Case 5:05-cv-00334-RMW Document 2116 Filed 08/29/2008 Page 1 of 20

1 GREGORY P. STONE (SBN 078329) ROLLIN A. RANSOM (SBN 196126)

STEVEN M. PERRY (SBN 106154) Sidley Austin LLP
2 MUNGER, TOLLES & OLSON LLP 555 West Fifth Street, Suite 4000
355 South Grand Avenue Los Angeles, CA 90013-1010
3 Thirty-Fifth Floor Telephone: (213) 896-6000
Los Angeles, CA 90071-1560 Facsimile: (213) 896-6600
4 Telephone: (213) 683-9100 Email: rransom@[Link]
Facsimile: (213) 687-3702
5 Email: [Link]@[Link]; PIERRE J. HUBERT (admitted pro hac vice)
[Link]@[Link]
CRAIG N. TOLLIVER (admitted pro hac vice)
6
PETER A. DETRE (SBN 182619) McKool Smith P.C.
7 CAROLYN HOECKER LUEDTKE (SBN 207976) 300 West 6th Street, Suite 1700
Munger, Tolles & Olson LLP Austin, TX 78701
8 560 Mission Street, 27th Floor Telephone: (512) 692-8700
San Francisco, CA 94105 Facsimile: (512) 692-8744
9 Telephone: (415) 512-4000 Email: phubert@[Link];
Facsimile: (415) 512-4077 ctolliver@[Link]
10 Email: [Link]@[Link];
[Link]@[Link]
11 Attorneys for Plaintiff
A PROFESSIONAL CORPORATION • ATTORNEYS

RAMBUS INC.
12

13 UNITED STATES DISTRICT COURT

MCKOOL SMITH

NORTHERN DISTRICT OF CALIFORNIA

DALLAS, TEXAS

14 SAN JOSE DIVISION

15

16 RAMBUS INC., ) Case No. C 05-00334 RMW

)
17 Plaintiff, ) RAMBUS INC.’S OPPOSITION TO
SAMSUNG’S MOTION TO STRIKE
) PORTIONS OF RAMBUS’S FINAL
18 vs.
) INFRINGEMENT CONTENTIONS
19 HYNIX SEMICONDUCTOR INC., HYNIX )
SEMICONDUCTOR AMERICA INC., ) Date: September 19, 2008
20 HYNIX SEMICONDUCTOR ) Time: 9:00 a.m.
MANUFACTURING AMERICA INC., ) Ctrm: 6, 4th Floor
21 ) Judge: Hon. Ronald M. Whyte
SAMSUNG ELECTRONICS CO., LTD., )
22 SAMSUNG ELECTRONICS AMERICA,
INC., SAMSUNG SEMICONDUCTOR, INC., )
23 SAMSUNG AUSTIN SEMICONDUCTOR, )
L.P., )
24 )
NANYA TECHNOLOGY CORPORATION, )
25 NANYA TECHNOLOGY CORPORATION )
U.S.A.,
)
26 )
Defendants.
27
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
Austin 45816v3
 Case 5:05-cv-00334-RMW Document 2116 Filed 08/29/2008 Page 2 of 20

1 RAMBUS INC., )
) Case No. C 05-02298 RMW
2 Plaintiff, )
)
3 v. )
4 )
SAMSUNG ELECTRONICS CO., LTD., )
5 SAMSUNG ELECTRONICS AMERICA, )
INC., SAMSUNG SEMICONDUCTOR, INC., )
6 SAMSUNG AUSTIN SEMICONDUCTOR, )
L.P., )
7
)
8 Defendants. )
______________________________________ )
9

10
A PROFESSIONAL CORPORATION • ATTORNEYS

11

12
MCKOOL SMITH
DALLAS, TEXAS

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
Austin 45816v3
 Case 5:05-cv-00334-RMW Document 2116 Filed 08/29/2008 Page 3 of 20

1 TABLE OF CONTENTS

2 TABLE OF CONTENTS................................................................................................................. i

3 TABLE OF AUTHORITIES .......................................................................................................... ii

4 I. INTRODUCTION ...............................................................................................................1

5 II. PROCEDURAL BACKGROUND......................................................................................3

6 A. The Pleadings and Discovery...................................................................................3

7 B. Rambus’s Selection of 25 Asserted Claims and Infringement

Contentions. .............................................................................................................4
8
C. GDDR5. ...................................................................................................................5
9
III. ARGUMENT.......................................................................................................................6
10
A. Rambus Has Not Waived Its Right to Assert Patent Claims Against
11 Samsung’s Memory Controllers. .............................................................................6
A PROFESSIONAL CORPORATION • ATTORNEYS

12 B. The More Specific References to Samsung’s Controllers in Rambus’s

Final Infringement Contentions Should Be Permitted Under Patent
13 L.R. 3-7. ...................................................................................................................8
MCKOOL SMITH

DALLAS, TEXAS

14 1. The addition of more specific controller references threatens

no prejudice to Samsung..............................................................................8
15
2. Given Samsung’s inadequate document production, Rambus
16 cannot be considered to have acted without diligence...............................11

17 C. The New References to GDDR5 in Rambus’s Final Infringement

Contentions Should Be Permitted Under Patent Local Rule 3-7...........................12
18
1. The addition of the new GDDR5 products threatens no
19 prejudice to Samsung.................................................................................12

20 2. Rambus acted with diligence in accusing this newly-released

product line. ...............................................................................................13
21
3. Preventing Rambus from pursuing its contentions regarding
22 GDDR5 would result in an unnecessary waste of judicial
resources. ...................................................................................................14
23
D. Given Samsung’s Refusal to Provide Responsive Discovery,
24 Rambus’s Final Infringement Contentions Are Sufficiently Detailed...................14

25 E. Denial of Samsung’s Motion to Strike Is the Right Result, But Will

Not Fully Resolve the Contention Issues Regarding Controllers. .........................15
26
IV. CONCLUSION..................................................................................................................16
27
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike i
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
Austin 45816v3
 Case 5:05-cv-00334-RMW Document 2116 Filed 08/29/2008 Page 4 of 20

2 TABLE OF AUTHORITIES

3 Cases
4 Acco Brands, Inc. v. PC Guardian Anti-Theft Prods., Inc.,
No. C 04-03526, 2008 WL 2168379 (N.D. Cal. May 22, 2008) .................................. 8, 12
5
Advanced Cardiovascular Sys. v. Scimed Life Sys.,
6
989 F. Supp. 1237 (N.D. Cal. 1997) ................................................................................... 6
7
Bd. of Trustees of the Leland Stanford Jr. Univ. v. Roche Molecular Sys., Inc.,
8 No. C 05-04158, 2008 WL 624771 (N.D. Cal. Mar. 4, 2008)................................... passim

9 Dussouy v. Gulf Coast Inv. Corp.,

660 F.2d 594 (5th Cir. 1981) ........................................................................................ 7, 14
10
Foster v. Hallco Mfg. Co.,
A PROFESSIONAL CORPORATION • ATTORNEYS

11 947 F.2d 469 (Fed. Cir. 1991)............................................................................................ 6

12
Golden Hour Data Sys., Inc. v. Health Servs. Integration, Inc.,
MCKOOL SMITH

No. C 06-7477, 2008 WL 2622794 (N.D. Cal. July 1, 2008)............................... 10, 11, 13
DALLAS, TEXAS

13

14 Roche Palo Alto LLC v. Apotex, Inc.,

531 F.3d 1372 (Fed. Cir. 2008)........................................................................................... 6
15
Seiko Epson Corp. v. Coretronic Corp.,
16 No. C 06-06946, 2008 WL 2563383 (N.D. Cal. June 23, 2008) ................................ 11, 13
17
ZiLOG, Inc. v. Quicklogic Corp.,
18 No. C 03-03725, 2008 WL 563057 (N.D. Cal. Mar. 6, 2006).................................... 12, 14

19 Zoltar Satellite Alarm Sys., Inc. v. Motorola, Inc.,

No. C 06-00044, 2008 WL 913326 (N.D. Cal. Apr. 2, 2008) ...................................... 8, 12
20

21

22

23

24

25

26

27
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike ii
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
Austin 45816v3
 Case 5:05-cv-00334-RMW Document 2116 Filed 08/29/2008 Page 5 of 20

1 I. INTRODUCTION
2
Samsung’s motion to strike seeks far more than meets the eye. Samsung is seeking not
3
merely to remove Rambus’s patent infringement allegations against its controllers from the
4
January 2009 trial, but rather to forever shield itself from Rambus’s patent claims against these
5
products on an untenable waiver theory premised on the Patent Local Rules of this Court.
6
From well before the commencement of the litigation between Rambus and Samsung,
7
Samsung has known that Rambus considers Samsung’s controllers to fall within the scope of
8
Rambus’s patent claims. Indeed, the 2000 Patent License Agreement (“Agreement”) between
9
the parties, and all subsequent amendments, included provisions whereby Samsung was required
10
to pay royalties to Rambus on its worldwide sales of controllers for controlling DRAM
11
A PROFESSIONAL CORPORATION • ATTORNEYS

components. In fact, even when the Agreement was modified over time such that Samsung
12
began to pay a flat fee for its sales of memory components, it was required to provide royalty
13
MCKOOL SMITH

DALLAS, TEXAS

reports to Rambus and to pay a running royalty on its controller products.

14
When the Agreement was terminated and litigation began, Rambus made no secret of its
15
claims against Samsung’s controllers. The Complaints in both the -2298 case (directed to SDR
16
SDRAM and DDR SDRAM products) and the -334 case (directed to DDR2 SDRAM, DDR3
17
SDRAM, and later memory products) identified controllers as accused products. Rambus’s
18
discovery in both cases expressly included Samsung’s controllers within the definitions of
19
“Accused Products.”
20
Subsequently, the Court required Rambus to select 25 asserted claims in the consolidated
21
cases. Rambus selected three claims from the -334 case (from the ’5,020 patent) directed to
22
memory controllers, but did not select claims from the -2298 case directed to memory
23
controllers, thereby deferring—but by no means relinquishing—its claims of patent infringement
24
against SDR and DDR memory controllers. Rambus also provided timely Preliminary, and then
25
Final Infringement Contentions pursuant to the Patent Local Rules and the Court’s Scheduling
26
Order. Due to its selection of claims, in its Final Infringement Contentions Rambus provided
27
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
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contentions relating to infringement of the three ’5,020 memory-controller claims against DDR2
2
and later products. Although Rambus did not explicitly, in the cover pleading of its Preliminary
3
Infringement Contentions, identify memory controllers as accused instrumentalities, the
4
unambiguous language of the asserted claims themselves—expressly directed to a “controller”—
5
and Rambus’s articulation of its infringement theory, made it clear that Samsung’s memory
6
controllers remained at issue in the case. Rambus made this even more explicit in its Final
7
Infringement Contentions by expressly identifying DDR2, DDR3, and later memory controllers
8
as accused products, and by modifying its contentions in the claim chart to more precisely
9
describe the infringing operation of Samsung’s memory controllers.
10
Despite its accusations of infringement against Samsung’s controllers, Rambus received
A PROFESSIONAL CORPORATION • ATTORNEYS

11
only limited discovery from Samsung on its memory controllers. In July 2008, Rambus pursued
12
that discovery—requested long prior—but was informed for the first time by Samsung that
MCKOOL SMITH
DALLAS, TEXAS

13
Samsung would not produce any controller discovery because it did not consider its memory
14
controllers to be accused in the case, and, moreover, that production of controller discovery at
15
this late date would be unduly burdensome. In an attempt at compromise, Rambus offered to
16
defer its discovery on controllers to a later date if Samsung would agree to a trial on controllers
17
after the January 2009 trial. Samsung rejected this offer during the oral argument on the motion
18
to compel that resulted from Samsung’s refusal to produce discovery on controllers, contending
19
that Rambus was not entitled to pursue its claims of infringement against Samung’s memory
20
controllers now, or ever, because of what Samsung claimed were violations of the Patent Local
21
Rules governing Preliminary Infringement Contentions.
22
As shown herein, Samsung’s attempt to get a free pass for its infringing controller
23
products is entirely devoid of merit. Rambus is not barred from bringing claims against
24
Samsung’s SDR and DDR controllers by the selection of asserted claims required by the Court,
25
and Samsung offers no credible argument regarding prejudice as to what it alleges is a technical
26
failure to identify Samsung’s memory controllers as accused products in the cover pleading of its
27
Preliminary Infringement Contentions. Accordingly, Samsung’s motion to strike should be
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
2
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1
denied. Additionally, Rambus respectfully requests that the Court set a separate trial for
2
Rambus’s patent claims against Samsung’s memory controllers after the January 2009 trial, and
3
permit Rambus to conform its Complaint, to the extent necessary, to assert consistent memory
4
controller claims across the -2298 and -334 cases.
5
On another aspect of Samsung’s motion, Samsung also briefly argues that the Court
6
should strike the reference to GDDR5 in Rambus’s Final Infringement Contentions. (See Dkt.
7
No. 2049, C-05-00334, at 18-19.) That product line, however, was only recently released, and—
8
as with Samsung’s controllers—Rambus is still awaiting relevant discovery from Samsung.
9
Rambus has acted with diligence in adding its contentions against this newly-released product,
10
and will supplement those contentions shortly after receiving relevant discovery from Samsung.
A PROFESSIONAL CORPORATION • ATTORNEYS

11
In addition, adding GDDR5 to the case now will cause no prejudice to Samsung, but will result
12
in conservation of the judicial and party resources that would otherwise be expended in a
MCKOOL SMITH
DALLAS, TEXAS

13
subsequent suit addressing the GDDR5 products.
14
II. PROCEDURAL BACKGROUND
15
A. The Pleadings and Discovery.
16

17 Rambus and Samsung executed their Patent License Agreement (“Agreement”) in July

18 2000, wherein Samsung agreed to pay Rambus patent license fees with respect to memory and

19 memory controllers. (See Dkt. No. 2049, C-05-00334, at 3-4 and Ex. 1.) This Agreement was

20 terminated in June 2005 (see id.), and Rambus filed the -2298 and -334 patent-infringement

21 cases against Samsung on June 6, 2005. As the Court will recall, the -2298 case is directed to

22 SDR SDRAM and DDR SDRAM memory products, whereas the -334 case is directed to later

23 developed memory products such as DDR2, DDR3, GDDR3, and GDDR5, among others.

24 In its initial and subsequently amended complaints, in both cases, Rambus identified

25 memory and memory controllers as accused products. (See Dkt. No. 23, C-05-00334; Dkt. No.

26 1, C-05-2298.) Rambus pursued discovery relating to memory controllers, as well as other

27 memory products, in both cases. Indeed, in its document requests and interrogatories

28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike

Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
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propounded in both cases, Rambus explicitly included memory controllers in its definitions of
2
“Accused Products.” (See Dkt. No. 2021-3, C-05-00334, Exs. A-J.) Although Samsung now
3
makes much of its objections, in fact, Samsung’s objections did not properly inform Rambus that
4
Samsung would not be producing controller-related discovery, because Samsung followed many
5
of its objections with a representation that it would produce responsive documents. (See Dkt.
6
No. 2074, C-05-00334, at 4-5 and Ex. 10.)
7
Samsung continued to produce documents through 2007 and into 2008. In July 2008,
8
Rambus realized that Samsung had produced virtually no discovery relating to memory
9
controllers, and began the process to obtain that discovery. Unsuccessful in its informal
10
attempts, Rambus moved to compel. Judge Ambler has deferred ruling on Rambus’s motion
A PROFESSIONAL CORPORATION • ATTORNEYS

11
until this Court decides the instant motion. (See Dkt. No. 2098, C-05-00334, Ex. A.)
12
B. Rambus’s Selection of 25 Asserted Claims and Infringement Contentions.
MCKOOL SMITH
DALLAS, TEXAS

13

14 At the May 27, 2007 Case Management Conference, the Court ordered Rambus to elect

15 25 claims in the Coordinated Cases. On May 31, 2007, Rambus elected 5 claims from the -2298

16 case and 24 claims from the -334 case to be among the 25 asserted claims. (See Hubert Decl., ¶

17 2 and Ex. A.) The 5 claims selected from the -2298 case do not include claims directed to

18 controller products; 3 claims selected from the -334 case, i.e., three claims from the ‘5020 patent,

19 are directed at memory controllers.1

20 The three ’5,020 claims directed at controllers are unambiguously directed at controllers.

21 For example, claim 1 of the ’5,020 patent reads:

22 1. A memory controller device for controlling a synchronous

dynamic random access memory device, the controller device
23 comprises:

24 First output driver circuitry to output block size information to the

memory device, wherein the block size information defines an
25 amount of data to be output by the memory device; and

26 1
As discussed further below, the Court has been clear that by selecting certain patent claims to
pursue in the coordinated cases, Rambus was not waiving its right to pursue its claims of
27 infringement as to other patent claims from the same patents.
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
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1 Input receiver circuitry to receive the amount of data output by the

memory device.
2

3 (See Dkt. No. 2021-2, C-05-00334, Ex. S at p 51 (emphasis added).)

4 During the briefing on the motion to compel, on August 1, 2008, Rambus provided to

5 Samsung its Final Infringement Contentions, which explicitly identify as Accused

6 Instrumentalities Samsung’s memory controllers, and articulate infringement of the three ’5,020

7 memory-controller claims by those controllers.2 (See Dkt. No. 2050, C-05-00334, Ex. 16 at 5-6;

8 see also Rambus’s Preliminary Infringement Contentions at Dkt. No. 2050, C-05-00334, Ex. 7 at

9 3-4 (also articulating infringement of these three claims and discussing the functionality of

10 Samsung’s controller products in so doing).)

Contrary to Samsung’s suggestion, therefore, controllers have been and are now at issue
A PROFESSIONAL CORPORATION • ATTORNEYS

11

12 in this litigation between the parties. With respect to the -334 case in particular, Rambus
MCKOOL SMITH

asserted three claims from the ’5,020 patent plainly directed to Samsung’s newer memory
DALLAS, TEXAS

13

14 controllers. (See Dkt. No. 2021-2, C-05-00334, Ex. S at p 51.) As to the -2298 case, Rambus

15 put Samsung’s earlier memory controllers in issue, and then, with its election of asserted claims,

16 deferred its infringement claims as to those products to a later time. However, nothing about

17 Rambus’s pleadings or contentions in the coordinated cases has caused Rambus to waive its right

18 to pursue its patent infringement claims against Samsung—a result for which Samsung argues,

19 but, as discussed below, to which it is not legally entitled.

20 C. GDDR5.

21
Concerning GDDR5, this product has only recently been introduced by Samsung, and
22
only samples of the product are currently available for shipping. (See Hubert Decl., ¶ 3 and Ex.
23
B.) GDDR5 is a memory type that is expected to be fundamentally similar to memory
24
technology already at issue in this case, such as GDDR3 memory. Rambus requested specific
25

26 2
Because Rambus was not provided with relevant discovery, these contentions are apparently
not to the level of specificity that Samsung would desire. Rambus reserves the right to amend its
27 contentions after securing discovery from Samsung.
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
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discovery with respect to GDDR5 in July, but Samsung refused to provide substantive responses.
2
Rambus’s motion to compel these responses is currently outstanding. (See Dkt. No. 2019, C-05-
3
00334.) Given the expected similarity in technology between GDDR3 and GDDR5, Rambus
4
added this product in its Final Infringement Contentions per the Court’s scheduling order on
5
August 1, 2008, based on the information and belief that GDDR5 is properly the subject of this
6
litigation. Once discovery is obtained from Samsung and reviewed, Rambus expects to
7
supplement its Final Infringement Contentions.
8
III. ARGUMENT
9
A. Rambus Has Not Waived Its Right to Assert Patent Claims Against
10 Samsung’s Memory Controllers.
A PROFESSIONAL CORPORATION • ATTORNEYS

11
For the reasons discussed below, Samsung’s procedural arguments based on the Patent
12
Local Rules are without merit. As an initial matter, however, it is important to recognize that—
MCKOOL SMITH
DALLAS, TEXAS

13
whatever the merit of Samsung’s arguments regarding the process and timing of infringement-
14
theory disclosure—Rambus has not waived its substantive right to assert patent claims against
15
Samsung’s memory controllers, as Samsung seems now to be contending.
16
Under Federal Circuit precedent, Rambus need not pursue its patent-infringement claims
17
against all of Samsung’s products in one lawsuit. To the contrary, claim preclusion will only bar
18
a subsequent suit against a different product if “the devices in the two suits [are] essentially the
19
same.” Foster v. Hallco Mfg. Co., 947 F.2d 469, 479-80 (Fed. Cir. 1991); see also Roche Palo
20
Alto LLC v. Apotex, Inc., 531 F.3d 1372, 1379-80 (Fed. Cir. 2008); Advanced Cardiovascular
21
Sys. v. Scimed Life Sys., 989 F. Supp. 1237, 1243 (N.D. Cal. 1997). Given Samsung’s insistence
22
that its memory controllers are not “essentially the same” as, e.g., its DRAM memory products,
23
(see Dkt. No. 2049, C-05-00334, at 2), there should be no dispute that a final adjudication with
24
respect to those memory products will not preclude subsequent litigation over Samsung’s
25
memory controllers. See Foster, 947 F.2d at 479-80. (See also Dkt. No. 31, C-08-03343, at 5.)
26
Consistent with this law, this Court has made it clear that by selecting certain claims for
27
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
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adjudication in the consolidated cases, Rambus was not waiving its right to pursue other claims
2
against products not within the scope of the selected claims.
3
While the Patent Local Rules may determine the procedural scope of one particular case,
4
therefore, they should not be read to deprive a party of its substantive right to pursue additional
5
claims in a subsequent case. See Bd. of Trustees of the Leland Stanford Jr. Univ. v. Roche
6
Molecular Sys., Inc., No. C 05-04158, 2008 WL 624771, at *4 (N.D. Cal. Mar. 4, 2008). And if
7
Samsung prevails in its attempt to prevent adjudication on its memory controllers in the January
8
2009 trial, Rambus should be in a position to file a separate lawsuit against those controllers for
9
adjudication in a subsequent trial. See id. Litigating an entirely new and subsequent suit,
10
however, could be time-consuming and inefficient. The prospect of a subsequent suit, in fact—
A PROFESSIONAL CORPORATION • ATTORNEYS

11
with its attendant costs and inefficiencies—has been recognized as a “compelling reason to
12
allow” changes to Final Infringement Contentions such as those Samsung complains of here.
MCKOOL SMITH
DALLAS, TEXAS

13
See Roche Molecular Sys., 2008 WL 624771, at *4; see also, e.g., Dussouy v. Gulf Coast Inv.
14
Corp., 660 F.2d 594, 599-600 (5th Cir. 1981) (“If the plaintiff cannot amend, his proper recourse
15
is to file a new action . . . . All that is accomplished is that the case is set back on the docket, and
16
disposition of the merits delayed, a result that [FED. R. CIV. P.] 1 directs us to avoid and that
17
undercuts the policy of the federal rules in favor of consolidating litigation to facilitate an
18
efficient and expeditious resolution of disputes.”).
19
Perhaps the most equitable and efficient result, therefore—given the proximity to trial,
20
Samsung’s lack of production on controllers, and Samsung’s strenuous objections to addressing
21
Rambus’s memory-controller claims in the January 2009 trial—would be to permit Rambus to
22
pursue those claims in the -334 and -2298 cases, but to try them separately from the claims in the
23
January 2009 trial, several months after the January 2009 trial. Rambus thus respectfully
24
requests that the Court: 1) allow Rambus to de-select the three ‘5,020 patent claims pursuant to
25
the Court’s August 27th Order,3 2) allow Rambus to amend its -2298 pleadings to add the three
26
3
27 A few days ago, on August 27th, the Court issued its Supplemental Claim Construction Order
for the Ware Patents, indicating that Rambus should elect fewer claims than 25. Rambus offers
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
7
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1
’5,020 memory-controller claims currently asserted in the -334 case, and 3) allow Rambus’s
2
three claims from the ’5,020 patent in both the -334 and -2298 cases to go forward against
3
Samsung in a trial set for mid or late 2009, with any necessary discovery commencing after the
4
conclusion of the January 2009 trial.
5
B. The More Specific References to Samsung’s Controllers in Rambus’s Final
6 Infringement Contentions Should Be Permitted Under Patent L.R. 3-7.

7
Samsung’s procedural arguments based on the Patent Local Rules are also without merit.
8
In particular, Patent Local Rule 3-7 provides that the Court may approve any amendment or
9
modification of a party’s infringement contentions when there is “good cause” to do so. PATENT
10
L.R. 3-7. There is good cause for the Court to approve the addition of more specific references
A PROFESSIONAL CORPORATION • ATTORNEYS

11
to Samsung’s memory controllers in Rambus’s Final Infringement Contentions, as: 1) the
12
addition of those references threatens no prejudice to Samsung; and 2) given Samsung’s
MCKOOL SMITH
DALLAS, TEXAS

13
inadequate document production, Rambus cannot be found to have acted without diligence. See
14
Roche Molecular Sys., 2008 WL 624771, at *4. In order to “advance fair resolution of the issues
15
on the merits,” therefore, Samsung’s motion to strike should be denied. Zoltar Satellite Alarm
16
Sys., Inc. v. Motorola, Inc., No. C 06-00044, 2008 WL 913326, at *3 (N.D. Cal. Apr. 2, 2008);
17
see also Acco Brands, Inc. v. PC Guardian Anti-Theft Prods., Inc., No. C 04-03526, 2008 WL
18
2168379, at *2 (N.D. Cal. May 22, 2008) (noting a preference, in the context of Patent L.R. 3-7,
19
to decide cases on the merits).
20
1. The addition of more specific controller references threatens no
21 prejudice to Samsung.

22
Samsung suggests that it will be prejudiced because “permitting Rambus to amend its
23
infringement contentions now would require reopening claim construction, extending discovery,
24

25 to de-select the claims of the ‘5,020 patent, directed to “memory controller[s],” without prejudice
to election for a later trial following discovery from Samsung on its controllers. The
26 Manufacturers likewise should reduce their invalidity contentions, which have swollen from
nearly 300 at the time of the briefing on the Ware patents leading to the Court’s order, to over
27 400 separate alleged prior art references, as of the date of this briefing.
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
8
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1
and postponing the patent trial.” (Dkt. No. 2049, C-05-00334, at 16.) None of these suggestions
2
is accurate.
3
First, permitting the modification should not require any additional claim construction
4
because any claim-construction disputes should have been raised in connection with the recent
5
Claim Construction Orders issued by the Court. As explained in Rambus’s related motion to
6
compel, (see Dkt. No. 2021-2, C-05-00334, at 12-14), the three patent claims Rambus is
7
asserting against Samsung’s memory controllers are not newly asserted claims. They were
8
asserted in Rambus’s Preliminary Infringement Contentions, and a quick review of those claims
9
demonstrates that they are each unmistakably directed to memory controllers: “A memory
10
controller device for controlling a synchronous dynamic random access memory device . . . .”
A PROFESSIONAL CORPORATION • ATTORNEYS

11
(See id. at 12 (discussing claims 1, 2, and 14 of the ’5,020 patent).)
12
Rambus’s Preliminary Infringement Contentions also put these claims at issue in nearly
MCKOOL SMITH
DALLAS, TEXAS

13
the same way as they are at issue now: although the original contentions did not specify
14
Samsung’s controllers as accused instrumentalities, Rambus did refer to the controllers in its
15
claim chart for these claims. Rambus asserted for claim 1, for example, that “[e]ach of
16
Samsung’s DDR SDRAM [] devices is designed to be controlled by a controller device.” (See
17
id. at 13.) Rambus further described how Samsung’s memory controllers meet the elements of
18
these three claims. (See id.) Thus, in effect, Rambus explained Samsung’s infringement by
19
referring to the operation of its memory controllers. To the extent that Samsung believed there
20
were any legitimate disputes regarding the meaning of claims terms relevant to controllers,
21
Samsung should have been aware of and raised those issues during the claim-construction
22
process.
23
Moreover, as highlighted by Samsung’s motion, Samsung has been aware that Rambus’s
24
patents cover its memory controllers since at least 2000, when Samsung and Rambus entered a
25
license agreement expressly covering Samsung’s memory controllers as licensed products. (See
26
Dkt. No. 2049, C-05-00334, at 3-4.) Under the License Agreement, Samsung was obligated to
27
identify, report sales of, and pay royalties on its memory controllers. There should therefore be
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
9
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1
no basis for Samsung to assert that the term is undefined, or that it has no understanding as to
2
how its memory controllers come within the scope of Rambus’s patent claims. (See Dkt. No.
3
2074, C-05-00334, at 7.) Permitting Rambus’s modification of its Final Infringement
4
Contentions should thus require no additional claim construction.
5
Second, permitting the modification will not extend discovery in any manner that could
6
prejudice Samsung. It is true that Samsung will need to provide discovery of its accused
7
controllers, but that is discovery that Samsung should already have provided to Rambus. To
8
borrow from the court’s opinion in Roche Molecular Systems, “the gathering and preparing of
9
discovery related to [its controllers] is not prejudicial to [Samsung]—by refusing to provide
10
discovery earlier, [Samsung] has simply delayed production of discovery it was already required
A PROFESSIONAL CORPORATION • ATTORNEYS

11
to produce.” 2008 WL 624771, at *4.4 And Samsung should have no need to take fact discovery
12
from Rambus with regard to the design and operation of Samsung’s own memory controllers.
MCKOOL SMITH
DALLAS, TEXAS

13
All of the relevant factual information regarding Samsung’s devices should be within Samsung’s
14
possession and control. In addition, Samsung will have sufficient opportunities to address
15
Rambus’s infringement contentions regarding memory controllers during expert discovery. See
16
Golden Hour Data Sys., Inc. v. Health Servs. Integration, Inc., No. C 06-7477, 2008 WL
17
2622794, at *4 (N.D. Cal. July 1, 2008) (“As expert discovery has not yet begun, Golden Hour’s
18
experts will have the opportunity to consider the amended contentions.”).
19
Because Rambus’s controller-related modifications will require no additional claim
20
construction, and little additional discovery, they should have no impact on the trial date. There
21
is thus no reason to expect that Samsung will be prejudiced if its motion to strike is denied.
22
In addition to these considerations, it is worth noting that Rambus is not now seeking to
23
alter its theory of the case or engaging in any gamesmanship. (See Dkt. No. 2021-2, C-05-
24
00334, at 13.) Whereas Rambus had previously explained its contentions by describing how
25
Samsung’s DRAMs were controlled by memory controllers, Rambus’s contentions now describe
26
4
Samsung’s refusal to produce documents, by contrast, has prejudiced Rambus in its ability to
27 prepare its expert reports, which come due before this motion will be heard.
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
10
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1
how Samsung’s memory controllers control its DRAMs in accordance with the claims. (See id.)
2
Since Rambus’s infringement theories have not changed, Samsung cannot argue that it would
3
have adopted different defensive theories had memory controllers been more explicitly
4
referenced earlier in the litigation. See Golden Hour Data Systems, 2008 WL 2622794, at *4
5
(finding no prejudice where amendments did not raise new theories); Seiko Epson Corp. v.
6
Coretronic Corp., No. C 06-06946, 2008 WL 2563383, at *3-4 (N.D. Cal. June 23, 2008)
7
(“Coretronic has not demonstrated how their case strategy would have been different had the
8
[newly accused products] been listed in the preliminary infringement contentions.”).
9
2. Given Samsung’s inadequate document production, Rambus cannot
10 be considered to have acted without diligence.
A PROFESSIONAL CORPORATION • ATTORNEYS

11
Samsung complains that Rambus did not include more detailed and specific references to
12
memory controllers in Rambus’s Preliminary Infringement Contentions filed in 2006 and 2007.
MCKOOL SMITH
DALLAS, TEXAS

13
Yet, Samsung only provided its unclear discovery responses in March 2007, with documents on
14
memory controllers expected over the next several months. Indeed, Samsung continued to
15
produce documents throughout 2007 and 2008. (See Dkt. No. 2074, C-05-00334, at 5.) But until
16
Rambus receives the requested technical information regarding Samsung’s memory controllers,
17
which still has not been provided, Rambus is not in a position to provide detailed contentions
18
regarding controllers.
19
And because Samsung’s discovery responses were insufficient to put Rambus on notice
20
that Samsung would not be producing documents and information regarding its memory
21
controllers, (see Dkt. No. 2074, C-05-00334, at 4-5 and Ex. 10), Rambus did not become aware
22
of that deficiency—and could not have become aware of that deficiency—until it reviewed the
23
entirety of Samsung’s voluminous production. That review was only completed recently.
24
Shortly thereafter, once Rambus recognized that Samsung had failed to produce the requested
25
documentation, Rambus served additional discovery requests, began a meet-and-confer process,
26
filed a motion to compel, and added more explicit references to Samsung’s controllers—with
27
what little information it could uncover—in the Final Infringement Contentions filed on August
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
11
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1
1. The time between Rambus’s recognition of Samsung’s inadequate production and the filing
2
of Rambus’s Final Infringement Contentions was less than three months. Given Samsung’s
3
inadequate document production, therefore, Rambus should be considered to have acted with
4
diligence in adding the references to its Infringement Contentions. See, e.g., ZiLOG, Inc. v.
5
Quicklogic Corp., No. C 03-03725, 2008 WL 563057, at *1 (N.D. Cal. Mar. 6, 2006) (noting that
6
a delay of three months or less “constitutes sufficient diligence to meet the ‘good cause’
7
standard”).
8
C. The New References to GDDR5 in Rambus’s Final Infringement Contentions
9 Should Be Permitted Under Patent Local Rule 3-7.

10
Samsung’s motion is primarily focused on the more specific controller references in
A PROFESSIONAL CORPORATION • ATTORNEYS

11
Rambus’s Final Infringement Contentions. But Samsung also briefly argues that the Court
12
should additionally strike the new references to Samsung’s GDDR5 products. There is good
MCKOOL SMITH
DALLAS, TEXAS

13
cause for the Court to approve the addition of GDDR5 products to Rambus’s Final Infringement
14
Contentions, however, for at least three reasons: 1) the addition of the GDDR5 products
15
threatens no prejudice to Samsung; 2) Rambus acted with diligence in accusing this newly-
16
released product line; and 3) preventing Rambus from pursuing its contentions regarding
17
Samsung’s GDDR5 products would result in an unnecessary waste of judicial resources. See
18
Roche Molecular Sys, 2008 WL 624771, at *4; see also PATENT L.R. 3-7. In order to “advance
19
fair resolution of the issues on the merits,” therefore, Samsung’s motion to strike as to its
20
GDDR5 products should be denied as well. Zoltar Satellite Alarm Sys., 2008 WL 913326, at *3;
21
see also Acco Brands, 2008 WL 2168379, at *2.
22
1. The addition of the new GDDR5 products threatens no prejudice to
23 Samsung.

24
Samsung briefly suggests that adding GDDR5 to this litigation will require additional
25
discovery on its part, (see Dkt. No. 2049, C-05-00334, at 19), but again, “the gathering and
26
preparing of discovery related to [its GDDR5 products] is not prejudicial to [Samsung]—by
27
refusing to provide discovery earlier, [Samsung] has simply delayed production of discovery it
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
12
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1
was already required to produce.” Roche Molecular Systems, 2008 WL 624771, at *4. And as
2
with its own controllers, Samsung should have no need to take fact discovery from Rambus with
3
regard to the design and operation of Samsung’s own GDDR5 products. In addition, Samsung
4
will have sufficient opportunities to address Rambus’s infringement contentions regarding
5
GDDR5 during expert discovery. See Golden Hour Data Sys., 2008 WL 2622794, at *4.
6
Further, Rambus anticipates that Samsung’s GDDR5 memory products are fundamentally
7
similar to memory technology already at issue in this case, such as Samsung’s GDDR3 memory
8
products. Rambus thus expects that the addition of GDDR5 to this litigation will require only a
9
de minimis amount of additional work by the parties to prepare for trial in January 2009. For this
10
reason, permitting the modification of Rambus’s Final Infringement Contentions to include
A PROFESSIONAL CORPORATION • ATTORNEYS

11
Samsung’s GDDR5 products should threaten no prejudice to Samsung. See, e.g., Golden Hour
12
Data Sys., 2008 WL 2622794, at *4 (finding no prejudice where amendments did not raise new
MCKOOL SMITH
DALLAS, TEXAS

13
theories); Seiko Epson, 2008 WL 2563383, at *3-4 (“Coretronic has not demonstrated how their
14
case strategy would have been different had the [newly accused products] been listed in the
15
preliminary infringement contentions.”).
16
2. Rambus acted with diligence in accusing this newly-released product
17 line.

18
The GDDR5 line of products has only recently been released. Samsung’s website, in
19
fact, indicates that its first GDDR5 products are currently “transitioning in” to their lifecycle, and
20
are only available for shipment in sample quantities. (See Hubert Decl., ¶ 3 and Ex. B.) And as
21
Samsung’s own motion asserts, JEDEC’s GDDR5 specification was not expected to be finalized
22
until “mid-to-late ’08.”5 (See Dkt. No. 2049, C-05-00334, at 18.) With this factual backdrop,
23
Rambus requested discovery on Samsung’s GDDR5 products on July 2, 2008. When Samsung
24

25 5
Samsung argues that Rambus should have been aware, many months earlier, that GDDR5 was
“under development” at Samsung. (Dkt. No. 2049, C-05-00334, at 19.) Considering the fact—
26 emphasized by Samsung—that the technical specification for GDDR5 was not expected to be
finalized until “mid-to-late” 2008, (id. at 18), however, Rambus can hardly be faulted for waiting
27 until the products were actually developed before accusing them of infringement.
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
13
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1
refused to provide substantive discovery prior to the contention deadline on August 1, Rambus
2
was forced to add Samsung’s GDDR5 products Final Infringement Contentions on information
3
and belief—as little information relating to this new product line is publicly available. Given the
4
release of this new product line in the last few months, and Samsung’s continued resistance to
5
meeting its discovery obligations with respect to GDDR5, Rambus acted with diligence in
6
adding Samsung’s GDDR5 products to its Final Infringement Contentions. See ZiLOG, 2008
7
WL 563057, at *1 (noting that a delay of three months or less “constitutes sufficient diligence to
8
meet the ‘good cause’ standard”).
9
3. Preventing Rambus from pursuing its contentions regarding GDDR5
10 would result in an unnecessary waste of judicial resources.
A PROFESSIONAL CORPORATION • ATTORNEYS

11
In addition to these considerations, conservation of judicial and party resources counsels
12
denying Samsung’s motion. For the alternative to addressing Samsung’s infringing GDDR5
MCKOOL SMITH
DALLAS, TEXAS

13
products in this litigation is addressing them in a subsequent litigation. That alternative will
14
almost certainly be less efficient, and more costly, for both the parties and the Court. This
15
practical reality constitutes “another compelling reason to allow the” addition of Samsung’s
16
GDDR5 products to Rambus’s Final Infringement Contentions. See Roche Molecular Systems,
17
2008 WL 624771, at *4; see also, e.g., Dussouy, 660 F.2d at 599-600 (“All that is accomplished
18
is that the case is set back on the docket, and disposition of the merits delayed, a result that [FED.
19
R. CIV. P.] 1 directs us to avoid and that undercuts the policy of the federal rules in favor of
20
consolidating litigation to facilitate an efficient and expeditious resolution of disputes.”).
21
D. Given Samsung’s Refusal to Provide Responsive Discovery, Rambus’s Final
22 Infringement Contentions Are Sufficiently Detailed.

23
In addition to its principal argument that the Court should strike Rambus’s controller- and
24
GDDR5-related claims from this case—necessarily for litigation in a subsequent one—Samsung
25
also complains that the disclosures related to its own memory controllers and GDDR5 products
26
in Rambus’s Final Infringement Contentions are insufficiently detailed. (See Dkt. No. 2049, C-
27
05-00334, at 8-9, 18.) There is a simple answer to these complaints: to the extent that Rambus’s
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
14
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1
contentions on Samsung’s memory controllers and GDDR5 products lack sufficient detail to
2
satisfy Samsung, that is directly due to the fact that Samsung intentionally withheld the related
3
requested discovery. Because little technical detail concerning these infringing products is
4
publicly available, Rambus’s ability to draft detailed claim charts is and was dependent upon
5
Samsung’s willingness to meet its relevant discovery obligations. After thwarting Rambus’s
6
attempts to secure discovery on Samsung’s products, Samsung should not be heard to complain
7
that Rambus’s claim charts lack sufficient detail. As Rambus noted in its Final Infringement
8
Contentions, it will supplement its contentions with additional detail once it receives and reviews
9
sufficient discovery from Samsung to determine the specific operation of the accused products.
10
(See Dkt. No. 2050, C-05-00334, Ex. 16.)
A PROFESSIONAL CORPORATION • ATTORNEYS

11
E. Denial of Samsung’s Motion to Strike Is the Right Result, But Will Not Fully
12 Resolve the Contention Issues Regarding Controllers.
MCKOOL SMITH

As explained above, there is ample reason to deny Samsung’s motion to strike. However,
DALLAS, TEXAS

13

14 the lack of discovery on controllers and review of the procedural posture of Rambus’s patent
15 claims against controllers makes it clear that allowing Rambus’s claims against Samsung’s
16
controller products to proceed in January 2009 will result in judicial inefficiencies, due to
17
Rambus’s non-selection of claims in the -2298 case against SDR and/or DDR controllers, and
18
selection of claims in the -334 case against later generation controller products. Accordingly,
19

20 and in the interest of reducing Samsung’s burden of producing discovery now—even though it

21 should have produced it long ago—Rambus respectfully requests that the Court: allow Rambus

22 to de-select the three ‘5,020 patent claims pursuant to the Court’s August 27th Order; allow
23
Rambus to amend its -2298 pleadings to add the three ’5,020 memory-controller claims currently
24
asserted in the -334 case; and allow Rambus’s three claims from the ’5,020 patent in both the
25
-334 and -2298 cases to go forward against Samsung in a trial set for mid or late 2009, with
26
necessary discovery commencing after the conclusion of the January 2009 trial.
27
28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
15
 Case 5:05-cv-00334-RMW Document 2116 Filed 08/29/2008 Page 20 of 20

1 IV. CONCLUSION

2
Rambus respectfully requests that the Court deny Samsung’s motion and grant the relief
3
that Rambus has requested.
4

7
Dated: August 29, 2008 Respectfully submitted,
8
MUNGER TOLLES & OLSON LLP
9 SIDLEY AUSTIN LLP
MCKOOL SMITH P.C.
10
A PROFESSIONAL CORPORATION • ATTORNEYS

11

12 /s/ Pierre J. Hubert

MCKOOL SMITH
DALLAS, TEXAS

13 Attorneys for RAMBUS INC.

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18

19

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21

22

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24

25

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28 Rambus Inc.’s Opposition to Samsung’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Case No. CV 05-02298
16