2577

Case 5:05-cv-00334-RMW Document 2577 Filed 11/14/2008 Page 1 of 15
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, California 90013-1010
3 355 South Grand Avenue, 35th Floor Telephone: (213) 896-6000
Los Angeles, California 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, Texas 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, California 94105
10 Telephone: (415) 512-4000
Facsimile: (415) 512-4077
11 Email: peter.detre@mto.com
A PROFESSIONAL CORPORATION • ATTORNEYS
Email: rose.ring@mto.com
12 Email: jen.polse@mto.com
13
MCKOOL SMITH
Attorneys for RAMBUS INC.

DALLAS, TEXAS
14 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
15
RAMBUS INC., ) Case No. C 05-00334 RMW
16 )
Plaintiff, ) RAMBUS INC.’S OPPOSITION TO
17 vs. SAMSUNG’S MOTION FOR
) SUMMARY JUDGMENT OF
HYNIX SEMICONDUCTOR INC., et al., ) NONINFRINGEMENT OF METHOD
18 ) CLAIMS (MSJ NO. 12)
19 Defendants. )
) Judge: Hon. Ronald M. Whyte
20 ) Date: December 11, 2008
) Time: 2:00 p.m.
21 Courtroom: 6, 4th Floor
)
RAMBUS INC., ) Case No. C 05-002298 RMW
22
)
Plaintiff, )
23 v.
)
24 SAMSUNG ELECTRONICS CO., LTD.,)
)
25 et al., )
Defendants. )
26
)
27
28
Rambus Inc.’s Opposition to Samsung’s MSJ No. 12
Case Nos. CV 05-00334 RMW, CV 05-002298 RMW
Austin 47122v2
1 TABLE OF CONTENTS
2 I. INTRODUCTION ...............................................................................................................1
3 II. ARGUMENT.......................................................................................................................1
4 A. Summary Judgment Standards.................................................................................2
5 B. Summary Judgment Regarding Direct Infringement of the

Method Claims Should Be Denied ..........................................................................2
6
C. Summary Judgment Regarding Inducing or Contributory
7 Infringement of the Method Claims Should Be Denied ..........................................3
8 1. There is Ample Evidence of Direct Infringement By

Third Parties.................................................................................................4
9
2. There is Ample Evidence of Samsung’s Inducement
10 and Intent .....................................................................................................9
11 III. CONCLUSION..................................................................................................................11
12
13
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DALLAS, TEXAS
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15
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17
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21
22
23
24
25
26
27
28
i
Austin 47122v2
2 TABLE OF AUTHORITIES
3 Page(s)
CASES
4
Anderson v. Liberty Lobby,
5 477 U.S. 242 (1986)...................................................................................................................2
6 Bio-Technology Gen. Corp. v. Duramed Pharms.,
325 F.3d 1356 (Fed. Cir. 2003)..................................................................................................4
7
8 Broadcom Corp. v. Qualcomm, Inc.,

543 F.3d 683 (Fed. Cir. 2008)..............................................................................................9, 11
9
CBS Broad., Inc. v. EchoStar Communs. Corp.,
10 450 F.3d 505 (11th Cir. 2006) ...................................................................................................9
11 Celotex Corp v. Catrett,
477 U.S. 317 (1986)...................................................................................................................2

12
13 Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc.,

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DALLAS, TEXAS
145 F.3d 1303 (Fed. Cir. 1998)................................................................................................10

14
Daubert v. Merrell Dow Pharms.,
15 509 U.S. 579 (1993)...................................................................................................................7
16 Fuji Photo Film Co. v. Jazz Photo Corp.,

394 F.3d 1368 (Fed. Cir. 2005)............................................................................................9, 10
17
Liquid Dynamics Corp. v. Vaughan Co.,
18
449 F.3d 1209 (Fed. Cir. 2006)..............................................................................................3, 4
19
MEMC Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp.,
20 420 F.3d 1369 (Fed. Cir. 2005)................................................................................................10
21 Mentor H/S, Inc. v. Med. Device Alliance, Inc.,

244 F.3d 1365 (Fed. Cir. 2001)................................................................................................10
22
Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings,
23 370 F.3d 1354 (Fed. Cir. 2004)................................................................................................10
24
Moleculon Research Corp. v. CBS, Inc.,
25 793 F.2d 1261 (Fed. Cir. 1986)..........................................................................................3, 4, 5
26 Oxford Gene Tech. Ltd. v. Mergen Ltd.,

345 F. Supp. 2d 444 (D. Del. 2004)...........................................................................................4
27
28 ii
Austin 47122v2
1 Semiconductor Energy Lab. Co. v. Chi Mei Optoelectronics Corp.,

531 F. Supp. 2d 1084 (N.D. Cal. 2007) .....................................................................................4
2
Sharper Image Corp. v. Target Corp.,
3 425 F. Supp. 2d 1056 (N.D. Cal. 2006) ...............................................................................5, 10
4
10
11
12
13
MCKOOL SMITH
DALLAS, TEXAS
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 iii
Austin 47122v2
1 I. INTRODUCTION
2
Defendants Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., Samsung
3
Semiconductor Inc., and Samsung Austin Semiconductor, L.P. (collectively “Samsung”) have
4
moved for partial summary judgment that they do not infringe the four method claims Rambus
5
Inc. (“Rambus”) has elected for trial in these cases.1
6
Samsung has failed to meet its burden of establishing an absence of evidence supporting
7
Rambus’s infringement claims. There is extensive evidence of Samsung’s infringement of these
8
method claims – including testimony of Samsung’s own 30(b)(6) corporate representative,
9
Samsung’s own documents, and the opinions of Rambus’s expert witness, Mr. Robert Murphy.
10
This evidence establishes that Rambus should prevail on these claims and thus forecloses the
11
summary judgment Samsung seeks. Infringement is itself a question of fact, and Samsung’s
12
motion at best raises precisely the sort of factual issues that preclude summary judgment.
13
MCKOOL SMITH
Accordingly, Samsung’s motion should be denied.

DALLAS, TEXAS
14
15 II. ARGUMENT
16
Before Samsung filed the instant motion, Rambus moved for summary judgment that
17
Samsung infringes the claims elected for trial, including the method claims for which Samsung
18
now seeks summary judgment of noninfringement. Rambus hereby incorporates by reference its
19
previous summary judgment filings (C 05-00334 Dkt. Nos. 489, 496, 505, 510, 725, 726; C 06-
20
00244 Dkt. Nos. 200, 201, C 05-02298 Dkt. Nos. 355, 357, 341, 350, 550, 551) as if fully set
21
forth here. Rambus also incorporates by reference its discussion of Samsung’s infringement of
22
the method claims included in a separate opposition Rambus is filing concurrently herewith.
23
(See Rambus’s Omnibus Opp. to Mfrs’ Damages-Related MSJs and Daubert Motions).
24
25
26
1
27 Samsung does not seek summary judgment regarding infringement of the eight apparatus
claims Rambus has elected for trial.
28 Rambus Inc.’s Opposition to Samsung’s MSJ No. 12
1
Austin 47122v2
1 A. Summary Judgment Standards
2
On summary judgment, it is the movant’s – in this case, Samsung’s – burden to
3
demonstrate the absence of any genuine issue of material fact. See Celotex Corp v. Catrett, 477
4
U.S. 317, 322-23 (1986). In deciding a summary judgment motion, a court must determine
5
whether genuine issues of material fact exist….” Anderson v. Liberty Lobby, 477 U.S. 242
6
(1986). In doing so, the court must “resolv[e] any doubt in favor of the party opposing the
7
motion” – in this case, Rambus. Id. Accordingly, the evidence presented by the nonmoving
8
party “is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson,
9
477 U.S. at 255.
10
11 B. Summary Judgment Regarding Direct Infringement of the Method Claims

Should Be Denied
12
13 Samsung seeks summary judgment that it has not directly infringed the method claims
MCKOOL SMITH
DALLAS, TEXAS
14 elected for trial, claiming there is a lack of evidence that it performed the patented methods in the
15 United States.
16 Samsung’s extensive sales of accused products in the United States, as detailed in its own
17 expert damages report, and its significant presence in the United States, including its
18 manufacturing facility in Austin, Texas, indicate that Samsung at least operates the accused
19 products in the United States – be it for sales or technology demonstrations, general internal use
20 of its computer systems, or testing or design verification activities it carries out for its products.
21 See Ex. A 2 (11/07/08 Jung-Bae Lee Depo), 81:11-14, 114:12-16, 143:17-22). Such operation of
22 the accused products necessarily entails performing the steps of the method claims, and thus
23 infringes them, as is shown by Samsung’s own datasheets.3
24 2
Unless otherwise indicated, “Ex.” refers herein to exhibits to the Declaration of Trent E.
Campione (“Campione Decl.”) filed herewith.
25 3
See 11/14/2008 Decl. of Robert J. Murphy ISO Rambus’s Opps. To Mfrs’ MSJs (“Murphy
26 Decl.”) filed herewith, ¶8; Omnibus Decl of Sven Raz ISO Mfrs’ SJ and Daubert Mos. (Dkt. No.
1504) (“Raz Decl.”), Ex. 7 (9/5/08 Murphy Rpt), ¶¶49, 186-190, 194, 210-214, 218, 222, 284-
27 290, 454-458, 462, 466, 468; Ex. B (Murphy Rpt Ex. S (claim charts)); Ex. C (Murphy Rpt Ex.
W (Samsung data sheets)); 11/16/07 Murphy Decl. ISO MSJ Reply (Dkt. 726), ¶2.
28
2
1
The law is clear that “[a] patentee may prove direct infringement or inducement of
2
infringement by either direct or circumstantial evidence.” Liquid Dynamics Corp. v. Vaughan
3
Co., 449 F.3d 1209, 1219 (Fed. Cir. 2006) (citing Moleculon Research Corp. v. CBS, Inc., 793
4
F.2d 1261, 1272 (Fed. Cir. 1986) (noting “it is hornbook law that direct evidence of a fact is not
5
necessary”)). “There is no requirement that direct evidence be introduced, nor is a jury's
6
preference for circumstantial evidence over direct evidence unreasonable per se.” Id. (citation
7
omitted). Indeed, “[c]ircumstantial evidence is not only sufficient, but may also be more certain,
8
satisfying and persuasive than direct evidence.” Moleculon Research, 793 F.2d at 1272 (quoting
9
Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960)).
10
Accordingly, the evidence of Samsung’s direct infringement at the very least raises
11
genuine issues precluding summary judgment of noninfringement, particularly when viewing the
12
evidence in the light most favorable to Rambus.4
13
MCKOOL SMITH
DALLAS, TEXAS
14 C. Summary Judgment Regarding Inducing or Contributory Infringement of

the Method Claims Should Be Denied
15
16 Samsung also seeks summary judgment that it has not indirectly infringed the method
17 claims, purportedly because there is inadequate evidence of direct infringement by a third party
18 or that Samsung knowingly induced any third party to practice the patented methods.5 Samsung
19 is wrong on both issues.
20
21
22
23 4
Indeed, in the related Hynix I case, this Court found similar evidence of infringement sufficient
to grant summary judgment in Rambus’s favor that Hynix’s DRAM products, similar in all
24 material respects to Samsung’s accused DRAM products, perform all the steps of, and thus
infringe, one of the method claims asserted here. (See Rambus MSJ Reply (Dkt. No. 725) at § I
25 (pp. 1-3); Raz Decl., Ex. 7 (9/5/08 Murphy Rpt), ¶¶61-62).
5
26 Samsung does not argue there is any lack of evidence regarding substantial noninfringing uses
for the accused products, or any other fact that may relate to contributory or inducing
27 infringement. As discussed above, operation of the accused products entails performing the
steps of the elected method claims, and thus infringes those claims.
28
3
1 1. There is Ample Evidence of Direct Infringement By Third Parties
2 a. Direct Infringement Is Established Even Absent Evidence of

Specific Instances of Direct Infringement
3
4 Rambus need not point to specific instances of direct infringement by third parties who
5 use the accused products to perform the patented methods. “[I]f use of the [accused product] by
6 the defendant's customers necessarily infringes the patent, actual proof of an instance of direct
7 infringement is not required.” Oxford Gene Tech. Ltd. v. Mergen Ltd., 345 F. Supp. 2d 444, 465
8 (D. Del. 2004) (citing Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1275-76
9 (Fed. Cir. 2004)); see Bio-Technology Gen. Corp. v. Duramed Pharms., 325 F.3d 1356, 1360-61
10 (Fed. Cir. 2003) (reversing grant of summary judgment of noninfringement where expert
11 testified regarding necessary infringement by third party using accused product); Semiconductor
12 Energy Lab. Co. v. Chi Mei Optoelectronics Corp., 531 F. Supp. 2d 1084, 1112 (N.D. Cal. 2007)
13 (rejecting argument that evidence of actual, specific infringing importations by defendant’s

MCKOOL SMITH
DALLAS, TEXAS
14 customers must be shown). Moreover, “[a] patentee may prove … inducement of infringement
15 by either direct or circumstantial evidence.” Liquid Dynamics, 449 F.3d at 1219 (citation
16 omitted). Indeed, “[c]ircumstantial evidence is not only sufficient, but may also be more certain,
17 satisfying and persuasive than direct evidence.” Moleculon Research, 793 F.2d at 1272
18 (quotation omitted).
19 Accordingly, in Symantec Corp. v. Computer Assocs. Int'l, Inc., the Federal Circuit
20 concluded there were genuine issues of material fact as to whether defendant induced its
21 customers to infringe, and vacated summary judgment, because the use of the accused products
22 necessarily infringed:
23 This is not a case where the customers may be using the product in
either an infringing way or a non-infringing way; [defendant’s]
24 customers can only use the [accused] products in an infringing
way. Under these circumstances, [plaintiff] has produced
25 sufficient circumstantial evidence of direct infringement to create a
genuine issue of material fact, even though [plaintiff] has not
26 produced evidence that any particular customer has directly
infringed the [patent-in-suit]. Direct evidence of infringement, as
27 opposed to circumstantial evidence, is not necessary.
28
4
1
522 F.3d 1279, 1293 (Fed. Cir. 2008) (citations omitted, emphasis added). The result should be
2
the same here because Samsung’s customers, including its many customers in the United States –
3
like the third party direct infringers in Symantec – can use the accused products only in an
4
infringing way.6
5
Moreover, even if Samsung’s accused products could be used in noninfringing ways,
6
summary judgment for Samsung would nevertheless be inappropriate. Samsung’s dissemination
7
of its datasheets, which describe and promote use of the accused DRAM products in a manner
8
Rambus contends infringes the method claims,7 is itself adequate evidence of third party direct
9
infringement that forecloses summary judgment for Samsung. See Sharper Image Corp. v.
10
Target Corp., 425 F. Supp. 2d 1056, 1065-66 (N.D. Cal. 2006) (concluding that “circumstantial
11
evidence that those who followed the product instructions infringed” the patent rendered
12
summary judgment inappropriate, even though there was “evidence that some, and possibly
13
MCKOOL SMITH
many, consumers did not infringe” because a trier of fact could reasonably infer that at least
DALLAS, TEXAS
14
some customers did follow the instructions).
15
Samsung’s extensive U.S. sales, reflected in its own expert’s opinions on damages, also
16
are sufficient evidence of direct infringement by Samsung’s customers. See Moleculon
17
Research, 793 F.2d at 1272 (concluding plaintiff met its burden of proving inducement by
18
offering circumstantial evidence of extensive product sales and dissemination of documents
19
teaching the patented method). And for good reason – it defies logic to conclude that, of the
20
many thousands of end-users in the United States who collectively have purchased millions of
21
dollars of accused Samsung DRAM products, none are using the products.
22
23
6
24 See 11/14/2008 Murphy Decl., ¶8; Raz Decl., Ex. 7 (9/5/08 Murphy Report), ¶¶49, 186-190,
194, 210-214, 218, 222, 284-290, 454-458, 462, 466, 468; Ex. B (Murphy Rpt Ex. S (claim
25 charts)), Ex. C (Murphy Rpt Ex. W (Samsung data sheets)); 11/16/07 Murphy Decl. ISO MSJ
Reply (Dkt. No. 726), ¶2.
26 7
Ex. C (Murphy Rpt Ex. W (Samsung data sheets)); see, e.g., id. at 17 (“Any system or
27 application incorporating random access memory products should be properly designed, tested
and qualified to ensure proper use or access of such memory products.”).
28
5
1
Third party use and direct infringement of the method claims is further evidenced by
2
Samsung’s admissions that it provides samples to its customers,8 many of which are located in
3
the United States. If these customers did not in fact operate the sample DRAM products, there
4
would be little purpose for Samsung to devote its resources to providing them.
5
Accordingly, there is sufficient evidence that Samsung’s customers operate the accused
6
products in the United States in an infringing manner, and summary judgment of
7
noninfringement would be inappropriate.
8
9 b. Though it is Not Required to Do So, Rambus Has Also

Adduced Evidence of Specific Instances of Direct Infringement
10 by Third Parties
11
Though it is not required to do so, Rambus has also submitted extensive evidence of
12
specific instances of infringement by third parties in the United States. As set out in Mr.
13
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Murphy’s expert report, Computer Memory Testing Labs (“CMT Labs”), located in California,
DALLAS, TEXAS
14
tests DRAM products to certify that they will work properly with other components. (See Raz
15
Decl., Ex. 14 (Murphy Ex. Z)). CMT Labs has operated and tested hundreds of accused
16
Samsung products and published the results. (See Ex. D (Murphy Rpt Ex. AC)). Several other
17
companies in the United States also have published detailed test reports documenting their
18
testing of the accused Samsung products. (See Raz Decl., Ex. 8 (Murphy Report, Ex. AA)). All
19
of these reports show specific instances of infringement by third parties because such operation
20
and testing of the accused products entails performing the method claims.9
21
Samsung’s attempt to discount this evidence is unavailing. First, Samsung’s argument
22
that there is no evidence that CMT Labs’ testing took place in the United States is belied by
23
documentation identifying Huntington Beach, California as CMT Labs’ test site. (Ex. E at 1).
24
25 8
Ex. A (11/7/08 Lee Depo), 16:1-18:5.
9
27 charts)); Ex. C (Murphy Rpt Ex. W (Samsung data sheets)); 11/16/07 Murphy Decl. ISO MSJ
Reply (Dkt. 726), ¶2.
28
6
1
All indications are that the testing conducted by the remaining third parties was carried out in the
2
United States as well – it involved U.S. products and was directed to a U.S. audience. Even if
3
there were other evidence that the tests were conducted elsewhere, it would only raise a factual
4
dispute as to where the testing occurred, which also precludes summary judgment.
5
Second, Samsung argues that Mr. Murphy’s testimony regarding testing should not be
6
considered because he did not personally observe the tests carried out by CMT Labs and other
7
independent third parties, and because Mr. Murphy had some assistance in compiling the test
8
data. This argument is misconceived – “[u]nlike an ordinary witness . . . an expert is permitted
9
wide latitude to offer opinions, including those that are not based on firsthand knowledge or
10
observation.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592 (1993).
11
Third, Samsung contends that the documentation of third party testing should not be
12
considered on a motion for summary judgment because it is hearsay. To the contrary, these
13
MCKOOL SMITH
documents are properly relied upon by Mr. Murphy under Federal Rule of Evidence 703, and fit
DALLAS, TEXAS
14
within at least one hearsay exception.
15
Rule 703 explicitly authorizes an expert to rely upon facts or data that may otherwise not
16
be admissible:
17
Bases of Opinion Testimony by Experts. The facts or data in the
18 particular case upon which an expert bases an opinion or inference
may be those perceived by or made known to the expert at or
19 before the hearing. If of a type reasonably relied upon by experts in
the particular field in forming opinions or inferences upon the
20 subject, the facts or data need not be admissible in evidence in
order for the opinion or inference to be admitted.
21
22 Fed. R. Evid. 703.
23 The documentation of CMT Labs’ testing is not only “of a type” reasonably relied upon
24 by experts in the DRAM field; it is itself relied upon by experts in the computer industry. (See,
25 e.g., 11/14/2008 Murphy Decl., ¶7). For example, industry leader Intel relies on the CMT Labs
26 reports for the technical information they provide, in order to ensure the accused DRAM
27 products are compatible with Intel products with which they may be used in a computer
28
7
1
system.10 Furthermore, Intel provides the CMT Labs testing and certification information
2
through its technical support website so that others seeking testing information may also use and
3
rely upon it.11 Intel technical support documents posted on its website also describe the
4
rigorousness of CMT’s testing processes, indicating that Intel and others rely on the CMT Labs
5
reports not only to establish that the DRAM was operated, but additionally for numerous details
6
regarding specific steps carried out in testing that are not required to infringe the asserted method
7
claims. (See, e.g., n. 10 supra).
8
Earmarks of reliability for all the third party testing reports include the substantial detail
9
and volume of information these independent third parties have published regarding their testing;
10
that the data was not prepared in the context of litigation; and the apparent lack of motivation to
11
falsify reports that the accused DRAM was operated. Moreover, Samsung has not pointed to any
12
actual errors in these documents or any other reason to doubt their reliability.
13
MCKOOL SMITH
This testing data thus constitutes precisely the sort of facts or data Rule 703 permits an
DALLAS, TEXAS
14
expert to use as support for an opinion, particularly for the limited purpose of supporting the
15
opinion that the accused devices were operated at all, regardless of testing details described at
16
10
See, e.g., Ex. F (Intel® Memory List Test Report Summary), at 6 (“Memory qualification for
17 Intel’s Server Board products is performed by … an independent external test laboratory,
Computer Memory Test Lab (CMTL). CMTL is a leading memory testing organization
18 responsible for testing a broad range of memory products. Memory devices tested by Intel’s
MVL or CMTL must undergo rigorous tests to ensure that the product will perform the intended
19 server functions.”), 6 n. 1 (“Receiving a “PASS” after being tested by CMTL, means that a
product functions correctly and consumers can use it to perform the intended server functions.”),
20 21 (“Memory capability is a major factor your customers consider. …The list of memory
modules, which have undergone testing through the CMTL facility, should be referenced when
21 considering modules for integration into this Intel server product. Intel routinely audits the
CMTL facility to ensure all procedures, process handling, and testing methodologies are met.”).
22 The Intel documents cited herein are not hearsay because they show reliance by Intel and
others, regardless of the truth of their contents. Moreover, they are properly considered under
23 Rule 703 and excepted from the hearsay rule because they are generally used and reasonably
relied upon by experts and other participants in the computer and memory fields. (See
24 11/14/2008 Murphy Decl., ¶7); Fed. R. Evid. 803 (17) (“Market reports, commercial
publications. Market quotations, tabulations, lists, directories, or other published compilations,
25 generally used and relied upon by the public or by persons in particular occupations.”).
11
26 Ex. G (http://www.intel.com/support/motherboards/desktop/dg31pr/sb/cs-027918.htm) (“3rd
Party Tested Memory” hyperlink to CMT Labs website; “3rd party tested memory occurs as
27 requested by the memory vendors and is tested at an independent memory house that is not a part
of Intel - Computer Memory Test Labs (CMTL).”).
28
8
1
length in the reports. See, e.g., CBS Broad., Inc. v. EchoStar Communs. Corp., 450 F.3d 505,
2
517 n. 25 (11th Cir. 2006) (finding trial court properly admitted expert testimony based on
3
analyses performed by third party company and not admitted as evidence).
4
CMT Labs’ testing reports also qualify as an exception to the hearsay rule because they
5
are generally used and relied upon by participants in the computer and memory fields. (See
6
11/14/2008 Murphy Decl., ¶7); Fed. R. Evid. 803 (17).
7
2. There is Ample Evidence of Samsung’s Inducement and Intent
8
9 Samsung suggests, without citing any authority, that Rambus cannot show Samsung
10 knowingly induced direct infringement by any third party such as CMT Labs absent evidence
11 that Samsung requested the testing or had a direct “connection” or “contact” with that third party,
12 or evidence that a particular third party direct infringer actually relied on Samsung’s datasheets.12
13 Samsung’s position, however, is not supported by the law.

MCKOOL SMITH
DALLAS, TEXAS
14 To prove a claim of inducing infringement, the requisite “intent may be established
15 through circumstantial evidence.” Broadcom Corp. v. Qualcomm, Inc., 543 F.3d 683, 689 (Fed.
16 Cir. 2008) (citing DSU Medical Corporation v. JMS Company, 471 F.3d 1293, 1306 (Fed. Cir.
17 2006)). “Moreover, the requisite intent to induce infringement may be inferred from all of the
18 circumstances.” Id. (internal quotation omitted). “The drawing of inferences, particularly in
19 respect of an intent-implicating question . . . is peculiarly within the province of the fact finder
20 that observed the witnesses.” Id. at 700 (quotation omitted); see Fuji Photo Film Co. v. Jazz
21 Photo Corp., 394 F.3d 1368, 1378 (Fed. Cir. 2005) (declining to disturb jury's verdict because
22 intent to induce infringement “is a factual determination particularly within the province of the
23 trier of fact”).
24 At least the following evidence of Samsung’s inducement and intent precludes summary
25 judgment:
26 12
Samsung does not argue there is any absence of evidence regarding its knowledge of the
27 patents or any other facts that may relate to inducing infringement. Of course, Samsung has had
knowledge of the patents-in-suit and the alleged infringement at least since this action was filed.
28
9
1
• Samsung’s promotional activities, including dissemination of its datasheets,
2
which describe and promote use of the accused DRAM products in a manner Rambus
3
contends infringes the method claims.13 See, e.g., Symantec Corp, 522 F.3d at 1293;
4
Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1365 (Fed. Cir.
5
2004) (finding active inducement of infringement based on defendant’s publications
6
describing and promoting use of patented method); Chiuminatta Concrete Concepts,
7
Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1312 (Fed. Cir. 1998).
8
• Samsung’s providing product samples14 and technical support.15 See MEMC
9
Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d 1369 (Fed. Cir.
10
2005) (reversing summary judgment against patentee on its claim of inducement of
11
infringement where defendant provided technical support to direct infringers);

12
Sharper Image, 425 F. Supp. 2d at 1065-66.
13
MCKOOL SMITH
• Samsung’s continuing sale of products designed specifically for use in an

DALLAS, TEXAS
14
infringing manner.16 See Mentor H/S, Inc. v. Med. Device Alliance, Inc., 244 F.3d
15
1365, 1379 (Fed. Cir. 2001) (upholding a jury verdict of induced infringement where
16
the defendant chose to continue selling products designed for use in an infringing
17
manner).
18
• Samsung’s failure to offer any opinion of counsel. See Broadcom, 543 F.3d at
19
699 (“we … hold that the failure to procure such an opinion [of counsel] may be
20
probative of intent in this context.”).
21
22
13
23 Ex. C (Murphy Rpt Ex. W (Samsung datasheets)); see, e.g., id. at 17 (“Any system or
application incorporating random access memory products should be properly designed, tested
24 and qualified to ensure proper use or access of such memory products.”).
14
Ex. A (11/7/08 Lee Depo), 16:1-18:5.
25 15
See, e.g., http://www.samsung.com/us/support/main/supportSupportMain.do.
16
27 charts)), Ex. C (Murphy Rpt Ex. W (Samsung data sheets)); 11/16/07 Murphy Decl. ISO MSJ
Reply (Dkt. 726), ¶2.
28
10
1 III. CONCLUSION
2
For the foregoing reasons, Samsung’s Motion for Summary Judgment No. 12 should be
3
denied.
4
5 Dated: November 14, 2008

Respectfully submitted,
6
MUNGER TOLLES & OLSON LLP
7 SIDLEY AUSTIN LLP
8 MCKOOL SMITH P.C.
10 /s/ Pierre J. Hubert

Pierre J. Hubert
11
Attorneys for RAMBUS INC.

12
Austin 41241v1
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MCKOOL SMITH
DALLAS, TEXAS
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Case 5:05-cv-00334-RMW Document 2577 Filed 11/14/2008 Page 1 of 15

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

Attorneys for RAMBUS INC.

14 UNITED STATES DISTRICT COURT

4 A. Summary Judgment Standards.................................................................................2

5 B. Summary Judgment Regarding Direct Infringement of the

8 1. There is Ample Evidence of Direct Infringement By

8 Broadcom Corp. v. Qualcomm, Inc.,

477 U.S. 317 (1986)...................................................................................................................2

13 Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc.,

145 F.3d 1303 (Fed. Cir. 1998)................................................................................................10

16 Fuji Photo Film Co. v. Jazz Photo Corp.,

21 Mentor H/S, Inc. v. Med. Device Alliance, Inc.,

26 Oxford Gene Tech. Ltd. v. Mergen Ltd.,

1 Semiconductor Energy Lab. Co. v. Chi Mei Optoelectronics Corp.,

Accordingly, Samsung’s motion should be denied.

1 A. Summary Judgment Standards

11 B. Summary Judgment Regarding Direct Infringement of the Method Claims

23 infringes them, as is shown by Samsung’s own datasheets.3

14 C. Summary Judgment Regarding Inducing or Contributory Infringement of

1 1. There is Ample Evidence of Direct Infringement By Third Parties

2 a. Direct Infringement Is Established Even Absent Evidence of

13 (rejecting argument that evidence of actual, specific infringing importations by defendant’s

9 b. Though it is Not Required to Do So, Rambus Has Also

22 Fed. R. Evid. 703.

13 Samsung’s position, however, is not supported by the law.

14 To prove a claim of inducing infringement, the requisite “intent may be established

18 circumstances.” Id. (internal quotation omitted). “The drawing of inferences, particularly in

infringement where defendant provided technical support to direct infringers);

• Samsung’s continuing sale of products designed specifically for use in an

5 Dated: November 14, 2008

10 /s/ Pierre J. Hubert

Attorneys for RAMBUS INC.

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