Case3:08-cv-03343-SI Document202 Filed03/04/11 Page1 of 5

1 Mike McKool, Jr. (pro hac vice) J. Daniel Sharp (CSB No. 131042)
Douglas Cawley (pro hac vice) CROWELL & MORING LLP
2 McKOOL SMITH P.C. 275 Battery Street, 23rd Floor
300 Crescent Court San Francisco, California 94111
3 Suite 1500 Telephone: (415) 986-2800
Dallas, Texas 75201 Facsimile: (415) 986-2827
4 Telephone: (214) 978-4000 Email: dsharp@crowell.com
Facsimile: (214) 978-4044
5 Email: mmckool@mckoolsmith.com;
dcawley@mckoolsmith.com
6
Scott L. Cole (pro hac vice)
7 Pierre J. Hubert (pro hac vice)
Craig N. Tolliver (pro hac vice)
8 McKOOL SMITH P.C.
300 W. 6th Street
9 Suite 1700
Austin, Texas 78701
10 Telephone: (512) 692-8700
A PROFESSIONAL CORPORATION • ATTORNEYS

Facsimile: (512) 692-8744

11 Email: scole@mckoolsmith.com;
phubert@mckoolsmith.com;
12 ctolliver@mckoolsmith.com
MCKOOL SMITH

DALLAS, TEXAS

13 Attorneys for Plaintiff RAMBUS INC.

14 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
15
SAN FRANCISCO DIVISION
16
RAMBUS INC.,
17 Case No. C-08-03343 SI
Plaintiff,
18 RAMBUS’S OPPOSITION TO
v. NVIDIA CORPORATION’S
19 ADMINISTRATIVE MOTION TO
NVIDIA CORPORATION, SET HEARING DATE FOR
20 NVIDIA’S PREVIOUSLY BRIEFED
Defendant. MOTION TO DISMISS AND
21 MOTION FOR PARTIAL SUMMARY
JUDGMENT
22
Court: Dept. 10, 19th Floor
23 Judge: Honorable Susan Illston

24 NVIDIA CORPORATION, Case No. C-08-05500 SI

25 Plaintiff,

26 v.

27 RAMBUS INC.,

28 Defendant.
Rambus’s Opposition to NVIDIA’s Motion to Set Hearing Date
Case Nos. C-08-03343 SI; C-08-05500 SI
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I. Introduction
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Rambus opposes NVIDIA’s “administrative motion” (Dkt. No. 198) to renew and set a
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hearing date for two motions that the Court has already denied. The Court denied NVIDIA’s
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motions “without prejudice to renewal after resolution of the Federal Circuit appeals” in the
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Hynix and Micron cases. (Dkt. No. 120 (emphasis added).) Since those appeals remain pending,
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NVIDIA’s motion should be denied as premature. NVIDIA’s motion should be denied for the
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separate reason that the Court ordered the parties to appear before Special Master Infante to
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address Phase 2 discovery and motion practice. (Dkt. No. 193.) Finally, NVIDIA’s motion
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should be denied because the motions it seeks to renew are procedurally improper and
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A PROFESSIONAL CORPORATION • ATTORNEYS

substantively meritless for at least the reasons set forth in Rambus’s consolidated opposition
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filed more than two years ago, Dkt. No. 93.
12
MCKOOL SMITH

DALLAS, TEXAS

13 II. NVIDIA’s Motion Should Be Denied As Premature Because the Federal Circuit Has
Not Yet Ruled
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On April 13, 2009, the Court denied the two motions NVIDIA now seeks to renew,
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“without prejudice to renewal after resolution of the Federal Circuit appeals.” (Dkt. No. 120, at
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1-2.) Those Federal Circuit appeals remain pending. NVIDIA identifies no basis for
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reconsidering the Court’s prior determination that these motions could be renewed only after the
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Federal Circuit has ruled. (Cf. Civ. L.R. 7-9 (requiring leave of Court to file a motion for
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reconsideration and a showing of “a material difference in fact or law,” “the emergence of new
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material facts or a change of law,” or “manifest failure by the Court to consider material facts or
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dispositive legal arguments.”).) NVIDIA’s motion should be denied as premature.
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III. NVIDIA’s Motion Should Be Denied Because The Court Ordered the Parties to
23 Address These Issues to Special Master Infante
24 At the case management conference on February 11, 2011, the Court instructed the
25 parties to work with Special Master Infante to proceed with Phase 2 discovery and to discuss
26 possible motion practice. (Dkt. No. 193 (“[t]he parties shall go back before Special Master
27 Infante re: phase II discovery and future motion practice”).) NVIDIA represented to the Court in
28 its February 23rd letter that the Court’s “instructions were clear that the parties should meet with
Rambus’s Opposition to NVIDIA’s Motion to Set Hearing Date
Case Nos. C-08-03343 SI; C-08-05500 SI
Austin 66008v4
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1 Judge Infante as promptly as possible to develop a plan for Phase 2 discovery and motions.”

2 (Dkt. No. 195 (emphasis added).)

3 On February 28th, Special Master Infante scheduled a teleconference for March 8th to

4 discuss Phase 2 discovery. The next day, NVIDIA filed its motion with the Court without

5 consulting Special Master Infante.1 NVIDIA’s present motion should be denied. NVIDIA

6 should follow the Court’s instructions and first raise the issue of renewing its motions with

7 Special Master Infante.2

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IV. NVIDIA’s Motion Should Be Denied Because the Motions It Seeks to Renew Are
9 Procedurally Improper and Substantively Meritless
NVIDIA’s request to renew and have the Court hear its previously-denied motions should
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be denied for another reason: the motions are facially defective and substantively meritless for at
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300 Crescent Court, Suite 1500

least all of the reasons set forth in Rambus’s consolidated opposition to those motions (Dkt. No.
McKOOL SMITH P.C.

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Dallas, TX 75201

93). For example, the motions should be denied outright because NVIDIA has failed to file any
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answer in this case, much less plead the affirmative defense of unclean hands upon which its
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motions request relief. NVIDIA did plead unclean hands in the ITC investigation, and the ITC
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affirmed the Administrative Law Judge’s determination that the asserted patents were not
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unenforceable due to unclean hands. (2/22/2010 Notice Regarding Initial Determination of
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Violation (Campione Decl. filed herewith, Ex. A), Concl. of Law # 17; 7/26/2010 Notice of
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Commission Final Determination of Violation (Campione Decl., Ex. B), at 2-3.) NVIDIA’s
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motions are substantively deficient for many other reasons, each of which require their denial,
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such as that this case and the Micron Delaware case involve different patents, different products,
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23 NVIDIA also failed to obtain leave of the Court to file a motion for reconsideration of the
Court’s February 15th order (Civ. L.R. 7-9(a)) or make any showing that “a material difference in
24 fact or law” has emerged that would permit such a motion (Civ. L.R. 7-9(b)).
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By its present motion, NVIDIA improperly seeks to raise with the Court an issue the Court
25 ordered to be raised with Special Master Infante. Conversely, NVIDIA has improperly sought to
revisit with Special Master Infante a matter that the Court has already decided, namely, that the
26 parties will proceed with Phase 2 discovery. The Court rejected NVIDIA’s request to limit the
parties to Phase 1 discovery and ordered Phase 2 discovery to proceed, particularly as to
27 damages. NVIDIA is now renewing this same request with Special Master Infante. (Dkt. No.
201.)
28
Rambus’s Opposition to NVIDIA’s Motion to Set Hearing Date
Case Nos. C-08-03343 SI, C-08-05500 SI
2
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1 different parties, different issues and different facts that foreclose preclusive application of the

2 Delaware court’s opinion here.

3 Rambus has also explained that, in the event that it is determined that the substance of

4 these motions will be considered, Rambus should be given the opportunity to take discovery into

5 issues of fact that would prevent any application of collateral estoppel. (Dkt. No. 90.) NVIDIA

6 has yet to provide discovery related to the very fact issues raised by its motions, and instead

7 asserts in its motions that all facts should be resolved in NVIDIA’s favor. The need to resolve

8 Rambus’s conditional request for discovery with respect to these motions is another reason why

9 NVIDIA’s request should be directed in the first instance to Special Master Infante whom this

10 Court appointed expressly to oversee discovery.

11 Further, should the Court grant NVIDIA’s motion, Rambus reserves the right to request
300 Crescent Court, Suite 1500
McKOOL SMITH P.C.

12 and file additional briefing in opposition to the motions NVIDIA seeks to renew.
Dallas, TX 75201

13 NVIDIA’s motion should be denied because of the procedural and substantive flaws in

14 the motions it seeks to renew. At a minimum, it would be premature and inefficient to renew and

15 schedule a hearing on NVIDIA’s previously-denied motions before the parties have met with

16 Special Master Infante to discuss whether motions are appropriate and the coordination of any

17 motions with further discovery.3

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V. Conclusion
19 For the foregoing reasons, NVIDIA’s motion to renew its previously-denied motions and
20 set a hearing date regarding those motions should be denied.
21

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23 3
NVIDIA comments on the status of reexaminations and the voluntary withdrawal of the Barth
II patents to streamline the ITC investigation (Dkt. No. 198, at 3-4), but those matters have no
24 bearing on NVIDIA’s motion or discovery in this action. The Barth II claims are still asserted in
this case, and those claims remain valid during the pendency of the reexaminations, which
25 NVIDIA recognizes are not final. (See Dkt. No. 192, Ex. B (NVIDIA’s Case Management
Statement) at 32 of 37 (“those reexaminations are not final”).) Rambus’s complaint identifies
26 numerous NVIDIA products—including specific varieties of memory controllers—that infringe
the patents-in-suit. NVIDIA has yet to produce much of the discovery Rambus has requested,
27 but Rambus looks forward to proving NVIDIA’s infringement of the Barth II and other patents-
in-suit.
28
Rambus’s Opposition to NVIDIA’s Motion to Set Hearing Date
Case Nos. C-08-03343 SI, C-08-05500 SI
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2 Respectfully submitted,

3
DATED: March 04, 2011 MCKOOL SMITH P.C.
4 CROWELL & MORING LLP
5

6 By: /s/ Pierre J. Hubert

Pierre J. Hubert
7
Attorneys for Plaintiff
8 RAMBUS INC.

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300 Crescent Court, Suite 1500
McKOOL SMITH P.C.

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Dallas, TX 75201

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Rambus’s Opposition to NVIDIA’s Motion to Set Hearing Date
Case Nos. C-08-03343 SI, C-08-05500 SI
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Austin 66008v4