Case 3:08-cv-03343-SI Document 65 Filed 12/08/2008 Page 1 of 3

1 Mike McKool, Jr. (pro hac vice)

Douglas Cawley (pro hac vice)
2 McKOOL SMITH P.C.
300 Crescent Court
3 Suite 1500
Dallas, Texas 75201
4 Telephone: (214) 978-4000
Facsimile: (214) 978-4044
5 Email: mmckool@mckoolsmith.com;
dcawley@mckoolsmith.com
6
Scott L. Cole (pro hac vice)
7 Pierre J. Hubert (pro hac vice)
Craig N. Tolliver (pro hac vice)
8 McKOOL SMITH P.C.
300 W. 6th Street
9 Suite 1700
Austin, Texas 78701
10 Telephone: (512) 692-8700
Facsimile: (512) 692-8744
11 Email: scole@mckoolsmith.com;
phubert@mckoolsmith.com;
300 Crescent Court, Suite 1500
McKOOL SMITH P.C.

12 ctolliver@mckoolsmith.com
Dallas, TX 75201

13 Julie S. Turner (State Bar No. 191146)

THE TURNER LAW FIRM
14 344 Tennessee Lane
Palo Alto, California 94306
15 Telephone: (650) 494-1530
Facsimile: (650) 472-8028
16 Email: jturner@julieturnerlaw.com

17 Attorneys for Plaintiff

RAMBUS INC.
18

19 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
20 SAN FRANCISCO DIVISION
21
RAMBUS INC.,
22 Case No. C-08-03343 SI
Plaintiff,
23 RAMBUS INC.’S OPPOSITION TO
v. NVIDIA’S MOTION TO SHORTEN
24 TIME FOR BRIEFING AND
NVIDIA CORPORATION, SUBMITTING MOTION TO STAY
25
Defendant. Judge: The Hon. Susan Illston
26

27

28
Rambus Inc.’s Opposition to NVIDIA’s Motion to Shorten Time
for Briefing and Submitting Motion to Stay
Case No. C-08-03343 SI
Austin 47493v1
 Case 3:08-cv-03343-SI Document 65 Filed 12/08/2008 Page 2 of 3

1 Rambus opposes NVIDIA’s request to compress the time for briefing, and to do away

2 with oral argument, on NVIDIA’s motion to stay this action in its entirety. (See Dkt. No. 62.)

3 NVIDIA’s motion to stay makes two requests: first, that the Court stay claims relating to

4 the so-called “Barth” and “Ware” patents under 28 U.S.C. § 1659(a); and second, that the Court

5 stay claims relating to the “Farmwald” patents under the Court’s inherent power as described in

6 Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). (See Dkt. No. 60 at 4.) Rambus does not intend

7 to contest the § 1659(a) stay of the Barth and Ware patents. But with respect to the request for a

8 Landis stay of the Farmwald patents, Landis itself provides that NVIDIA “must make out a clear

9 case of hardship or inequity in being required to go forward, if there is even a fair possibility that

10 the stay for which [it] prays will work damage to” Rambus. 299 U.S. at 255.

11 Rambus’s briefing will demonstrate that NVIDIA has not met its burden under Landis.
300 Crescent Court, Suite 1500
McKOOL SMITH P.C.

12 For the purposes of this motion, however, Rambus submits that this significant, discretionary
Dallas, TX 75201

13 decision involving the prospect of real prejudice to the non-moving party is not one that should

14 be made without oral argument, on an expedited basis, over the holidays. (See Dkt. No. 62 at 2.)

15 The only reason NVIDIA provides for its motion to expedite is that its Answer—which has

16 already been moved back on NVIDIA’s request1—is currently due on January 16. NVIDIA’s

17 motion to stay, however, notices a hearing date of January 9. (See id.) Providing the parties

18 with a hearing should therefore have minimal impact on NVIDIA’s ability to timely prepare its

19 Answer. Meanwhile, Rambus believes that oral argument is necessary on this motion, and that

20 sufficient time to prepare its brief in opposition will assist the Court in reaching the proper

21 decision.

22 More importantly, however, the issues raised by the motion to stay are intertwined with

23 the anticipated Answer—as well as the case recently transferred from the Middle District of

24 North Carolina, (see Dkt. No. 58)—in such a way that it makes no sense to expedite

25 consideration of the one while delaying consideration of the others, as NVIDIA would encourage

26
1
Rambus’s complaint was filed in July 2008. NVIDIA first received an agreed-upon extension
27 to its response to Rambus’s complaint, then an extension for the pendency of NVIDIA’s motion
to dismiss, and most recently, an extension on its Answer to January 16, 2009.
28
Rambus Inc.’s Opposition to NVIDIA’s Motion to Shorten Time
for Briefing and Submitting Motion to Stay
Case No. C-08-03343 SI
1
 Case 3:08-cv-03343-SI Document 65 Filed 12/08/2008 Page 3 of 3

1 the Court to do. The recently transferred case, in fact, represents one of the threats of prejudice

2 counseling against a Landis stay of the Farmwald patents. In short, the day after Rambus filed

3 its patent-infringement suit in this Court, NVIDIA filed some of its natural counterclaims to this

4 suit—concerning alleged misuses of the Farmwald patents—in the Middle District of North

5 Carolina. (See id. at Ex. A.) In briefing on a motion to transfer in that court, Rambus explained

6 that NVIDIA’s claims properly belonged as counterclaims to Rambus’s patent-infringement suit

7 in this Court. (See id.) The Court agreed, adopting Rambus’s argument, and transferred the case

8 to this District. (See id. at Ex. C.)

9 That case has not yet been docketed, related, or consolidated with this one, (see id.), but it

10 likely will be soon—which undoubtedly explains, at least in part, why NVIDIA is anxious for

11 the Court to expedite its consideration of the motion to stay. NVIDIA would have the Court
300 Crescent Court, Suite 1500
McKOOL SMITH P.C.

12 grant an indefinite stay of Rambus’s first-filed claims relating to the Farmwald patents before it
Dallas, TX 75201

13 is fully confronted with the fact that NVIDIA intends to continue to press its counterclaims

14 relating to those patents in this Court. As will be explained in greater detail in Rambus’s

15 briefing, it would be neither just nor efficient to stay Rambus’s claims relating to the Farmwald

16 patents while proceeding with NVIDIA’s counterclaims relating to the those patents. Instead,

17 the “just, speedy, and inexpensive determination” of this action can best be effected by

18 consolidating, and proceeding with, the claims and counterclaims of both parties relating to the

19 Farmwald patents. See FED. R. CIV. P. 1.

20 To properly present its arguments, however, Rambus should be afforded both time to

21 prepare its brief and a hearing on the motion. There is no emergency here, and the motion to

22 compress the time for briefing and submission over the holidays should be denied.

23 Respectfully submitted,

24 DATED: December 8, 2008 MCKOOL SMITH P.C.

25 THE TURNER LAW FIRM

26 By: /s/ Pierre J. Hubert

Pierre J. Hubert
27
Attorneys for Plaintiff
28 RAMBUS INC.
Rambus Inc.’s Opposition to NVIDIA’s Motion to Shorten Time
for Briefing and Submitting Motion to Stay
Case No. C-08-03343 SI
2