Case 5:05-cv-00334-RMW Document 2384 Filed 10/16/2008 Page 1 of 10

1 Gregory P. Stone (SBN 078329) Rollin A. Ransom (SBN 196126)

Steven M. Perry (SBN 106154)
2 Sean Eskovitz (SBN 241877)
MUNGER, TOLLES & OLSON LLP
3 355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071-1560
4 Telephone: (213) 683-9100
Facsimile: (213) 687-3702
5 Email: gregory.stone@mto.com
Email: steven.perry@mto.com
6 Email: sean.eskovitz@mto.com
7 Peter A. Detre (SBN 182619)
Carolyn Hoecker Luedtke (SBN 207976)
8 Jennifer L. Polse (SBN 219202)
MUNGER, TOLLES & OLSON LLP
9 560 Mission Street, 27th Floor
San Francisco, CA 94105
10 Telephone: (415) 512-4000
Facsimile: (415) 512-4077
11 Email: peter.detre@mto.com
Email: carolyn.luedtke@mto.com
12 Email: jen.polse@mto.com
13 Attorneys for RAMBUS INC.
14 UNITED STATES DISTRICT COURT
15 NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
16 RAMBUS INC.,
17 Plaintiff,
v.
18
HYNIX SEMICONDUCTOR INC., et al,
19
Defendants.
20
21
22
23
SIDLEY AUSTIN LLP
555 West Fifth Street, Suite 4000
Los Angeles, CA 90013-1010
Telephone: (213) 896-6000
Facsimile: (213) 896-6600
Email: rransom@sidley.com
Pierre J. Hubert (Pro Hac Vice)
Craig N. Tolliver (Pro Hac Vice)
McKOOL SMITH PC
300 West 6th Street, Suite 1700
Austin, TX 78701
Telephone: (512) 692-8700
Facsimile: (512) 692-8744
Email: phubert@mckoolsmith.com
Email: ctolliver@mckoolsmith.com
CASE NO. C 05-00334 RMW
RAMBUS’S REPLY TO
OPPOSITIONS BY HYNIX AND
SAMSUNG TO RAMBUS’S MOTION
TO COMPEL THE DEPOSITIONS OF
HYNIX AND SAMSUNG ON DESIGN-
AROUND AND ALTERNATIVES AS
TO GDDR5 AND DDR4
Date: October 20, 2008
Time: 3:00 p.m.
Location: Telephonic Hearing
Judge: Hon. Read Ambler (Ret.)

24 RAMBUS INC., CASE NO. C 05-02298 RMW

25 Plaintiff,
v.
26
SAMSUNG ELECTRONICS CO., LTD., et al,
27
Defendants.
28
RAMBUS’S REPLY ISO MTC ON DESIGN-AROUND
AND ALTERNATIVES AS TO GDDR5 AND DDR4;
CASES NOS. C 05-00334, C 05-02298
 Case 5:05-cv-00334-RMW Document 2384 Filed 10/16/2008 Page 2 of 10

1 I. INTRODUCTION
2 Rambus filed this motion to seek testimony regarding the limited issues of design-
3 around efforts and consideration of alternatives to certain DRAM features as to GDDR5 and
4 DDR4, which are not accused products in this case. The requested testimony is circumscribed
5 and, as set forth in Rambus’s moving papers, is relevant to various issues to be tried in the patent
6 trial, including the importance and value of Rambus’s inventions, the Manufacturers’ willful
7 infringement, and secondary considerations of the nonobviousness of Rambus’s inventions.
8 Contrary to Hynix’s and Samsung’s suggestions, Rambus is not seeking wide-ranging irrelevant
9 discovery into these products.
10 Since Rambus’s filing of this motion, Micron has agreed to produce a witness on
11 the requested topics, and Rambus has withdrawn its motion as to Micron. Hynix and Samsung
12 persist in their refusals to provide this testimony, claiming that it is not relevant (or is only
13 “marginally relevant”) and that it would be burdensome to produce a witness. Their arguments
14 are without merit, and Rambus’s motion should be granted.
15 II. ARGUMENT
16 A. Rambus is not “foreclosed” from taking discovery on GDDR5 and DDR4 in
this case.
17

18 As set forth in Rambus’s moving papers, Courts allow discovery to be taken into

19 non-accused products where they are relevant to issues involving the accused products. See

20 Opening Brief (“Op. Br.”) at 3-5. Hynix nevertheless argues that Rambus is “foreclosed” from

21 taking relevant discovery on or making arguments from GDDR5, because the Court has granted

22 its motion to strike GDDR5 from Rambus’s infringement contentions, and that Rambus is

23 likewise “foreclosed” from taking discovery as to DDR4, because DDR4 products “will not even

24 be designed, much less manufactured or sold, until Rambus’s patents have expired.” Hynix Opp.

25 at 5.

26 Hynix mischaracterizes the Court’s ruling on its motion to strike as to GDDR5,

27 which states only:

28 ///
RAMBUS’S REPLY ISO MTC ON DESIGN-AROUND
-1- AND ALTERNATIVES AS TO GDDR5 AND DDR4;
CASES NOS. C 05-00334, C 05-02298
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1 The court grants Hynix and Samsung’s motions to strike Rambus’s

infringement contentions related to GDDR5 SDRAM. If Rambus
2 wishes to pursue claims against Samsung and Hynix’s manufacture
and sale of GDDR5 SDRAM, it may do so in a separate case.
3

4 Declaration of Theodore Brown in Support of Hynix’s Opposition (“Brown Decl.”), Ex. 4. The

5 Court certainly did not rule that GDDR5 was wholly irrelevant to the accused products remaining

6 in the case, nor did it “foreclose” Rambus from taking discovery on or attempting to make

7 arguments from Hynix’s continued use of any of the accused features in GDDR5.

8 As to DDR4, Hynix cites no authority in support of this proposition that Rambus is

9 foreclosed from taking discovery because it is not yet being manufactured and sold. The law is to

10 the contrary. See, e.g., AMP Inc. v. Molex Inc., No. 84 C 2814, 1988 WL 48276, at *1 (N.D. Ill.

11 May 10, 1988) (compelling discovery on development work undertaken on successor products

12 since receipt of infringement notice).

13 B. Information regarding design-arounds and alternatives as to GDDR5 and

DDR4 is relevant even though they are not accused products.
14
Hynix and Samsung argue that, even if Rambus is not foreclosed from taking
15
discovery into GDDR5 and DDR4, that discovery would not be relevant (or would be only
16
“marginally relevant”) because they are not accused products in the case. This argument fails
17
because, as set forth in Rambus’s moving papers, Courts have recognized that information
18
regarding non-accused products may be relevant to issues regarding the accused products and
19
have allowed discovery into non-accused products in patent cases. See Op. Br. at 3-5. Hynix and
20
Samsung are able to cite no cases to the contrary, and, instead, rely on non-patent cases standing
21
for the general proposition that courts may restrict discovery “where the burden associated with it
22
clearly outweighed its marginal relevance.” Hynix Opp. at 6; Samsung Opp. at 7. 1 As set forth
23

24 1
The three cases cited by Hynix and Samsung do not involve issues similar to those before the
Court:
25
Planned Parenthood Fed. of Am., Inc. v. Ashcroft, No. C 03-4872 PJH, 2004 WL 432222, at *1,
26 (N.D. Cal. Mar. 5, 2004) is a case relating to abortion procedures, where the Court found that
individual patients’ medical records are not relevant because “they do not contain the information
27 that the government seeks,” and even if they did, they would be “marginally relevant at best
because the presence or absence of medical risks and their likelihood and nature are going to be
28 made not on the basis of individual patients’ records but on the basis of expert testimony at trial.”
RAMBUS’S REPLY ISO MTC ON DESIGN-AROUND
-2- AND ALTERNATIVES AS TO GDDR5 AND DDR4;
CASES NOS. C 05-00334, C 05-02298
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1 below, contrary to Hynix’s and Samsung’s unsupported assertions, the discovery Rambus seeks is
2 relevant to various key issues in this litigation such as willful infringement, the importance and
3 value of Rambus’s inventions, the existence of non-infringing alternatives, and secondary
4 considerations of the nonobviousness of Rambus’s inventions. See also Op. Br. at 3-5.
5 1. The limited discovery sought by Rambus is relevant to the issue of
willful infringement.
6
Samsung contends that “whether Samsung has willfully infringed Rambus’s
7
patents by making or selling a non-accused product is not relevant to whether [Samsung] willfully
8
infringed Rambus’s patents in making or selling the accused products at an earlier date.”
9
Samsung Opp. at 8. To the contrary, the inclusion of Rambus’s patented technology in
10
Samsung’s (and Hynix’s) newest products, years after being sued for infringement by Rambus,
11
would be evidence of their general disregard of Rambus’s patent rights and would suggest that
12
any excuses they make with respect to their past infringement are simply pretextual. See also Op.
13
Br. at 4-5.
14
2. The limited discovery sought by Rambus is relevant to the issue of the
15 importance and value of Rambus’s inventions.

16 Samsung contends that Rambus’s requested discovery is not relevant to the value
17 of Rambus’s inventions and the existence of non-infringing alternatives because it stated in its
18 written objections to Rambus’s 30(b)(6) notice that Samsung “has never believed that it has
19 ///
20
Meijer, Inc. v. Abbott Labs., No. C 07-5985 CW, 2008 WL 2503007, at *4, (N.D. Cal. June 18,
21 2008) involved a drug manufacturer’s attempt to defeat class certification in a putative class
action involving antitrust issues, and the Court found that the plaintiff direct purchasers’ sales
22 information of the drugs at issue “is relevant only insofar as it demonstrates that the interests of
putative class members would not be served by a successful challenge to [the manufacturer’s]
23 current pricing structure” and that it is unnecessary for the manufacturer to obtain this discovery
because there existed a “much simpler and more effective way of determining class members’
24 preferences: notify them of the action and give them the opportunity to opt out of the class or to
enter an appearance.”
25
Lawyers Title Ins. Corp. v. U.S. Fidelity & Guar. Co., 122 F.R.D. 567, 570 (N.D. Cal. 1988) is a
26 case concerning the extent of coverage of a particular insurance policy, and the Court found that
the insured party’s requests for “extensive information about claims made against [the insurer]
27 over the past five years and, for the same period, complaints by state insurance commissioners”
are “far too broad” and of “marginal utility” because the insured party did not limit the scope of
28 its requests to information “only about policies of the same kind as the one in issue here.”
RAMBUS’S REPLY ISO MTC ON DESIGN-AROUND
-3- AND ALTERNATIVES AS TO GDDR5 AND DDR4;
CASES NOS. C 05-00334, C 05-02298
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1 infringed any valid, enforceable patent claim asserted by Rambus and therefore has made no
2 specific efforts to design around them.” Samsung Opp. at 8 (emphasis added).
3 As an initial matter, Samsung can hardly rely on unsupported and unverified
4 statements by its attorneys to block legitimate discovery by Rambus. Rambus is entitled to take
5 discovery into the circumstances of and to test the veracity of any testimony that a Samsung
6 witness might give regarding Samsung’s “beliefs” as to its infringement of Rambus’s patents and
7 that Samsung has never made “specific efforts” to design around them. For instance, Samsung’s
8 purported lack of design-around effort could be based on a belief that it was not possible to design
9 around Rambus’s patents, which would be relevant to show that non-infringing alternatives did
10 not exist. It could also rest on a belief that Rambus’s inventions were superior to any alternatives
11 or simply on a disregard of Rambus’s patent rights. Further, Samsung is a member of JEDEC,
12 which developed the standards for the accused products and is developing standards for the
13 GDDR5 and DDR4 successor products, and Rambus is entitled to inquire into any group efforts
14 in which Samsung may have taken part to design around Rambus’s patents. See AMP Inc., 1988
15 WL 48276, at *1 (discovery on development work undertaken by accused infringer after receipt
16 of infringement notice is relevant to whether the accused infringer has unsuccessfully attempted
17 to design around a patent).
18 Moreover, if Samsung does utilize alternative technologies that do not infringe
19 Rambus’s patents in its newest products, whether or not the alternatives were the result of a
20 “specific effort” to design around Rambus’s patents, that could demonstrate that non-infringing
21 alternatives did exist.
22 The continued use by Hynix and Samsung of Rambus’s inventions in its newest
23 products and future products is also relevant to show the importance and fundamental nature of
24 Rambus’s inventions generally. Hynix argues that DDR4 is irrelevant because Rambus cannot
25 accuse it of infringement, but if Hynix and other DRAM manufacturers are planning to use
26 features disclosed in a Rambus patent application filed nearly 20 years ago in a product scheduled
27 to be manufactured and sold in 2011, that is highly relevant evidence of just how important these
28 features were, are, and will be. See Hynix Opp. at 2, 4.
RAMBUS’S REPLY ISO MTC ON DESIGN-AROUND
-4- AND ALTERNATIVES AS TO GDDR5 AND DDR4;
CASES NOS. C 05-00334, C 05-02298
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1 3. The continued use of Rambus’s inventions in the newest DRAM

products is relevant to the nonobviousness of Rambus’s inventions.
2

3 Hynix and Samsung do not contest Rambus’s argument that their continued use of
4 Rambus’s inventions in their newest products and future products (e.g., GDDR5 and DDR4) is
5 evidence of the industry acceptance, and hence nonobviousness, of Rambus’s inventions. See Op.
6 Br. at 5.
7 C. The limited discovery sought by Rambus is not burdensome.
8 Hynix and Samsung contend that the limited discovery sought by Rambus would
9 be burdensome. Samsung does not provide any details as to why the discovery would be
10 burdensome (except its purported untimeliness, addressed below), while Hynix argues that it
11 would be required to put up a witness who will be able to “summarize” the “substantial quantities
12 of documentation” that Hynix has produced and who will need to “investigate, and possibly
13 interview, all Hynix persons who may have been involved with either JEDEC or Hynix internal
14 considerations of the features and alternatives proposed or considered for GDDR5 SDRAM and
15 the future DDR4 SDRAM.” Hynix Opp. at 6.
16 Hynix’s objections are off the mark. First, Rambus is not seeking a witness to
17 “summarize” the entirety of a voluminous document production. Rambus is seeking testimony on
18 the limited issues of design-around efforts and consideration of alternatives only as to six specific
19 DRAM features of interest in this case. Second, although Hynix appears to imply that an unduly
20 large number of individuals at Hynix would need to be canvassed to prepare for a 30(b)(6)
21 deposition, it provides no evidence in support of this suggestion, even though it submitted a
22 declaration from Yongki Kim, who is “a designer of Hynix’s GDDR5 SDRAM products” and
23 thus presumably would have some idea regarding the number of Hynix engineers with relevant
24 information. See Hynix Opp. at 3.
25 Lastly, any claim of burden is belied by Micron’s agreement to produce a witness
26 on the topics at issue in this motion, as well as by the fact that Hynix itself previously produced a
27 witness to testify regarding design-around and alternatives as to its earlier products in the ‘905
28
RAMBUS’S REPLY ISO MTC ON DESIGN-AROUND
-5- AND ALTERNATIVES AS TO GDDR5 AND DDR4;
CASES NOS. C 05-00334, C 05-02298
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1 case (Hynix I). See Declaration of David C. Yang in Support of Rambus’s Reply on Its Motion to
2 Compel (“Yang Reply Decl.”), Ex. 1; Hynix Opp. at 4 (acknowledging that Hynix has produced
3 previous “testimony regarding alternatives and design around for other Hynix products”).
4 D. Hynix’s and Samsung’s untimeliness objections are without merit.

5 1. Rambus did not request the testimony “at the eleventh hour.”

6 Hynix and Samsung argue that Rambus should be denied relevant discovery

7 because Rambus waited too long in seeking it. Hynix Opp. 4-5; Samsung Opp. at 3, 6-7. Their

8 assertions are not supported by the record.

9 Rambus served 30(b)(6) notices to Hynix and Samsung seeking testimony on

10 design-around and alternatives, among other topics, on June 19, 2008, more than two months

11 before the discovery cutoff for the patent trial. See Declaration of David C. Yang in Support of

12 Rambus’s Motion to Compel (“Yang Opening Decl.”), Exs. F, H. Hynix and Samsung served

13 their written responses to these notices on June 30, 2008 and July 31, 2008, respectively. See

14 Brown Decl., Ex. 12; Declaration of Matthew Antonelli in Support of Samsung’s Opposition

15 (“Antonelli Decl.”), Ex. 4. Generally speaking, their written responses stated that they would not

16 produce testimony regarding any non-accused products, among other objections. See id. After

17 unsuccessful meet and confer efforts, Rambus filed separate motions to compel against Hynix and

18 Samsung on July 28, 2008 and August 4, 2008. Yang Opening Decl., ¶ 4. These motions sought

19 a broader range of discovery than is at issue in this motion, and sought both documents and

20 testimony as to Hynix’s and Samsung’s new and under-development DRAM products. Id. Upon

21 the request of Samsung’s counsel, Rambus agreed to delay the scheduled hearing on the motion

22 against Hynix so that the two motions could be heard together on August 20, 2008. Yang Reply

23 Decl., Ex. 2 (7/29/08-8/4/08 Antonelli and Yang email exchange)

24 Prior to the hearing, Hynix and Samsung agreed to resolve the motions by

25 producing a limited set of documents pertaining to design-around and alternatives as to GDDR5

26 and DDR4, with Rambus reserving its rights to seek a witness on those topics. Hynix and

27 Samsung agreed that they would not object to any such request on the basis that it is made after

28 ///
RAMBUS’S REPLY ISO MTC ON DESIGN-AROUND
-6- AND ALTERNATIVES AS TO GDDR5 AND DDR4;
CASES NOS. C 05-00334, C 05-02298
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1 the discovery cutoff of August 29, 2008. The parties’ agreements are memorialized in a
2 stipulation filed on September 16, 2008. See Yang Opening Decl., ¶ 5 & Ex. C.
3 Hynix and Samsung produced documents in accordance with the parties’
4 agreement in late August 2008. In response to Rambus’s renewed requests for witnesses on
5 September 9, 2008, Hynix and Samsung stated that further meeting and conferring was necessary.
6 Yang Reply Decl., Ex. 3 (9/9/08 Ring email), Ex. 4 (9/17/08 Ring email). The parties’ meet and
7 confer efforts were exhausted in late September 2008, and the instant motion followed on October
8 2, 2008. See Yang Reply Decl., Ex. 5 (9/26/08 Ring email), Ex. 6 (9/30/08 Yang email); Yang
9 Opening Decl., ¶ 7 & Ex. D (9/29/08 Brown email).
10 In summary, Rambus properly requested the testimony that is the subject of this
11 motion months before the discovery cutoff and the timing of Rambus’s motion is due to Hynix’s
12 and Samsung’s persistent refusals to provide witnesses. 2
13 2. Hynix and Samsung have waived the objection that Rambus seeks
deposition testimony after the discovery cutoff.
14
Hynix’s argument that it should not be compelled to provide relevant testimony
15
because “discovery has closed” (see Hynix Opp. at 5-6) should be given no weight because it has
16
stipulated to the waiver of this objection. The parties’ 9/16/08 stipulation states in relevant part:
17
[I]f after reviewing documents produced by . . . Hynix, and
18 Samsung relating to GDDR5 and/or DDR4, Rambus files a motion
to compel a 30(b)(6) deposition relating to alternatives and design
19 workarounds relating to work on GDDR5 and/or DDR4 . . . ,
Hynix[] and Samsung will not object to such motion to compel on
20 the ground that it was filed after the deadline for filing motions to
compel set by Local Rule 26-2, or on the ground that the deposition
21 was taken after the close of fact discovery, but reserves all other
potential objections and arguments relating thereto.
22
Yang Opening Decl., Ex. C at 2.
23
Samsung, in accord with the parties’ stipulation, does not object to Rambus’s
24
request as being after the discovery cutoff, but argues that it “specifically retained its rights to
25

26 2
Hynix and Samsung also attempt to confuse the issue by arguing that Rambus waited too long to
27 attempt to add GDDR5 as an accused product in the case. That argument misses the mark
because, as noted above, the limited testimony requested here was sought in a timely manner and
28 is relevant whether or not GDDR5 and DDR4 are accused products.
RAMBUS’S REPLY ISO MTC ON DESIGN-AROUND
-7- AND ALTERNATIVES AS TO GDDR5 AND DDR4;
CASES NOS. C 05-00334, C 05-02298
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1 object to the lateness with which Rambus originally sought the 30(b)(6) deposition and the
2 lateness with which Rambus sought to add GDDR5 as an accused product to the case.” Samsung
3 Opp. at 4. As discussed above, however, Rambus sought the discovery at issue in a timely
4 manner more than two months prior to the discovery cutoff. Whether Rambus was or was not
5 timely in seeking to add GDDR5 as an accused product is irrelevant to the issue presented here of
6 whether Rambus is entitled to take discovery into limited aspects of two non-accused products
7 that bear upon issues relevant to the accused products.
8 E. Hynix’s apparent argument that it is not obligated to produce a witness
because it has produced some other discovery regarding GDDR5/DDR4 is
9 without merit.

10 Hynix asserts that it has produced documents pertaining to GDDR5 and DDR4 and
11 that Rambus had asked some questions of Yongki Kim, Hynix’s 30(b)(6) witness on DDR2 and
12 DDR3, regarding a draft GDDR5 specification at a July 2008 deposition, see Hynix Opp. at 3-4,
13 apparently to support an argument that it should not be obligated to produce the requested
14 testimony. That Hynix may have produced other discovery, however, cannot prevent Rambus
15 from obtaining the testimony sought by this motion.
16 Clearly, Hynix’s production of documents does not discharge its obligation to
17 provide a witness to testify on topics to which the documents may relate. Moreover, Hynix
18 limited the scope of the prior 30(b)(6) testimony that it cites in order to exclude GDDR5 and
19 DDR4. In its written response to Rambus’s deposition notice, it stated:
20 Hynix objects to Rambus’s definition of “Hynix DRAM products”
as overly broad and unduly burdensome because it includes
21 products that are not the subject of Rambus’s complaint in this
action. Hynix accordingly limits the term “Hynix DRAM
22 products” to the representative DDR2 SDRAM, DDR3 SDRAM,
GDDR3 SDRAM, and GDDR4 SDRAM products that are the
23 subject of this action.
24 Brown Decl., Ex. 12 at 3. That counsel allowed some limited questioning regarding GDDR5,
25 while objecting that it was outside the scope of the deposition, does not discharge its obligation to
26 provide the relevant testimony that Rambus seeks by this motion.
27 ///
28 ///
RAMBUS’S REPLY ISO MTC ON DESIGN-AROUND
-8- AND ALTERNATIVES AS TO GDDR5 AND DDR4;
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1 F. Rambus is not attempting to “rewrite” Topic No. 7 of its 30(b)(6) notice to

Samsung.
2

3 Samsung argues that it is not obligated to provide a witness to testify as to

4 consideration of alternatives in response to Topic No. 7 of Rambus’s 6/19/08 30(b)(6) notice
5 because the topic is written specifically in terms of design-around and not alternatives. Samsung
6 Opp. at 8.
7 Samsung’s complaint is baseless because Rambus’s request does not broaden the
8 scope of the topic. Whether the request is stated in terms of “design around efforts” or
9 “consideration of alternatives” to Rambus’s patented inventions, it is aimed at the same core
10 facts: the circumstances of any consideration or decision to use an accused feature, or to use
11 something else instead. In other words, designing around a patented feature necessarily entails
12 using an alternative technology to that feature.
13 III. CONCLUSION
14 For the foregoing reasons and the reasons stated in Rambus’s opening brief,
15 Rambus respectfully seeks an order from the Court compelling Hynix and Samsung to designate
16 and produce witnesses to testify regarding (1) any effort to design around Rambus’s patents as to
17 GDDR5 or DDR4 and (2) any evaluation or consideration of alternatives to Rambus’s patented
18 inventions as to GDDR5 or DDR4.
19

20 DATED: October 16, 2008 MUNGER, TOLLES & OLSON LLP

21 SIDLEY AUSTIN LLP
22 McKOOL SMITH PC
23
By: /s/ David C. Yang
24 DAVID C. YANG
25 Attorneys for Plaintiff RAMBUS INC.
26

27

28
RAMBUS’S REPLY ISO MTC ON DESIGN-AROUND
-9- AND ALTERNATIVES AS TO GDDR5 AND DDR4;
CASES NOS. C 05-00334, C 05-02298