Rambus Inc.'S Daubert Motion No. 1 To Exclude Certain Testimony of Joseph Mcalexander Date: December 2, 2008 Time: 2:00 P.M. CTRM: 6 (Hon. Ronald M. Whyte)

Case 5:05-cv-00334-RMW Document 2435 Filed 10/24/2008 Page 1 of 13
1 Gregory P. Stone (SBN 078329) Rollin A. Ransom (SBN 196126)

Andrea Weiss Jeffries (SBN 183408) SIDLEY AUSTIN LLP
2 Fred A. Rowley, Jr. (SBN 192298) 555 West Fifth Street, Suite 4000
MUNGER, TOLLES & OLSON LLP Los Angeles, CA 90013-1010
3 355 South Grand Avenue, 35th 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 (Pro Hac Vice)
Email: andrea.jeffries@mto.com Craig N. Tolliver (Pro Hac Vice)
6 Email: fred.rowley@mto.com McKOOL SMITH PC
300 West 6th Street, Suite 1700
7 Peter A. Detre (SBN 182619) Austin, TX 78701
Rosemarie T. Ring (SBN 220769) Telephone: (512) 692-8700
8 Jennifer L. Polse (SBN 219202) Facsimile: (512) 692-8744
MUNGER, TOLLES & OLSON LLP Email: phubert@mckoolsmith.com
9 560 Mission Street, 27th Floor Email: ctolliver@mckoolsmith.com
San Francisco, CA 94105
10 Telephone: (415) 512-4000
Facsimile: (415) 512-4077
11 Email: peter.detre@mto.com
Email: rose.ring@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., CASE NO. C 05-00334 RMW
17
Plaintiff, RAMBUS INC.’S DAUBERT MOTION NO.
18 1 TO EXCLUDE CERTAIN TESTIMONY
v. OF JOSEPH MCALEXANDER
19
HYNIX SEMICONDUCTOR INC., et al., Date: December 2, 2008
20 Time: 2:00 p.m.
Defendants. Ctrm: 6 (Hon. Ronald M. Whyte)
21
22 RAMBUS INC., CASE NO. C 05-02298 RMW

Plaintiff,
23
v.
24
SAMSUNG ELECTRONICS CO., LTD.,
25
et al.,
26 Defendants.
27
28
RAMBUS’S DAUBERT MOTION NO. 1 TO EXCLUDE
TESTIMONY OF JOSEPH MCALEXANDER
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW
2 CASE NO. C 06-00244 RMW

RAMBUS INC.,
3
Plaintiff,
4
v.
5
MICRON TECHNOLOGY INC., et al,
6
Defendants.
7
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW
1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

2 PLEASE TAKE NOTICE that Rambus Inc. hereby moves for an order excluding
3 certain testimony of the Manufacturers’ expert witness, Joseph McAlexander. This motion shall
4 be heard on December 2, 2008, at 2:00 p.m., in Courtroom 6 of the above-referenced court,
5 located at 280 South First Street, San Jose, California 95110.
6 This motion is based upon this Notice of Motion and Motion, the attached
7 Memorandum of Points and Authorities, the Declaration of Peter A. Detre filed herewith, the
8 papers and pleadings on file in this action, and such other and further evidence as may
9 subsequently be presented to the Court.
10
11 DATED: October 24, 2008 MUNGER, TOLLES & OLSON LLP

SIDLEY AUSTIN LLP
12 McKOOL SMITH PC
13
14
By: /s/ Peter A. Detre
15 PETER A. DETRE
17
18
19
20
21
22
23
24
25
26
27
28
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION
3 In his expert report on invalidity and in his deposition, the Manufacturers’ expert
4 witness, Joseph McAlexander, has signaled his intention to opine on various matters on which his
5 testimony would be unreliable, irrelevant, or outside the scope of his expert report.
6 Consequently, Rambus respectfully requests that the Court preclude Mr. McAlexander from
7 testifying as to these matters.
8 Specifically, Mr. McAlexander should not be permitted to testify as to matters on
9 which his testimony would be unreliable including:
10 o Patent law, on which Mr. McAlexander is not an expert;
11 o The disclosure of the specification of the patents at issue, to the extent that Mr.
12 McAlexander’s testimony would contradict the Federal Circuit’s opinion in
13 Rambus Inc. v. Infineon Technologies Ag, 318 F.3d 1081 (Fed. Cir. 2003).
14 o First office actions in the reexamination proceedings involving Rambus, which
15 have not been shown to be the sort of documents customarily relied on by experts
16 in the field, and which, in any event, Mr. McAlexander does not cite in a
17 consistent manner; and
18 o Combinations of prior art references that purportedly anticipate patent claims,
19 because Mr. McAlexander’s opinion is contrary to the law of anticipation.
20 In addition, Mr. McAlexander should not be permitted to testify as to matters on
21 which his testimony would be irrelevant, including that Rambus’s RDRAM product suffered from
22 certain drawbacks where those alleged drawbacks are unrelated to any of the inventions at issue
23 in this case.
24 Finally, Mr. McAlexander should not be permitted to testify as to matters outside
25 the scope of his expert report, despite his professed desire to do so.1
26 1
Rambus has two other motions pending that could affect the scope of Mr. McAlexander’s
testimony. If all or part of Rambus’s motion to strike portions of Mr. McAlexander’s expert
27 report is granted, then Mr. McAlexander should not be permitted to testify regarding the portions
stricken. In addition, if Rambus’s motion for reconsideration of the construction of the term
28 “memory device” is granted, then Mr. McAlexander should not be permitted to testify that
-1- TESTIMONY OF JOSEPH MCALEXANDER
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW
1 II. ARGUMENT
2 A. Under Rule 702 and Daubert, this Court Exercises a Gatekeeping Function to
Exclude Unreliable or Irrelevant Expert Opinion Testimony.
3
4 “Expert evidence can be both powerful and quite misleading because of the
5 difficulty in evaluating it.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993).
6 Moreover, an “added aura of reliability” necessarily attaches to testimony offered by an expert
7 witness. United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999). This creates a “substantial
8 danger” that expert testimony will confuse and unduly prejudice the jury. United States v.
9 Fosher, 590 F.2d 381, 383 (1st Cir. 1979).
10 Accordingly, Federal Rule of Evidence 702 “places limits on the areas of expertise
11 and the methodologies of analysis which may be covered and used by an expert witness.” DSU
12 Med. Corp. v. JMS Co., 296 F. Supp. 2d 1140, 1146 (N.D. Cal. 2003). The rule permits an expert
13 witness with “scientific, technical, or other specialized knowledge” to testify in the form of an
14 opinion only “if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the
15 product of reliable principles and methods, and (3) the witness has applied the principles and
16 methods reliably to the facts of the case.” Fed. R. Evid. 702. The proponent of expert testimony
17 must establish its admissibility by a preponderance of the evidence. Bourjaily v. United States,
18 483 U.S. 171, 175-76 (1987).
19 Under Daubert, this Court must act as a “gatekeeper” to ensure, with respect to
20 each proposed expert witness and subject of expert opinion testimony, that “the reasoning or
21 methodology underlying the testimony is scientifically valid” and “can properly be applied to the
22 facts at issue.” DSU Med. Corp., 296 F. Supp. 2d at 1146 (quoting Daubert, 509 U.S. at 592-93
23 (alteration in original)); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999)
24 (extending the trial court’s gatekeeping obligation under Daubert to all forms expert testimony,
25 whether or not such testimony is “scientific”).
26 ///
27
multiple chips, such as, for example, the combination of the MCU and the memory array in the
28 iAPX432, together constitute a “memory device.”
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW
1 In discharging its obligation to ensure that expert testimony is based on the

2 application of reliable theories or techniques, this Court enjoys broad discretion—both in
3 deciding how to assess reliability and whether reliability exists. Kumho Tire, 526 U.S. at 148-49,
4 152. While the relevant factors will depend on the specific nature of the testimony to be
5 presented and the facts of the particular case, the key is “to make certain that an expert, whether
6 basing testimony upon professional studies or personal experience, employs in the courtroom the
7 same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”
8 Id. at 151-52.
9 B. Mr. McAlexander Should Be Precluded from Testifying to Matters as to
Which His Opinions Are (1) Not Reliable as Outside the Scope of His
10 Expertise or Contrary to Law, (2) Irrelevant to the Issues in this Case, or (3)
Outside the Scope of His Expert Report.
11
1. Mr. McAlexander Should Be Precluded from Offering Legal Opinions
12
13 Mr. McAlexander’s expert report includes numerous statements regarding his

14 understanding of various tenets of patent law, including several sections consisting almost
15 entirely of legal opinions. Report ¶¶ 23-43.2 Mr. McAlexander does not purport to be an expert
16 on the law. Even if he were a legal expert, he would not be entitled to usurp the Court’s role in
17 setting forth the governing law. See Pinal Creek Group v. Newmont Mining Corp., 352 F. Supp.
18 2d 1037 (D. Ariz. 2005) (holding that testimony from legal experts regarding the law is
19 inadmissible, and collecting cases regarding same); In re Initial Pub. Offering Sec. Litig., 174 F.
20 Supp. 2d 61, 64 (S.D.N.Y. 2001) (noting that “every circuit has explicitly held that experts may
21 not invade the court’s province by testifying on issues of law”). Moreover, many of Mr.
22 McAlexander’s statements regarding patent law are unrelated to any issue in this case. For
23 example, Mr. McAlexander sets forth his understanding of the law regarding indefiniteness,
24 Report ¶ 28, and enablement, Report ¶¶ 31-32, even though he does not opine that any of the
25
2
26 Citations to “Report” are to the Corrected Expert Report of Joseph McAlexander Regarding
Invalidity, dated Sept. 15, 2008. A copy of the Report, redacted to remove portions that the
27 Manufacturers have identified as confidential and to remove the portion dealing with the Ware
patents that are no longer at issue, is attached as Exhibit A to the Declaration of Peter A. Detre
28 filed in support of this motion.
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW
1 asserted claims are invalid for failure to satisfy the definiteness and enablement requirements.
2 Mr. McAlexander should be precluded from opining on patent law.
3 2. Mr. McAlexander Should Be Precluded from Contradicting the Federal
Circuit’s Opinion in Infineon.
4
5 Mr. McAlexander opines that the specification of the asserted patents describes “a
6 narrow, multiplexed bus” and that “[t]he only discussion or mention in the Farmwald
7 specification of any other type of bus or bus interface occurs in the section of the specifications
8 entitled ‘Comparison With Prior Art.’” Report ¶ 360. Mr. McAlexander’s opinion in this regard
9 is, however, contrary to the Federal Circuit’s opinion in Rambus Inc. v. Infineon Technologies Ag,
10 318 F.3d 1081 (Fed. Cir. 2003). In the course of construing the term “bus,” the Infineon court
11 expressly analyzed the disclosure in the specification and held that “most references to ‘bus’ in
12 the specification do not limit the ordinary meaning of this term.” Id. at 1094.
13 Building on his erroneous opinion regarding the disclosure of the specification,
14 Mr. McAlexander further opines that a person of skill in the art reading Rambus’s original ’898
15 application would understand that a narrow, multiplexed bus “is a necessary part of the claimed
16 inventions and permeates all aspects of the structure and operation of the alleged inventions.”
17 Report ¶ 361. Mr. McAlexander thus concludes that “claims that do not require a connection to a
18 multiplexed bus are not supported by the written description of the ’898 application.” Id. In a
19 related vein, he opines that “claims that provide for transaction requests to be sent to the memory
20 device other than as part of a packet over a multiplexed bus are not supported by the written
21 description of the ’898 application.” Report ¶ 362. Again, this is contrary to the Infineon court’s
22 holding that “a multiplexing bus is only one of many inventions disclosed in the ’898 application.
23 Although some of Rambus’s claimed inventions require a multiplexing bus, multiplexing is not a
24 requirement in all of Rambus’s claims.” Infineon, 318 F.3d at 1095. In addition, Mr.
25 McAlexander’s opinion that there is no support in the specification for claims in which
26 transaction requests are not sent as part of “packets” is contrary to the Federal Circuit’s analysis
27 of the term “read request”: the court, relying in part on the disclosure in the specification,
28 construed “read request” without any limitation to packets. Id. at 1091-93.
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW
1 Mr. McAlexander has, in fact, acknowledged that, contrary to the broad language
2 in his report, in order to abide by the Federal Circuit’s opinion, he must concede that the
3 specification of the asserted patents do disclose inventions independent of the use of a narrow,
4 multiplexed bus. Depo. at 62:24 – 63:11.3 In a belated attempt to reconcile his opinions with
5 Infineon, Mr. McAlexander testified at his deposition that the Federal Circuit’s reference to
6 inventions that did not require a multiplexed bus was in regard to the preferred means of
7 packaging a memory chip disclosed in the specification. Depo. at 63:12 – 64:1.4 The Infineon
8 opinion cannot, however, be read as narrowly as Mr. McAlexander proposes. The inventions at
9 issue in Infineon did not relate to packaging, but were directed at some of the same features – like
10 variable burst length and programmable read latency – that are at issue here. 318 F.3d at 1085.
11 Not only does Infineon never refer to packaging, but, after noting that certain claims do not
12 require a multiplexed bus, the Federal Circuit cites to a restriction requirement in the prosecution
13 history that separated out a “latency” invention (referring to programmable read latency) and a
14 “multiplexing bus” invention as further support for its opinion. Id. at 1095. This citation would
15 be nonsensical if, as Mr. McAlexander submits, the inventions that the Federal Circuit had in
16 mind that were independent of a multiplexed bus related only to packaging.
17 Mr. McAlexander should not be permitted to testify to opinions contrary to the
18 Infineon opinion. In particular, Mr. McAlexander should not be permitted to testify that there is
19 no written description support in the specification of the asserted patents for the asserted claims
20 independent of a narrow, multiplexed bus or independent of a packetized protocol.
21 3. Mr. McAlexander Should Be Precluded from Testifying to the
Reexamination Proceedings Involving Rambus.
22
23 Mr. McAlexander cites office actions in certain reexamination proceedings as

24 supporting his written description positions. Report ¶¶ 367-68. Rambus will file a motion in
25 limine in due course requesting that the Court bar the Manufacturers from introducing any
26
3
Citations to “Depo.” are to the transcript of the deposition of Joseph McAlexander taken on Oct.
27 14, 2008. Excerpts of the deposition are attached as Exhibit B to the Detre Declaration.
4
28 “Packaging” is mis-transcribed in the deposition as “packeting.” Depo. at 63:23.
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW
1 evidence or argument regarding the reexamination proceedings on the grounds that any such
2 evidence or argument would be irrelevant and unfairly prejudicial. In addition, Mr. McAlexander
3 should not be permitted to testify regarding the reexamination proceedings for multiple reasons.
4 First, the Manufacturers have not shown that first office actions in patent reexamination
5 proceedings are the sort of materials on which an expert in the field of memory design would
6 rely. Second, even if such first office actions would be relied on by experts, Mr. McAlexander
7 has not cited them in a reliable and consistent manner. Specifically, Mr. McAlexander cites the
8 office actions as support for his opinions that the Farmwald/Horowitz specification does not
9 provide sufficient written description support for a DLL or dual-edge clocking, while ignoring the
10 fact that the very same office actions rejected Mr. McAlexander’s other written description
11 arguments, such as that the specification does not support inventions independent of a narrow,
12 multiplexed bus, does not support inventions independent of a packetized protocol, and does not
13 support inventions independent of an “early clock/late clock” clocking scheme. Finally, Mr.
14 McAlexander’s testimony regarding the office actions would not assist the jury because Mr.
15 McAlexander provides no expert analysis of the office actions, but merely quotes certain of the
16 results reached in them.
17 4. Mr. McAlexander Should Not Be Permitted to Combine Multiple
References in Support of His Anticipation Arguments.
18
19 Mr. McAlexander opines that multiple references, which he designates collectively

20 as the “SCI references,” together anticipate certain Rambus claims. Detre Decl., Ex. C
21 (Attachment A to the McAlexander Report). Likewise, Mr. McAlexander groups various other
22 references together as the so-called “iAPX references” and argues that this group of references
23 together anticipate certain Rambus claims. Detre Decl., Ex. D (Attachment B to the
24 McAlexander Report). The law is clear, however, that establishing anticipation requires a
25 showing “that the four corners of a single, prior art document describe[s] every element of the
26 claimed invention.” Xerox Corp. v. 3Com Corp., 458 F.3d 1310, 1322 (Fed. Cir. 2006).
27 Moreover, an anticipatory reference must “show all of the limitations of the claims arranged or
28 combined in the same way as recited in the claims,” Net MoneyIN, Inc. v. Verisign, Inc.,
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW
1 --- F.3d ---, No. 2007-1565, 2008 WL 4614511 at *8 (Fed. Cir. Oct. 20, 2008), an impossibility if
2 the limitations are spread over multiple documents.
3 At his deposition, Mr. McAlexander conceded that he was relying on a
4 combination of distinct SCI references for his anticipation opinions. Depo. at 16:17 – 17:1.
5 Nevertheless, Mr. McAlexander defended this procedure by stating that it was appropriate
6 because all the documents “refer to the same specific system.” Depo. at 17:18. Mr.
7 McAlexander cites no support for this proposition in his report, and, in his deposition, admitted
8 that he was “not aware of a working [SCI] system” in the relevant time frame. Depo. at 19:24 –
9 20:3.
10 Mr. McAlexander should be precluded from relying, contrary to law, on
11 combinations of prior art references to support his opinions regarding anticipation.
12 5. Mr. McAlexander Should Be Precluded from Testifying About Alleged
Problems with RDRAM.
13
14 One section of Mr. McAlexander’s report is headed “Rambus’s ‘Invention’ Made

15 Certain Aspects Of The Memory Bottleneck Worse.” Report ¶¶ 349-354. The section consists of
16 a number of quotations from, and cites to, certain publications, with no further analysis by Mr.
17 McAlexander, regarding alleged drawbacks of RDRAM. While some background information
18 about RDRAM may be appropriate, Mr. McAlexander’s specific opinions regarding drawbacks of
19 RDRAM have no relevance to any issue in this case and would only be confusing to the jury. As
20 Mr. McAlexander concedes, the analysis in this section of his report is not tied to the Rambus
21 inventions at issue but to RDRAM generally. Depo. at 135:9 -136:19. Indeed, the alleged
22 drawbacks of RDRAM discussed in this section relate to features, like the use of a packetized
23 protocol, that the Manufacturers assert are not used in the accused products. Depo. at 136:25 –
24 137:22. Yet, the jury could be misled into thinking that it is the inventions at issue that were
25 criticized in the articles cited by Mr. McAlexander. Moreover, even if the proposed testimony
26 did have any marginal relevance, Mr. McAlexander’s citation of various articles, devoid of any
27 analysis of his own, would not assist the jury. Finally, Mr. McAlexander’s testimony regarding
28 drawbacks of RDRAM, coupled with his opinion that RDRAM was not commercially successful,
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW
1 Report ¶ 355, would require Rambus to respond with evidence that it was the Manufacturers’
2 anticompetitive activities – not any purported drawbacks of RDRAM – that prevented RDRAM
3 from becoming the dominant DRAM for main memory.
4 6. Mr. McAlexander Should Be Precluded from Offering Opinions Outside
the Scope of His Expert Report.
5
6 Mr. McAlexander has signaled his intent to opine on matters outside his expert
7 report if permitted to do so. Depo. at 10:5 – 11:15. In particular, Mr. McAlexander stated that he
8 would opine at trial that a patent to an inventor named Hoff cited in the background section of the
9 Farmwald/Horowitz specification relates to an Intel product known as the MCS-4 and was a
10 “synchronous-type memory system.” Id.
11 Federal Rule of Civil Procedure 26(a)(2)(B)(i) provides that an expert’s report
12 must contain “a complete statement of all opinions the witness will express and the basis and
13 reasons for them.” Mr. McAlexander should not be permitted to evade the requirements of the
14 Federal rules and introduce new opinions at this late date – opinions that he concedes are outside
15 the scope of his expert report.
16 Mr. McAlexander attempts to justify his untimely opinions regarding the Hoff
17 patent and Intel’s MCS-4 product, testifying that he intends to raise them “based upon some
18 positions that were taken by Mr. Murphy [in his rebuttal expert report], with regard to the fact that
19 the state of the art was asynchronous, and that synchronous was not part of what was known and
20 in use at the time.” Depo. at 11:24 – 12:2. Mr. McAlexander’s excuse is disingenuous. Indeed,
21 Mr. McAlexander opined in his original report – prior to Mr. Murphy’s rebuttal report – that early
22 synchronous DRAM interfaces existed, but chose not to include the Hoff patent or the Intel MCS-
23 4 as support for his opinion. Report ¶ 47.
24 Mr. McAlexander should be precluded from opining on topics outside the scope of
25 his expert report, including the Hoff patent and Intel’s MCS-4 product.
26 7. Mr. McAlexander Should Not Be Permitted to Rely on Prior Art
References that Are Not on His Invalidity Charts.
27
Mr. McAlexander should not be permitted to rely on prior art references that do
28
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW
1 not appear on the charts attached to his report in support of his opinions regarding anticipation
2 and obviousness. In response to questioning regarding whether Attachment M to his report, a
3 summary chart, listed all of the prior art references that Mr. McAlexander intended to rely on to
4 support his opinions regarding anticipation and obviousness, Mr. McAlexander testified that
5 Attachment M “is an overview of the attachments A through L, listing the various art, against the
6 various patents. That is a true and complete representation of the art as I cited it in my expert
7 report.” Depo. at 15:24 – 16:3. In the body of his report, however, Mr. McAlexander refers in
8 passing to certain prior art references that do not appear on Attachment M or the charts at
9 Attachments A through L. For example, in his report, Mr. McAlexander opines that a December
10 1988 Unisys presentation to JEDEC “included a register programmable block size.” Report ¶
11 152. Mr. McAlexander provides no further detail regarding the Unisys presentation and does not
12 explain how, if at all, the Unisys presentation relates to any of the asserted claims that include a
13 “block size information” limitation. The Unisys presentation does not appear on the charts
14 detailing Mr. McAlexander’s anticipation and obviousness opinions with respect to the asserted
15 claims. See Detre Decl., Ex. E (Attachment M to Mr. McAlexander’s Report).
16 Prior to the service of Mr. McAlexander’s report, the Court instructed the
17 Manufacturers to reduce the number of their prior art references, stating that “[i]t is hard for the
18 court to imagine a legitimate basis for asserting more than two allegedly anticipating references
19 and two or three obviousness combinations per claim.” Supplemental Claim Construction Order
20 for the Ware Patents, Aug. 27, 2008, at 10. The number of prior art references per claim alleged
21 to be anticipatory or to render the claim obvious on Mr. McAlexander’s invalidity charts already
22 exceeds the Court’s guidelines. Detre Decl., Ex. E. The Manufacturers should not be permitted
23 to rely on yet more prior art references that Mr. McAlexander did not even see fit to include in his
24 charts, based on passing references in the body of Mr. McAlexander’s report.
25 III. CONCLUSION
26 For the reasons set forth above, Rambus respectfully requests that the Court enter an order
27 precluding Mr. McAlexander from testifying at trial as to the matters discussed in this motion.
28
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW
1 DATED: October 24, 2008 MUNGER, TOLLES & OLSON LLP

SIDLEY AUSTIN LLP
2 McKOOL SMITH PC
3
4
By: /s/ Peter A. Detre
5 PETER A. DETRE
7
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 10 - TESTIMONY OF JOSEPH MCALEXANDER
C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW

Rambus Inc.'S Daubert Motion No. 1 To Exclude Certain Testimony of Joseph Mcalexander Date: December 2, 2008 Time: 2:00 P.M. CTRM: 6 (Hon. Ronald M. Whyte)

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Rambus Inc.'S Daubert Motion No. 1 To Exclude Certain Testimony of Joseph Mcalexander Date: December 2, 2008 Time: 2:00 P.M. CTRM: 6 (Hon. Ronald M. Whyte)

Uploaded by

Copyright:

Available Formats

Case 5:05-cv-00334-RMW Document 2435 Filed 10/24/2008 Page 1 of 13

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

15 NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

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

2 CASE NO. C 06-00244 RMW

1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

11 DATED: October 24, 2008 MUNGER, TOLLES & OLSON LLP

1 MEMORANDUM OF POINTS AND AUTHORITIES

7 testifying as to these matters.

8 Specifically, Mr. McAlexander should not be permitted to testify as to matters on

9 which his testimony would be unreliable including:

10 o Patent law, on which Mr. McAlexander is not an expert;

12 McAlexander’s testimony would contradict the Federal Circuit’s opinion in

14 o First office actions in the reexamination proceedings involving Rambus, which

17 consistent manner; and

18 o Combinations of prior art references that purportedly anticipate patent claims,

19 because Mr. McAlexander’s opinion is contrary to the law of anticipation.

20 In addition, Mr. McAlexander should not be permitted to testify as to matters on

24 Finally, Mr. McAlexander should not be permitted to testify as to matters outside

6 Moreover, an “added aura of reliability” necessarily attaches to testimony offered by an expert

9 Fosher, 590 F.2d 381, 383 (1st Cir. 1979).

18 483 U.S. 171, 175-76 (1987).

25 whether or not such testimony is “scientific”).

1 In discharging its obligation to ensure that expert testimony is based on the

13 Mr. McAlexander’s expert report includes numerous statements regarding his

23 Mr. McAlexander cites office actions in certain reexamination proceedings as

19 Mr. McAlexander opines that multiple references, which he designates collectively

14 One section of Mr. McAlexander’s report is headed “Rambus’s ‘Invention’ Made

1 DATED: October 24, 2008 MUNGER, TOLLES & OLSON LLP

You might also like