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1 Attorney list on signature page

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8 IN THE UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA – SAN JOSE DIVISION
10 Case No. C 05-00334 RMW
RAMBUS, INC.,
11 SAMSUNG’S MOTION FOR
Plaintiff, SUMMARY JUDGMENT OF NON-
12 INFRINGEMENT OF METHOD
v. CLAIMS (MSJ No. 12)
13
HYNIX SEMICONDUCTOR INC., et al.,
14 Trial Date: December 2, 2008
Defendants. Time: 2:00 pm
15 Courtroom: 6, 4th floor
Judge: Hon. Ronald M. Whyte
16
RAMBUS, INC., Case No. C 05-02298 RMW
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Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD., et al.,
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Defendants.
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SAMSUNG’S MOTION FOR SUMMARY JUDGMENT OF CASE NO. C 05 00334 RMW

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1 PLEASE TAKE NOTICE that on December 2, 2008, at 2:00 p.m., or as soon

2 thereafter as counsel can be heard, in the courtroom of the Honorable Ronald M. Whyte, 280
3 South First Street, San Jose, California, Defendants Samsung Electronics Co., Ltd., Samsung
4 Electronics America, Inc., Samsung Semiconductor Inc., and Samsung Austin Semiconductor,
5 L.P. (collectively “Samsung”) hereby move the Court for an order granting Samsung summary
6 judgment of non-infringement of the following method claims: claim 14 of U.S. Patent No.
7 6,182,184 (“the ‘184 patent), claim 16 of the U.S. Patent No. 6,266,285 (“the ‘285 patent), claim
8 34 of U.S. Patent No. 6,584,037 (“the ‘037 patent”), and claim 16 of U.S. Patent No. (6,452,863)
9 (“the ‘863 patent) (collectively, the “Method Claims”) on the grounds that Rambus has provided
10 no evidence that Samsung practices the Method Claims in the U.S. or that Samsung indirectly
11 infringes these claims.
12 This motion is based upon the points and authorities discussed herein, the
13 Omnibus Declaration of Sven Raz in Support of the Manufacturers’ Summary Judgment and
14 Daubert Motions (hereinafter, “Omnibus Decl.”) and exhibits attached thereto, the Declaration of
15 Matthew J. Antonelli in Support of this motion and exhibits attached thereto, and such other
16 evidence and argument that may properly come before the Court.
17 I. INTRODUCTION
18 Rambus has accused certain Samsung’s products of infringing twelve claims of ten U.S.
19 patents, among which are the four Method Claims. The four Method Claims comprise all of the
20 asserted claims of the ‘184, ‘285, ‘863, and ‘037 Patents, so these claims account for four of the
21 eleven asserted patents. Samsung does not directly infringe the Method Claims because it does
22 not perform each step of the Method Claims in the U.S. Likewise, Samsung is not liable under a
23 theory of indirect infringement because there is no evidence of any other direct U.S. infringer of
24 the Method Claims. Moreover, there is no evidence that would support a finding that Samsung
25 knowingly induced any third parties to infringe the Method Claims, or had any specific intent to
26 cause infringement by a third party.
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1 To prove direct infringement, Rambus must prove that Samsung performed all steps of the
2 Method Claims in the U.S. Rambus will be unable to present any such evidence. Although
3 Rambus’s expert Robert Murphy argues in his report that it is “highly likely” that Samsung
4 performed the method claims during testing, he presents no reliable evidence to support this
5 conclusory opinion. This opinion is insufficient to defeat summary judgment of noninfringement
6 as repeatedly held by the Federal Circuit.
7 There also is no evidence that Samsung induced third party testing companies to infringe
8 the method claims, or that Samsung contributed to any such infringement. Mr. Murphy relies
9 solely on inadmissible evidence which, even taken at face value, does not show that the testing
10 companies performed the method claims, let alone that they did so based on Samsung’s
11 inducement. Moreover, there is no evidence that Samsung had any connection with the
12 independent testing companies, or possessed any specific intent or committed any culpable acts to
13 induce the allegedly infringing activities.
14 II. SUMMARY JUDGMENT OF NONINFRINGEMENT IS APPROPRIATE
BECAUSE THERE IS NO EVIDENCE TO SHOW SAMSUNG INFRINGES THE
15 METHOD CLAIMS
16 Courts routinely grant summary judgment of noninfringement where the patent holder
17 fails to meet its burden of coming forward with sufficient evidence of infringement to create a
18 genuine issue of fact for trial. Display Technologies, Inc. v. Paul Flum Ideas, Inc., 2002 WL
19 32066815, 796 (C.A.Fed. (N.Y. 2002) (“[s]ummary judgment of noninfringement is appropriate
20 in circumstances . . . where a plaintiff has failed to offer evidence creating a genuine issue of
21 material fact.”).
22 Rambus, as the patentee, bears the burden of proving infringement of the Method Claims
23 by a preponderance of the evidence. Exigent Tech., Inc. v. Atrana Solutions, Inc., 442 F.3d 1301,
24 1309-10 (Fed. Cir. 2006); Cross Medical Products, Inc. v. Medtronic Sofamor Danek, Inc., 424
25 F.3d 1293 (Fed. Cir. 2005). As a result, Samsung is not required to produce evidence showing
26 the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
27 Rather, Samsung need only show “an absence of evidence to support the nonmoving party’s
28 case.” Id. at 325. Rambus, as the nonmoving party, must “come forward with ‘specific facts
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1 showing that there is a genuine issue for trial’” in order to successfully oppose this motion.
2 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R.
3 Civ. P. 56(e)).
4 “General assertions of facts, general denials, and conclusory statements are insufficient to
5 shoulder the non-movent’s burden.” TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1372
6 (Fed. Cir. 2002), cert. denied, 537 U.S. 995 (2002). Consequently, conclusory expert opinions do
7 not raise a genuine issue of material fact and thus are insufficient to defeat summary judgment of
8 noninfringement. Novartis Corp. v. Ben Venue, 271 F.3d 1043, 1051 (Fed. Cir. 2001) (“a party
9 does not meet this evidentiary threshold merely by submitting the affidavit of an expert who
10 opines that the accused device meets the claim limitations.”).
11 III. RAMBUS WILL BE UNABLE TO PRESENT EVIDENCE ESTABLISHING
SAMSUNG’S INFRINGEMENT OF THE METHOD CLAIMS
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Samsung seeks summary judgment of noninfringement of the Method Claims based on
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two independent grounds: (1) there is no evidence that Samsung performs all steps of the
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asserted method claims in the U.S.; and (2) there is no evidence that Samsung induced
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infringement or contributed to the infringement of the Method Claims, because there is no
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evidence of any underlying direct infringement.
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A. There Is No Evidence That Samsung Performed All Steps Of The Claims In
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The U.S
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For a method claims to be infringed, all steps of the claimed method must be used or
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performed within the U.S. See NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1318 (Fed.
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Cir. 2005); see also Zoltek v. U.S., 442 F.3d 1345, 1350 (Fed. Cir. 2006). Rambus relies upon
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conclusory expert opinion—without any specific factual support whatsoever—to attempt to show
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that each step of the asserted method claims is performed by Samsung in the U.S. This is exactly
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what the Federal Circuit has warned against as insufficient to defeat summary judgment of non-
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infringement.
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In his expert report Mr. Murphy presented the following “evidence” to purportedly show
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direct infringement of the Method Claims by Samsung:
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1 Based on my experience in the industry, I believe that it is highly likely that each
of the Manufacturers has process in place that are similar to Nanya’s for
2 identifying problems customers may have with their DRAM products: performing
tests to define and verify root causes of the problems, choosing and verifying
3 corrective actions, and implementing corrective actions to solve these problems. I
am unaware of any semiconductor company that does not have processes, similar
4 to Nanya’s, in place for its products
5 See, e.g., Omnibus Decl. Ex. 7 (Murphy Report, Filed Under Seal date September 5, 2008) at

6 ¶ 54. Mr. Murphy’s report contains absolutely no evidence that Samsung has tested any products

7 in the U.S. in a manner that would infringe any of the asserted Method Claims.

8 Although Rambus’s expert contends that it is “highly likely” that the Samsung products

9 accused in this case have been systematically tested by the manufacturers themselves, the Murphy

10 report does not offer any evidence to support any systematic testing in the U.S. by Samsung.1 In

11 fact, Murphy admitted during his deposition that the basis for this alleged “systematic testing” is

12 “just my general knowledge from the industry.” [Murphy Deposition Transcript dated October

13 13, 2008, at 775:18-776:13. Attached as Exhibit A to the Declaration of Matthew Antonelli in

14 support of Samsung’s Motion for Summary Judgment of Non-infringement of Method Claims

15 [hereinafter “Antonelli Decl.”]]. Accordingly, the Court should disregard this conclusory,

16 unsupported statement and not give it any weight in deciding this motion. See Novartis Corp.,

17 271 F.3d at 1046; Zelinski, 185 F.3d at 1317.

18 As the Federal Circuit stated in TechSearch, such “general assertions of facts, general

19 denials, and conclusory statements are insufficient to shoulder the non-movent’s burden.”

20 TechSearch, 286 F.3d at 1372 (Fed. Cir. 2002). Rambus’s expert relies solely on the unsupported

21 conclusion that it is “highly likely” that Samsung engages in testing of its products in the United

22 States. The Court should reject such conclusory opinion based solely on general assertions, as

23 they fail to satisfy Rambus’s burden of proof.

24 Mr. Murphy was required to present “the basis and reasons” for his expert opinion in his

25 report. O2 Micro, Inc. v. Monolithic Power Systems, Inc., 467 F.3d 1355, 1368 (Fed. Cir. 2006)

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In fact, in his report, Mr. Murphy only cites to evidence of testing by Micron to support this
28 statement. But Micron’s testing can be used to prove direct infringement by Samsung.
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1 (quoting Fed.R.Civ.P. 26(a)). Mr. Murphy will be foreclosed from relying on any additional
2 evidence to support his assertions of direct infringement of the method claims.
3 Therefore, as shown above, Rambus will be unable to present evidence to show direct
4 infringement of the Method Claims by Samsung. The unsupported, conclusory opinion of
5 Rambus’s expert is insufficient to create a factual dispute and thus cannot defeat summary
6 judgment of noninfringement. Accordingly, the Court should grant summary judgment of no
7 direct infringement of the Method Claims by Samsung.
8 B. There Is No Evidence That Samsung Induces Or Contributes To The
9 Infringement Of The Method Claims By Other Parties

10 Under 35 U.S.C. § 271(b), “[w]hoever actively induces infringement of a patent shall be

11 liable as an infringer.” To prevail on an inducement or contributory infringement claim, the

12 patentee must establish that there has been direct infringement by some other party. DSU Med.

13 Corp. v. JMS Co., 471 F.3d 1293 (Fed. Cir. 2006). Under this standard, allegations of

14 hypothetical direct infringement are not sufficient to establish liability for indirect infringement.

15 Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1274 (Fed. Cir. 2004).

16 Rambus alleges that Samsung is liable as an indirect infringer for the infringement of third

17 parties who practice the method claims. The only third party infringers specifically identified by

18 Murphy are third party testing companies (CMT Labs, X-Bit Labs, Hardware Secrets, Overlock

19 3D, Digit-Life, Bit-Tech, collectively “third party testing companies”). See Murphy Report at

20 ¶¶ 56-58. However, there is no evidence that Samsung induces the third party testing companies

21 to infringe, or contributes to the infringement of, the Method Claims: (1) there is no admissible

22 evidence of the alleged direct infringement; (2) there is no evidence that any third party performs

23 each step of the Method Claims in the U.S.; and (3) there is no evidence that Samsung had any

24 connection whatsoever to the alleged third party infringers and thus no evidence that Samsung

25 knowingly induced any alleged infringement by a third party or had specific intent to induce such

26 infringement.

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1 1. Rambus Presents No Admissible Evidence Of Inducement

2 As an initial matter, Rambus’s inducement analysis relies entirely on inadmissible and
3 unreliable evidence. The Court should disregard such inadmissible evidence and grant summary
4 judgment of Rambus’s inducement allegation on this basis alone.
5 The Murphy report relies exclusively on Exhibits Z, Y, AA (See, e.g., Omnibus Decl. Ex.
6 14, 13 and 8 respectively) and AC (attached as Exhibit B to Antonelli Decl.) to show
7 infringement by third party testing companies. Each of these exhibits is inadmissible. Exhibits Z,
8 Y, and AA (Omnibus Decl. Ex. 14, 13 and 8 respectively) (are general descriptions of testing
9 procedures downloaded from the third party testing companies’ websites. Exhibit AC (Antonelli
10 Decl. Ex. B) is a spreadsheet which contains a list of products tested by CMT Labs, a
11 representative third party testing company used by Rambus to purportedly show direct
12 infringement. Exhibit AC (Ex. B) was generated by Rambus’s legal counsel based on data
13 available from CMT Labs’ website. Omnibus Decl. Ex. 7 (Murphy report) at ¶¶ 57-58. Murphy
14 admitted that he got all CMT Labs related documents, Exhibits Z, Y (Omnibus Decl. Ex. 14 and
15 13 respectively), and AC (Antonelli Decl. Ex. B), from counsel. He further admitted that he did
16 not create the spreadsheet in Exhibit AC (Ex. B), did not discuss with counsel the criteria used to
17 create the exhibit, and could not remember who created it.2 [Murphy Deposition Transcript dated
18 October 13, 2008, at 766:12-13; 767:21-768:12. Antonelli Decl. Ex. A]
19 Pursuant to Federal Rules of Evidence, these documents are inadmissible because they are
20 hearsay and because they are not authenticated. Fed.R.Evid. §§802, 803(6), 902(11), 902(12). It

21 is improper for Rambus’s expert to base his opinion on such unreliable and inadmissible

22 evidence. This is yet another attempt by Rambus to use unsupported expert opinion to fill in a

23 missing factual gap.

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Exhibit AC was never produced by Rambus during the course of fact discovery. Rambus
28 disclosed it for the first time as an attachment to the Murphy report.
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1 2. There Is No Evidence That Any Third Party Performs All Steps Of

The Method Claims In The U.S.
2

3 The documents Mr. Murphy relies on do not show that all steps of the method claims were

4 performed during the alleged testing. The Murphy report cites to CMT Labs’ web printouts and a

5 spreadsheet listing the products tested by CMT Labs, Exhibits Z, Y (See, e.g., Omnibus Decl. Ex.

6 14 and 13 respectively) and AC (Antonelli Decl. Ex. B) as the sole support for Mr. Murphy’s

7 assertion that CMT Labs infringed the method claims. However, these documents do not show

8 that any of the steps of the method claims were performed, and Mr. Murphy makes no attempt to

9 demonstrate that they do.

10 Additionally, Mr. Murphy admitted he has no personal knowledge of the steps performed

11 during the testing activities in the CMT Labs. During his deposition, Murphy admitted that he

12 never used CMT Labs, that he does not know who in the lab performed the testing, that he has not

13 seen any actual CMT Labs testing results for any of the products listed in spreadsheet AC, and

14 that he did not witness any of the testing that was performed by CMT Labs. [Murphy Deposition

15 Transcript dated October 13, 2008, at 769:8-11; 773:12-18. Antonelli Decl. Ex. A]

16 Lacking evidence, Mr. Murphy argues that certain features “would be tested,” or that such

17 testing “requires the practice of Rambus’s asserted method claims,” without any factual support

18 that the claimed methods were actually performed. [Omnibus Decl. Ex. 7 (Murphy Report, Filed

19 Under Seal dated September 5, 2008), at ¶ 57 (emphasis added)] For example, Mr. Murphy

20 asserts with respect to CMT Labs that “a DRAM module would be tested in all allowable burst

21 length operating modes.” Omnibus Decl. Ex. 7 (Murphy report) at ¶ 57. Mr. Murphy admitted,

22 however, that he does not know specifically if CMT labs tested the burst rate operation:

23 I don’t know specifically if the burst rate operation was tested, but CMT Labs on
their web site talks about testing all of the features of the products that they test
24 and specifically if those features are listed on a data sheet, the general knowledge I
have from the industry says that a testing facility would normally test all of them if
25 they were trying to qualify them for other organizations. …
26 Q. And the only source of your information from that is a statement from their
web site?
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…
28 Yes, I believe it is
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1 [Murphy Deposition Transcript dated October 13, 2008, at 772:4-773:11. Antonelli Decl. Ex. A]
2 Such hypothetical instances of direct infringement are insufficient to establish inducement, as the
3 Federal Circuit warned against in Dynacore.
4 3. Samsung Did Not Knowingly Induce Infringement With Specific
5 Intent

6 There is no evidence that Samsung knowingly induced the alleged infringement and
7 possessed the specific intent to encourage such infringement. There is no evidence that Samsung
8 had any involvement with the alleged third party infringement. Not only is the record lacking any
9 direct evidence of inducement, there also is no circumstantial evidence of a connection between
10 the third party testing companies and Samsung. Mr. Murphy admitted that he does not have any
11 specific evidence of any manufacturer requesting testing by CMT Labs, but rather that he relied
12 on his “general understanding” of how CMT Labs operates in drafting his report. [Murphy
13 Deposition Transcript dated October 13, 2008, at 771:21-772:3. Antonelli Decl. Ex. A] Such
14 speculation is not evidence.
15 Rambus will be unable to present any evidence that Samsung contacts, initiates, asks for,
16 requests, or pays for any of the tests done by these third party companies. Murphy admitted that
17 he understands the third party testing companies independently perform their tests. [Murphy
18 Deposition Transcript dated October 13, 2008, at 772:20-23. Antonelli Decl. Ex. A (“CMT Labs
19 describes their role as an independent verifying and certifying the DRAM modules are compatible
20 with particular motherboard systems.”)] With no evidence of even minimal contact, Rambus
21 cannot show that Samsung knowingly induced third party testing activities, and certainly cannot
22 show that Samsung had required specific intent to encourage infringement.
23
IV. CONCLUSION
24 For each of the reasons set forth above, Samsung’s motions for summary judgment
25 motion of noninfringement of the Method Claims should be granted.
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1 Dated: October 24, 2008 WEIL, GOTSHAL & MANGES, LLP

2 By: /s/ Matthew J. Antonelli
3 Matthew J. Antonelli

4 MATTHEW D. POWERS (Bar No. 104795)

Email: matthew.powers@weil.com
5 STEVEN S. CHERENSKY (Bar No. 168275)
Email: steven.cherensky@weil.com
6 WEIL GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
7 Redwood Shores, CA 94065
Telephone: (650) 802-3000
8 Facsimile: (650) 802-3100

9 ROBERT S. BEREZIN (pro hac vice)

Email: robert.berezin@weil.com
10 MATTHEW J. ANTONELLI (pro hac vice)
Email: matthew.antonelli@weil.com
11 WEIL, GOTSHAL & MANGES LLP
New York Office
12 767 Fifth Avenue
New York, NY 10153
13 Telephone: (212) 310-8000
Facsimile: (212) 310-8007
14
Attorneys for Defendants
15 SAMSUNG ELECTRONICS CO., LTD.,
SAMSUNG ELECTRONICS AMERICA, INC.,
16 SAMSUNG SEMICONDUCTOR, INC., and
SAMSUNG AUSTIN SEMICONDUCTOR, L.P.
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SAMSUNG’S MOTION FOR SUMMARY JUDGMENT OF CASE NO. C 05 00334 RMW

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