AND I ALSO THINK THAT, GIVEN WHAT'S OCCURRED, THAT THE PARTIES HAVE A RIGHT TO MAKE A
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MOTION AS TO WHAT THEY FEEL -- OR WHAT THEY SUBMIT
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IS THE CONSEQUENCE OF WHAT'S HAPPENED.
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ISSUES, BUT I THINK I'LL WAIT AND SEE WHAT EACH OF
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YOU HAS TO SAY, AND PERHAPS RAISE SOME QUESTIONS
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WITH YOU WHEN YOU PERHAPS TOUCH ON THOSE ISSUES.
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SO LET ME START BY HEARING FROM MICRON.
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MR. BOBROW:
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AS INDICATED IN THE PAPERS, OBVIOUSLY IN
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TERMS OF A BRIEFING SCHEDULE, IF YOU FEEL THAT IT
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IS APPROPRIATE TO BRIEF, THAT'S FINE.
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OUR BELIEF WAS THAT, AT LEAST AS TO MICRON, THIS
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ISSUE COULD BE RESOLVED FORTHWITH, IN OTHER WORDS,
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WITHOUT BRIEFING.
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FOR A MOTION FOR SUMMARY JUDGMENT AND THAT'S INDEED
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WHAT WE'LL FILE AND WE'LL DO IT ON THE SCHEDULE.
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UPCOMING ACTION OVERLAP ABOUT HALF OF THEM, AM I
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CORRECT, OR --
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MR. BOBROW:
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THE COURT:
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I HAVE SOME OTHER THOUGHTS ON SOME
THANK YOU, YOUR HONOR.
FRANKLY, FROM OUR REVIEW OF THE RECORD,
BUT I UNDERSTAND YOUR REQUEST
THE COURT:
WHAT ABOUT THE -- THERE IS
OVERLAP -- LET ME -- MR. NISSLY MADE A NICE CHART. THE CLAIMS THAT ARE AT ISSUE IN THE
THERE ARE --- THAT ARE COVERED BY THE
ACTION IN DELAWARE?
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MR. BOBROW:
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IN DELAWARE, FOUR OF WHICH OVERLAP WITH PATENTS
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THAT ARE PART OF THE CASE THAT IS SET FOR TRIAL IN
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THE NEAR FUTURE.
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SO FOUR OF THE PATENTS ARE IDENTICAL.
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THE REST OF THEM STEM FROM THE
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FARMWALD-HOROWITZ FAMILY, AND THE REST OF THEM
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INCLUDE APPLICATIONS FOR WHICH JUDGE ROBINSON FOUND
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THERE HAD BEEN SPOLIATION.
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SPECIFICALLY LOOKED AT MYSELF, BUT THAT WAS AN
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ISSUE THAT I THOUGHT PERHAPS THE PARTIES MIGHT NEED
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TO ADDRESS, AND THAT IS WHETHER OR NOT THE
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MISCONDUCT THAT JUDGE ROBINSON FOUND INFECTS ALL
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THE PATENT CLAIMS AT ISSUE BEFORE THIS COURT, OR
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ARE THERE SOME THAT AREN'T INFECTED?
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THEM, BUT IN WAYS IN ADDITION TO THE FACT THAT SHE
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SPECIFICALLY FOUND SPOLIATION AS TO THE FILES THAT
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LESTER VINCENT PURGED AT MR. KARP'S DIRECTION.
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BY HER BY CLEAR AND CONVINCING EVIDENCE OF BAD
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FAITH; WE HAVE A SPECIFIC FINDING OF PREJUDICE; A
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SPECIFIC FINDING OF A DUTY TO SUSPEND THE DOCUMENT
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RETENTION AND TO, IN FACT, RETAIN DOCUMENTS.
THE COURT:
MR. BOBROW:
YES.
THERE WERE TWO PATENTS
THAT'S -- THAT I HAVE NOT
YEAH.
IT INFECTS ALL OF
BUT BEYOND THAT, AGAIN, WE HAVE A FINDING
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THE COURT:
BUT THOSE WERE ALL ONLY WITH
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MR. BOBROW:
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IN OTHER WORDS, WHETHER THERE WERE THESE
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PATENTS-IN-SUIT HERE AND THOSE WERE THE CLAIMS THAT
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WERE IN FILE, ON FILE IN DELAWARE, THEY WOULD HAVE
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TRIED THE EXACT SAME SPOLIATION CASE.
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HAVE DIFFERED BY ONE WITNESS OR ONE PIECE OF
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EVIDENCE.
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I'M SAYING IS HER -- MAYBE I DIDN'T SAY IT VERY
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WELL.
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MR. BOBROW:
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THE COURT:
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AREN'T THE SAME CLAIMS, AREN'T ALL OF THE CLAIMS
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THAT ARE AT ISSUE IN THIS CASE.
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MR. BOBROW:
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FOUR PATENTS THAT ARE IDENTICAL, AND THE REST OF
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THEM ARE IN THE SAME FAMILY, THAT'S CORRECT.
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IS, AND I THINK MAYBE -- I MAY BE WRONG -- BUT I
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THINK RAMBUS IS TAKING THE POSITION, IN PART, THAT
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THERE IS NOT INFECTION OF AT LEAST THOSE CLAIMS
RESPECT TO THE CLAIMS AT ISSUE IN HER CASE?
THE COURT:
NO, I DON'T THINK SO AT ALL.
IT WOULD NOT
YOU MAY BE RIGHT, BUT WHAT
HER DECISION SAYS, "THESE CLAIMS ARE UNENFORCEABLE BECAUSE OF RAMBUS'S CONDUCT."
THE COURT:
YES, THAT'S CORRECT. THOSE CLAIMS DON'T COVER --
THAT'S CORRECT.
RIGHT.
THERE ARE
SO WHAT I'M SAYING
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THAT WEREN'T AT ISSUE BEFORE HER.
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MR. BOBROW:
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IT IS WRONG.
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IT'S WRONG IN OUR PAPERS AND, AGAIN, TO THE EXTENT
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THAT THE COURT WISHES BRIEFING ON THAT, WE'RE HAPPY
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TO MOVE FOR SUMMARY JUDGMENT AND ADDRESS THAT
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SPECIFIC ISSUE.
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SAYING IS THAT I THINK THAT IS AN ISSUE AND I DON'T
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KNOW THAT THAT DOESN'T REQUIRE A MOTION.
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TERMS OF PUSHING BACK THE TRIAL, I THINK THAT THAT,
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BUT ACCOMPANIED BY YOUR SECOND PROPOSAL, IS WHAT
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MICRON WOULD FAVOR HERE.
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TO AS BETWEEN MICRON AND RAMBUS, WE THINK THAT THIS
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ENDS THE CASE.
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RIGHT.
I -- THAT MAY BE.
I THINK WE DEMONSTRATED WHY
I THINK THAT, AS WE TEE IT UP, THERE IS IDENTITY OF ISSUE DOWN THE LINE, AND WHEN YOU LOOK AT THE NINTH CIRCUIT TEST, WHICH LOOKS AT -THE COURT:
MR. BOBROW:
YOU MAY BE RIGHT.
ALL I'M
FAIR ENOUGH, AND WE WILL GO
AHEAD ON THE SCHEDULE AND MAKE THAT MOTION. AS FAR AS THE SECOND ASPECT OF IT IN
IN OTHER WORDS, WE WOULD PROCEED WITH OUR MOTION FOR SUMMARY JUDGMENT. GIVEN THE MUTUALITY THAT YOU'VE ALLUDED
EFFECTIVELY WHAT'S HAPPENED IS WE HAVE
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TRIED THE THIRD PHASE OF THIS CASE IN DELAWARE, AND
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BASED UPON RAMBUS'S REPRESENTATIONS AND THE WHOLE
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WAY THAT THIS HAS BEEN STRUCTURED, WE THINK IT
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WOULD BE CRAZY FOR MICRON TO GO AHEAD WITH THIS
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TRIAL WHEN WE BELIEVE STRONGLY THAT THE PATENTS ARE
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UNENFORCEABLE AS AGAINST MICRON AND WE'D BE
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HAVING -- SPENDING HUNDREDS OF THOUSANDS IF NOT
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MILLIONS OF DOLLARS TO PROCEED WITH THAT TRIAL.
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REMEMBERING CORRECTLY, THAT SUGGESTED THAT THE
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TRIAL DATE OUGHT TO BE SLIPPED ENOUGH SO THAT THE
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PARTIES COULD SEPARATE OUT THE -- THEIR POSITIONS
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WITH RESPECT TO JUDGE ROBINSON'S RULING FROM HAVING
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TO FURTHER PREPARE FOR TRIAL, SO YOU DIDN'T HAVE TO
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DO BOTH AT THE SAME TIME.
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BRIEFING SCHEDULE, I THINK A FEBRUARY 16TH -- 17TH
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START DATE, ASSUMING WE NEED IT, ACCOMPLISHES THAT
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NEED.
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INTEREST HERE WOULD BE, GIVEN THE RULING THAT WE
15:14:23
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NOT HAVE TO PROCEED IN EARNEST WITH TRIAL
15:14:25
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PREPARATION, THAT IT BE PUSHED FAR ENOUGH SO THAT
THE COURT:
WELL, ONE OF THE REASONS --
THAT'S CERTAINLY ONE. BUT I THINK IT WAS MR. POWERS, IF I'M
SO THAT, I THINK, GIVEN YOUR PROPOSED
MR. BOBROW:
YES.
I MEAN, MICRON'S
11
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THE COURT COULD RENDER ITS RULING ON THE SUMMARY
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JUDGMENT MOTION, AND TO THE EXTENT THAT SCHEDULE
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ACCOMPLISHES THAT, THAT'S CERTAINLY FINE.
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COURSE, WE WOULD -- WE WOULD ASK FOR THAT TO BE
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ENTERED, AS WE REQUESTED, IMMEDIATELY.
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TO HAVE THAT DONE AS A RESULT OF WHATEVER HAPPENS
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AT THE HEARING ON THE 30TH.
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STAY TO BE ENTERED GIVEN THE RESULT IN DELAWARE AND
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GIVEN THE MUTUALITY THAT EXISTS.
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IF I UNDERSTOOD IT CORRECTLY, IN OTHER WORDS, TO
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SORT OF FINISH EVERYTHING UP AND CERTIFY THINGS,
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AND IF I HEARD IT CORRECTLY, CERTIFYING THE VERDICT
15:15:10
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FROM THE CONDUCT PHASE OF THE CONSOLIDATED CASE, I
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THINK THAT IS NOT GOING TO ACCOMPLISH MUCH
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CERTAINLY VIS-A-VIS MICRON, BECAUSE JUDGE ROBINSON
15:15:18
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SPECIFICALLY FOUND THAT OUR ANTITRUST CASE AND
15:15:20
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DEFENSES AND THE PATENT MISUSE DEFENSE AND THE LIKE
15:15:23
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WERE SPECIFICALLY PREJUDICED BY RAMBUS'S CONDUCT.
15:15:28
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DELAWARE IS THE SAME AS THE CASE HERE, AND SHE
15:15:33
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SPECIFICALLY FOUND THAT OUR CASE HAD BEEN
I THINK THAT AS FAR AS THE STAY, OF
I UNDERSTAND YOUR HONOR'S WISHES WOULD BE
BUT I THINK THAT IT IS APPROPRIATE FOR A
I THINK THAT THE COURT'S FIRST PROPOSAL,
THE ANTITRUST CASE THAT WE HAVE IN
12
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PREJUDICED BY VIRTUE OF THE DOCUMENT DESTRUCTION.
15:15:36
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15:15:39
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LEAST AS TO MICRON, IT SEEMS TO ME WOULDN'T
15:15:41
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ACCOMPLISH PARTICULARLY MUCH.
15:15:42
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15:15:44
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ENTRY OF SUMMARY JUDGMENT, AND SHORT OF THAT, ENTRY
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OF A STAY, AND THEN PULLING THE 244 CASE OUT OF
15:15:49
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THIS AND THEN PROCEEDING AS, YOU KNOW, AS YOU HAD
15:15:53
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SUGGESTED.
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THE COURT:
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MR. BOBROW:
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THE COURT:
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NEXT?
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TO ASSUME ONE OR THE OTHER.
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SLIGHTLY DIFFERENT PROCEDURAL POSTURE IN THE SENSE
15:16:23
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THAT THESE ISSUES ARE PENDING BEFORE YOUR HONOR AND
15:16:27
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HAVE NOT BEEN RESOLVED.
15:16:29
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15:16:33
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OBVIOUSLY WE CAN AND WILL MOVE FOR SUMMARY JUDGMENT
15:16:35
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IF THAT'S WHAT YOU PREFER.
SO ANY SORT OF CERTIFICATION ON THAT, AT
I THINK THAT REALLY THE PROPER COURSE IS
OKAY. ALL RIGHT.
THANK YOU.
MR. POWERS, YOU WANT TO GO
OR MR. CHERENSKY.
MR. POWERS:
I'M SORRY.
I DIDN'T MEAN
WE WILL, AS YOUR HONOR
SUGGESTED, FILE A MOTION FOR SUMMARY JUDGMENT. I DO WANT TO -- IF THAT'S THE PATH YOUR HONOR WISHES TO PROCEED. AS TO SAMSUNG, OF COURSE, THERE'S A
SO ANOTHER WAY TO HANDLE IT -- I MEAN,
13
15:16:37
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OBVIOUSLY WE WOULD ASK THE COURT TO TAKE
15:16:39
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JUDICIAL NOTICE OF JUDGE ROBINSON'S OPINION AND THE
15:16:42
3
FINDINGS AND CONCLUSIONS THEREIN IN CONNECTION WITH
15:16:45
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WHATEVER DECISION YOU ARE MAKING AS PART OF THE
15:16:47
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SEPTEMBER TRIAL.
15:16:48
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15:16:51
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PROCEDURAL APPROACHES TO THE SAME QUESTION, WHICH
15:16:54
8
IS DECIDING THAT ISSUE AS TO SAMSUNG.
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15:16:59
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YOUR HONOR PROPOSED, MAKE THE MOTION FOR SUMMARY
15:17:02
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JUDGMENT TO PROVIDE YOUR HONOR WITH THE AUTHORITY
15:17:04
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ON THE ISSUES YOU'VE RAISED.
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GIVEN -- YOU KNOW, I THOUGHT ABOUT THAT AFTER YOU
15:17:27
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MADE THAT PITCH BEFORE, AND I JUST -- CERTAINLY THE
15:17:31
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TIME SHOULD HAVE BEEN SET ASIDE FOR THIS CASE.
15:17:35
23
15:17:38
24
15:17:39
25
THOSE ARE RELATED BUT SOMEWHAT DIFFERENT
BUT WE WILL, UNDER THE BRIEFING SCHEDULE
TWO SCHEDULING ISSUES THAT I WOULD JUST NOTE FOR THE COURT. FEBRUARY 17, I CANNOT BE HERE.
I HAVE A
MARKMAN IN TEXAS I HAVE TO DO. THIS CASE WAS SUPPOSED TO START ON THE 20TH.
THE MATH WORKED THAT I COULD HAVE DONE IT. THE COURT:
I DON'T KNOW ABOUT THAT,
IF YOU NEED A DAY OFF, MAYBE WE CAN WORK THAT OUT. BUT I'M NOT SYMPATHETIC WITH AN ARGUMENT
14
15:17:46
1
THAT IF THE CASE GETS DELAYED UNTIL FEBRUARY 17TH,
15:17:49
2
IT'S GOING TO MAKE IT IMPOSSIBLE FOR COUNSEL TO
15:17:51
3
PARTICIPATE.
15:17:52
4
MR. POWERS:
15:17:54
5
THE COURT:
15:17:55
6
OF TRIAL TIME, WHICH I'M NOT GOING TO RECOGNIZE --
15:17:59
7
OR I SHOULDN'T SAY "RECOGNIZE" -- I'M NOT GOING TO
15:18:05
8
BUY, AS I PREVIOUSLY INDICATED, IN ITS ENTIRETY,
15:18:09
9
CERTAINLY IS -- WOULD HAVE PUT THE TRIAL OUT A LOT
15:18:14
10
15:18:19
11
MR. POWERS:
15:18:20
12
I JUST AM NOTING THAT FOR THE COURT AND
15:18:22
13
THE COURT WILL DO WHAT IT WISHES, BUT I HAVE THAT
15:18:25
14
CONFLICT.
15:18:25
15
15:18:27
16
15:18:29
17
THE COURT:
15:18:30
18
MR. POWERS:
15:18:32
19
WITH REGARD TO THE TWO APPROACHES THAT
15:18:34
20
YOU NOTE, I THINK THAT THE GOAL OF HAVING -- OF
15:18:41
21
ALLOWING THE FEDERAL CIRCUIT TO ADDRESS THE
15:18:43
22
COMPETING SPOLIATION FINDINGS AT THE SAME TIME,
15:18:47
23
BEFORE THE PATENT TRIAL GOES FORWARD, IS THE RIGHT
15:18:49
24
APPROACH.
15:18:50
25
I WILL JUST NOTE -THE MANUFACTURERS' ESTIMATE
MORE THAN I THINK IT WILL BE. IT WOULD.
AND I ALSO HAVE A TRIAL IN NEW JERSEY STARTING ON FEBRUARY 23RD.
SO --
WHEN? FEBRUARY 23RD.
OBVIOUSLY IF THE SPOLIATION FINDING -- IF
15
15:18:54
1
THE SPOLIATION RESULT OF THAT PROCESS IS THAT
15:18:57
2
PATENT -- IS THAT RAMBUS'S PATENTS ARE
15:19:00
3
UNENFORCEABLE, THEN WE SHOULDN'T HAVE HAD THE
15:19:02
4
PATENT INFRINGEMENT TRIAL.
15:19:04
5
15:19:10
6
HAPPENED, THAT OUTCOME IS AT LEAST SUFFICIENTLY
15:19:12
7
LIKELY TO MAKE THAT THE PROPER COURSE.
15:19:16
8
THE PREJUDICE THAT RAMBUS WOULD
15:19:17
9
PRESUMABLY CITE ON THE OTHER SIDE IS A DELAY IN ITS
15:19:21
10
TRIAL, AND THAT DELAY WOULD BE OF MAYBE A YEAR AND
15:19:29
11
A HALF OR SO.
15:19:32
12
15:19:44
13
NOT SOMETHING WHERE RAMBUS HAS A PLAUSIBLE CASE OF
15:19:47
14
IRREPARABLE INJURY.
15:19:50
15
PRELIMINARY INJUNCTION.
15:19:52
16
AND THAT MONEY, IF IT IS ENTITLED TO IT,
15:19:54
17
WHICH THE CURRENT FRAMING OF MANY OF THE DECISIONS
15:19:57
18
WOULD SAY CERTAINLY NOT, BUT EVEN ASSUMING ALL OF
15:20:01
19
THAT GOES RAMBUS'S WAY, THAT'S JUST MONEY THAT IT'S
15:20:05
20
CLAIMING, AND THAT MONEY CAN BE PAID A YEAR AND A
15:20:10
21
HALF FROM NOW AND RAMBUS SUFFERS NO COGNIZABLE
15:20:14
22
PREJUDICE.
15:20:14
23
15:20:16
24
EARLIER, BUT FROM A PUBLIC POLICY POINT OF VIEW,
15:20:20
25
THAT'S NOT COGNIZABLE PREJUDICE.
AND I THINK THAT GIVEN ALL THAT HAS
RAMBUS IS MERELY SEEKING MONEY.
THIS IS
IT MADE NO MOTION FOR IT IS A LICENSING ENTITY.
IT MAY WISH TO HAVE ITS RESOLUTION
IT'S MONEY THAT
16
15:20:23
1
COULD BE MADE WHOLE.
15:20:25
2
15:20:30
3
15:20:31
4
15:20:33
5
15:20:37
6
15:20:43
7
CLAIM CONSTRUCTION AND THE CONSOLIDATED CASE, AS
15:20:49
8
WELL AS THE VERDICT FROM THE CONDUCT TRIAL?
15:20:51
9
15:20:52
10
THE COURT:
15:20:54
11
MR. POWERS:
15:20:55
12
WE'VE DISCUSSED MANY TIMES, BOTH DURING THE MARKMAN
15:20:57
13
HEARING AND AFTERWARDS.
15:20:58
14
15:21:01
15
QUESTION OF WHAT TO DO WITH THE SAME ISSUES
15:21:03
16
POST-PHILLIPS VERSUS PRE, AND YOUR HONOR'S MARKMAN
15:21:06
17
RULING EXPLICITLY FELT BOUND BY THE FEDERAL
15:21:11
18
CIRCUIT'S PRE-PHILLIPS MARKMAN RULING ON SIMILAR
15:21:14
19
ISSUES.
15:21:15
20
15:21:18
21
OUT THE SAME WAY.
15:21:20
22
EFFICIENCY REASON NOT TO BE HOLDING THE PATENT
15:21:23
23
TRIAL NOW WHEN THERE IS A MATERIAL LIKELIHOOD THAT
15:21:28
24
THE CLAIM CONSTRUCTION ASSUMPTIONS MAY WELL BE
15:21:31
25
REVERSED IN SOME MATERIAL RESPECTS.
WITH REGARD TO OPTION B, IF YOU WERE TO PROCEED WITH -THE COURT:
LET ME GO BACK TO OPTION A
FOR A MINUTE. WOULDN'T IT MAKE SENSE TO CERTIFY THE
MR. POWERS:
I AGREE WITH THAT. OKAY. AND FOR THE REASONS THAT
I KNOW YOUR HONOR WRESTLED WITH THE
THE FEDERAL CIRCUIT MAY OR MAY NOT COME THAT IS CLEARLY AN ADDITIONAL
17
15:21:36
1
WITH REGARD TO OPTION B -- SO OPTION A WE
15:21:40
2
THINK IS THE APPROPRIATE JUDICIAL ECONOMY APPROACH
15:21:43
3
TO TAKE.
15:21:44
4
15:21:47
5
PROCEED, I BELIEVE YOU WOULD HAVE -- THAT YOU
15:21:50
6
SHOULD ALSO STAY AS TO MICRON -- AS TO SAMSUNG AS
15:21:53
7
WELL, BECAUSE SAMSUNG WOULD HAVE, IN THAT
15:21:55
8
SITUATION, MANY SIMILAR INTERESTS TO MICRON, HAVING
15:21:59
9
RECEIVED A DECISION OF SPOLIATION FROM JUDGE PAYNE,
15:22:05
10
TO HAVE IT THROWN OUT ON PROCEDURAL GROUNDS, BUT
15:22:08
11
NOT SUBSTANTIVE GROUNDS.
15:22:10
12
THE COURT:
15:22:12
13
MR. POWERS:
15:22:14
14
SAID.
15:22:16
15
SUBSTANTIVE GROUNDS.
15:22:18
16
15:22:19
17
BEFORE YOUR HONOR RIGHT NOW A DECISION ON THE SAME
15:22:21
18
QUESTIONS.
15:22:23
19
15:22:25
20
15:22:28
21
15:22:30
22
THE SAME LOGIC UNDER OPTION A THAT ARGUES FOR
15:22:35
23
HAVING THOSE ISSUES RESOLVED AT ONE TIME BY THE
15:22:37
24
FEDERAL CIRCUIT WOULD ARGUE EQUALLY FOR HAVING
15:22:40
25
THOSE -- SAMSUNG'S ISSUES RESOLVED AT THE SAME TIME
WITH REGARD TO OPTION B, IF YOU WERE TO
THAT WAS VACATED. EXACTLY.
THAT'S WHAT I JUST
IT WAS VACATED ON PROCEDURAL GROUNDS, NOT
AND RAMBUS -- AND SAMSUNG HAS PENDING
THAT DECISION SHOULD GO UP AND BE RESOLVED AT THE SAME TIME. IF SO -- AND WHEN ALL THAT IS RESOLVED,
18
15:22:44
1
SINCE THEY ARE RIPE AT THE SAME TIME.
15:22:46
2
THE COURT:
15:22:47
3
MR. POWERS:
15:22:48
4
THE COURT:
15:22:51
5
MR. POWERS:
15:22:53
6
15:22:54
7
THE COURT:
15:22:55
8
MR. FREITAS:
15:22:57
9
15:23:00
10
15:23:02
11
15:23:06
12
CONCERN, AS MR. BOBROW I EXPECT -- EXPRESSED WITH
15:23:10
13
RESPECT TO AN APPEAL ON THE ANTITRUST ISSUES NOW.
15:23:16
14
I'D LIKE THE OPPORTUNITY TO THINK ABOUT
15:23:17
15
THIS IN GREATER DETAIL, BUT DEPENDING ON WHAT
15:23:21
16
HAPPENS WITH THE COURT'S RULING ON THE MOTIONS THAT
15:23:24
17
WILL BE FILED NOW ON THE IMPACT OF JUDGE ROBINSON'S
15:23:28
18
DECISION, WE DO HAVE A SPOLIATION CASE THAT AWAITS,
15:23:33
19
AND I THINK THAT THE RANGE OF RESULTS OF WHAT YOUR
15:23:39
20
HONOR MIGHT DO ON THE PARTIES' MOTIONS IS NOT
15:23:43
21
SIMPLY THUMBS UP, THUMBS DOWN.
15:23:46
22
15:23:48
23
I THINK THAT THERE IS THE POSSIBILITY OF
15:23:52
24
ISSUE-SPECIFIC RESULTS THAT, REGARDLESS OF
15:23:54
25
EVERYTHING RAMBUS HAS SAID, NONETHELESS, THERE
WIN OR LOSE. WIN OR LOSE. OKAY. NOTHING FURTHER FROM ME,
UNLESS YOUR HONOR HAS A QUESTION. ALL RIGHT. YOUR HONOR, NANYA AND NANYA
U.S.A. ARE SITUATED DIFFERENTLY FROM THE OTHER PARTIES IN VARIOUS WAYS. I HAVE A COUPLE OF THOUGHTS.
I HAVE A
I THINK THERE ARE MORE OPTIONS THAN THAT.
19
15:23:58
1
MIGHT BE AT LEAST SOME ISSUES THAT GET TAKEN CARE
15:24:00
2
OF IN A WAY THAT'S BINDING.
15:24:03
3
AND WITHOUT KNOWING EXACTLY WHERE --
15:24:05
4
THE COURT:
15:24:07
5
15:24:09
6
15:24:11
7
DIFFERENT FINDINGS THAT WERE MADE BY JUDGE
15:24:14
8
ROBINSON.
15:24:16
9
VARIETY OF FINDINGS.
15:24:18
10
15:24:21
11
NECESSARILY THE CASE THAT THIS COURT'S RULING ON
15:24:23
12
THE APPLICATION OF ISSUE PRECLUSION WILL BE
15:24:25
13
IDENTICAL WITH RESPECT TO EVERY SINGLE ISSUE.
15:24:29
14
15:24:31
15
SEE IT, WHAT JUDGE ROBINSON SAID SHOULD BE BINDING
15:24:34
16
IN A WAY THAT'S PRETTY COMPLETE.
15:24:37
17
15:24:39
18
THERE'S NOTHING THAT JUDGE ROBINSON SAID THAT'S
15:24:42
19
BINDING AT ALL.
15:24:43
20
15:24:45
21
15:24:46
22
15:24:47
23
THAT -- OR WHAT DO YOU THINK ABOUT THE ARGUMENT
15:24:53
24
THAT THE EFFECT OF INEQUITABLE CONDUCT, OR THE
15:25:07
25
CONDUCT THAT JUDGE ROBINSON FOUND, THE SEVERITY OF
THAT.
I'M NOT SURE I'M FOLLOWING
WHAT ARE YOU -MR. FREITAS:
THERE'S A RANGE OF
THERE WERE A VARIETY OF ISSUES, A
WHAT I'M SAYING IS SIMPLY THAT IT'S NOT
WE'VE EXPRESSED THE VIEW THAT, THE WAY WE
RAMBUS IS SAYING, ON THE OTHER HAND,
I'M SUGGESTING THERE'S ANOTHER RESULT THAT COULD BE POSSIBLE. THE COURT:
WHAT ABOUT THE POSSIBILITY
20
15:25:15
1
IT WOULD VARY AMONG MANUFACTURERS, AND SO IT
15:25:22
2
PERHAPS SHOULD BAR, FOR EXAMPLE, CLAIMS AGAINST ONE
15:25:31
3
MANUFACTURER, BUT PERHAPS RESULT IN SOME OTHER
15:25:34
4
REMEDY VIS-A-VIS ANOTHER MANUFACTURER?
15:25:36
5
DO YOU THINK THAT'S POSSIBLE?
15:25:39
6
MR. FREITAS:
15:25:40
7
BUT I GUESS WHAT I WOULD SAY ABOUT IT
15:25:42
8
WOULD DEPEND ON WHICH MANUFACTURER WAS IN WHICH
15:25:45
9
BOX, AND THE ONLY THING I'VE SEEN SO FAR IS THAT
15:25:47
10
RAMBUS -- EXCUSE ME -- RAMBUS SUGGESTING THAT
15:25:51
11
THERE'S A BASIS TO SAY THAT LITIGATION WASN'T
15:25:53
12
ANTICIPATED AS TO OUR CLIENTS WHEN IT -- WHEN IT
15:25:59
13
WAS BASED ON JUDGE ROBINSON'S FINDINGS AS TO
15:26:03
14
OTHERS.
15:26:03
15
15:26:05
16
THE FACT THAT THE DOCUMENT RAMBUS IDENTIFIED, THE
15:26:08
17
NUCLEAR WINTER DOCUMENT, IS DATED AFTER ONE OF THE
15:26:12
18
DOCUMENTS THAT WE CITED SHOWING SPECIFIC
15:26:14
19
ANTICIPATION OF LITIGATION AS TO NANYA AND NANYA
15:26:17
20
U.S.A.
15:26:18
21
15:26:20
22
WITH RESPECT TO THE SEVERITY OF THE REMEDY, I DON'T
15:26:23
23
THINK IT'S LIKELY THAT A LESSER REMEDY WOULD BE
15:26:27
24
AVAILABLE AGAINST ONE OR MORE OF THE MANUFACTURERS,
15:26:30
25
AND -- AS TO ONE OR MORE OF THE MANUFACTURERS, BUT
I DOUBT IT.
I DON'T THINK THAT RESULT IS LIKELY GIVEN
BUT ON THAT OTHER QUESTION, YOUR HONOR,
21
15:26:33
1
I'M NOT SURE WHAT THE BASIS FOR AN ARGUMENT TO THAT
15:26:35
2
EFFECT WOULD BE.
15:26:37
3
15:26:41
4
WE'VE ALREADY SAID -- EXPRESSED PART OF THE REASONS
15:26:45
5
WHY WE DON'T THINK THAT PROVIDES A BASIS.
15:26:47
6
15:26:49
7
15:26:51
8
15:26:54
9
15:26:57
10
15:26:58
11
THE COURT:
15:26:59
12
MR. FREITAS:
15:27:01
13
BE -- IS THAT -- ARE THERE ANY ASSUMPTIONS ABOUT
15:27:05
14
WHAT RULING THE COURT WOULD MAKE ON THE ISSUE
15:27:08
15
PRECLUSION MOTIONS?
15:27:10
16
15:27:13
17
OUT THOSE TWO POSSIBILITIES AS WAYS THAT MIGHT MAKE
15:27:19
18
SENSE.
15:27:22
19
ONE OR THE OTHER, OR THAT A MOTION COULDN'T
15:27:26
20
PERSUADE ME THAT ONE OF THOSE OPTIONS, OR BOTH,
15:27:31
21
ARE -- WOULD HAVE TO BE MODIFIED.
15:27:34
22
15:27:37
23
TO TWO APPROACHES THAT I THOUGHT WERE REASONABLE,
15:27:43
24
SENSIBLE APPROACHES.
15:27:45
25
THE ONE ISSUE RAMBUS HAS ARTICULATED
I HAVE A QUESTION, YOUR HONOR, ABOUT OPTION B. THE IDEA WOULD BE THAT THE PATENT TRIAL WOULD GO FORWARD AS TO ALL OF THE MANUFACTURERS OTHER THAN MICRON?
THE COURT:
YES. AND THE MICRON STAY WOULD
I'M -- I WAS JUST THROWING
I'M NOT SUGGESTING THAT IT'S NECESSARILY
I'M JUST TRYING TO GIVE YOU MY THOUGHT AS
MR. FREITAS:
UM-HUM.
22
15:27:46
1
THE COURT:
I'M NOT SURE I'M ANSWERING
15:27:48
2
15:27:49
3
15:27:50
4
15:27:51
5
THE COURT:
15:27:54
6
MR. FREITAS:
15:27:55
7
OPTIONS SOME MORE THOUGHT, DISCUSS THEM WITH OUR
15:27:59
8
CLIENTS AND WITH OUR COLLEAGUES, AND EXPRESS MORE
15:28:02
9
DETAILED VIEWS WHEN WE MAKE OUR SUBMISSIONS
15:28:05
10
PURSUANT TO THE COURT'S ORDER.
15:28:07
11
THE COURT:
15:28:09
12
YET, EITHER.
15:28:12
13
AND SAY THIS IS WHERE I AM RIGHT NOW.
15:28:15
14
MR. FREITAS:
15:28:16
15
THE COURT:
15:28:18
16
MR. FREITAS:
15:28:20
17
15:28:23
18
THANK YOU, YOUR HONOR.
15:28:25
19
THE COURT:
15:28:25
20
MR. NISSLY:
15:28:30
21
WE APPRECIATE THE COURT'S GUIDANCE, AND
15:28:34
22
OBVIOUSLY WE'LL FILE OUR MOTIONS IN ACCORDANCE WITH
15:28:39
23
THE SCHEDULE THAT WE PROPOSED, OR THAT WAS PROPOSED
15:28:43
24
BY THE MANUFACTURERS, AND WE'LL TAKE A LOOK AT
15:28:46
25
EITHER A MOTION FOR SUMMARY JUDGMENT OR WHATEVER
YOUR QUESTION. MR. FREITAS:
THAT WAS -- THAT'S ALL I
WAS ASKING, YOUR HONOR. OKAY. WELL, WE'LL GIVE THESE
I HAVEN'T MADE THAT ORDER
I'M JUST -- I WAS TRYING TO COME OUT
YES, YOUR HONOR. AND LET YOU RESPOND TO IT. RIGHT.
I ADMIT THE
BRIEFING SCHEDULE.
OKAY. GOOD AFTERNOON, YOUR HONOR.
23
15:28:48
1
OTHER MOTION THAT WE THINK MIGHT BE APPROPRIATE
15:28:50
2
UNDER THE CIRCUMSTANCES.
15:28:52
3
15:28:54
4
15:28:56
5
15:28:59
6
TO YOUR HONOR'S SUGGESTIONS OF POSSIBLE WAYS TO
15:29:03
7
MOVE FORWARD WOULD SIMPLY BE TO CIRCLE BACK AND
15:29:07
8
POINT OUT THAT AS THINGS HAVE DEVELOPED IN THE
15:29:09
9
COURSE OF THIS CASE OVER THE YEARS, HOW
15:29:12
10
CONSOLIDATED IT HAS BECOME AND HOW INTERTWINED IT'S
15:29:17
11
BECOME, AND I WAS STRUCK IN THAT REGARD BY A
15:29:19
12
STATEMENT, FRANKLY, FROM A BRIEF THAT RAMBUS
15:29:22
13
FILED -- AND IT'S NOT OFTEN, OBVIOUSLY, I QUOTE ONE
15:29:26
14
OF THEIR BRIEFS -- FROM AUGUST OF 2008 WHICH I
15:29:31
15
THOUGHT WAS APPROPRIATE FOR THE DISCUSSION WE'RE
15:29:33
16
GOING TO HAVE HERE THIS AFTERNOON.
15:29:35
17
15:29:39
18
FILED ON THEIR CONSOLIDATED OPPOSITIONS TO THE STAY
15:29:43
19
MOTIONS THAT WERE FILED LAST, LAST YEAR.
15:29:46
20
AND RAMBUS WROTE, ON PAGE 2, "THE HISTORY
15:29:49
21
OF THIS LITIGATION, INCLUDING THE POSITIONS JOINTLY
15:29:52
22
TAKEN BY THE MANUFACTURERS AT THE SUMMARY JUDGMENT
15:29:55
23
STAGE, CONFIRMED THAT RAMBUS'S PATENT CLAIMS AND
15:29:58
24
THEIR DEFENSES ARE DOMINATED BY COMMON AND
15:30:01
25
INTERWOVEN ISSUES."
BUT WE CERTAINLY APPRECIATE THE COURT'S COMMENTS IN THAT REGARD. ONE OF THE THINGS I WOULD SAY IN RESPONSE
AND I'M READING FROM A BRIEF THAT RAMBUS
24
15:30:03
1
AND THAT'S CERTAINLY TRUE, AND THAT'S ONE
15:30:05
2
OF THE POINTS, ONE OF THE REASONS WHY WE GAVE YOU
15:30:08
3
THE CHART THAT WE DID THAT SHOWED THE OVERLAP
15:30:11
4
BETWEEN THE MICRON DELAWARE CASE, OUR 905 CASE, THE
15:30:19
5
334 CASE WHICH WE'RE TALKING ABOUT THIS AFTERNOON
15:30:22
6
IN TERMS OF SCHEDULE, AND THE RE-EXAMINATIONS.
15:30:24
7
15:30:27
8
SPOLIATION, WHICH YOU TOOK UP FIRST AND YOU HEARD
15:30:29
9
AND OBVIOUSLY YOU CAME OUT AT A DIFFERENT PLACE
15:30:32
10
THAN NOW TWO OTHER FEDERAL DISTRICT JUDGES HAVE
15:30:35
11
COME OUT, IS THE ONE ISSUE THAT WE'VE EVER SEEN IN
15:30:37
12
THIS CASE WHICH CUTS ACROSS ALL OF THIS, WHICH
15:30:41
13
CUTS, AS WE SAID IN OUR PAPERS, THIS GORDIAN KNOT,
15:30:45
14
AND IT SEEMS TO US THAT WHAT WE OUGHT TO DO IS
15:30:47
15
FOCUS ON THAT ISSUE AND GET THAT RESOLVED IN A WAY
15:30:51
16
THAT IS CONSISTENT FOR ALL THE MANUFACTURERS ACROSS
15:30:53
17
THE INDUSTRY, BECAUSE OBVIOUSLY THAT'S WHAT WE HAVE
15:30:56
18
HERE, AS THE COURT CERTAINLY HAS COME TO
15:30:59
19
APPRECIATE.
15:31:01
20
INDUSTRY-WIDE PROBLEM.
15:31:04
21
15:31:06
22
WHICH PATENTS ARE UNENFORCEABLE AS TO MICRON ON
15:31:11
23
CERTAIN PRODUCTS, AND NOT AS TO HYNIX OR SAMSUNG OR
15:31:14
24
NANYA OR ANYONE ELSE.
15:31:15
25
AND IT SEEMS TO US THAT THIS ISSUE OF
WE HAVE AN INDUSTRY-WIDE ISSUE AND AN
AND WE DO NOT SEE ANY LEGAL BASIS UPON
THE COURT:
I SUPPOSE IT'S THEORETICALLY
25
15:31:17
1
POSSIBLE, THOUGH, THAT -- I MEAN, I WOULD AGREE
15:31:20
2
THAT I DON'T THINK IT'S GOING TO HAPPEN, BUT THAT
15:31:25
3
THE FEDERAL CIRCUIT COULD AFFIRM A FINDING OF
15:31:30
4
SPOLIATION AS TO -- IN THE MICRON CASE AND AFFIRM A
15:31:37
5
FINDING OF NO SPOLIATION IN YOUR CASE ON THE BASIS
15:31:40
6
THAT IT'S A FACTUAL QUESTION AND THE COURT
15:31:45
7
INTERPRETED FACTS DIFFERENTLY.
15:31:47
8
15:31:49
9
15:31:52
10
15:31:53
11
15:31:54
12
AND I THINK IN SOME WAYS IT WOULD BE UNFORTUNATE IF
15:31:57
13
THAT OCCURRED.
15:31:58
14
MR. NISSLY:
15:31:59
15
OBVIOUSLY THIS IS A DECISION THAT NEEDS A
15:32:02
16
CONSISTENT TREATMENT, AND THAT'S WHY WE BELIEVE
15:32:04
17
THAT THE RIGHT WAY TO MOVE FORWARD ON THIS IS, AS
15:32:07
18
THE COURT SUGGESTED, TO FILE MOTIONS, TO GET IT
15:32:09
19
SORTED OUT BEFORE YOU, AND THEN ALLOW THOSE -- YOUR
15:32:12
20
DECISIONS ON THOSE ISSUES TO GO TO THE FEDERAL
15:32:14
21
CIRCUIT, ALONG WITH THE APPEAL THAT RAMBUS PROMISES
15:32:18
22
FROM DELAWARE, AND HAVE THE CIRCUIT FOCUS ON THOSE
15:32:21
23
ISSUES AND RESOLVE THEM.
15:32:23
24
15:32:25
25
MR. NISSLY: WITH YOUR HONOR.
WE BELIEVE -- I'LL AGREE
IT'S THEORETICALLY POSSIBLE.
I
DON'T THINK IT'S LIKELY. THE COURT:
I DON'T THINK IT IS, EITHER,
AGREED.
THERE ARE MANY OTHER VERY DIFFICULT ISSUES BEFORE YOUR HONOR, AS YOU WELL APPRECIATE,
26
15:32:27
1
THAT CAN TAKE UP AN ENORMOUS AMOUNT OF YOUR TIME
15:32:32
2
AND OUR TIME AND OUR RESOURCES, WHICH ARE OBVIOUSLY
15:32:34
3
NOT UNLIMITED, BUT HAVE BEEN SORELY TAXED BY THIS
15:32:37
4
LITIGATION, AND REALLY FOCUS ON THOSE.
15:32:40
5
15:32:42
6
A 1292(B) CERTIFICATION, AND THAT'S WHY WE'LL ASK
15:32:46
7
YOU FOR IT AGAIN, BECAUSE WE THINK THAT'S THE WAY
15:32:49
8
TO MOVE FORWARD.
15:32:52
9
ON AN INDUSTRY-WIDE BASIS AND THEN LET'S SEE WHAT'S
15:32:55
10
15:32:57
11
15:32:59
12
MENTIONED, BUT PARTICULARLY WHEN WE THINK ABOUT THE
15:33:02
13
CONDUCT CASE, FOR EXAMPLE, AND THE CONDUCT TRIAL
15:33:04
14
THAT WE HAD LAST YEAR.
15:33:05
15
15:33:08
16
WAS TAINTED BY THE FACT THAT WE DID NOT HAVE ACCESS
15:33:11
17
TO EVIDENCE THAT RAMBUS DESTROYED.
15:33:14
18
15:33:18
19
CERTIFIED FOR APPEAL?
15:33:20
20
MR. NISSLY:
15:33:22
21
15:33:25
22
THE COURT:
15:33:27
23
MR. NISSLY:
15:33:27
24
THE COURT:
15:33:29
25
THAT'S WHY WE ASKED YOU TWICE BEFORE FOR
LET'S GET THOSE ISSUES RESOLVED
LEFT WITH REGARD TO THAT. AND THAT'S A POINT PERHAPS OTHER COUNSEL
CERTAINLY HYNIX BELIEVES THAT THAT CASE
THE COURT:
WHY SHOULDN'T THAT CASE BE
BECAUSE IT IS TAINTED BY THE
ALLEGATIONS OF SPOLIATION, BECAUSE WE WERE -WHY SHOULDN'T -I'M SORRY. WHY SHOULDN'T IT BE CERTIFIED
FOR APPEAL, TOO?
27
15:33:30
1
MR. NISSLY:
BECAUSE WE BELIEVE THAT THAT
15:33:31
2
OUGHT TO AWAIT THE RESOLUTION OF THE SPOLIATION
15:33:33
3
ISSUES BECAUSE IT CUTS ACROSS ALL OF THESE.
15:33:36
4
THE COURT:
15:33:37
5
MR. NISSLY:
15:33:38
6
THE COURT:
15:33:39
7
CIRCUIT SAY THERE WAS SPOLIATION; THEREFORE, THIS
15:33:47
8
VERDICT CAN'T STAND?
15:33:51
9
SHOULD STAY?
15:33:52
10
15:33:56
11
IS A STAYING FOR THE PURPOSES OF RESOLVING SOME
15:34:01
12
ISSUES, WHY SHOULDN'T THE KEY ISSUES GET RESOLVED
15:34:06
13
AT THE SAME TIME?
15:34:07
14
15:34:09
15
15:34:11
16
15:34:13
17
15:34:24
18
15:34:29
19
AND THE COURT SAID, "WE FEEL THAT THE FINDING OF NO
15:34:35
20
SPOLIATION IS AFFIRMED."
15:34:44
21
MR. NISSLY:
15:34:45
22
THE COURT:
15:34:48
23
AND THEN IT'S TRIED AND GOES UP ON APPEAL
15:34:53
24
AND THE COURT SAYS, "CLAIM CONSTRUCTION WAS WRONG."
15:34:58
25
RIGHT. I'M SORRY. BUT COULDN'T THE FEDERAL
OR SAY THERE WASN'T AND IT
I MEAN, WHAT'S THE POINT OF -- IF THERE
MR. NISSLY: PARDON ME.
BECAUSE, YOUR HONOR --
I DIDN'T MEAN TO STEP ON YOU. THE COURT:
THAT'S OKAY.
YOU'RE ALWAYS
VERY PROFESSIONAL, SO DON'T WORRY ABOUT IT. IF THE -- LET'S ASSUME THAT IT WENT UP
UM-HUM. AND IT COMES BACK FOR TRIAL.
WHY SHOULDN'T THOSE THINGS BE DONE
28
15:35:00
1
TOGETHER?
15:35:00
2
15:35:02
3
IN A SEPARATE BUCKET BECAUSE IT DOES PRESENT A
15:35:06
4
DIFFERENT SET OF LEGAL ISSUES AND THERE ARE -- THE
15:35:09
5
CLAIM CONSTRUCTION ISSUE MAY MAKE MORE SENSE TO GO
15:35:11
6
UP AT THIS POINT THAN OTHERS, AND THAT'S WHY I SAY
15:35:16
7
I'D PUT IT IN A SEPARATE BUCKET.
15:35:18
8
15:35:19
9
15:35:23
10
ARE TAINTED BY THE ISSUE OF SPOLIATION.
15:35:27
11
THAT ASIDE.
15:35:28
12
15:35:30
13
CIRCUIT AFFIRMS YOU AND SAYS, "NO, JUDGE WHYTE WAS
15:35:33
14
CORRECT ON HIS ANALYSIS," OR "WE FIND A FACTUAL
15:35:37
15
DIFFERENCE, SOMEHOW, BETWEEN WHAT JUDGE WHYTE DID
15:35:39
16
AND WHAT JUDGE ROBINSON DID," THEN THAT CASE CAN
15:35:43
17
COME BACK HERE AND BE FINISHED LIKE MANY OTHER
15:35:45
18
CASES THAT ARE IN THIS SORT OF POSTURE.
15:35:47
19
15:35:50
20
FACT, IT WOULD BE, TO MY WAY OF THINKING, MORE
15:35:55
21
JUDICIALLY EFFICIENT TO DO IT THAT WAY THAN ANOTHER
15:35:58
22
WAY.
15:35:59
23
15:36:02
24
PREJUDICE TO RAMBUS HERE.
15:36:04
25
ROYALTIES AND MONEY.
MR. NISSLY:
I'D PUT CLAIM CONSTRUCTION
BUT WITH REGARD TO THE CONDUCT ISSUES THAT WERE TRIED, THOSE, WE BELIEVE, AS I JUST SAID, BUT PUT
SPOLIATION GOES UP AND THE FEDERAL
SO THAT I DON'T SEE AS AN ISSUE.
IN
AND AS MR. POWERS POINTED OUT, THERE'S NO THIS IS A CASE ABOUT
AND SO THERE'S -- THAT'S --
29
15:36:08
1
THAT'S REALLY NOT AN ISSUE.
15:36:10
2
15:36:11
3
CORRECTLY, HE WAS SUGGESTING THAT THOSE -- THAT THE
15:36:15
4
ISSUE OF CLAIM CONSTRUCTION AND THE CONDUCT TRIAL
15:36:17
5
MADE SENSE TO CERTIFY.
15:36:19
6
15:36:20
7
15:36:23
8
THE COURT:
15:36:24
9
MR. NISSLY:
15:36:25
10
ISSUE THAT IS DIRECTLY AFFECTED BY THE SPOLIATION
15:36:27
11
ISSUES AND ONE THAT OUGHT TO BE PUT ASIDE WHILE WE
15:36:31
12
SORT OUT WHERE ARE WE WITH SPOLIATION GIVEN THE
15:36:34
13
FACT THAT WE'VE NOW HAD THESE DIFFERENT DECISIONS
15:36:37
14
BY FEDERAL DISTRICT JUDGES, FEDERAL DISTRICT COURTS
15:36:40
15
ON WHETHER OR NOT SPOLIATION IS PRESENT.
15:36:42
16
15:36:45
17
ISSUES BETWEEN THE 334 CASE AS IT INVOLVES HYNIX
15:36:51
18
AND THE 905 CASE, WHICH WE POINTED OUT IN OUR
15:36:54
19
PAPERS.
15:36:55
20
15:36:57
21
ILLUSTRATED BY THE CHART WHICH WE GAVE YOU; WE HAVE
15:37:00
22
THE OVERLAP IN THE WAIVER AND ESTOPPEL CLAIMS WHICH
15:37:02
23
WERE PART OF THE CONDUCT TRIAL; AND WE HAVE THE
15:37:05
24
POINT, YOUR HONOR, THAT THESE PATENTS ARE ASSERTED
15:37:08
25
AGAINST INDUSTRY STANDARD PRODUCTS AND IT OUGHT TO
THE COURT:
MR. NISSLY:
IF I HEARD MR. POWERS
HE DID SAY THE CONDUCT
TRIAL, AND THAT'S WHERE I PART COMPANY WITH HIM. OKAY. BECAUSE I THINK THAT IS AN
THERE IS A WHOLE COMPLEX OF OVERLAPPING
WE HAVE THE OVERLAP IN PATENTS AS
30
15:37:11
1
HAVE AN INDUSTRY STANDARD SOLUTION AND AN
15:37:15
2
INDUSTRY-WIDE SOLUTION AND, THEREFORE, WE'LL
15:37:17
3
CERTAINLY, OF COURSE, FILE OUR MOTIONS WITH THE
15:37:19
4
COURT AND MAKE THOSE POINTS.
15:37:22
5
ANOTHER 1292(B) CERTIFICATION.
15:37:24
6
15:37:27
7
WAY TO PROCEED IS TO CARVE OFF THE SPOLIATION
15:37:30
8
ISSUES, LET THOSE GO TO THE CIRCUIT.
15:37:32
9
15:37:34
10
CONSTRUCTION, THAT MAKE SENSE AT THIS POINT TO
15:37:36
11
THINK ABOUT IN THAT REGARD, THAT MAY MAKE SOME
15:37:39
12
SENSE.
15:37:40
13
15:37:42
14
SO FACT BOUND THAT ARE AFFECTED BY WHAT HAPPENS ON
15:37:45
15
SPOLIATION OUGHT, IN FAIRNESS, TO STAY UNRESOLVED
15:37:51
16
UNTIL WE DECIDE AND UNDERSTAND EXACTLY WHAT THE LAW
15:37:53
17
OF THIS CASE IS REGARDING SPOLIATION, AND THEN WE
15:37:56
18
CAN MOVE FORWARD.
15:37:57
19
THE COURT:
15:37:57
20
MR. NISSLY:
15:38:04
21
MR. STONE:
GOOD AFTERNOON, YOUR HONOR.
15:38:06
22
THE COURT:
GOOD AFTERNOON.
15:38:07
23
MR. STONE:
FIRST, I THINK THAT YOU
15:38:09
24
PROPOSED A BRIEFING SCHEDULE, AND IN OUR PAPERS
15:38:12
25
WE'D SUGGESTED WE DIDN'T SEE THE NEED FOR IT, AND
WE'LL ASK YOU FOR
BUT IT SEEMS TO US THAT THE MOST SENSIBLE
IF THERE ARE ISSUES, SUCH AS CLAIM
BUT ALL THE REST OF THESE ISSUES THAT ARE
OKAY. THANK YOU.
31
15:38:15
1
OBVIOUSLY YOU THINK THERE IS PROBABLY A NEED AND I
15:38:19
2
APPRECIATE THAT.
15:38:19
3
15:38:21
4
TWO REASONS.
15:38:25
5
APPLICATIONS, OR AN EXPLANATION OF WHY OR WHY NOT
15:38:32
6
ISSUE PRECLUSION APPLIES.
15:38:34
7
15:38:39
8
GETTING FURTHER THOUGHTS ON WHAT MAKES SENSE FROM A
15:38:42
9
PRACTICAL STANDPOINT, BECAUSE I SUSPECTED THE
15:38:48
10
PARTIES WOULD COME OUT THE WAY THEIR LETTERS DID AS
15:38:53
11
FAR AS THEIR POSITIONS, BUT I WASN'T SURE.
15:38:57
12
15:38:59
13
FRANKLY, TO RAMBUS OF BOTH APPROACHES.
15:39:05
14
100 PERCENT SURE AS TO WHERE YOU WOULD COME OUT ON
15:39:08
15
THIS.
15:39:09
16
15:39:10
17
ADDRESS BRIEFLY SOME OF THE ISSUES YOU'VE RAISED
15:39:14
18
AND SOME OF THE QUESTIONS THAT YOU'VE ASKED, IF I
15:39:17
19
MIGHT, AND IF YOU HAVE OTHER QUESTIONS, PLEASE POSE
15:39:19
20
THEM TO ME.
15:39:21
21
15:39:22
22
SCHEDULE YOU PROPOSED, WE'LL MEET THE BRIEFING
15:39:26
23
SCHEDULE AND SO FORTH.
15:39:27
24
15:39:29
25
THE COURT:
I THINK THERE'S A NEED FOR
ONE IS THE -- SOME SPECIFIC
BUT, FRANKLY, I'M MORE CONCERNED WITH
I MEAN, I CAN SEE SOME ADVANTAGES,
MR. STONE:
OKAY.
SO I WASN'T
SO LET ME TRY TO
BUT I'M ASSUMING THAT -- THE BRIEFING
I THINK WE'VE LAID OUT IN SOME SIGNIFICANT DETAIL OUR POSITION ON THE MERITS OF
32
15:39:31
1
THIS ISSUE, SO I HOPE THE MANUFACTURERS, IN THEIR
15:39:34
2
PAPERS, CAN SORT OF ADDRESS AND CAN JOIN ISSUES
15:39:40
3
QUICKLY ON SOME OF THOSE.
15:39:41
4
15:39:45
5
THE POINT FROM OUR EARLIER BRIEF THAT MR. NISSLY
15:39:48
6
QUOTED ABOUT TO SOME EXTENT THIS CASE HAS -- THERE
15:39:52
7
ARE COMMON ISSUES THAT CUT ACROSS MANY OF THE CASES
15:39:54
8
AND MANY OF THE ISSUES ARE COMMON.
15:39:56
9
15:39:58
10
FILED THE MOTION TO TRANSFER VENUE IN THE DELAWARE
15:40:01
11
ACTION TO TRY TO BRING IT OUT HERE, AND MICRON
15:40:04
12
RESISTED THAT.
15:40:05
13
15:40:08
14
THE BRIEFING, AS WE WILL, TO RECOGNITION THAT WHAT
15:40:11
15
MICRON SEEKS IS OFFENSIVE COLLATERAL ESTOPPEL,
15:40:15
16
BECAUSE THEY WERE THE ONES WHO SELECTED THE FORUM,
15:40:18
17
AND AS THE SUPREME COURT NOTED IN PARKLANE, AND
15:40:22
18
THEY TALKED ABOUT IT IN THE TEXT OF THAT OPINION AT
15:40:25
19
FOOTNOTE 15, AND IN FOOTNOTE 15, THEY NOTED THAT
15:40:30
20
IT'S OFFENSIVE COLLATERAL ESTOPPEL WHEN THE PARTY
15:40:34
21
WHO SELECTED THE FORUM THEN SEEKS TO IMPOSE THE
15:40:39
22
RESULT IN THAT FORUM ON WHAT HAPPENS IN SOME OTHER
15:40:42
23
FORUM, NAMELY, THE FORUM HERE THAT RAMBUS HAS
15:40:45
24
SELECTED.
15:40:46
25
I WANT TO START MAYBE WITH -- THERE WAS
INDEED, THAT WAS THE REASON WHY WE HAD
AND THAT'S IMPORTANT WHEN WE COME BACK IN
SO THERE IS AN ISSUE, AND THAT ISSUE DOES
33
15:40:48
1
GO TO THE COLLATERAL ESTOPPEL LAW, BECAUSE THERE IS
15:40:52
2
AT LEAST SOME RECOGNITION IN THE CASES THAT THE
15:40:55
3
DISCRETIONARY FACTORS MAY BE MORE HEAVILY WEIGHED
15:40:59
4
IN AN OFFENSIVE COLLATERAL ESTOPPEL AS OPPOSED TO
15:41:03
5
DEFENSIVE.
15:41:03
6
15:41:06
7
CASE -- AND I REALIZE I'M TALKING ABOUT THE
15:41:08
8
TOUGHEST CASE FROM MY PERSPECTIVE -- EVEN IN
15:41:10
9
MICRON'S CASE, WE HAVE OFFENSIVE COLLATERAL
15:41:13
10
ESTOPPEL WHERE THE VARIOUS DISCRETIONARY FACTORS
15:41:17
11
SHOULD BE WEIGHED MOST HEAVILY.
15:41:19
12
15:41:21
13
DEFENSIVE COLLATERAL ESTOPPEL.
15:41:23
14
THE RESTATEMENT, AMONG OTHER AUTHORITIES, MAKES
15:41:25
15
THAT CLEAR.
15:41:27
16
15:41:29
17
WE'RE GOING TO -- THIS COURT WILL LOOK AT, IN THE
15:41:32
18
BRIEFS WE FILE, I THINK AT WHETHER, IN FACT, A STAY
15:41:35
19
FROM MICRON IS APPROPRIATE, OR WHETHER THE DECISION
15:41:37
20
OF JUDGE ROBINSON HAS ANY IMPACT HERE.
15:41:40
21
15:41:42
22
OVERLAP IN THE PATENTS AND THE PRODUCTS, AND THERE
15:41:44
23
IS NO OVERLAP IN PATENTS AND PRODUCTS.
15:41:47
24
15:41:50
25
AND HERE WE DO HAVE, EVEN IN MICRON'S
THAT'S NOT TO SAY THEY'RE NOT WEIGHED IN I THINK THEY ARE.
BUT SO WE HAVE HERE A SITUATION IN WHICH
YOU TALKED WITH MR. BOBROW ABOUT THE
THERE ARE FOUR PATENTS WHICH ARE HERE, BUT THEY'RE ASSERTED HERE AGAINST A PRODUCT THAT IS
34
15:41:52
1
NOT IN THE DELAWARE CASE, I'M TALKING NOW JUST
15:41:56
2
ABOUT MICRON, AGAINST DDR3, A PRODUCT THAT WAS NOT
15:42:00
3
EVEN IN CONTEMPLATION OR DESIGN AT THE TIME THAT
15:42:03
4
JUDGE ROBINSON FOUND THERE WAS A PERIOD OF
15:42:06
5
SPOLIATION.
15:42:07
6
15:42:11
7
BECAUSE WHAT CONDUCT SHE FOUND INFECTED THE PATENTS
15:42:14
8
WOULD APPLY TO THE -- IT WOULDN'T BE PRODUCT
15:42:19
9
DEPENDENT, WOULD IT?
15:42:21
10
MR. STONE:
15:42:22
11
VERY REASON THAT THE MANUFACTURERS HAVE INSISTED ON
15:42:25
12
HAVING DIFFERENT REPRESENTATIVE PRODUCTS FOR EVERY
15:42:28
13
GENERATION OF PRODUCT, I THINK THERE ARE DIFFERENT
15:42:30
14
PRODUCTS.
15:42:30
15
15:42:32
16
15:42:34
17
15:42:36
18
AROSE WITH RESPECT TO THAT PRODUCT AT A PARTICULAR
15:42:38
19
TIME, I THINK ALL OF THOSE ARE DIFFERENCES.
15:42:41
20
15:42:43
21
TERMS OF THOSE TWO CASES AS IT BEARS ON MICRON, IS
15:42:47
22
WITH RESPECT TO THE TIME AT WHICH THE CASE WAS
15:42:49
23
FILED, BECAUSE JUDGE ROBINSON'S DECISION IS BASED
15:42:53
24
ON, AND HER FINDING OF PREJUDICE IS, AND BAD FAITH,
15:42:57
25
REALLY, IS BASED ON TWO THINGS:
THE COURT:
BUT WHY DOES THAT MATTER,
I DON'T -- I THINK, FOR THE
I THINK THIS COURT LOOKED CAREFULLY AT THE ABILITY TO REVERSE ENGINEER A PRODUCT. I THINK A QUESTION AS TO WHETHER A DUTY
AND THE MOST CRITICAL DIFFERENCE, IN
A DETERMINATION
35
15:43:03
1
ABOUT WHEN THERE WAS A DUTY TO PRESERVE AND A
15:43:05
2
FAILURE TO PRESERVE; AND, SECONDLY, ABOUT
15:43:08
3
LITIGATION MISCONDUCT THAT OCCURRED IN 2001.
15:43:11
4
15:43:14
5
IT'S CLEAR FROM HER RECORD AND HER DECISION WHAT
15:43:17
6
SHE'S REFERRING TO, AND WE CAN MAKE IT CLEAR IN OUR
15:43:20
7
BRIEFING IF IT'S NOT, AND I THINK THE COURT HAS
15:43:22
8
SEEN THE SAME EVIDENCE, BUT THERE WAS AN ARGUMENT
15:43:26
9
THAT IT WAS LITIGATION MISCONDUCT WHAT OCCURRED IN
15:43:29
10
THE INFINEON CASE, AND SHE REACHED OUT TO THAT
15:43:31
11
CONDUCT AND SHE SAID AT LEAST ONE BRIEF, OR PERHAPS
15:43:36
12
TWO, IT'S A LITTLE UNCLEAR FROM HER DECISION, THAT
15:43:39
13
WERE FILED IN HER CASE IN 2001 WERE NOT CONSISTENT
15:43:44
14
WITH THE FACTS AS SHE LATER FOUND THEM TO EXIST.
15:43:48
15
15:43:52
16
15:43:54
17
15:43:57
18
THINK, MAKES CLEAR THAT THERE'S NO ARGUMENT THAT
15:44:00
19
THE LITIGATION MISCONDUCT, WHICH IS SORT OF
15:44:04
20
INTERWOVEN AND INEXTRICABLY TIED TO HER
15:44:07
21
CONCLUSIONS, HAS ANY BEARING IN THIS CASE, AND
15:44:09
22
MICRON I DON'T THINK CAN CONTEND OTHERWISE.
15:44:12
23
15:44:14
24
15:44:16
25
AND SHE REFERS, AND IT'S NOT -- I THINK
ALL OF THAT CAME TO LIGHT IN 2005, EARLY 2005 BEFORE THIS CASE WAS FILED. SO THERE'S NO ARGUMENT, AND APTIX, I
SO I THINK THERE'S REAL ISSUES FOR US TO BRIEF ON THE MICRON QUESTION. AND, OF COURSE, WITH RESPECT TO THE OTHER
36
15:44:18
1
PARTIES, HYNIX, OF COURSE, THERE'S BEEN A DECISION.
15:44:21
2
15:44:23
3
15:44:25
4
15:44:27
5
VERY DISTINCT ISSUES, TOO, NOT THE LEAST OF WHICH
15:44:30
6
IS THE DIFFERENCE IN THE DATE THAT THE ACTION WAS
15:44:32
7
FILED.
15:44:33
8
15:44:36
9
15:44:38
10
RIGHT TO SAY THERE'S CERTAINLY THE POSSIBILITY THAT
15:44:41
11
THE FEDERAL CIRCUIT COULD REACH -- COULD AFFIRM,
15:44:45
12
LET'S SAY, BOTH DECISIONS, AND LEAVE THE DECISIONS,
15:44:48
13
ON THEIR FACE AT LEAST, ARRIVING AT INCONSISTENT
15:44:51
14
RESULTS, COULD LEAVE THEM STANDING, BOTH BECAUSE
15:44:54
15
ONE IS GOING TO BE ASSESSED UNDER NINTH CIRCUIT
15:44:58
16
LAW, THE OTHER UNDER THIRD CIRCUIT LAW.
15:45:00
17
15:45:02
18
THE TIMING OF SOME OF THE ACTS, AS SEEN BY THE
15:45:05
19
COURTS, I THINK, CAME OUT DIFFERENT.
15:45:08
20
POSSIBLE.
15:45:09
21
SO I THINK THERE'S A NUMBER OF ISSUES
15:45:11
22
THAT WE WILL BRIEF IN AN EFFORT TO PERSUADE THE
15:45:15
23
COURT NOT TO STAY THE MICRON CASE AND TO PERSUADE
15:45:18
24
YOU THAT WHAT JUDGE ROBINSON DOES IN HER CASE
15:45:21
25
SHOULD NOT AFFECT WHAT THIS COURT DOES IN ITS CASE
SAMSUNG, THE CASE -- THE MATTER IS PENDING BEFORE YOUR HONOR. AND NANYA, I THINK THERE'S GOING TO BE
SO I DO THINK WE'LL SEE SIGNIFICANT DIFFERENCES, AND THE COURT -- I THINK THE COURT IS
THE FACTUAL SCENARIO IS DIFFERENT, AND
SO IT'S
37
15:45:24
1
AND THAT WE SHOULD PROCEED TO TRIAL ON FEBRUARY
15:45:27
2
17TH AS THE COURT SUGGESTED AS A POSSIBLE TRIAL
15:45:30
3
DATE.
15:45:30
4
15:45:34
5
15:45:38
6
15:45:44
7
COURT'S TWO SCENARIOS AND JUST TRY TO BREAK THEM
15:45:47
8
DOWN.
15:45:49
9
15:45:51
10
JUDGMENT IN HYNIX I AFTER -- WHICH IS COMPLETED BUT
15:45:55
11
FOR DECISIONS ON VARIOUS MOTIONS AND ONE MATTER
15:45:58
12
THAT HAD BEEN TRIED TO THE COURT AS OPPOSED TO THE
15:46:01
13
JURY IN THE CONDUCT TRIAL.
15:46:02
14
AND I THINK IT'S APPROPRIATE TO, TO ENTER
15:46:05
15
JUDGMENT IN THAT CASE AS PROMPTLY AS THE COURT CAN.
15:46:09
16
15:46:12
17
ALREADY BEEN DONE, BUT IT'S -- IT HASN'T BEEN, SO I
15:46:15
18
DON'T THINK THERE'S ANY DISPUTE THAT THAT SHOULD
15:46:17
19
PROCEED.
15:46:17
20
15:46:19
21
RAISES THE QUESTION OF, YOU KNOW, THAT TAKES UP THE
15:46:22
22
CONDUCT TRIAL, THE JURY'S VERDICT IN THE CONDUCT
15:46:25
23
TRIAL.
15:46:26
24
15:46:29
25
NOW -- SO I THINK THAT'S A PREVIEW, I GUESS, OF WHAT WE'LL TRY TO ADDRESS IN THE BRIEFS. LET ME -- LET ME ADDRESS, IF I COULD, THE
THE FIRST IS, SHOULD THE COURT ENTER
THE COURT:
MR. STONE:
I, OBVIOUSLY, WISH IT HAD
OKAY.
AND SO THEN THAT
IT WOULD SEEM THAT THE OTHER PARTIES WHO HAVE AN INTEREST IN APPEALING FROM THAT VERDICT,
38
15:46:32
1
THAT THEIR APPEAL SHOULD GO UP AT THE SAME TIME
15:46:34
2
JUST IN THE INTERESTS OF JUDICIAL EFFICIENCY.
15:46:38
3
THINK THE FEDERAL CIRCUIT WOULD APPRECIATE THAT,
15:46:40
4
AND IT SEEMS TO ME TO MAKE SENSE.
15:46:42
5
15:46:44
6
DEFENDANTS WANT TO ARGUE THAT -- I GUESS THE
15:46:48
7
MANUFACTURERS ARE PLAINTIFFS IN THAT INSTANCE --
15:46:51
8
WANT TO ARGUE THAT THE FINDING THAT JUDGE ROBINSON
15:46:53
9
MADE SOMEHOW IMPACTS THE JURY'S VERDICT IN THE
15:46:56
10
CONDUCT TRIAL -- AND THE COURT WILL RECALL WE HAD A
15:46:59
11
STIPULATION AS TO HOW SPOLIATION WOULD BE TREATED
15:47:02
12
IN THE CONDUCT TRIAL, AND I DON'T THINK THERE'S ANY
15:47:05
13
ARGUMENT TO BE MADE THERE -- BUT THAT ISSUE SHOULD
15:47:07
14
GO UP ON THE RECORD OF THE CONDUCT TRIAL, NOT
15:47:09
15
ISOLATED.
15:47:12
16
SO I DO THINK THAT SHOULD GO UP.
15:47:14
17
IT MAKES SENSE TO ME, ALTHOUGH I
15:47:18
18
UNDERSTAND YOU CAN MAKE AN ARGUMENT TO THE CONTRARY
15:47:20
19
AND SOME OF THE APPELLATE DECISIONS WOULD SEEM TO
15:47:23
20
COME OUT TO THE CONTRARY, THAT THE SAMSUNG DECISION
15:47:26
21
THAT YOUR HONOR HAS UNDER SUBMISSION, THAT THAT
15:47:29
22
WOULD GO UP AT THE SAME TIME.
15:47:31
23
15:47:34
24
15:47:36
25
I
AND TO THE EXTENT THAT ANY OF THE
IT'S SIMILAR -- I MEAN, IT'S THE SAME ISSUE AND SO I UNDERSTAND WHY IT MIGHT. I UNDERSTAND THAT MANY APPELLATE COURTS,
39
15:47:38
1
INCLUDING THE FEDERAL CIRCUIT, MIGHT SAY, NO,
15:47:40
2
THAT'S JUST A PIECE OF THE WHOLE CASE AND WE SHOULD
15:47:42
3
TRY THE WHOLE CASE AND WE SHOULDN'T JUST SEND IT UP
15:47:45
4
PIECEMEAL.
15:47:46
5
15:47:49
6
I'M NOT SURE WHICH IS RIGHT AND WHETHER IT SHOULD
15:47:51
7
BE CERTIFIED OR NOT.
15:47:53
8
15:47:58
9
15:48:02
10
15:48:03
11
15:48:05
12
I THINK THERE THE ARGUMENT IS LESS STRONG THAT THAT
15:48:07
13
SHOULD GO UP BECAUSE IT'S NOT SIMILAR TO ANY
15:48:10
14
OTHERS.
15:48:10
15
15:48:13
16
VIEW, THE MOST UNLIKELY ONE FOR INTERLOCUTORY
15:48:18
17
APPEAL.
15:48:19
18
15:48:21
19
OBVIOUSLY YOUR CLAIM CONSTRUCTION IN HYNIX I WILL
15:48:23
20
GO UP.
15:48:27
21
THE COURT:
RIGHT.
15:48:27
22
MR. STONE:
WHETHER THE CLAIM
15:48:28
23
CONSTRUCTION HERE SHOULD BE CERTIFIED IN MY MIND
15:48:31
24
SORT OF FALLS IN -- I MEAN, A, YOU MIGHT MODIFY
15:48:34
25
CLAIM CONSTRUCTION DURING THE COURSE OF THE TRIAL.
I SEE BOTH SIDES OF THE SAMSUNG ISSUE AND
BUT I'LL THINK ABOUT IT SOME MORE AND TRY TO PROVIDE THE COURT WITH ANY HELPFUL INSIGHTS WE CAN. SIMILARLY, THE LICENSING ISSUE, ALTHOUGH
THE COURT:
MR. STONE:
I AGREE THAT THAT'S, IN MY
THE CLAIM CONSTRUCTION --
THAT'LL BE PART OF THE HYNIX VERDICT.
40
15:48:36
1
IT'S POSSIBLE THAT CERTAIN THINGS WILL NECESSITATE
15:48:39
2
THAT, OR THAT YOU WILL CONSTRUE ADDITIONAL CLAIMS
15:48:41
3
ALONG THE WAY.
15:48:42
4
15:48:46
5
IT'S IMPORTANT, AND THE FEDERAL CIRCUIT HAS SEEMED
15:48:48
6
TO MAKE IT CLEAR THAT THEY WANT A FULL RECORD ON
15:48:50
7
CLAIM CONSTRUCTION.
15:48:52
8
HAVE IT.
15:48:53
9
15:48:54
10
15:48:57
11
15:48:58
12
DECISIONS WHICH WOULD SUGGEST THAT THEY DON'T WANT
15:49:01
13
CERTIFICATION OF CLAIM CONSTRUCTIONS.
15:49:04
14
15:49:08
15
GENERALLY TAKEN THAT VIEW, BUT I'VE SENSED A LITTLE
15:49:10
16
BIT OF A SOFTENING OF THAT, AND I ALSO THINK THIS
15:49:14
17
CASE PRESENTS A VERY COMPELLING ARGUMENT FOR DOING
15:49:18
18
INTERLOCUTORY REVIEW OF CLAIM CONSTRUCTION.
15:49:20
19
MR. STONE:
15:49:24
20
ISSUE I'D LIKE TO THINK ABOUT.
15:49:26
21
THIS CASE HAS MANY UNIQUE ASPECTS TO IT, SO I DON'T
15:49:30
22
WANT TO TRY TO SAY THIS IS A RUN-OF-THE-MILL CASE,
15:49:32
23
NOR WOULD THE FEDERAL CIRCUIT, I THINK, LOOK AT
15:49:35
24
THIS AS AN ORDINARY CASE.
15:49:37
25
THE COMPLICATED ASPECT OF IT THAT THIS COURT HAS
AND AS WE'VE ARGUED PREVIOUSLY, I THINK
MAYBE THEY WILL THINK THEY
MAYBE THEY WILL THINK THE CASE SHOULD BE TRIED BEFORE THEY REVIEW CLAIM CONSTRUCTION. I THINK THEY CERTAINLY HAVE SOME
THE COURT:
WELL, THEY'VE CERTAINLY
SO -- AND I -- AGAIN, IT'S AN I APPRECIATE THAT
I THINK THEY WOULD SEE
41
15:49:40
1
CONFRONTED AND DEALT WITH.
15:49:43
2
15:49:44
3
SAMSUNG AND CLAIM CONSTRUCTION ARE SOMEWHAT
15:49:46
4
DIFFERENT IN MY MIND THAN THE OTHERS, BUT I
15:49:49
5
APPRECIATE THAT THEY'RE ALSO DIFFERENT FROM EACH
15:49:51
6
OTHER AND WOULDN'T NECESSARILY BE TREATED THE SAME
15:49:54
7
WAY.
15:49:54
8
15:49:57
9
15:49:59
10
FOR INTERLOCUTORY APPEAL, I DON'T THINK THAT'S A
15:50:02
11
REASON TO DELAY THIS TRIAL, AND I DO WANT TO
15:50:05
12
ADDRESS THAT.
15:50:07
13
15:50:12
14
STRONG ARGUMENT FOR AN INJUNCTION AT THE CONCLUSION
15:50:17
15
OF HYNIX I, WHICH THE COURT HAS UNDER SUBMISSION.
15:50:21
16
15:50:23
17
IT IS ALSO ABOUT RAMBUS'S RIGHT TO INJUNCTIVE
15:50:28
18
RELIEF.
15:50:29
19
15:50:32
20
COGNIZABLE INJURY TO RAMBUS FROM DELAY IN RECEIVING
15:50:37
21
ROYALTIES IF IT TURNS OUT AT THE END OF THE DAY
15:50:40
22
IT'S ENTITLED TO THEM, AND WE LAID THAT OUT IN THE
15:50:45
23
INJUNCTION PAPERS AND POST-JUDGMENT PLEADINGS WE
15:50:49
24
FILED IN CONNECTION WITH HYNIX I, AND I THINK THE
15:50:52
25
COURT'S AWARE OF THE FACT THAT IT IS NOT SIMPLY --
SO I THINK THE LICENSING ISSUE FOR
I THINK WHICHEVER THINGS GO UP, THE HYNIX I JUDGMENT AND WHATEVER THINGS ARE CERTIFIED
AS THE COURT KNOWS, RAMBUS MADE A VERY
THIS IS A CASE NOT JUST ABOUT DAMAGES.
MOREOVER, IT'S A CASE IN WHICH THERE IS
42
15:50:55
1
A DOLLAR PLUS INTEREST DEFERRED IS NOT THE
15:50:58
2
EQUIVALENT TO RAMBUS OF A DOLLAR TODAY.
15:51:01
3
15:51:05
4
DIFFERENT SITUATION THAN THAT WHERE TRYING TO
15:51:07
5
RESOLVE THESE MATTERS PROMPTLY MAKES A HUGE
15:51:10
6
DIFFERENCE.
15:51:11
7
15:51:13
8
APPRECIATES, THERE ARE REAL ISSUES WITH RESPECT TO
15:51:16
9
WITNESSES CONTINUING TO HAVE AS GOOD A RECALL AS
15:51:21
10
THEY HAD WHEN THE EVENTS OCCURRED, AND A DELAY -- I
15:51:25
11
THINK IT WOULD BE OPTIMISTIC TO SUGGEST THAT THE
15:51:27
12
COURT COULD GET THE CASE BACK IN 18 MONTHS.
15:51:30
13
THINK WE'RE LOOKING AT SOMETHING LONGER THAN THAT,
15:51:33
14
PROBABLY TWO YEARS.
15:51:34
15
15:51:37
16
WITH RESPECT TO SOME OF THE WITNESSES WHO ARE
15:51:38
17
CRITICAL TO THIS CASE, SOME OF WHOM, FOR WHOM THERE
15:51:44
18
CONTINUES TO BE SOME HEALTH ISSUES, AND OTHERS FOR
15:51:47
19
WHOM JUST THE PASSAGE OF TIME, I THINK, MAKES IT
15:51:50
20
MORE DIFFICULT FOR THEIR TESTIMONY TO BE AS
15:51:54
21
COMPLETE AND WITH AS GOOD A RECALL AS THEY HAVE HAD
15:51:56
22
IN THE PAST.
15:51:57
23
SO I THINK THE COURT --
15:51:58
24
THE COURT:
15:52:00
25
INDEED, THE COMPANY IS IN A MUCH
IN ADDITION, AS I KNOW THE COURT ALSO
I
TWO YEARS IS A SIGNIFICANT PERIOD OF TIME
HAVEN'T MOST OF THESE
WITNESSES BEEN DEPOSED ABOUT FIVE TIMES?
43
15:52:03
1
MR. STONE:
I WOULD SAY MOST OF THEM HAVE
15:52:05
2
BEEN DEPOSED MANY MORE THAN FIVE TIMES, YOUR HONOR.
15:52:08
3
THAT I DO AGREE WITH.
15:52:11
4
TESTIMONY.
15:52:11
5
15:52:13
6
HAVE FELT IT'S A DIFFERENCE, THERE WAS CERTAINLY A
15:52:15
7
DIFFERENCE IN THE TRIAL BEFORE JUDGE ROBINSON AND
15:52:18
8
THE TRIAL HERE, IS OUR ABILITY TO GET WITNESSES WHO
15:52:20
9
NO LONGER WORK FOR RAMBUS AND HAVE NO PARTICULAR
15:52:23
10
TIES TO RAMBUS TO APPEAR VOLUNTARILY CONTINUES TO
15:52:26
11
BE A STRUGGLE WHEN WE'RE IN DELAWARE, OR OUTSIDE OF
15:52:29
12
CALIFORNIA, AND IT'S MUCH EASIER FOR US TO PROCURE
15:52:33
13
THEIR ATTENDANCE HERE.
15:52:34
14
15:52:36
15
TESTIMONY TO BE TAKEN LIVE RATHER THAN THROUGH
15:52:39
16
DEPOSITION OR PRIOR TRIAL TESTIMONY.
15:52:42
17
15:52:44
18
THIS TRIAL AS EXPEDITIOUSLY AS POSSIBLE WITH
15:52:48
19
WHICHEVER PARTIES, WE THINK IT SHOULD INCLUDE
15:52:51
20
MICRON, BUT CLEARLY I RECOGNIZE MICRON'S IN A
15:52:54
21
DIFFERENT POSITION THAN THE OTHER THREE, AND INDEED
15:52:57
22
EACH OF THE OTHER THREE IS IN A DIFFERENT POSITION,
15:52:59
23
HYNIX HAVING TRIED THE CASE AND RECEIVED A
15:53:02
24
DECISION; SAMSUNG HAVING TRIED IT AND AWAITING A
15:53:05
25
DECISION; NANYA NOT HAVING YET TRIED THE
AND WE HAVE LOTS OF CAPTURED
BUT AS I THINK THE COURT KNOWS, AND WE
AND WE DO THINK IT'S PREFERABLE FOR THEIR
SO WE WOULD URGE YOU TO GO FORWARD WITH
44
15:53:08
1
SPOLIATION.
15:53:09
2
I THINK THERE ARE DIFFERENCES THERE, BUT
15:53:12
3
I THINK WITH WHICHEVER PARTIES, WE THINK IT SHOULD
15:53:14
4
BE ALL FOUR, THAT TRIAL SHOULD MOVE FORWARD AS SOON
15:53:17
5
AS WE CAN.
15:53:18
6
15:53:20
7
15:53:21
8
15:53:24
9
15:53:26
10
AFTER THE TRIAL THAT IS CURRENTLY SET, WE WILL HAVE
15:53:30
11
COMPLETED TRIAL OF ALL OF THE ISSUES FOR SAMSUNG;
15:53:32
12
AND IF MICRON IS IN IT, ALL OF THE ISSUES FOR
15:53:36
13
MICRON; AND WHAT WILL REMAIN TO BE TRIED, I THINK,
15:53:39
14
IS JUST THE NANYA SPOLIATION CLAIM.
15:53:41
15
15:53:43
16
TIMING WOULD BE SUCH THAT THE APPEALS WOULD
15:53:46
17
ULTIMATELY BE CONSOLIDATED, THAT A TRIAL NOW WOULD
15:53:50
18
RESULT IN ALL OF THOSE ISSUES, AND PERHAPS WE COULD
15:53:52
19
DO THE NANYA ONE QUICKLY AND EVEN THE NANYA ONE
15:53:56
20
BEING PUT ON THE SAME APPELLATE SCHEDULE, SO THAT
15:53:59
21
ALL OF THE ISSUES AND FINAL JUDGMENTS IN ALL OF THE
15:54:01
22
CASES COULD BE BEFORE THE FEDERAL CIRCUIT AT ONE
15:54:04
23
TIME.
15:54:04
24
15:54:07
25
I THINK IT'S IN THE INTERESTS OF JUDICIAL ECONOMY AND EFFICIENCY. AND, IN FACT, I THINK WHAT IT WOULD ALLOW IS IT WOULD ALLOW A DECISION IN THIS CASE, WHICH
SO WE WOULD BE ABLE -- AND I THINK THE
THAT, I THINK, WOULD ACCOMPLISH MORE IN THE INTERESTS OF JUDICIAL EFFICIENCY AND MORE TO
45
15:54:09
1
ACHIEVE THE GOAL THAT SOME OF THE MANUFACTURERS'
15:54:15
2
COUNSEL HAVE SPOKEN TO OF SORT OF GETTING AN
15:54:18
3
INDUSTRY-WIDE RESOLUTION.
15:54:20
4
FEDERAL CIRCUIT ALL OF THE PARTIES AND ALL OF THE
15:54:23
5
ISSUES IN FRONT OF THEM AT ONE TIME.
15:54:27
6
15:54:31
7
MINE ALL ALONG, BUT, FRANKLY, HAVEN'T APPEARED TO
15:54:34
8
BE MUCH OF A CONCERN OF THE PARTIES, BUT I'M NOW
15:54:39
9
HEARING TALK OF CONCERNS FROM MICRON AND RAMBUS AND
15:54:47
10
15:54:53
11
15:54:56
12
PARTIES ADDRESS THE JUDICIAL EFFICIENCY/ECONOMY
15:55:03
13
ISSUE FOR ME, AND PERHAPS EVEN SUPPORT THAT BY SOME
15:55:08
14
EVIDENCE.
15:55:10
15
15:55:12
16
15:55:13
17
15:55:14
18
IN MY MIND AS TO WHETHER OR NOT IT'S MORE EFFICIENT
15:55:22
19
AND COST EFFECTIVE TO GET EVERYTHING WOUND UP NOW,
15:55:25
20
OR TO TAKE UP SOME ISSUES THAT ARE ISSUES THAT, AT
15:55:31
21
LEAST IN MY VIEW, COULD PRESENT SOME GENUINELY
15:55:36
22
TOUGH ISSUES ON APPEAL THAT COULD GO EITHER WAY.
15:55:39
23
15:55:42
24
TRY TO COLLECT THOSE THOUGHTS AND SOME EVIDENCE TO
15:55:45
25
SUPPORT IT.
THE COURT:
THAT WOULD GIVE THE
COSTS HAVE BEEN A CONCERN OF
OTHERS. IT WOULD BE INTERESTING TO HAVE THE
MR. STONE:
WELL, WE CERTAINLY WILL
INCLUDE THAT -THE COURT:
MR. STONE:
BECAUSE THAT'S A REAL ISSUE
AND I THINK I WOULD LIKE TO
46
15:55:46
1
BUT I THINK, TO THE EXTENT I HAVE HAD
15:55:49
2
SOME TIME TO THINK ABOUT IT, MY VIEW IS, AT THE
15:55:51
3
MOMENT AT LEAST, THAT WE ACHIEVE REAL EFFICIENCIES
15:55:54
4
BY PROCEEDING FORWARD TO TRIAL AND TRYING TO GET
15:55:57
5
ALL THE ISSUES IN FRONT OF THE APPELLATE COURT.
15:56:00
6
15:56:02
7
THAT, AS ISSUES HAVE BEEN DECIDED, BUT ENTIRE
15:56:07
8
CLAIMS HAVEN'T BEEN DECIDED, THAT IT HASN'T DONE
15:56:10
9
MUCH TO ADVANCE THE ULTIMATE RESOLUTION OF THE
15:56:13
10
15:56:14
11
15:56:16
12
15:56:17
13
15:56:19
14
DIRECTION WE'VE BEEN POINTED IN FROM TIME TO TIME,
15:56:22
15
AND IT HAS MOVED US ON DIFFERENT COURSES, BUT I
15:56:25
16
DON'T THINK IT'S RESULTED IN THE CONCLUSION THAT I
15:56:26
17
THINK YOU HEAR EVERYBODY SAYING IS DESIRABLE.
15:56:31
18
THEY OBVIOUSLY ALL WANT A CONCLUSION THAT
15:56:34
19
GOES ONE WAY OR THE OTHER, BUT I DON'T HEAR ANYBODY
15:56:37
20
SAYING TODAY THEY DON'T WANT SOME FINALITY, AND I
15:56:40
21
THINK THAT -- AND I'D LIKE TO ADDRESS IT IN OUR
15:56:42
22
BRIEF -- THAT THE PROPOSAL THAT I'VE AT LEAST
15:56:45
23
SKETCHED OUT WOULD BEST ACHIEVE THAT.
15:56:48
24
THE COURT:
OKAY.
15:56:49
25
MR. STONE:
THANK YOU.
OUR HISTORY IN THIS CASE HAS SUGGESTED
CASES. THE COURT:
UNFORTUNATELY, I CAN'T
MR. STONE:
IT HAS SOMETIMES CHANGED THE
DISAGREE.
THANK YOU.
47
15:56:50
1
THE COURT:
ANYBODY HAVE ANY ADDITIONAL
15:56:51
2
15:56:53
3
15:56:57
4
15:56:58
5
15:57:03
6
AS LAID OUT BY YOUR HONOR HAS THE ADDITIONAL
15:57:05
7
ADVANTAGE OF ALLOWING THE PATENT OFFICE PROCEDURES
15:57:07
8
TO LET PLAY OUT AS WELL, AND THAT ADDS, AS YOUR
15:57:14
9
HONOR RECALLS FROM THE PRIOR MOTION, SIGNIFICANT
15:57:16
10
WEIGHT TO THE JUDICIAL ECONOMY AND FAIRNESS
15:57:21
11
CONSIDERATIONS, BECAUSE IF YOU FOLLOWED OPTION A,
15:57:24
12
YOU WOULD, IN ALL LIKELIHOOD, HAVE FINAL DECISIONS
15:57:27
13
FROM THE PTO ON THE PATENTS AT ISSUE.
15:57:30
14
15:57:32
15
TOWARDS THAT ALREADY.
15:57:35
16
I BELIEVE, IN ALL THE PATENTS STATING THERE'S A
15:57:39
17
SUBSTANTIAL NEW QUESTION OF PATENTABILITY, AND IF,
15:57:42
18
IN FACT, ALL OF THOSE PATENTS ARE FOUND INVALID,
15:57:47
19
THEN I THINK YOUR HONOR WILL SEE THE JUDICIAL
15:57:50
20
EFFICIENCY AS BEING QUITE SIGNIFICANT.
15:57:53
21
15:57:58
22
15:58:00
23
15:58:05
24
15:58:07
25
BRIEF COMMENTS? MR. POWERS:
JUST TWO ADDITIONAL THOUGHTS
AND ONE QUESTION. ONE ADDITIONAL THOUGHT IS THAT OPTION A
THE PATENT OFFICE HAS BEEN PROGRESSING
THE COURT:
WE NOW HAVE FINAL DECISIONS,
WHAT -- I DON'T KNOW OFF THE
TOP OF MY HEAD. WHAT IS THE EFFECT OF GOING TO JUDGMENT ON THIS CASE WITH RESPECT TO THE RE-EXAM? MR. POWERS:
IT WOULD HAVE NO EFFECT AT
48
15:58:09
1
THE MOMENT.
THE WAY IT WORKS IS THE RE-EXAM
15:58:12
2
PROGRESSES AND THE APPEALS PROGRESS, AND WHICHEVER
15:58:15
3
ONE IS DECIDED FIRST AT THE FEDERAL CIRCUIT DECIDES
15:58:18
4
THE OTHER.
15:58:19
5
THE COURT:
15:58:21
6
MR. POWERS:
15:58:23
7
ALL THE -- THAT PATENT X WAS FOUND INVALID, RAMBUS
15:58:28
8
APPEALED THAT TO THE FEDERAL CIRCUIT, AND THAT
15:58:31
9
APPEAL STARTED BEFORE, OR WAS RESOLVED BEFORE ANY
15:58:35
10
APPEAL FROM A SIMILAR VALIDITY QUESTION ON THE SAME
15:58:38
11
PATENT HERE, THAT DECIDES THE QUESTION.
15:58:40
12
15:58:43
13
FROM -- OR PTO DECISION THAT THE PATENTS ARE
15:58:46
14
INVALID, OR A DECISION FROM THIS COURT THAT THE
15:58:49
15
PATENTS -- THAT A PATENT WAS INVALID DOESN'T STOP
15:58:53
16
THE OTHER ONE?
15:58:54
17
MR. POWERS:
15:58:55
18
THE COURT:
15:58:57
19
15:58:58
20
MR. POWERS:
15:59:00
21
SECOND -- THE SECOND THOUGHT -- AND
15:59:02
22
OBVIOUSLY YOUR HONOR DENIED THAT MOTION TO STAY
15:59:06
23
UNDER SUBSTANTIALLY DIFFERENT CIRCUMSTANCES, BUT I
15:59:10
24
DON'T THINK -- I DON'T THINK IT'S -- I THINK IT'S
15:59:12
25
FAIR TO SAY THAT THE OPPORTUNITY TO HAVE THAT
THE COURT:
SO -- OKAY. SO IF THE PTO -- LET'S SAY
SO AN INITIAL DECISION
CORRECT. IT'S ONLY THE FEDERAL CIRCUIT
DECISION THAT DOES? THAT'S MY UNDERSTANDING.
49
15:59:17
1
PROCESS PLAY ITSELF OUT LENDS SUBSTANTIAL
15:59:20
2
ADDITIONAL WEIGHT IN FAVOR OF OPTION A OVER OPTION
15:59:23
3
B.
15:59:24
4
A SECOND THOUGHT WITH REGARD TO THE COSTS
15:59:27
5
OF PROCEEDING FORWARD, PROCEEDING WITH THE PARTIES,
15:59:31
6
AND THIS IS TRUE ON BOTH SIDES OF THE V, IN THE
15:59:35
7
CURRENT ECONOMIC CLIMATE, THE MILLIONS OF DOLLARS
15:59:41
8
THAT WOULD BE SPENT BY BOTH SIDES ON GOING TO TRIAL
15:59:45
9
CAN BE MUCH BETTER SPENT IN MANY OTHER WAYS.
15:59:48
10
THE -- THE ECONOMIC CONDITIONS ARE
15:59:50
11
AFFECTING EVERY SINGLE COMPANY IN THIS ROOM IN A
15:59:54
12
VERY, VERY SUBSTANTIAL WAY, AND I THINK THAT CAN'T
15:59:56
13
BE IGNORED.
15:59:58
14
16:00:01
15
16:00:03
16
16:00:06
17
16:00:06
18
THE COURT:
16:00:07
19
MR. POWERS:
16:00:09
20
16:00:11
21
THE COURT:
16:00:12
22
MR. POWERS:
16:00:14
23
16:00:15
24
16:00:17
25
THE COURT:
AND, YET, THEY CAN'T FOR SOME
REASON REACH ANY KIND OF RESOLUTION. MR. POWERS:
IT TAKES TWO TO TANGO, AND
THE -RIGHT. WITHOUT COMMENTING ON WHO'S
NOT TANGOING, IT TAKES TWO. RIGHT. NO PARTY CAN DO THAT
UNILATERALLY. THE COURT:
WELL, IT TAKES MORE THAN TWO
IN THIS CASE BECAUSE OF THE MARKETPLACE.
50
16:00:19
1
MR. POWERS:
16:00:21
2
THE THIRD POINT, WHICH IS REALLY A
16:00:24
3
QUESTION, HAS TO DO WITH WHETHER YOUR HONOR WANTS
16:00:26
4
TO CONTINUE TO PROCEED WITH THE HEARING WE HAD
16:00:29
5
SCHEDULED FOR FRIDAY AFTERNOON.
16:00:31
6
16:00:34
7
DIDN'T SAY IT AT THE BEGINNING, WAS TO FREE THE
16:00:42
8
PARTIES UNTIL THE 30TH, AND THEN SCHEDULE PERHAPS
16:00:47
9
TWO DAYS THE WEEK OF THE 9TH TO -- TWO HALF DAYS
16:00:52
10
16:00:56
11
MR. POWERS:
OKAY.
16:00:58
12
MR. BOBROW:
YOUR HONOR, VERY BRIEFLY ON
16:01:01
13
THE ISSUE OF THE CERTIFICATION POINT THAT YOU
16:01:04
14
RAISED.
16:01:05
15
I SIMPLY WANTED TO ECHO THE THOUGHT THAT
16:01:07
16
MR. NISSLY HAD, WHICH IS THAT, AND PARTICULARLY IN
16:01:11
17
MICRON'S CASE, I THINK THAT IT WOULD BE
16:01:14
18
FUNDAMENTALLY UNFAIR, PREJUDICIAL, TO CERTIFY THE
16:01:16
19
ANTITRUST ISSUES FROM THE CONSOLIDATED CONDUCT
16:01:19
20
TRIAL UNLESS AND UNTIL THE COURT RESOLVES THE ISSUE
16:01:23
21
THAT WE'RE GOING TO PUT TO YOU ON SUMMARY JUDGMENT
16:01:25
22
AND WE HAVE OUR DECISION ON WHAT IS ESSENTIALLY THE
16:01:31
23
UNCLEAN HANDS, SPOLIATION, AND MISCONDUCT ISSUES,
16:01:35
24
BECAUSE JUDGE ROBINSON'S FINDING THAT THE ANTITRUST
16:01:42
25
CASE AND DEFENSE WAS TAINTED IS, WE SUBMIT AND WILL
THE COURT:
THAT'S FAIR.
MY SUGGESTION WAS, IF I
THE WEEK OF THE 9TH TO FINISH UP PRETRIAL MATTERS. THANK YOU.
51
16:01:45
1
BRIEF, BINDING ON THIS COURT.
16:01:47
2
16:01:49
3
CERTIFY THAT ISSUE WITHOUT TAKING TO GROUND THE
16:01:52
4
ISSUE OF MISCONDUCT AND THE ISSUE OF SPOLIATION AS
16:01:56
5
TO MICRON IS FUNDAMENTALLY UNFAIR.
16:01:59
6
16:02:01
7
16:02:03
8
AND WHAT THE --
16:02:04
9
THE COURT:
16:02:07
10
16:02:08
11
HONOR TO SAY THAT ALL OF THOSE SPOLIATION ISSUES
16:02:11
12
WERE GOING TO GET RESOLVED AND CERTIFIED AS WELL.
16:02:14
13
PERHAPS I MISUNDERSTOOD.
16:02:15
14
16:02:22
15
CERTAINLY MY THOUGHT WOULD BE THAT ALL SPOLIATION
16:02:24
16
ISSUES WOULD GO AT THE SAME TIME.
16:02:27
17
JUDGE ROBINSON WOULD HAVE TO BE CONSOLIDATED IN
16:02:31
18
SOME WAY.
16:02:32
19
16:02:34
20
EFFECT, BY FINDING THAT IT HAS COLLATERAL ESTOPPEL
16:02:37
21
EFFECT AND DETERMINING IN THIS CASE, AND
16:02:39
22
ESSENTIALLY ENTERING THOSE FINDINGS IN THIS CASE,
16:02:42
23
BECAUSE WITHOUT THAT, THEN WE'RE PREJUDICED.
16:02:44
24
SO THAT'S MY POINT IS WE HAVE --
16:02:45
25
THE COURT:
AND BECAUSE OF THAT TAINT, TO THEN
THOSE ISSUES, IT SEEMS TO ME, HAVE TO GO UP AT THE SAME TIME.
MR. BOBROW:
THE COURT:
WHAT'S -I DIDN'T UNDERSTAND YOUR
I'M -- MY CONCERN --
THE ONES FROM
I COULDN'T DO THAT. MR. BOBROW:
BUT -- YES, YOU CAN, IN
WHY?
52
16:02:47
1
MR. BOBROW:
16:02:48
2
FINDING THAT WE DIDN'T GET A FAIR TRIAL, IN EFFECT,
16:02:51
3
ON THE ISSUE OF ANTITRUST.
16:02:54
4
WERE INNUMERABLE DOCUMENTS ACROSS RAMBUS'S BUSINESS
16:02:57
5
THAT HAD BEEN SPOLIATED.
16:02:58
6
16:03:00
7
16:03:01
8
16:03:04
9
16:03:07
10
16:03:09
11
CERTIFICATION AS TO JUST PHASE 1 OF THE 244 CASE --
16:03:13
12
WE HAVE THE 244 MICRON-ONLY CASE.
16:03:16
13
OF THAT THAT HAS GONE TO TRIAL IS THE CONDUCT
16:03:18
14
PHASE.
16:03:18
15
16:03:20
16
ROBINSON'S FINDINGS AND DETERMINATION, THAT PHASE
16:03:24
17
HAS BEEN TAINTED.
16:03:25
18
16:03:27
19
FORCE MICRON TO THEN APPEAL THAT ISSUE IN A VACUUM
16:03:30
20
IN THIS CASE ALONE, WITH ONLY THE HYNIX SPOLIATION
16:03:35
21
DECISION GOING UP AS WELL IS FUNDAMENTALLY UNFAIR
16:03:39
22
TO MICRON.
16:03:39
23
16:03:42
24
WE HAVE, AND WE THINK IT'S PROPER, WE HAVE A
16:03:45
25
SPOLIATION DECISION BASED UPON COLLATERAL ESTOPPEL,
THE COURT:
BECAUSE SHE HAS MADE A
SHE FOUND THAT THERE
BUT THAT'S GOING TO GO UP ON
APPEAL, RIGHT? MR. BOBROW:
WELL, PRESUMABLY RAMBUS MAY
DECIDE TO APPEAL THAT IN THE DELAWARE CASE. I'M SAYING THAT IN THIS CASE, TO ALLOW
THE ONLY ASPECT
THAT PHASE, WE SUBMIT, HAS -- BY JUDGE
TO ALLOW THAT TO GO UP ON APPEAL AND
IT SEEMS TO ME THAT AS TO MICRON, EITHER
53
16:03:48
1
OR WE HAVE TO HAVE PHASE 3 ADJUDICATED IN THIS
16:03:53
2
CASE.
16:03:53
3
16:03:55
4
AS RAMBUS SAID, AND I THINK EVERYBODY AGREED, THERE
16:03:58
5
SHOULD BE ONE SHOT AND RAMBUS HAD IT AND LOST.
16:04:02
6
16:04:04
7
AND ALLOWING THAT RECORD TO GO UP WITHOUT GIVING US
16:04:08
8
THE OPPORTUNITY TO LITIGATE PHASE 3 OF THIS CASE WE
16:04:11
9
THINK IS UNFAIR.
16:04:12
10
16:04:14
11
16:04:16
12
16:04:19
13
16:04:21
14
16:04:23
15
CONSTRUCTION GOES UP IS A TOTALLY DIFFERENT
16:04:25
16
QUESTION, BUT THE ISSUE OF THE ANTITRUST CASE AND
16:04:29
17
US BEING FORCED TO DEAL WITH THAT ON APPEAL NOW
16:04:32
18
SEEMS TO ME IS FUNDAMENTALLY UNFAIR.
16:04:35
19
16:04:36
20
ESSENTIALLY, THE JUDGMENT OF COLLATERAL ESTOPPEL
16:04:39
21
AND THEN, OF COURSE, THAT OPTION BECOMES VIABLE FOR
16:04:42
22
MICRON.
16:04:42
23
SHORT OF THAT, IT'S NOT.
16:04:44
24
THE COURT:
16:04:46
25
WE THINK THAT WOULD BE IMPROPER BECAUSE,
BUT THERE ARE THREE PHASES TO THIS CASE,
JUDGE ROBINSON FOUND THAT OUR DEFENSE WAS PREJUDICED. AND THEN TO ALLOW IT TO GO UP ON THE HYNIX RECORD IS NOT FAIR TO MICRON. NOW, THE QUESTION OF WHETHER CLAIM
THE COURT WOULD HAVE TO ENTER,
IF THE COURT OF APPEALS
CONSOLIDATED THE APPEALS, RAMBUS'S APPEAL FROM THE
54
16:04:50
1
MICRON CASE WITH AN APPEAL FROM THIS CASE, THAT
16:04:55
2
WOULD SOLVE THE PROBLEM, WOULDN'T IT?
16:04:56
3
MR. BOBROW:
16:04:59
4
THE COURT:
16:05:02
5
MR. BOBROW:
16:05:04
6
16:05:06
7
16:05:08
8
THAT ALLOWS MICRON TO BE ABLE TO HAVE, IN HAND ON
16:05:11
9
THAT APPEAL, THAT ISSUE BEING ADJUDICATED IN ITS
16:05:14
10
16:05:15
11
16:05:17
12
DIDN'T CREATE AND WERE NOT GIVEN THE OPPORTUNITY TO
16:05:20
13
ADDRESS THAT ISSUE FULLY AND COMPLETELY ON APPEAL.
16:05:23
14
THE COURT:
16:05:29
15
MR. NISSLY:
16:05:32
16
16:05:33
17
16:05:36
18
MR. BOBROW HIGHLIGHTS A POINT THAT I WAS TRYING TO
16:05:40
19
MAKE BEFORE, WHICH IS THAT THIS SPOLIATION ISSUE IS
16:05:43
20
THE ISSUE WHICH CUTS ACROSS ALL OF THESE CLAIMS,
16:05:49
21
AND EVERY TIME ANOTHER ISSUE GETS TOUCHED OR
16:05:54
22
ANOTHER ISSUE GETS BROUGHT IN, WE DEVELOP ALL THESE
16:05:57
23
OTHER ARGUMENTS AND COMPLICATIONS ABOUT THE
16:06:00
24
POTENTIAL IMPACT OF THIS DECISION ON THAT ISSUE AND
16:06:03
25
THIS DECISION ON THE OTHER ISSUE.
YOU MEAN THE DELAWARE CASE? YES, IF I MISSPOKE. TO THE EXTENT THAT THERE IS
CONSOLIDATION, I THINK THAT AMELIORATES THE ISSUE. BUT I THINK THAT HAS TO GO UP IN A WAY
FAVOR. OTHERWISE WE'RE STUCK WITH A RECORD WE
OKAY. YOUR HONOR, I'LL JUST MAKE A
COUPLE OF BRIEF POINTS. I THINK THE DISCUSSION WITH MR. STONE AND
55
16:06:09
1
PEOPLE ASK ME, HOW COME THIS CASE IS SO
16:06:11
2
COMPLICATED?
16:06:14
3
OF ISSUES HERE THAT CUT ACROSS A LOT OF
16:06:16
4
MANUFACTURERS WITH VERY DIFFICULT LAW.
16:06:19
5
16:06:21
6
ACROSS, IT DOES CUT THIS KNOT, AND IF WE COMPLICATE
16:06:25
7
IT WITH THE CONDUCT CASE AND ALL THESE OTHER
16:06:29
8
ISSUES, IT SEEMS TO ME WE ARE DOING SOMETHING THAT
16:06:32
9
WE SHOULD NOT DO IN TERMS OF JUDICIAL EFFICIENCY
16:06:35
10
AND THAT THE BEST WAY TO DO THIS IS TO CUT THROUGH
16:06:38
11
IT.
16:06:38
12
16:06:40
13
16:06:42
14
16:06:44
15
VARIETY -- OR THESE CASES UP IN A VARIETY OF WAYS
16:06:47
16
IN THE HOPES OF BEING EFFICIENT.
16:06:51
17
HINDSIGHT WE HAVE BEEN OR NOT IS ANOTHER QUESTION
16:06:53
18
PERHAPS.
16:06:54
19
MR. NISSLY:
16:06:54
20
THE COURT:
16:07:01
21
SPOLIATION ISSUE AND THAT GOES UP ON APPEAL AND THE
16:07:09
22
MANUFACTURERS AREN'T FULLY SUCCESSFUL ON THEIR --
16:07:13
23
OR IN THEIR POSITION ON APPEAL, THE COURT SAYS,
16:07:17
24
"WELL, THERE'S SPOLIATION, BUT THERE WAS TOO HARSH
16:07:20
25
A REMEDY, "OR "YES, THERE WAS SPOLIATION, BUT
AND I EXPLAIN, LOOK, THERE ARE A LOT
BUT HERE WE HAVE AN ISSUE THAT DOES CUT
THE COURT:
LET ME RAISE THE QUESTION,
THOUGH, THAT I THINK YOU RAISED. OBVIOUSLY WE'VE CUT THIS CASE UP IN A
WHETHER IN
RIGHT. BUT IF WE CARVE OUT THE
56
16:07:25
1
THERE'S NO SHOWING THAT ANY MATERIAL DOCUMENTS WERE
16:07:28
2
MISSING," OR WHATEVER --
16:07:30
3
MR. NISSLY:
16:07:31
4
THE COURT:
16:07:39
5
TRY THE CASE WITHOUT A RESOLUTION OF CLAIM
16:07:44
6
CONSTRUCTION OR OTHER ISSUES, CLAIM CONSTRUCTION
16:07:53
7
BEING THE MAIN ONE, OR -- AND WE HAVE TO DO IT
16:07:59
8
OVER, PERHAPS DO IT AGAIN, WHICH IS GOING TO PUT
16:08:02
9
THE FINAL RESOLUTION FURTHER DOWN THE ROAD.
16:08:04
10
16:08:07
11
DOESN'T IT MAKE SENSE EITHER TO GO UP ON APPEAL ON
16:08:13
12
EVERYTHING, ESSENTIALLY, THAT'S POSSIBLE TO GO UP
16:08:15
13
ON -- NOW, PERHAPS, WITHOUT THE SAMSUNG LICENSING
16:08:23
14
ISSUE -- SO THAT THE RULES ARE PRETTY CLEAR WHEN
16:08:33
15
THE CASE COMES BACK TO BE TRIED, IF IT COMES BACK,
16:08:37
16
AS OPPOSED TO DOING AN APPEAL THAT STAYS EVERYTHING
16:08:43
17
ELSE AND IF THE MANUFACTURERS AREN'T FULLY
16:08:49
18
SUCCESSFUL ON THE SPOLIATION, WE'VE STILL GOT ALL
16:08:55
19
THESE OTHER ISSUES REMAINING, WHICH COULD REQUIRE
16:08:57
20
ANOTHER APPEAL AND ANOTHER TRIAL?
16:08:59
21
16:09:00
22
THAT IS THIS, YOUR HONOR:
16:09:03
23
CONSTRUCTION IS A, IS ONE THAT PERHAPS BELONGS IN
16:09:07
24
ITS OWN BUCKET BECAUSE OF THE ROLE OF CLAIM
16:09:10
25
CONSTRUCTION AND THE DE NOVO REVIEW.
RIGHT. -- THEN IT COMES BACK AND WE
SO I GUESS WHAT I'M SAYING IS, WHY
MR. NISSLY:
MY THOUGHT IN RESPONSE TO AND, AGAIN, THE CLAIM
57
16:09:13
1
BUT WHAT I SUGGEST TO YOU IS THAT IF WE
16:09:16
2
GET THE SPOLIATION ISSUE RESOLVED, ALL THOSE OTHER
16:09:20
3
ISSUES HAVE BEEN TRIED ONE WAY OR ANOTHER.
16:09:23
4
RECORD IS COMPLETE.
16:09:24
5
16:09:26
6
HAVE BEEN DEPOSED MULTIPLE TIMES.
THEY ALL HAVE
16:09:29
7
VIDEO DEPOSITION TAPES AVAILABLE.
ALL OF THIS WORK
16:09:32
8
THAT HAS BEEN DONE OVER ALL THESE YEARS IS NOT
16:09:35
9
GOING AWAY.
16:09:37
10
16:09:39
11
APPEAL ON ALL THESE VARIOUS ASPECTS, I SUBMIT AND
16:09:42
12
SUGGEST TO THE COURT THAT THAT'S NOT A WAY TO
16:09:45
13
PROCEED HERE, IT'LL MAKE THINGS WORSE, AND THAT THE
16:09:49
14
WAY TO PROCEED IS TO CARVE OUT THIS ONE ISSUE THAT
16:09:51
15
DOES GO ACROSS ALL OF THESE PATENTS AND ALL OF
16:09:54
16
THESE CLAIMS AND FIND OUT, ONCE AND FOR ALL, IS
16:09:57
17
RAMBUS PERMITTED TO ASSERT THESE CLAIMS OR NOT, BY
16:10:00
18
THE COURT OF APPEAL, AND GET THAT RESOLVED.
16:10:03
19
EVERYTHING ELSE IS IN THE CAN IN THE
16:10:04
20
SENSE THAT YOU HAVE CONSTRUED THESE CLAIMS, OR
16:10:07
21
MAYBE THE CIRCUIT TAKES A LOOK AT THAT.
16:10:11
22
ISSUES HAVE BEEN TRIED AND THEN WE SEE WHERE WE
16:10:13
23
ARE.
16:10:14
24
16:10:16
25
THE
AS THE COURT NOTED, ALL THESE WITNESSES
BUT IF 15 ISSUES GO UP TO THE COURT OF
THESE
BUT WE START TALKING ABOUT APPEALING DETERMINATIONS FROM THE CONDUCT CASE WHEN MICRON
58
16:10:19
1
ARGUES, "NOT FAIR AS TO US," WE ARGUE THAT WASN'T
16:10:22
2
FAIR, THAT TRIAL WAS TAINTED BY SPOLIATION, THERE
16:10:25
3
ARE ALL THESE OTHER COMPLEX ISSUES AND FACTS THAT
16:10:28
4
MAKE IT SO DIFFICULT TO SORT OUR WAY THROUGH THAT
16:10:31
5
WE OUGHT TO FOCUS ON THE ONE ISSUE THAT'LL CUT
16:10:34
6
ACROSS ALL OF THESE.
16:10:35
7
THE COURT:
OKAY.
16:10:37
8
16:10:38
9
MR. STONE:
UM --
16:10:41
10
THE COURT:
YOU CERTAINLY DON'T HAVE TO.
16:10:42
11
16:10:45
12
16:10:47
13
16:10:48
14
16:10:50
15
THE MANUFACTURERS BROUGHT THEIR JEDEC CLAIM AGAINST
16:10:54
16
RAMBUS AND WOULD INTEND TO PURSUE IT SOME DAY IN
16:10:59
17
ANY EVENT, SO THAT ISSUE IS GOING UP.
16:11:02
18
16:11:06
19
ON CERTIFICATION AS TO THE PARTIES OTHER THAN HYNIX
16:11:08
20
WHERE IT WOULD BE A FINAL JUDGMENT VERY QUICKLY.
16:11:11
21
CERTAINLY IN SAMSUNG'S CASE, AFTER THE
16:11:13
22
TRIAL THAT YOU'VE SUGGESTED WE WOULD START IN
16:11:15
23
FEBRUARY, AS SOON AS THAT TRIAL ENDS SAMSUNG WOULD
16:11:20
24
HAVE A FINAL JUDGMENT IN THE CASES HERE AND WOULD
16:11:22
25
BE ABLE TO GO UP.
DO YOU HAVE ANY FINAL
FINAL?
I JUST WANT TO GIVE EVERYBODY A CHANCE. MR. STONE:
I JUST THINK -- JUST AS TO
THE LATTER POINT. I JUST THINK WE KNOW, FOR EXAMPLE, THAT
I THINK WE WILL SEE THAT IT COULD GO UP
59
16:11:23
1
AND THERE WOULD THEN BE, UNDER -- I GUESS
16:11:26
2
16:11:28
3
16:11:30
4
THE IMPLICATIONS OF JUDGE ROBINSON'S RULING, A
16:11:32
5
TRIAL ON THE SPOLIATION HERE INVOLVING BOTH MICRON
16:11:36
6
AND NANYA, AND AT THAT TIME THEIR CASES WOULD BE
16:11:39
7
DONE.
16:11:40
8
16:11:42
9
16:11:45
10
16:11:49
11
SO I DO THINK WE SHOULD ADDRESS THIS AND
16:11:51
12
WE SHOULD LOOK AT REALISTIC TIME TABLES AND TRY TO
16:11:55
13
UNDERSTAND WHETHER THAT WOULD HAPPEN.
16:11:57
14
16:11:59
15
FINAL APPEAL IN SAMSUNG OF ALL OF THE ISSUES WOULD
16:12:02
16
BE ABLE TO BE CONSOLIDATED WITH AN APPEAL IN
16:12:05
17
HYNIX I GIVEN THE TENTATIVE SCHEDULE YOU'VE SORT OF
16:12:08
18
LAID OUT, AND PERHAPS THE MICRON ISSUES, AND
16:12:11
19
CERTAINLY, DEPENDING ON YOUR RULING ON THE
16:12:14
20
COLLATERAL ESTOPPEL CONSEQUENCES OF JUDGE
16:12:16
21
ROBINSON'S RULING, THAT RULING WOULD BE PART OF
16:12:19
22
WHATEVER WENT UP HERE IN ANY EVENT IF THERE WERE
16:12:22
23
CERTIFICATION OF THE CONDUCT TRIAL OR THE JEDEC
16:12:25
24
ISSUES AS TO MICRON.
16:12:27
25
MR. BOBROW CORRECTED ME. THERE WOULD THEN BE, UNDER OUR VIEW OF
IF THAT WAS DONE PROMPTLY, THE APPEAL, EVEN OF A FINAL JUDGMENT IN THOSE CASES, WOULD BE IN TIME TO BE CONSOLIDATED WITH THE OTHERS.
BUT THERE IS NO DOUBT, I THINK, THAT A
SO I THINK IN THE -- THE CONCERN THAT
60
16:12:29
1
MR. BOBROW EXPRESSED, HE WOULD BE PROTECTED IN THAT
16:12:32
2
REGARD WITH WHATEVER THIS COURT RULES FOLLOWING THE
16:12:34
3
ARGUMENT, SAY, ON JANUARY 30TH.
16:12:39
4
THERE AND THAT ISSUE WOULD BE PROPERLY PRESENTED.
16:12:42
5
16:12:44
6
THE BEST THAT WE CAN DO, THE BEST THING WE CAN DO
16:12:47
7
FOR THE FEDERAL CIRCUIT IS TO GIVE THEM AS MANY OF
16:12:51
8
THESE ISSUES THAT IT IS POSSIBLE FOR THEM TO DECIDE
16:12:53
9
AT THIS TIME, CONSISTENT WITH WHAT THEY'VE TOLD US
16:12:56
10
IN THE PAST IS THEIR PREFERENCE FOR HEARING THINGS
16:12:58
11
AFTER FINAL JUDGMENT, AS OPPOSED TO ON AN
16:13:01
12
INTERLOCUTORY BASIS.
16:13:02
13
THE COURT:
OKAY.
16:13:03
14
MR. STONE:
THANK YOU.
16:13:04
15
MR. POWERS:
16:13:04
16
16:13:06
17
16:13:10
18
TO TRIAL IN THE CASE THAT'S CURRENTLY SET FOR
16:13:13
19
JANUARY, THAT THAT COULD REACH FINAL JUDGMENT SUCH
16:13:18
20
THAT IT COULD BE CONSOLIDATED WITH EVERYTHING
16:13:21
21
ANYWAY AND GO UP IN TIME TO BE HEARD WITH JUDGE
16:13:24
22
ROBINSON'S, THERE'S NO WAY THAT HAPPENS BECAUSE --
16:13:27
23
FOR TWO REASONS:
16:13:30
24
UNSCHEDULED SUBSEQUENT TRIAL, IN THEORY, WITH BOTH
16:13:35
25
NANYA AND SAMSUNG ON SDR AND DDR, THAT HASN'T EVEN
HE'D BE PROTECTED
SO I DO THINK THAT THERE IS -- I THINK
VERY BRIEFLY, IF I MAY, YOUR
HONOR. MR. STONE'S SUGGESTION THAT IF YOU WENT
ONE, THERE'S STILL THE
61
16:13:39
1
BEEN SCHEDULED; AND, SECONDLY, THERE WOULD BE THE
16:13:42
2
NEED FOR ALL THE POST-TRIAL MOTIONS.
16:13:44
3
JUST ENTER FINAL JUDGMENT THE DAY A JURY COMES BACK
16:13:49
4
ONE WAY OR THE OTHER.
16:13:51
5
16:13:54
6
COMBINE ALL OF THIS IN ONE AND GET ALL THE BENEFITS
16:13:57
7
AND GO TO TRIAL IN JANUARY.
16:14:00
8
WORK.
16:14:01
9
16:14:03
10
16:14:07
11
THE COURT:
16:14:09
12
MR. BOBROW:
16:14:11
13
16:14:13
14
16:14:16
15
PROTECTED IF THIS COURT DENIES SUMMARY JUDGMENT IS
16:14:19
16
JUST WRONG.
16:14:24
17
DOESN'T WORK THAT WAY.
16:14:26
18
ISSUE.
16:14:27
19
16:14:30
20
SUMMARY JUDGMENT AND JUDGMENT ENTERED BASED UPON
16:14:32
21
COLLATERAL ESTOPPEL, WHICH WE THINK IS THE ONLY
16:14:34
22
RIGHT THING TO DO HERE GIVEN THAT WE HAD OUR DAY IN
16:14:37
23
COURT WITH RAMBUS AND RAMBUS LOST; OR, NUMBER TWO,
16:14:40
24
WE HAVE TO HAVE THE SPOLIATION TRIAL OR ELSE ANY
16:14:43
25
RECORD GOING UP AS TO US ON THE ANTITRUST ISSUES IS
YOU DON'T
THAT TAKES MONTHS.
SO IT'S FANTASY TO SUGGEST THAT WE CAN
THAT JUST DOESN'T
SO THAT, THAT I THINK -- I THINK THAT HOPE THAT HE'S HOLDING OUT JUST ISN'T REALISTIC. OKAY. I'M SORRY, YOUR HONOR.
MAY
I, IN 30 SECONDS? MR. STONE'S SUGGESTION THAT WE'RE
THERE'S NOTHING TO CERTIFY AND IT JUST SO THAT'S A SIGNIFICANT
WE HAVE TO HAVE EITHER, NUMBER ONE,
62
16:14:46
1
FUNDAMENTALLY UNFAIR.
16:14:48
2
16:14:50
3
SUGGESTION OF MOVING THINGS TO THE WEEK OF THE 9TH,
16:14:53
4
I HAVE A CONCERN ABOUT WHETHER OR NOT THAT'S GOING
16:14:56
5
TO GIVE THE PARTIES AND THE COURT ENOUGH TIME TO
16:14:59
6
RESOLVE THE ISSUES THAT NEED TO BE RESOLVED GIVEN
16:15:02
7
THE DATE THAT YOU HAD MENTIONED BEFORE IN TERMS OF
16:15:05
8
WHEN THE ISSUE WAS RAISED AS TO WHAT TO DO WITH THE
16:15:08
9
DAMAGES MOTIONS.
16:15:09
10
16:15:11
11
WEEK OF THE 2ND, TOWARDS THE END OF THAT WEEK, BUT
16:15:14
12
PERHAPS THAT'S A --
16:15:16
13
16:15:19
14
UNFORTUNATELY, IS NOT HERE.
16:15:22
15
SHE WASN'T GOING TO BE HERE.
16:15:24
16
MAYBE THE BEST THING TO DO IS TO HAVE A
16:15:30
17
COORDINATED CALL WITH HER OR MR. FLETCHER WHEN WE
16:15:37
18
CAN LOOK AT A CALENDAR AND SEE WHAT -- WE COULD
16:15:44
19
TAKE A LOOK NOW, IF YOU WANT.
16:15:46
20
16:15:48
21
THERE'S A LOT OF BRIEFING AND OTHER THINGS TO DO TO
16:15:51
22
TRY TO FIGURE OUT WHAT THE BEST APPROACH IS GOING
16:15:53
23
FORWARD AND WHETHER IT MAKES SENSE TO HAVE THAT
16:15:56
24
TRIAL SCHEDULED OR NOT, AS THE COURT HAD INDICATED
16:15:58
25
BEFORE.
A SCHEDULING ISSUE IF I MAY.
THE COURT'S
I DON'T KNOW IF THE COURT'S AVAILABLE THE
THE COURT:
MR. BOBROW:
WHY DON'T I -- MS. GARCIA, I DIDN'T REALIZE THAT
I THINK IT'S -- OBVIOUSLY
63
16:15:59
1
THE COURT:
16:16:00
2
WANT A FIRM UNDERSTANDING THAT IF WE'RE GOING TO
16:16:03
3
GO, WE'RE GOING TO START ON THE 17TH.
16:16:05
4
16:16:07
5
ONLY ISSUE THAT I'M RAISING NOW, THEN, IS THE
16:16:10
6
QUESTION VIS-A-VIS THE MOTION THAT WE'LL BE FILING
16:16:13
7
AND OBVIOUSLY THE NEED FOR RESOLUTION EARLIER
16:16:17
8
RATHER THAN LATER AND WHETHER THAT GIVES THE COURT
16:16:20
9
AND THE PARTIES ENOUGH TIME TO HAVE ESSENTIALLY 17
16:16:23
10
16:16:24
11
16:16:26
12
GOING TO START NEXT MONDAY AND YOU WERE GOING TO BE
16:16:29
13
IN HERE ON FRIDAY.
16:16:30
14
16:16:32
15
HAVE CHANGED, AT LEAST I THINK AS TO MICRON, AS YOU
16:16:35
16
RECOGNIZED IN A FUNDAMENTAL WAY, AND I THINK THAT
16:16:38
17
IT'S IMPORTANT AND FAIR AND JUST THAT GIVEN THAT
16:16:40
18
WE'VE REALLY HAD PHASE 3 OF THIS TRIAL ALREADY,
16:16:43
19
THAT THE IMPLICATIONS OF THAT BE UNDERSTOOD RIGHT
16:16:45
20
AWAY SO THAT WE DON'T HAVE A TRIAL ON PATENTS THAT
16:16:48
21
ARE UNENFORCEABLE AS TO MICRON.
16:16:50
22
16:16:52
23
THE ISSUE VIS-A-VIS THE 9TH, OR SCHEDULING THINGS
16:16:55
24
THE WEEK OF THE 9TH, IS UNDER WHAT THE COURT HAD
16:16:57
25
JUST TALKED ABOUT, WE'RE GOING TO HAVE OPENINGS THE
MR. BOBROW:
I WANT TO SCHEDULE IT -- I
AND IN THAT EVENT, THEN, THE
DAYS IN BETWEEN THE TWO. THE COURT:
MR. BOBROW:
WELL, THEORETICALLY WE WERE
I UNDERSTAND, BUT THINGS
BUT HAVING SAID THAT, THE REASON I RAISE
64
16:17:00
1
WEEK OF THE 17TH.
16:17:02
2
16:17:04
3
AGREE WITH MR. BOBROW THAT IT WOULD BE PREFERABLE,
16:17:06
4
I THINK FROM EVERYBODY'S PERSPECTIVE, IF THE
16:17:09
5
REMAINING MOTIONS WERE ARGUED, IF IT WORKS WITH THE
16:17:13
6
COURT'S SCHEDULE, THE WEEK OF THE 2ND.
16:17:17
7
I WOULD GUESS -- IF WE START ON THE 17TH
16:17:19
8
WITH THE CURRENT PLAN, THE QUESTIONNAIRES WOULD BE
16:17:22
9
FILLED OUT ON THE 17TH, AND THEN I GUESS THE JURY
16:17:25
10
16:17:31
11
THE COURT:
PROBABLY ON THE 23RD.
16:17:33
12
MR. STONE:
PROBABLY THE 23RD.
16:17:34
13
THINK THAT'S -- WITH OPENINGS, I WOULD GUESS, ON
16:17:37
14
THE 24TH IS WHAT I'M --
16:17:39
15
16:17:40
16
16:17:40
17
16:17:42
18
16:17:43
19
16:17:45
20
MOTIONS -- I AGREE WITH YOU WE WOULD BE DOING
16:17:48
21
MOTIONS THIS FRIDAY AND STARTING NEXT WEEK, BUT I
16:17:50
22
THINK IF IT'S POSSIBLE WITH THE COURT'S SCHEDULE,
16:17:52
23
I'D JOIN IN MR. BOBROW'S REQUEST.
16:17:54
24
16:17:56
25
MR. STONE:
I WAS JUST GOING TO SAY, I
SELECTION WOULD PROBABLY BE ON THE --
SO I
THE COURT:
I THINK THAT'S PROBABLY
MR. STONE:
THAT'S WHAT I'M THINKING
CORRECT.
WOULD PROBABLY BE THE SCHEDULE. I THINK THE SOONER, THOUGH, WE CAN DO THE
AND I'M HAPPY TO MEET AND CONFER WITH THEM AND TALK WITH MS. GARCIA.
65
16:17:58
1
THE COURT:
MAYBE THE BEST THING TO DO,
16:17:59
2
IF YOU WANT TO TAKE FIVE MINUTES AND LET ME GO GET
16:18:03
3
MY SCHEDULE, I'LL RISK GETTING MYSELF INTO
16:18:11
4
DANGEROUSNESS, BUT I'LL AT LEAST GIVE YOU DATES
16:18:15
5
THAT ARE AVAILABLE.
16:18:17
6
MR. BOBROW:
16:18:20
7
(WHEREUPON, A RECESS WAS TAKEN.)
16:21:44
8
THE COURT:
16:21:47
9
16:21:49
10
BLABBING AND DIDN'T HAVE YOU STATE YOUR
16:21:52
11
APPEARANCES, SO WOULD YOU DO THAT AT THIS TIME SO
16:21:54
12
WE HAVE A RECORD OF WHO'S HERE.
16:21:56
13
16:21:57
14
GREGORY STONE OF MUNGER, TOLLES & OLSON ON BEHALF
16:21:59
15
OF RAMBUS.
16:22:00
16
16:22:02
17
16:22:04
18
MR. BOBROW:
16:22:06
19
MR. FREITAS:
16:22:08
20
16:22:09
21
16:22:12
22
16:22:13
23
16:22:14
24
CALENDAR, AND OBVIOUSLY I HAD DATES LOCKED OUT FOR
16:22:25
25
THE WEEK OF FEBRUARY 2ND ON TUESDAY THROUGH
OKAY.
MY REPORTER CALLED MY
ATTENTION TO THE FACT THAT I CAME OUT AND STARTED
MR. STONE:
MR. POWERS:
GOOD AFTERNOON, YOUR HONOR.
MATT POWERS AND STEVE
CHERENSKY FOR SAMSUNG. JARED BOBROW FOR MICRON. BOB FREITAS FOR NANYA AND
NANYA U.S.A. MR. NISSLY:
KEN NISSLY AND TED BROWN FOR
HYNIX, YOUR HONOR. THE COURT:
ALL RIGHT.
LOOKING AT THE
66
16:22:28
1
THURSDAY, SO IF WE WANTED TO -- MAYBE WE SHOULD
16:22:34
2
PICK ONE OF THOSE DATES AND THEN ONE AT THE
16:22:36
3
BEGINNING OF THE WEEK OF THE 9TH.
16:22:40
4
16:22:47
5
AT 9:00 O'CLOCK?
16:23:04
6
WEDNESDAY THE 11TH AT 9:00.
16:23:09
7
MR. STONE:
16:23:10
8
AND WHAT TIME WOULD YOU LIKE US HERE ON
16:23:13
9
16:23:21
10
16:23:26
11
O'CLOCK, BECAUSE I HAVE A FULL CALENDAR THAT
16:23:28
12
MORNING.
16:23:29
13
MR. STONE:
16:23:33
14
MR. POWERS:
16:23:35
15
EITHER TUESDAY OR THURSDAY INSTEAD OF WEDNESDAY THE
16:23:38
16
4TH?
16:23:40
17
16:23:44
18
16:23:45
19
16:23:48
20
4TH?
16:23:51
21
11TH, I WOULD APPRECIATE IT, IF POSSIBLE.
16:23:57
22
16:23:59
23
16:24:00 16:24:03
SO YOU WANT TO DO, SAY, WEDNESDAY THE 4TH AND TUESDAY -- OR HOW ABOUT DOES THAT WORK?
THAT'S FINE, YOUR HONOR.
THE 30TH FOR THAT? THE COURT:
THAT'LL HAVE TO BE 2:00
OKAY. YOUR HONOR, COULD WE DO
IS THAT POSSIBLE? THE COURT:
SURE.
I'M SORRY.
INSTEAD OF
WHEN? MR. POWERS:
INSTEAD OF WEDNESDAY THE
AND IF WE COULD DO IT THE 12TH INSTEAD OF THE
THE COURT:
5TH AND 12TH WORK FOR
24
MR. STONE:
5TH AND 12TH, YOUR HONOR?
25
THE COURT:
RIGHT.
EVERYBODY?
67
16:24:03
1
MR. STONE:
YES, THAT'S FINE.
16:24:05
2
MR. BROWN:
WOULD THAT BE IN THE
16:24:06
3
16:24:07
4
16:24:10
5
16:24:12
6
AND THEN THE 30TH WOULD BE AT 2:00.
16:24:16
7
NOW, I THINK RAMBUS FILED A COUPLE OF
16:24:27
8
16:24:29
9
MR. STONE:
THAT'S RIGHT, YOUR HONOR.
16:24:30
10
THE COURT:
WOULD YOU SEE IF YOU CAN MEET
16:24:31
11
AND CONFER AND AGREE TO HEAR THOSE AND TELL ME WHAT
16:24:34
12
DATE YOU'RE PLANNING ON DOING THOSE?
16:24:37
13
MR. STONE:
YES.
16:24:37
14
THE COURT:
IF THERE'S A PROBLEM, LET ME
16:24:39
15
16:24:39
16
MR. STONE:
THANK YOU, YOUR HONOR.
16:24:40
17
THE COURT:
ALL RIGHT.
16:24:41
18
MR. BOBROW:
16:24:42
19
THE COURT:
OKAY.
16:24:43
20
MR. STONE:
THANK YOU, YOUR HONOR.
16:24:45
21
MR. BOBROW:
THANK YOU, YOUR HONOR.
16:24:47
22
MR. NISSLY:
THANK YOU.
16:24:49
23
MR. POWERS:
THANK YOU.
16:24:50
24
(WHEREUPON, THE PROCEEDINGS IN THIS
16:24:50
25
AFTERNOON, THEN, YOUR HONOR? THE COURT:
NO.
THE 5TH AND 12TH WOULD
BE IN THE MORNING AT 9:00.
MOTIONS THAT DON'T HAVE HEARING DATES ON THEM.
KNOW.
ANYTHING ELSE?
NO. THANK YOU.
MATTER WERE CONCLUDED.)
68
1
UNITED STATES DISTRICT COURT
2
NORTHERN DISTRICT OF CALIFORNIA
3
SAN JOSE DIVISION
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
RAMBUS INC.,
) ) PLAINTIFF, ) ) VS. ) ) HYNIX SEMICONDUCTOR, INC., ) HYNIX SEMICONDUCTOR AMERICA ) INC., HYNIX SEMICONDUCTOR ) MANUFACTURING AMERICA INC., ) ) SAMSUNG ELECTRONICS CO., ) LTD., SAMSUNG ELECTRONICS ) AMERICA, INC., SAMSUNG ) SEMICONDUCTOR, INC., SAMSUNG) AUSTIN SEMICONDUCTOR, L.P, ) ) NANYA TECHNOLOGY ) CORPORATION, NANYA ) TECHNOLOGY CORPORATION USA, ) ) ) DEFENDANTS. ) ____________________________) ) RAMBUS INC., ) ) PLAINTIFF, ) ) VS. ) ) SAMSUNG ELECTRONICS CO., ) LTD., SAMSUNG ELECTRONICS ) AMERICA, INC., SAMSUNG ) SEMICONDUCTOR, INC., SAMSUNG) AUSTIN SEMICONDUCTOR, L.P, ) ) DEFENDANTS. ) ____________________________)
C-05-00334 RMW C-05-02298 RMW C-06-00244 RMW SAN JOSE, CALIFORNIA JANUARY 14, 2009 PAGES 1-68
24 25
1
1 2 3 4 5 6
RAMBUS INC.
) ) PLAINTIFF, ) ) VS. ) ) MICRON TECHNOLOGY, INC. AND ) MICRON SEMICONDUCTOR ) PRODUCTS, INC., ) ) DEFENDANTS. ) ____________________________)
7 8 9 10
TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE RONALD M. WHYTE UNITED STATES DISTRICT JUDGE
11 12
A P P E A R A N C E S:
13
FOR RAMBUS:
14 15
MUNGER, TOLLES & OLSON BY: GREGORY P. STONE, FRED ROWLEY, AND MARK R. YOHALEM 355 SOUTH GRAND AVE, 35TH FLOOR LOS ANGELES, CALIFORNIA 90071
16 BY: ROSEMARIE T. RING 560 MISSION STREET, 27TH FLOOR SAN FRANCISCO, CALIFORNIA 94105
17 18
SIDLEY, AUSTIN, LLP BY: ROLLIN A. RANSOM 555 W. FIFTH STREET, SUITE 4000 LOS ANGELES, CALIFORNIA 90013
19 20 21 22 23 24
FOR SAMSUNG:
WEIL, GOTSHAL & MANGES BY: MATTHEW D. POWERS AND STEVEN S. CHERENSKY 201 REDWOOD SHORES PARKWAY REDWOOD SHORES, CALIFORNIA 94065
APPEARANCES CONTINUED ON NEXT PAGE
25
2
1 2
APPEARANCES (CONTINUED)
3
FOR MICRON:
4
WEIL, GOTSHAL & MANGES BY: JARED BOBROW 201 REDWOOD SHORES PARKWAY REDWOOD SHORES, CALIFORNIA
94065
5 6
FOR NANYA:
ORRICK, HERRINGTON & SUTCLIFFE BY: ROBERT E. FREITAS 1000 MARSH ROAD MENLO PARK, CALIFORNIA 94025
FOR HYNIX:
O'MELVENY & MYERS, LLP BY: KENNETH L. NISSLY 2765 SAND HILL ROAD MENLO PARK, CALIFORNIA
7 8 9 10
94025
11 12 13
TOWNSEND AND TOWNSEND AND CREW BY: THEODORE G. BROWN, III 379 LYTTON AVENUE PALO ALTO, CALIFORNIA 94301
14 15
OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR CERTIFICATE NUMBER 9595
16 17 18 19 20 21 22 23 24 25
3
1
SAN JOSE, CALIFORNIA
2
JANUARY 14, 2009
P R O C E E D I N G S
3
(WHEREUPON, COURT CONVENED AND THE
15:00:23
4
FOLLOWING PROCEEDINGS WERE HELD:)
15:00:23
5
THE COURT:
GOOD AFTERNOON, EVERYONE.
15:00:27
6
MR. STONE:
GOOD AFTERNOON, YOUR HONOR.
15:00:28
7
MR. BOBROW:
15:00:29
8
THE COURT:
15:00:31
9
15:00:36
10
15:00:42
11
15:00:50
12
OUGHT TO BE GIVEN AN OPPORTUNITY TO BRIEF THE
15:00:57
13
EFFECT OF JUDGE ROBINSON'S ORDER AND WHAT THAT
15:01:05
14
REQUIRES THIS COURT TO DO; AND IF THEY FEEL THAT A
15:01:10
15
SUMMARY JUDGMENT MOTION IS APPROPRIATE, THAT THEY
15:01:13
16
MAKE THAT MOTION BASED ON THE SCHEDULE THEY
15:01:17
17
PROPOSE.
15:01:20
18
15:01:27
19
SCHEDULED, AND MY THOUGHT IS THAT FEBRUARY 16TH
15:01:35
20
SHOULD BE THE TRIAL DATE, AND WE'LL SET A COUPLE OF
15:01:41
21
PRETRIAL SESSIONS IN THE WEEK BEFORE.
15:01:48
22
15:01:49
23
15:01:51
24
THE COURT:
15:01:59
25
IT SEEMS TO ME THAT THAT ACCOMPLISHES
GOOD AFTERNOON, YOUR HONOR. I'M GOING TO GIVE YOU SOME
THOUGHTS, AND THEN I'LL BRIEFLY HEAR COMMENT FROM ANYONE WHO WISHES TO MAKE COMMENT. MY THINKING IS THAT THE MANUFACTURERS
I ALSO FEEL THAT WE SHOULD KEEP THE TRIAL
THE REPORTER:
FEBRUARY 16TH IS A
HOLIDAY. FEBRUARY 17TH, THEN.
4
15:02:03
1
FAIRNESS TO BOTH SIDES IN THE SENSE THAT IT ALLOWS
15:02:12
2
ISSUES TO BE RAISED AND RESOLVED, BUT DOES NOT
15:02:20
3
UNREASONABLY PUT OFF THE TRIAL IF THAT'S THE
15:02:23
4
APPROPRIATE WAY TO GO.
15:02:28
5
15:02:30
6
THERE ARE TWO BASIC APPROACHES THAT COULD BE TAKEN
15:02:39
7
WITH, OBVIOUSLY, PROBABLY REFINEMENTS TO EACH.
15:02:45
8
15:02:48
9
15:02:55
10
NEEDS TO BE DONE TO ENTER JUDGMENT IN THE
15:03:01
11
HYNIX/RAMBUS DISPUTE; TO FINISH THE ISSUES THAT ARE
15:03:06
12
UNDER SUBMISSION FROM HAVING BEEN TRIED IN THE
15:03:09
13
CONSOLIDATED CASE AND IN THE SEPARATE
15:03:15
14
RAMBUS/SAMSUNG LITIGATION, OR ASPECT OF THE
15:03:21
15
CONSOLIDATED LITIGATION; AND FOR THE COURT THEN --
15:03:28
16
THEN HYNIX WOULD BE IN A POSITION TO FULLY APPEAL
15:03:32
17
AND THE COURT COULD CERTIFY FOR APPEAL THE CLAIM
15:03:37
18
CONSTRUCTION RULING IN THE CONSOLIDATED
15:03:43
19
PROCEEDINGS, THE JURY VERDICT IN THE CONSOLIDATED
15:03:47
20
PROCEEDINGS, THE SPOLIATION ISSUE WITH SAMSUNG AND
15:03:52
21
THE LICENSING ISSUE WITH SAMSUNG; AND STAY THE
15:03:59
22
PATENT TRIAL PENDING RESOLUTION OF THESE ISSUES ON
15:04:02
23
APPEAL.
15:04:07
24
15:04:09
25
THAT BEING SAID, IT SEEMS TO ME THAT
BUT IT SEEMS TO ME THAT ONE WAY TO PROCEED WOULD BE FOR THE COURT TO FINISH UP WHAT
THE OTHER APPROACH, IT SEEMS TO ME, WOULD BE TO GO FORWARD WITH THE PATENT TRIAL AS, AS IT
5
15:04:21
1
NOW IS PENDING, WITH PROBABLY A STAY AS TO MICRON.
15:04:35
2
I FEEL, AT LEAST TENTATIVELY, THAT MICRON
15:04:40
3
AND RAMBUS HAD THEIR DAY IN COURT ON THE SPOLIATION
15:04:47
4
ISSUE, ALTHOUGH THE DECISION IS CONTRARY TO MY
15:04:57
5
CONCLUSION ON THE ISSUE IN HYNIX, BUT THAT'S WHERE
15:05:04
6
THEY, MICRON AND RAMBUS, TRIED THE CASE AND THE
15:05:10
7
RESULT IS WHAT IT IS.
15:05:13
8
15:05:20
9
THE PARTIES, I WOULD LIKE TO HAVE THEM BRIEFLY
15:05:24
10
ADDRESS THE BENEFITS OF -- TO THE PARTIES IF I
15:05:39
11
ADOPTED ONE OF THE TWO PROPOSALS THAT I JUST
15:05:42
12
OUTLINED, AND THE PREJUDICE OR DETRIMENT TO THE
15:05:45
13
PARTIES IF I ADOPTED ONE OF THE TWO PROPOSALS.
15:05:54
14
MY THOUGHT WITH RESPECT TO THE BRIEFING
15:05:56
15
SCHEDULE, TO SOME EXTENT I AGREE WITH RAMBUS THAT
15:06:01
16
THE ISSUE OF COLLATERAL ESTOPPEL, RES JUDICATA
15:06:08
17
ISSUE PRECLUSION HAS BEEN PREVIOUSLY BRIEFED, AND I
15:06:18
18
THINK EVERYBODY MAY NOT AGREE, BUT EVERYBODY'S GOT
15:06:21
19
A PRETTY GOOD IDEA AS TO WHAT THEY FEEL THE LAW
15:06:25
20
PROVIDES IN THAT REGARD.
15:06:29
21
15:06:36
22
RESPECT TO THE APPLICATION IN THIS PARTICULAR
15:06:40
23
SETTING THAT PROBABLY DESERVE SOME MORE ATTENTION.
15:06:52
24
15:06:54
25
SO WHEN WE GET TO HEARING FROM EACH OF
THERE ARE, HOWEVER, SOME ISSUES WITH
AND I ALSO THINK THAT, GIVEN WHAT'S OCCURRED, THAT THE PARTIES HAVE A RIGHT TO MAKE A
6
15:07:07
1
MOTION AS TO WHAT THEY FEEL -- OR WHAT THEY SUBMIT
15:07:14
2
IS THE CONSEQUENCE OF WHAT'S HAPPENED.
15:07:27
3
15:07:31
4
ISSUES, BUT I THINK I'LL WAIT AND SEE WHAT EACH OF
15:07:35
5
YOU HAS TO SAY, AND PERHAPS RAISE SOME QUESTIONS
15:07:40
6
WITH YOU WHEN YOU PERHAPS TOUCH ON THOSE ISSUES.
15:07:50
7
SO LET ME START BY HEARING FROM MICRON.
15:07:53
8
MR. BOBROW:
15:08:00
9
AS INDICATED IN THE PAPERS, OBVIOUSLY IN
15:08:02
10
TERMS OF A BRIEFING SCHEDULE, IF YOU FEEL THAT IT
15:08:05
11
IS APPROPRIATE TO BRIEF, THAT'S FINE.
15:08:07
12
15:08:10
13
OUR BELIEF WAS THAT, AT LEAST AS TO MICRON, THIS
15:08:12
14
ISSUE COULD BE RESOLVED FORTHWITH, IN OTHER WORDS,
15:08:16
15
WITHOUT BRIEFING.
15:08:18
16
FOR A MOTION FOR SUMMARY JUDGMENT AND THAT'S INDEED
15:08:21
17
WHAT WE'LL FILE AND WE'LL DO IT ON THE SCHEDULE.
15:08:24
18
15:08:26
19
15:08:42
20
15:09:04
21
UPCOMING ACTION OVERLAP ABOUT HALF OF THEM, AM I
15:09:17
22
CORRECT, OR --
15:09:18
23
MR. BOBROW:
15:09:19
24
THE COURT:
15:09:22
25
I HAVE SOME OTHER THOUGHTS ON SOME
THANK YOU, YOUR HONOR.
FRANKLY, FROM OUR REVIEW OF THE RECORD,
BUT I UNDERSTAND YOUR REQUEST
THE COURT:
WHAT ABOUT THE -- THERE IS
OVERLAP -- LET ME -- MR. NISSLY MADE A NICE CHART. THE CLAIMS THAT ARE AT ISSUE IN THE
THERE ARE --- THAT ARE COVERED BY THE
ACTION IN DELAWARE?
7
15:09:23
1
MR. BOBROW:
15:09:25
2
IN DELAWARE, FOUR OF WHICH OVERLAP WITH PATENTS
15:09:28
3
THAT ARE PART OF THE CASE THAT IS SET FOR TRIAL IN
15:09:33
4
THE NEAR FUTURE.
15:09:35
5
SO FOUR OF THE PATENTS ARE IDENTICAL.
15:09:37
6
THE REST OF THEM STEM FROM THE
15:09:39
7
FARMWALD-HOROWITZ FAMILY, AND THE REST OF THEM
15:09:42
8
INCLUDE APPLICATIONS FOR WHICH JUDGE ROBINSON FOUND
15:09:45
9
THERE HAD BEEN SPOLIATION.
15:09:49
10
15:09:51
11
SPECIFICALLY LOOKED AT MYSELF, BUT THAT WAS AN
15:09:53
12
ISSUE THAT I THOUGHT PERHAPS THE PARTIES MIGHT NEED
15:10:01
13
TO ADDRESS, AND THAT IS WHETHER OR NOT THE
15:10:05
14
MISCONDUCT THAT JUDGE ROBINSON FOUND INFECTS ALL
15:10:17
15
THE PATENT CLAIMS AT ISSUE BEFORE THIS COURT, OR
15:10:21
16
ARE THERE SOME THAT AREN'T INFECTED?
15:10:26
17
15:10:29
18
THEM, BUT IN WAYS IN ADDITION TO THE FACT THAT SHE
15:10:31
19
SPECIFICALLY FOUND SPOLIATION AS TO THE FILES THAT
15:10:34
20
LESTER VINCENT PURGED AT MR. KARP'S DIRECTION.
15:10:38
21
15:10:41
22
BY HER BY CLEAR AND CONVINCING EVIDENCE OF BAD
15:10:45
23
FAITH; WE HAVE A SPECIFIC FINDING OF PREJUDICE; A
15:10:47
24
SPECIFIC FINDING OF A DUTY TO SUSPEND THE DOCUMENT
15:10:51
25
RETENTION AND TO, IN FACT, RETAIN DOCUMENTS.
THE COURT:
MR. BOBROW:
YES.
THERE WERE TWO PATENTS
THAT'S -- THAT I HAVE NOT
YEAH.
IT INFECTS ALL OF
BUT BEYOND THAT, AGAIN, WE HAVE A FINDING
8
15:10:53
1
THE COURT:
BUT THOSE WERE ALL ONLY WITH
15:10:56
2
15:10:58
3
MR. BOBROW:
15:11:00
4
IN OTHER WORDS, WHETHER THERE WERE THESE
15:11:02
5
PATENTS-IN-SUIT HERE AND THOSE WERE THE CLAIMS THAT
15:11:07
6
WERE IN FILE, ON FILE IN DELAWARE, THEY WOULD HAVE
15:11:10
7
TRIED THE EXACT SAME SPOLIATION CASE.
15:11:12
8
HAVE DIFFERED BY ONE WITNESS OR ONE PIECE OF
15:11:15
9
EVIDENCE.
15:11:15
10
15:11:17
11
I'M SAYING IS HER -- MAYBE I DIDN'T SAY IT VERY
15:11:19
12
WELL.
15:11:20
13
15:11:23
14
15:11:27
15
MR. BOBROW:
15:11:28
16
THE COURT:
15:11:30
17
AREN'T THE SAME CLAIMS, AREN'T ALL OF THE CLAIMS
15:11:34
18
THAT ARE AT ISSUE IN THIS CASE.
15:11:36
19
MR. BOBROW:
15:11:37
20
FOUR PATENTS THAT ARE IDENTICAL, AND THE REST OF
15:11:40
21
THEM ARE IN THE SAME FAMILY, THAT'S CORRECT.
15:11:42
22
15:11:44
23
IS, AND I THINK MAYBE -- I MAY BE WRONG -- BUT I
15:11:48
24
THINK RAMBUS IS TAKING THE POSITION, IN PART, THAT
15:11:56
25
THERE IS NOT INFECTION OF AT LEAST THOSE CLAIMS
RESPECT TO THE CLAIMS AT ISSUE IN HER CASE?
THE COURT:
NO, I DON'T THINK SO AT ALL.
IT WOULD NOT
YOU MAY BE RIGHT, BUT WHAT
HER DECISION SAYS, "THESE CLAIMS ARE UNENFORCEABLE BECAUSE OF RAMBUS'S CONDUCT."
THE COURT:
YES, THAT'S CORRECT. THOSE CLAIMS DON'T COVER --
THAT'S CORRECT.
RIGHT.
THERE ARE
SO WHAT I'M SAYING
9
15:12:01
1
THAT WEREN'T AT ISSUE BEFORE HER.
15:12:04
2
MR. BOBROW:
15:12:07
3
IT IS WRONG.
15:12:10
4
IT'S WRONG IN OUR PAPERS AND, AGAIN, TO THE EXTENT
15:12:13
5
THAT THE COURT WISHES BRIEFING ON THAT, WE'RE HAPPY
15:12:16
6
TO MOVE FOR SUMMARY JUDGMENT AND ADDRESS THAT
15:12:19
7
SPECIFIC ISSUE.
15:12:20
8
15:12:22
9
15:12:25
10
15:12:28
11
15:12:31
12
SAYING IS THAT I THINK THAT IS AN ISSUE AND I DON'T
15:12:34
13
KNOW THAT THAT DOESN'T REQUIRE A MOTION.
15:12:36
14
15:12:38
15
15:12:40
16
15:12:42
17
TERMS OF PUSHING BACK THE TRIAL, I THINK THAT THAT,
15:12:47
18
BUT ACCOMPANIED BY YOUR SECOND PROPOSAL, IS WHAT
15:12:51
19
MICRON WOULD FAVOR HERE.
15:12:52
20
15:12:54
21
15:12:55
22
15:12:58
23
TO AS BETWEEN MICRON AND RAMBUS, WE THINK THAT THIS
15:13:01
24
ENDS THE CASE.
15:13:02
25
RIGHT.
I -- THAT MAY BE.
I THINK WE DEMONSTRATED WHY
I THINK THAT, AS WE TEE IT UP, THERE IS IDENTITY OF ISSUE DOWN THE LINE, AND WHEN YOU LOOK AT THE NINTH CIRCUIT TEST, WHICH LOOKS AT -THE COURT:
MR. BOBROW:
YOU MAY BE RIGHT.
ALL I'M
FAIR ENOUGH, AND WE WILL GO
AHEAD ON THE SCHEDULE AND MAKE THAT MOTION. AS FAR AS THE SECOND ASPECT OF IT IN
IN OTHER WORDS, WE WOULD PROCEED WITH OUR MOTION FOR SUMMARY JUDGMENT. GIVEN THE MUTUALITY THAT YOU'VE ALLUDED
EFFECTIVELY WHAT'S HAPPENED IS WE HAVE
10
15:13:04
1
TRIED THE THIRD PHASE OF THIS CASE IN DELAWARE, AND
15:13:07
2
BASED UPON RAMBUS'S REPRESENTATIONS AND THE WHOLE
15:13:10
3
WAY THAT THIS HAS BEEN STRUCTURED, WE THINK IT
15:13:12
4
WOULD BE CRAZY FOR MICRON TO GO AHEAD WITH THIS
15:13:15
5
TRIAL WHEN WE BELIEVE STRONGLY THAT THE PATENTS ARE
15:13:17
6
UNENFORCEABLE AS AGAINST MICRON AND WE'D BE
15:13:21
7
HAVING -- SPENDING HUNDREDS OF THOUSANDS IF NOT
15:13:24
8
MILLIONS OF DOLLARS TO PROCEED WITH THAT TRIAL.
15:13:26
9
15:13:30
10
15:13:32
11
15:13:37
12
REMEMBERING CORRECTLY, THAT SUGGESTED THAT THE
15:13:42
13
TRIAL DATE OUGHT TO BE SLIPPED ENOUGH SO THAT THE
15:13:45
14
PARTIES COULD SEPARATE OUT THE -- THEIR POSITIONS
15:13:50
15
WITH RESPECT TO JUDGE ROBINSON'S RULING FROM HAVING
15:13:56
16
TO FURTHER PREPARE FOR TRIAL, SO YOU DIDN'T HAVE TO
15:13:59
17
DO BOTH AT THE SAME TIME.
15:14:00
18
15:14:04
19
BRIEFING SCHEDULE, I THINK A FEBRUARY 16TH -- 17TH
15:14:09
20
START DATE, ASSUMING WE NEED IT, ACCOMPLISHES THAT
15:14:17
21
NEED.
15:14:18
22
15:14:20
23
INTEREST HERE WOULD BE, GIVEN THE RULING THAT WE
15:14:23
24
NOT HAVE TO PROCEED IN EARNEST WITH TRIAL
15:14:25
25
PREPARATION, THAT IT BE PUSHED FAR ENOUGH SO THAT
THE COURT:
WELL, ONE OF THE REASONS --
THAT'S CERTAINLY ONE. BUT I THINK IT WAS MR. POWERS, IF I'M
SO THAT, I THINK, GIVEN YOUR PROPOSED
MR. BOBROW:
YES.
I MEAN, MICRON'S
11
15:14:29
1
THE COURT COULD RENDER ITS RULING ON THE SUMMARY
15:14:31
2
JUDGMENT MOTION, AND TO THE EXTENT THAT SCHEDULE
15:14:33
3
ACCOMPLISHES THAT, THAT'S CERTAINLY FINE.
15:14:35
4
15:14:39
5
COURSE, WE WOULD -- WE WOULD ASK FOR THAT TO BE
15:14:41
6
ENTERED, AS WE REQUESTED, IMMEDIATELY.
15:14:45
7
15:14:46
8
TO HAVE THAT DONE AS A RESULT OF WHATEVER HAPPENS
15:14:50
9
AT THE HEARING ON THE 30TH.
15:14:52
10
15:14:54
11
STAY TO BE ENTERED GIVEN THE RESULT IN DELAWARE AND
15:14:56
12
GIVEN THE MUTUALITY THAT EXISTS.
15:15:00
13
15:15:02
14
IF I UNDERSTOOD IT CORRECTLY, IN OTHER WORDS, TO
15:15:05
15
SORT OF FINISH EVERYTHING UP AND CERTIFY THINGS,
15:15:07
16
AND IF I HEARD IT CORRECTLY, CERTIFYING THE VERDICT
15:15:10
17
FROM THE CONDUCT PHASE OF THE CONSOLIDATED CASE, I
15:15:13
18
THINK THAT IS NOT GOING TO ACCOMPLISH MUCH
15:15:15
19
CERTAINLY VIS-A-VIS MICRON, BECAUSE JUDGE ROBINSON
15:15:18
20
SPECIFICALLY FOUND THAT OUR ANTITRUST CASE AND
15:15:20
21
DEFENSES AND THE PATENT MISUSE DEFENSE AND THE LIKE
15:15:23
22
WERE SPECIFICALLY PREJUDICED BY RAMBUS'S CONDUCT.
15:15:28
23
15:15:30
24
DELAWARE IS THE SAME AS THE CASE HERE, AND SHE
15:15:33
25
SPECIFICALLY FOUND THAT OUR CASE HAD BEEN
I THINK THAT AS FAR AS THE STAY, OF
I UNDERSTAND YOUR HONOR'S WISHES WOULD BE
BUT I THINK THAT IT IS APPROPRIATE FOR A
I THINK THAT THE COURT'S FIRST PROPOSAL,
THE ANTITRUST CASE THAT WE HAVE IN
12
15:15:34
1
PREJUDICED BY VIRTUE OF THE DOCUMENT DESTRUCTION.
15:15:36
2
15:15:39
3
LEAST AS TO MICRON, IT SEEMS TO ME WOULDN'T
15:15:41
4
ACCOMPLISH PARTICULARLY MUCH.
15:15:42
5
15:15:44
6
ENTRY OF SUMMARY JUDGMENT, AND SHORT OF THAT, ENTRY
15:15:46
7
OF A STAY, AND THEN PULLING THE 244 CASE OUT OF
15:15:49
8
THIS AND THEN PROCEEDING AS, YOU KNOW, AS YOU HAD
15:15:53
9
SUGGESTED.
15:15:53
10
THE COURT:
15:15:54
11
MR. BOBROW:
15:15:57
12
THE COURT:
15:15:58
13
NEXT?
15:16:04
14
TO ASSUME ONE OR THE OTHER.
15:16:06
15
15:16:09
16
15:16:12
17
15:16:16
18
15:16:18
19
15:16:20
20
SLIGHTLY DIFFERENT PROCEDURAL POSTURE IN THE SENSE
15:16:23
21
THAT THESE ISSUES ARE PENDING BEFORE YOUR HONOR AND
15:16:27
22
HAVE NOT BEEN RESOLVED.
15:16:29
23
15:16:33
24
OBVIOUSLY WE CAN AND WILL MOVE FOR SUMMARY JUDGMENT
15:16:35
25
IF THAT'S WHAT YOU PREFER.
SO ANY SORT OF CERTIFICATION ON THAT, AT
I THINK THAT REALLY THE PROPER COURSE IS
OKAY. ALL RIGHT.
THANK YOU.
MR. POWERS, YOU WANT TO GO
OR MR. CHERENSKY.
MR. POWERS:
I'M SORRY.
I DIDN'T MEAN
WE WILL, AS YOUR HONOR
SUGGESTED, FILE A MOTION FOR SUMMARY JUDGMENT. I DO WANT TO -- IF THAT'S THE PATH YOUR HONOR WISHES TO PROCEED. AS TO SAMSUNG, OF COURSE, THERE'S A
SO ANOTHER WAY TO HANDLE IT -- I MEAN,
13
15:16:37
1
OBVIOUSLY WE WOULD ASK THE COURT TO TAKE
15:16:39
2
JUDICIAL NOTICE OF JUDGE ROBINSON'S OPINION AND THE
15:16:42
3
FINDINGS AND CONCLUSIONS THEREIN IN CONNECTION WITH
15:16:45
4
WHATEVER DECISION YOU ARE MAKING AS PART OF THE
15:16:47
5
SEPTEMBER TRIAL.
15:16:48
6
15:16:51
7
PROCEDURAL APPROACHES TO THE SAME QUESTION, WHICH
15:16:54
8
IS DECIDING THAT ISSUE AS TO SAMSUNG.
15:16:57
9
15:16:59
10
YOUR HONOR PROPOSED, MAKE THE MOTION FOR SUMMARY
15:17:02
11
JUDGMENT TO PROVIDE YOUR HONOR WITH THE AUTHORITY
15:17:04
12
ON THE ISSUES YOU'VE RAISED.
15:17:06
13
15:17:08
14
15:17:10
15
15:17:13
16
15:17:15
17
15:17:18
18
15:17:22
19
15:17:24
20
GIVEN -- YOU KNOW, I THOUGHT ABOUT THAT AFTER YOU
15:17:27
21
MADE THAT PITCH BEFORE, AND I JUST -- CERTAINLY THE
15:17:31
22
TIME SHOULD HAVE BEEN SET ASIDE FOR THIS CASE.
15:17:35
23
15:17:38
24
15:17:39
25
THOSE ARE RELATED BUT SOMEWHAT DIFFERENT
BUT WE WILL, UNDER THE BRIEFING SCHEDULE
TWO SCHEDULING ISSUES THAT I WOULD JUST NOTE FOR THE COURT. FEBRUARY 17, I CANNOT BE HERE.
I HAVE A
MARKMAN IN TEXAS I HAVE TO DO. THIS CASE WAS SUPPOSED TO START ON THE 20TH.
THE MATH WORKED THAT I COULD HAVE DONE IT. THE COURT:
I DON'T KNOW ABOUT THAT,
IF YOU NEED A DAY OFF, MAYBE WE CAN WORK THAT OUT. BUT I'M NOT SYMPATHETIC WITH AN ARGUMENT
14
15:17:46
1
THAT IF THE CASE GETS DELAYED UNTIL FEBRUARY 17TH,
15:17:49
2
IT'S GOING TO MAKE IT IMPOSSIBLE FOR COUNSEL TO
15:17:51
3
PARTICIPATE.
15:17:52
4
MR. POWERS:
15:17:54
5
THE COURT:
15:17:55
6
OF TRIAL TIME, WHICH I'M NOT GOING TO RECOGNIZE --
15:17:59
7
OR I SHOULDN'T SAY "RECOGNIZE" -- I'M NOT GOING TO
15:18:05
8
BUY, AS I PREVIOUSLY INDICATED, IN ITS ENTIRETY,
15:18:09
9
CERTAINLY IS -- WOULD HAVE PUT THE TRIAL OUT A LOT
15:18:14
10
15:18:19
11
MR. POWERS:
15:18:20
12
I JUST AM NOTING THAT FOR THE COURT AND
15:18:22
13
THE COURT WILL DO WHAT IT WISHES, BUT I HAVE THAT
15:18:25
14
CONFLICT.
15:18:25
15
15:18:27
16
15:18:29
17
THE COURT:
15:18:30
18
MR. POWERS:
15:18:32
19
WITH REGARD TO THE TWO APPROACHES THAT
15:18:34
20
YOU NOTE, I THINK THAT THE GOAL OF HAVING -- OF
15:18:41
21
ALLOWING THE FEDERAL CIRCUIT TO ADDRESS THE
15:18:43
22
COMPETING SPOLIATION FINDINGS AT THE SAME TIME,
15:18:47
23
BEFORE THE PATENT TRIAL GOES FORWARD, IS THE RIGHT
15:18:49
24
APPROACH.
15:18:50
25
I WILL JUST NOTE -THE MANUFACTURERS' ESTIMATE
MORE THAN I THINK IT WILL BE. IT WOULD.
AND I ALSO HAVE A TRIAL IN NEW JERSEY STARTING ON FEBRUARY 23RD.
SO --
WHEN? FEBRUARY 23RD.
OBVIOUSLY IF THE SPOLIATION FINDING -- IF
15
15:18:54
1
THE SPOLIATION RESULT OF THAT PROCESS IS THAT
15:18:57
2
PATENT -- IS THAT RAMBUS'S PATENTS ARE
15:19:00
3
UNENFORCEABLE, THEN WE SHOULDN'T HAVE HAD THE
15:19:02
4
PATENT INFRINGEMENT TRIAL.
15:19:04
5
15:19:10
6
HAPPENED, THAT OUTCOME IS AT LEAST SUFFICIENTLY
15:19:12
7
LIKELY TO MAKE THAT THE PROPER COURSE.
15:19:16
8
THE PREJUDICE THAT RAMBUS WOULD
15:19:17
9
PRESUMABLY CITE ON THE OTHER SIDE IS A DELAY IN ITS
15:19:21
10
TRIAL, AND THAT DELAY WOULD BE OF MAYBE A YEAR AND
15:19:29
11
A HALF OR SO.
15:19:32
12
15:19:44
13
NOT SOMETHING WHERE RAMBUS HAS A PLAUSIBLE CASE OF
15:19:47
14
IRREPARABLE INJURY.
15:19:50
15
PRELIMINARY INJUNCTION.
15:19:52
16
AND THAT MONEY, IF IT IS ENTITLED TO IT,
15:19:54
17
WHICH THE CURRENT FRAMING OF MANY OF THE DECISIONS
15:19:57
18
WOULD SAY CERTAINLY NOT, BUT EVEN ASSUMING ALL OF
15:20:01
19
THAT GOES RAMBUS'S WAY, THAT'S JUST MONEY THAT IT'S
15:20:05
20
CLAIMING, AND THAT MONEY CAN BE PAID A YEAR AND A
15:20:10
21
HALF FROM NOW AND RAMBUS SUFFERS NO COGNIZABLE
15:20:14
22
PREJUDICE.
15:20:14
23
15:20:16
24
EARLIER, BUT FROM A PUBLIC POLICY POINT OF VIEW,
15:20:20
25
THAT'S NOT COGNIZABLE PREJUDICE.
AND I THINK THAT GIVEN ALL THAT HAS
RAMBUS IS MERELY SEEKING MONEY.
THIS IS
IT MADE NO MOTION FOR IT IS A LICENSING ENTITY.
IT MAY WISH TO HAVE ITS RESOLUTION
IT'S MONEY THAT
16
15:20:23
1
COULD BE MADE WHOLE.
15:20:25
2
15:20:30
3
15:20:31
4
15:20:33
5
15:20:37
6
15:20:43
7
CLAIM CONSTRUCTION AND THE CONSOLIDATED CASE, AS
15:20:49
8
WELL AS THE VERDICT FROM THE CONDUCT TRIAL?
15:20:51
9
15:20:52
10
THE COURT:
15:20:54
11
MR. POWERS:
15:20:55
12
WE'VE DISCUSSED MANY TIMES, BOTH DURING THE MARKMAN
15:20:57
13
HEARING AND AFTERWARDS.
15:20:58
14
15:21:01
15
QUESTION OF WHAT TO DO WITH THE SAME ISSUES
15:21:03
16
POST-PHILLIPS VERSUS PRE, AND YOUR HONOR'S MARKMAN
15:21:06
17
RULING EXPLICITLY FELT BOUND BY THE FEDERAL
15:21:11
18
CIRCUIT'S PRE-PHILLIPS MARKMAN RULING ON SIMILAR
15:21:14
19
ISSUES.
15:21:15
20
15:21:18
21
OUT THE SAME WAY.
15:21:20
22
EFFICIENCY REASON NOT TO BE HOLDING THE PATENT
15:21:23
23
TRIAL NOW WHEN THERE IS A MATERIAL LIKELIHOOD THAT
15:21:28
24
THE CLAIM CONSTRUCTION ASSUMPTIONS MAY WELL BE
15:21:31
25
REVERSED IN SOME MATERIAL RESPECTS.
WITH REGARD TO OPTION B, IF YOU WERE TO PROCEED WITH -THE COURT:
LET ME GO BACK TO OPTION A
FOR A MINUTE. WOULDN'T IT MAKE SENSE TO CERTIFY THE
MR. POWERS:
I AGREE WITH THAT. OKAY. AND FOR THE REASONS THAT
I KNOW YOUR HONOR WRESTLED WITH THE
THE FEDERAL CIRCUIT MAY OR MAY NOT COME THAT IS CLEARLY AN ADDITIONAL
17
15:21:36
1
WITH REGARD TO OPTION B -- SO OPTION A WE
15:21:40
2
THINK IS THE APPROPRIATE JUDICIAL ECONOMY APPROACH
15:21:43
3
TO TAKE.
15:21:44
4
15:21:47
5
PROCEED, I BELIEVE YOU WOULD HAVE -- THAT YOU
15:21:50
6
SHOULD ALSO STAY AS TO MICRON -- AS TO SAMSUNG AS
15:21:53
7
WELL, BECAUSE SAMSUNG WOULD HAVE, IN THAT
15:21:55
8
SITUATION, MANY SIMILAR INTERESTS TO MICRON, HAVING
15:21:59
9
RECEIVED A DECISION OF SPOLIATION FROM JUDGE PAYNE,
15:22:05
10
TO HAVE IT THROWN OUT ON PROCEDURAL GROUNDS, BUT
15:22:08
11
NOT SUBSTANTIVE GROUNDS.
15:22:10
12
THE COURT:
15:22:12
13
MR. POWERS:
15:22:14
14
SAID.
15:22:16
15
SUBSTANTIVE GROUNDS.
15:22:18
16
15:22:19
17
BEFORE YOUR HONOR RIGHT NOW A DECISION ON THE SAME
15:22:21
18
QUESTIONS.
15:22:23
19
15:22:25
20
15:22:28
21
15:22:30
22
THE SAME LOGIC UNDER OPTION A THAT ARGUES FOR
15:22:35
23
HAVING THOSE ISSUES RESOLVED AT ONE TIME BY THE
15:22:37
24
FEDERAL CIRCUIT WOULD ARGUE EQUALLY FOR HAVING
15:22:40
25
THOSE -- SAMSUNG'S ISSUES RESOLVED AT THE SAME TIME
WITH REGARD TO OPTION B, IF YOU WERE TO
THAT WAS VACATED. EXACTLY.
THAT'S WHAT I JUST
IT WAS VACATED ON PROCEDURAL GROUNDS, NOT
AND RAMBUS -- AND SAMSUNG HAS PENDING
THAT DECISION SHOULD GO UP AND BE RESOLVED AT THE SAME TIME. IF SO -- AND WHEN ALL THAT IS RESOLVED,
18
15:22:44
1
SINCE THEY ARE RIPE AT THE SAME TIME.
15:22:46
2
THE COURT:
15:22:47
3
MR. POWERS:
15:22:48
4
THE COURT:
15:22:51
5
MR. POWERS:
15:22:53
6
15:22:54
7
THE COURT:
15:22:55
8
MR. FREITAS:
15:22:57
9
15:23:00
10
15:23:02
11
15:23:06
12
CONCERN, AS MR. BOBROW I EXPECT -- EXPRESSED WITH
15:23:10
13
RESPECT TO AN APPEAL ON THE ANTITRUST ISSUES NOW.
15:23:16
14
I'D LIKE THE OPPORTUNITY TO THINK ABOUT
15:23:17
15
THIS IN GREATER DETAIL, BUT DEPENDING ON WHAT
15:23:21
16
HAPPENS WITH THE COURT'S RULING ON THE MOTIONS THAT
15:23:24
17
WILL BE FILED NOW ON THE IMPACT OF JUDGE ROBINSON'S
15:23:28
18
DECISION, WE DO HAVE A SPOLIATION CASE THAT AWAITS,
15:23:33
19
AND I THINK THAT THE RANGE OF RESULTS OF WHAT YOUR
15:23:39
20
HONOR MIGHT DO ON THE PARTIES' MOTIONS IS NOT
15:23:43
21
SIMPLY THUMBS UP, THUMBS DOWN.
15:23:46
22
15:23:48
23
I THINK THAT THERE IS THE POSSIBILITY OF
15:23:52
24
ISSUE-SPECIFIC RESULTS THAT, REGARDLESS OF
15:23:54
25
EVERYTHING RAMBUS HAS SAID, NONETHELESS, THERE
WIN OR LOSE. WIN OR LOSE. OKAY. NOTHING FURTHER FROM ME,
UNLESS YOUR HONOR HAS A QUESTION. ALL RIGHT. YOUR HONOR, NANYA AND NANYA
U.S.A. ARE SITUATED DIFFERENTLY FROM THE OTHER PARTIES IN VARIOUS WAYS. I HAVE A COUPLE OF THOUGHTS.
I HAVE A
I THINK THERE ARE MORE OPTIONS THAN THAT.
19
15:23:58
1
MIGHT BE AT LEAST SOME ISSUES THAT GET TAKEN CARE
15:24:00
2
OF IN A WAY THAT'S BINDING.
15:24:03
3
AND WITHOUT KNOWING EXACTLY WHERE --
15:24:05
4
THE COURT:
15:24:07
5
15:24:09
6
15:24:11
7
DIFFERENT FINDINGS THAT WERE MADE BY JUDGE
15:24:14
8
ROBINSON.
15:24:16
9
VARIETY OF FINDINGS.
15:24:18
10
15:24:21
11
NECESSARILY THE CASE THAT THIS COURT'S RULING ON
15:24:23
12
THE APPLICATION OF ISSUE PRECLUSION WILL BE
15:24:25
13
IDENTICAL WITH RESPECT TO EVERY SINGLE ISSUE.
15:24:29
14
15:24:31
15
SEE IT, WHAT JUDGE ROBINSON SAID SHOULD BE BINDING
15:24:34
16
IN A WAY THAT'S PRETTY COMPLETE.
15:24:37
17
15:24:39
18
THERE'S NOTHING THAT JUDGE ROBINSON SAID THAT'S
15:24:42
19
BINDING AT ALL.
15:24:43
20
15:24:45
21
15:24:46
22
15:24:47
23
THAT -- OR WHAT DO YOU THINK ABOUT THE ARGUMENT
15:24:53
24
THAT THE EFFECT OF INEQUITABLE CONDUCT, OR THE
15:25:07
25
CONDUCT THAT JUDGE ROBINSON FOUND, THE SEVERITY OF
THAT.
I'M NOT SURE I'M FOLLOWING
WHAT ARE YOU -MR. FREITAS:
THERE'S A RANGE OF
THERE WERE A VARIETY OF ISSUES, A
WHAT I'M SAYING IS SIMPLY THAT IT'S NOT
WE'VE EXPRESSED THE VIEW THAT, THE WAY WE
RAMBUS IS SAYING, ON THE OTHER HAND,
I'M SUGGESTING THERE'S ANOTHER RESULT THAT COULD BE POSSIBLE. THE COURT:
WHAT ABOUT THE POSSIBILITY
20
15:25:15
1
IT WOULD VARY AMONG MANUFACTURERS, AND SO IT
15:25:22
2
PERHAPS SHOULD BAR, FOR EXAMPLE, CLAIMS AGAINST ONE
15:25:31
3
MANUFACTURER, BUT PERHAPS RESULT IN SOME OTHER
15:25:34
4
REMEDY VIS-A-VIS ANOTHER MANUFACTURER?
15:25:36
5
DO YOU THINK THAT'S POSSIBLE?
15:25:39
6
MR. FREITAS:
15:25:40
7
BUT I GUESS WHAT I WOULD SAY ABOUT IT
15:25:42
8
WOULD DEPEND ON WHICH MANUFACTURER WAS IN WHICH
15:25:45
9
BOX, AND THE ONLY THING I'VE SEEN SO FAR IS THAT
15:25:47
10
RAMBUS -- EXCUSE ME -- RAMBUS SUGGESTING THAT
15:25:51
11
THERE'S A BASIS TO SAY THAT LITIGATION WASN'T
15:25:53
12
ANTICIPATED AS TO OUR CLIENTS WHEN IT -- WHEN IT
15:25:59
13
WAS BASED ON JUDGE ROBINSON'S FINDINGS AS TO
15:26:03
14
OTHERS.
15:26:03
15
15:26:05
16
THE FACT THAT THE DOCUMENT RAMBUS IDENTIFIED, THE
15:26:08
17
NUCLEAR WINTER DOCUMENT, IS DATED AFTER ONE OF THE
15:26:12
18
DOCUMENTS THAT WE CITED SHOWING SPECIFIC
15:26:14
19
ANTICIPATION OF LITIGATION AS TO NANYA AND NANYA
15:26:17
20
U.S.A.
15:26:18
21
15:26:20
22
WITH RESPECT TO THE SEVERITY OF THE REMEDY, I DON'T
15:26:23
23
THINK IT'S LIKELY THAT A LESSER REMEDY WOULD BE
15:26:27
24
AVAILABLE AGAINST ONE OR MORE OF THE MANUFACTURERS,
15:26:30
25
AND -- AS TO ONE OR MORE OF THE MANUFACTURERS, BUT
I DOUBT IT.
I DON'T THINK THAT RESULT IS LIKELY GIVEN
BUT ON THAT OTHER QUESTION, YOUR HONOR,
21
15:26:33
1
I'M NOT SURE WHAT THE BASIS FOR AN ARGUMENT TO THAT
15:26:35
2
EFFECT WOULD BE.
15:26:37
3
15:26:41
4
WE'VE ALREADY SAID -- EXPRESSED PART OF THE REASONS
15:26:45
5
WHY WE DON'T THINK THAT PROVIDES A BASIS.
15:26:47
6
15:26:49
7
15:26:51
8
15:26:54
9
15:26:57
10
15:26:58
11
THE COURT:
15:26:59
12
MR. FREITAS:
15:27:01
13
BE -- IS THAT -- ARE THERE ANY ASSUMPTIONS ABOUT
15:27:05
14
WHAT RULING THE COURT WOULD MAKE ON THE ISSUE
15:27:08
15
PRECLUSION MOTIONS?
15:27:10
16
15:27:13
17
OUT THOSE TWO POSSIBILITIES AS WAYS THAT MIGHT MAKE
15:27:19
18
SENSE.
15:27:22
19
ONE OR THE OTHER, OR THAT A MOTION COULDN'T
15:27:26
20
PERSUADE ME THAT ONE OF THOSE OPTIONS, OR BOTH,
15:27:31
21
ARE -- WOULD HAVE TO BE MODIFIED.
15:27:34
22
15:27:37
23
TO TWO APPROACHES THAT I THOUGHT WERE REASONABLE,
15:27:43
24
SENSIBLE APPROACHES.
15:27:45
25
THE ONE ISSUE RAMBUS HAS ARTICULATED
I HAVE A QUESTION, YOUR HONOR, ABOUT OPTION B. THE IDEA WOULD BE THAT THE PATENT TRIAL WOULD GO FORWARD AS TO ALL OF THE MANUFACTURERS OTHER THAN MICRON?
THE COURT:
YES. AND THE MICRON STAY WOULD
I'M -- I WAS JUST THROWING
I'M NOT SUGGESTING THAT IT'S NECESSARILY
I'M JUST TRYING TO GIVE YOU MY THOUGHT AS
MR. FREITAS:
UM-HUM.
22
15:27:46
1
THE COURT:
I'M NOT SURE I'M ANSWERING
15:27:48
2
15:27:49
3
15:27:50
4
15:27:51
5
THE COURT:
15:27:54
6
MR. FREITAS:
15:27:55
7
OPTIONS SOME MORE THOUGHT, DISCUSS THEM WITH OUR
15:27:59
8
CLIENTS AND WITH OUR COLLEAGUES, AND EXPRESS MORE
15:28:02
9
DETAILED VIEWS WHEN WE MAKE OUR SUBMISSIONS
15:28:05
10
PURSUANT TO THE COURT'S ORDER.
15:28:07
11
THE COURT:
15:28:09
12
YET, EITHER.
15:28:12
13
AND SAY THIS IS WHERE I AM RIGHT NOW.
15:28:15
14
MR. FREITAS:
15:28:16
15
THE COURT:
15:28:18
16
MR. FREITAS:
15:28:20
17
15:28:23
18
THANK YOU, YOUR HONOR.
15:28:25
19
THE COURT:
15:28:25
20
MR. NISSLY:
15:28:30
21
WE APPRECIATE THE COURT'S GUIDANCE, AND
15:28:34
22
OBVIOUSLY WE'LL FILE OUR MOTIONS IN ACCORDANCE WITH
15:28:39
23
THE SCHEDULE THAT WE PROPOSED, OR THAT WAS PROPOSED
15:28:43
24
BY THE MANUFACTURERS, AND WE'LL TAKE A LOOK AT
15:28:46
25
EITHER A MOTION FOR SUMMARY JUDGMENT OR WHATEVER
YOUR QUESTION. MR. FREITAS:
THAT WAS -- THAT'S ALL I
WAS ASKING, YOUR HONOR. OKAY. WELL, WE'LL GIVE THESE
I HAVEN'T MADE THAT ORDER
I'M JUST -- I WAS TRYING TO COME OUT
YES, YOUR HONOR. AND LET YOU RESPOND TO IT. RIGHT.
I ADMIT THE
BRIEFING SCHEDULE.
OKAY. GOOD AFTERNOON, YOUR HONOR.
23
15:28:48
1
OTHER MOTION THAT WE THINK MIGHT BE APPROPRIATE
15:28:50
2
UNDER THE CIRCUMSTANCES.
15:28:52
3
15:28:54
4
15:28:56
5
15:28:59
6
TO YOUR HONOR'S SUGGESTIONS OF POSSIBLE WAYS TO
15:29:03
7
MOVE FORWARD WOULD SIMPLY BE TO CIRCLE BACK AND
15:29:07
8
POINT OUT THAT AS THINGS HAVE DEVELOPED IN THE
15:29:09
9
COURSE OF THIS CASE OVER THE YEARS, HOW
15:29:12
10
CONSOLIDATED IT HAS BECOME AND HOW INTERTWINED IT'S
15:29:17
11
BECOME, AND I WAS STRUCK IN THAT REGARD BY A
15:29:19
12
STATEMENT, FRANKLY, FROM A BRIEF THAT RAMBUS
15:29:22
13
FILED -- AND IT'S NOT OFTEN, OBVIOUSLY, I QUOTE ONE
15:29:26
14
OF THEIR BRIEFS -- FROM AUGUST OF 2008 WHICH I
15:29:31
15
THOUGHT WAS APPROPRIATE FOR THE DISCUSSION WE'RE
15:29:33
16
GOING TO HAVE HERE THIS AFTERNOON.
15:29:35
17
15:29:39
18
FILED ON THEIR CONSOLIDATED OPPOSITIONS TO THE STAY
15:29:43
19
MOTIONS THAT WERE FILED LAST, LAST YEAR.
15:29:46
20
AND RAMBUS WROTE, ON PAGE 2, "THE HISTORY
15:29:49
21
OF THIS LITIGATION, INCLUDING THE POSITIONS JOINTLY
15:29:52
22
TAKEN BY THE MANUFACTURERS AT THE SUMMARY JUDGMENT
15:29:55
23
STAGE, CONFIRMED THAT RAMBUS'S PATENT CLAIMS AND
15:29:58
24
THEIR DEFENSES ARE DOMINATED BY COMMON AND
15:30:01
25
INTERWOVEN ISSUES."
BUT WE CERTAINLY APPRECIATE THE COURT'S COMMENTS IN THAT REGARD. ONE OF THE THINGS I WOULD SAY IN RESPONSE
AND I'M READING FROM A BRIEF THAT RAMBUS
24
15:30:03
1
AND THAT'S CERTAINLY TRUE, AND THAT'S ONE
15:30:05
2
OF THE POINTS, ONE OF THE REASONS WHY WE GAVE YOU
15:30:08
3
THE CHART THAT WE DID THAT SHOWED THE OVERLAP
15:30:11
4
BETWEEN THE MICRON DELAWARE CASE, OUR 905 CASE, THE
15:30:19
5
334 CASE WHICH WE'RE TALKING ABOUT THIS AFTERNOON
15:30:22
6
IN TERMS OF SCHEDULE, AND THE RE-EXAMINATIONS.
15:30:24
7
15:30:27
8
SPOLIATION, WHICH YOU TOOK UP FIRST AND YOU HEARD
15:30:29
9
AND OBVIOUSLY YOU CAME OUT AT A DIFFERENT PLACE
15:30:32
10
THAN NOW TWO OTHER FEDERAL DISTRICT JUDGES HAVE
15:30:35
11
COME OUT, IS THE ONE ISSUE THAT WE'VE EVER SEEN IN
15:30:37
12
THIS CASE WHICH CUTS ACROSS ALL OF THIS, WHICH
15:30:41
13
CUTS, AS WE SAID IN OUR PAPERS, THIS GORDIAN KNOT,
15:30:45
14
AND IT SEEMS TO US THAT WHAT WE OUGHT TO DO IS
15:30:47
15
FOCUS ON THAT ISSUE AND GET THAT RESOLVED IN A WAY
15:30:51
16
THAT IS CONSISTENT FOR ALL THE MANUFACTURERS ACROSS
15:30:53
17
THE INDUSTRY, BECAUSE OBVIOUSLY THAT'S WHAT WE HAVE
15:30:56
18
HERE, AS THE COURT CERTAINLY HAS COME TO
15:30:59
19
APPRECIATE.
15:31:01
20
INDUSTRY-WIDE PROBLEM.
15:31:04
21
15:31:06
22
WHICH PATENTS ARE UNENFORCEABLE AS TO MICRON ON
15:31:11
23
CERTAIN PRODUCTS, AND NOT AS TO HYNIX OR SAMSUNG OR
15:31:14
24
NANYA OR ANYONE ELSE.
15:31:15
25
AND IT SEEMS TO US THAT THIS ISSUE OF
WE HAVE AN INDUSTRY-WIDE ISSUE AND AN
AND WE DO NOT SEE ANY LEGAL BASIS UPON
THE COURT:
I SUPPOSE IT'S THEORETICALLY
25
15:31:17
1
POSSIBLE, THOUGH, THAT -- I MEAN, I WOULD AGREE
15:31:20
2
THAT I DON'T THINK IT'S GOING TO HAPPEN, BUT THAT
15:31:25
3
THE FEDERAL CIRCUIT COULD AFFIRM A FINDING OF
15:31:30
4
SPOLIATION AS TO -- IN THE MICRON CASE AND AFFIRM A
15:31:37
5
FINDING OF NO SPOLIATION IN YOUR CASE ON THE BASIS
15:31:40
6
THAT IT'S A FACTUAL QUESTION AND THE COURT
15:31:45
7
INTERPRETED FACTS DIFFERENTLY.
15:31:47
8
15:31:49
9
15:31:52
10
15:31:53
11
15:31:54
12
AND I THINK IN SOME WAYS IT WOULD BE UNFORTUNATE IF
15:31:57
13
THAT OCCURRED.
15:31:58
14
MR. NISSLY:
15:31:59
15
OBVIOUSLY THIS IS A DECISION THAT NEEDS A
15:32:02
16
CONSISTENT TREATMENT, AND THAT'S WHY WE BELIEVE
15:32:04
17
THAT THE RIGHT WAY TO MOVE FORWARD ON THIS IS, AS
15:32:07
18
THE COURT SUGGESTED, TO FILE MOTIONS, TO GET IT
15:32:09
19
SORTED OUT BEFORE YOU, AND THEN ALLOW THOSE -- YOUR
15:32:12
20
DECISIONS ON THOSE ISSUES TO GO TO THE FEDERAL
15:32:14
21
CIRCUIT, ALONG WITH THE APPEAL THAT RAMBUS PROMISES
15:32:18
22
FROM DELAWARE, AND HAVE THE CIRCUIT FOCUS ON THOSE
15:32:21
23
ISSUES AND RESOLVE THEM.
15:32:23
24
15:32:25
25
MR. NISSLY: WITH YOUR HONOR.
WE BELIEVE -- I'LL AGREE
IT'S THEORETICALLY POSSIBLE.
I
DON'T THINK IT'S LIKELY. THE COURT:
I DON'T THINK IT IS, EITHER,
AGREED.
THERE ARE MANY OTHER VERY DIFFICULT ISSUES BEFORE YOUR HONOR, AS YOU WELL APPRECIATE,
26
15:32:27
1
THAT CAN TAKE UP AN ENORMOUS AMOUNT OF YOUR TIME
15:32:32
2
AND OUR TIME AND OUR RESOURCES, WHICH ARE OBVIOUSLY
15:32:34
3
NOT UNLIMITED, BUT HAVE BEEN SORELY TAXED BY THIS
15:32:37
4
LITIGATION, AND REALLY FOCUS ON THOSE.
15:32:40
5
15:32:42
6
A 1292(B) CERTIFICATION, AND THAT'S WHY WE'LL ASK
15:32:46
7
YOU FOR IT AGAIN, BECAUSE WE THINK THAT'S THE WAY
15:32:49
8
TO MOVE FORWARD.
15:32:52
9
ON AN INDUSTRY-WIDE BASIS AND THEN LET'S SEE WHAT'S
15:32:55
10
15:32:57
11
15:32:59
12
MENTIONED, BUT PARTICULARLY WHEN WE THINK ABOUT THE
15:33:02
13
CONDUCT CASE, FOR EXAMPLE, AND THE CONDUCT TRIAL
15:33:04
14
THAT WE HAD LAST YEAR.
15:33:05
15
15:33:08
16
WAS TAINTED BY THE FACT THAT WE DID NOT HAVE ACCESS
15:33:11
17
TO EVIDENCE THAT RAMBUS DESTROYED.
15:33:14
18
15:33:18
19
CERTIFIED FOR APPEAL?
15:33:20
20
MR. NISSLY:
15:33:22
21
15:33:25
22
THE COURT:
15:33:27
23
MR. NISSLY:
15:33:27
24
THE COURT:
15:33:29
25
THAT'S WHY WE ASKED YOU TWICE BEFORE FOR
LET'S GET THOSE ISSUES RESOLVED
LEFT WITH REGARD TO THAT. AND THAT'S A POINT PERHAPS OTHER COUNSEL
CERTAINLY HYNIX BELIEVES THAT THAT CASE
THE COURT:
WHY SHOULDN'T THAT CASE BE
BECAUSE IT IS TAINTED BY THE
ALLEGATIONS OF SPOLIATION, BECAUSE WE WERE -WHY SHOULDN'T -I'M SORRY. WHY SHOULDN'T IT BE CERTIFIED
FOR APPEAL, TOO?
27
15:33:30
1
MR. NISSLY:
BECAUSE WE BELIEVE THAT THAT
15:33:31
2
OUGHT TO AWAIT THE RESOLUTION OF THE SPOLIATION
15:33:33
3
ISSUES BECAUSE IT CUTS ACROSS ALL OF THESE.
15:33:36
4
THE COURT:
15:33:37
5
MR. NISSLY:
15:33:38
6
THE COURT:
15:33:39
7
CIRCUIT SAY THERE WAS SPOLIATION; THEREFORE, THIS
15:33:47
8
VERDICT CAN'T STAND?
15:33:51
9
SHOULD STAY?
15:33:52
10
15:33:56
11
IS A STAYING FOR THE PURPOSES OF RESOLVING SOME
15:34:01
12
ISSUES, WHY SHOULDN'T THE KEY ISSUES GET RESOLVED
15:34:06
13
AT THE SAME TIME?
15:34:07
14
15:34:09
15
15:34:11
16
15:34:13
17
15:34:24
18
15:34:29
19
AND THE COURT SAID, "WE FEEL THAT THE FINDING OF NO
15:34:35
20
SPOLIATION IS AFFIRMED."
15:34:44
21
MR. NISSLY:
15:34:45
22
THE COURT:
15:34:48
23
AND THEN IT'S TRIED AND GOES UP ON APPEAL
15:34:53
24
AND THE COURT SAYS, "CLAIM CONSTRUCTION WAS WRONG."
15:34:58
25
RIGHT. I'M SORRY. BUT COULDN'T THE FEDERAL
OR SAY THERE WASN'T AND IT
I MEAN, WHAT'S THE POINT OF -- IF THERE
MR. NISSLY: PARDON ME.
BECAUSE, YOUR HONOR --
I DIDN'T MEAN TO STEP ON YOU. THE COURT:
THAT'S OKAY.
YOU'RE ALWAYS
VERY PROFESSIONAL, SO DON'T WORRY ABOUT IT. IF THE -- LET'S ASSUME THAT IT WENT UP
UM-HUM. AND IT COMES BACK FOR TRIAL.
WHY SHOULDN'T THOSE THINGS BE DONE
28
15:35:00
1
TOGETHER?
15:35:00
2
15:35:02
3
IN A SEPARATE BUCKET BECAUSE IT DOES PRESENT A
15:35:06
4
DIFFERENT SET OF LEGAL ISSUES AND THERE ARE -- THE
15:35:09
5
CLAIM CONSTRUCTION ISSUE MAY MAKE MORE SENSE TO GO
15:35:11
6
UP AT THIS POINT THAN OTHERS, AND THAT'S WHY I SAY
15:35:16
7
I'D PUT IT IN A SEPARATE BUCKET.
15:35:18
8
15:35:19
9
15:35:23
10
ARE TAINTED BY THE ISSUE OF SPOLIATION.
15:35:27
11
THAT ASIDE.
15:35:28
12
15:35:30
13
CIRCUIT AFFIRMS YOU AND SAYS, "NO, JUDGE WHYTE WAS
15:35:33
14
CORRECT ON HIS ANALYSIS," OR "WE FIND A FACTUAL
15:35:37
15
DIFFERENCE, SOMEHOW, BETWEEN WHAT JUDGE WHYTE DID
15:35:39
16
AND WHAT JUDGE ROBINSON DID," THEN THAT CASE CAN
15:35:43
17
COME BACK HERE AND BE FINISHED LIKE MANY OTHER
15:35:45
18
CASES THAT ARE IN THIS SORT OF POSTURE.
15:35:47
19
15:35:50
20
FACT, IT WOULD BE, TO MY WAY OF THINKING, MORE
15:35:55
21
JUDICIALLY EFFICIENT TO DO IT THAT WAY THAN ANOTHER
15:35:58
22
WAY.
15:35:59
23
15:36:02
24
PREJUDICE TO RAMBUS HERE.
15:36:04
25
ROYALTIES AND MONEY.
MR. NISSLY:
I'D PUT CLAIM CONSTRUCTION
BUT WITH REGARD TO THE CONDUCT ISSUES THAT WERE TRIED, THOSE, WE BELIEVE, AS I JUST SAID, BUT PUT
SPOLIATION GOES UP AND THE FEDERAL
SO THAT I DON'T SEE AS AN ISSUE.
IN
AND AS MR. POWERS POINTED OUT, THERE'S NO THIS IS A CASE ABOUT
AND SO THERE'S -- THAT'S --
29
15:36:08
1
THAT'S REALLY NOT AN ISSUE.
15:36:10
2
15:36:11
3
CORRECTLY, HE WAS SUGGESTING THAT THOSE -- THAT THE
15:36:15
4
ISSUE OF CLAIM CONSTRUCTION AND THE CONDUCT TRIAL
15:36:17
5
MADE SENSE TO CERTIFY.
15:36:19
6
15:36:20
7
15:36:23
8
THE COURT:
15:36:24
9
MR. NISSLY:
15:36:25
10
ISSUE THAT IS DIRECTLY AFFECTED BY THE SPOLIATION
15:36:27
11
ISSUES AND ONE THAT OUGHT TO BE PUT ASIDE WHILE WE
15:36:31
12
SORT OUT WHERE ARE WE WITH SPOLIATION GIVEN THE
15:36:34
13
FACT THAT WE'VE NOW HAD THESE DIFFERENT DECISIONS
15:36:37
14
BY FEDERAL DISTRICT JUDGES, FEDERAL DISTRICT COURTS
15:36:40
15
ON WHETHER OR NOT SPOLIATION IS PRESENT.
15:36:42
16
15:36:45
17
ISSUES BETWEEN THE 334 CASE AS IT INVOLVES HYNIX
15:36:51
18
AND THE 905 CASE, WHICH WE POINTED OUT IN OUR
15:36:54
19
PAPERS.
15:36:55
20
15:36:57
21
ILLUSTRATED BY THE CHART WHICH WE GAVE YOU; WE HAVE
15:37:00
22
THE OVERLAP IN THE WAIVER AND ESTOPPEL CLAIMS WHICH
15:37:02
23
WERE PART OF THE CONDUCT TRIAL; AND WE HAVE THE
15:37:05
24
POINT, YOUR HONOR, THAT THESE PATENTS ARE ASSERTED
15:37:08
25
AGAINST INDUSTRY STANDARD PRODUCTS AND IT OUGHT TO
THE COURT:
MR. NISSLY:
IF I HEARD MR. POWERS
HE DID SAY THE CONDUCT
TRIAL, AND THAT'S WHERE I PART COMPANY WITH HIM. OKAY. BECAUSE I THINK THAT IS AN
THERE IS A WHOLE COMPLEX OF OVERLAPPING
WE HAVE THE OVERLAP IN PATENTS AS
30
15:37:11
1
HAVE AN INDUSTRY STANDARD SOLUTION AND AN
15:37:15
2
INDUSTRY-WIDE SOLUTION AND, THEREFORE, WE'LL
15:37:17
3
CERTAINLY, OF COURSE, FILE OUR MOTIONS WITH THE
15:37:19
4
COURT AND MAKE THOSE POINTS.
15:37:22
5
ANOTHER 1292(B) CERTIFICATION.
15:37:24
6
15:37:27
7
WAY TO PROCEED IS TO CARVE OFF THE SPOLIATION
15:37:30
8
ISSUES, LET THOSE GO TO THE CIRCUIT.
15:37:32
9
15:37:34
10
CONSTRUCTION, THAT MAKE SENSE AT THIS POINT TO
15:37:36
11
THINK ABOUT IN THAT REGARD, THAT MAY MAKE SOME
15:37:39
12
SENSE.
15:37:40
13
15:37:42
14
SO FACT BOUND THAT ARE AFFECTED BY WHAT HAPPENS ON
15:37:45
15
SPOLIATION OUGHT, IN FAIRNESS, TO STAY UNRESOLVED
15:37:51
16
UNTIL WE DECIDE AND UNDERSTAND EXACTLY WHAT THE LAW
15:37:53
17
OF THIS CASE IS REGARDING SPOLIATION, AND THEN WE
15:37:56
18
CAN MOVE FORWARD.
15:37:57
19
THE COURT:
15:37:57
20
MR. NISSLY:
15:38:04
21
MR. STONE:
GOOD AFTERNOON, YOUR HONOR.
15:38:06
22
THE COURT:
GOOD AFTERNOON.
15:38:07
23
MR. STONE:
FIRST, I THINK THAT YOU
15:38:09
24
PROPOSED A BRIEFING SCHEDULE, AND IN OUR PAPERS
15:38:12
25
WE'D SUGGESTED WE DIDN'T SEE THE NEED FOR IT, AND
WE'LL ASK YOU FOR
BUT IT SEEMS TO US THAT THE MOST SENSIBLE
IF THERE ARE ISSUES, SUCH AS CLAIM
BUT ALL THE REST OF THESE ISSUES THAT ARE
OKAY. THANK YOU.
31
15:38:15
1
OBVIOUSLY YOU THINK THERE IS PROBABLY A NEED AND I
15:38:19
2
APPRECIATE THAT.
15:38:19
3
15:38:21
4
TWO REASONS.
15:38:25
5
APPLICATIONS, OR AN EXPLANATION OF WHY OR WHY NOT
15:38:32
6
ISSUE PRECLUSION APPLIES.
15:38:34
7
15:38:39
8
GETTING FURTHER THOUGHTS ON WHAT MAKES SENSE FROM A
15:38:42
9
PRACTICAL STANDPOINT, BECAUSE I SUSPECTED THE
15:38:48
10
PARTIES WOULD COME OUT THE WAY THEIR LETTERS DID AS
15:38:53
11
FAR AS THEIR POSITIONS, BUT I WASN'T SURE.
15:38:57
12
15:38:59
13
FRANKLY, TO RAMBUS OF BOTH APPROACHES.
15:39:05
14
100 PERCENT SURE AS TO WHERE YOU WOULD COME OUT ON
15:39:08
15
THIS.
15:39:09
16
15:39:10
17
ADDRESS BRIEFLY SOME OF THE ISSUES YOU'VE RAISED
15:39:14
18
AND SOME OF THE QUESTIONS THAT YOU'VE ASKED, IF I
15:39:17
19
MIGHT, AND IF YOU HAVE OTHER QUESTIONS, PLEASE POSE
15:39:19
20
THEM TO ME.
15:39:21
21
15:39:22
22
SCHEDULE YOU PROPOSED, WE'LL MEET THE BRIEFING
15:39:26
23
SCHEDULE AND SO FORTH.
15:39:27
24
15:39:29
25
THE COURT:
I THINK THERE'S A NEED FOR
ONE IS THE -- SOME SPECIFIC
BUT, FRANKLY, I'M MORE CONCERNED WITH
I MEAN, I CAN SEE SOME ADVANTAGES,
MR. STONE:
OKAY.
SO I WASN'T
SO LET ME TRY TO
BUT I'M ASSUMING THAT -- THE BRIEFING
I THINK WE'VE LAID OUT IN SOME SIGNIFICANT DETAIL OUR POSITION ON THE MERITS OF
32
15:39:31
1
THIS ISSUE, SO I HOPE THE MANUFACTURERS, IN THEIR
15:39:34
2
PAPERS, CAN SORT OF ADDRESS AND CAN JOIN ISSUES
15:39:40
3
QUICKLY ON SOME OF THOSE.
15:39:41
4
15:39:45
5
THE POINT FROM OUR EARLIER BRIEF THAT MR. NISSLY
15:39:48
6
QUOTED ABOUT TO SOME EXTENT THIS CASE HAS -- THERE
15:39:52
7
ARE COMMON ISSUES THAT CUT ACROSS MANY OF THE CASES
15:39:54
8
AND MANY OF THE ISSUES ARE COMMON.
15:39:56
9
15:39:58
10
FILED THE MOTION TO TRANSFER VENUE IN THE DELAWARE
15:40:01
11
ACTION TO TRY TO BRING IT OUT HERE, AND MICRON
15:40:04
12
RESISTED THAT.
15:40:05
13
15:40:08
14
THE BRIEFING, AS WE WILL, TO RECOGNITION THAT WHAT
15:40:11
15
MICRON SEEKS IS OFFENSIVE COLLATERAL ESTOPPEL,
15:40:15
16
BECAUSE THEY WERE THE ONES WHO SELECTED THE FORUM,
15:40:18
17
AND AS THE SUPREME COURT NOTED IN PARKLANE, AND
15:40:22
18
THEY TALKED ABOUT IT IN THE TEXT OF THAT OPINION AT
15:40:25
19
FOOTNOTE 15, AND IN FOOTNOTE 15, THEY NOTED THAT
15:40:30
20
IT'S OFFENSIVE COLLATERAL ESTOPPEL WHEN THE PARTY
15:40:34
21
WHO SELECTED THE FORUM THEN SEEKS TO IMPOSE THE
15:40:39
22
RESULT IN THAT FORUM ON WHAT HAPPENS IN SOME OTHER
15:40:42
23
FORUM, NAMELY, THE FORUM HERE THAT RAMBUS HAS
15:40:45
24
SELECTED.
15:40:46
25
I WANT TO START MAYBE WITH -- THERE WAS
INDEED, THAT WAS THE REASON WHY WE HAD
AND THAT'S IMPORTANT WHEN WE COME BACK IN
SO THERE IS AN ISSUE, AND THAT ISSUE DOES
33
15:40:48
1
GO TO THE COLLATERAL ESTOPPEL LAW, BECAUSE THERE IS
15:40:52
2
AT LEAST SOME RECOGNITION IN THE CASES THAT THE
15:40:55
3
DISCRETIONARY FACTORS MAY BE MORE HEAVILY WEIGHED
15:40:59
4
IN AN OFFENSIVE COLLATERAL ESTOPPEL AS OPPOSED TO
15:41:03
5
DEFENSIVE.
15:41:03
6
15:41:06
7
CASE -- AND I REALIZE I'M TALKING ABOUT THE
15:41:08
8
TOUGHEST CASE FROM MY PERSPECTIVE -- EVEN IN
15:41:10
9
MICRON'S CASE, WE HAVE OFFENSIVE COLLATERAL
15:41:13
10
ESTOPPEL WHERE THE VARIOUS DISCRETIONARY FACTORS
15:41:17
11
SHOULD BE WEIGHED MOST HEAVILY.
15:41:19
12
15:41:21
13
DEFENSIVE COLLATERAL ESTOPPEL.
15:41:23
14
THE RESTATEMENT, AMONG OTHER AUTHORITIES, MAKES
15:41:25
15
THAT CLEAR.
15:41:27
16
15:41:29
17
WE'RE GOING TO -- THIS COURT WILL LOOK AT, IN THE
15:41:32
18
BRIEFS WE FILE, I THINK AT WHETHER, IN FACT, A STAY
15:41:35
19
FROM MICRON IS APPROPRIATE, OR WHETHER THE DECISION
15:41:37
20
OF JUDGE ROBINSON HAS ANY IMPACT HERE.
15:41:40
21
15:41:42
22
OVERLAP IN THE PATENTS AND THE PRODUCTS, AND THERE
15:41:44
23
IS NO OVERLAP IN PATENTS AND PRODUCTS.
15:41:47
24
15:41:50
25
AND HERE WE DO HAVE, EVEN IN MICRON'S
THAT'S NOT TO SAY THEY'RE NOT WEIGHED IN I THINK THEY ARE.
BUT SO WE HAVE HERE A SITUATION IN WHICH
YOU TALKED WITH MR. BOBROW ABOUT THE
THERE ARE FOUR PATENTS WHICH ARE HERE, BUT THEY'RE ASSERTED HERE AGAINST A PRODUCT THAT IS
34
15:41:52
1
NOT IN THE DELAWARE CASE, I'M TALKING NOW JUST
15:41:56
2
ABOUT MICRON, AGAINST DDR3, A PRODUCT THAT WAS NOT
15:42:00
3
EVEN IN CONTEMPLATION OR DESIGN AT THE TIME THAT
15:42:03
4
JUDGE ROBINSON FOUND THERE WAS A PERIOD OF
15:42:06
5
SPOLIATION.
15:42:07
6
15:42:11
7
BECAUSE WHAT CONDUCT SHE FOUND INFECTED THE PATENTS
15:42:14
8
WOULD APPLY TO THE -- IT WOULDN'T BE PRODUCT
15:42:19
9
DEPENDENT, WOULD IT?
15:42:21
10
MR. STONE:
15:42:22
11
VERY REASON THAT THE MANUFACTURERS HAVE INSISTED ON
15:42:25
12
HAVING DIFFERENT REPRESENTATIVE PRODUCTS FOR EVERY
15:42:28
13
GENERATION OF PRODUCT, I THINK THERE ARE DIFFERENT
15:42:30
14
PRODUCTS.
15:42:30
15
15:42:32
16
15:42:34
17
15:42:36
18
AROSE WITH RESPECT TO THAT PRODUCT AT A PARTICULAR
15:42:38
19
TIME, I THINK ALL OF THOSE ARE DIFFERENCES.
15:42:41
20
15:42:43
21
TERMS OF THOSE TWO CASES AS IT BEARS ON MICRON, IS
15:42:47
22
WITH RESPECT TO THE TIME AT WHICH THE CASE WAS
15:42:49
23
FILED, BECAUSE JUDGE ROBINSON'S DECISION IS BASED
15:42:53
24
ON, AND HER FINDING OF PREJUDICE IS, AND BAD FAITH,
15:42:57
25
REALLY, IS BASED ON TWO THINGS:
THE COURT:
BUT WHY DOES THAT MATTER,
I DON'T -- I THINK, FOR THE
I THINK THIS COURT LOOKED CAREFULLY AT THE ABILITY TO REVERSE ENGINEER A PRODUCT. I THINK A QUESTION AS TO WHETHER A DUTY
AND THE MOST CRITICAL DIFFERENCE, IN
A DETERMINATION
35
15:43:03
1
ABOUT WHEN THERE WAS A DUTY TO PRESERVE AND A
15:43:05
2
FAILURE TO PRESERVE; AND, SECONDLY, ABOUT
15:43:08
3
LITIGATION MISCONDUCT THAT OCCURRED IN 2001.
15:43:11
4
15:43:14
5
IT'S CLEAR FROM HER RECORD AND HER DECISION WHAT
15:43:17
6
SHE'S REFERRING TO, AND WE CAN MAKE IT CLEAR IN OUR
15:43:20
7
BRIEFING IF IT'S NOT, AND I THINK THE COURT HAS
15:43:22
8
SEEN THE SAME EVIDENCE, BUT THERE WAS AN ARGUMENT
15:43:26
9
THAT IT WAS LITIGATION MISCONDUCT WHAT OCCURRED IN
15:43:29
10
THE INFINEON CASE, AND SHE REACHED OUT TO THAT
15:43:31
11
CONDUCT AND SHE SAID AT LEAST ONE BRIEF, OR PERHAPS
15:43:36
12
TWO, IT'S A LITTLE UNCLEAR FROM HER DECISION, THAT
15:43:39
13
WERE FILED IN HER CASE IN 2001 WERE NOT CONSISTENT
15:43:44
14
WITH THE FACTS AS SHE LATER FOUND THEM TO EXIST.
15:43:48
15
15:43:52
16
15:43:54
17
15:43:57
18
THINK, MAKES CLEAR THAT THERE'S NO ARGUMENT THAT
15:44:00
19
THE LITIGATION MISCONDUCT, WHICH IS SORT OF
15:44:04
20
INTERWOVEN AND INEXTRICABLY TIED TO HER
15:44:07
21
CONCLUSIONS, HAS ANY BEARING IN THIS CASE, AND
15:44:09
22
MICRON I DON'T THINK CAN CONTEND OTHERWISE.
15:44:12
23
15:44:14
24
15:44:16
25
AND SHE REFERS, AND IT'S NOT -- I THINK
ALL OF THAT CAME TO LIGHT IN 2005, EARLY 2005 BEFORE THIS CASE WAS FILED. SO THERE'S NO ARGUMENT, AND APTIX, I
SO I THINK THERE'S REAL ISSUES FOR US TO BRIEF ON THE MICRON QUESTION. AND, OF COURSE, WITH RESPECT TO THE OTHER
36
15:44:18
1
PARTIES, HYNIX, OF COURSE, THERE'S BEEN A DECISION.
15:44:21
2
15:44:23
3
15:44:25
4
15:44:27
5
VERY DISTINCT ISSUES, TOO, NOT THE LEAST OF WHICH
15:44:30
6
IS THE DIFFERENCE IN THE DATE THAT THE ACTION WAS
15:44:32
7
FILED.
15:44:33
8
15:44:36
9
15:44:38
10
RIGHT TO SAY THERE'S CERTAINLY THE POSSIBILITY THAT
15:44:41
11
THE FEDERAL CIRCUIT COULD REACH -- COULD AFFIRM,
15:44:45
12
LET'S SAY, BOTH DECISIONS, AND LEAVE THE DECISIONS,
15:44:48
13
ON THEIR FACE AT LEAST, ARRIVING AT INCONSISTENT
15:44:51
14
RESULTS, COULD LEAVE THEM STANDING, BOTH BECAUSE
15:44:54
15
ONE IS GOING TO BE ASSESSED UNDER NINTH CIRCUIT
15:44:58
16
LAW, THE OTHER UNDER THIRD CIRCUIT LAW.
15:45:00
17
15:45:02
18
THE TIMING OF SOME OF THE ACTS, AS SEEN BY THE
15:45:05
19
COURTS, I THINK, CAME OUT DIFFERENT.
15:45:08
20
POSSIBLE.
15:45:09
21
SO I THINK THERE'S A NUMBER OF ISSUES
15:45:11
22
THAT WE WILL BRIEF IN AN EFFORT TO PERSUADE THE
15:45:15
23
COURT NOT TO STAY THE MICRON CASE AND TO PERSUADE
15:45:18
24
YOU THAT WHAT JUDGE ROBINSON DOES IN HER CASE
15:45:21
25
SHOULD NOT AFFECT WHAT THIS COURT DOES IN ITS CASE
SAMSUNG, THE CASE -- THE MATTER IS PENDING BEFORE YOUR HONOR. AND NANYA, I THINK THERE'S GOING TO BE
SO I DO THINK WE'LL SEE SIGNIFICANT DIFFERENCES, AND THE COURT -- I THINK THE COURT IS
THE FACTUAL SCENARIO IS DIFFERENT, AND
SO IT'S
37
15:45:24
1
AND THAT WE SHOULD PROCEED TO TRIAL ON FEBRUARY
15:45:27
2
17TH AS THE COURT SUGGESTED AS A POSSIBLE TRIAL
15:45:30
3
DATE.
15:45:30
4
15:45:34
5
15:45:38
6
15:45:44
7
COURT'S TWO SCENARIOS AND JUST TRY TO BREAK THEM
15:45:47
8
DOWN.
15:45:49
9
15:45:51
10
JUDGMENT IN HYNIX I AFTER -- WHICH IS COMPLETED BUT
15:45:55
11
FOR DECISIONS ON VARIOUS MOTIONS AND ONE MATTER
15:45:58
12
THAT HAD BEEN TRIED TO THE COURT AS OPPOSED TO THE
15:46:01
13
JURY IN THE CONDUCT TRIAL.
15:46:02
14
AND I THINK IT'S APPROPRIATE TO, TO ENTER
15:46:05
15
JUDGMENT IN THAT CASE AS PROMPTLY AS THE COURT CAN.
15:46:09
16
15:46:12
17
ALREADY BEEN DONE, BUT IT'S -- IT HASN'T BEEN, SO I
15:46:15
18
DON'T THINK THERE'S ANY DISPUTE THAT THAT SHOULD
15:46:17
19
PROCEED.
15:46:17
20
15:46:19
21
RAISES THE QUESTION OF, YOU KNOW, THAT TAKES UP THE
15:46:22
22
CONDUCT TRIAL, THE JURY'S VERDICT IN THE CONDUCT
15:46:25
23
TRIAL.
15:46:26
24
15:46:29
25
NOW -- SO I THINK THAT'S A PREVIEW, I GUESS, OF WHAT WE'LL TRY TO ADDRESS IN THE BRIEFS. LET ME -- LET ME ADDRESS, IF I COULD, THE
THE FIRST IS, SHOULD THE COURT ENTER
THE COURT:
MR. STONE:
I, OBVIOUSLY, WISH IT HAD
OKAY.
AND SO THEN THAT
IT WOULD SEEM THAT THE OTHER PARTIES WHO HAVE AN INTEREST IN APPEALING FROM THAT VERDICT,
38
15:46:32
1
THAT THEIR APPEAL SHOULD GO UP AT THE SAME TIME
15:46:34
2
JUST IN THE INTERESTS OF JUDICIAL EFFICIENCY.
15:46:38
3
THINK THE FEDERAL CIRCUIT WOULD APPRECIATE THAT,
15:46:40
4
AND IT SEEMS TO ME TO MAKE SENSE.
15:46:42
5
15:46:44
6
DEFENDANTS WANT TO ARGUE THAT -- I GUESS THE
15:46:48
7
MANUFACTURERS ARE PLAINTIFFS IN THAT INSTANCE --
15:46:51
8
WANT TO ARGUE THAT THE FINDING THAT JUDGE ROBINSON
15:46:53
9
MADE SOMEHOW IMPACTS THE JURY'S VERDICT IN THE
15:46:56
10
CONDUCT TRIAL -- AND THE COURT WILL RECALL WE HAD A
15:46:59
11
STIPULATION AS TO HOW SPOLIATION WOULD BE TREATED
15:47:02
12
IN THE CONDUCT TRIAL, AND I DON'T THINK THERE'S ANY
15:47:05
13
ARGUMENT TO BE MADE THERE -- BUT THAT ISSUE SHOULD
15:47:07
14
GO UP ON THE RECORD OF THE CONDUCT TRIAL, NOT
15:47:09
15
ISOLATED.
15:47:12
16
SO I DO THINK THAT SHOULD GO UP.
15:47:14
17
IT MAKES SENSE TO ME, ALTHOUGH I
15:47:18
18
UNDERSTAND YOU CAN MAKE AN ARGUMENT TO THE CONTRARY
15:47:20
19
AND SOME OF THE APPELLATE DECISIONS WOULD SEEM TO
15:47:23
20
COME OUT TO THE CONTRARY, THAT THE SAMSUNG DECISION
15:47:26
21
THAT YOUR HONOR HAS UNDER SUBMISSION, THAT THAT
15:47:29
22
WOULD GO UP AT THE SAME TIME.
15:47:31
23
15:47:34
24
15:47:36
25
I
AND TO THE EXTENT THAT ANY OF THE
IT'S SIMILAR -- I MEAN, IT'S THE SAME ISSUE AND SO I UNDERSTAND WHY IT MIGHT. I UNDERSTAND THAT MANY APPELLATE COURTS,
39
15:47:38
1
INCLUDING THE FEDERAL CIRCUIT, MIGHT SAY, NO,
15:47:40
2
THAT'S JUST A PIECE OF THE WHOLE CASE AND WE SHOULD
15:47:42
3
TRY THE WHOLE CASE AND WE SHOULDN'T JUST SEND IT UP
15:47:45
4
PIECEMEAL.
15:47:46
5
15:47:49
6
I'M NOT SURE WHICH IS RIGHT AND WHETHER IT SHOULD
15:47:51
7
BE CERTIFIED OR NOT.
15:47:53
8
15:47:58
9
15:48:02
10
15:48:03
11
15:48:05
12
I THINK THERE THE ARGUMENT IS LESS STRONG THAT THAT
15:48:07
13
SHOULD GO UP BECAUSE IT'S NOT SIMILAR TO ANY
15:48:10
14
OTHERS.
15:48:10
15
15:48:13
16
VIEW, THE MOST UNLIKELY ONE FOR INTERLOCUTORY
15:48:18
17
APPEAL.
15:48:19
18
15:48:21
19
OBVIOUSLY YOUR CLAIM CONSTRUCTION IN HYNIX I WILL
15:48:23
20
GO UP.
15:48:27
21
THE COURT:
RIGHT.
15:48:27
22
MR. STONE:
WHETHER THE CLAIM
15:48:28
23
CONSTRUCTION HERE SHOULD BE CERTIFIED IN MY MIND
15:48:31
24
SORT OF FALLS IN -- I MEAN, A, YOU MIGHT MODIFY
15:48:34
25
CLAIM CONSTRUCTION DURING THE COURSE OF THE TRIAL.
I SEE BOTH SIDES OF THE SAMSUNG ISSUE AND
BUT I'LL THINK ABOUT IT SOME MORE AND TRY TO PROVIDE THE COURT WITH ANY HELPFUL INSIGHTS WE CAN. SIMILARLY, THE LICENSING ISSUE, ALTHOUGH
THE COURT:
MR. STONE:
I AGREE THAT THAT'S, IN MY
THE CLAIM CONSTRUCTION --
THAT'LL BE PART OF THE HYNIX VERDICT.
40
15:48:36
1
IT'S POSSIBLE THAT CERTAIN THINGS WILL NECESSITATE
15:48:39
2
THAT, OR THAT YOU WILL CONSTRUE ADDITIONAL CLAIMS
15:48:41
3
ALONG THE WAY.
15:48:42
4
15:48:46
5
IT'S IMPORTANT, AND THE FEDERAL CIRCUIT HAS SEEMED
15:48:48
6
TO MAKE IT CLEAR THAT THEY WANT A FULL RECORD ON
15:48:50
7
CLAIM CONSTRUCTION.
15:48:52
8
HAVE IT.
15:48:53
9
15:48:54
10
15:48:57
11
15:48:58
12
DECISIONS WHICH WOULD SUGGEST THAT THEY DON'T WANT
15:49:01
13
CERTIFICATION OF CLAIM CONSTRUCTIONS.
15:49:04
14
15:49:08
15
GENERALLY TAKEN THAT VIEW, BUT I'VE SENSED A LITTLE
15:49:10
16
BIT OF A SOFTENING OF THAT, AND I ALSO THINK THIS
15:49:14
17
CASE PRESENTS A VERY COMPELLING ARGUMENT FOR DOING
15:49:18
18
INTERLOCUTORY REVIEW OF CLAIM CONSTRUCTION.
15:49:20
19
MR. STONE:
15:49:24
20
ISSUE I'D LIKE TO THINK ABOUT.
15:49:26
21
THIS CASE HAS MANY UNIQUE ASPECTS TO IT, SO I DON'T
15:49:30
22
WANT TO TRY TO SAY THIS IS A RUN-OF-THE-MILL CASE,
15:49:32
23
NOR WOULD THE FEDERAL CIRCUIT, I THINK, LOOK AT
15:49:35
24
THIS AS AN ORDINARY CASE.
15:49:37
25
THE COMPLICATED ASPECT OF IT THAT THIS COURT HAS
AND AS WE'VE ARGUED PREVIOUSLY, I THINK
MAYBE THEY WILL THINK THEY
MAYBE THEY WILL THINK THE CASE SHOULD BE TRIED BEFORE THEY REVIEW CLAIM CONSTRUCTION. I THINK THEY CERTAINLY HAVE SOME
THE COURT:
WELL, THEY'VE CERTAINLY
SO -- AND I -- AGAIN, IT'S AN I APPRECIATE THAT
I THINK THEY WOULD SEE
41
15:49:40
1
CONFRONTED AND DEALT WITH.
15:49:43
2
15:49:44
3
SAMSUNG AND CLAIM CONSTRUCTION ARE SOMEWHAT
15:49:46
4
DIFFERENT IN MY MIND THAN THE OTHERS, BUT I
15:49:49
5
APPRECIATE THAT THEY'RE ALSO DIFFERENT FROM EACH
15:49:51
6
OTHER AND WOULDN'T NECESSARILY BE TREATED THE SAME
15:49:54
7
WAY.
15:49:54
8
15:49:57
9
15:49:59
10
FOR INTERLOCUTORY APPEAL, I DON'T THINK THAT'S A
15:50:02
11
REASON TO DELAY THIS TRIAL, AND I DO WANT TO
15:50:05
12
ADDRESS THAT.
15:50:07
13
15:50:12
14
STRONG ARGUMENT FOR AN INJUNCTION AT THE CONCLUSION
15:50:17
15
OF HYNIX I, WHICH THE COURT HAS UNDER SUBMISSION.
15:50:21
16
15:50:23
17
IT IS ALSO ABOUT RAMBUS'S RIGHT TO INJUNCTIVE
15:50:28
18
RELIEF.
15:50:29
19
15:50:32
20
COGNIZABLE INJURY TO RAMBUS FROM DELAY IN RECEIVING
15:50:37
21
ROYALTIES IF IT TURNS OUT AT THE END OF THE DAY
15:50:40
22
IT'S ENTITLED TO THEM, AND WE LAID THAT OUT IN THE
15:50:45
23
INJUNCTION PAPERS AND POST-JUDGMENT PLEADINGS WE
15:50:49
24
FILED IN CONNECTION WITH HYNIX I, AND I THINK THE
15:50:52
25
COURT'S AWARE OF THE FACT THAT IT IS NOT SIMPLY --
SO I THINK THE LICENSING ISSUE FOR
I THINK WHICHEVER THINGS GO UP, THE HYNIX I JUDGMENT AND WHATEVER THINGS ARE CERTIFIED
AS THE COURT KNOWS, RAMBUS MADE A VERY
THIS IS A CASE NOT JUST ABOUT DAMAGES.
MOREOVER, IT'S A CASE IN WHICH THERE IS
42
15:50:55
1
A DOLLAR PLUS INTEREST DEFERRED IS NOT THE
15:50:58
2
EQUIVALENT TO RAMBUS OF A DOLLAR TODAY.
15:51:01
3
15:51:05
4
DIFFERENT SITUATION THAN THAT WHERE TRYING TO
15:51:07
5
RESOLVE THESE MATTERS PROMPTLY MAKES A HUGE
15:51:10
6
DIFFERENCE.
15:51:11
7
15:51:13
8
APPRECIATES, THERE ARE REAL ISSUES WITH RESPECT TO
15:51:16
9
WITNESSES CONTINUING TO HAVE AS GOOD A RECALL AS
15:51:21
10
THEY HAD WHEN THE EVENTS OCCURRED, AND A DELAY -- I
15:51:25
11
THINK IT WOULD BE OPTIMISTIC TO SUGGEST THAT THE
15:51:27
12
COURT COULD GET THE CASE BACK IN 18 MONTHS.
15:51:30
13
THINK WE'RE LOOKING AT SOMETHING LONGER THAN THAT,
15:51:33
14
PROBABLY TWO YEARS.
15:51:34
15
15:51:37
16
WITH RESPECT TO SOME OF THE WITNESSES WHO ARE
15:51:38
17
CRITICAL TO THIS CASE, SOME OF WHOM, FOR WHOM THERE
15:51:44
18
CONTINUES TO BE SOME HEALTH ISSUES, AND OTHERS FOR
15:51:47
19
WHOM JUST THE PASSAGE OF TIME, I THINK, MAKES IT
15:51:50
20
MORE DIFFICULT FOR THEIR TESTIMONY TO BE AS
15:51:54
21
COMPLETE AND WITH AS GOOD A RECALL AS THEY HAVE HAD
15:51:56
22
IN THE PAST.
15:51:57
23
SO I THINK THE COURT --
15:51:58
24
THE COURT:
15:52:00
25
INDEED, THE COMPANY IS IN A MUCH
IN ADDITION, AS I KNOW THE COURT ALSO
I
TWO YEARS IS A SIGNIFICANT PERIOD OF TIME
HAVEN'T MOST OF THESE
WITNESSES BEEN DEPOSED ABOUT FIVE TIMES?
43
15:52:03
1
MR. STONE:
I WOULD SAY MOST OF THEM HAVE
15:52:05
2
BEEN DEPOSED MANY MORE THAN FIVE TIMES, YOUR HONOR.
15:52:08
3
THAT I DO AGREE WITH.
15:52:11
4
TESTIMONY.
15:52:11
5
15:52:13
6
HAVE FELT IT'S A DIFFERENCE, THERE WAS CERTAINLY A
15:52:15
7
DIFFERENCE IN THE TRIAL BEFORE JUDGE ROBINSON AND
15:52:18
8
THE TRIAL HERE, IS OUR ABILITY TO GET WITNESSES WHO
15:52:20
9
NO LONGER WORK FOR RAMBUS AND HAVE NO PARTICULAR
15:52:23
10
TIES TO RAMBUS TO APPEAR VOLUNTARILY CONTINUES TO
15:52:26
11
BE A STRUGGLE WHEN WE'RE IN DELAWARE, OR OUTSIDE OF
15:52:29
12
CALIFORNIA, AND IT'S MUCH EASIER FOR US TO PROCURE
15:52:33
13
THEIR ATTENDANCE HERE.
15:52:34
14
15:52:36
15
TESTIMONY TO BE TAKEN LIVE RATHER THAN THROUGH
15:52:39
16
DEPOSITION OR PRIOR TRIAL TESTIMONY.
15:52:42
17
15:52:44
18
THIS TRIAL AS EXPEDITIOUSLY AS POSSIBLE WITH
15:52:48
19
WHICHEVER PARTIES, WE THINK IT SHOULD INCLUDE
15:52:51
20
MICRON, BUT CLEARLY I RECOGNIZE MICRON'S IN A
15:52:54
21
DIFFERENT POSITION THAN THE OTHER THREE, AND INDEED
15:52:57
22
EACH OF THE OTHER THREE IS IN A DIFFERENT POSITION,
15:52:59
23
HYNIX HAVING TRIED THE CASE AND RECEIVED A
15:53:02
24
DECISION; SAMSUNG HAVING TRIED IT AND AWAITING A
15:53:05
25
DECISION; NANYA NOT HAVING YET TRIED THE
AND WE HAVE LOTS OF CAPTURED
BUT AS I THINK THE COURT KNOWS, AND WE
AND WE DO THINK IT'S PREFERABLE FOR THEIR
SO WE WOULD URGE YOU TO GO FORWARD WITH
44
15:53:08
1
SPOLIATION.
15:53:09
2
I THINK THERE ARE DIFFERENCES THERE, BUT
15:53:12
3
I THINK WITH WHICHEVER PARTIES, WE THINK IT SHOULD
15:53:14
4
BE ALL FOUR, THAT TRIAL SHOULD MOVE FORWARD AS SOON
15:53:17
5
AS WE CAN.
15:53:18
6
15:53:20
7
15:53:21
8
15:53:24
9
15:53:26
10
AFTER THE TRIAL THAT IS CURRENTLY SET, WE WILL HAVE
15:53:30
11
COMPLETED TRIAL OF ALL OF THE ISSUES FOR SAMSUNG;
15:53:32
12
AND IF MICRON IS IN IT, ALL OF THE ISSUES FOR
15:53:36
13
MICRON; AND WHAT WILL REMAIN TO BE TRIED, I THINK,
15:53:39
14
IS JUST THE NANYA SPOLIATION CLAIM.
15:53:41
15
15:53:43
16
TIMING WOULD BE SUCH THAT THE APPEALS WOULD
15:53:46
17
ULTIMATELY BE CONSOLIDATED, THAT A TRIAL NOW WOULD
15:53:50
18
RESULT IN ALL OF THOSE ISSUES, AND PERHAPS WE COULD
15:53:52
19
DO THE NANYA ONE QUICKLY AND EVEN THE NANYA ONE
15:53:56
20
BEING PUT ON THE SAME APPELLATE SCHEDULE, SO THAT
15:53:59
21
ALL OF THE ISSUES AND FINAL JUDGMENTS IN ALL OF THE
15:54:01
22
CASES COULD BE BEFORE THE FEDERAL CIRCUIT AT ONE
15:54:04
23
TIME.
15:54:04
24
15:54:07
25
I THINK IT'S IN THE INTERESTS OF JUDICIAL ECONOMY AND EFFICIENCY. AND, IN FACT, I THINK WHAT IT WOULD ALLOW IS IT WOULD ALLOW A DECISION IN THIS CASE, WHICH
SO WE WOULD BE ABLE -- AND I THINK THE
THAT, I THINK, WOULD ACCOMPLISH MORE IN THE INTERESTS OF JUDICIAL EFFICIENCY AND MORE TO
45
15:54:09
1
ACHIEVE THE GOAL THAT SOME OF THE MANUFACTURERS'
15:54:15
2
COUNSEL HAVE SPOKEN TO OF SORT OF GETTING AN
15:54:18
3
INDUSTRY-WIDE RESOLUTION.
15:54:20
4
FEDERAL CIRCUIT ALL OF THE PARTIES AND ALL OF THE
15:54:23
5
ISSUES IN FRONT OF THEM AT ONE TIME.
15:54:27
6
15:54:31
7
MINE ALL ALONG, BUT, FRANKLY, HAVEN'T APPEARED TO
15:54:34
8
BE MUCH OF A CONCERN OF THE PARTIES, BUT I'M NOW
15:54:39
9
HEARING TALK OF CONCERNS FROM MICRON AND RAMBUS AND
15:54:47
10
15:54:53
11
15:54:56
12
PARTIES ADDRESS THE JUDICIAL EFFICIENCY/ECONOMY
15:55:03
13
ISSUE FOR ME, AND PERHAPS EVEN SUPPORT THAT BY SOME
15:55:08
14
EVIDENCE.
15:55:10
15
15:55:12
16
15:55:13
17
15:55:14
18
IN MY MIND AS TO WHETHER OR NOT IT'S MORE EFFICIENT
15:55:22
19
AND COST EFFECTIVE TO GET EVERYTHING WOUND UP NOW,
15:55:25
20
OR TO TAKE UP SOME ISSUES THAT ARE ISSUES THAT, AT
15:55:31
21
LEAST IN MY VIEW, COULD PRESENT SOME GENUINELY
15:55:36
22
TOUGH ISSUES ON APPEAL THAT COULD GO EITHER WAY.
15:55:39
23
15:55:42
24
TRY TO COLLECT THOSE THOUGHTS AND SOME EVIDENCE TO
15:55:45
25
SUPPORT IT.
THE COURT:
THAT WOULD GIVE THE
COSTS HAVE BEEN A CONCERN OF
OTHERS. IT WOULD BE INTERESTING TO HAVE THE
MR. STONE:
WELL, WE CERTAINLY WILL
INCLUDE THAT -THE COURT:
MR. STONE:
BECAUSE THAT'S A REAL ISSUE
AND I THINK I WOULD LIKE TO
46
15:55:46
1
BUT I THINK, TO THE EXTENT I HAVE HAD
15:55:49
2
SOME TIME TO THINK ABOUT IT, MY VIEW IS, AT THE
15:55:51
3
MOMENT AT LEAST, THAT WE ACHIEVE REAL EFFICIENCIES
15:55:54
4
BY PROCEEDING FORWARD TO TRIAL AND TRYING TO GET
15:55:57
5
ALL THE ISSUES IN FRONT OF THE APPELLATE COURT.
15:56:00
6
15:56:02
7
THAT, AS ISSUES HAVE BEEN DECIDED, BUT ENTIRE
15:56:07
8
CLAIMS HAVEN'T BEEN DECIDED, THAT IT HASN'T DONE
15:56:10
9
MUCH TO ADVANCE THE ULTIMATE RESOLUTION OF THE
15:56:13
10
15:56:14
11
15:56:16
12
15:56:17
13
15:56:19
14
DIRECTION WE'VE BEEN POINTED IN FROM TIME TO TIME,
15:56:22
15
AND IT HAS MOVED US ON DIFFERENT COURSES, BUT I
15:56:25
16
DON'T THINK IT'S RESULTED IN THE CONCLUSION THAT I
15:56:26
17
THINK YOU HEAR EVERYBODY SAYING IS DESIRABLE.
15:56:31
18
THEY OBVIOUSLY ALL WANT A CONCLUSION THAT
15:56:34
19
GOES ONE WAY OR THE OTHER, BUT I DON'T HEAR ANYBODY
15:56:37
20
SAYING TODAY THEY DON'T WANT SOME FINALITY, AND I
15:56:40
21
THINK THAT -- AND I'D LIKE TO ADDRESS IT IN OUR
15:56:42
22
BRIEF -- THAT THE PROPOSAL THAT I'VE AT LEAST
15:56:45
23
SKETCHED OUT WOULD BEST ACHIEVE THAT.
15:56:48
24
THE COURT:
OKAY.
15:56:49
25
MR. STONE:
THANK YOU.
OUR HISTORY IN THIS CASE HAS SUGGESTED
CASES. THE COURT:
UNFORTUNATELY, I CAN'T
MR. STONE:
IT HAS SOMETIMES CHANGED THE
DISAGREE.
THANK YOU.
47
15:56:50
1
THE COURT:
ANYBODY HAVE ANY ADDITIONAL
15:56:51
2
15:56:53
3
15:56:57
4
15:56:58
5
15:57:03
6
AS LAID OUT BY YOUR HONOR HAS THE ADDITIONAL
15:57:05
7
ADVANTAGE OF ALLOWING THE PATENT OFFICE PROCEDURES
15:57:07
8
TO LET PLAY OUT AS WELL, AND THAT ADDS, AS YOUR
15:57:14
9
HONOR RECALLS FROM THE PRIOR MOTION, SIGNIFICANT
15:57:16
10
WEIGHT TO THE JUDICIAL ECONOMY AND FAIRNESS
15:57:21
11
CONSIDERATIONS, BECAUSE IF YOU FOLLOWED OPTION A,
15:57:24
12
YOU WOULD, IN ALL LIKELIHOOD, HAVE FINAL DECISIONS
15:57:27
13
FROM THE PTO ON THE PATENTS AT ISSUE.
15:57:30
14
15:57:32
15
TOWARDS THAT ALREADY.
15:57:35
16
I BELIEVE, IN ALL THE PATENTS STATING THERE'S A
15:57:39
17
SUBSTANTIAL NEW QUESTION OF PATENTABILITY, AND IF,
15:57:42
18
IN FACT, ALL OF THOSE PATENTS ARE FOUND INVALID,
15:57:47
19
THEN I THINK YOUR HONOR WILL SEE THE JUDICIAL
15:57:50
20
EFFICIENCY AS BEING QUITE SIGNIFICANT.
15:57:53
21
15:57:58
22
15:58:00
23
15:58:05
24
15:58:07
25
BRIEF COMMENTS? MR. POWERS:
JUST TWO ADDITIONAL THOUGHTS
AND ONE QUESTION. ONE ADDITIONAL THOUGHT IS THAT OPTION A
THE PATENT OFFICE HAS BEEN PROGRESSING
THE COURT:
WE NOW HAVE FINAL DECISIONS,
WHAT -- I DON'T KNOW OFF THE
TOP OF MY HEAD. WHAT IS THE EFFECT OF GOING TO JUDGMENT ON THIS CASE WITH RESPECT TO THE RE-EXAM? MR. POWERS:
IT WOULD HAVE NO EFFECT AT
48
15:58:09
1
THE MOMENT.
THE WAY IT WORKS IS THE RE-EXAM
15:58:12
2
PROGRESSES AND THE APPEALS PROGRESS, AND WHICHEVER
15:58:15
3
ONE IS DECIDED FIRST AT THE FEDERAL CIRCUIT DECIDES
15:58:18
4
THE OTHER.
15:58:19
5
THE COURT:
15:58:21
6
MR. POWERS:
15:58:23
7
ALL THE -- THAT PATENT X WAS FOUND INVALID, RAMBUS
15:58:28
8
APPEALED THAT TO THE FEDERAL CIRCUIT, AND THAT
15:58:31
9
APPEAL STARTED BEFORE, OR WAS RESOLVED BEFORE ANY
15:58:35
10
APPEAL FROM A SIMILAR VALIDITY QUESTION ON THE SAME
15:58:38
11
PATENT HERE, THAT DECIDES THE QUESTION.
15:58:40
12
15:58:43
13
FROM -- OR PTO DECISION THAT THE PATENTS ARE
15:58:46
14
INVALID, OR A DECISION FROM THIS COURT THAT THE
15:58:49
15
PATENTS -- THAT A PATENT WAS INVALID DOESN'T STOP
15:58:53
16
THE OTHER ONE?
15:58:54
17
MR. POWERS:
15:58:55
18
THE COURT:
15:58:57
19
15:58:58
20
MR. POWERS:
15:59:00
21
SECOND -- THE SECOND THOUGHT -- AND
15:59:02
22
OBVIOUSLY YOUR HONOR DENIED THAT MOTION TO STAY
15:59:06
23
UNDER SUBSTANTIALLY DIFFERENT CIRCUMSTANCES, BUT I
15:59:10
24
DON'T THINK -- I DON'T THINK IT'S -- I THINK IT'S
15:59:12
25
FAIR TO SAY THAT THE OPPORTUNITY TO HAVE THAT
THE COURT:
SO -- OKAY. SO IF THE PTO -- LET'S SAY
SO AN INITIAL DECISION
CORRECT. IT'S ONLY THE FEDERAL CIRCUIT
DECISION THAT DOES? THAT'S MY UNDERSTANDING.
49
15:59:17
1
PROCESS PLAY ITSELF OUT LENDS SUBSTANTIAL
15:59:20
2
ADDITIONAL WEIGHT IN FAVOR OF OPTION A OVER OPTION
15:59:23
3
B.
15:59:24
4
A SECOND THOUGHT WITH REGARD TO THE COSTS
15:59:27
5
OF PROCEEDING FORWARD, PROCEEDING WITH THE PARTIES,
15:59:31
6
AND THIS IS TRUE ON BOTH SIDES OF THE V, IN THE
15:59:35
7
CURRENT ECONOMIC CLIMATE, THE MILLIONS OF DOLLARS
15:59:41
8
THAT WOULD BE SPENT BY BOTH SIDES ON GOING TO TRIAL
15:59:45
9
CAN BE MUCH BETTER SPENT IN MANY OTHER WAYS.
15:59:48
10
THE -- THE ECONOMIC CONDITIONS ARE
15:59:50
11
AFFECTING EVERY SINGLE COMPANY IN THIS ROOM IN A
15:59:54
12
VERY, VERY SUBSTANTIAL WAY, AND I THINK THAT CAN'T
15:59:56
13
BE IGNORED.
15:59:58
14
16:00:01
15
16:00:03
16
16:00:06
17
16:00:06
18
THE COURT:
16:00:07
19
MR. POWERS:
16:00:09
20
16:00:11
21
THE COURT:
16:00:12
22
MR. POWERS:
16:00:14
23
16:00:15
24
16:00:17
25
THE COURT:
AND, YET, THEY CAN'T FOR SOME
REASON REACH ANY KIND OF RESOLUTION. MR. POWERS:
IT TAKES TWO TO TANGO, AND
THE -RIGHT. WITHOUT COMMENTING ON WHO'S
NOT TANGOING, IT TAKES TWO. RIGHT. NO PARTY CAN DO THAT
UNILATERALLY. THE COURT:
WELL, IT TAKES MORE THAN TWO
IN THIS CASE BECAUSE OF THE MARKETPLACE.
50
16:00:19
1
MR. POWERS:
16:00:21
2
THE THIRD POINT, WHICH IS REALLY A
16:00:24
3
QUESTION, HAS TO DO WITH WHETHER YOUR HONOR WANTS
16:00:26
4
TO CONTINUE TO PROCEED WITH THE HEARING WE HAD
16:00:29
5
SCHEDULED FOR FRIDAY AFTERNOON.
16:00:31
6
16:00:34
7
DIDN'T SAY IT AT THE BEGINNING, WAS TO FREE THE
16:00:42
8
PARTIES UNTIL THE 30TH, AND THEN SCHEDULE PERHAPS
16:00:47
9
TWO DAYS THE WEEK OF THE 9TH TO -- TWO HALF DAYS
16:00:52
10
16:00:56
11
MR. POWERS:
OKAY.
16:00:58
12
MR. BOBROW:
YOUR HONOR, VERY BRIEFLY ON
16:01:01
13
THE ISSUE OF THE CERTIFICATION POINT THAT YOU
16:01:04
14
RAISED.
16:01:05
15
I SIMPLY WANTED TO ECHO THE THOUGHT THAT
16:01:07
16
MR. NISSLY HAD, WHICH IS THAT, AND PARTICULARLY IN
16:01:11
17
MICRON'S CASE, I THINK THAT IT WOULD BE
16:01:14
18
FUNDAMENTALLY UNFAIR, PREJUDICIAL, TO CERTIFY THE
16:01:16
19
ANTITRUST ISSUES FROM THE CONSOLIDATED CONDUCT
16:01:19
20
TRIAL UNLESS AND UNTIL THE COURT RESOLVES THE ISSUE
16:01:23
21
THAT WE'RE GOING TO PUT TO YOU ON SUMMARY JUDGMENT
16:01:25
22
AND WE HAVE OUR DECISION ON WHAT IS ESSENTIALLY THE
16:01:31
23
UNCLEAN HANDS, SPOLIATION, AND MISCONDUCT ISSUES,
16:01:35
24
BECAUSE JUDGE ROBINSON'S FINDING THAT THE ANTITRUST
16:01:42
25
CASE AND DEFENSE WAS TAINTED IS, WE SUBMIT AND WILL
THE COURT:
THAT'S FAIR.
MY SUGGESTION WAS, IF I
THE WEEK OF THE 9TH TO FINISH UP PRETRIAL MATTERS. THANK YOU.
51
16:01:45
1
BRIEF, BINDING ON THIS COURT.
16:01:47
2
16:01:49
3
CERTIFY THAT ISSUE WITHOUT TAKING TO GROUND THE
16:01:52
4
ISSUE OF MISCONDUCT AND THE ISSUE OF SPOLIATION AS
16:01:56
5
TO MICRON IS FUNDAMENTALLY UNFAIR.
16:01:59
6
16:02:01
7
16:02:03
8
AND WHAT THE --
16:02:04
9
THE COURT:
16:02:07
10
16:02:08
11
HONOR TO SAY THAT ALL OF THOSE SPOLIATION ISSUES
16:02:11
12
WERE GOING TO GET RESOLVED AND CERTIFIED AS WELL.
16:02:14
13
PERHAPS I MISUNDERSTOOD.
16:02:15
14
16:02:22
15
CERTAINLY MY THOUGHT WOULD BE THAT ALL SPOLIATION
16:02:24
16
ISSUES WOULD GO AT THE SAME TIME.
16:02:27
17
JUDGE ROBINSON WOULD HAVE TO BE CONSOLIDATED IN
16:02:31
18
SOME WAY.
16:02:32
19
16:02:34
20
EFFECT, BY FINDING THAT IT HAS COLLATERAL ESTOPPEL
16:02:37
21
EFFECT AND DETERMINING IN THIS CASE, AND
16:02:39
22
ESSENTIALLY ENTERING THOSE FINDINGS IN THIS CASE,
16:02:42
23
BECAUSE WITHOUT THAT, THEN WE'RE PREJUDICED.
16:02:44
24
SO THAT'S MY POINT IS WE HAVE --
16:02:45
25
THE COURT:
AND BECAUSE OF THAT TAINT, TO THEN
THOSE ISSUES, IT SEEMS TO ME, HAVE TO GO UP AT THE SAME TIME.
MR. BOBROW:
THE COURT:
WHAT'S -I DIDN'T UNDERSTAND YOUR
I'M -- MY CONCERN --
THE ONES FROM
I COULDN'T DO THAT. MR. BOBROW:
BUT -- YES, YOU CAN, IN
WHY?
52
16:02:47
1
MR. BOBROW:
16:02:48
2
FINDING THAT WE DIDN'T GET A FAIR TRIAL, IN EFFECT,
16:02:51
3
ON THE ISSUE OF ANTITRUST.
16:02:54
4
WERE INNUMERABLE DOCUMENTS ACROSS RAMBUS'S BUSINESS
16:02:57
5
THAT HAD BEEN SPOLIATED.
16:02:58
6
16:03:00
7
16:03:01
8
16:03:04
9
16:03:07
10
16:03:09
11
CERTIFICATION AS TO JUST PHASE 1 OF THE 244 CASE --
16:03:13
12
WE HAVE THE 244 MICRON-ONLY CASE.
16:03:16
13
OF THAT THAT HAS GONE TO TRIAL IS THE CONDUCT
16:03:18
14
PHASE.
16:03:18
15
16:03:20
16
ROBINSON'S FINDINGS AND DETERMINATION, THAT PHASE
16:03:24
17
HAS BEEN TAINTED.
16:03:25
18
16:03:27
19
FORCE MICRON TO THEN APPEAL THAT ISSUE IN A VACUUM
16:03:30
20
IN THIS CASE ALONE, WITH ONLY THE HYNIX SPOLIATION
16:03:35
21
DECISION GOING UP AS WELL IS FUNDAMENTALLY UNFAIR
16:03:39
22
TO MICRON.
16:03:39
23
16:03:42
24
WE HAVE, AND WE THINK IT'S PROPER, WE HAVE A
16:03:45
25
SPOLIATION DECISION BASED UPON COLLATERAL ESTOPPEL,
THE COURT:
BECAUSE SHE HAS MADE A
SHE FOUND THAT THERE
BUT THAT'S GOING TO GO UP ON
APPEAL, RIGHT? MR. BOBROW:
WELL, PRESUMABLY RAMBUS MAY
DECIDE TO APPEAL THAT IN THE DELAWARE CASE. I'M SAYING THAT IN THIS CASE, TO ALLOW
THE ONLY ASPECT
THAT PHASE, WE SUBMIT, HAS -- BY JUDGE
TO ALLOW THAT TO GO UP ON APPEAL AND
IT SEEMS TO ME THAT AS TO MICRON, EITHER
53
16:03:48
1
OR WE HAVE TO HAVE PHASE 3 ADJUDICATED IN THIS
16:03:53
2
CASE.
16:03:53
3
16:03:55
4
AS RAMBUS SAID, AND I THINK EVERYBODY AGREED, THERE
16:03:58
5
SHOULD BE ONE SHOT AND RAMBUS HAD IT AND LOST.
16:04:02
6
16:04:04
7
AND ALLOWING THAT RECORD TO GO UP WITHOUT GIVING US
16:04:08
8
THE OPPORTUNITY TO LITIGATE PHASE 3 OF THIS CASE WE
16:04:11
9
THINK IS UNFAIR.
16:04:12
10
16:04:14
11
16:04:16
12
16:04:19
13
16:04:21
14
16:04:23
15
CONSTRUCTION GOES UP IS A TOTALLY DIFFERENT
16:04:25
16
QUESTION, BUT THE ISSUE OF THE ANTITRUST CASE AND
16:04:29
17
US BEING FORCED TO DEAL WITH THAT ON APPEAL NOW
16:04:32
18
SEEMS TO ME IS FUNDAMENTALLY UNFAIR.
16:04:35
19
16:04:36
20
ESSENTIALLY, THE JUDGMENT OF COLLATERAL ESTOPPEL
16:04:39
21
AND THEN, OF COURSE, THAT OPTION BECOMES VIABLE FOR
16:04:42
22
MICRON.
16:04:42
23
SHORT OF THAT, IT'S NOT.
16:04:44
24
THE COURT:
16:04:46
25
WE THINK THAT WOULD BE IMPROPER BECAUSE,
BUT THERE ARE THREE PHASES TO THIS CASE,
JUDGE ROBINSON FOUND THAT OUR DEFENSE WAS PREJUDICED. AND THEN TO ALLOW IT TO GO UP ON THE HYNIX RECORD IS NOT FAIR TO MICRON. NOW, THE QUESTION OF WHETHER CLAIM
THE COURT WOULD HAVE TO ENTER,
IF THE COURT OF APPEALS
CONSOLIDATED THE APPEALS, RAMBUS'S APPEAL FROM THE
54
16:04:50
1
MICRON CASE WITH AN APPEAL FROM THIS CASE, THAT
16:04:55
2
WOULD SOLVE THE PROBLEM, WOULDN'T IT?
16:04:56
3
MR. BOBROW:
16:04:59
4
THE COURT:
16:05:02
5
MR. BOBROW:
16:05:04
6
16:05:06
7
16:05:08
8
THAT ALLOWS MICRON TO BE ABLE TO HAVE, IN HAND ON
16:05:11
9
THAT APPEAL, THAT ISSUE BEING ADJUDICATED IN ITS
16:05:14
10
16:05:15
11
16:05:17
12
DIDN'T CREATE AND WERE NOT GIVEN THE OPPORTUNITY TO
16:05:20
13
ADDRESS THAT ISSUE FULLY AND COMPLETELY ON APPEAL.
16:05:23
14
THE COURT:
16:05:29
15
MR. NISSLY:
16:05:32
16
16:05:33
17
16:05:36
18
MR. BOBROW HIGHLIGHTS A POINT THAT I WAS TRYING TO
16:05:40
19
MAKE BEFORE, WHICH IS THAT THIS SPOLIATION ISSUE IS
16:05:43
20
THE ISSUE WHICH CUTS ACROSS ALL OF THESE CLAIMS,
16:05:49
21
AND EVERY TIME ANOTHER ISSUE GETS TOUCHED OR
16:05:54
22
ANOTHER ISSUE GETS BROUGHT IN, WE DEVELOP ALL THESE
16:05:57
23
OTHER ARGUMENTS AND COMPLICATIONS ABOUT THE
16:06:00
24
POTENTIAL IMPACT OF THIS DECISION ON THAT ISSUE AND
16:06:03
25
THIS DECISION ON THE OTHER ISSUE.
YOU MEAN THE DELAWARE CASE? YES, IF I MISSPOKE. TO THE EXTENT THAT THERE IS
CONSOLIDATION, I THINK THAT AMELIORATES THE ISSUE. BUT I THINK THAT HAS TO GO UP IN A WAY
FAVOR. OTHERWISE WE'RE STUCK WITH A RECORD WE
OKAY. YOUR HONOR, I'LL JUST MAKE A
COUPLE OF BRIEF POINTS. I THINK THE DISCUSSION WITH MR. STONE AND
55
16:06:09
1
PEOPLE ASK ME, HOW COME THIS CASE IS SO
16:06:11
2
COMPLICATED?
16:06:14
3
OF ISSUES HERE THAT CUT ACROSS A LOT OF
16:06:16
4
MANUFACTURERS WITH VERY DIFFICULT LAW.
16:06:19
5
16:06:21
6
ACROSS, IT DOES CUT THIS KNOT, AND IF WE COMPLICATE
16:06:25
7
IT WITH THE CONDUCT CASE AND ALL THESE OTHER
16:06:29
8
ISSUES, IT SEEMS TO ME WE ARE DOING SOMETHING THAT
16:06:32
9
WE SHOULD NOT DO IN TERMS OF JUDICIAL EFFICIENCY
16:06:35
10
AND THAT THE BEST WAY TO DO THIS IS TO CUT THROUGH
16:06:38
11
IT.
16:06:38
12
16:06:40
13
16:06:42
14
16:06:44
15
VARIETY -- OR THESE CASES UP IN A VARIETY OF WAYS
16:06:47
16
IN THE HOPES OF BEING EFFICIENT.
16:06:51
17
HINDSIGHT WE HAVE BEEN OR NOT IS ANOTHER QUESTION
16:06:53
18
PERHAPS.
16:06:54
19
MR. NISSLY:
16:06:54
20
THE COURT:
16:07:01
21
SPOLIATION ISSUE AND THAT GOES UP ON APPEAL AND THE
16:07:09
22
MANUFACTURERS AREN'T FULLY SUCCESSFUL ON THEIR --
16:07:13
23
OR IN THEIR POSITION ON APPEAL, THE COURT SAYS,
16:07:17
24
"WELL, THERE'S SPOLIATION, BUT THERE WAS TOO HARSH
16:07:20
25
A REMEDY, "OR "YES, THERE WAS SPOLIATION, BUT
AND I EXPLAIN, LOOK, THERE ARE A LOT
BUT HERE WE HAVE AN ISSUE THAT DOES CUT
THE COURT:
LET ME RAISE THE QUESTION,
THOUGH, THAT I THINK YOU RAISED. OBVIOUSLY WE'VE CUT THIS CASE UP IN A
WHETHER IN
RIGHT. BUT IF WE CARVE OUT THE
56
16:07:25
1
THERE'S NO SHOWING THAT ANY MATERIAL DOCUMENTS WERE
16:07:28
2
MISSING," OR WHATEVER --
16:07:30
3
MR. NISSLY:
16:07:31
4
THE COURT:
16:07:39
5
TRY THE CASE WITHOUT A RESOLUTION OF CLAIM
16:07:44
6
CONSTRUCTION OR OTHER ISSUES, CLAIM CONSTRUCTION
16:07:53
7
BEING THE MAIN ONE, OR -- AND WE HAVE TO DO IT
16:07:59
8
OVER, PERHAPS DO IT AGAIN, WHICH IS GOING TO PUT
16:08:02
9
THE FINAL RESOLUTION FURTHER DOWN THE ROAD.
16:08:04
10
16:08:07
11
DOESN'T IT MAKE SENSE EITHER TO GO UP ON APPEAL ON
16:08:13
12
EVERYTHING, ESSENTIALLY, THAT'S POSSIBLE TO GO UP
16:08:15
13
ON -- NOW, PERHAPS, WITHOUT THE SAMSUNG LICENSING
16:08:23
14
ISSUE -- SO THAT THE RULES ARE PRETTY CLEAR WHEN
16:08:33
15
THE CASE COMES BACK TO BE TRIED, IF IT COMES BACK,
16:08:37
16
AS OPPOSED TO DOING AN APPEAL THAT STAYS EVERYTHING
16:08:43
17
ELSE AND IF THE MANUFACTURERS AREN'T FULLY
16:08:49
18
SUCCESSFUL ON THE SPOLIATION, WE'VE STILL GOT ALL
16:08:55
19
THESE OTHER ISSUES REMAINING, WHICH COULD REQUIRE
16:08:57
20
ANOTHER APPEAL AND ANOTHER TRIAL?
16:08:59
21
16:09:00
22
THAT IS THIS, YOUR HONOR:
16:09:03
23
CONSTRUCTION IS A, IS ONE THAT PERHAPS BELONGS IN
16:09:07
24
ITS OWN BUCKET BECAUSE OF THE ROLE OF CLAIM
16:09:10
25
CONSTRUCTION AND THE DE NOVO REVIEW.
RIGHT. -- THEN IT COMES BACK AND WE
SO I GUESS WHAT I'M SAYING IS, WHY
MR. NISSLY:
MY THOUGHT IN RESPONSE TO AND, AGAIN, THE CLAIM
57
16:09:13
1
BUT WHAT I SUGGEST TO YOU IS THAT IF WE
16:09:16
2
GET THE SPOLIATION ISSUE RESOLVED, ALL THOSE OTHER
16:09:20
3
ISSUES HAVE BEEN TRIED ONE WAY OR ANOTHER.
16:09:23
4
RECORD IS COMPLETE.
16:09:24
5
16:09:26
6
HAVE BEEN DEPOSED MULTIPLE TIMES.
THEY ALL HAVE
16:09:29
7
VIDEO DEPOSITION TAPES AVAILABLE.
ALL OF THIS WORK
16:09:32
8
THAT HAS BEEN DONE OVER ALL THESE YEARS IS NOT
16:09:35
9
GOING AWAY.
16:09:37
10
16:09:39
11
APPEAL ON ALL THESE VARIOUS ASPECTS, I SUBMIT AND
16:09:42
12
SUGGEST TO THE COURT THAT THAT'S NOT A WAY TO
16:09:45
13
PROCEED HERE, IT'LL MAKE THINGS WORSE, AND THAT THE
16:09:49
14
WAY TO PROCEED IS TO CARVE OUT THIS ONE ISSUE THAT
16:09:51
15
DOES GO ACROSS ALL OF THESE PATENTS AND ALL OF
16:09:54
16
THESE CLAIMS AND FIND OUT, ONCE AND FOR ALL, IS
16:09:57
17
RAMBUS PERMITTED TO ASSERT THESE CLAIMS OR NOT, BY
16:10:00
18
THE COURT OF APPEAL, AND GET THAT RESOLVED.
16:10:03
19
EVERYTHING ELSE IS IN THE CAN IN THE
16:10:04
20
SENSE THAT YOU HAVE CONSTRUED THESE CLAIMS, OR
16:10:07
21
MAYBE THE CIRCUIT TAKES A LOOK AT THAT.
16:10:11
22
ISSUES HAVE BEEN TRIED AND THEN WE SEE WHERE WE
16:10:13
23
ARE.
16:10:14
24
16:10:16
25
THE
AS THE COURT NOTED, ALL THESE WITNESSES
BUT IF 15 ISSUES GO UP TO THE COURT OF
THESE
BUT WE START TALKING ABOUT APPEALING DETERMINATIONS FROM THE CONDUCT CASE WHEN MICRON
58
16:10:19
1
ARGUES, "NOT FAIR AS TO US," WE ARGUE THAT WASN'T
16:10:22
2
FAIR, THAT TRIAL WAS TAINTED BY SPOLIATION, THERE
16:10:25
3
ARE ALL THESE OTHER COMPLEX ISSUES AND FACTS THAT
16:10:28
4
MAKE IT SO DIFFICULT TO SORT OUR WAY THROUGH THAT
16:10:31
5
WE OUGHT TO FOCUS ON THE ONE ISSUE THAT'LL CUT
16:10:34
6
ACROSS ALL OF THESE.
16:10:35
7
THE COURT:
OKAY.
16:10:37
8
16:10:38
9
MR. STONE:
UM --
16:10:41
10
THE COURT:
YOU CERTAINLY DON'T HAVE TO.
16:10:42
11
16:10:45
12
16:10:47
13
16:10:48
14
16:10:50
15
THE MANUFACTURERS BROUGHT THEIR JEDEC CLAIM AGAINST
16:10:54
16
RAMBUS AND WOULD INTEND TO PURSUE IT SOME DAY IN
16:10:59
17
ANY EVENT, SO THAT ISSUE IS GOING UP.
16:11:02
18
16:11:06
19
ON CERTIFICATION AS TO THE PARTIES OTHER THAN HYNIX
16:11:08
20
WHERE IT WOULD BE A FINAL JUDGMENT VERY QUICKLY.
16:11:11
21
CERTAINLY IN SAMSUNG'S CASE, AFTER THE
16:11:13
22
TRIAL THAT YOU'VE SUGGESTED WE WOULD START IN
16:11:15
23
FEBRUARY, AS SOON AS THAT TRIAL ENDS SAMSUNG WOULD
16:11:20
24
HAVE A FINAL JUDGMENT IN THE CASES HERE AND WOULD
16:11:22
25
BE ABLE TO GO UP.
DO YOU HAVE ANY FINAL
FINAL?
I JUST WANT TO GIVE EVERYBODY A CHANCE. MR. STONE:
I JUST THINK -- JUST AS TO
THE LATTER POINT. I JUST THINK WE KNOW, FOR EXAMPLE, THAT
I THINK WE WILL SEE THAT IT COULD GO UP
59
16:11:23
1
AND THERE WOULD THEN BE, UNDER -- I GUESS
16:11:26
2
16:11:28
3
16:11:30
4
THE IMPLICATIONS OF JUDGE ROBINSON'S RULING, A
16:11:32
5
TRIAL ON THE SPOLIATION HERE INVOLVING BOTH MICRON
16:11:36
6
AND NANYA, AND AT THAT TIME THEIR CASES WOULD BE
16:11:39
7
DONE.
16:11:40
8
16:11:42
9
16:11:45
10
16:11:49
11
SO I DO THINK WE SHOULD ADDRESS THIS AND
16:11:51
12
WE SHOULD LOOK AT REALISTIC TIME TABLES AND TRY TO
16:11:55
13
UNDERSTAND WHETHER THAT WOULD HAPPEN.
16:11:57
14
16:11:59
15
FINAL APPEAL IN SAMSUNG OF ALL OF THE ISSUES WOULD
16:12:02
16
BE ABLE TO BE CONSOLIDATED WITH AN APPEAL IN
16:12:05
17
HYNIX I GIVEN THE TENTATIVE SCHEDULE YOU'VE SORT OF
16:12:08
18
LAID OUT, AND PERHAPS THE MICRON ISSUES, AND
16:12:11
19
CERTAINLY, DEPENDING ON YOUR RULING ON THE
16:12:14
20
COLLATERAL ESTOPPEL CONSEQUENCES OF JUDGE
16:12:16
21
ROBINSON'S RULING, THAT RULING WOULD BE PART OF
16:12:19
22
WHATEVER WENT UP HERE IN ANY EVENT IF THERE WERE
16:12:22
23
CERTIFICATION OF THE CONDUCT TRIAL OR THE JEDEC
16:12:25
24
ISSUES AS TO MICRON.
16:12:27
25
MR. BOBROW CORRECTED ME. THERE WOULD THEN BE, UNDER OUR VIEW OF
IF THAT WAS DONE PROMPTLY, THE APPEAL, EVEN OF A FINAL JUDGMENT IN THOSE CASES, WOULD BE IN TIME TO BE CONSOLIDATED WITH THE OTHERS.
BUT THERE IS NO DOUBT, I THINK, THAT A
SO I THINK IN THE -- THE CONCERN THAT
60
16:12:29
1
MR. BOBROW EXPRESSED, HE WOULD BE PROTECTED IN THAT
16:12:32
2
REGARD WITH WHATEVER THIS COURT RULES FOLLOWING THE
16:12:34
3
ARGUMENT, SAY, ON JANUARY 30TH.
16:12:39
4
THERE AND THAT ISSUE WOULD BE PROPERLY PRESENTED.
16:12:42
5
16:12:44
6
THE BEST THAT WE CAN DO, THE BEST THING WE CAN DO
16:12:47
7
FOR THE FEDERAL CIRCUIT IS TO GIVE THEM AS MANY OF
16:12:51
8
THESE ISSUES THAT IT IS POSSIBLE FOR THEM TO DECIDE
16:12:53
9
AT THIS TIME, CONSISTENT WITH WHAT THEY'VE TOLD US
16:12:56
10
IN THE PAST IS THEIR PREFERENCE FOR HEARING THINGS
16:12:58
11
AFTER FINAL JUDGMENT, AS OPPOSED TO ON AN
16:13:01
12
INTERLOCUTORY BASIS.
16:13:02
13
THE COURT:
OKAY.
16:13:03
14
MR. STONE:
THANK YOU.
16:13:04
15
MR. POWERS:
16:13:04
16
16:13:06
17
16:13:10
18
TO TRIAL IN THE CASE THAT'S CURRENTLY SET FOR
16:13:13
19
JANUARY, THAT THAT COULD REACH FINAL JUDGMENT SUCH
16:13:18
20
THAT IT COULD BE CONSOLIDATED WITH EVERYTHING
16:13:21
21
ANYWAY AND GO UP IN TIME TO BE HEARD WITH JUDGE
16:13:24
22
ROBINSON'S, THERE'S NO WAY THAT HAPPENS BECAUSE --
16:13:27
23
FOR TWO REASONS:
16:13:30
24
UNSCHEDULED SUBSEQUENT TRIAL, IN THEORY, WITH BOTH
16:13:35
25
NANYA AND SAMSUNG ON SDR AND DDR, THAT HASN'T EVEN
HE'D BE PROTECTED
SO I DO THINK THAT THERE IS -- I THINK
VERY BRIEFLY, IF I MAY, YOUR
HONOR. MR. STONE'S SUGGESTION THAT IF YOU WENT
ONE, THERE'S STILL THE
61
16:13:39
1
BEEN SCHEDULED; AND, SECONDLY, THERE WOULD BE THE
16:13:42
2
NEED FOR ALL THE POST-TRIAL MOTIONS.
16:13:44
3
JUST ENTER FINAL JUDGMENT THE DAY A JURY COMES BACK
16:13:49
4
ONE WAY OR THE OTHER.
16:13:51
5
16:13:54
6
COMBINE ALL OF THIS IN ONE AND GET ALL THE BENEFITS
16:13:57
7
AND GO TO TRIAL IN JANUARY.
16:14:00
8
WORK.
16:14:01
9
16:14:03
10
16:14:07
11
THE COURT:
16:14:09
12
MR. BOBROW:
16:14:11
13
16:14:13
14
16:14:16
15
PROTECTED IF THIS COURT DENIES SUMMARY JUDGMENT IS
16:14:19
16
JUST WRONG.
16:14:24
17
DOESN'T WORK THAT WAY.
16:14:26
18
ISSUE.
16:14:27
19
16:14:30
20
SUMMARY JUDGMENT AND JUDGMENT ENTERED BASED UPON
16:14:32
21
COLLATERAL ESTOPPEL, WHICH WE THINK IS THE ONLY
16:14:34
22
RIGHT THING TO DO HERE GIVEN THAT WE HAD OUR DAY IN
16:14:37
23
COURT WITH RAMBUS AND RAMBUS LOST; OR, NUMBER TWO,
16:14:40
24
WE HAVE TO HAVE THE SPOLIATION TRIAL OR ELSE ANY
16:14:43
25
RECORD GOING UP AS TO US ON THE ANTITRUST ISSUES IS
YOU DON'T
THAT TAKES MONTHS.
SO IT'S FANTASY TO SUGGEST THAT WE CAN
THAT JUST DOESN'T
SO THAT, THAT I THINK -- I THINK THAT HOPE THAT HE'S HOLDING OUT JUST ISN'T REALISTIC. OKAY. I'M SORRY, YOUR HONOR.
MAY
I, IN 30 SECONDS? MR. STONE'S SUGGESTION THAT WE'RE
THERE'S NOTHING TO CERTIFY AND IT JUST SO THAT'S A SIGNIFICANT
WE HAVE TO HAVE EITHER, NUMBER ONE,
62
16:14:46
1
FUNDAMENTALLY UNFAIR.
16:14:48
2
16:14:50
3
SUGGESTION OF MOVING THINGS TO THE WEEK OF THE 9TH,
16:14:53
4
I HAVE A CONCERN ABOUT WHETHER OR NOT THAT'S GOING
16:14:56
5
TO GIVE THE PARTIES AND THE COURT ENOUGH TIME TO
16:14:59
6
RESOLVE THE ISSUES THAT NEED TO BE RESOLVED GIVEN
16:15:02
7
THE DATE THAT YOU HAD MENTIONED BEFORE IN TERMS OF
16:15:05
8
WHEN THE ISSUE WAS RAISED AS TO WHAT TO DO WITH THE
16:15:08
9
DAMAGES MOTIONS.
16:15:09
10
16:15:11
11
WEEK OF THE 2ND, TOWARDS THE END OF THAT WEEK, BUT
16:15:14
12
PERHAPS THAT'S A --
16:15:16
13
16:15:19
14
UNFORTUNATELY, IS NOT HERE.
16:15:22
15
SHE WASN'T GOING TO BE HERE.
16:15:24
16
MAYBE THE BEST THING TO DO IS TO HAVE A
16:15:30
17
COORDINATED CALL WITH HER OR MR. FLETCHER WHEN WE
16:15:37
18
CAN LOOK AT A CALENDAR AND SEE WHAT -- WE COULD
16:15:44
19
TAKE A LOOK NOW, IF YOU WANT.
16:15:46
20
16:15:48
21
THERE'S A LOT OF BRIEFING AND OTHER THINGS TO DO TO
16:15:51
22
TRY TO FIGURE OUT WHAT THE BEST APPROACH IS GOING
16:15:53
23
FORWARD AND WHETHER IT MAKES SENSE TO HAVE THAT
16:15:56
24
TRIAL SCHEDULED OR NOT, AS THE COURT HAD INDICATED
16:15:58
25
BEFORE.
A SCHEDULING ISSUE IF I MAY.
THE COURT'S
I DON'T KNOW IF THE COURT'S AVAILABLE THE
THE COURT:
MR. BOBROW:
WHY DON'T I -- MS. GARCIA, I DIDN'T REALIZE THAT
I THINK IT'S -- OBVIOUSLY
63
16:15:59
1
THE COURT:
16:16:00
2
WANT A FIRM UNDERSTANDING THAT IF WE'RE GOING TO
16:16:03
3
GO, WE'RE GOING TO START ON THE 17TH.
16:16:05
4
16:16:07
5
ONLY ISSUE THAT I'M RAISING NOW, THEN, IS THE
16:16:10
6
QUESTION VIS-A-VIS THE MOTION THAT WE'LL BE FILING
16:16:13
7
AND OBVIOUSLY THE NEED FOR RESOLUTION EARLIER
16:16:17
8
RATHER THAN LATER AND WHETHER THAT GIVES THE COURT
16:16:20
9
AND THE PARTIES ENOUGH TIME TO HAVE ESSENTIALLY 17
16:16:23
10
16:16:24
11
16:16:26
12
GOING TO START NEXT MONDAY AND YOU WERE GOING TO BE
16:16:29
13
IN HERE ON FRIDAY.
16:16:30
14
16:16:32
15
HAVE CHANGED, AT LEAST I THINK AS TO MICRON, AS YOU
16:16:35
16
RECOGNIZED IN A FUNDAMENTAL WAY, AND I THINK THAT
16:16:38
17
IT'S IMPORTANT AND FAIR AND JUST THAT GIVEN THAT
16:16:40
18
WE'VE REALLY HAD PHASE 3 OF THIS TRIAL ALREADY,
16:16:43
19
THAT THE IMPLICATIONS OF THAT BE UNDERSTOOD RIGHT
16:16:45
20
AWAY SO THAT WE DON'T HAVE A TRIAL ON PATENTS THAT
16:16:48
21
ARE UNENFORCEABLE AS TO MICRON.
16:16:50
22
16:16:52
23
THE ISSUE VIS-A-VIS THE 9TH, OR SCHEDULING THINGS
16:16:55
24
THE WEEK OF THE 9TH, IS UNDER WHAT THE COURT HAD
16:16:57
25
JUST TALKED ABOUT, WE'RE GOING TO HAVE OPENINGS THE
MR. BOBROW:
I WANT TO SCHEDULE IT -- I
AND IN THAT EVENT, THEN, THE
DAYS IN BETWEEN THE TWO. THE COURT:
MR. BOBROW:
WELL, THEORETICALLY WE WERE
I UNDERSTAND, BUT THINGS
BUT HAVING SAID THAT, THE REASON I RAISE
64
16:17:00
1
WEEK OF THE 17TH.
16:17:02
2
16:17:04
3
AGREE WITH MR. BOBROW THAT IT WOULD BE PREFERABLE,
16:17:06
4
I THINK FROM EVERYBODY'S PERSPECTIVE, IF THE
16:17:09
5
REMAINING MOTIONS WERE ARGUED, IF IT WORKS WITH THE
16:17:13
6
COURT'S SCHEDULE, THE WEEK OF THE 2ND.
16:17:17
7
I WOULD GUESS -- IF WE START ON THE 17TH
16:17:19
8
WITH THE CURRENT PLAN, THE QUESTIONNAIRES WOULD BE
16:17:22
9
FILLED OUT ON THE 17TH, AND THEN I GUESS THE JURY
16:17:25
10
16:17:31
11
THE COURT:
PROBABLY ON THE 23RD.
16:17:33
12
MR. STONE:
PROBABLY THE 23RD.
16:17:34
13
THINK THAT'S -- WITH OPENINGS, I WOULD GUESS, ON
16:17:37
14
THE 24TH IS WHAT I'M --
16:17:39
15
16:17:40
16
16:17:40
17
16:17:42
18
16:17:43
19
16:17:45
20
MOTIONS -- I AGREE WITH YOU WE WOULD BE DOING
16:17:48
21
MOTIONS THIS FRIDAY AND STARTING NEXT WEEK, BUT I
16:17:50
22
THINK IF IT'S POSSIBLE WITH THE COURT'S SCHEDULE,
16:17:52
23
I'D JOIN IN MR. BOBROW'S REQUEST.
16:17:54
24
16:17:56
25
MR. STONE:
I WAS JUST GOING TO SAY, I
SELECTION WOULD PROBABLY BE ON THE --
SO I
THE COURT:
I THINK THAT'S PROBABLY
MR. STONE:
THAT'S WHAT I'M THINKING
CORRECT.
WOULD PROBABLY BE THE SCHEDULE. I THINK THE SOONER, THOUGH, WE CAN DO THE
AND I'M HAPPY TO MEET AND CONFER WITH THEM AND TALK WITH MS. GARCIA.
65
16:17:58
1
THE COURT:
MAYBE THE BEST THING TO DO,
16:17:59
2
IF YOU WANT TO TAKE FIVE MINUTES AND LET ME GO GET
16:18:03
3
MY SCHEDULE, I'LL RISK GETTING MYSELF INTO
16:18:11
4
DANGEROUSNESS, BUT I'LL AT LEAST GIVE YOU DATES
16:18:15
5
THAT ARE AVAILABLE.
16:18:17
6
MR. BOBROW:
16:18:20
7
(WHEREUPON, A RECESS WAS TAKEN.)
16:21:44
8
THE COURT:
16:21:47
9
16:21:49
10
BLABBING AND DIDN'T HAVE YOU STATE YOUR
16:21:52
11
APPEARANCES, SO WOULD YOU DO THAT AT THIS TIME SO
16:21:54
12
WE HAVE A RECORD OF WHO'S HERE.
16:21:56
13
16:21:57
14
GREGORY STONE OF MUNGER, TOLLES & OLSON ON BEHALF
16:21:59
15
OF RAMBUS.
16:22:00
16
16:22:02
17
16:22:04
18
MR. BOBROW:
16:22:06
19
MR. FREITAS:
16:22:08
20
16:22:09
21
16:22:12
22
16:22:13
23
16:22:14
24
CALENDAR, AND OBVIOUSLY I HAD DATES LOCKED OUT FOR
16:22:25
25
THE WEEK OF FEBRUARY 2ND ON TUESDAY THROUGH
OKAY.
MY REPORTER CALLED MY
ATTENTION TO THE FACT THAT I CAME OUT AND STARTED
MR. STONE:
MR. POWERS:
GOOD AFTERNOON, YOUR HONOR.
MATT POWERS AND STEVE
CHERENSKY FOR SAMSUNG. JARED BOBROW FOR MICRON. BOB FREITAS FOR NANYA AND
NANYA U.S.A. MR. NISSLY:
KEN NISSLY AND TED BROWN FOR
HYNIX, YOUR HONOR. THE COURT:
ALL RIGHT.
LOOKING AT THE
66
16:22:28
1
THURSDAY, SO IF WE WANTED TO -- MAYBE WE SHOULD
16:22:34
2
PICK ONE OF THOSE DATES AND THEN ONE AT THE
16:22:36
3
BEGINNING OF THE WEEK OF THE 9TH.
16:22:40
4
16:22:47
5
AT 9:00 O'CLOCK?
16:23:04
6
WEDNESDAY THE 11TH AT 9:00.
16:23:09
7
MR. STONE:
16:23:10
8
AND WHAT TIME WOULD YOU LIKE US HERE ON
16:23:13
9
16:23:21
10
16:23:26
11
O'CLOCK, BECAUSE I HAVE A FULL CALENDAR THAT
16:23:28
12
MORNING.
16:23:29
13
MR. STONE:
16:23:33
14
MR. POWERS:
16:23:35
15
EITHER TUESDAY OR THURSDAY INSTEAD OF WEDNESDAY THE
16:23:38
16
4TH?
16:23:40
17
16:23:44
18
16:23:45
19
16:23:48
20
4TH?
16:23:51
21
11TH, I WOULD APPRECIATE IT, IF POSSIBLE.
16:23:57
22
16:23:59
23
16:24:00 16:24:03
SO YOU WANT TO DO, SAY, WEDNESDAY THE 4TH AND TUESDAY -- OR HOW ABOUT DOES THAT WORK?
THAT'S FINE, YOUR HONOR.
THE 30TH FOR THAT? THE COURT:
THAT'LL HAVE TO BE 2:00
OKAY. YOUR HONOR, COULD WE DO
IS THAT POSSIBLE? THE COURT:
SURE.
I'M SORRY.
INSTEAD OF
WHEN? MR. POWERS:
INSTEAD OF WEDNESDAY THE
AND IF WE COULD DO IT THE 12TH INSTEAD OF THE
THE COURT:
5TH AND 12TH WORK FOR
24
MR. STONE:
5TH AND 12TH, YOUR HONOR?
25
THE COURT:
RIGHT.
EVERYBODY?
67
16:24:03
1
MR. STONE:
YES, THAT'S FINE.
16:24:05
2
MR. BROWN:
WOULD THAT BE IN THE
16:24:06
3
16:24:07
4
16:24:10
5
16:24:12
6
AND THEN THE 30TH WOULD BE AT 2:00.
16:24:16
7
NOW, I THINK RAMBUS FILED A COUPLE OF
16:24:27
8
16:24:29
9
MR. STONE:
THAT'S RIGHT, YOUR HONOR.
16:24:30
10
THE COURT:
WOULD YOU SEE IF YOU CAN MEET
16:24:31
11
AND CONFER AND AGREE TO HEAR THOSE AND TELL ME WHAT
16:24:34
12
DATE YOU'RE PLANNING ON DOING THOSE?
16:24:37
13
MR. STONE:
YES.
16:24:37
14
THE COURT:
IF THERE'S A PROBLEM, LET ME
16:24:39
15
16:24:39
16
MR. STONE:
THANK YOU, YOUR HONOR.
16:24:40
17
THE COURT:
ALL RIGHT.
16:24:41
18
MR. BOBROW:
16:24:42
19
THE COURT:
OKAY.
16:24:43
20
MR. STONE:
THANK YOU, YOUR HONOR.
16:24:45
21
MR. BOBROW:
THANK YOU, YOUR HONOR.
16:24:47
22
MR. NISSLY:
THANK YOU.
16:24:49
23
MR. POWERS:
THANK YOU.
16:24:50
24
(WHEREUPON, THE PROCEEDINGS IN THIS
16:24:50
25
AFTERNOON, THEN, YOUR HONOR? THE COURT:
NO.
THE 5TH AND 12TH WOULD
BE IN THE MORNING AT 9:00.
MOTIONS THAT DON'T HAVE HEARING DATES ON THEM.
KNOW.
ANYTHING ELSE?
NO. THANK YOU.
MATTER WERE CONCLUDED.)
68
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