2077

Case 5:05-cv-00334-RMW Document 2077 Filed 08/22/2008 Page 1 of 47
1 Gregory P. Stone (State Bar No. 078329) Rollin A. Ransom (State Bar No. 196126)
Steven M. Perry (State Bar No. 106154) SIDLEY AUSTIN LLP
2 Sean Eskovitz (State Bar No. 241877) 555 West Fifth Street, Suite 4000
MUNGER, TOLLES & OLSON LLP Los Angeles, California 90013-1010
3 355 South Grand Avenue, 35th Floor Telephone: (213) 896-6000
Los Angeles, California 90071-1560 Facsimile: (213) 896-6600
4 Telephone: (213) 683-9100 Email: rransom@sidley.com
Facsimile: (213) 687-3702
5 Email: gregory.stone@mto.com; Pierre J. Hubert (Pro Hac Vice)
steven.perry@mto.com; sean.eskovitz@mto.com Craig N. Tolliver (Pro Hac Vice)
6 McKOOL SMITH PC
Peter A. Detre (State Bar No. 182619) 300 West 6th Street, Suite 1700
7 Carolyn Hoecker Luedtke (State Bar No. 207976) Austin, Texas 78701
Jennifer L. Polse (State Bar No. 219202) Telephone: (512) 692-8700
8 MUNGER, TOLLES & OLSON LLP Facsimile: (512) 692-8744
560 Mission Street, 27th Floor Email: phubert@mckoolsmith.com;
9 San Francisco, California 94105 ctolliver@mckoolsmith.com
Telephone: (415) 512-4000
10 Facsimile: (415) 512-4077
Email: peter.detre@mto.com;
11 carolyn.luedtke@mto.com; jen.polse@mto.com
12 Attorneys for RAMBUS INC.
13 UNITED STATES DISTRICT COURT
14 NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
15
16 RAMBUS INC., CASE NO.: C 05-00334 RMW

17 Plaintiffs, RAMBUS’S CONSOLIDATED
OPPOSITION TO MOTIONS OF
18 vs. MANUFACTURERS FOR SEPARATE
TRIALS AND FOR A STAY
19 HYNIX SEMICONDUCTOR, INC., et al.,
20 Defendants.
Hearing: September 5, 2008
21 Time: 9:00 a.m.
Courtroom: 6
22 Judge: Hon. Ronald M. Whyte
23 CASE NO.: C 05-02298 RMW
RAMBUS INC.,
24
Plaintiff,
25 v.
26 SAMSUNG ELECTRONICS CO., LTD.,
et al.,
27 Defendants.
28
CONSOLIDATED OPPOSITION TO MOTIONS FOR
SEPARATE TRIALS AND FOR STAY
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 CASE NO.: C 06-00244 RMW

RAMBUS INC.,
2
Plaintiff,
3 v.
4 MICRON TECHNOLOGY, INC., et al.,
5 Defendants.
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SEPARATE TRIALS AND FOR STAY
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION .............................................................................................................. 1
4 II. THE OVERWHELMING COMMON ISSUES OF FACT, AND THE ABSENCE
OF ANY SERIOUS PREJUDICE TO THE MANUFACTURERS, MAKE
5 SEPARATE TRIALS UNJUSTIFIED HERE .................................................................... 3
6 A. Given the Overlapping Issues of Fact in these Cases, Separate Trials Are
Appropriate Only if a Joint Trial Would Cause Serious Prejudice to The
7 Manufacturers ......................................................................................................... 3
8 B. Efficiency and Judicial Economy Weigh Strongly in Favor of a Joint Trial

on Rambus’s Patent Claims Against the Manufacturers......................................... 5
9 1. The Key Factual Issues Raised by Rambus’s Patent Claims Are
10 Common to All Manufacturers ................................................................... 5
2. The Patent Validity Defenses Interposed by the Manufacturers
11 Raise Common Issues of Fact ..................................................................... 7
12 3. The Issue of Infringement Raises Common Issues About the Design
and Functionality of the Accused Products, and the Manufacturers
13 May Argue Any Individual Infringement Issues to the Jury....................... 8
14 a. The Manufacturers’ Own Expert Treated their Accused
Products Collectively When the Manufacturers Sought
15 Summary Judgment on Infringement Grounds ............................... 9
16 b. The Manufacturers Treated Their Accused Products as
Interchangeable During the Conduct Trial.................................... 11
17
c. The Individual Issues Invoked by the Manufacturers Do Not
18 Undercut the Efficiencies of a Joint Trial on Infringement .......... 12
19 4. Any Damages Determination Would Also Raise Substantial

Common Issues of Fact............................................................................. 13
20 C. Rambus Would be Unfairly Prejudiced by Separate Trials Against the
Manufacturer Defendants...................................................................................... 14
21
D. Any Risk of Prejudice from a Joint Trial Cannot Override the Benefits of
22 Consolidation Here ............................................................................................... 15
23 1. The Admission of the Hynix I Verdict in a Joint Trial Would Not
Unfairly Prejudice the Manufacturers, Because it is Properly
24 Admitted Against Them to Demonstrate Willfulness............................... 16
25 2. The Admission of Past Licensing Agreements Granted by Rambus
for the Claimed Inventions Would Not Unfairly Prejudice the
26 Manufacturers, Because They Bear Critically on Validity ....................... 18
27 3. The Manufacturers Have Identified No Admissible Conduct
Evidence that Would Cause Them Unfair Prejudice ................................ 20
28
-i- SEPARATE TRIALS AND FOR STAY
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 TABLE OF CONTENTS
(continued)
2 Page
3 4. Consolidation Would Not Unfairly Aid Rambus in its Trial Theme
or Strategy ................................................................................................. 23
4
E. A Joint Trial Would Pose No Undue Risk of Jury Confusion, Which Can
5 Be Avoided Through Careful Instruction ............................................................. 25
6 F. Nanya’s Joinder Challenge Is Meritless................................................................ 26
III. THE MANUFACTURERS HAVE FAILED TO ADVANCE ANY
7 PERSUASIVE JUSTIFICATION FOR IMPOSING A STAY AND FURTHER
8 DELAYING RAMBUS’S EFFORTS TO SECURE RELIEF ......................................... 28
A. A Stay Pending Any Hynix I Appeal Would Seriously Prejudice Rambus,
9 Without Promoting the Efficient Resolution of Rambus’s Patent Claims............ 29
10 1. Rambus Will Be Irreparably Harmed by a Stay Pending Appeal............. 29
11 2. The Manufacturers Will Not Suffer any Cognizable Hardship if a
Stay is Denied ........................................................................................... 30
12
3. A Stay Pending Any Appeal is Unlikely to Increase Efficiency
13 Materially, and Could Introduce Inefficiency........................................... 31
a. Any Hynix I Appeal is Unlikely to Resolve Significant
14 Issues in the Present Actions......................................................... 31
15 b. A Stay Would Itself Produce Inefficiencies.................................. 34
16 c. Proceeding as Scheduled May Increase the Likelihood of
Settlement...................................................................................... 34
17
B. A Stay Pending Reexamination by the PTO Would Unfairly Delay Relief
18 to Rambus Without Streamlining this Case .......................................................... 34
1. With Discovery Nearly Closed and Trial Imminent, Samsung’s and
19
Hynix’s Untimely Stay Requests Appear to be Little More Than an
20 Eleventh-Hour Delay Tactic ..................................................................... 35
2. A Stay Pending Reexamination Would Irreparably Harm and
21 Unduly Prejudice Rambus ........................................................................ 35
22 3. A Stay Pending Reexamination is Unlikely to Increase Efficiency
Materially, and Could Reduce Overall Efficiency.................................... 36
23
C. All the Applicable Factors Weigh Against Granting a Stay Pending
24 Resolution of Micron’s Unclean Hands Defense Pending in Delaware ............... 37
25 1. A Stay Pending Conclusion of the Delaware Proceedings Would
Irreparably Harm and Unduly Prejudice Rambus..................................... 37
26
2. A Stay Pending Resolution of Micron’s Unclean Hands Defense is
27 Unlikely to Increase Efficiency Materially, and Could Reduce
Overall Efficiency ..................................................................................... 37
28
- ii - SEPARATE TRIALS AND FOR STAY
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 TABLE OF CONTENTS
(continued)
2 Page
3 3. Micron Will Not Suffer Any Cognizable Hardship if a Stay is
Denied ....................................................................................................... 38
4
IV. CONCLUSION ................................................................................................................. 39
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- iii - SEPARATE TRIALS AND FOR STAY
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 TABLE OF AUTHORITIES
2
3 FEDERAL CASES
4 Adams v. NVR Homes, Inc.,

2000 WL 1859001 (D. Md. 2000) ............................................................................................ 4
5 Advanced Microtherm, Inc. v. Norman Wright Mech. Equip. Corp.,
2006 WL 753028 (N.D. Cal. Mar. 23, 2006)............................................................................ 3
6
Androphy v. Smith & Nephew, Inc.,
7 31 F. Supp. 2d 620 (N.D. Ill. 1998) ........................................................................................ 28
Arkie Lures, Inc. v. Gene Larew Tackle, Inc.,
8 119 F.3d 953 (Fed. Cir. 1997)................................................................................................. 19
9 Bates v. UPS,
204 F.R.D. 404 (N.D. Cal. 2001) .............................................................................................. 4
10 Clinton v. Jones,
520 U.S. 681 (1997) .................................................................................................... 28, 34, 38
11
CMAX, Inc. v. Hall,
12 300 F.2d 265 (9th Cir. 1962)................................................................................................... 28
Cooper v. Blue Bell,
13 1987 WL 15395 (N.D. Ill. Aug. 4, 1987)................................................................................ 18
14 Corrigan v. Methodist Hosp.,
160 F.R.D. 55 (E.D. Pa. 1995) .............................................................................. 14, 15, 21, 22
15 De Anda v. City of Long Beach,
7 F.3d 1418 (9th Cir. 1993)....................................................................................................... 4
16
Demaco Corp. v. F. Von Langsdorff Licensing Ltd.,
17 851 F.2d 1387 (Fed. Cir. 1988)............................................................................................... 19
DIRECTV, Inc. v. Barrett,
18 220 F.R.D. 630 (D. Kan. 2004)............................................................................................... 27
19 Finisar Corp. v. DirecTV Group, Inc.,
523 F.3d 1323 (Fed. Cir. 2008)............................................................................................... 17
20 Golden Trade S.R.L. v. Lee Apparel Co.,
1997 WL 373715 (S.D.N.Y. June 25, 1997) ...................................................................... 5, 25
21
Grospitz v. Abbott,
22 2005 WL 3078594 (W.D. Mo. Nov. 14 2005)........................................................................ 21
Henderson v. Prado,
23 2007 WL 1229330 (N.D. Cal. April 24, 2007) ......................................................................... 3
24 Hynix Semicon., Inc. v. Rambus Inc.,
2008 WL 2951341 (N.D. Cal. July 25, 2008) ........................................................................ 33
25 In re GPAC, Inc.,
57 F.3d 1533 (Fed Cir. 1995) (en banc)............................................................................ 19, 20
26
In re Monon Tel.,
27 218 F.R.D. 614 (N.D. Ind. 2003) ...................................................................................... 26, 27
28
OPPOSITION TO MOTIONS FOR SEPARATE TRIALS
- iv - AND FOR STAY
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
(Continued)
2
3 In re Seagate Tech., LLC,

497 F.3d 1360 (Fed. Cir. 2007) (en banc)............................................................................... 17
4 Kos Pharm. Inc. v. Barr Labs., Inc.,
218 F.R.D. 387 (S.D.N.Y. 2003) ............................................................................................ 14
5
Landis v. North American Co.,
6 299 U.S. 248 (1936) .................................................................................................... 28, 30, 39
Lockyer v. Mirant Corp.,
7 398 F.3d 1098 (9th Cir. 2005)............................................................................... 29, 30, 31, 39
8 Magnovox Co. v. APF Electronics, Inc.,
496 F. Supp. 29 (D. Ill. 1980) ................................................................................................. 27
9 Matter of Rhone-Poulenc Rorer Inc.,
51 F.3d 1293 (7th Cir. 1995)................................................................................................... 13
10
Minco, Inc. v. Combustion Engineering, Inc.,
11 95 F.3d 1109 (Fed. Cir. 1996)................................................................................................. 13
MyMail, Ltd. v. America Online, Inc.,
12 223 F.R.D. 455 (E.D. Tex. 2004)............................................................................................ 28
13 NTP, Inc. v. Research In Motion, Ltd.,
397 F. Supp. 2d 785 (E.D. Va. 2005)...................................................................................... 36
14 Paxonet Commc’ns, Inc. v. Transwitch Corp.,
303 F. Supp. 2d 1027 (N.D. Cal. 2003) .................................................................................. 15
15
Pfizer, Inc. v. Teva Pharm, USA, Inc.,
16 460 F. Supp. 2d 659 (D.N.J. 2006) ......................................................................................... 19
PowerOasis, Inc. v. T-Mobile, USA, Inc.
17 522 F.3d 1299 (Fed. Cir. 2008)............................................................................................... 19
18 Quintanilla v. City of Downey,
84 F.3d 353 (9th Cir. 1996)..................................................................................................... 21
19 Rambus Inc. v. FTC,
522 F.3d 456 (D.C. Cir. 2008) ................................................................................................ 33
20
Rite-Hite Corp v. Kelley Co., Inc.,
21 56 F.3d 1538 (Fed. Cir. 1995)................................................................................................. 13
Rohm & Haas Co. v. Mobil Oil Corp.,
22 525 F. Supp. 1298 (D. Del. 1981) ............................................................................................. 5
23 Sandisk Corp. v. Phison Elecs. Corp.,
538 F. Supp. 2d 1060 (W.D. Wisc. 2008)........................................................................... 8, 12
24 Sierra Club v. City and County of Honolulu,
2007 WL 2694489 (D. Haw. Sept. 11, 2007) ......................................................................... 30
25
Slip Track Sys., Inc. v. Metal Lite, Inc.,
26 159 F.3d 1337 (Fed. Cir. 1998) .............................................................................................. 35
Sprint Commc’ns Co. v. Theglobe.com, Inc.,
27 233 F.R.D. 615 (D. Kan. 2006)............................................................................................... 27
28
-v- AND FOR STAY
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
(Continued)
2
3 Stoddard v. Ling-Temco-Vought, Inc.,

513 F. Supp. 314 (C.D. Cal. 1980)............................................................................................ 4
4 Storus Corp. v. Aroa Marketing, Inc.,
2008 WL 540785 (N.D. Cal. Feb. 25, 2008) ......................................................................... 35
5
Telemac Corp. v. Teledigital, Inc.,
6 450 F. Supp. 2d 1107 (N.D. Cal. 2006) .................................................................................. 34
Tri-R Sys. v. Friedman & Son,
7 94 F.R.D. 726 (D. Colo. 1982)............................................................................................ 4, 21
8 United States v. Hernandez,
85 F.3d 1023 (2d Cir. 1996).................................................................................................... 21
9 United States v. Pofahl,
990 F.2d 1456 (5th Cir. 1993)................................................................................................. 21
10
United States v. Shell Oil, Co.,
11 1992 WL 144296 (C.D. Cal. Jan.16, 1992) .............................................................................. 3
Zafiro v. United States,
12 506 U.S. 534 (1993) ................................................................................................................ 20
13
FEDERAL STATUTES
14
35 U.S.C. § 103 ............................................................................................................................. 18
15
16 FEDERAL RULES
17 Fed.R.Evid. 803(6)........................................................................................................................ 18
18 Federal Rule of Civil Procedure 20......................................................................................... 26, 27
Federal Rule of Civil Procedure 42........................................................................................ passim
19
20
TREATISES AND OTHER AUTHORITIES
21
22 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d §
2388 (2008) ............................................................................................................................... 4
23 Manual for Complex Litigation § 33.23 (4th ed. 2008) ............................................................ 5, 13
24 3 Moore’s Federal Practice § 20.05[1] (2007)............................................................................. 27
8 Moore’s Federal Practice § 40.20[4][a] (3d ed. 2008) ............................................................... 4
25
Weinstein’s Federal Evidence § 403.04[1][c] (2008) ................................................................... 20
26
27
28
- vi - AND FOR STAY
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 I. INTRODUCTION
2 The Manufacturers’ motions represent a further attempt to run out the clock by delaying
3 the date when Rambus is able to present its claims to the jury and secure relief. This Court
4 should try the claims against the Manufacturers together, and without the unjustified delay that
5 would flow from the requested stays.
6 No Severance: Many of the Manufacturers now seeking separate trials have previously
7 acknowledged that the claims and defenses in this case are well suited to joint trial and resolution.
8 A joint trial, Micron has noted, “will be highly efficient for the Court because it will avoid
9 multiple trials on overlapping issues.” Micron’s Statement re: Deconsolidation (Docket No. 537,
10 Case No. CV-00-20905) at 4. Because “[t]he parties have retained numerous common experts, all
11 of which would have to testify again,” consolidated trials “result in a streamlined presentation of
12 evidence.” Id.; see also Samsung’s Mot. to Consolidate and Reset the Oct. 17, 2005 Unclean
13 Hands Trial (Docket No. 62, Case No. 05-0334) at 4 (“there are common questions of law and
14 fact which readily qualify the unclean hands issue for consolidation”); Hynix’s Resp. to
15 Samsung’s Mot. to Consolidate (Docket No. 1327, Case No. CV-00-20905) at 3 (similar).
16 Now, on the eve of what would be the second consolidated trial in the Rambus litigation
17 before this Court, the Manufacturers insist that these same efficiency and fairness concerns
18 weight against consolidation. Never mind that the claims asserted by Rambus against Hynix,
19 Micron, Nanya, and Samsung center on the same patents. Never mind that the claims would
20 require the jury to learn the same technologies, and to consider a common set of DRAM features.
21 And never mind that the key factual issues posed by infringement and the validity defenses
22 interposed by the Manufacturers are substantially overlapping. The efficiencies of a joint trial,
23 the Manufacturers argue, would be “limited” compared to “[s]eparate, short trials” (Nanya Mot.
24 8, 10), and would be “prejudicial and unfair” and “detrimentally confusing to the jury” (Samsung
25 Mot. 7, 6). 1
26
27 1
Unless otherwise noted, citations to "Nanya Mot.," "Micron Mot.," "Samsung Mot.," and
28 "Hynix Mot." refer to each Manufacturer's respective motion for severance and for a stay.
-1- SEPARATE TRIALS AND FOR STAY
CV CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 These arguments lack merit. The history of this litigation, including the positions jointly
2 taken by the Manufacturers at the summary judgment stage, confirm that Rambus’s patent claims
3 and their defenses are dominated by common and interwoven issues. That there may be nuances
4 and permutations does not undercut the broad sweep of these common issues or the efficiencies to
5 be gained by trying them together. While the Manufacturers maintain that their defenses would
6 be prejudiced by consolidation, their specific prejudice concerns are either misplaced or
7 overwrought. Samsung, Nanya, and Micron all complain that they would not have to contend
8 with the Hynix I verdict in an individual trial, but the verdict is admissible against each of them
9 for the limited purpose of showing willfulness. Micron and Nanya complain that past Hynix and
10 Samsung licenses would be unfairly introduced against them, but they go directly to validity and,
11 in the case of 2000 licenses, to determination of a reasonable royalty. Nor would a joint a trial
12 create an undue risk of jury confusion; as the mixed special verdict form in the conduct trial well
13 illustrates, this Court can guard against jury confusion and ensure disciplined deliberation by
14 issuing appropriate jury instructions.
15 No Stay: In addition to seeking separate trials, three of the Manufacturers—Hynix,
16 Micron, and Samsung—request a stay of the 05-06 cases on various grounds. These
17 Manufacturers maintain that a stay pending any appeal in Hynix I, reexaminations requested by
18 Samsung before the PTO, and the Delaware court’s long-pending unclean hands ruling would
19 promote efficient resolution of issues in the 05-06 cases. Micron Mot. 16-20; Hynix Mot. 5-10;
20 Samsung Mot. 10-14. But as with their severance motions, the requested stays would serve only
21 to delay further relief to Rambus, without any accompanying gains in efficiency or fairness to the
22 parties. The prejudice to Rambus from any stay would be serious. Having already waited several
23 years for its claims to proceed to trial, Rambus would now need to indefinitely postpone its
24 prospects for relief against the Manufacturers. It would be forced to suffer the delay and
25 attendant irreparable harm notwithstanding the fact that it stands ready and able to make its case
26 to a jury, and to obtain redress for nearly a decade of infringement. If, as Rambus expects, it were
27 ultimately to prevail, the effect of a stay would be to give the Manufacturers a compulsory license
28 over a protracted period of time. Indeed, the requested stay would likely delay these proceedings
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 past the expiration of the Farmwald/Horowitz patents, and thus deprive Rambus of the
2 opportunity to obtain injunctive relief.
3 At the same time, a stay would produce little in the way of efficiencies. The essential
4 premise of the Manufacturers’ argument is that the issues presented in the other proceedings
5 overlap with those presented here, such that a stay might either obviate the need to try the case or
6 materially shape the issues for trial. That premise is demonstrably wrong. The amount of overlap
7 among the proceedings is limited, and the outcomes posited by the Manufacturers hinge on
8 unsupported speculation about their likelihood of succeeding where they have failed before. Nor
9 have the Manufacturers shown that a denial of a stay would cause them harm beyond the (remote)
10 possibility of additional litigation efforts, which are inadequate as a matter of law.
11 II. THE OVERWHELMING COMMON ISSUES OF FACT, AND THE ABSENCE OF
ANY SERIOUS PREJUDICE TO THE MANUFACTURERS, MAKE SEPARATE
12 TRIALS UNJUSTIFIED HERE
13 A. Given the Overlapping Issues of Fact in these Cases, Separate Trials Are
Appropriate Only if a Joint Trial Would Cause Serious Prejudice to The
14 Manufacturers
15 This Court previously coordinated these cases for purposes of the January 2008 conduct
16 trial (see 6/27/07 Further Case Mgmt. Order, Docket No. 222, Case No. 05-0334, at 2-3, 5), as
17 well as for pretrial proceedings on patent claims (id. at 5). The issue now is whether the Court
18 should now order separate patent trials for one or more of the Manufacturers, a question it
19 reserved in the controlling case management order. Id. (“The Court determined that it would be
20 premature to decide whether all the patent claims in all three of the 05-06 Cases should be
21 coordinated for purposes of trial.”). As many of the Manufacturers acknowledge, that issue is
22 governed by Federal Rule of Civil Procedure 42. E.g., Samsung Mot. 4-5; Micron Mot. 7. Rule
23 42(a) empowers the court, among other things, to “join for hearing or trial any or all matters at
24 issue” where “actions before the court involve a common question of law or fact.” Conversely,
25 Rule 42(b) provides that the Court may order a separate trial of claims or counterclaims “[f]or
26 convenience, to avoid prejudice, or to expedite and economize.”
27 “‘The decision whether to conduct separate trials under this rule is committed to the trial
28 court's discretion.’” Henderson v. Prado, 2007 WL 1229330, at *1 (N.D. Cal. April 24, 2007)
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 (citation omitted). Because ordering separate trials is essentially the “flip side” of consolidation,
2 see De Anda v. City of Long Beach, 7 F.3d 1418, 1421 (9th Cir. 1993), the Court must consider
3 the same factors regardless of whether it treats the matter as one of severance or consolidation.
4 The touchstone of the analysis is efficiency. See United States v. Shell Oil, Co., 1992 WL
5 144296, *11 (C.D. Cal. Jan.16, 1992) (“The principal goal of Rule 42(b) is to promote efficient
6 judicial administration.”) (citing Stoddard v. Ling-Temco-Vought, Inc., 513 F. Supp. 314 (C.D.
7 Cal. 1980)). In determining whether a consolidated trial or separate trials would be more
8 efficient, a court may consider “the interests of convenience, judicial economy, and reducing risk
9 of confusion, whether separate trials would prejudice any party, and whether the issues are clearly
10 separable.” Advanced Microtherm, Inc. v. Norman Wright Mech. Equip. Corp., 2006 WL
11 753028, *2 (N.D. Cal. Mar. 23, 2006); accord Bates v. UPS, 204 F.R.D. 440, 448 (N.D. Cal.
12 2001) (factors include “avoiding prejudice, separability of the issues, convenience, judicial
13 economy, and reducing risk of confusion”); 9A Charles Alan Wright & Arthur R. Miller, Federal
14 Practice and Procedure: Civil 3d § 2388, at 114-19 (2008).
15 When, as in this instance, claims raise overlapping issues of fact, “the mere possibility of
16 some prejudice does not justify separate trials where such prejudice is not substantial and there
17 are strong countervailing considerations of economy.” Tri-R Sys. v. Friedman & Son, Inc., 94
18 F.R.D. 726, 727 (D. Colo. 1982). That is part of the reason “[s]eparate trials are not the normal
19 course of events, and a single trial will usually be more expedient and efficient.” 8 Moore’s
20 Federal Practice § 40.20[4][a] (3d ed. 2008). Indeed, this Court has already determined that its
21 trial schedule “proceeds on the expectation of holding a consolidated trial” and that a
22 Manufacturer should not move for separate trials unless it shows “good cause for severance.”
23 July 16, 2008 Patent Trial Sched. Order (Docket No. 1963, Case No. 05-0334) at 3 (emphasis
24 added). Thus the Manufacturers, as the “part[ies] seeking separate trials . . . ha[ve] the burden of
25 proving that separation of the cases is necessary.” Federal Practice & Procedure: Civil 3d §
26 2388, at 124; see also Adams v. NVR Homes, Inc., 2000 WL 1859001 at *2 (D. Md. 2000) (“The
27 burden is upon the party moving for separate trials to overcome the general principle that a single
28 trial tends to lessen the delay, expense and inconvenience to all parties.”).
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 B. Efficiency and Judicial Economy Weigh Strongly in Favor of a Joint Trial on

Rambus’s Patent Claims Against the Manufacturers
2
3 It makes good sense to consolidate patent claims that involve the same technologies and
4 are being asserted against substantially identical products, even if they are manufactured by
5 different defendants. “Consolidation often is warranted where more than one action involving or
6 related to a patent is pending before the same court.” Manual for Complex Litigation § 33.23. at
7 794 (4th ed. 2008); see also Golden Trade S.R.L. v. Lee Apparel Co., 1997 WL 373715 (S.D.N.Y.
8 June 25, 1997) (consolidating for trial claims against three defendants who allegedly infringed the
9 same patent); SanDisk Corp. v. Phison Elecs. Corp., 538 F. Supp. 2d 1060, 1068 (W.D. Wisc.
10 2008) (consolidating for trial infringement claims against dozens of defendants, involving seven
11 patents related to flash memory technology); cf. Rohm & Haas Co. v. Mobil Oil Corp., 525 F.
12 Supp. 1298, 1309-10 (D. Del. 1981) (consolidating two patent infringement suits involving six
13 different patents with overlapping claims). The main benefit is efficient adjudication of common
14 issues. Rather than trying substantially the same issues to different juries—here, four different
15 juries—a consolidated trial would permit a single jury to hear all the evidence and decide the
16 factual issues joined by Rambus’s claims and the Manufacturers’ defenses.
17 1. The Key Factual Issues Raised by Rambus’s Patent Claims Are

Common to All Manufacturers
18
19 Rambus’s claims against the Manufacturers are directed to the same patented features
20 found in various products of the Manufacturers. That means that the same technologies are at
21 issue as to each Manufacturer as well. And, while there are minor differences in the patent claims
22 asserted, those claims are directed in each instance to the same features and raise essentially the
23 same questions of patent law, with the same defenses being asserted against them. Trying the
24 actions jointly would allow the Court to resolve multiple common issues of fact in a streamlined
25 proceeding:
26 Common technological features: Rambus and the Manufacturers have both consistently
27 litigated the 05-06 cases on the understanding that they all turn on whether the features embodied
28 in a family of DRAM devices produced by the Manufacturers infringe the Rambus patents in suit.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 As framed by the parties’ pleadings and motions, and as presented at the conduct trial, this
2 litigation focuses on the following patented DRAM features that are embodied in the
3 Manufacturers’ products:
4 ● Programmable (Or Variable) Burst Length
5 ● Programmable Read Latency
6 ● Auto Precharge
7 ● Dual-Edge Clocking
8 ● On-Chip Delay Locked Loop (“DLL”)
9 ● Programmable Write Latency
10 E.g., Special Verdict (Docket No. 1651, Case No. 05-0334) at 1; Mfrs.’ Joint Mot. for Summ. J.
11 of (1) non-infringement of the Farmwald Patents, or (2) Invalidity of the Farmwald Patents
12 (Docket No. 513, Case No. 05-0334). These features were systematically adopted by JEDEC into
13 its design standards, with SDRAM incorporating Programmable Burst Length, Programmable
14 Read Latency, and Auto-Precharge; the next generation device, DDR, adding Dual-Edge
15 Clocking and On-Chip DLL; and DDR2 and follow-on generations incorporating Programmable
16 Write Latency. Conduct Tr. 497, 527-528 (Rhoden). In addition, Rambus has asserted
17 infringement claims based upon the Write Data Masking feature as incorporated in DDR2 and
18 later products. E.g., Mfrs.’ Joint Mot. for Summ. J. of Non-Infringement of the Ware Patents-in-
19 Suit, or (2) Invalidity of Ware Patents-in-Suit (Docket No. 504, Case No. 05-0334).
20 Common Accused Product Types: Each of the Manufacturers builds and sells multiple
21 products that incorporate the memory features at issue and are based upon JEDEC-standard
22 designs. The accused Samsung products include SDRAM and its graphics-focused derivative,
23 SGRAM, DDR, gDDR and GDDR, DDR2, gDDR2 and GDDR2, DDR3 and GDDR3, GDDR4,
24 and GDDR 5. See Declaration of Keith R. D. Hamilton in Support of Consolidated Opp’n in
25 Support of Motions for Separate Trial and for a Stay (“Hamilton Decl.”), Exh A {Rambus’s
26 Disclosure of Asserted Claims and Final Infringement Contentions) (hereinafter, “Rambus Final
27 Contentions”). The accused Hynix products include DDR2, gDDR2, GDDR2, DDR3, GDDR3,
28 GDDR4, and GDDR5. Id. The accused Micron products include DDR2, DDR3, and GDDR3.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 Id. And the accused Nanya products include SDRAM, DDR, DDR2, and DDR3. Id.
2 The overlap in features is complete and the overlap in accused product types, not
3 surprisingly, is quite substantial. Two of the accused product types are made by all of the
4 Manufacturers. At least one additional accused product types is made by three of the four
5 Manufacturers. With the exception of certain early Samsung products (SGRAM, Mobile
6 SDRAM, and GDDR), the remaining accused products are manufactured by at least two of the
7 Manufacturers. Rambus Final Contentions 5-6.2
8 Common Patents and Claims: The Court has already completed claim construction of the
9 patents in suit with the exception of one outstanding issue regarding the Ware patents (7/10/08
10 Claim Constr. Order for the Farmwald/Horowitz Patents, Docket No. 1960, Case No. 05-0334;
11 7/25/08 Claim Constr. Order for Ware Patents, Docket No. 1985, Case No. 05-0334), and there is
12 virtually complete overlap in the patent claims that Rambus is asserting against the
13 Manufacturers. All but a handful of the 25 claims set forth by Rambus in its Final Infringement
14 Contentions is being asserted against at least one of the accused industry standard products
15 manufactured by each of the Manufacturers. To identify just one example, Rambus is asserting
16 claims from the ’120, ’8,020, ’916, and ’863 patents—which include claims covering two
17 additional features incorporated into DDR3 and later JEDEC-standard chips—against the DDR3
18 products produced by each of the Manufacturers. Rambus Final Contentions 2.
19 2. The Patent Validity Defenses Interposed by the Manufacturers Raise
Common Issues of Fact
20
21 As illustrated by their joint invalidity contentions, the Manufacturers intend to raise the
22 same invalidity defenses to Rambus’s patent claims. The evidence offered by the Manufacturers
23 in support of these defenses, including their expert testimony, is likely to overlap substantially, if
24
2
25 It is unclear at this point whether the January 2009 patent trial will include Rambus’s patent
infringement claims as to memory controllers. See Samsung’s Mot. to Strike Portions of
26 Rambus’s Final Infringement Contentions and Memo. in Supp, Docket No. 2049, Case No. 05-
0334. Rambus has offered to drop the controllers from the January 2009 trial, and to have its
27 claims regarding controllers adjudicated in a future trial; Samsung has yet to respond. See Reply
in Supp. of Rambus’s Mot. to Compel Samsung to Prod. Disco. re (1) Sales of Accused Prods.,
28 and (2) Memory Controllers, Docket No. 2074, Case No. 05-0334.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 not completely.
2 First, the Manufacturers assert uniform prior art references that, in their view, anticipate or
3 render obvious each of the patent claims asserted against them. See Hamilton Decl., Exh B
4 (Mfrs.’ Joint Prelim. Invalidity Contentions at 4). Second, the Manufacturers contend, in unison,
5 that the patent claims asserted against them were anticipated by specific products and prior
6 inventions, including the iAPX device, certain Intel-produced DRAM products, and numerous
7 other memory products. Id. at 7-13. Third, they maintain that all of the claims asserted by
8 Rambus against them “are invalid because certain claim elements are not supported by adequate
9 written description or enabled.” Id. at 14. Fourth, they contend that specific claims asserted
10 against them are invalid on indefiniteness grounds. Id. at 17-25. 3
11 The Manufacturers’ own contentions demonstrate, then, that their challenges to the
12 validity of the Rambus patents in suit are duplicative. Indeed, Nanya specifically concedes the
13 point, noting that “there will be overlap on the invalidity issues for the common patents.” Nanya
14 Mot. 9. This underscores the suitability of trying Rambus’s patent claims against the
15 Manufacturers in the 05-06 cases together. See SanDisk Corp., 538 F. Supp. 2d at 1068 (citing,
16 as an example of “the overlap between the cases,” the fact that “[r]elated issues will arise about
17 the workings of defendants’ products in both cases, and defenses of invalidity and patent misuse
18 are likely to rest on issues common to both cases”).
19 3. The Issue of Infringement Raises Common Issues About the Design
and Functionality of the Accused Products, and the Manufacturers
20 May Argue Any Individual Infringement Issues to the Jury
21 The Manufacturers do not seriously dispute that the overlapping patents, claims, and
22 technologies weigh in favor of a joint trial here. Nevertheless, they maintain that infringement
23
3
24 Nanya initially asserted individual written description and indefiniteness defenses against the
’120, ’8,020, ’916, and ’863 Patents. Mfrs.’ Joint Prelim. Invalidity Contentions 16-17, 25-26.
25 Rambus subsequently asserted those patents against the other Manufacturers in its counterclaims
in reply and Supplemental Disclosure of Asserted Claims and Preliminary Infringement
26 Contentions, and each of the Manufacturers has now incorporated Nanya’s invalidity contentions
against these four patents into their own. Hamilton Decl., Exh C (Mfrs.’ Supp. Joint Prelim.
27 Invalidity Contention at 1). The Manufacturers also asserted additional defenses in their
supplemental contentions based upon petitions that Samsung filed with the PTO seeking
28 reexamination of the ’916, ’120, ’184, ’863, ’5,020, ’295, ’195, and ’8,020 Patents. Id. at 4.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 can only be determined on a manufacturer-by-manufacturer basis, and that these issues undercut
2 the efficiencies of a joint trial. Nanya contends that “Rambus’s proof against the defendants will
3 necessarily involve separate evidence of distinct acts of infringement.” Nanya Mot. 3. Because,
4 Nanya reasons, Rambus’s patent claims “will require proof of independent infringing acts,” the
5 issue of infringement ought to be tried separately. Id. at 9. Micron hints at the same point,
6 insisting that “[t]he circumstances of each of the four Manufacturers differ fundamentally.”
7 Samsung Mot. 2.
8 This argument lacks merit. The Manufacturers have consistently treated the family of
9 accused DRAM products collectively for purposes of defending this litigation. The
10 acknowledged similarities among the Manufacturers’ accused products—which, by their own
11 account, are based upon the same JEDEC standards and the use of the same patented features—
12 ensure that the issue of infringement will entail common issues of design and functionality. In
13 contrast, the individual issues identified by the Manufacturers, which relate to their fabrication
14 and sales conduct, are unlikely to be key points of dispute at the trial. In any event, to the extent
15 the trial evidence raises any specific issues regarding the “making, using, selling, offering for sale
16 or importing [of infringing products]” (Nanya Mot. 9), the Manufacturers are free to address and
17 highlight these issues in argument.
18 a. The Manufacturers’ Own Expert Treated their Accused
Products Collectively When the Manufacturers Sought
19 Summary Judgment on Infringement Grounds
20 In seeking summary judgment on noninfringement and opposing Rambus’s motion for
21 summary judgment on literal infringement, the Manufacturers jointly relied on expert declarations
22 submitted by Joseph McAlexander. These declarations emphasized that the infringement analysis
23 here turns on a common set of features used in the accused products.
24 McAlexander expressly recognized that the Manufacturers’ accused products were based
25 upon JEDEC-standard designs and evolved so as to incorporate each of the patented DRAM
26 features at issue in the 05-06 cases. McAlexander averred that “the Samsung, Micron, Hynix, and
27 Nanya accused products have a common set of features,” even if “they have different circuit
28 designs.” Decl. of Joseph McAlexander in Supp. of the Mfrs.’ Farmwald and Ware Mots. for
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 Summ. J. (“Oct. 2007 McAlexander Decl.”), Docket No. 514, Case No. 05-0334, at ¶ 69
2 (emphasis added). “This is unsurprising,” McAlexander explained, “since the accused products,
3 other than the RLDRAM II products, are compliant with or based on evolutionary JEDEC
4 standards.” Id. (emphasis added).
5 McAlexander noted, for example, that the JEDEC SDRAM standard “has a programmable
6 mode register to define such functions as burst length, sequential or interleave operation, and
7 CAS latency.” Oct. 2007 McAlexander Decl. ¶ 26. DDR was, McAlexander explained, “an
8 evolutionary extension of the SDRAM standard,” possessing “many of the same features as its
9 predecessor SDRAM standard,” but “using both edges of the clock” and “requir[ing] an on-chip
10 delay locked loop (DLL) circuit.” Id. ¶ 27. Following on this design were, in sequence, DDR2
11 and DDR3, both of which “contain[] virtually all of the same features found in its predecessor”
12 but constituted an “evolutionary improvement” by virtue of “higher clock frequency.” Id. ¶¶ 28-
13 29. Using JEDEC standards as reference points for the Manufacturers’ product features,
14 McAlexander cited the fact that the products were “JEDEC compliant” as evidence they were
15 purportedly different from the architecture disclosed in the Patents-in-Suit. Id. ¶¶ 87-88, 101-02.
16 Consistent with his recognition that the accused products follow JEDEC specifications,
17 McAlexander did not undertake the individual or manufacturer-by-manufacturer analysis that the
18 Manufacturers now insist is necessary. Rather, when addressing whether the Manufacturers’
19 accused products infringed Rambus’s patents, McAlexander “refer[ed] to the Manufacturers’
20 representative products collectively as the ‘Accused Products,’” and proceeded to analyze them
21 according to JEDEC-standard product. Decl. of Joseph McAlexander in Supp. of Mfrs.’ Joint
22 Opp’n to Rambus’s Mot. for Summ. J. (“Nov. McAlexander Decl.”), Docket No. 662, Case No.
23 05-0334, at ¶ 14; Oct. 2007 McAlexander Decl. at ¶ 69 (referring to the accused products
24 “collectively as Manufacturers’ Accused Products”). Thus, for example, in asserting that certain
25 of the Rambus claims in suit did not read on the features of the Manufacturers’ DDR2 devices,
26 McAlexander referred to “[t]he DDR2 Accused Products” as a group rather than breaking them
27 out for individual assessment. E.g., Nov. McAlexander Decl. ¶¶ 21, 23, 24, 80, 89, 90, 92. Nor
28 did McAlexander single out products built by the Manufacturers when he extrapolated his
- 10 - SEPARATE TRIALS AND FOR STAY
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 observations about DDR2 to follow-on generations of JEDEC-compliant designs that

2 incorporated the same features. Instead, he again addressed them as a group: “for the same
3 reasons I explained above for the DDR2 Accused Products, the SDR SDRAM, Mobile SDR,
4 DDR SDRAM, Mobile DDR, GDDR, DDR2 Modules, gDDR2, and GDDR3 representative
5 Accused Products, as well as JEDEC-standard DDR3 and GDDR4 SDRAMs, do not [satisfy a
6 specific patent claim limitation].” Id. ¶ 26; see also id. ¶¶ 46, 62, 81, 96, 106, 113, 114, 131, 146,
7 153 (all similar). Indeed, throughout his declaration, he consistently grouped the entire family of
8 JEDEC-standard designs possessing the pertinent characteristics as a unitary whole, referring to
9 them simply as “the Accused Products.” E.g., id. ¶¶ 47, 63, 82, 97, 107, 132, 147, 154.
10 b. The Manufacturers Treated Their Accused Products as
Interchangeable During the Conduct Trial
11
12 During the conduct trial, the Manufacturers made no attempt to draw distinctions among
13 their DRAM products. To the contrary, their core factual theory—which the jury rejected—was
14 that Rambus had engaged in anticompetitive conduct by obtaining patent protection on features
15 incorporated into JEDEC standards, and that the Manufacturers consequently became “locked in”
16 to the continued use of these Rambus–designed features when they began manufacturing products
17 that complied with the JEDEC standards. The express premise of this argument is that the
18 Manufacturers’ accused products incorporated the common set of DRAM features standardized
19 by JEDEC and covered by Rambus patents.
20 The Manufacturers argued that each of them designed their DRAM devices based upon
21 the JEDEC standards. Hynix, they argued, “manufacturers these JEDEC standard DRAMs”
22 (Conduct Tr. 235 (opening statement)), and Nanya purportedly “was just relying on that JEDEC
23 process to create an open standard” (id. at 234). JEDEC was so central to their products that the
24 Manufacturers took the position that “[a]lthough JEDEC is not here today, it’s kind of a party in
25 many ways.” Id. at 232 (emphasis added). The Manufacturers also echoed McAlexander’s point
26 about the evolutionary nature of JEDEC-standard designs. Id. at 310-12. SDRAM, they noted,
27 incorporated programmable burst length, auto precharge, and CAS latency. Id. With their next
28 generation DRAM device, DDR, JEDEC integrated on-chip DLL and dual-edge clocking. Id.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 DDR2, they explained, “has these other technologies, and a bunch of other technologies as well,”
2 including write latency. Id.
3 During the conduct trial, the Manufacturers’ witnesses acknowledged, consistent with
4 their trial theme, that the JEDEC standards incorporated features for which Rambus held patents.
5 For example, the Manufacturers’ economist, Richard Gilbert, testified that by 1998-1999, “all of
6 the products that were being sold, DRAM products worldwide includ[ing] . . . predominantly the
7 SDRAM and DDR and DDR Plus products that embody Rambus technology.” Conduct Tr. 3529-
8 30 (emphasis added). Gilbert contended that this was the result of “standardization” and the
9 exclusion of “other technologies” that are “not acceptable alternatives if you want a JEDEC-
10 compliant DRAM.” Id. at 3529.
11 c. The Individual Issues Invoked by the Manufacturers Do Not
Undercut the Efficiencies of a Joint Trial on Infringement
12
13 Given that the Manufacturers’ accused products share the common features that lie at the
14 heart of Rambus’s patent claims against them, the efficiency of a joint trial on this issue is both
15 clear and substantial. The most complex and challenging issues facing the jury are likely to be
16 the technologies used in DRAM memory devices, the scope and limitations of Rambus’s patent
17 claims, and whether those claims read on the features embodied in the manufacturers’ products.
18 It is on those very issues that Rambus’s case and the Manufacturers’ defense case overlap. Cf.
19 SanDisk Corp., 538 F. Supp. 2d at 1068 (ordering consolidation in part because “[t]he cases
20 involve allegations of infringement against the same products, share prosecution history and prior
21 art and involve at least one prominent claim term”).
22 The Manufacturers have not demonstrated that the purportedly individual infringement
23 issues they identify predominate over these common technology and design issues. Both
24 common sense and the parties’ past experience litigating infringement and related matters show
25 that defendant-specific issues such as manufacturing, importation, and sales conduct (see Nanya
26 Mot. 9), are unlikely to be a focus of the trial. While Rambus must prove that each of the
27 Manufacturers engaged in acts of infringement, the Manufacturers’ summary judgment briefing
28 suggests that their arguments against infringement will be technical in nature; they will argue that
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 the features of their JEDEC-compliant products are not covered by the Rambus patents. See
2 Mfrs.’ Joint Opp’n to Rambus Mot. for Summ. J. of Literal Infringement (Docket No. 661, Case
3 No. 05-0334) at 3-21. None of the Manufacturers has suggested they intend to mount a
4 substantial defense beyond the design and functionality of their products. And even if one of the
5 Manufacturers sought to mount such a defense—say, by disputing the fact that it sold a particular
6 JEDEC-standard device—it could simply offer supporting evidence and make its points in
7 argument.
8 By contrast, the “[s]eparate, short trials” proposed by the Manufacturers (Nanya Mot. 9)
9 would needlessly waste judicial resources and the parties’ time and effort. See Manual for
10 Complex Litigation § 33.23, at 794 (“Piecemeal litigation in patent cases is generally
11 disfavored”). The upshot of the Manufacturers’ position is that the Court should convene
12 multiple juries to consider common, complex issues—technology, functionality, design, the
13 meaning of patent claims—so that the defendants can give individualized presentations on
14 undefined, but undoubtedly straightforward factual issues. That would be the antithesis of the
15 “expedit[ion] and econom[y]” contemplated by Rule 42. As Judge Posner has explained, courts
16 considering severance issues “must carve at the joint,” and “must not divide issues between
17 separate trials in such a way that the same issue is reexamined by different juries.” Matter of
18 Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1302-03 (7th Cir. 1995) (bifurcation). Even when, as
19 in this case, the ultimate question of infringement is distinct as to each of the Manufacturers, the
20 substantial overlap in the key underlying factual issues weighs heavily in favor of trial before a
21 single jury.
22 4. Any Damages Determination Would Also Raise Substantial Common
Issues of Fact
23
24 A joint trial would also permit an efficient determination of the damages resulting from
25 the Manufacturers’ infringement. As in the Hynix I trial, any damages award here would turn on
26 a hypothetical negotiation between Rambus and the Manufacturers. See Rite-Hite Corp. v. Kelley
27 Co., Inc., 56 F.3d 1538, 1554 (Fed. Cir. 1995). The relevant timeframe for the negotiation would
28 be “the time infringement commenced.” Minco, Inc. v. Combustion Eng’g, Inc., 95 F.3d 1109,
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 1119 (Fed. Cir. 1996); see also 7 Chisum on Patents, 20.03[3][a] (2007). Rambus expects that,
2 based upon the evidence adduced at trial, the damages issues in this case will ultimately reduce to
3 two common dates for hypothetical negotiations.
4 As to Samsung, the date of the hypothetical negotiation date for any reasonable royalty
5 would be 2005, the date Samsung’s license was terminated. Cf. Samsung Mot. 7. As to Hynix,
6 Nanya, and Micron, the hypothetical negotiation date should be no later than January 2001, as
7 that was when the first of the patents in suit issued (see U.S. Patent No. 6,182,184). The SDRAM
8 and DDR devices produced by Hynix, Nanya, and Micron (which include the same accused
9 features incorporated in each company’s later-generation DDR products) therefore began to
10 infringe at that point, making it the relevant timeframe for the hypothetical negotiation. See Rite-
11 Hite, 56 F.3d at 1554; Minco, 95 F.3d at 1119. 4
12 At most, then, the damages award for all four Manufacturers are likely to center on at
13 most two hypothetical negotiation dates: January 2001 and 2005. Because of these common
14 dates, Rambus and each of the Manufacturers would likely offer overlapping evidence on the
15 appropriate royalty for their respective infringements. To be sure, there would be defendant-
16 specific nuances and differences (e.g., in the range of accused products), but there are clearly
17 efficiencies to be gained from a joint trial on damages.
18 C. Rambus Would be Unfairly Prejudiced by Separate Trials Against the
Manufacturer Defendants
19
Holding separate trials on Rambus’s patent claims not only would waste judicial resources
20
and undercut administrative efficiency, but also would be unfairly prejudicial to Rambus. See
21
Corrigan v. Methodist Hosp., 160 F.R.D. 55, 58 (E.D. Pa. 1995) (refusing to order a separate trial
22
4
23 Certain of the Manufacturers have suggested that the different generations of products accused
of infringement in these actions (as distinct from one of the other Rambus Related Actions)
24 should affect either the hypothetical negotiation date or the outcome of such a hypothetical
negotiation. However, this argument ignores the fact that the features that have been accused of
25 infringement cut across the Manufacturers’ various products, extending back to SDRAM and
DDR. Indeed, as discussed in greater detail above, the Manufacturers assert that virtually all of
26 the products at issue comply with JEDEC standards (which standards incorporate various of the
accused features). Each of the Manufacturers thus began infringing at essentially the same time –
27 when they began making unlicensed products, ostensibly in compliance with a JEDEC standard,
that infringed the features covered by Rambus’s patents. The distinctions created by the
28 Manufacturers are therefore empty.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 under Rule 42(b) notwithstanding the risk of prejudice, because separate trials “would not
2 promote judicial economy” and the plaintiff “would be put to the cost of two separate trials, and
3 would suffer delay”). Because the main factual issues posed by Rambus’s claims against the
4 Manufacturers are common, “[e]ach lawsuit will require a jury to understand the same underlying
5 technology and the same [patent] claim terms in order to determine if the products at issue
6 infringe.” Paxonet Commc’ns, Inc. v. TranSwitch Corp., 303 F. Supp. 2d 1027, 1029 (N.D. Cal.
7 2003).
8 A joint trial of these common issues before a single jury would permit all the parties to
9 present their evidence and arguments, while minimizing the risk of inconsistent judgments.
10 Separate trials, on the other hand, would force Rambus to present what amounts to the same
11 infringement case four times to four separate juries. This would require Rambus to bear
12 burdensome and costly litigation without any overriding benefit to the Manufacturers (see
13 discussion infra). Cf. Kos Pharm., Inc. v. Barr Labs., Inc., 218 F.R.D. 387, 393 (S.D.N.Y. 2003)
14 (finding that “on balance, the delays, inconvenience and additional litigation costs attendant to
15 bifurcation in this case would be more prejudicial to [the plaintiff]”). What is more, separate
16 trials would accord the Manufacturers a litigation windfall, as it would permit them to engage in
17 arbitrage with the four judgments. Were the juries to reach contradictory or inconsistent results in
18 these largely duplicative proceedings, the Manufactures would be able to seize on the discrepancy
19 to challenge any adverse judgment. The better, and more fair, approach is to set these
20 substantially overlapping issues before a single fact-finder for resolution.
21 D. Any Risk of Prejudice from a Joint Trial Cannot Override the Benefits of
Consolidation Here
22
23 Because a joint trial would streamline adjudication of Rambus’s patent claims against the
24 Manufacturers, and because separate trials would prejudice Rambus, the Manufacturers must
25 identify serious and overriding sources of prejudice to them that would follow from a joint trial.
26 Cf. Corrigan, 160 F.R.D. at 56 (“Courts order separate trials only when ‘clearly necessary.’”)
27 (citation omitted). The severance motions all fall short of this standard.
28
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 The Manufacturers point to four main sources of prejudice, most of which are evidentiary:
2 introduction of the Hynix verdict; introduction of past licensing agreements involving Samsung
3 and Hynix; introduction of certain evidence introduced against Hynix in previous trials; and the
4 purported unfair advantage that a consolidated trial would give Rambus in advancing its trial
5 themes. These evidentiary objections are beside the point. In essence, the Manufacturers contend
6 that there should be no consolidated trial because the evidence they claim to be inadmissible will
7 become admissible as a result of consolidation. But Rule 42 does not amend or alter the Federal
8 Rules of Evidence. Manufacturers will be free to seek the exclusion of any evidence they
9 consider prejudicial through pretrial motions in limine. If the Manufacturers can meet the
10 standard for excluding prejudicial evidence, they would have nothing to fear from a joint trial.
11 In any event, the evidence the Manufacturers complain about poses no risk of unfair
12 prejudice. The evidence is properly admitted against each of them, even if for a limited purpose.
13 Even if the evidence were not admissible against the Manufacturers in separate trials—and it
14 would be—the spillover effect from such evidence would not be so prejudicial as to justify a
15 separate trial. Nor is there any merit to the Manufacturers’ suggestion that a joint trial would
16 permit Rambus to unfairly press a “David versus Goliath” theme or tar Manufacturers with the
17 conduct of others. Should Rambus choose to use this theme at the patent trial, it would be
18 supported by admissible evidence, and the Manufacturers are free to counter it with their own
19 arguments and themes.
20 1. The Admission of the Hynix I Verdict in a Joint Trial Would Not
Unfairly Prejudice the Manufacturers, Because it is Properly Admitted
21 Against Them to Demonstrate Willfulness
22 Samsung and Micron rely heavily upon the purported prejudice that would flow from
23 introducing the Hynix I verdict at the patent trial. Rambus, they argue, would seek at trial to
24 introduce the verdict to establish validity, infringement, and damages, even though “[t]he verdict
25 is inadmissible” against them. Micron Mot. 9; Samsung Mot. 6. This argument proceeds from a
26 flawed assumption about how Rambus intends to use the verdict, and therefore fails as a matter of
27 law.
28
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 Rambus does not intend to introduce the Hynix I patent verdict to establish either
2 infringement or validity. It does intend to seek admission of the verdict to show that the
3 Manufacturers willfully infringed the Rambus patents. But on that issue, the verdict is properly
4 admitted against each of the Manufacturers. Willfulness requires a showing “by clear and
5 convincing evidence that the infringer acted despite an objectively high likelihood that its actions
6 constituted infringement of a valid patent,” and that this risk “was either known or so obvious that
7 it should have been known to the accused infringer.” In re Seagate Tech., LLC, 497 F.3d 1360,
8 1371 (Fed. Cir. 2007) (en banc); accord Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323,
9 1338 (Fed. Cir. 2008) (explaining that “‘proof of willful infringement permitting enhanced
10 damages requires at least a showing of objective recklessness’”) (quoting Seagate). The verdict is
11 relevant to both the objective and subjective aspects of this willfulness inquiry.
12 The fact that a jury found the Rambus patents valid and that Hynix’s SDRAM and DDR
13 products infringed those patents goes directly to whether it was objectively likely that the accused
14 products in this case were infringing. The Hynix I case centered on certain of the same patents at
15 issue in this litigation. Compare Patent Verdict with Rambus Final Contentions 2. In light of the
16 admitted overlap between the products found to have infringed in Hynix I and the accused
17 products, the verdict created an objectively high risk that the Manufacturers were infringing
18 Rambus’s patents by manufacturing and distributing the accused products. Samsung and Nanya’s
19 DDR and SDRAM products are similar in all relevant respects to the adjudicated DDR and
20 SDRAM products in Hynix I, since they were all based upon the JEDEC standards for those
21 devices. See discussion supra at 9-12. The later generations of JEDEC-standard designs—e.g.,
22 DDR2 and DDR3—shared many of the same features with the adjudicated products, and simply
23 incorporated additional infringing features. Because the verdict adjudicated products with the
24 same features, it bears directly on whether the Manufacturers knew or should obviously have
25 known about the risk that the accused products were infringing. See Seagate, 497 F.3d at 1371.
26 Indeed, Hynix stipulated that the Hynix I verdict would include DDR2, gDDR2, GDDR3, and
27 GDDR3, as well as SDRAM and DDR. See Joint Pretrial Statement to Patent Trial (Docket No.
28 1033, Case No. 05-0334) at 6.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 There can be no question, then, that the Hynix I verdict is relevant to show that each of the
2 Manufacturers engaged in willful infringement. Cf. Cooper v. Blue Bell, Inc., 1987 WL 15395, at
3 *2 (N.D. Ill. Aug. 4, 1987) (finding, in an age discrimination case, that the judgment in a separate
4 discrimination case “may be admissible on the issue of defendant’s willfulness and terminating
5 [the plaintiff]”). Any risk of unfair prejudice (Samsung Mot. 6; Micron Mot. 9) can be effectively
6 reduced through a focused presentation of the verdict and jury instructions that make clear that
7 the verdict (1) does not address or dispose of the infringement issues before the jury, and (2) is
8 admissible for a specific and limited purpose.
9 The Manufacturers also seem to assume that the verdict is relevant to show damages, at
10 least as to Hynix. Samsung Mot. 6; Micron Mot. 9. But to the extent that the award is probative
11 of the damage to Rambus from the accused products in this case, it would be equally relevant
12 against all the Manufacturers, not just Hynix. As with the other Manufacturers, the Hynix
13 products accused here include products not adjudicated in Hynix I (i.e., GDDR4 and GDDR5).
14 2. The Admission of Past Licensing Agreements Granted by Rambus for
the Claimed Inventions Would Not Unfairly Prejudice the
15 Manufacturers, Because They Bear Critically on Validity
16 Micron and Nanya both contend that they would be unfairly prejudiced by the
17 introduction of past licensing agreements granted by Rambus to Hynix and Samsung. Micron
18 Mot. 9-10; Nanya Mot. 12. The assumption is that these licensing agreements would not be
19 admissible against Micron or Nanya in separate trials because they had not entered into similar
20 licensing agreements. Micron Mot. 9; see also Nanya Mot. 12 (“In a Nanya-only trial, evidence
21 purporting to show what Samsung thought would not be admissible.”). This assumption is
22 wrong, and the attendant prejudice concerns wholly illusory.
23 Micron focuses its prejudice theory on the 1995 licensing agreement between Rambus and
24 Hynix. Mot. 9. As the evidence at the conduct trial showed, this agreement included an “Other
25 DRAM Clause” that encompassed SDRAM and DDR. See Mfrs.’ Not. of Lodging of Transcript
26 of Yoo Testimony, 2/27/08, Ex. A (Docket No. 1365-2, Case No. 05-0334) at 126. In the same
27 time frame, Rambus entered into a similar license with Samsung that permitted Samsung to use
28 Rambus’s inventions in non-compatible DRAM. Conduct Tr. 3071-73 (Tate). These agreements
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 are admissible against each Manufacturer because they are relevant to rebut their anticipated
2 invalidity arguments. Rambus expects the Manufacturers to argue at trial that the patents in suit
3 are invalid, inter alia, on the ground that their written descriptions are inadequate—i.e., that a
4 person skilled in the art would not have concluded that Rambus “was in possession of the
5 [claimed] invention.” PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1306 (Fed. Cir.
6 2008). See Mfrs.’ Prelim. Contentions 15-17; Mfrs.’ Supp. Contentions 6-7. The prior licensing
7 agreements tend to refute this invalidity argument. They establish that Samsung and Hynix
8 believed that Rambus’s specification extended beyond RDRAM, and for that reason, Samsung
9 and Hynix sought licenses that were broader that RDRAM. Nor can the Manufacturers challenge
10 the admissibility of these licenses on reliability grounds, as they fall squarely within the hearsay
11 exception for business records. See Fed.R.Evid. 803(6).
12 Nanya’s motion appears to focus on Rambus’s 2000 license with Samsung, which
13 embraced “SDRAM/DDR.” Nanya Mot. 12. Rambus entered into similar licensing agreements
14 with Toshiba, Hitachi, Oki, NEC, Elpida, and Mitsubishi. Patent Tr. Exh. 5661. All of these
15 agreements are admissible against the Manufacturers to refute their anticipated defense that the
16 claimed inventions were obvious under 35 U.S.C. § 103. See, e.g., Mfrs.’ Prelim. Contentions 4-
17 5. Previous licenses are secondary considerations that furnish “objective evidence” of non-
18 obviousness. In re GPAC, Inc., 57 F.3d 1573, 1580 (Fed Cir. 1995) (en banc). As the Federal
19 Circuit has explained, “licensing action” may be “highly probative of the issue of
20 nonobviousness.” Arkie Lures, Inc. v. Gene Larew Tackle, Inc., 119 F.3d 953, 957 (Fed. Cir.
21 1997).
22 The weight to be given past licenses turns on the extent to which there is “a nexus
23 between the merits of the invention and the licenses of record.” GPAC, 57 F.3d at 1580 (citation
24 omitted). If the patentholder demonstrates such a nexus, the evidence may carry significant
25 weight. See Demaco Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392 (Fed. Cir.
26 1988). But even if the patentholder fails to demonstrate a nexus, the licensing evidence is still
27 relevant, though entitled to “only little weight.” GPAC, 57 F.2d at 1580; accord Pfizer Inc. v.
28 Teva Pharm. USA, Inc., 460 F. Supp. 2d 659, 665 (D. N.J. 2006).
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 Here, there is a clear nexus between the SDRAM/DDR licenses and the claimed
2 inventions at issue. First, the terms of the licenses themselves encompass the patent claims in
3 suit. Compare GPAC, 57 F.3d at 1580 (giving licensing evidence slight weight because the
4 patentee “did not establish which claim(s) of the patent the licensing program incorporates” and
5 therefore tended to show “that licensing of [the] invention arose out of recognition and
6 acceptance of the [claimed] significant matter”). Second, the value of the claimed inventions to
7 the licensees is underscored by related secondary consideration evidence, including the fact that
8 the inventions “address[ed] ‘long but unresolved needs.’” Id. As Rambus demonstrated at the
9 conduct trial, the claimed inventions revolutionized the DRAM market, enabling memory speed
10 that left others in the industry in “disbelief.” Trial Tr. 4208 (Horowitz).
11 In addition, these license agreements are admissible to aid the jury’s determination of a
12 reasonable royalty that would have been agreed upon in an arms’-length negotiation (see
13 discussion supra at 13-14), just as they were in the Hynix I trial. The rates these seven licensees
14 agreed to pay in 2000 are highly relevant to any consideration of the reasonable compensation
15 due Rambus for the Manufacturers’ infringement.
16 3. The Manufacturers Have Identified No Admissible Conduct Evidence
that Would Cause Them Unfair Prejudice
17
18 Micron, Samsung, and Nanya each argue that it would be prejudiced by evidence
19 pertaining to the conduct of other Manufacturers. But none of the Manufacturers has articulated
20 any reason why jurors would not be able to distinguish between evidence regarding a particular
21 Manufacturer and that pertaining to other Manufacturers. The evidence at issue consists of an
22 email in which Farhad Tabrizi of Hynix admitted that “all DDR memories are infringing” (Exh.
23 6523); an email in which Tabrizi vowed to “fight Rambus” (Ex. 6634); and a Hyundai (Hynix)
24 design proposal utilizing Rambus’s inventions (Exh. 5020). This Court had already admitted
25 these three exhibits during the conduct trial over the Manufacturers’ hearsay objections,
26 explaining, “this doesn’t even purport to say what Nanya or Micron believes.” Conduct Tr. 3966-
27 3966. 5 It requires no legal or technical expertise for jurors to understand that a statement by
28 5
This comment was made when Nanya objected to the admission of Exhibit 6523. With regard
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 Hynix is not a statement by a different Manufacturer. Moreover, each Manufacturer is free to

2 argue what inference the jurors should or should not draw from a particular piece of evidence.
3 Any potential prejudice can be forestalled with appropriate jury instructions. See, e.g., Grospitz
4 v. Abbott, 2005 WL 3078594, at *2 (W.D. Mo. Nov. 14 2005) (holding that limiting jury
5 instructions suffice to cure any potential prejudice from evidence of criminal records and drug
6 paraphernalia that relate to some, but not all, parties); see also Zafiro v. United States, 506 U.S.
7 534, 540 (1993) (“Juries are presumed to follow their instructions.”) (citation omitted).
8 The exhibits at issue are not of the type that would excite jurors’ emotions or compromise
9 their ability to exercise objective judgment. Cf. Weinstein’s Federal Evidence § 403.04[1][c]
10 (2008) (explaining that prejudice may result if evidence tends to trigger “intense human
11 reactions”); Quintanilla v. City of Downey, 84 F.3d 353, 356 (9th Cir. 1996) (bifurcating trial to
12 avoid prejudice from photographs and videotape of injuries inflicted by police dogs). Courts have
13 refused severance even when the purportedly prejudicial evidence is far more inflammatory than
14 the emails and design proposal at issue. See, e.g., United States v. Pofahl, 990 F.2d 1456, 1483
15 (5th Cir. 1993) (evidence of other defendants’ past crimes does not warrant separate trial for co-
16 defendant); United States v. Hernandez, 85 F.3d 1023, 1029 (2d Cir. 1996) (evidence that one
17 defendant tried to intimidate witness does not justify severance for co-defendant); Corrigan, 160
18 F.R.D. at 58 (potential prejudice from evidence of past medical malpractice lawsuits does not
19 warrant separate trials).
20 Even if, as Nanya insists (Nanya Mot. 14), the “fight Rambus” email and other evidence
21 of concerted conduct would not be admissible against it in a separate trial, the spillover effect of
22 the evidence would still not justify severance. Hynix could request limiting instructions, and any
23 residual prejudice would not, in any event, outweigh the benefits of consolidation. See Tri-R Sys.,
24 94 F.R.D. at 727 (noting that “the mere possibility of some prejudice does not justify separate
25 trials where such prejudice is not substantial and there are strong countervailing considerations of
26 economy.”). As one court has explained, “[i]f courts do not grant separate trials absent a showing
27
to Exhibit 6634, Nanya objected on hearsay grounds and was overruled. Conduct Tr. 754-754.
28 No objections were raised to the admission of Exhibit 5020. See id. at 1910-1910.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 of ‘compelling prejudice in criminal cases, even when there is a threat of spill-over, we see no
2 reason to set a higher test in civil cases.” Corrigan, 160 F.R.D. at 57.
3 If these exhibits were truly prejudicial, the Manufacturers would have objected during the
4 lengthy conduct trial or in an appropriate post-trial motion. But tellingly, they did not. The
5 Manufacturers’ motion for a new trial makes no mention of any prejudicial effect from the instant
6 exhibits. Nor did any Manufacturer object on prejudice grounds when the exhibits were admitted
7 into evidence at trial. See Conduct Tr. at 3966-3966, 754-754, 1910-1910. The Manufacturers’
8 past silence only confirms that the exhibits are not prejudicial, and even if they are, jury
9 instructions rather than wasteful separate trials is the proper remedy. Of course, in a consolidate
10 trial the Manufacturers would remain free to seek the exclusion of any prejudicial evidence
11 through motions in limine. 6
12 Nanya’s concerns about price-fixing evidence coming in against it (Nanya Mot. 8) are
13 misplaced. The Court has already excluded this evidence. See 2/3/08 Rulings on Mfrs.’ Mot. In
14 Limine (Docket No. 1172, Case No. 05-0334) at 2-3 (barring introduction of Samsung and Hynix
15 guilty pleas to impeach character, and directing Rambus to seek leave of court before raising
16 price-fixing to inquire about specific instances of conduct to impeach character or to rebut
17 procompetitive evidence); 3/9/06 Order on Patent Trial Motions In Limine (Docket No. 1790,
18 Case No. 00-20905) at 10-11 (noting that Rambus does not oppose barring mention of the DOJ
19 price-fixing investigation of Hynix, unless Hynix opens the door). Rambus does not intend to
20 seek its admission unless the Manufacturers open the door—e.g., by arguing that prices are set by
21 competition or that RDRAM’s alleged relative lack of success bears on the validity of Rambus’s
22 patents in some fashion.
23
24
25 6
For the same reason, Micron’s contention that it might not be able to introduce into evidence a
26 possible future judgment from Delaware is premature and speculative. Micron Mot. 11. At this
point, it is far from certain whether Micron or Rambus will prevail in Delaware, and even a
27 favorable result for Micron would not have a significant impact on the litigation before this Court.
See discussion infra at 36-38. In any dispute regarding the admissibility of a future Delaware
28 judgment can be resolved through motions in limine.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 4. Consolidation Would Not Unfairly Aid Rambus in its Trial Theme or

Strategy
2
3 In their new trial motion following the conduct trial, the Manufacturers made no mention
4 of what they now characterize as a “highly prejudicial” argument: Rambus’s purported “David v.
5 Goliath” theme. Nanya Mot. 13; Mot. 15. They did not assert that Rambus’s arguments
6 undermined the fairness of the trial, nor did they hint that consolidation unfairly aided this trial
7 theme. Any such argument would have been meritless, of course, for Rambus’s arguments about
8 the DRAM industry’s efforts to “fight Rambus” (e.g., Conduct Trial Tr. 326) were supported by
9 the evidence, responsive to the Manufacturers’ allegations of JEDEC misconduct, and open to
10 counter-argument by the Manufacturers. Now, however, the Manufacturers contend that the
11 dynamic of Rambus’s “David v. Goliath” theme and consolidation will threaten the fairness of the
12 patent trial. Consolidation, we are told, will give Rambus an unfair thematic advantage because it
13 will enable Rambus to “distort[] the jury’s relative perception of the parties.” Samsung Mot. 9.
14 This argument fails.
15 It is important to note that what the Manufacturers ultimately complain about here is not
16 consolidation, but argument—a “primary trial theme by Rambus” (Samsung Mot. 9 (formatting
17 omitted)) that highlights differences between the sizes and business models of Rambus and the
18 Manufacturers, and the Manufacturers’ efforts to contest Rambus’s intellectual property claims.
19 The argument is entirely proper. The factual distinctions between Rambus and the Manufacturers
20 are undisputed. And Rambus introduced evidence that DRAM manufacturers endeavored to
21 work collectively to “fight Rambus” on ownership of its claimed inventions. See discussion
22 supra at 20-21. That the Manufacturers may contest the inferences drawn by Rambus from this
23 evidence does not make the argument unfairly prejudicial. If Rambus advances a similar theme
24 in the patent trial, the Manufacturers can meet it with counterargument or a countervailing trial
25 theme as they see fit. This is what argument is for.
26 The issues of whether the Manufacturers were involved in concerted anti-Rambus efforts
27 and their motivations for doing so are relevant to this case, because they go directly to
28 willfulness, among other issues. If Rambus were able to persuade the jury that the Manufacturers
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 and others in the DRAM industry sought to drive the company out of business, that fact would
2 tend to show that the Manufacturers knew Rambus had meritorious patent claims on their
3 technologies. Given the relevance of the Manufacturers’ concerted action here, it is not unfairly
4 prejudicial for Rambus to make this argument in the “combined presence of all four
5 manufacturers.” Samsung Mot. 9.
6 Nanya maintains that consolidation would unfairly support this theme by equating it with
7 the other manufacturers working to challenge Rambus’s patent rights. Nanya Mot. 14. But
8 Rambus is entitled to argue the inference that the DRAM industry took a concerted stance against
9 Rambus, and Nanya is free to argue that “[t]here is not a shred of evidence” demonstrating its
10 involvement. Id. Nanya seeks to distance itself from the parties that it maintains were more
11 directly involved in the DRAM industry’s efforts to destroy Rambus. But to the extent that
12 Nanya intends to rely on the JEDEC standards, as it did in the conduct trial, it can hardly expect
13 to void Rambus’s evidence of a coordinated attack by the DRAM manufacturers. Were Nanya
14 (or any of the other Manufacturers) to seek cover from their infringement in the JEDEC
15 specifications, Rambus would argue that these specifications were the fruit of the Manufacturers’
16 joint efforts to usurp Rambus’s inventions.
17 Nanya’s suggestion that a consolidated trial would somehow enable Rambus to exploit a
18 bias against “Asian Companies” (Nanya Mot. 14) lacks any basis in fact or reason. First, Nanya
19 cites no evidence—no pleadings, no transcripts—to suggest that Rambus’s strategy focused on
20 the Manufacturers’ status as foreign corporations. Second, even if Rambus did seek to inculcate
21 xenophobia as part of its patent trial strategy, it could equally deploy that strategy against the
22 companies in individual trials. Third, Nanya has effective measures short of severance to guard
23 against this sort of prejudice. At the conduct trial, the Manufacturers took affirmative efforts to
24 prevent such bias by inquiring about it during voir dire. Conduct Tr. 41-42. They can do the
25 same here. If Nanya develops concrete grounds to believe Rambus might seek to bait or incite
26 bias against foreign corporations, it can seek to exclude the argument or request a jury instruction
27 on this issue. While Nanya asserts that “[i]t is fantasy to expect lay jurors to” parse evidence
28 against the Manufacturers” (Nanya Mot. 15), that is precisely what they did in issuing their
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 conduct trial verdict (see Special Verdict 2 (finding that Rambus possessed monopoly power in
2 the relevant markets, but engaged in no anticompetitive conduct); id. at 4 (finding that Rambus
3 specifically intended to monopolize the relevant markets, but did not engage in anticompetitive
4 conduct)).
5 Nanya’s conclusory assertion that its trial strategy would be compromised because of the
6 need to coordinate with co-defendants (Nanya Mot. 18-19) is likewise meritless. “Such strategic
7 conflicts—potentially present whenever there are multiple defendants ... do not ordinarily
8 constitute the kind of prejudice that impacts the fairness of the trial or otherwise weighs against
9 consolidation.” Golden Trade, 1997 WL 373715 at *2. If vague coordination problems among
10 counsel suffice to preclude a joint trial, no actions could ever be consolidated no matter how great
11 the gains in efficiency and convenience.
12 E. A Joint Trial Would Pose No Undue Risk of Jury Confusion, Which Can Be
Avoided Through Careful Instruction
13
The Manufacturers’ purported concerns about jury confusion are exaggerated. The
14
Manufacturers insist that a jury would be unable to parse the evidence against them on the issues
15
of infringement and damages. Samsung Mot. 6-7; Nanya Mot. 10. But neither of these issues is
16
so intractably complex that separate trials are required. “In reality, ... multiple defendant jury and
17
non-jury cases are routinely—and fairly—tried together without any actual prejudice to any party
18
concerned.” Golden Trade, 1997 WL 373715 at *2. The Manufacturers’ own positions make
19
clear that the infringement issue will be focused on a set of common features that sweep across
20
the Manufactures’ products. And based upon the trial evidence, the hypothetical negotiations
21
grounding the damages inquiry will likely coalesce around two dates. To the extent the
22
infringement or damages evidences raises nuances or permutations, the Court can ensure that the
23
jury deliberates in a disciplined and careful manner through its jury instructions.
24
Citing the number of patent claims and accused products, Samsung contends that “it
25
would be extremely difficult and confusing for a jury to maintain distinctions [among] the
26
manufacturers’ products.” See Samsung Mot. 7. But the Manufacturers have acknowledged both
27
in this case and the conduct trial that the accused products are based upon the JEDEC standards,
28
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 and include, in common, the features that Rambus claims infringe its patents. See discussion
2 infra at 8-12. They have made no showing that any technical variations among the
3 Manufacturers’ products will be material to either the infringement issues or their validity
4 defenses. Id. Samsung’s argument, taken on its terms, also proves too much. Even if the Court
5 were to order separate trials for each of the Manufacturers, there would still be a “large number of
6 accused products and [a] substantial number of asserted patent claims” against them. Samsung
7 Mot. 6. 7
8 Samsung and Nanya both argue that a consolidated trial would also risk jury confusion on
9 damages. Samsung Mot. 7; Nanya Mot. 10. The damages issues “will vary dramatically,” the
10 argument goes, because the differences among patents and accused products will produce
11 “different dates of hypothetical negotiation.” Nanya Mot. 10. As noted above, however, the trial
12 evidence will likely establish just two hypothetical negotiations dates, with substantial overlap
13 among the Manufacturers. See discussion supra at 13-14.
14 While the issue of patent damages may present some challenges for the jury, that is
15 inherent in all infringement trials involving multiple patents and a protracted period of
16 infringement. More importantly, the Court’s and parties’ experiences with juries in this case
17 confirms the ability of jurors to follow instructions and analyze the evidence, since the jury made
18 findings for and against both Rambus and the Manufacturers. See discussion supra at 2.
19 Individual damages issues such as the purported extraterritoriality argument referenced by Nanya
20 (Nanya Mot. 10), can be argued to the jury and identified in jury instructions where appropriate.
21 F. Nanya’s Joinder Challenge Is Meritless
22 Nanya’s contention that it was misjoined under Rule 20 is both irrelevant and wrong. It is
23 irrelevant because all that is required for consolidation is that the actions “involv[e] a common
24 question of law or fact.” See Fed. R. Civ. P. 42(a). Nanya’s misjoinder argument focuses on the
25 transactional relatedness requirement of Rule 20, but no such requirement exists for consolidation
26
7
27 Micron is likewise free to argue its licensing defense (Micron Mot. 12) to the jury, and any risk
of individual defenses being obscured in a joint trial can be cured through appropriate jury
28 instruction.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 under Rule 42(a). Even assuming that Nanya is misjoined—and it is not—Rambus’s

2 infringement claims should still be tried in a single consolidated proceeding. See In re Monon
3 Tel. Co., Inc., 218 F.R.D. 614, 616 (N.D. Ind. 2003) (“[E]ven if this Court were to find that one or
4 more of these Defendants were misjoined, the Plaintiff’s cases against these Defendants could be
5 consolidated under Fed. R. Civ. P. 42(a) based on the common questions of fact and law in the
6 interest of judicial economy and efficiency.”). The fact that consolidation has been ordered is
7 sufficient reason to deny a motion to sever, even if a party is misjoined. See Magnovox Co. v.
8 APF Elec., Inc., 496 F. Supp. 29, 34 (D. Ill. 1980) (finding that a defendant was misjoined but
9 denying motion to sever, noting that pretrial proceedings were already consolidated under Rule
10 42(a))
11 Nanya’s argument is wrong because the overlapping evidence between Rambus’s claims
12 against it and the other Manufacturers make joinder proper. “There is no bright-line definition of
13 ‘transaction,’ ‘occurrence,’ or ‘series’ [for purposes of Rule 20(a)]. Instead, courts assess the
14 facts of each case individually to determine whether joinder is sensible in light of the underlying
15 policies of permissive party joinder.” 3 Moore’s Federal Practice § 20.05[1] (3d ed. 2007).
16 Courts generally find that claims arise out of the same transaction and occurrence when the
17 likelihood of overlapping proof indicates that separate trials would result in unreasonable delay
18 and inefficiency. See Sprint Commc’ns Co. v. Theglobe.com, Inc., 233 F.R.D. 615, 617 (D. Kan.
19 2006) (finding joinder proper because “each of the defendants has [allegedly] infringed the same
20 seven patents ... the defendants have raised several identical affirmative defenses,” and “the court
21 will inevitably be faced with duplicative arguments and overlapping evidence.”)
22 Evidence of Nanya’s infringement is for all practical purposes identical to that pertaining
23 to other Manufacturers, since Nanya marketed accused products under industry-wide JEDEC
24 standards and its products share common feature sets with those from other Manufacturers. See
25 discussion supra at 8-12. In these circumstances, Nanya’s infringement is “logically related” to
26 and arose out of the same series of transactions and occurrences as that of the other
27 Manufacturers. DIRECTV, Inc. v. Barrett, 220 F.R.D. 630, 632 (D. Kan. 2004); see also In re
28 Monon, 218 F.R.D. at 616 (“[t]he alleged actions of these Defendants, while undertaken
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 independently of one another, are part of a series of similar occurrences” and therefore satisfied
2 transaction requirement). Nanya’s contrary view, which would require courts to sever multiple
3 infringers of the same patent, “is a hypertechnical one that that perhaps fails to recognize the
4 realities of complex, and particularly patent, litigation.” MyMail, Ltd. v. America Online, Inc.,
5 223 F.R.D. 455, 456 (E.D. Tex. 2004). None of the authorities cited by Nanya involves accused
6 products that, the Manufacturers’ products here, are fundamentally undifferentiated for purposes
7 of trying patent infringement claims. See e.g., Androphy v. Smith & Nephew, Inc., 31 F. Supp. 2d
8 620, 623 (N.D. Ill. 1998) (noting that the alleged infringers sold “different products”).
9
III. THE MANUFACTURERS HAVE FAILED TO ADVANCE ANY PERSUASIVE
10 JUSTIFICATION FOR IMPOSING A STAY AND FURTHER DELAYING
RAMBUS’S EFFORTS TO SECURE RELIEF
11
The Manufacturers also have failed to establish the propriety of a stay. The gravamen of
12
their motions is that an appeal in Hynix I, Samsung’s PTO reexaminations, and the Delaware
13
court’s future unclean hands ruling might result in orders that materially affect issues in the
14
present actions. Micron Mot. 16-20; Hynix Mot. 5-10; Samsung Mot. 10-14. As the proponents
15
of a stay, Hynix, Micron and Samsung “bear the burden of establishing its need.” Clinton v.
16
Jones, 520 U.S. 681, 708 (1997) (citing Landis v. North American Co., 299 U.S. 248, 255
17
(1936)). “Where it is proposed that a pending proceeding be stayed, the competing interests
18
which will be affected by the granting or refusal to grant a stay must be weighed.” Lockyer v.
19
Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX, Inc. v. Hall, 300 F.2d 265,
20
268 (9th Cir. 1962)). Those competing interests include:
21
the possible damage which may result from the granting of a stay,
22 the hardship or inequity which a party may suffer in being required
to go forward, and the orderly course of justice measured in terms
23 of the simplifying or complicating of issues, proof, and questions of
law which could be expected to result from a stay.
24
25 Id.
26 In this case, the delay attending any stay would cause palpable prejudice to Rambus, and
27 the Manufacturers have pointed to no countervailing benefit that justifies such harm. The
28 Manufacturers contend that the other proceedings involve issues that could control or alter the

CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 claims and defenses slated for trial. The actual scope and posture of those proceedings make
2 clear, however, that the overlap, and thus any possible efficiency gain, is limited. The tenuous
3 benefits of any stay are further diminished by the Manufacturers’ weak prospects of success in the
4 other fora. Indeed, the Motions seek de facto reconsideration of multiple rulings by this Court.
5 A. A Stay Pending Any Hynix I Appeal Would Seriously Prejudice Rambus,
Without Promoting the Efficient Resolution of Rambus’s Patent Claims
6
By further delaying adjudication of the 05-06 claims, a stay pending the Hynix I appeal
7
would irreparably harm Rambus. At the same time, a stay is unlikely to simplify the issues for
8
trial or avoid any substantial prejudice to the Manufacturers.
9
1. Rambus Will Be Irreparably Harmed By a Stay Pending Appeal
10
As Rambus has explained in prior briefing, the Manufacturers’ continued infringement,
11
and any delay in enjoining it, irreparably harms Rambus because, among other things, it:
12
• discourages adoption of and reduces market share for Rambus’ own products;
13
• reduces research and development opportunities;
14
• harms Rambus’ goodwill and reputation as an innovator; and
15
• artificially depresses royalty rates for Rambus’ patents.
16
See Rambus’s Mot. re Add’l Damages and Equitable Relief (Docket No. 3663, Case No. 00-
17
20905) 11-19; 6/6/2008 Reply (Docket No. 3735, Case No. 00-20905) 9-15.
18
The present actions have already been delayed for several months during the FTC
19
proceedings. Moreover, as Hynix admits, there will be delay in filing an appeal in the Hynix I
20
case because there are several issues remaining to be decided in the Hynix I case before final
21
judgment will be entered and any appeal can be filed. Hynix Mot. 4. A stay pending appeal
22
would likely lead to many years of further delays, as the Manufacturers undoubtedly will exhaust
23
every level of appeal, and then search mightily for further grounds on which to delay these
24
proceedings and prevent them from proceeding to trial. See Lockyer, 398 F.3d at 1111 (“A stay
25
should not be granted unless it appears likely the other proceedings will be concluded within a
26
reasonable time in relation to the urgency of the claims presented to the court.”) (quoting Leyva v.
27
Certified Grocers of Cal., Ltd., 593 F.2d 857,864 (9th Cir. 1979)). Indeed, Hynix apparently is
28
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 already contemplating such further delays, stating that it “reserves its right to seek an additional
2 stay once the Federal Circuit disposes of the appeal….” Hynix Mot. 11, n. 3.
3 A stay would improperly grant the Manufacturers a de facto compulsory license to
4 continue infringing Rambus’ patents while proceedings are delayed for years. This would
5 amplify the irreparable harm Rambus is already suffering as a result of the Manufacturers’
6 infringement. 8 This factor weighs heavily against granting a stay. See Lockyer, 398 F.3d at 1112
7 (vacating the lower court’s stay, distinguishing plaintiff who “seeks injunctive relief against
8 ongoing and future harm” from plaintiffs in CMAX case Manufacturers cite “who sought only
9 damages for past harm”).
10 2. The Manufacturers Will Not Suffer any Cognizable Hardship if a Stay
is Denied
11
“A party seeking a stay must make out a clear case of hardship or inequity in being
12
required to go forward, if there is even a fair possibility that the stay for which he prays will work
13
damage to someone else.” Lockyer, 398 F.3d at 1109 (quoting Landis, 299 U.S. at 255). The
14
principal hardship the Manufacturers appear to allege is the possibility of having to litigate issues
15
that might be affected by later events. Hynix Mot. 6-8; Micron Mot. 16-18; Samsung Mot. 3-4,
16
10-14. However, “being required to defend a suit, without more, does not constitute a ‘clear case
17
of hardship or inequity.’” Lockyer, 398 F.3d at 1112 (quoting Landis, 299 U.S. at 255).
18
Moreover, litigation efficiency is unlikely to increase significantly, and may in fact decrease, if a
19
stay is granted. See discussion infra at 31-34.
20
The Manufacturers here have thus “failed to show that Plaintiff[] will not be harmed and
21
ha[ve] failed to establish that [they] will suffer a sufficient hardship. Accordingly, even if
22
granting the stay would conserve some of this Court's resources, this reason alone is insufficient
23
to support a grant of stay.” Sierra Club v. City & County of Honolulu, 2007 WL 2694489, *5 (D.
24
Haw. Sept. 11, 2007). Indeed, the Manufacturers have yet to even file their appeal. See id.
25
26 8
For the reasons explained in Rambus’s remedies briefs, the Manufacturers’ contention that
27 Rambus’s licensing program undercuts its request for injunctive relief, or that it is somehow
judicially estopped from seeking such relief, is meritless. See Rambus Reply re Additional
28 Damages and Equitable Relief, at 8 n.1.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 (finding a request for a stay pending settlement negotiations that had not yet begun to be
2 “premature”).
3 3. A Stay Pending Any Appeal is Unlikely to Increase Efficiency
Materially, and Could Introduce Inefficiency
4
Many of the Manufacturers’ arguments for a stay pending appeal are premised on a
5
successful appeal to the Federal Circuit, and essentially rehash arguments presented in motions
6
the Manufacturers have already lost. Because potential issues identified by the Manufacturers
7
have already been extensively briefed and carefully considered in Markman, summary judgment,
8
JMOL and/or post-trial proceedings, this Court should reject the Manufacturers’ invitation to find
9
error in its own proceedings. Indeed, the fact that Nanya has declined to seek a stay suggests that
10
it concurs that any efficiency gains are outweighed by countervailing factors.
11 a. Any Hynix I Appeal is Unlikely to Resolve Significant Issues in
the Present Actions
12
13 The Manufacturers—who bear the burden of showing the need for their requested stays—
14 have failed to prove that a stay is likely to increase efficiency, as opposed to the mere possibility
15 of such a gain. See, e.g., Lockyer, 398 F.3d at 1113.
16 Only four of the fifteen patents asserted in the present actions were at issue in Hynix I.
17 Even assuming that the Manufacturers have some basis for appealing issues involving all four
18 patents, and elect to do so, eleven of the fifteen patents-in-suit will not be part of the Hynix I
19 appeal.
20 Hynix contends that the Hynix I appeal may dispose of or simplify issues in the present
21 actions because “[i]ssues presented on appeal may cause the Federal Circuit to revisit its claim
22 construction in the Infineon case” or reverse this Court’s claim construction rulings in Hynix I.
23 Hynix Mot. 3. The likelihood of such a result is slim, and its mere possibility insufficient to
24 justify a stay. The Federal Circuit is unlikely to materially alter this Court’s Hynix I constructions
25 because many of those constructions are adopted verbatim from, or at least are consistent with,
26 the Federal Circuit’s own constructions in the earlier Infineon appeal that involved some of the
27 same patents. See 7/10/08 Claim Constr. Order for the Farmwald/Horowitz Patents and Order
28 Denying Mfrs.’ Mot. Summ. J. of Non-Infringement and Invalidity 21. Moreover, Hynix I
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 constructions have been considered twice before in proceedings before this Court—first in
2 Markman proceedings in Hynix I, and again when this Court entertained additional arguments by
3 the Manufacturers in the present actions regarding those constructions.
4 Micron claims that, if the Federal Circuit were to reverse this Court’s judgment in Hynix I
5 regarding claim construction, nonobviousness or written description, then the patents-in-suit that
6 are members of the Farmwald/Horowitz family (but not part of any Hynix I appeal) would
7 somehow be “undermined.” Micron Mot. 18. As already explained, reversal on claim
8 construction issues is unlikely. The Federal Circuit is similarly unlikely to reverse the verdict in
9 Hynix I on validity grounds. Extensive evidence supports the jury’s verdict that the patent claims
10 asserted in Hynix I are not invalid over various references. See, e.g., Rambus’ Opp’n to Hynix’s
11 Mot. for a New Trial on Validity Over Prior Art, Docket No. 2165, Case No. 00-20905.
12 Similarly, extensive evidence, including testimony by the inventors, Rambus’s technical expert,
13 and others, demonstrates the support in the written description for each of the claimed features
14 and supports the jury’s verdict rejecting Hynix’s written description arguments. See, e.g.,
15 Rambus’s Opp’n to Hynix’s Mot. for JMOL and New Trial re Invalidity for Failure to Satisfy
16 Written Description Requirement, Docket No. 2085, Case No. 00-20905. And this Court has
17 concluded that the Federal Circuit’s Infineon opinion “tends to suggest that the specification
18 supports inventions which do not include a multiplexed bus,” which bolsters Rambus’ position
19 that there is adequate written description. See 1/4/2005 Order Denying Hynix’s Mot. for Summ.
20 J. of Non-Infringement (Docket No. 679, Case No. 00-20905) at 4. These issues thus are unlikely
21 to result in reversal of a validity finding.
22 In a motion for new trial, Hynix challenged a jury instruction as being erroneous in light
23 of KSR. Hynix may seek to appeal that issue, but it is unlikely to prevail on appeal. This Court
24 has already indicated after briefing and oral argument that it is inclined to reject Hynix’s
25 argument, stating “[t]he court does not feel the jury instruction on obviousness or the verdict form
26 were erroneous in light of KSR” and taking the matter under submission. See 5/23/2008 Civil
27 Minutes, Docket No. 3728, Case No. 00-20905. There are, moreover, multiple bases for rejection
28 of Hynix’s argument, including the fact that the Federal Circuit has rejected a nearly identical
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 argument in a different case. See Rambus’s Resp. to Hynix’s Third Supp. Brief in Support of its
2 Mot. for New Trial on Invalidity Due to Prior Art, Docket No. 3661, Case No. 00-20905, at 5-7).
3 Hynix also maintains further that a Hynix I appeal will “settle many questions that are also
4 at issue in this case, including … the enforceability of all the patents in suit.” Hynix Mot. 6.
5 Micron similarly contends that if the Federal Circuit reverses the jury’s verdict in the
6 consolidated conduct trial, a patent trial would be unnecessary because Rambus’s patents would
7 be unenforceable. Micron Mot. 18. But even if the Federal Circuit were to reverse the results of
8 the spoliation and/or conduct trials, that would not categorically foreclose Rambus from
9 recovering on its patent claims against the Manufacturers here. On remand, this Court could
10 order a patent and/or conduct trial and exercise its equitable authority to account for any unfair
11 conduct found by the jury (if any were found on retrial) in crafting relief.
12 The Federal Circuit is also unlikely to reverse on these grounds. The Manufacturers have
13 argued—unsuccessfully—that that a new conduct trial should be granted because of purported
14 instructional and evidentiary errors, as well as insufficiency of the evidence. But this Court
15 rejected the Manufacturers’ arguments on multiple grounds and denied the motion for a new trial.
16 See Hynix Semicon., Inc. v. Rambus Inc., 2008 WL 2951341 (N.D. Cal. July 25, 2008). And the
17 D.C. Circuit has reversed the FTC’s decision erroneously holding Rambus liable for
18 monopolization, commenting that “[o]nce again, the Commission has taken an aggressive
19 interpretation of rather weak evidence.” Rambus Inc. v. F.T.C., 522 F.3d 456, 469 (D.C. Cir.
20 2008).
21 The Manufacturers also argue that if the Federal Circuit affirms in favor of Rambus, its
22 rulings on claim constructions, obviousness and written description would not be binding on
23 them, but that the appeal would nevertheless “influence” the present actions. See Micron Mot.
24 18; Samsung Mot. 12. The Manufacturers, however, have failed to demonstrate how any
25 “influence” they vaguely reference is likely to increase efficiency at all, let alone outweigh the
26 irreparable harm Rambus faces if a stay is granted. In the highly likely event of affirmance, the
27 same issues will remain for trial, and a stay would serve no legitimate purpose.
28
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 b. A Stay Would Itself Produce Inefficiencies

2 A stay increases the likelihood that evidence will be lost, witnesses’ memories will be
3 diminished, and witnesses will no longer be available. See Clinton, 520 U.S. at 707-08
4 (observing that “delaying trial would increase the danger of prejudice resulting from the loss of
5 evidence, including the inability of witnesses to recall specific facts, or the possible death of a
6 party.”). In addition, reviving litigation efforts regarding issues that lie dormant during any
7 appeal likely would prove expensive and time-consuming. And, during the period of delay
8 attending a stay, the Manufacturers may introduce additional infringing products that should be
9 addressed together with currently accused products.
10 c. Proceeding as Scheduled May Increase the Likelihood of

Settlement
11
Proceeding to trial in January 2009, according to the Court’s present schedule, may
12
increase the likelihood of settlement and thus obviate any need for an appeal. A stay will only
13
delay a resolution, negotiated or otherwise, because the Manufacturers will have a de facto
14
license to continue infringing during the pendancy of appeal, with little incentive to settle.
15
B. A Stay Pending Reexamination by the PTO Would Unfairly Delay Relief to
16 Rambus Without Streamlining this Case
17 Defendant Samsung has requested reexamination of eight of the fifteen patents-in-suit
18 within the last two years. Samsung previously requested a stay pending those re-examinations,
19 which the Court rejected on April 4, 2007, noting “[a]s I mentioned before, I don’t think [the 05-
20 06 cases] should be stayed.” See Hamilton Decl., Exh. D (4/4/07 H’g Tr. at 8). In their latest
21 request, Samsung and Hynix have failed to offer a persuasive justification for reversing course.
22 As before, granting Samsung a stay now would cause serious harm to Rambus due to the
23 Manufacturers’ ongoing infringement, and any PTO reexamination relief would have only limited
24 effect on this case. Indeed, a stay makes even less sense now, when the proceedings have
25 reached an advanced stage, discovery is almost closed, and trial is imminent.
26 Factors considered in determining whether a stay pending reexamination is appropriate
27 include: “(1) whether discovery is complete and whether a trial date has been set; (2) whether a
28 stay will simplify the issues in question and trial of the case; and (3) whether a stay would unduly
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 prejudice or present a clear tactical disadvantage to the nonmoving party.” Telemac Corp. v.
2 Teledigital, Inc., 450 F. Supp. 2d 1107, 1111 (N.D. Cal. 2006) (citation omitted); see Slip Track
3 Sys., Inc. v. Metal Lite, Inc., 159 F.3d 1337, 1340 (Fed. Cir. 1998).
4 1. With Discovery Nearly Closed and Trial Imminent, Samsung’s and
Hynix’s Untimely Stay Requests Appear to be Little More Than an
5 Eleventh-Hour Delay Tactic
6 In determining whether to issue a stay pending PTO reexamination, the progress of the
7 proceedings is a key factor. “Indeed, a clear rule has developed in cases considering stays that,
8 where discovery has commenced, claim construction has been briefed, and dispositive motions
9 have been filed and disposed of, courts should not grant stays for reexamination before the PTO.”
10 Storus Corp. v. Aroa Marketing, Inc., 2008 WL 540785, *1 (N.D. Cal. Feb. 25, 2008) (internal
11 quotation omitted). Although Samsung and Hynix characterize discovery as being at an “early
12 stage” to support their stay requests (Hynix Mot. 10 (“The early stage of discovery … weigh[s] in
13 favor of a stay….”); Samsung Mot. 13 (“A stay … is particularly appropriate given that the
14 claims are in the early discovery stage.”)), the record of proceedings makes clear that discovery is
15 at an advanced stage, as are the present actions. Discovery has been ongoing since 2005; fact
16 discovery is set to close on August 29, 2008, before the September 5, 2008 hearing date for the
17 stay and severance motions; and expert discovery is set to close on October 10, 2008, only five
18 weeks after the noticed September 5th hearing. The Court has decided motions for summary
19 judgment and trial is set to begin on January 19, 2009, only four and a half months after the
20 scheduled hearing on these motions. Accordingly, the “clear rule” against stays during later
21 stages of litigation is wholly applicable here. See Storus, 2008 WL 540785, *1.
22 In sum, trial is now imminent. Samsung and Hynix’s delay in filing their motion
23 requesting a stay is grounds alone to deny the requested relief.
24 2. A Stay Pending Reexamination Would Irreparably Harm and Unduly
Prejudice Rambus
25
26 The potentially long delay while waiting for the PTO, then the Board of Patent Appeals
27 and Interferences, and then the Federal Circuit, to dispose of the reexaminations could extend for
28
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 years the irreparable harm Rambus suffers from the Manufacturers’ continued infringement. 9 A
2 stay pending reexamination would unduly prejudice and present a clear tactical disadvantage to
3 Rambus, and thus should be denied. See NTP, Inc. v. Research In Motion, Ltd., 397 F. Supp. 2d
4 785, 788 (E.D. Va. 2005) (refusing to stay proceedings pending reexamination, despite issuance
5 of first office actions, where “any attempt at suggesting a likely time frame and outcome of the
6 PTO reexamination process is merely speculation” and “[r]eality and past experience dictate that
7 several years might very well pass from the time when a final office action is issued by the PTO
8 to when the claims are finally and officially ‘confirmed’ after appeals”).
9 3. A Stay Pending Reexamination is Unlikely to Increase Efficiency
Materially, and Could Reduce Overall Efficiency
10
There is only limited overlap of the present actions and the reexamination proceedings
11
initiated by defendant Samsung. Only eight of the fifteen patents and ten of the twenty-five
12
patent claims asserted in the present actions are involved in the reexaminations
13
The Manufacturers’ arguments for a stay are largely premised on the PTO substantially
14
amending or completely rejecting the claims being reexamined, which is unlikely to occur. Four
15
of the eight patents being reexamined have already been battle-tested in Hynix I. There, after a
16
full trial on the merits, the jury rejected Hynix’s claims that claims of those patents were obvious.
17
Even in the unlikely event all the claims being reexamined are amended substantially or
18
cancelled, the seven patents and fifteen patent claims asserted here but not involved in the
19
reexaminations would remain. And like the requested stays pending appeal, the requested stays
20
pending reexamination similarly could introduce inefficiency and needlessly complicate issues,
21
proof and questions of law. See discussion supra at 31-34.
22
23
24
25
9
26 As explained above with respect to a stay pending appeal, the Manufacturers’ continued
infringement irreparably harms Rambus at least because, among other things, it discourages
27 adoption of and reduces market share for Rambus’ own products; reduces research and
development opportunities; harms Rambus’ goodwill and reputation as an innovator; and
28 artificially depresses royalty rates for Rambus’ patents.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 C. All the Applicable Factors Weigh Against Granting a Stay Pending

Resolution of Micron’s Unclean Hands Defense Pending in Delaware
2
Micron notes that it previously requested a stay pending resolution of the Delaware
3
proceedings on July 30, 2007, and the Court has not granted it. Micron Mot. 17, n.15. Now,
4
when the proceedings have reached an advanced stage, discovery is almost closed, and trial is
5
imminent, the reasons to deny a stay are multiplied.
6
1. A Stay Pending Conclusion of the Delaware Proceedings Would
7 Irreparably Harm and Unduly Prejudice Rambus
8 Micron urges that resolution of its unclean hands defense in Delaware is “at hand,”
9 pointing out that briefing will conclude later this month and a final hearing is scheduled for
10 September 19. Micron Mot., 17-18. The course of proceedings gives no assurance, however, that
11 any decision is imminent; more than a year has passed without a ruling..
12 The potentially lengthy delay while waiting for the Delaware court, and then any appeal
13 and possible remand, to dispose of the unclean hands issue pending there could perpetuate for
14 years the irreparable harm Rambus suffers from the Manufacturers’ continued infringement. See
15 discussion infra at 35-36. A stay pending conclusion of the Delaware proceedings thus would
16 unduly prejudice Rambus, and should be denied.
17 2. A Stay Pending Resolution of Micron’s Unclean Hands Defense is

Unlikely to Increase Efficiency Materially, and Could Reduce Overall
18 Efficiency
19 There is only minimal overlap of the present actions and Micron’s action pending in
20 Delaware. Of the four defendants, only Micron is involved in the latter action. And only five of
21 the fifteen patents asserted in the present actions are also involved in the Delaware case.
22 Even if Micron were to prevail on its unclean hands defense in Delaware, it would not
23 have a significant impact on the resolution of Rambus’s claims in the 05-06 cases:
24 First, Micron’s arguments for a stay are largely premised on the Delaware court finding
25 unclean hands, and this Court subscribing to such a finding. But this Court has already rejected
26 Hynix’s unclean hands defense, based on similar allegations of evidence spoliation, in a bench
27 trial during the first phase of Hynix I. This Court then denied Hynix’s motion for new trial or
28 permission to file an interlocutory appeal on its losing unclean hands defense. See Mot. for New
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 Patent Trial, Docket No. 1588-89, Case No. 00-20905; 2/24/06 Order, Docket No. 1732, Case
2 No. 00-20905. Second, the Micron action would address only Micron’s unclean hands defense,
3 not the unclean hands defense asserted by the three Manufacturers not involved in the Delaware
4 action. An unclean hands defense is personal to each party asserting it, and a party must show,
5 among other things, its own prejudice from alleged misconduct. See, e.g., Hamilton Decl., Exh E
6 (Rambus’ Post-Trial Brief on Micron’s Unclean Hands Defense) 5, 23-25; id. Exh. F (Rambus’
7 Post-Trial Response Brief), 10-12. Third, any unclean hands determination would not necessarily
8 render the Rambus patents at issue in the Delaware action unenforceable even against Micron, as
9 the Court must consider lesser sanctions (such as monetary relief). See, e.g., Rambus’ Post-Trial
10 Brief on Micron’s Unclean Hands Defense, 25, 27, 41-43; Rambus’ Post-Trial Response Brief,
11 23-24.
12 Thus, Rambus’ claims against Micron for infringement of the nine patents-in-suit that are
13 not involved in the Delaware action, and Rambus’ claims against the other three Manufacturers
14 for infringement of all fifteen patents-in-suit will not be disposed of by the Delaware action,
15 regardless of its outcome. Like the requested stays pending appeal and reexamination, Micron’s
16 requested stay pending resolution of its unclean hands defense in the Delaware case could
17 actually introduce inefficiency and complicate issues, proof and questions of law. 10
18 3. Micron Will Not Suffer Any Cognizable Hardship if a Stay is Denied
19 “A party seeking a stay must make out a clear case of hardship or inequity in being
20 required to go forward, if there is even a fair possibility that the stay for which he prays will work
21 damage to someone else.” Lockyer, 398 F.3d at 1108. The principal hardship Micron appears to
22 assert is the possibility of having to proceed with defending against Rambus’s litigation claims.
23 However, as noted above, “being required to defend a suit, without more, does not constitute a
24
10
25 A stay could produce net inefficiency by, for example, requiring the Nanya, Hynix and
Samsung cases to proceed without Micron; increasing the likelihood that evidence will be lost,
26 witnesses’ memories will be diminished and witnesses will become unavailable. See Clinton, 520
U.S. at 707-08. A stay could also require the parties and this Court to revive litigation efforts as
27 to issues that lie dormant during any stay and increase the likelihood that the Manufacturers will
introduce additional infringing products while the present actions are pending. By contrast,
28 proceeding in accordance with the existing trial schedule should encourage efficient settlement.
CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW
1 ‘clear case of hardship or inequity.’” Id. at 1112 (quoting Landis, 299 U.S. at 255). Moreover,
2 unnecessary litigation is unlikely to result—and may well be avoided—if a stay is denied
3 because, as explained supra, a stay could be less efficient overall and discourage settlement.
4 Even if denying a stay would reduce litigation efficiency, such harm pales in comparison with the
5 irreparable harm Rambus faces if a stay is granted and the Manufacturers’ infringement is
6 permitted to continue.
7 IV. CONCLUSION
8 For the foregoing reasons, this Court should deny the Manufacturers’ requests for separate
9 trials and/or a stay.
10 DATED: August 22, 2008 MUNGER, TOLLES & OLSON LLP
SIDLEY AUSTIN LLP
11 McKOOL SMITH P.C.
12
13 By: /s/ Gregory P. Stone

GREGORY P. STONE
14
Attorneys for RAMBUS INC.
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CV 00-20905 RMW; C 05-334 RMW; C-06-244 RMW

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Case 5:05-cv-00334-RMW Document 2077 Filed 08/22/2008 Page 1 of 47

14 NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

16 RAMBUS INC., CASE NO.: C 05-00334 RMW

1 CASE NO.: C 06-00244 RMW

8 B. Efficiency and Judicial Economy Weigh Strongly in Favor of a Joint Trial

19 4. Any Damages Determination Would Also Raise Substantial

4 Adams v. NVR Homes, Inc.,

3 In re Seagate Tech., LLC,

3 Stoddard v. Ling-Temco-Vought, Inc.,

5 would flow from the requested stays.

1 B. Efficiency and Judicial Economy Weigh Strongly in Favor of a Joint Trial on

16 factual issues joined by Rambus’s claims and the Manufacturers’ defenses.

17 1. The Key Factual Issues Raised by Rambus’s Patent Claims Are

1 observations about DDR2 to follow-on generations of JEDEC-compliant designs that

1 Hynix is not a statement by a different Manufacturer. Moreover, each Manufacturer is free to

1 4. Consolidation Would Not Unfairly Aid Rambus in its Trial Theme or

14 This argument fails.

25 theme as they see fit. This is what argument is for.

1 under Rule 42(a). Even assuming that Nanya is misjoined—and it is not—Rambus’s

CONSOLIDATED OPPOSITION TO MOTIONS FOR

1 b. A Stay Would Itself Produce Inefficiencies

9 addressed together with currently accused products.

10 c. Proceeding as Scheduled May Increase the Likelihood of

25 reached an advanced stage, discovery is almost closed, and trial is imminent.

26 Factors considered in determining whether a stay pending reexamination is appropriate

1 C. All the Applicable Factors Weigh Against Granting a Stay Pending

16 unduly prejudice Rambus, and should be denied.

17 2. A Stay Pending Resolution of Micron’s Unclean Hands Defense is

13 By: /s/ Gregory P. Stone

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