3148 A

EXHIBIT A

Case 5:05-cv-00334-RMW Document 3148-2 Filed 01/26/2009 of 15

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RAMBUS’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING CLAIM LIMITATIONS THAT ARE UNCONTESTED

OR SUBJECT TO SUMMARY JUDGMENT CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW

Austin 47636v7

Gregory P. Stone (SBN 078329) Andrea Weiss Jeffries (SBN 183408) Fred A. Rowley, Jr. (SBN 192298) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, California 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Email: [email protected] Email: [email protected] Email: [email protected] Peter A. Detre (SBN 182619) Rosemarie T. Ring (SBN 220769) Jennifer L. Polse (SBN 219202) MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, California 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for RAMBUS INC.

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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

RAMBUS INC.,

Plaintiff, vs.

HYNIX SEMICONDUCTOR INC., et al.,

Defendants.

) ) ) ) ) ) ) ) ) ) ) )

Case No. C 05-00334 RMW RAMBUS INC.’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING CLAIM LIMITATIONS THAT ARE UNCONTESTED OR SUBJECT TO SUMMARY JUDGMENT Date: TBD Time: TBD Judge: Hon. Ronald M. Whyte

RAMBUS INC.,

Plaintiff, v.

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

Defendants.

) ) ) ) ) ) ) ) )

Case No. C 05-002298 RMW

Case 5:05-cv-00334-RMW Document 3109-2 Filed 01/13/2009 of 48Case 5:05-cv-00334-RMW Document 3148-2 Filed 01/26/2009 Page 2 of 15

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RAMBUS’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING CLAIM LIMITATIONS THAT ARE UNCONTESTED

OR SUBJECT TO SUMMARY JUDGMENT CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW

Austin 47636v7

RAMBUS INC.,

Plaintiff, vs.

MICRON TECHNOLOGY, INC., et al.,

Defendants.

) ) ) ) ) ) )

Case No. C 06-00244 RMW

PLEASE TAKE NOTICE that on ____________ or as soon thereafter as counsel may be

heard, in the Courtroom of the Honorable Ronald M. Whyte in the United States District Court

for the Northern District of California, at 280 South First Street, San Jose, California, Plaintiff

Rambus Inc. (“Rambus”) hereby moves for partial summary judgment as to claim limitations for

which the Court has granted summary judgment or which the Manufacturers have not contested,

for the reasons set forth in the attached Memorandum.

This motion is based on this Notice of Motion and Motion, the Memorandum of Points

and Authorities attached hereto, all of the Court’s records and files in this action, and on such

other and further written and oral argument and authorities as may be properly presented at or

before the hearing on this matter.

Dated: January 13, 2009

Respectfully submitted,

MUNGER, TOLLES & OLSON LLP

SIDLEY AUSTIN LLP

MCKOOL SMITH

/s/ Pierre J. Hubert Pierre J. Hubert Attorneys for Rambus Inc.


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1 RAMBUS’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING

CLAIM LIMITATIONS THAT ARE UNCONTESTED OR SUBJECT TO SUMMARY JUDGMENT

CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW Austin 47636v7

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

As the Manufacturers acknowledge in their December 19, 2008 letter to the Court (Dkt.

No. 2948, 334 Case), the Court “rejected as a matter of law most of the Manufacturers’

noninfringement arguments” in its November 24, 2008 Order granting in part Rambus’s motion

for summary judgment. Indeed, late last month, the Manufacturers themselves proposed that

they would not contest (but not concede) infringement at trial. As the Manufacturers outlined in

their December 29, 2008 letter to the Court, (Dkt. No. 3003, 334 Case), only four categories of

claim limitations remain in dispute following the Court’s summary judgment ruling (and that

therefore were subject to the Manufacturers’ proposal to not contest infringement at trial). Those

four categories are

(1) the synchronous output limitations;

(2) the synchronous sampling limitations;

(3) the “in response to” rising/falling edge limitations; and

(4) and the “synchronous” device limitations.

Rambus agrees with the Manufacturers’ assessment of the claim limitations still at issue for

purposes of infringement.

Because it now appears likely that infringement will be tried, Rambus files the present

motion in order to streamline the remaining infringement issues for trial by identifying the

specific claim limitations that remain in dispute.1 The motion is based on the Court’s prior

1 In its November 24 order, the Court already summarily adjudicated that certain limitations are present in the accused products. Rambus includes these limitations in this Motion only to seek a single comprehensive order regarding all claim limitations as to which summary adjudication is appropriate so as to eliminate any doubt as to what remains a matter of disputed material fact for trial.


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CASE NOS. C 05-00334 RMW, C 05-02298 RMW, C 06-00244 RMW

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summary judgment ruling, the infringement issues raised by the Manufacturers’ experts, and the

Manufacturers’ own recent admissions to the Court. The time has passed for the Manufacturers

to offer genuine issues of fact relating to claim limitations that (a) were not contested by the

Manufacturers in their experts’ reports and/or (b) were resolved in Rambus’s favor by the

Court’s November 24, 2008 summary judgment ruling. In other words, Rambus is entitled to

summary adjudication that all claim limitations -- other than those that fall within the four

categories identified in the Manufacturers’ December 29, 2008 letter to the Court -- are present

in the accused products.

Accordingly, Rambus respectfully requests that the Court issue an order of partial

summary judgment of infringement as to the claim limitations highlighted in Exhibits A and B to

Rambus’s motion, which Rambus believes the parties agree are not subject to dispute, such that

at trial the Manufacturers may dispute infringement only as to the claim limitations identified in

bold-faced type in Exhibit C.2

Finally, Rambus also hereby moves for summary judgment as to infringement of claim

16 of the ‘285 patent by Nanya’s DDR3 given that despite Rambus’s efforts, Nanya has been

unwilling to agree to “a stipulation with respect to Nanya’s DDR3 SDRAMs to prevent

unnecessary issues from having to be tried to the jury” as the Court suggested. (See November

24, 2008 Order, Dkt. No. 1611, 244 Case at 37.)

II. FACTUAL AND PROCEDURAL BACKGROUND

On November 2, 2007, the Manufacturers filed their opposition to Rambus’ motion for

summary judgment of infringement. In that opposition, the Manufacturers raised eleven specific

non-infringement arguments. (See November 24, 2008 Order, Dkt. No. 1611, 244 Case at 37;

2 On December 3, Rambus filed a related motion in limine regarding the undisputed and resolved claim limitations and also provided the Manufacturers with a draft stipulation (Dkt. No. 2705, Ex. 2) regarding the claim limitations, in the hope that the parties could resolve this issue without the need to file papers with the Court. The Manufacturers did not respond substantively to Rambus’s draft stipulation, but instead presented the Court with a December 19 letter in which the Manufacturers proposed a scenario under which they would not contest infringement.


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see also Manufacturers’ Opposition to Rambus’s Motion for Summary Judgment of Literal

Infringement, Dkt. No. 661, 334 Case, at i (listing non-infringement arguments)).

On September 26, 2008, the Manufacturers served expert reports on non-infringement

issues pursuant to the Court’s scheduling order and Rule 26 of the Federal Rules of Civil

Procedure. Each manufacturer served a separate report: Hynix served a report of David L.

Taylor; Nanya served a report of Nader Bagherzadeh; Micron served a report of William K.

Hoffman, and Samsung served a report of Michael Runas. With few exceptions, the experts

expressed the same or very similar opinions as to the limitations they contend are not present in

the accused products. Indeed, the parties’ various experts raised some subset of the same non-

infringement arguments that had been raised by the Manufacturers in their summary judgment

opposition, and abandoned some of the summary judgment arguments. (See Rambus Mot. to

Preclude Manufacturers’ Rebuttal Expert Reports, Dkt. No. 2344, 334 Case, at 5-7 (explaining

which of the eleven arguments were raised by the various Manufacturers’ experts in their

reports)). Because the Manufacturers’ experts adopted a subset of the summary judgment non-

infringement arguments, which did not cover all claim limitations, the Manufacturers’ experts

were consistent in not contesting the presence of certain limitations in the accused products. The

Manufacturers’ expert reports do not contest infringement as to the claim limitations highlighted

in Exhibit A attached hereto.

Prior to deposing the Manufacturers’ non-infringement experts, on October 3, 2008,

Rambus filed a motion to strike the expert reports as duplicative pursuant to the Joint Case

Management Order. The Court ordered the Manufacturers to identify a lead expert on issues for

which there was overlap. On November 6, the Manufacturers provided Rambus with their

selection of lead experts on various topics. See Declaration of Craig N. Tolliver in Support of

Rambus’s Motion for Partial Summary Judgment (“Tolliver Decl.”) Ex. 1 (November 6 email

from Manufacturers identifying lead experts and topics). As would be expected, the non-

infringement issues for which the Manufacturers designated a lead expert involved only the


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arguments that one or more of the experts had identified in his expert report as providing a basis

for a finding of non-infringement. The Manufacturers did not designate any of the claim

limitations shown in Exhibit A as disputed by a lead expert. Compare Ex. A with Tolliver Decl.

Ex. 1.

On November 24, 2008, the Court issued its Order Granting In Part And Denying In Part

Rambus’s Motions For Summary Judgment of Infringement (“SJ Order”). In its SJ Order, the

Court granted summary judgment of infringement as to claim 16 of the ‘285 patent. Dkt. No.

1611 at 41. In the course of addressing claim 16, and in a separate portion of the SJ Order, the

Court addressed the Manufacturers’ non-infringement arguments as to other elected claims.

Specifically, the Court granted partial summary judgment over the Manufacturers’ arguments

relating to five claim limitations of the elected claims, conclusively rejecting the Manufacturers’

arguments that: (1) commands received by the accused products do not identify the type of read

or write to perform (argument number 1 in the Manufacturers’ opposition brief); (2) accused

products receive commands not requests (argument number 2 in the Manufacturers’ opposition

brief); (3) accused products do not receive bits that specify a read, write, or any other type of

action (argument number 3 in the Manufacturers’ opposition brief); (4) burst length value

received by the mode register of the accused products does not specify the total amount of data

transferred on the data bus (argument number 4 in the Manufacturers’ opposition brief); and (5)

the accused products do not sample an operation code as a result of a rising or falling edge

transition of an external clock (argument number 8 in the Manufacturers’ opposition brief). Id.

(“The court grants partial summary judgment over the Manufacturers’ arguments related to claim

construction disputes. . . The disputes resolved are the arguments numbered 1, 2, 3, 4, and 8 in

the Manufacturers’ opposition brief.”).3 Attached hereto as Exhibit B is the text of each elected

claim with the resolved claim limitations highlighted.

3 Although not one of the “numbered” arguments, the Manufacturers also argued that Rambus did not offer evidence of indirect infringement of the method claims. See Manufacturers’ Joint Opposition to Rambus’s Motion for Summary Judgment of Literal Infringement, Dkt. No. 661, at i (Table of Contents listing the aforementioned argument as argument “C,” instead of as a


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Because certain claim limitations are undisputed by the Manufacturers’ experts, and other

limitations raised by the Manufacturers’ experts have been resolved in Rambus’s favor by

summary judgment, there is a reduced set of claim limitations as to which a legitimate dispute

can be raised by the Manufacturers. Attached hereto as Exhibit C is the text of each of the

elected claims with the undisputed and resolved claim limitations highlighted and the limitations

to be resolved at trial shown in bold-faced type.

On December 3, Rambus sent the Manufacturers a proposed stipulation seeking their

agreement that the Manufacturers would not present evidence or argument at trial as to the

uncontested and resolved limitations, and that such limitations would be deemed, for purposes of

the patent trial, to be present in the accused products. (Tolliver Decl. Dkt. No. 2705, Ex. 2.)

On December 19, 2008, the Manufacturers provided a letter to the Court in which they

stated, “In light of the Court’s November 24,2008 order, which rejected as a matter of law most

of the Manufacturers’ noninfringement arguments, the Manufacturers have decided not to contest

the remaining infringement issues with respect to the twelve claims-in-suit.” (See 12/19/08 Ltr.

from Bobrow, Dkt. No. 2948, 334 Case.)

On December 29, 2008, the Manufacturers provided an additional letter to the Court

regarding their proposal for the Manufacturers to not contest infringement. (See 12/29/08 Ltr

from Cherensky, Dkt. No. 3003, 334 Case). In that letter, the Manufacturers listed the four

categories of claim limitations that the Manufacturers would not contest at trial, thus indicating

which claim limitations the Manufacturers believed to have remained at issue following the

Court’s SJ Order. See id. Those four categories are the synchronous output limitations, the

synchronous sampling limitations, the “in response to” rising/falling edge limitations, and the

“synchronous” device limitations. See id. Those are the same categories that the Manufacturers

would be allowed to argue at trial if this motion is granted. See Section IV(C), infra.

numbered argument). The Court rejected this argument at page 24 of its Summary Judgment Order.


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On December 29, 2008, in view of the Manufacturers’ indications that they would not

contest infringement, Rambus again asked the Manufacturers to stipulate as to infringement

issues per Rambus’s December 3 email. See Tolliver Decl. Ex. 4. Micron and Samsung

continued to ignore Rambus request altogether. Nanya responded, “We have been in discussions

with Mr. Stone regarding a proposal by Nanya and Nanya USA to not contest infringement by

the DDR2 and DDR3 SDRAM products at trial. We do not believe it is necessary or appropriate

to determine whether to enter into a stipulation regarding the issues set forth in your email below

until this is resolved.” Hynix likewise rejected the stipulation “under the circumstances.” See

Tolliver Decl. Ex. 5.

III. LEGAL STANDARDS

Summary judgment is proper when the pleadings, discovery and affidavits show that

there is “no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(c). Material facts are those which may affect

the outcome of the case. Verigy US, Inc. v. Mayder, No. C-07-04330 RMW, 2008 WL 4820755

at *4 (N.D. Cal. Nov. 4, 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable

jury to return a verdict for the non-moving party. Id.

The party moving for summary judgment bears the initial burden of identifying those

portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine

issue of material fact. Jordan v. Graziani, No. C 03-2414 RMW (PR), 2008 WL 3823032 at *2

(N.D. Cal. Aug. 13, 2008) (citing Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986)). Once the

moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by

its' own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for

trial.” Id. (citing FED. R. CIV. P. 56(e)). If the nonmoving party fails to make this showing, “the

moving party is entitled to judgment as a matter of law.” Id. (citing Celotex).


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IV. ARGUMENT

A. Partial Summary Judgment Should Be Granted As To Claim Limitations To Which The Manufacturers Are Precluded From Offering Expert Testimony

Pursuant to Rule 26 of the Federal Rules of Civil Procedure, each expert report must

contain, inter alia, “a complete statement of all opinions the witness will express and the basis

and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(i). As discussed above, while the

Manufacturers’ experts disputed that the accused products met several claim limitations, none of

them opined that the accused products do not meet the claim limitations shown in Exhibit A.4

Further, at their depositions, the experts confirmed that their expert reports were complete, and

contained all of the opinions as to which they might testify at trial, subject to the Manufacturer’s

designation of lead experts as to certain issues. See, e.g., Tolliver Decl. Dkt. No. 2705, Ex. 3

(Hoffman 11/20/08 Depo. at 11:9-12); Ex. 4 (Bagherzadeh 11/19/08 Depo. at 18:13-18); Ex. 5

(Runas 11/13/08 Depo. at 11:5-8, 11:19-22); Ex. 6 (Taylor 11/25/08 Depo. at 18:14-18).

It is well established that an expert’s Rule 26 report sets the bounds of his testimony at

trial. See, e.g., Laser Design Int'l, LLC v. BJ Crystal, Inc., 2007 U.S. Dist. LEXIS 21329, *9

(N.D. Cal. 2007) (stating that Rule 37(c)(1) “gives teeth” to the expert disclosure requirements

“by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is

not properly disclosed”). Accordingly, none of the Manufacturers’ experts may opine that the

accused products do not meet the limitations identified in Exhibit A. Likewise, none of the

Manufacturers’ experts may now present any additional evidence in opposition to this motion

that would go beyond their Rule 26 Report. See, e.g. Dkt. No. 2555 (Case Management Order),

at 13-14. Given (a) that the Manufacturers cannot advance non-infringement arguments

4 On December 12, the Manufacturers filed an Opposition (Dkt. No. 1591) to Rambus’s Motion in limine no. 7 regarding undisputed and resolved claim limitations, a motion that raised issues substantially similar to those in the present motion. Based on that Opposition, the Manufacturers do not appear to dispute Rambus’s identification of the claim limitations that were not contested by the Manufacturers’ experts, with the possible exception of the “memory device” issue. The Manufacturers have since conceded that they will not present any new noninfringement issues based on the Court’s clarification of the “memory device” term. See Dkt. No. 2946 (Letter from M. Powers addressed to the Court, dated December 18, 2008)


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regarding the issues in this case without expert testimony, see Centricut, LLC v. ESAB Group,

Inc., 390 F.3d 1361, 1370 (Fed. Cir. 2004) (in a case involving complex technology, party cannot

satisfy its burden on infringement issue by offering evidence from non-expert witness where

opposing party has offered expert testimony), and (b) that Rambus proved the existence of the

undisputed limitations in the accused products through its expert, Robert Murphy, see Dkt. No.

2425, Ex. 7 (Murphy Opening Report Regarding Infringement), the failure of any of the

Manufacturers’ experts to rebut the infringement analysis of Rambus’s expert deprives the

manufacturers of any basis upon which to argue for the existence of a genuine issue of material

fact as to these claim limitations.5 .

B. The Manufacturers Are Precluded From Offering Evidence Or Argument Contesting Claim Limitations As To Which The Court Granted Summary Judgment

In rejecting the Manufacturers’ five non-infringement arguments identified above in

Section II, the Court disposed of the Manufacturer experts’ arguments pertaining to the claim

limitations identified in Exhibit B. Indeed, as already stated, the Manufacturers’ expert reports

raised only a subset of the same arguments presented to the Court in their opposition to

Rambus’s motion. See Section II, supra; see also, e.g., Tolliver Decl. Dkt. No. 2705, Ex. 7

(Hoffman 9/26/08 Report) at page i (Table of Contents section VI, listing non-infringement

arguments corresponding to a subset of the Manufacturers’ non-infringement arguments

presented to the Court in opposition to summary judgment).

It is undisputed that the Manufacturers’ cannot offer evidence or argument contrary to the

Court’s SJ Order. And they also cannot offer evidence or argument as to non-infringement that

is not supported by a proper expert disclosure. Accordingly, partial summary judgment is

5 Indeed, the Court granted summary judgment of infringement with respect to claim 16 of Patent No. 6,266,285, which contains a number of claim limitations not disputed by the Manufacturers in their summary judgment opposition or expert reports, such as “section of memory,” “plurality of memory cells,” and “receiving an external clock signal” limitations. See 11/24/08 Order at 9 (reciting claim 16).


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appropriate because the Manufacturers will not be able marshal evidence to contest the claim

limitations identified in Exhibit B at trial.

The Manufacturers’ December 12 opposition (Dkt. No. 1591) to Rambus’s substantially

similar motion in limine appears to raise only a single dispute with Rambus’s identification of

the infringement issues that have been resolved by the Court on summary judgment.6 The

Manufacturers assert that “Rambus is attempting to limit the evidence and/or argument that the

Manufacturers may present with respect to noninfringement argument Nos. 7 and 9.” See

Opposition to MIL No. 7, Dkt. No. 1591, at 4. That dispute, however, relates to the scope of the

arguments that the Manufacturers may present as presented in Rambus’s MIL No. 11 and not as

to whether the corresponding claim limitations remain at issue. Rambus’s MIL No. 7 and the

present motion clearly state that the Manufacturers’ non-infringement arguments nos. 7 and 9,7

relating to whether an external clock signal governs read/write operations, remain at issue and

the attached Exhibits reflect the same.

C. There Are A Limited Number Of Claim Limitations As To Which The Manufacturers Will Be Able To Properly Offer Evidence And Argument

In light of the foregoing, there are only a handful of claim limitations as to which the

Manufacturers may offer evidence and/or argument to support their defense of non-infringement

consistent with the Court’s rulings and their expert disclosures. Those limitations are identified

in bold-faced type in Exhibit C. The only non-infringement arguments relating to those

limitations disclosed in the Manufacturers’ expert reports are those that correspond to arguments

6 This motion for summary judgment differs slightly from Rambus’s prior motion in limine in that the current motion interprets the Court’s SJ Order as resolving all issues relating to the variable latency limitations, not just the variable latency limitation at issue in claim 16 of the ’285 Patent. The Manufacturers’ December 29, 2008 letter now have admitted that all variable latency limitations are subject to the Court’s SJ Order. See Dkt. No. 3003. 7 The Manufacturers’ argument No. 7 is that “[t]he accused products do not output data (for read operations) as a result of a rising or falling edge transition of an external clock,” and No. 9 is that “[t]he accused products do not receive an external clock signal which governs the timing of read and write operations.”


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numbered 5, 6, 7, and 9 of the Manufacturers’ opposition brief to Rambus’s infringement

summary judgment motion, and are as follows:

• (5) Write operations performed by the accused products do not have a known

timing relationship with respect to an external clock;

• (6) Read operations performed by the accused products do not have a known

timing relationship with respect to an external clock;

• (7) The accused products do not output data (for read operations) as a result of a

rising or falling edge transition of an external clock; and

• (9) The accused products do not receive an external clock signal which governs

the timing of read and write operations.8

It appears that the Manufacturers do not disagree with this list of disputed issues, because

their December 29, 2008, letter to the Court listed the same issues as being subject to dispute.

(See 12/29/08 Ltr from Cherensky, Dkt. No. 3003).

In order to streamline the case and reduce the number of disputes before the jury, and in

order to avoid burdening the jury with extraneous issues on which there would be no evidence to

support a verdict in the Manufacturers’ favor in any event, Rambus respectfully requests that the

Court enter an order of partial summary judgment of infringement as to the claim limitations

highlighted in Exhibits A and B to Rambus’s motion, such that the Manufacturers may dispute

infringement only as to the claim limitations identified in bold-faced type in Exhibit C.

D. In View of Nanya’s Refusal to Stipulate as to Claim 16 of the ‘285 Patent and Nanya DDR3 Per the Court’s November 24 Order, Rambus Also Moves for Summary Judgment of Infringement of Claim 16 of the ‘285 Patent by Nanya DDR3

As the Court noted in its summary judgment order, Rambus did not yet possess a Nanya

DDR3 datasheet when it moved for summary judgment under the Court’s Markman-related 8 The Manufacturers’ argument no. 10 regarding variable latency is not included as a non-infringement argument given the Manufacturers’ admission that such limitations are covered by the Court’s SJ Order and therefore not subject to dispute at trial. See n.6, supra.


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summary judgment deadline. For that reason, the Court found Rambus had not met its burden of

proof with respect to Nanya’s DDR3 part’s infringement of claim 16 of the ‘285 patent. Nanya’s

DDR3 datasheet has since become available, and Mr. Murphy opined as to infringement of

Nanya’s DDR3 part in his expert report. See Expert Report of Robert Murphy (Body), attached

as Exh. 7 to Raz Decl. at Dkt. No. 2425, 334 Case, Paragraphs 205-209, 217, 221; excerpt from

Exhibit S to Expert Report of Robert Murphy (Claim Chart for ‘285 Patent Claim 16) attached as

Tolliver Decl. Ex. 2; excerpt from Exhibit V to Expert Report of Robert Murphy (Nanya DDR3

Datasheet) attached as Tolliver Decl. Ex. 3. Nanya has raised no substantive argument as to why

its DDR3 part would not infringe claim 16 of the ‘285 patent in light of the Court’s November

24, 2008 ruling, and the limitations in that claim were not among those identified by the

Manufacturers in their December 29, 2008 letter as remaining in dispute.

Pursuant to the Court’s order that “the Court anticipates that Nanya and Rambus can

reach a stipulation with respect to Nanya’s DDR3 SDRAM,” Rambus has attempted to negotiate

a stipulation of infringement with respect to Nanya DDR3 so that infringement of claim 16 of the

‘285 patent by that part does not need to be presented to the jury. Nanya, however, declined

Rambus’s request to stipulate that its DDR3 products infringe this claims for the same reasons as

both the other Manufacturers’ DDR3 parts and Nanya’s own DDR2 parts. See Tolliver Decl. Ex.

4.

Given that the parties are unable to obtain agreement, Rambus moves for summary

judgment of infringement of claim 16 of the ‘285 patent by Nanya’s DDR3, on the basis of Mr.

Murphy’s analysis of the Nanya DDR3 datasheet that was not in Rambus’s possession at the

time of the motion for summary judgment briefing, the Manufacturers’ failure to raise any

remaining disputed limitations that would impact claim 16 of the ‘285 patent, and the reasoning

of the Court’s November 24, 2008 summary judgment order. Rambus submits that there can be

no genuine dispute that Nanya’s DDR3 infringes claim 16 of the ‘285 patent, for the same


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reasons that the Court found infringement of that claim in view of the other Manufacturers’

DDR3 and Nanya’s DDR2.

V. CONCLUSION

Based on the foregoing, Rambus respectfully requests that the Court issue an order of

partial summary judgment of infringement as to the claim limitations highlighted in Exhibits A

and B to Rambus’s motion, such that the Manufacturers may only argue infringement as to the

claim limitations identified in bold-faced type in Exhibit C.

Dated: January 13, 2009

Respectfully submitted,

MUNGER, TOLLES & OLSON LLP

SIDLEY AUSTIN LLP

MCKOOL SMITH

/s/ Pierre J. Hubert Pierre J. Hubert Attorneys for Rambus Inc.


3148 A

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