Case: 12-1677

Document: 89

Page: 1

Filed: 04/01/2013

IN THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT RAMBUS INC., Appellant, v. INTERNATIONAL TRADE COMMISSION, Appellee, and GARMIN INTERNATIONAL, INC., LSI CORPORATION, SEAGATE TECHNOLOGY LLC, STMICROELECTRONICS N.V., STMICROELECTRONICS INC., CISCO SYSTEMS, INC., HGST, INC., and HEWLETTPACKARD COMPANY, Intervenors. REPLY IN SUPPORT OF APPELLANT RAMBUS INC.S MOTION FOR A 45-DAY EXTENSION OF TIME TO FILE ITS OPENING BRIEF Intervenors STMicroelectronics N.V. and STMicroelectronics Inc. No. 12-1677

(STMicro) urge this Court to deny Rambuss request for an extension to file its opening brief in this case on two grounds: (1) that an extension will not, as Rambus contends, promote a settlement between the parties; and (2) that Rambus is actually pursuing the extension to gain a tactical advantage in other litigation. Neither argument has merit.

Case: 12-1677

Document: 89

Page: 2

Filed: 04/01/2013

On the first point, Rambus is serious about settling this case with all of the Intervenors. Rambus seeks an extension of the briefing schedule in the hopes that settlement can be reached before Rambus, the Intervenors, and the International Trade Commission (which has consented to Rambuss extension request) are put to the considerable effort and expense of litigating this appeal. Rambuss good faith is evidenced by the fact that, while this appeal has been pending, Rambus was able reach a settlement with Intervenor LSI Corporation, which resulted in the stipulated dismissal of multiple parties. See Stipulated Partial Dismissal (Dkt. #82).1 Rambus hopes to achieve a mutually agreeable settlement with STMicro as well, and respectfully suggests that the timeline the Mediation Officer has put in place to accommodate further discussions be allowed to play itself out before Rambus is required to file its opening brief. Respectfully, if there is doubt about this issue, Rambus suggests that the motion be referred to the Mediation Officer for decision. As for the second point, the notion that Rambus is seeking an extension in this case to gain a tactical advantage over STMicro in other litigation between the parties in the Northern District of California, STMicro Opp. 4, is demonstrably incorrect. STMicro has never proposed, nor sought Rambuss consent to, any

The settlement resulted in the stipulated dismissal of HGST, Inc. and HewlettPackard Company, which were parties to the appeal only because they were customers of LSI and their products incorporated LSI products that Rambus alleged infringe one or more of the asserted patents. 2

Case: 12-1677

Document: 89

Page: 3

Filed: 04/01/2013

modification of the district courts scheduling order in the Northern District of California action since the order was entered on February 15, 2013. Rambus represents, however, that if its requested 45-day extension of the briefing schedule is granted in this case, Rambus wouldif STMicro actually requested itjointly request that the district court enter a commensurate extension of the deadlines in the Northern District of California action. It cannot be said that Rambus is not interested in slowing down all litigation with STMicro so the parties can resolve their disputes, STMicro Opp. 4, when Rambus is offering to do just that. STMicro points to the Joint Case Management Statement in the Northern District of California action as evidence that Rambus has made a decision to aggressively litigate that action that is inconsistent with Rambuss expressed intent to reach a global settlement agreement. It should be noted, however, that LSI was also a party to the Northern District of California action; Rambus took the same position with respect to LSI regarding the scheduling of that case; and yet Rambus was able to reach a settlement with LSI. The Joint Case Management Statement, moreover, was filed on December 13, 2012, see Decl. of S. Pak, Ex. 1 at 11well over a month before the Circuit Mediation Office sent its January 29, 2013, letter to the parties indicating that this case had been selected for inclusion in the Courts mandatory Appellate Mediation Program. Rambuss position in the Joint Case Management Statement is no reflection on its current intent with regard to settlement.

Case: 12-1677

Document: 89

Page: 4

Filed: 04/01/2013

STMicros purported concern that it would be disadvantaged by an extension in this appeal because litigation is proceeding apace in the Northern District of California action is also belied by its prior statements to counsel. Indeed, STMicro has clearly expressed its position that it would not be appropriate for Rambus to seek to slow down the Northern District of California action on the basis of any extension of the schedule in this case. When Rambus sought

STMicros consent to Rambuss first request for an extension of time in this appeal, STMicro responded: [O]ur primary concern is the scheduling of the trial on spoliation issues in California. I understand our clients are seeking a May trial date, whereas Rambus would like the trial scheduled for August. If we agree to allow a 60-day extension for Rambus to respond in the ITC action now before the CAFC, we do not want Rambus to then argue that a later trial is warranted in California due to the schedule for the appeal. In other words, if Rambus is going to rely in California on delay that might result from our agreeing to a briefing extension at the CAFC, then we are likely to oppose the extension. If Rambus assures us that it will not attempt to do so, then we likely can agree to the proposed extension and will file a non-opposition. Decl. of M. Pattillo, Ex. 1 at 1 (emphasis added). STMicros purported concerns in its opposition cannot be reconciled with its past statements. Finally, it is also telling that, while STMicro asserts that Rambus will achieve a tactical advantage in the Northern District of California action if its request for an extension in this appeal is granted, STMicro nowhere asserts what possible advantage Rambus could obtain. STMicros primary reason for opposing Rambuss extension request is completely unsupported by any example of 4

Case: 12-1677

Document: 89

Page: 5

Filed: 04/01/2013

prejudice that STMicro would suffer. That is because STMicro will suffer no harm from a 45-day extension to the briefing schedule in this appeal. For the foregoing reasons and those in its opening motion, Rambus respectfully requests a 45-day extension of time to file its opening brief, to and including May 23, 2013. March 30, 2013 Respectfully submitted, /s/ Jeffrey A. Lamken Jeffrey A. Lamken Counsel of Record MOLOLAMKEN LLP The Watergate, Suite 660 600 New Hampshire Avenue, N.W. Washington, D.C. 20037 (202) 556-2000 (telephone) (202) 556-2001 (facsimile) jlamken@mololamken.com Counsel for Appellant Rambus Inc.

Case: 12-1677

Document: 89

Page: 6

Filed: 04/01/2013

IN THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT RAMBUS INC., Appellant, v. INTERNATIONAL TRADE COMMISSION, Appellee, and GARMIN INTERNATIONAL, INC., LSI CORPORATION, SEAGATE TECHNOLOGY LLC, STMICROELECTRONICS N.V., STMICROELECTRONICS INC., CISCO SYSTEMS, INC., HGST, INC., and HEWLETTPACKARD COMPANY, Intervenors. DECLARATION OF MICHAEL G. PATTILLO, JR. IN SUPPORT OF APPELLANT RAMBUS INC.S REPLY IN SUPPORT OF ITS MOTION FOR A 45-DAY EXTENSION OF TIME TO FILE ITS OPENING BRIEF I, Michael G. Pattillo, Jr., hereby declare: 1. I am a partner in the law firm MoloLamken LLP, and counsel No. 2012-1677

for Appellant Rambus Inc. I am over the age of 18 and have personal knowledge of the matters set forth herein.

Case: 12-1677

Document: 89

Page: 7

Filed: 04/01/2013

2.

I submit this declaration in support of Appellant Rambus Inc.s

Reply in Support of Its Motion for a 45-Day Extension of Time To File Its Opening Brief. 3. I represent that the document attached as Exhibit 1 is a true and

correct copy of an email exchange between me and Thomas Pease, counsel for Intervenors STMicroelectronics N.V. and STMicroelectronics Inc. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on: March 30, 2013, in Washington, D.C. /s/ Michael G. Pattillo, Jr. Michael G. Pattillo, Jr. MOLOLAMKEN LLP The Watergate, Suite 660 600 New Hampshire Avenue, N.W. Washington, D.C. 20037 (202) 556-2000 (telephone) (202) 556-2001 (facsimile) mpattillo@mololamken.com Counsel for Appellant Rambus Inc.

Case: 12-1677

Document: 89

Page: 8

Filed: 04/01/2013

Exhibit 1

Case: 12-1677 Pattillo, Michael

From: Sent: To: Cc: Subject:

Document: 89

Page: 9

Filed: 04/01/2013

Pattillo, Michael Thursday, December 20, 2012 8:43 AM 'Thomas Pease' Peter Klivans; Robert Becher RE: Follow up

Tom, Rambusconfirmsthat,ifyoufileanoticeofnonoppositiontoourextensionmotionintheFederalCircuit,Rambuswill notarguethatyournonoppositiontotheextensionisareasonwhythespoliationtrialintheN.D.Cal.shouldoccurata laterdate. Sincerely, Mike

From: Thomas Pease [mailto:thomaspease@quinnemanuel.com] Sent: Wednesday, December 19, 2012 8:40 PM To: Pattillo, Michael Cc: Peter Klivans; Robert Becher Subject: RE: Follow up

Hi,Mike, Ifyourclientneedsadditionalclarityastothebasisfortherequest,Ivedonesomediggingandcanreportthatour primaryconcernistheschedulingofthetrialonspoliationissuesinCalifornia.Iunderstandourclientsareseekinga Maytrialdate,whereasRambuswouldlikethetrialscheduledforAugust.Ifweagreetoallowa60dayextensionfor RambustorespondintheITCactionnowbeforetheCAFC,wedonotwantRambustothenarguethatalatertrialis warrantedinCaliforniaduetotheschedulefortheappeal.Inotherwords,ifRambusisgoingtorelyinCaliforniaon delaythatmightresultfromouragreeingtoabriefingextensionattheCAFC,thenwearelikelytoopposethe extension.IfRambusassuresusthatitwillnotattempttodoso,thenwelikelycanagreetotheproposedextensionand willfileanonopposition. Hopefullythisclarifiesourposition. Best, Tom

ThomasD.Pease

| quinn emanuel urquhart & sullivan, llp

51MadisonAve.,22ndFloor NewYork,NY10010 Direct:(212)8497223 MainFax:(212)8497100 Email:thomaspease@quinnemanuel.com Web:www.quinnemanuel.com

From: Pattillo, Michael [mailto:mpattillo@mololamken.com] Sent: Wednesday, December 19, 2012 4:15 PM To: Thomas Pease
1

Case: 12-1677
Cc: Peter Klivans; Robert Becher Subject: RE: Follow up

Document: 89

Page: 10

Filed: 04/01/2013

Thanksfortheresponse,Tom.Iwillgetintouchwithmyclientandgetbacktoyou.
From: Thomas Pease [mailto:thomaspease@quinnemanuel.com] Sent: Wednesday, December 19, 2012 4:12 PM To: Pattillo, Michael Cc: Peter Klivans; Robert Becher Subject: RE: Follow up

Hi,Mike, Sorry,ImeanttocallyoubacklastnightbutendeduponalongunplannedconferencecallwithaclientinAsia. WhatIwastryingtosayisthatourclientswereonthefenceaboutthelengthoftheextensionandaspartofthat analysiswereconcernedthatRambusmightarguethatbynotopposingitsrequestforanextensionintheFedCir,we weresomehowtacitlyadmittingthatRambusshouldbeentitledtowhateverextensionitmightseekintheCalifornia districtcourtcase.Toheadthatoff,IsuggestedthatImightbeabletogetauthoritytofilesomethingsayingwedonot oppose(ratherthanoutrightopposing)therequestforanextensionifyoucouldconfirminwritingthatRambuswould notrelyonthatfactintheCaliforniacase.Weare,inotherwords,notaskingRambustoagreethatitwillnotseek extensionsintheCaliforniaaction,butrathersimplytoconfirmthatitwillnotrelyonournonoppositionattheFederal CircuitasevidencethatsomefutureextensionitmightseekisappropriateintheCaliforniaaction.Pleaseletmeknowif youcanconfirmthat.Ifyouwanttodiscuss,Illbeintheofficethisafternoonandevening. Best, Tom

ThomasD.Pease

| quinn emanuel urquhart & sullivan, llp

51MadisonAve.,22ndFloor NewYork,NY10010 Direct:(212)8497223 MainFax:(212)8497100 Email:thomaspease@quinnemanuel.com Web:www.quinnemanuel.com

From: Pattillo, Michael [mailto:mpattillo@mololamken.com] Sent: Tuesday, December 18, 2012 5:57 PM To: Thomas Pease Subject: Follow up

Tom, JustleftyouaVM.Iwantedtoclarifythatwhatyouareweighingiswhetherornottofileaseparatenonobjection. ThatiswhatIhadunderstoodustobediscussing.Ifwhatyouareweighingiswhethertofileanopposition,thatis obviouslyadifferentmatter.Ifitisthelatter,pleaseletmeknowsowecanworkouthowtoavoidthat. Sincerely, Mike

2

Case: 12-1677
Michael G. Pattillo Jr. MoloLamken LLP 600 New Hampshire Ave., NW Washington, DC 20037 T: (202) 556-2012 F: (202) 536-2012/ (202) 556-2001 mpattillo@mololamken.com www.mololamken.com

Document: 89

Page: 11

Filed: 04/01/2013

This e-mail may contain attorney work product, privileged and/or confidential information. It is intended to be subject to the Attorney Client privilege. It is intended only for the original recipients, and no other person is authorized to receive it. Please do not copy or forward this e-mail without the consent of the author. If you have received this e-mail in error please delete it immediately from your system and contact the author. Molo Lamken LLP is a limited liability partnership formed under the laws of New York and the liability of its partners is limited accordingly. The names Molo Lamken and MoloLamken shall refer to Molo Lamken LLP.

This e-mail may contain attorney work product, privileged and/or confidential information. It is intended to be subject to the Attorney Client privilege. It is intended only for the original recipients, and no other person is authorized to receive it. Please do not copy or forward this e-mail without the consent of the author. If you have received this e-mail in error please delete it immediately from your system and contact the author. Molo Lamken LLP is a limited liability partnership formed under the laws of New York and the liability of its partners is limited accordingly. The names Molo Lamken and MoloLamken shall refer to Molo Lamken LLP.

Case: 12-1677

Document: 89

Page: 12

Filed: 04/01/2013

CERTIFICATE OF SERVICE I hereby certify that, on the 30th day of March, 2013, I electronically filed the foregoing Reply in Support of Appellant Rambus, Inc.s Motion for a 45-Day Extension of Time to File Its Opening Brief by using the CM/ECF system, which will send a notice of electronic filing to ECF registered participants.

/s/ Jeffrey A. Lamken Jeffrey A. Lamken Counsel for Appellant Rambus Inc.