Rambus Inc.'S Opposition To Hynix'S Motion To Strike Portions of Rambus'S Final Infringement Contentions

Case 5:05-cv-00334-RMW Document 2114 Filed 08/29/2008 Page 1 of 11
1 GREGORY P. STONE (SBN 078329) ROLLIN A. RANSOM (SBN 196126)

STEVEN M. PERRY (SBN 106154) Sidley Austin LLP
2 MUNGER, TOLLES & OLSON LLP 555 West Fifth Street, Suite 4000
355 South Grand Avenue Los Angeles, CA 90013-1010
3 Thirty-Fifth Floor Telephone: (213) 896-6000
Los Angeles, CA 90071-1560 Facsimile: (213) 896-6600
4 Telephone: (213) 683-9100 Email: rransom@sidley.com
Facsimile: (213) 687-3702
5 Email: gregory.stone@mto.com; PIERRE J. HUBERT (admitted pro hac vice)
steven.perry@mto.com
CRAIG N. TOLLIVER (admitted pro hac vice)
6
PETER A. DETRE (SBN 182619) McKool Smith P.C.
7 CAROLYN HOECKER LUEDTKE (SBN 207976) 300 West 6th Street, Suite 1700
Munger, Tolles & Olson LLP Austin, TX 78701
8 560 Mission Street, 27th Floor Telephone: (512) 692-8700
San Francisco, CA 94105 Facsimile: (512) 692-8744
9 Telephone: (415) 512-4000 Email: phubert@mckoolsmith.com;
Facsimile: (415) 512-4077 ctolliver@mckoolsmith.com
10 Email: peter.detre@mto.com;
carolyn.luedtke@mto.com
11 Attorneys for Plaintiff
A PROFESSIONAL CORPORATION • ATTORNEYS
RAMBUS INC.
12
13 UNITED STATES DISTRICT COURT

MCKOOL SMITH
NORTHERN DISTRICT OF CALIFORNIA

DALLAS, TEXAS
14 SAN JOSE DIVISION
15
16 RAMBUS INC., ) Case No. C 05-00334 RMW

)
17 Plaintiff, ) RAMBUS INC.’S OPPOSITION TO
HYNIX’S MOTION TO STRIKE
) PORTIONS OF RAMBUS’S FINAL
18 vs.
) INFRINGEMENT CONTENTIONS
19 HYNIX SEMICONDUCTOR INC., HYNIX )
SEMICONDUCTOR AMERICA INC., ) Date: September 19, 2008
20 HYNIX SEMICONDUCTOR ) Time: 9:00 a.m.
MANUFACTURING AMERICA INC., ) Ctrm: 6, 4th Floor
21 ) Judge: Hon. Ronald M. Whyte
SAMSUNG ELECTRONICS CO., LTD., )
22 SAMSUNG ELECTRONICS AMERICA,
INC., SAMSUNG SEMICONDUCTOR, INC., )
23 SAMSUNG AUSTIN SEMICONDUCTOR, )
L.P., )
24 )
NANYA TECHNOLOGY CORPORATION, )
25 NANYA TECHNOLOGY CORPORATION )
U.S.A.,
)
26 )
Defendants.
27
28
Rambus Inc.’s Opposition to Hynix’s Motion to Strike
Portions of Rambus’s Final Infringement Contentions
Case No. CV 05-00334
Austin 45623v75
1 HYNIX SEMICONDUCTOR INC., HYNIX )

SEMICONDUCTOR AMERICA INC., )
2 HYNIX SEMICONDUCTOR )
MANUFACTURING AMERICA INC.,
HYNIX SEMICONDUCTOR U.K. LTD., )
3
HYNIX SEMICONDUCTOR )
4 DEUTSCHLAND GmbH, )
)
5 Counterclaim Plaintiffs, )
v. )
6 )
RAMBUS INC., )
7
Counterdefendant. )
8 ______________________________________ )
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MCKOOL SMITH
DALLAS, TEXAS
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Austin 45623v7
1 TABLE OF CONTENTS
2 TABLE OF CONTENTS................................................................................................................. i
3 TABLE OF AUTHORITIES .......................................................................................................... ii
4 I. INTRODUCTION ...............................................................................................................1
5 II. BACKGROUND .................................................................................................................1
6 III. ARGUMENT.......................................................................................................................2
7 A. The Court Should Permit the Inclusion of Hynix’s GDDR5

Products in Rambus’s Final Infringement Contentions. ..........................................2
8
1. The addition of the new GDDR5 products threatens
9 no prejudice to Hynix...................................................................................3
10 2. Rambus has acted with diligence in accusing this

recently released product line. .....................................................................4
11
3. Granting Hynix’s motion would lead to an

12 unnecessary waste of judicial and party resources. .....................................5
13 B. Rambus’s Final Infringement Contentions Regarding

MCKOOL SMITH
DALLAS, TEXAS
GDDR5 Are Sufficient, and Will Be Amended Once

14 Discovery Is Received and Reviewed......................................................................6
15 IV. CONCLUSION....................................................................................................................6
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Austin 45623v75
1 TABLE OF AUTHORITIES
2 Cases
3 Acco Brands, Inc. v. PC Guardian Anti-Theft Prods., Inc.,

No. C 04-03526, 2008 WL 2168379 (N.D. Cal. May 22, 2008) ....................................... 3
4
Bd. of Trustees of the Leland Stanford Jr. Univ. v. Roche Molecular Sys., Inc.,
5
No. C 05-04158, 2008 WL 624771 (N.D. Cal. Mar. 4, 2008)................................... 3, 4, 6
6
Dussouy v. Gulf Coast Inv. Corp.,
7 660 F.2d 594 (5th Cir. 1981) ............................................................................................. 6
8 Golden Hour Data Sys., Inc. v. Health Servs. Integration, Inc.,

No. C 06-7477, 2008 WL 2622794 (N.D. Cal. July 1, 2008)............................................ 4
9
Seiko Epson Corp. v. Coretronic Corp.,
10 No. C 06-06946, 2008 WL 2563383 (N.D. Cal. June 23, 2008) ....................................... 4
11
ZiLOG, Inc. v. Quicklogic Corp.,

12 No. C 03-03725, 2008 WL 563057 (N.D. Cal. Mar. 6, 2006)........................................... 5
13 Zoltar Satellite Alarm Sys., Inc. v. Motorola, Inc.,

MCKOOL SMITH
DALLAS, TEXAS
No. C 06-00044, 2008 WL 913326 (N.D. Cal. Apr. 2, 2008) ........................................... 3

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Austin 45623v7
1 I. INTRODUCTION
2 Hynix has moved to strike portions of Rambus’s Final Infringement Contentions
3 pertaining to Hynix’s recently introduced GDDR5 SDRAM products (“GDDR5”). Hynix’s

4
motion should be denied. Rambus included the GDDR5 products in its Final Infringement
5
Contentions in compliance with the Court’s July 16, 2008, scheduling order. (See Dkt. No.
6
1963.) Furthermore, to the extent that the Court’s approval is necessary, under Patent Local Rule
7
3-7, to add Hynix’s GDDR5 products to this case, that approval should be granted for at least
8
9 three reasons. First, Hynix will not be prejudiced by the addition of its new GDDR5 products to
10 this litigation. Rambus’s assertions are limited to patent claims that are already at issue in this
11 case, and the technical issues raised by GDDR5 are expected to be fundamentally similar to
12
those raised by other accused memory technologies, such as GDDR3 and GDDR4. Second,
13
MCKOOL SMITH
DALLAS, TEXAS
Rambus acted diligently in evaluating and accusing Hynix’s recently released GDDR5 products.
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Third, conservation of judicial and party resources counsels denying Hynix’s motion—if Hynix’s
15
16 GDDR5 products are not addressed in this case, they will need to be addressed in a subsequent
17 case, with additional attendant costs and expenses.
18 II. BACKGROUND
19 Rambus filed suit against Hynix for patent infringement on January 25, 2005. (See Dkt.
20 No. 1.) Rambus served its first set of Preliminary Infringement Contentions on February 23,
21
2007, and supplemented those contentions on July 20, 2007. (See Dkt. No. 2036, Exs. A and B.)
22
Hynix’s GDDR5 products were not available for purchase or announced as of either of those
23
dates. Hynix notes that it issued a press release announcing its GDDR5 products nine months
24
25 after service of Rambus’s initial contentions, and four months after service of Rambus’s
26 supplemental contentions, in November, 2007. (See Mot., Dkt. No. 2035 at 2-3.) This one-page
27 press release contains few technical details, however, and does not describe the operation of
28 Rambus Inc.’s Opposition to Hynix’s Motion to Strike
1
Austin 45623v7
1 GDDR5 in any depth. (See Dkt. No. 2036, Ex. C.) According to the press release, mass
2 production of Hynix’s GDDR5 products would not begin until “the first half of 2008.” (See id.)
3
And importantly, Rambus only became aware of datasheets relating to production-ready GDDR5
4
products in June, 2008. (See Hubert Decl. ¶ 2.) Shortly thereafter, on July 2, 2008, Rambus
5
requested discovery from Hynix specific to its new GDDR5 products. (See Dkt. No. 2036, Ex.
6
D.) Hynix refused to provide discovery with respect to GDDR5, forcing Rambus to file a motion
7
8 to compel. (See Dkt. No. 1990.) Lacking the requested discovery regarding specific technical
9 details for Hynix’s GDDR5 products, Rambus included them in its Final Infringement
10 Contentions on information and belief, and expects to provide more detail in its contentions once
11
discovery is provided and reviewed. (See Dkt. No. 2036, Ex. G at 3, n.2.) After denying
12
Rambus the opportunity to fully evaluate the technical operations of Hynix’s new GDDR5
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products, Hynix now seeks to strike them from Rambus’s Final Infringement Contentions.
14
III. ARGUMENT
15
A. The Court Should Permit the Inclusion of Hynix’s GDDR5 Products in
16 Rambus’s Final Infringement Contentions.
17
The Court issued its scheduling order on July 16, 2008, setting a date of August 1, 2008,
18
for Rambus to serve its Final Infringement Contentions. In late July, Rambus had only recently
19
become aware that Hynix had released and was producing its new GDDR5 products. And
20
Rambus’s attempts to procure specific discovery on these new products—initiated at the
21
22 beginning of the month—had been rebuffed by Hynix. Notwithstanding the lack of publicly
23 available information on Hynix’s GDDR5 products, and Hynix’s failure to meet its discovery
24 obligations regarding those products, Rambus included contentions regarding the GDDR5
25
products in its Final Infringement Contentions on August 1 in compliance with the Court’s
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1 scheduling order. Under the circumstances, the Final Infringement Contentions properly
2 included Hynix’s GDDR5 products.

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Should the Court find its approval necessary for Rambus to include Hynix’s GDDR5
4
products in this case, however, such approval should be granted. Patent Local Rule 3-7 provides
5
that the Court may approve any amendment or modification of a party’s infringement
6
contentions when there is “good cause” to do so. PATENT L.R. 3-7. There is good cause for the
7
8 Court to approve the inclusion of Hynix’s GDDR5 products in Rambus’s Final Infringement
9 Contentions, for at least three reasons: 1) the addition of the GDDR5 products threatens no
10 prejudice to Hynix; 2) Rambus acted with diligence in accusing this newly-released product line;
11
and 3) preventing Rambus from pursuing its contentions regarding Hynix’s GDDR5 products
12
would result in an unnecessary waste of judicial resources. See Bd. of Trustees of the Leland
13
MCKOOL SMITH
DALLAS, TEXAS
Stanford Jr. Univ. v. Roche Molecular Sys., Inc., No. C 05-04158, 2008 WL 624771, at *4 (N.D.
14
15 Cal. Mar. 4, 2008). In order to “advance fair resolution of the issues on the merits,” therefore,
16 Hynix’s motion to strike should be denied. Zoltar Satellite Alarm Sys., Inc. v. Motorola, Inc.,
17 No. C 06-00044, 2008 WL 913326, at *3 (N.D. Cal. Apr. 2, 2008); see also Acco Brands, Inc. v.
18 PC Guardian Anti-Theft Prods., Inc., No. C 04-03526, 2008 WL 2168379, at *2 (N.D. Cal. May
19
22, 2008) (noting a preference, in the context of Patent L.R. 3-7, to decide cases on the merits).
20
1. The addition of the new GDDR5 products threatens no prejudice to
21 Hynix.
22 Hynix suggests that adding GDDR5 to this litigation will require additional discovery on
23 its part, (see Dkt. No. 2035 at 10), but that discovery poses no threat of prejudice to Hynix. To
24
borrow from the court’s opinion in Roche Molecular Systems, “the gathering and preparing of
25
discovery related to [its GDDR5 products] is not prejudicial to [Hynix]—by refusing to provide
26
discovery earlier, [Hynix] has simply delayed production of discovery it was already required to
27
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1 produce.” 2008 WL 624771, at *4. And Hynix should have no need to take fact discovery from
2 Rambus with regard to the design and operation of Hynix’s own GDDR5 products. All of the
3
relevant factual information regarding Hynix’s devices should be within Hynix’s possession and
4
control. In addition, Hynix will have sufficient opportunities to address Rambus’s infringement
5
contentions regarding the GDDR5 products during expert discovery. See Golden Hour Data
6
Sys., Inc. v. Health Servs. Integration, Inc., No. C 06-7477, 2008 WL 2622794, at *4 (N.D. Cal.
7
8 July 1, 2008) (“As expert discovery has not yet begun, Golden Hour’s experts will have the
9 opportunity to consider the amended contentions.”).

10 Further, Rambus anticipates—and should be able to confirm when Hynix fully complies
11
with its discovery obligations—that Hynix’s GDDR5 memory products are fundamentally
12
similar to memory technology already at issue in this case, such as Hynix’s GDDR3 and GDDR4
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MCKOOL SMITH
DALLAS, TEXAS
memory products. Rambus thus expects that the addition of GDDR5 to this litigation will
14
15 require only a de minimis amount of additional work by the parties to prepare for trial in January
16 2009. For this reason, denying Hynix’s motion to strike and permitting Hynix’s GDDR5
17 products to remain in Rambus’s Final Infringement Contentions should threaten no prejudice to

18 Hynix. See, e.g., Golden Hour Data Sys., 2008 WL 2622794, at *4 (finding no prejudice where
19
amendments did not raise new theories); Seiko Epson Corp. v. Coretronic Corp., No. C 06-
20
06946, 2008 WL 2563383, at *3-4 (N.D. Cal. June 23, 2008) (“Coretronic has not demonstrated
21
how their case strategy would have been different had the [newly accused products] been listed
22
23 in the preliminary infringement contentions.”).
24 2. Rambus has acted with diligence in accusing this recently released

product line.
25
Hynix argues that Rambus waited too long to accuse the GDDR5 products, despite the
26
fact that this product was only recently introduced, and apparently was not mass produced until
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1 mid-2008. Hynix supports its argument by reference to a GDDR5-related press release that it
2 issued in November, 2007. (See Dkt. No. 2035 at 2-3.) This one-page press release contains few
3
technical details, however, and does not describe the operation of GDDR5 in any depth. (See
4
Dkt. No. 2036, Ex. C.) And according to the press release, mass production of GDDR5 products
5
would not begin until “the first half of 2008.” (See id.) In any event, Rambus only became
6
aware of datasheets relating to production-ready GDDR5 products in June, 2008. (See Hubert
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8 Decl. ¶ 2.) Shortly thereafter, on July 2, 2008, Rambus requested discovery from Hynix specific
9 to its new GDDR5 products. (See Dkt. No. 2036, Ex. D.) Hynix refused to provide the
10 requested discovery, forcing Rambus to file a motion to compel. (See Dkt. No. 1990.)
11
Notwithstanding the lack of adequate discovery on the new products, Rambus included them in
12
its Final Infringement Contentions on August 1. The approximately two-month time frame from
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DALLAS, TEXAS
Rambus’s discovery and conclusion that the new products might infringe, to this briefing on their
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15 inclusion in the case—from June to August, 2008—reflects Rambus’s diligence in the matter.
16 See, e.g., ZiLOG, Inc. v. Quicklogic Corp., No. C 03-03725, 2008 WL 563057, at *1 (N.D. Cal.
17 Mar. 6, 2006) (noting that a delay of three months or less “constitutes sufficient diligence to meet
18 the ‘good cause’ standard”).
19
20 3. Granting Hynix’s motion would lead to an unnecessary waste of

judicial and party resources.
21
Should Rambus be prevented from pursuing its contentions regarding Hynix’s GDDR5
22
products as accused products in this litigation, Rambus will be forced to file a new patent-
23
infringement suit here against Hynix. That alternative would undoubtedly require more work
24
and expense not only on Hynix’s part, but on the part of the Court as well. The prospect of such
25
an additional suit springing from a grant of Hynix’s motion to strike constitutes “another
26
compelling reason to allow the amendment” to Rambus’s infringement contentions. See Roche
27
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1
Molecular Systems, 2008 WL 624771, at *4; see also, e.g., Dussouy v. Gulf Coast Inv. Corp.,
2
660 F.2d 594, 599-600 (5th Cir. 1981) (“If the plaintiff cannot amend, his proper recourse is to
3
file a new action . . . . All that is accomplished is that the case is set back on the docket, and
4
disposition of the merits delayed, a result that [FED. R. CIV. P.] 1 directs us to avoid and that
5
undercuts the policy of the federal rules in favor of consolidating litigation to facilitate an
6
efficient and expeditious resolution of disputes.”).
7
B. Rambus’s Final Infringement Contentions Regarding GDDR5 Are Sufficient,
8 and Will Be Amended Once Discovery Is Received and Reviewed.
9 In addition to its principal argument that the Court should strike Rambus’s GDDR5-
10 related claims from this case—necessarily for litigation in a subsequent one—Hynix also
11
complains that the disclosures related to its own GDDR5 products in Rambus’s Final
12
Infringement Contentions are insufficiently detailed. (See Dkt. No. 2050, at 8-9, 18.) There is a
13
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DALLAS, TEXAS
simple answer to this complaint: to the extent that Rambus’s contentions on Hynix’s GDDR5
14
products lack sufficient detail to satisfy Hynix, that is directly due to the fact that Hynix
15
16 intentionally withheld the requested discovery on its GDDR5 products. Because little technical
17 detail concerning these accused products is publicly available, Rambus’s ability to draft detailed
18 claim charts was dependent upon Hynix’s willingness to meet its discovery obligations. After
19
thwarting Rambus’s attempts to secure discovery on Hynix’s GDDR5 products, Hynix should
20
not be heard to complain that Rambus’s claim charts lack sufficient detail. As Rambus noted in
21
its Final Infringement Contentions, it will supplement its contentions with additional detail once
22
23 it receives and reviews sufficient discovery from Hynix to determine the specific operation of the
24 accused products. (See Dkt. No. 2036, Ex. G at 3, n.2.)
25
IV. CONCLUSION
26
27 For these reasons, Rambus respectfully requests that the Court deny Hynix’s motion.
28
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Dated: August 29, 2008 Respectfully submitted,
3
MUNGER TOLLES & OLSON LLP
4 SIDLEY AUSTIN LLP
5 MCKOOL SMITH P.C.
7 /s/ Pierre J. Hubert
8 Attorneys for RAMBUS INC.

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DALLAS, TEXAS
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Case 5:05-cv-00334-RMW Document 2114 Filed 08/29/2008 Page 1 of 11

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

13 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

14 SAN JOSE DIVISION

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

1 HYNIX SEMICONDUCTOR INC., HYNIX )

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

5 II. BACKGROUND .................................................................................................................1

7 A. The Court Should Permit the Inclusion of Hynix’s GDDR5

10 2. Rambus has acted with diligence in accusing this

3. Granting Hynix’s motion would lead to an

13 B. Rambus’s Final Infringement Contentions Regarding

GDDR5 Are Sufficient, and Will Be Amended Once

3 Acco Brands, Inc. v. PC Guardian Anti-Theft Prods., Inc.,

8 Golden Hour Data Sys., Inc. v. Health Servs. Integration, Inc.,

ZiLOG, Inc. v. Quicklogic Corp.,

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

No. C 06-00044, 2008 WL 913326 (N.D. Cal. Apr. 2, 2008) ........................................... 3

2 Hynix has moved to strike portions of Rambus’s Final Infringement Contentions

3 pertaining to Hynix’s recently introduced GDDR5 SDRAM products (“GDDR5”). Hynix’s

17 case, with additional attendant costs and expenses.

2 included Hynix’s GDDR5 products.

9 opportunity to consider the amended contentions.”).

17 products to remain in Rambus’s Final Infringement Contentions should threaten no prejudice to

23 in the preliminary infringement contentions.”).

24 2. Rambus has acted with diligence in accusing this recently released

20 3. Granting Hynix’s motion would lead to an unnecessary waste of

24 accused products. (See Dkt. No. 2036, Ex. G at 3, n.2.)

7 /s/ Pierre J. Hubert

8 Attorneys for RAMBUS INC.

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