EXHIBIT 20

1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3 SAN JOSE DIVISION

4 RAMBUS INC., ) C-05-00334 RMW

) C-05-02298 RMW
5 PLAINTIFF, ) C-06-00244 RMW
)
6 VS. ) SAN JOSE, CALIFORNIA
)
7 HYNIX SEMICONDUCTOR, INC., ) JANUARY 14, 2009
HYNIX SEMICONDUCTOR AMERICA )
8 INC., HYNIX SEMICONDUCTOR ) PAGES 1-68
MANUFACTURING AMERICA INC., )
9 )
SAMSUNG ELECTRONICS CO., )
10 LTD., SAMSUNG ELECTRONICS )
AMERICA, INC., SAMSUNG )
11 SEMICONDUCTOR, INC., SAMSUNG)
AUSTIN SEMICONDUCTOR, L.P, )
12 )
NANYA TECHNOLOGY )
13 CORPORATION, NANYA )
TECHNOLOGY CORPORATION USA, )
14 )
)
15 DEFENDANTS. )
____________________________)
16 )
RAMBUS INC., )
17 )
PLAINTIFF, )
18 )
VS. )
19 )
SAMSUNG ELECTRONICS CO., )
20 LTD., SAMSUNG ELECTRONICS )
AMERICA, INC., SAMSUNG )
21 SEMICONDUCTOR, INC., SAMSUNG)
AUSTIN SEMICONDUCTOR, L.P, )
22 )
DEFENDANTS. )
23 ____________________________)

24

25

1
1 RAMBUS INC. )
)
2 PLAINTIFF, )
)
3 VS. )
)
4 MICRON TECHNOLOGY, INC. AND )
MICRON SEMICONDUCTOR )
5 PRODUCTS, INC., )
)
6 DEFENDANTS. )
____________________________)
7

9 TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE RONALD M. WHYTE
10 UNITED STATES DISTRICT JUDGE

11

12 A P P E A R A N C E S:

13 FOR RAMBUS: MUNGER, TOLLES & OLSON

BY: GREGORY P. STONE,
14 FRED ROWLEY, AND
MARK R. YOHALEM
15 355 SOUTH GRAND AVE, 35TH FLOOR
LOS ANGELES, CALIFORNIA 90071
16
BY: ROSEMARIE T. RING
17 560 MISSION STREET, 27TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
18
SIDLEY, AUSTIN, LLP
19 BY: ROLLIN A. RANSOM
555 W. FIFTH STREET, SUITE 4000
20 LOS ANGELES, CALIFORNIA 90013

21 FOR SAMSUNG: WEIL, GOTSHAL & MANGES

BY: MATTHEW D. POWERS AND
22 STEVEN S. CHERENSKY
201 REDWOOD SHORES PARKWAY
23 REDWOOD SHORES, CALIFORNIA 94065

24 APPEARANCES CONTINUED ON NEXT PAGE

25

2
1

2 APPEARANCES (CONTINUED)

3 FOR MICRON: WEIL, GOTSHAL & MANGES

BY: JARED BOBROW
4 201 REDWOOD SHORES PARKWAY
REDWOOD SHORES, CALIFORNIA 94065
5

6 FOR NANYA: ORRICK, HERRINGTON & SUTCLIFFE

BY: ROBERT E. FREITAS
7 1000 MARSH ROAD
MENLO PARK, CALIFORNIA 94025
8

9 FOR HYNIX: O'MELVENY & MYERS, LLP

BY: KENNETH L. NISSLY
10 2765 SAND HILL ROAD
MENLO PARK, CALIFORNIA 94025
11
TOWNSEND AND TOWNSEND AND CREW
12 BY: THEODORE G. BROWN, III
379 LYTTON AVENUE
13 PALO ALTO, CALIFORNIA 94301

14
OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR
15 CERTIFICATE NUMBER 9595

16

17

18

19

20

21

22

23

24

25

3
 1 SAN JOSE, CALIFORNIA JANUARY 14, 2009

2 P R O C E E D I N G S

3 (WHEREUPON, COURT CONVENED AND THE

15:00:23 4 FOLLOWING PROCEEDINGS WERE HELD:)

15:00:23 5 THE COURT: GOOD AFTERNOON, EVERYONE.

15:00:27 6 MR. STONE: GOOD AFTERNOON, YOUR HONOR.

15:00:28 7 MR. BOBROW: GOOD AFTERNOON, YOUR HONOR.

15:00:29 8 THE COURT: I'M GOING TO GIVE YOU SOME

15:00:31 9 THOUGHTS, AND THEN I'LL BRIEFLY HEAR COMMENT FROM

15:00:36 10 ANYONE WHO WISHES TO MAKE COMMENT.

15:00:42 11 MY THINKING IS THAT THE MANUFACTURERS

15:00:50 12 OUGHT TO BE GIVEN AN OPPORTUNITY TO BRIEF THE

15:00:57 13 EFFECT OF JUDGE ROBINSON'S ORDER AND WHAT THAT

15:01:05 14 REQUIRES THIS COURT TO DO; AND IF THEY FEEL THAT A

15:01:10 15 SUMMARY JUDGMENT MOTION IS APPROPRIATE, THAT THEY

15:01:13 16 MAKE THAT MOTION BASED ON THE SCHEDULE THEY

15:01:17 17 PROPOSE.

15:01:20 18 I ALSO FEEL THAT WE SHOULD KEEP THE TRIAL

15:01:27 19 SCHEDULED, AND MY THOUGHT IS THAT FEBRUARY 16TH

15:01:35 20 SHOULD BE THE TRIAL DATE, AND WE'LL SET A COUPLE OF

15:01:41 21 PRETRIAL SESSIONS IN THE WEEK BEFORE.

15:01:48 22 THE REPORTER: FEBRUARY 16TH IS A

15:01:49 23 HOLIDAY.

15:01:51 24 THE COURT: FEBRUARY 17TH, THEN.

15:01:59 25 IT SEEMS TO ME THAT THAT ACCOMPLISHES

4
15:02:03 1 FAIRNESS TO BOTH SIDES IN THE SENSE THAT IT ALLOWS

15:02:12 2 ISSUES TO BE RAISED AND RESOLVED, BUT DOES NOT

15:02:20 3 UNREASONABLY PUT OFF THE TRIAL IF THAT'S THE

15:02:23 4 APPROPRIATE WAY TO GO.

15:02:28 5 THAT BEING SAID, IT SEEMS TO ME THAT

15:02:30 6 THERE ARE TWO BASIC APPROACHES THAT COULD BE TAKEN

15:02:39 7 WITH, OBVIOUSLY, PROBABLY REFINEMENTS TO EACH.

15:02:45 8 BUT IT SEEMS TO ME THAT ONE WAY TO

15:02:48 9 PROCEED WOULD BE FOR THE COURT TO FINISH UP WHAT

15:02:55 10 NEEDS TO BE DONE TO ENTER JUDGMENT IN THE

15:03:01 11 HYNIX/RAMBUS DISPUTE; TO FINISH THE ISSUES THAT ARE

15:03:06 12 UNDER SUBMISSION FROM HAVING BEEN TRIED IN THE

15:03:09 13 CONSOLIDATED CASE AND IN THE SEPARATE

15:03:15 14 RAMBUS/SAMSUNG LITIGATION, OR ASPECT OF THE

15:03:21 15 CONSOLIDATED LITIGATION; AND FOR THE COURT THEN --

15:03:28 16 THEN HYNIX WOULD BE IN A POSITION TO FULLY APPEAL

15:03:32 17 AND THE COURT COULD CERTIFY FOR APPEAL THE CLAIM

15:03:37 18 CONSTRUCTION RULING IN THE CONSOLIDATED

15:03:43 19 PROCEEDINGS, THE JURY VERDICT IN THE CONSOLIDATED

15:03:47 20 PROCEEDINGS, THE SPOLIATION ISSUE WITH SAMSUNG AND

15:03:52 21 THE LICENSING ISSUE WITH SAMSUNG; AND STAY THE

15:03:59 22 PATENT TRIAL PENDING RESOLUTION OF THESE ISSUES ON

15:04:02 23 APPEAL.

15:04:07 24 THE OTHER APPROACH, IT SEEMS TO ME, WOULD

15:04:09 25 BE TO GO FORWARD WITH THE PATENT TRIAL AS, AS IT

5
15:04:21 1 NOW IS PENDING, WITH PROBABLY A STAY AS TO MICRON.

15:04:35 2 I FEEL, AT LEAST TENTATIVELY, THAT MICRON

15:04:40 3 AND RAMBUS HAD THEIR DAY IN COURT ON THE SPOLIATION

15:04:47 4 ISSUE, ALTHOUGH THE DECISION IS CONTRARY TO MY

15:04:57 5 CONCLUSION ON THE ISSUE IN HYNIX, BUT THAT'S WHERE

15:05:04 6 THEY, MICRON AND RAMBUS, TRIED THE CASE AND THE

15:05:10 7 RESULT IS WHAT IT IS.

15:05:13 8 SO WHEN WE GET TO HEARING FROM EACH OF

15:05:20 9 THE PARTIES, I WOULD LIKE TO HAVE THEM BRIEFLY

15:05:24 10 ADDRESS THE BENEFITS OF -- TO THE PARTIES IF I

15:05:39 11 ADOPTED ONE OF THE TWO PROPOSALS THAT I JUST

15:05:42 12 OUTLINED, AND THE PREJUDICE OR DETRIMENT TO THE

15:05:45 13 PARTIES IF I ADOPTED ONE OF THE TWO PROPOSALS.

15:05:54 14 MY THOUGHT WITH RESPECT TO THE BRIEFING

15:05:56 15 SCHEDULE, TO SOME EXTENT I AGREE WITH RAMBUS THAT

15:06:01 16 THE ISSUE OF COLLATERAL ESTOPPEL, RES JUDICATA

15:06:08 17 ISSUE PRECLUSION HAS BEEN PREVIOUSLY BRIEFED, AND I

15:06:18 18 THINK EVERYBODY MAY NOT AGREE, BUT EVERYBODY'S GOT

15:06:21 19 A PRETTY GOOD IDEA AS TO WHAT THEY FEEL THE LAW

15:06:25 20 PROVIDES IN THAT REGARD.

15:06:29 21 THERE ARE, HOWEVER, SOME ISSUES WITH

15:06:36 22 RESPECT TO THE APPLICATION IN THIS PARTICULAR

15:06:40 23 SETTING THAT PROBABLY DESERVE SOME MORE ATTENTION.

15:06:52 24 AND I ALSO THINK THAT, GIVEN WHAT'S

15:06:54 25 OCCURRED, THAT THE PARTIES HAVE A RIGHT TO MAKE A

6
15:07:07 1 MOTION AS TO WHAT THEY FEEL -- OR WHAT THEY SUBMIT

15:07:14 2 IS THE CONSEQUENCE OF WHAT'S HAPPENED.

15:07:27 3 I HAVE SOME OTHER THOUGHTS ON SOME

15:07:31 4 ISSUES, BUT I THINK I'LL WAIT AND SEE WHAT EACH OF

15:07:35 5 YOU HAS TO SAY, AND PERHAPS RAISE SOME QUESTIONS

15:07:40 6 WITH YOU WHEN YOU PERHAPS TOUCH ON THOSE ISSUES.

15:07:50 7 SO LET ME START BY HEARING FROM MICRON.

15:07:53 8 MR. BOBROW: THANK YOU, YOUR HONOR.

15:08:00 9 AS INDICATED IN THE PAPERS, OBVIOUSLY IN

15:08:02 10 TERMS OF A BRIEFING SCHEDULE, IF YOU FEEL THAT IT

15:08:05 11 IS APPROPRIATE TO BRIEF, THAT'S FINE.

15:08:07 12 FRANKLY, FROM OUR REVIEW OF THE RECORD,

15:08:10 13 OUR BELIEF WAS THAT, AT LEAST AS TO MICRON, THIS

15:08:12 14 ISSUE COULD BE RESOLVED FORTHWITH, IN OTHER WORDS,

15:08:16 15 WITHOUT BRIEFING. BUT I UNDERSTAND YOUR REQUEST

15:08:18 16 FOR A MOTION FOR SUMMARY JUDGMENT AND THAT'S INDEED

15:08:21 17 WHAT WE'LL FILE AND WE'LL DO IT ON THE SCHEDULE.

15:08:24 18 THE COURT: WHAT ABOUT THE -- THERE IS

15:08:26 19 OVERLAP -- LET ME -- MR. NISSLY MADE A NICE CHART.

15:08:42 20 THE CLAIMS THAT ARE AT ISSUE IN THE

15:09:04 21 UPCOMING ACTION OVERLAP ABOUT HALF OF THEM, AM I

15:09:17 22 CORRECT, OR --

15:09:18 23 MR. BOBROW: THERE ARE --

15:09:19 24 THE COURT: -- THAT ARE COVERED BY THE

15:09:22 25 ACTION IN DELAWARE?

7
15:09:23 1 MR. BOBROW: YES. THERE WERE TWO PATENTS

15:09:25 2 IN DELAWARE, FOUR OF WHICH OVERLAP WITH PATENTS

15:09:28 3 THAT ARE PART OF THE CASE THAT IS SET FOR TRIAL IN

15:09:33 4 THE NEAR FUTURE.

15:09:35 5 SO FOUR OF THE PATENTS ARE IDENTICAL.

15:09:37 6 THE REST OF THEM STEM FROM THE

15:09:39 7 FARMWALD-HOROWITZ FAMILY, AND THE REST OF THEM

15:09:42 8 INCLUDE APPLICATIONS FOR WHICH JUDGE ROBINSON FOUND

15:09:45 9 THERE HAD BEEN SPOLIATION.

15:09:49 10 THE COURT: THAT'S -- THAT I HAVE NOT

15:09:51 11 SPECIFICALLY LOOKED AT MYSELF, BUT THAT WAS AN

15:09:53 12 ISSUE THAT I THOUGHT PERHAPS THE PARTIES MIGHT NEED

15:10:01 13 TO ADDRESS, AND THAT IS WHETHER OR NOT THE

15:10:05 14 MISCONDUCT THAT JUDGE ROBINSON FOUND INFECTS ALL

15:10:17 15 THE PATENT CLAIMS AT ISSUE BEFORE THIS COURT, OR

15:10:21 16 ARE THERE SOME THAT AREN'T INFECTED?

15:10:26 17 MR. BOBROW: YEAH. IT INFECTS ALL OF

15:10:29 18 THEM, BUT IN WAYS IN ADDITION TO THE FACT THAT SHE

15:10:31 19 SPECIFICALLY FOUND SPOLIATION AS TO THE FILES THAT

15:10:34 20 LESTER VINCENT PURGED AT MR. KARP'S DIRECTION.

15:10:38 21 BUT BEYOND THAT, AGAIN, WE HAVE A FINDING

15:10:41 22 BY HER BY CLEAR AND CONVINCING EVIDENCE OF BAD

15:10:45 23 FAITH; WE HAVE A SPECIFIC FINDING OF PREJUDICE; A

15:10:47 24 SPECIFIC FINDING OF A DUTY TO SUSPEND THE DOCUMENT

15:10:51 25 RETENTION AND TO, IN FACT, RETAIN DOCUMENTS.

8
15:10:53 1 THE COURT: BUT THOSE WERE ALL ONLY WITH

15:10:56 2 RESPECT TO THE CLAIMS AT ISSUE IN HER CASE?

15:10:58 3 MR. BOBROW: NO, I DON'T THINK SO AT ALL.

15:11:00 4 IN OTHER WORDS, WHETHER THERE WERE THESE

15:11:02 5 PATENTS-IN-SUIT HERE AND THOSE WERE THE CLAIMS THAT

15:11:07 6 WERE IN FILE, ON FILE IN DELAWARE, THEY WOULD HAVE

15:11:10 7 TRIED THE EXACT SAME SPOLIATION CASE. IT WOULD NOT

15:11:12 8 HAVE DIFFERED BY ONE WITNESS OR ONE PIECE OF

15:11:15 9 EVIDENCE.

15:11:15 10 THE COURT: YOU MAY BE RIGHT, BUT WHAT

15:11:17 11 I'M SAYING IS HER -- MAYBE I DIDN'T SAY IT VERY

15:11:19 12 WELL.

15:11:20 13 HER DECISION SAYS, "THESE CLAIMS ARE

15:11:23 14 UNENFORCEABLE BECAUSE OF RAMBUS'S CONDUCT."

15:11:27 15 MR. BOBROW: YES, THAT'S CORRECT.

15:11:28 16 THE COURT: THOSE CLAIMS DON'T COVER --

15:11:30 17 AREN'T THE SAME CLAIMS, AREN'T ALL OF THE CLAIMS

15:11:34 18 THAT ARE AT ISSUE IN THIS CASE.

15:11:36 19 MR. BOBROW: THAT'S CORRECT. THERE ARE

15:11:37 20 FOUR PATENTS THAT ARE IDENTICAL, AND THE REST OF

15:11:40 21 THEM ARE IN THE SAME FAMILY, THAT'S CORRECT.

15:11:42 22 THE COURT: RIGHT. SO WHAT I'M SAYING

15:11:44 23 IS, AND I THINK MAYBE -- I MAY BE WRONG -- BUT I

15:11:48 24 THINK RAMBUS IS TAKING THE POSITION, IN PART, THAT

15:11:56 25 THERE IS NOT INFECTION OF AT LEAST THOSE CLAIMS

9
15:12:01 1 THAT WEREN'T AT ISSUE BEFORE HER.

15:12:04 2 MR. BOBROW: RIGHT. I -- THAT MAY BE.

15:12:07 3 IT IS WRONG. I THINK WE DEMONSTRATED WHY

15:12:10 4 IT'S WRONG IN OUR PAPERS AND, AGAIN, TO THE EXTENT

15:12:13 5 THAT THE COURT WISHES BRIEFING ON THAT, WE'RE HAPPY

15:12:16 6 TO MOVE FOR SUMMARY JUDGMENT AND ADDRESS THAT

15:12:19 7 SPECIFIC ISSUE.

15:12:20 8 I THINK THAT, AS WE TEE IT UP, THERE IS

15:12:22 9 IDENTITY OF ISSUE DOWN THE LINE, AND WHEN YOU LOOK

15:12:25 10 AT THE NINTH CIRCUIT TEST, WHICH LOOKS AT --

15:12:28 11 THE COURT: YOU MAY BE RIGHT. ALL I'M

15:12:31 12 SAYING IS THAT I THINK THAT IS AN ISSUE AND I DON'T

15:12:34 13 KNOW THAT THAT DOESN'T REQUIRE A MOTION.

15:12:36 14 MR. BOBROW: FAIR ENOUGH, AND WE WILL GO

15:12:38 15 AHEAD ON THE SCHEDULE AND MAKE THAT MOTION.

15:12:40 16 AS FAR AS THE SECOND ASPECT OF IT IN

15:12:42 17 TERMS OF PUSHING BACK THE TRIAL, I THINK THAT THAT,

15:12:47 18 BUT ACCOMPANIED BY YOUR SECOND PROPOSAL, IS WHAT

15:12:51 19 MICRON WOULD FAVOR HERE.

15:12:52 20 IN OTHER WORDS, WE WOULD PROCEED WITH OUR

15:12:54 21 MOTION FOR SUMMARY JUDGMENT.

15:12:55 22 GIVEN THE MUTUALITY THAT YOU'VE ALLUDED

15:12:58 23 TO AS BETWEEN MICRON AND RAMBUS, WE THINK THAT THIS

15:13:01 24 ENDS THE CASE.

15:13:02 25 EFFECTIVELY WHAT'S HAPPENED IS WE HAVE

10
15:13:04 1 TRIED THE THIRD PHASE OF THIS CASE IN DELAWARE, AND

15:13:07 2 BASED UPON RAMBUS'S REPRESENTATIONS AND THE WHOLE

15:13:10 3 WAY THAT THIS HAS BEEN STRUCTURED, WE THINK IT

15:13:12 4 WOULD BE CRAZY FOR MICRON TO GO AHEAD WITH THIS

15:13:15 5 TRIAL WHEN WE BELIEVE STRONGLY THAT THE PATENTS ARE

15:13:17 6 UNENFORCEABLE AS AGAINST MICRON AND WE'D BE

15:13:21 7 HAVING -- SPENDING HUNDREDS OF THOUSANDS IF NOT

15:13:24 8 MILLIONS OF DOLLARS TO PROCEED WITH THAT TRIAL.

15:13:26 9 THE COURT: WELL, ONE OF THE REASONS --

15:13:30 10 THAT'S CERTAINLY ONE.

15:13:32 11 BUT I THINK IT WAS MR. POWERS, IF I'M

15:13:37 12 REMEMBERING CORRECTLY, THAT SUGGESTED THAT THE

15:13:42 13 TRIAL DATE OUGHT TO BE SLIPPED ENOUGH SO THAT THE

15:13:45 14 PARTIES COULD SEPARATE OUT THE -- THEIR POSITIONS

15:13:50 15 WITH RESPECT TO JUDGE ROBINSON'S RULING FROM HAVING

15:13:56 16 TO FURTHER PREPARE FOR TRIAL, SO YOU DIDN'T HAVE TO

15:13:59 17 DO BOTH AT THE SAME TIME.

15:14:00 18 SO THAT, I THINK, GIVEN YOUR PROPOSED

15:14:04 19 BRIEFING SCHEDULE, I THINK A FEBRUARY 16TH -- 17TH

15:14:09 20 START DATE, ASSUMING WE NEED IT, ACCOMPLISHES THAT

15:14:17 21 NEED.

15:14:18 22 MR. BOBROW: YES. I MEAN, MICRON'S

15:14:20 23 INTEREST HERE WOULD BE, GIVEN THE RULING THAT WE

15:14:23 24 NOT HAVE TO PROCEED IN EARNEST WITH TRIAL

15:14:25 25 PREPARATION, THAT IT BE PUSHED FAR ENOUGH SO THAT

11
15:14:29 1 THE COURT COULD RENDER ITS RULING ON THE SUMMARY

15:14:31 2 JUDGMENT MOTION, AND TO THE EXTENT THAT SCHEDULE

15:14:33 3 ACCOMPLISHES THAT, THAT'S CERTAINLY FINE.

15:14:35 4 I THINK THAT AS FAR AS THE STAY, OF

15:14:39 5 COURSE, WE WOULD -- WE WOULD ASK FOR THAT TO BE

15:14:41 6 ENTERED, AS WE REQUESTED, IMMEDIATELY.

15:14:45 7 I UNDERSTAND YOUR HONOR'S WISHES WOULD BE

15:14:46 8 TO HAVE THAT DONE AS A RESULT OF WHATEVER HAPPENS

15:14:50 9 AT THE HEARING ON THE 30TH.

15:14:52 10 BUT I THINK THAT IT IS APPROPRIATE FOR A

15:14:54 11 STAY TO BE ENTERED GIVEN THE RESULT IN DELAWARE AND

15:14:56 12 GIVEN THE MUTUALITY THAT EXISTS.

15:15:00 13 I THINK THAT THE COURT'S FIRST PROPOSAL,

15:15:02 14 IF I UNDERSTOOD IT CORRECTLY, IN OTHER WORDS, TO

15:15:05 15 SORT OF FINISH EVERYTHING UP AND CERTIFY THINGS,

15:15:07 16 AND IF I HEARD IT CORRECTLY, CERTIFYING THE VERDICT

15:15:10 17 FROM THE CONDUCT PHASE OF THE CONSOLIDATED CASE, I

15:15:13 18 THINK THAT IS NOT GOING TO ACCOMPLISH MUCH

15:15:15 19 CERTAINLY VIS-A-VIS MICRON, BECAUSE JUDGE ROBINSON

15:15:18 20 SPECIFICALLY FOUND THAT OUR ANTITRUST CASE AND

15:15:20 21 DEFENSES AND THE PATENT MISUSE DEFENSE AND THE LIKE

15:15:23 22 WERE SPECIFICALLY PREJUDICED BY RAMBUS'S CONDUCT.

15:15:28 23 THE ANTITRUST CASE THAT WE HAVE IN

15:15:30 24 DELAWARE IS THE SAME AS THE CASE HERE, AND SHE

15:15:33 25 SPECIFICALLY FOUND THAT OUR CASE HAD BEEN

12
15:15:34 1 PREJUDICED BY VIRTUE OF THE DOCUMENT DESTRUCTION.

15:15:36 2 SO ANY SORT OF CERTIFICATION ON THAT, AT

15:15:39 3 LEAST AS TO MICRON, IT SEEMS TO ME WOULDN'T

15:15:41 4 ACCOMPLISH PARTICULARLY MUCH.

15:15:42 5 I THINK THAT REALLY THE PROPER COURSE IS

15:15:44 6 ENTRY OF SUMMARY JUDGMENT, AND SHORT OF THAT, ENTRY

15:15:46 7 OF A STAY, AND THEN PULLING THE 244 CASE OUT OF

15:15:49 8 THIS AND THEN PROCEEDING AS, YOU KNOW, AS YOU HAD

15:15:53 9 SUGGESTED.

15:15:53 10 THE COURT: OKAY.

15:15:54 11 MR. BOBROW: ALL RIGHT. THANK YOU.

15:15:57 12 THE COURT: MR. POWERS, YOU WANT TO GO

15:15:58 13 NEXT? OR MR. CHERENSKY. I'M SORRY. I DIDN'T MEAN

15:16:04 14 TO ASSUME ONE OR THE OTHER.

15:16:06 15 MR. POWERS: WE WILL, AS YOUR HONOR

15:16:09 16 SUGGESTED, FILE A MOTION FOR SUMMARY JUDGMENT.

15:16:12 17 I DO WANT TO -- IF THAT'S THE PATH YOUR

15:16:16 18 HONOR WISHES TO PROCEED.

15:16:18 19 AS TO SAMSUNG, OF COURSE, THERE'S A

15:16:20 20 SLIGHTLY DIFFERENT PROCEDURAL POSTURE IN THE SENSE

15:16:23 21 THAT THESE ISSUES ARE PENDING BEFORE YOUR HONOR AND

15:16:27 22 HAVE NOT BEEN RESOLVED.

15:16:29 23 SO ANOTHER WAY TO HANDLE IT -- I MEAN,

15:16:33 24 OBVIOUSLY WE CAN AND WILL MOVE FOR SUMMARY JUDGMENT

15:16:35 25 IF THAT'S WHAT YOU PREFER.

13
15:16:37 1 OBVIOUSLY WE WOULD ASK THE COURT TO TAKE

15:16:39 2 JUDICIAL NOTICE OF JUDGE ROBINSON'S OPINION AND THE

15:16:42 3 FINDINGS AND CONCLUSIONS THEREIN IN CONNECTION WITH

15:16:45 4 WHATEVER DECISION YOU ARE MAKING AS PART OF THE

15:16:47 5 SEPTEMBER TRIAL.

15:16:48 6 THOSE ARE RELATED BUT SOMEWHAT DIFFERENT

15:16:51 7 PROCEDURAL APPROACHES TO THE SAME QUESTION, WHICH

15:16:54 8 IS DECIDING THAT ISSUE AS TO SAMSUNG.

15:16:57 9 BUT WE WILL, UNDER THE BRIEFING SCHEDULE

15:16:59 10 YOUR HONOR PROPOSED, MAKE THE MOTION FOR SUMMARY

15:17:02 11 JUDGMENT TO PROVIDE YOUR HONOR WITH THE AUTHORITY

15:17:04 12 ON THE ISSUES YOU'VE RAISED.

15:17:06 13 TWO SCHEDULING ISSUES THAT I WOULD JUST

15:17:08 14 NOTE FOR THE COURT.

15:17:10 15 FEBRUARY 17, I CANNOT BE HERE. I HAVE A

15:17:13 16 MARKMAN IN TEXAS I HAVE TO DO.

15:17:15 17 THIS CASE WAS SUPPOSED TO START ON THE

15:17:18 18 20TH. THE MATH WORKED THAT I COULD HAVE DONE IT.

15:17:22 19 THE COURT: I DON'T KNOW ABOUT THAT,

15:17:24 20 GIVEN -- YOU KNOW, I THOUGHT ABOUT THAT AFTER YOU

15:17:27 21 MADE THAT PITCH BEFORE, AND I JUST -- CERTAINLY THE

15:17:31 22 TIME SHOULD HAVE BEEN SET ASIDE FOR THIS CASE.

15:17:35 23 IF YOU NEED A DAY OFF, MAYBE WE CAN WORK

15:17:38 24 THAT OUT.

15:17:39 25 BUT I'M NOT SYMPATHETIC WITH AN ARGUMENT

14
15:17:46 1 THAT IF THE CASE GETS DELAYED UNTIL FEBRUARY 17TH,

15:17:49 2 IT'S GOING TO MAKE IT IMPOSSIBLE FOR COUNSEL TO

15:17:51 3 PARTICIPATE.

15:17:52 4 MR. POWERS: I WILL JUST NOTE --

15:17:54 5 THE COURT: THE MANUFACTURERS' ESTIMATE

15:17:55 6 OF TRIAL TIME, WHICH I'M NOT GOING TO RECOGNIZE --

15:17:59 7 OR I SHOULDN'T SAY "RECOGNIZE" -- I'M NOT GOING TO

15:18:05 8 BUY, AS I PREVIOUSLY INDICATED, IN ITS ENTIRETY,

15:18:09 9 CERTAINLY IS -- WOULD HAVE PUT THE TRIAL OUT A LOT

15:18:14 10 MORE THAN I THINK IT WILL BE.

15:18:19 11 MR. POWERS: IT WOULD.

15:18:20 12 I JUST AM NOTING THAT FOR THE COURT AND

15:18:22 13 THE COURT WILL DO WHAT IT WISHES, BUT I HAVE THAT

15:18:25 14 CONFLICT.

15:18:25 15 AND I ALSO HAVE A TRIAL IN NEW JERSEY

15:18:27 16 STARTING ON FEBRUARY 23RD. SO --

15:18:29 17 THE COURT: WHEN?

15:18:30 18 MR. POWERS: FEBRUARY 23RD.

15:18:32 19 WITH REGARD TO THE TWO APPROACHES THAT

15:18:34 20 YOU NOTE, I THINK THAT THE GOAL OF HAVING -- OF

15:18:41 21 ALLOWING THE FEDERAL CIRCUIT TO ADDRESS THE

15:18:43 22 COMPETING SPOLIATION FINDINGS AT THE SAME TIME,

15:18:47 23 BEFORE THE PATENT TRIAL GOES FORWARD, IS THE RIGHT

15:18:49 24 APPROACH.

15:18:50 25 OBVIOUSLY IF THE SPOLIATION FINDING -- IF

15
15:18:54 1 THE SPOLIATION RESULT OF THAT PROCESS IS THAT

15:18:57 2 PATENT -- IS THAT RAMBUS'S PATENTS ARE

15:19:00 3 UNENFORCEABLE, THEN WE SHOULDN'T HAVE HAD THE

15:19:02 4 PATENT INFRINGEMENT TRIAL.

15:19:04 5 AND I THINK THAT GIVEN ALL THAT HAS

15:19:10 6 HAPPENED, THAT OUTCOME IS AT LEAST SUFFICIENTLY

15:19:12 7 LIKELY TO MAKE THAT THE PROPER COURSE.

15:19:16 8 THE PREJUDICE THAT RAMBUS WOULD

15:19:17 9 PRESUMABLY CITE ON THE OTHER SIDE IS A DELAY IN ITS

15:19:21 10 TRIAL, AND THAT DELAY WOULD BE OF MAYBE A YEAR AND

15:19:29 11 A HALF OR SO.

15:19:32 12 RAMBUS IS MERELY SEEKING MONEY. THIS IS

15:19:44 13 NOT SOMETHING WHERE RAMBUS HAS A PLAUSIBLE CASE OF

15:19:47 14 IRREPARABLE INJURY. IT MADE NO MOTION FOR

15:19:50 15 PRELIMINARY INJUNCTION. IT IS A LICENSING ENTITY.

15:19:52 16 AND THAT MONEY, IF IT IS ENTITLED TO IT,

15:19:54 17 WHICH THE CURRENT FRAMING OF MANY OF THE DECISIONS

15:19:57 18 WOULD SAY CERTAINLY NOT, BUT EVEN ASSUMING ALL OF

15:20:01 19 THAT GOES RAMBUS'S WAY, THAT'S JUST MONEY THAT IT'S

15:20:05 20 CLAIMING, AND THAT MONEY CAN BE PAID A YEAR AND A

15:20:10 21 HALF FROM NOW AND RAMBUS SUFFERS NO COGNIZABLE

15:20:14 22 PREJUDICE.

15:20:14 23 IT MAY WISH TO HAVE ITS RESOLUTION

15:20:16 24 EARLIER, BUT FROM A PUBLIC POLICY POINT OF VIEW,

15:20:20 25 THAT'S NOT COGNIZABLE PREJUDICE. IT'S MONEY THAT

16
15:20:23 1 COULD BE MADE WHOLE.

15:20:25 2 WITH REGARD TO OPTION B, IF YOU WERE TO

15:20:30 3 PROCEED WITH --

15:20:31 4 THE COURT: LET ME GO BACK TO OPTION A

15:20:33 5 FOR A MINUTE.

15:20:37 6 WOULDN'T IT MAKE SENSE TO CERTIFY THE

15:20:43 7 CLAIM CONSTRUCTION AND THE CONSOLIDATED CASE, AS

15:20:49 8 WELL AS THE VERDICT FROM THE CONDUCT TRIAL?

15:20:51 9 MR. POWERS: I AGREE WITH THAT.

15:20:52 10 THE COURT: OKAY.

15:20:54 11 MR. POWERS: AND FOR THE REASONS THAT

15:20:55 12 WE'VE DISCUSSED MANY TIMES, BOTH DURING THE MARKMAN

15:20:57 13 HEARING AND AFTERWARDS.

15:20:58 14 I KNOW YOUR HONOR WRESTLED WITH THE

15:21:01 15 QUESTION OF WHAT TO DO WITH THE SAME ISSUES

15:21:03 16 POST-PHILLIPS VERSUS PRE, AND YOUR HONOR'S MARKMAN

15:21:06 17 RULING EXPLICITLY FELT BOUND BY THE FEDERAL

15:21:11 18 CIRCUIT'S PRE-PHILLIPS MARKMAN RULING ON SIMILAR

15:21:14 19 ISSUES.

15:21:15 20 THE FEDERAL CIRCUIT MAY OR MAY NOT COME

15:21:18 21 OUT THE SAME WAY. THAT IS CLEARLY AN ADDITIONAL

15:21:20 22 EFFICIENCY REASON NOT TO BE HOLDING THE PATENT

15:21:23 23 TRIAL NOW WHEN THERE IS A MATERIAL LIKELIHOOD THAT

15:21:28 24 THE CLAIM CONSTRUCTION ASSUMPTIONS MAY WELL BE

15:21:31 25 REVERSED IN SOME MATERIAL RESPECTS.

17
15:21:36 1 WITH REGARD TO OPTION B -- SO OPTION A WE

15:21:40 2 THINK IS THE APPROPRIATE JUDICIAL ECONOMY APPROACH

15:21:43 3 TO TAKE.

15:21:44 4 WITH REGARD TO OPTION B, IF YOU WERE TO

15:21:47 5 PROCEED, I BELIEVE YOU WOULD HAVE -- THAT YOU

15:21:50 6 SHOULD ALSO STAY AS TO MICRON -- AS TO SAMSUNG AS

15:21:53 7 WELL, BECAUSE SAMSUNG WOULD HAVE, IN THAT

15:21:55 8 SITUATION, MANY SIMILAR INTERESTS TO MICRON, HAVING

15:21:59 9 RECEIVED A DECISION OF SPOLIATION FROM JUDGE PAYNE,

15:22:05 10 TO HAVE IT THROWN OUT ON PROCEDURAL GROUNDS, BUT

15:22:08 11 NOT SUBSTANTIVE GROUNDS.

15:22:10 12 THE COURT: THAT WAS VACATED.

15:22:12 13 MR. POWERS: EXACTLY. THAT'S WHAT I JUST

15:22:14 14 SAID. IT WAS VACATED ON PROCEDURAL GROUNDS, NOT

15:22:16 15 SUBSTANTIVE GROUNDS.

15:22:18 16 AND RAMBUS -- AND SAMSUNG HAS PENDING

15:22:19 17 BEFORE YOUR HONOR RIGHT NOW A DECISION ON THE SAME

15:22:21 18 QUESTIONS.

15:22:23 19 THAT DECISION SHOULD GO UP AND BE

15:22:25 20 RESOLVED AT THE SAME TIME.

15:22:28 21 IF SO -- AND WHEN ALL THAT IS RESOLVED,

15:22:30 22 THE SAME LOGIC UNDER OPTION A THAT ARGUES FOR

15:22:35 23 HAVING THOSE ISSUES RESOLVED AT ONE TIME BY THE

15:22:37 24 FEDERAL CIRCUIT WOULD ARGUE EQUALLY FOR HAVING

15:22:40 25 THOSE -- SAMSUNG'S ISSUES RESOLVED AT THE SAME TIME

18
15:22:44 1 SINCE THEY ARE RIPE AT THE SAME TIME.

15:22:46 2 THE COURT: WIN OR LOSE.

15:22:47 3 MR. POWERS: WIN OR LOSE.

15:22:48 4 THE COURT: OKAY.

15:22:51 5 MR. POWERS: NOTHING FURTHER FROM ME,

15:22:53 6 UNLESS YOUR HONOR HAS A QUESTION.

15:22:54 7 THE COURT: ALL RIGHT.

15:22:55 8 MR. FREITAS: YOUR HONOR, NANYA AND NANYA

15:22:57 9 U.S.A. ARE SITUATED DIFFERENTLY FROM THE OTHER

15:23:00 10 PARTIES IN VARIOUS WAYS.

15:23:02 11 I HAVE A COUPLE OF THOUGHTS. I HAVE A

15:23:06 12 CONCERN, AS MR. BOBROW I EXPECT -- EXPRESSED WITH

15:23:10 13 RESPECT TO AN APPEAL ON THE ANTITRUST ISSUES NOW.

15:23:16 14 I'D LIKE THE OPPORTUNITY TO THINK ABOUT

15:23:17 15 THIS IN GREATER DETAIL, BUT DEPENDING ON WHAT

15:23:21 16 HAPPENS WITH THE COURT'S RULING ON THE MOTIONS THAT

15:23:24 17 WILL BE FILED NOW ON THE IMPACT OF JUDGE ROBINSON'S

15:23:28 18 DECISION, WE DO HAVE A SPOLIATION CASE THAT AWAITS,

15:23:33 19 AND I THINK THAT THE RANGE OF RESULTS OF WHAT YOUR

15:23:39 20 HONOR MIGHT DO ON THE PARTIES' MOTIONS IS NOT

15:23:43 21 SIMPLY THUMBS UP, THUMBS DOWN.

15:23:46 22 I THINK THERE ARE MORE OPTIONS THAN THAT.

15:23:48 23 I THINK THAT THERE IS THE POSSIBILITY OF

15:23:52 24 ISSUE-SPECIFIC RESULTS THAT, REGARDLESS OF

15:23:54 25 EVERYTHING RAMBUS HAS SAID, NONETHELESS, THERE

19
15:23:58 1 MIGHT BE AT LEAST SOME ISSUES THAT GET TAKEN CARE

15:24:00 2 OF IN A WAY THAT'S BINDING.

15:24:03 3 AND WITHOUT KNOWING EXACTLY WHERE --

15:24:05 4 THE COURT: I'M NOT SURE I'M FOLLOWING

15:24:07 5 THAT. WHAT ARE YOU --

15:24:09 6 MR. FREITAS: THERE'S A RANGE OF

15:24:11 7 DIFFERENT FINDINGS THAT WERE MADE BY JUDGE

15:24:14 8 ROBINSON. THERE WERE A VARIETY OF ISSUES, A

15:24:16 9 VARIETY OF FINDINGS.

15:24:18 10 WHAT I'M SAYING IS SIMPLY THAT IT'S NOT

15:24:21 11 NECESSARILY THE CASE THAT THIS COURT'S RULING ON

15:24:23 12 THE APPLICATION OF ISSUE PRECLUSION WILL BE

15:24:25 13 IDENTICAL WITH RESPECT TO EVERY SINGLE ISSUE.

15:24:29 14 WE'VE EXPRESSED THE VIEW THAT, THE WAY WE

15:24:31 15 SEE IT, WHAT JUDGE ROBINSON SAID SHOULD BE BINDING

15:24:34 16 IN A WAY THAT'S PRETTY COMPLETE.

15:24:37 17 RAMBUS IS SAYING, ON THE OTHER HAND,

15:24:39 18 THERE'S NOTHING THAT JUDGE ROBINSON SAID THAT'S

15:24:42 19 BINDING AT ALL.

15:24:43 20 I'M SUGGESTING THERE'S ANOTHER RESULT

15:24:45 21 THAT COULD BE POSSIBLE.

15:24:46 22 THE COURT: WHAT ABOUT THE POSSIBILITY

15:24:47 23 THAT -- OR WHAT DO YOU THINK ABOUT THE ARGUMENT

15:24:53 24 THAT THE EFFECT OF INEQUITABLE CONDUCT, OR THE

15:25:07 25 CONDUCT THAT JUDGE ROBINSON FOUND, THE SEVERITY OF

20
15:25:15 1 IT WOULD VARY AMONG MANUFACTURERS, AND SO IT

15:25:22 2 PERHAPS SHOULD BAR, FOR EXAMPLE, CLAIMS AGAINST ONE

15:25:31 3 MANUFACTURER, BUT PERHAPS RESULT IN SOME OTHER

15:25:34 4 REMEDY VIS-A-VIS ANOTHER MANUFACTURER?

15:25:36 5 DO YOU THINK THAT'S POSSIBLE?

15:25:39 6 MR. FREITAS: I DOUBT IT.

15:25:40 7 BUT I GUESS WHAT I WOULD SAY ABOUT IT

15:25:42 8 WOULD DEPEND ON WHICH MANUFACTURER WAS IN WHICH

15:25:45 9 BOX, AND THE ONLY THING I'VE SEEN SO FAR IS THAT

15:25:47 10 RAMBUS -- EXCUSE ME -- RAMBUS SUGGESTING THAT

15:25:51 11 THERE'S A BASIS TO SAY THAT LITIGATION WASN'T

15:25:53 12 ANTICIPATED AS TO OUR CLIENTS WHEN IT -- WHEN IT

15:25:59 13 WAS BASED ON JUDGE ROBINSON'S FINDINGS AS TO

15:26:03 14 OTHERS.

15:26:03 15 I DON'T THINK THAT RESULT IS LIKELY GIVEN

15:26:05 16 THE FACT THAT THE DOCUMENT RAMBUS IDENTIFIED, THE

15:26:08 17 NUCLEAR WINTER DOCUMENT, IS DATED AFTER ONE OF THE

15:26:12 18 DOCUMENTS THAT WE CITED SHOWING SPECIFIC

15:26:14 19 ANTICIPATION OF LITIGATION AS TO NANYA AND NANYA

15:26:17 20 U.S.A.

15:26:18 21 BUT ON THAT OTHER QUESTION, YOUR HONOR,

15:26:20 22 WITH RESPECT TO THE SEVERITY OF THE REMEDY, I DON'T

15:26:23 23 THINK IT'S LIKELY THAT A LESSER REMEDY WOULD BE

15:26:27 24 AVAILABLE AGAINST ONE OR MORE OF THE MANUFACTURERS,

15:26:30 25 AND -- AS TO ONE OR MORE OF THE MANUFACTURERS, BUT

21
15:26:33 1 I'M NOT SURE WHAT THE BASIS FOR AN ARGUMENT TO THAT

15:26:35 2 EFFECT WOULD BE.

15:26:37 3 THE ONE ISSUE RAMBUS HAS ARTICULATED

15:26:41 4 WE'VE ALREADY SAID -- EXPRESSED PART OF THE REASONS

15:26:45 5 WHY WE DON'T THINK THAT PROVIDES A BASIS.

15:26:47 6 I HAVE A QUESTION, YOUR HONOR, ABOUT

15:26:49 7 OPTION B.

15:26:51 8 THE IDEA WOULD BE THAT THE PATENT TRIAL

15:26:54 9 WOULD GO FORWARD AS TO ALL OF THE MANUFACTURERS

15:26:57 10 OTHER THAN MICRON?

15:26:58 11 THE COURT: YES.

15:26:59 12 MR. FREITAS: AND THE MICRON STAY WOULD

15:27:01 13 BE -- IS THAT -- ARE THERE ANY ASSUMPTIONS ABOUT

15:27:05 14 WHAT RULING THE COURT WOULD MAKE ON THE ISSUE

15:27:08 15 PRECLUSION MOTIONS?

15:27:10 16 THE COURT: I'M -- I WAS JUST THROWING

15:27:13 17 OUT THOSE TWO POSSIBILITIES AS WAYS THAT MIGHT MAKE

15:27:19 18 SENSE. I'M NOT SUGGESTING THAT IT'S NECESSARILY

15:27:22 19 ONE OR THE OTHER, OR THAT A MOTION COULDN'T

15:27:26 20 PERSUADE ME THAT ONE OF THOSE OPTIONS, OR BOTH,

15:27:31 21 ARE -- WOULD HAVE TO BE MODIFIED.

15:27:34 22 I'M JUST TRYING TO GIVE YOU MY THOUGHT AS

15:27:37 23 TO TWO APPROACHES THAT I THOUGHT WERE REASONABLE,

15:27:43 24 SENSIBLE APPROACHES.

15:27:45 25 MR. FREITAS: UM-HUM.

22
15:27:46 1 THE COURT: I'M NOT SURE I'M ANSWERING

15:27:48 2 YOUR QUESTION.

15:27:49 3 MR. FREITAS: THAT WAS -- THAT'S ALL I

15:27:50 4 WAS ASKING, YOUR HONOR.

15:27:51 5 THE COURT: OKAY.

15:27:54 6 MR. FREITAS: WELL, WE'LL GIVE THESE

15:27:55 7 OPTIONS SOME MORE THOUGHT, DISCUSS THEM WITH OUR

15:27:59 8 CLIENTS AND WITH OUR COLLEAGUES, AND EXPRESS MORE

15:28:02 9 DETAILED VIEWS WHEN WE MAKE OUR SUBMISSIONS

15:28:05 10 PURSUANT TO THE COURT'S ORDER.

15:28:07 11 THE COURT: I HAVEN'T MADE THAT ORDER

15:28:09 12 YET, EITHER. I'M JUST -- I WAS TRYING TO COME OUT

15:28:12 13 AND SAY THIS IS WHERE I AM RIGHT NOW.

15:28:15 14 MR. FREITAS: YES, YOUR HONOR.

15:28:16 15 THE COURT: AND LET YOU RESPOND TO IT.

15:28:18 16 MR. FREITAS: RIGHT. I ADMIT THE

15:28:20 17 BRIEFING SCHEDULE.

15:28:23 18 THANK YOU, YOUR HONOR.

15:28:25 19 THE COURT: OKAY.

15:28:25 20 MR. NISSLY: GOOD AFTERNOON, YOUR HONOR.

15:28:30 21 WE APPRECIATE THE COURT'S GUIDANCE, AND

15:28:34 22 OBVIOUSLY WE'LL FILE OUR MOTIONS IN ACCORDANCE WITH

15:28:39 23 THE SCHEDULE THAT WE PROPOSED, OR THAT WAS PROPOSED

15:28:43 24 BY THE MANUFACTURERS, AND WE'LL TAKE A LOOK AT

15:28:46 25 EITHER A MOTION FOR SUMMARY JUDGMENT OR WHATEVER

23
15:28:48 1 OTHER MOTION THAT WE THINK MIGHT BE APPROPRIATE

15:28:50 2 UNDER THE CIRCUMSTANCES.

15:28:52 3 BUT WE CERTAINLY APPRECIATE THE COURT'S

15:28:54 4 COMMENTS IN THAT REGARD.

15:28:56 5 ONE OF THE THINGS I WOULD SAY IN RESPONSE

15:28:59 6 TO YOUR HONOR'S SUGGESTIONS OF POSSIBLE WAYS TO

15:29:03 7 MOVE FORWARD WOULD SIMPLY BE TO CIRCLE BACK AND

15:29:07 8 POINT OUT THAT AS THINGS HAVE DEVELOPED IN THE

15:29:09 9 COURSE OF THIS CASE OVER THE YEARS, HOW

15:29:12 10 CONSOLIDATED IT HAS BECOME AND HOW INTERTWINED IT'S

15:29:17 11 BECOME, AND I WAS STRUCK IN THAT REGARD BY A

15:29:19 12 STATEMENT, FRANKLY, FROM A BRIEF THAT RAMBUS

15:29:22 13 FILED -- AND IT'S NOT OFTEN, OBVIOUSLY, I QUOTE ONE

15:29:26 14 OF THEIR BRIEFS -- FROM AUGUST OF 2008 WHICH I

15:29:31 15 THOUGHT WAS APPROPRIATE FOR THE DISCUSSION WE'RE

15:29:33 16 GOING TO HAVE HERE THIS AFTERNOON.

15:29:35 17 AND I'M READING FROM A BRIEF THAT RAMBUS

15:29:39 18 FILED ON THEIR CONSOLIDATED OPPOSITIONS TO THE STAY

15:29:43 19 MOTIONS THAT WERE FILED LAST, LAST YEAR.

15:29:46 20 AND RAMBUS WROTE, ON PAGE 2, "THE HISTORY

15:29:49 21 OF THIS LITIGATION, INCLUDING THE POSITIONS JOINTLY

15:29:52 22 TAKEN BY THE MANUFACTURERS AT THE SUMMARY JUDGMENT

15:29:55 23 STAGE, CONFIRMED THAT RAMBUS'S PATENT CLAIMS AND

15:29:58 24 THEIR DEFENSES ARE DOMINATED BY COMMON AND

15:30:01 25 INTERWOVEN ISSUES."

24
15:30:03 1 AND THAT'S CERTAINLY TRUE, AND THAT'S ONE

15:30:05 2 OF THE POINTS, ONE OF THE REASONS WHY WE GAVE YOU

15:30:08 3 THE CHART THAT WE DID THAT SHOWED THE OVERLAP

15:30:11 4 BETWEEN THE MICRON DELAWARE CASE, OUR 905 CASE, THE

15:30:19 5 334 CASE WHICH WE'RE TALKING ABOUT THIS AFTERNOON

15:30:22 6 IN TERMS OF SCHEDULE, AND THE RE-EXAMINATIONS.

15:30:24 7 AND IT SEEMS TO US THAT THIS ISSUE OF

15:30:27 8 SPOLIATION, WHICH YOU TOOK UP FIRST AND YOU HEARD

15:30:29 9 AND OBVIOUSLY YOU CAME OUT AT A DIFFERENT PLACE

15:30:32 10 THAN NOW TWO OTHER FEDERAL DISTRICT JUDGES HAVE

15:30:35 11 COME OUT, IS THE ONE ISSUE THAT WE'VE EVER SEEN IN

15:30:37 12 THIS CASE WHICH CUTS ACROSS ALL OF THIS, WHICH

15:30:41 13 CUTS, AS WE SAID IN OUR PAPERS, THIS GORDIAN KNOT,

15:30:45 14 AND IT SEEMS TO US THAT WHAT WE OUGHT TO DO IS

15:30:47 15 FOCUS ON THAT ISSUE AND GET THAT RESOLVED IN A WAY

15:30:51 16 THAT IS CONSISTENT FOR ALL THE MANUFACTURERS ACROSS

15:30:53 17 THE INDUSTRY, BECAUSE OBVIOUSLY THAT'S WHAT WE HAVE

15:30:56 18 HERE, AS THE COURT CERTAINLY HAS COME TO

15:30:59 19 APPRECIATE. WE HAVE AN INDUSTRY-WIDE ISSUE AND AN

15:31:01 20 INDUSTRY-WIDE PROBLEM.

15:31:04 21 AND WE DO NOT SEE ANY LEGAL BASIS UPON

15:31:06 22 WHICH PATENTS ARE UNENFORCEABLE AS TO MICRON ON

15:31:11 23 CERTAIN PRODUCTS, AND NOT AS TO HYNIX OR SAMSUNG OR

15:31:14 24 NANYA OR ANYONE ELSE.

15:31:15 25 THE COURT: I SUPPOSE IT'S THEORETICALLY

25
15:31:17 1 POSSIBLE, THOUGH, THAT -- I MEAN, I WOULD AGREE

15:31:20 2 THAT I DON'T THINK IT'S GOING TO HAPPEN, BUT THAT

15:31:25 3 THE FEDERAL CIRCUIT COULD AFFIRM A FINDING OF

15:31:30 4 SPOLIATION AS TO -- IN THE MICRON CASE AND AFFIRM A

15:31:37 5 FINDING OF NO SPOLIATION IN YOUR CASE ON THE BASIS

15:31:40 6 THAT IT'S A FACTUAL QUESTION AND THE COURT

15:31:45 7 INTERPRETED FACTS DIFFERENTLY.

15:31:47 8 MR. NISSLY: WE BELIEVE -- I'LL AGREE

15:31:49 9 WITH YOUR HONOR. IT'S THEORETICALLY POSSIBLE. I

15:31:52 10 DON'T THINK IT'S LIKELY.

15:31:53 11 THE COURT: I DON'T THINK IT IS, EITHER,

15:31:54 12 AND I THINK IN SOME WAYS IT WOULD BE UNFORTUNATE IF

15:31:57 13 THAT OCCURRED.

15:31:58 14 MR. NISSLY: AGREED.

15:31:59 15 OBVIOUSLY THIS IS A DECISION THAT NEEDS A

15:32:02 16 CONSISTENT TREATMENT, AND THAT'S WHY WE BELIEVE

15:32:04 17 THAT THE RIGHT WAY TO MOVE FORWARD ON THIS IS, AS

15:32:07 18 THE COURT SUGGESTED, TO FILE MOTIONS, TO GET IT

15:32:09 19 SORTED OUT BEFORE YOU, AND THEN ALLOW THOSE -- YOUR

15:32:12 20 DECISIONS ON THOSE ISSUES TO GO TO THE FEDERAL

15:32:14 21 CIRCUIT, ALONG WITH THE APPEAL THAT RAMBUS PROMISES

15:32:18 22 FROM DELAWARE, AND HAVE THE CIRCUIT FOCUS ON THOSE

15:32:21 23 ISSUES AND RESOLVE THEM.

15:32:23 24 THERE ARE MANY OTHER VERY DIFFICULT

15:32:25 25 ISSUES BEFORE YOUR HONOR, AS YOU WELL APPRECIATE,

26
15:32:27 1 THAT CAN TAKE UP AN ENORMOUS AMOUNT OF YOUR TIME

15:32:32 2 AND OUR TIME AND OUR RESOURCES, WHICH ARE OBVIOUSLY

15:32:34 3 NOT UNLIMITED, BUT HAVE BEEN SORELY TAXED BY THIS

15:32:37 4 LITIGATION, AND REALLY FOCUS ON THOSE.

15:32:40 5 THAT'S WHY WE ASKED YOU TWICE BEFORE FOR

15:32:42 6 A 1292(B) CERTIFICATION, AND THAT'S WHY WE'LL ASK

15:32:46 7 YOU FOR IT AGAIN, BECAUSE WE THINK THAT'S THE WAY

15:32:49 8 TO MOVE FORWARD. LET'S GET THOSE ISSUES RESOLVED

15:32:52 9 ON AN INDUSTRY-WIDE BASIS AND THEN LET'S SEE WHAT'S

15:32:55 10 LEFT WITH REGARD TO THAT.

15:32:57 11 AND THAT'S A POINT PERHAPS OTHER COUNSEL

15:32:59 12 MENTIONED, BUT PARTICULARLY WHEN WE THINK ABOUT THE

15:33:02 13 CONDUCT CASE, FOR EXAMPLE, AND THE CONDUCT TRIAL

15:33:04 14 THAT WE HAD LAST YEAR.

15:33:05 15 CERTAINLY HYNIX BELIEVES THAT THAT CASE

15:33:08 16 WAS TAINTED BY THE FACT THAT WE DID NOT HAVE ACCESS

15:33:11 17 TO EVIDENCE THAT RAMBUS DESTROYED.

15:33:14 18 THE COURT: WHY SHOULDN'T THAT CASE BE

15:33:18 19 CERTIFIED FOR APPEAL?

15:33:20 20 MR. NISSLY: BECAUSE IT IS TAINTED BY THE

15:33:22 21 ALLEGATIONS OF SPOLIATION, BECAUSE WE WERE --

15:33:25 22 THE COURT: WHY SHOULDN'T --

15:33:27 23 MR. NISSLY: I'M SORRY.

15:33:27 24 THE COURT: WHY SHOULDN'T IT BE CERTIFIED

15:33:29 25 FOR APPEAL, TOO?

27
15:33:30 1 MR. NISSLY: BECAUSE WE BELIEVE THAT THAT

15:33:31 2 OUGHT TO AWAIT THE RESOLUTION OF THE SPOLIATION

15:33:33 3 ISSUES BECAUSE IT CUTS ACROSS ALL OF THESE.

15:33:36 4 THE COURT: RIGHT.

15:33:37 5 MR. NISSLY: I'M SORRY.

15:33:38 6 THE COURT: BUT COULDN'T THE FEDERAL

15:33:39 7 CIRCUIT SAY THERE WAS SPOLIATION; THEREFORE, THIS

15:33:47 8 VERDICT CAN'T STAND? OR SAY THERE WASN'T AND IT

15:33:51 9 SHOULD STAY?

15:33:52 10 I MEAN, WHAT'S THE POINT OF -- IF THERE

15:33:56 11 IS A STAYING FOR THE PURPOSES OF RESOLVING SOME

15:34:01 12 ISSUES, WHY SHOULDN'T THE KEY ISSUES GET RESOLVED

15:34:06 13 AT THE SAME TIME?

15:34:07 14 MR. NISSLY: BECAUSE, YOUR HONOR --

15:34:09 15 PARDON ME. I DIDN'T MEAN TO STEP ON YOU.

15:34:11 16 THE COURT: THAT'S OKAY. YOU'RE ALWAYS

15:34:13 17 VERY PROFESSIONAL, SO DON'T WORRY ABOUT IT.

15:34:24 18 IF THE -- LET'S ASSUME THAT IT WENT UP

15:34:29 19 AND THE COURT SAID, "WE FEEL THAT THE FINDING OF NO

15:34:35 20 SPOLIATION IS AFFIRMED."

15:34:44 21 MR. NISSLY: UM-HUM.

15:34:45 22 THE COURT: AND IT COMES BACK FOR TRIAL.

15:34:48 23 AND THEN IT'S TRIED AND GOES UP ON APPEAL

15:34:53 24 AND THE COURT SAYS, "CLAIM CONSTRUCTION WAS WRONG."

15:34:58 25 WHY SHOULDN'T THOSE THINGS BE DONE

28
15:35:00 1 TOGETHER?

15:35:00 2 MR. NISSLY: I'D PUT CLAIM CONSTRUCTION

15:35:02 3 IN A SEPARATE BUCKET BECAUSE IT DOES PRESENT A

15:35:06 4 DIFFERENT SET OF LEGAL ISSUES AND THERE ARE -- THE

15:35:09 5 CLAIM CONSTRUCTION ISSUE MAY MAKE MORE SENSE TO GO

15:35:11 6 UP AT THIS POINT THAN OTHERS, AND THAT'S WHY I SAY

15:35:16 7 I'D PUT IT IN A SEPARATE BUCKET.

15:35:18 8 BUT WITH REGARD TO THE CONDUCT ISSUES

15:35:19 9 THAT WERE TRIED, THOSE, WE BELIEVE, AS I JUST SAID,

15:35:23 10 ARE TAINTED BY THE ISSUE OF SPOLIATION. BUT PUT

15:35:27 11 THAT ASIDE.

15:35:28 12 SPOLIATION GOES UP AND THE FEDERAL

15:35:30 13 CIRCUIT AFFIRMS YOU AND SAYS, "NO, JUDGE WHYTE WAS

15:35:33 14 CORRECT ON HIS ANALYSIS," OR "WE FIND A FACTUAL

15:35:37 15 DIFFERENCE, SOMEHOW, BETWEEN WHAT JUDGE WHYTE DID

15:35:39 16 AND WHAT JUDGE ROBINSON DID," THEN THAT CASE CAN

15:35:43 17 COME BACK HERE AND BE FINISHED LIKE MANY OTHER

15:35:45 18 CASES THAT ARE IN THIS SORT OF POSTURE.

15:35:47 19 SO THAT I DON'T SEE AS AN ISSUE. IN

15:35:50 20 FACT, IT WOULD BE, TO MY WAY OF THINKING, MORE

15:35:55 21 JUDICIALLY EFFICIENT TO DO IT THAT WAY THAN ANOTHER

15:35:58 22 WAY.

15:35:59 23 AND AS MR. POWERS POINTED OUT, THERE'S NO

15:36:02 24 PREJUDICE TO RAMBUS HERE. THIS IS A CASE ABOUT

15:36:04 25 ROYALTIES AND MONEY. AND SO THERE'S -- THAT'S --

29
15:36:08 1 THAT'S REALLY NOT AN ISSUE.

15:36:10 2 THE COURT: IF I HEARD MR. POWERS

15:36:11 3 CORRECTLY, HE WAS SUGGESTING THAT THOSE -- THAT THE

15:36:15 4 ISSUE OF CLAIM CONSTRUCTION AND THE CONDUCT TRIAL

15:36:17 5 MADE SENSE TO CERTIFY.

15:36:19 6 MR. NISSLY: HE DID SAY THE CONDUCT

15:36:20 7 TRIAL, AND THAT'S WHERE I PART COMPANY WITH HIM.

15:36:23 8 THE COURT: OKAY.

15:36:24 9 MR. NISSLY: BECAUSE I THINK THAT IS AN

15:36:25 10 ISSUE THAT IS DIRECTLY AFFECTED BY THE SPOLIATION

15:36:27 11 ISSUES AND ONE THAT OUGHT TO BE PUT ASIDE WHILE WE

15:36:31 12 SORT OUT WHERE ARE WE WITH SPOLIATION GIVEN THE

15:36:34 13 FACT THAT WE'VE NOW HAD THESE DIFFERENT DECISIONS

15:36:37 14 BY FEDERAL DISTRICT JUDGES, FEDERAL DISTRICT COURTS

15:36:40 15 ON WHETHER OR NOT SPOLIATION IS PRESENT.

15:36:42 16 THERE IS A WHOLE COMPLEX OF OVERLAPPING

15:36:45 17 ISSUES BETWEEN THE 334 CASE AS IT INVOLVES HYNIX

15:36:51 18 AND THE 905 CASE, WHICH WE POINTED OUT IN OUR

15:36:54 19 PAPERS.

15:36:55 20 WE HAVE THE OVERLAP IN PATENTS AS

15:36:57 21 ILLUSTRATED BY THE CHART WHICH WE GAVE YOU; WE HAVE

15:37:00 22 THE OVERLAP IN THE WAIVER AND ESTOPPEL CLAIMS WHICH

15:37:02 23 WERE PART OF THE CONDUCT TRIAL; AND WE HAVE THE

15:37:05 24 POINT, YOUR HONOR, THAT THESE PATENTS ARE ASSERTED

15:37:08 25 AGAINST INDUSTRY STANDARD PRODUCTS AND IT OUGHT TO

30
15:37:11 1 HAVE AN INDUSTRY STANDARD SOLUTION AND AN

15:37:15 2 INDUSTRY-WIDE SOLUTION AND, THEREFORE, WE'LL

15:37:17 3 CERTAINLY, OF COURSE, FILE OUR MOTIONS WITH THE

15:37:19 4 COURT AND MAKE THOSE POINTS. WE'LL ASK YOU FOR

15:37:22 5 ANOTHER 1292(B) CERTIFICATION.

15:37:24 6 BUT IT SEEMS TO US THAT THE MOST SENSIBLE

15:37:27 7 WAY TO PROCEED IS TO CARVE OFF THE SPOLIATION

15:37:30 8 ISSUES, LET THOSE GO TO THE CIRCUIT.

15:37:32 9 IF THERE ARE ISSUES, SUCH AS CLAIM

15:37:34 10 CONSTRUCTION, THAT MAKE SENSE AT THIS POINT TO

15:37:36 11 THINK ABOUT IN THAT REGARD, THAT MAY MAKE SOME

15:37:39 12 SENSE.

15:37:40 13 BUT ALL THE REST OF THESE ISSUES THAT ARE

15:37:42 14 SO FACT BOUND THAT ARE AFFECTED BY WHAT HAPPENS ON

15:37:45 15 SPOLIATION OUGHT, IN FAIRNESS, TO STAY UNRESOLVED

15:37:51 16 UNTIL WE DECIDE AND UNDERSTAND EXACTLY WHAT THE LAW

15:37:53 17 OF THIS CASE IS REGARDING SPOLIATION, AND THEN WE

15:37:56 18 CAN MOVE FORWARD.

15:37:57 19 THE COURT: OKAY.

15:37:57 20 MR. NISSLY: THANK YOU.

15:38:04 21 MR. STONE: GOOD AFTERNOON, YOUR HONOR.

15:38:06 22 THE COURT: GOOD AFTERNOON.

15:38:07 23 MR. STONE: FIRST, I THINK THAT YOU

15:38:09 24 PROPOSED A BRIEFING SCHEDULE, AND IN OUR PAPERS

15:38:12 25 WE'D SUGGESTED WE DIDN'T SEE THE NEED FOR IT, AND

31
15:38:15 1 OBVIOUSLY YOU THINK THERE IS PROBABLY A NEED AND I

15:38:19 2 APPRECIATE THAT.

15:38:19 3 THE COURT: I THINK THERE'S A NEED FOR

15:38:21 4 TWO REASONS. ONE IS THE -- SOME SPECIFIC

15:38:25 5 APPLICATIONS, OR AN EXPLANATION OF WHY OR WHY NOT

15:38:32 6 ISSUE PRECLUSION APPLIES.

15:38:34 7 BUT, FRANKLY, I'M MORE CONCERNED WITH

15:38:39 8 GETTING FURTHER THOUGHTS ON WHAT MAKES SENSE FROM A

15:38:42 9 PRACTICAL STANDPOINT, BECAUSE I SUSPECTED THE

15:38:48 10 PARTIES WOULD COME OUT THE WAY THEIR LETTERS DID AS

15:38:53 11 FAR AS THEIR POSITIONS, BUT I WASN'T SURE.

15:38:57 12 I MEAN, I CAN SEE SOME ADVANTAGES,

15:38:59 13 FRANKLY, TO RAMBUS OF BOTH APPROACHES. SO I WASN'T

15:39:05 14 100 PERCENT SURE AS TO WHERE YOU WOULD COME OUT ON

15:39:08 15 THIS.

15:39:09 16 MR. STONE: OKAY. SO LET ME TRY TO

15:39:10 17 ADDRESS BRIEFLY SOME OF THE ISSUES YOU'VE RAISED

15:39:14 18 AND SOME OF THE QUESTIONS THAT YOU'VE ASKED, IF I

15:39:17 19 MIGHT, AND IF YOU HAVE OTHER QUESTIONS, PLEASE POSE

15:39:19 20 THEM TO ME.

15:39:21 21 BUT I'M ASSUMING THAT -- THE BRIEFING

15:39:22 22 SCHEDULE YOU PROPOSED, WE'LL MEET THE BRIEFING

15:39:26 23 SCHEDULE AND SO FORTH.

15:39:27 24 I THINK WE'VE LAID OUT IN SOME

15:39:29 25 SIGNIFICANT DETAIL OUR POSITION ON THE MERITS OF

32
15:39:31 1 THIS ISSUE, SO I HOPE THE MANUFACTURERS, IN THEIR

15:39:34 2 PAPERS, CAN SORT OF ADDRESS AND CAN JOIN ISSUES

15:39:40 3 QUICKLY ON SOME OF THOSE.

15:39:41 4 I WANT TO START MAYBE WITH -- THERE WAS

15:39:45 5 THE POINT FROM OUR EARLIER BRIEF THAT MR. NISSLY

15:39:48 6 QUOTED ABOUT TO SOME EXTENT THIS CASE HAS -- THERE

15:39:52 7 ARE COMMON ISSUES THAT CUT ACROSS MANY OF THE CASES

15:39:54 8 AND MANY OF THE ISSUES ARE COMMON.

15:39:56 9 INDEED, THAT WAS THE REASON WHY WE HAD

15:39:58 10 FILED THE MOTION TO TRANSFER VENUE IN THE DELAWARE

15:40:01 11 ACTION TO TRY TO BRING IT OUT HERE, AND MICRON

15:40:04 12 RESISTED THAT.

15:40:05 13 AND THAT'S IMPORTANT WHEN WE COME BACK IN

15:40:08 14 THE BRIEFING, AS WE WILL, TO RECOGNITION THAT WHAT

15:40:11 15 MICRON SEEKS IS OFFENSIVE COLLATERAL ESTOPPEL,

15:40:15 16 BECAUSE THEY WERE THE ONES WHO SELECTED THE FORUM,

15:40:18 17 AND AS THE SUPREME COURT NOTED IN PARKLANE, AND

15:40:22 18 THEY TALKED ABOUT IT IN THE TEXT OF THAT OPINION AT

15:40:25 19 FOOTNOTE 15, AND IN FOOTNOTE 15, THEY NOTED THAT

15:40:30 20 IT'S OFFENSIVE COLLATERAL ESTOPPEL WHEN THE PARTY

15:40:34 21 WHO SELECTED THE FORUM THEN SEEKS TO IMPOSE THE

15:40:39 22 RESULT IN THAT FORUM ON WHAT HAPPENS IN SOME OTHER

15:40:42 23 FORUM, NAMELY, THE FORUM HERE THAT RAMBUS HAS

15:40:45 24 SELECTED.

15:40:46 25 SO THERE IS AN ISSUE, AND THAT ISSUE DOES

33
15:40:48 1 GO TO THE COLLATERAL ESTOPPEL LAW, BECAUSE THERE IS

15:40:52 2 AT LEAST SOME RECOGNITION IN THE CASES THAT THE

15:40:55 3 DISCRETIONARY FACTORS MAY BE MORE HEAVILY WEIGHED

15:40:59 4 IN AN OFFENSIVE COLLATERAL ESTOPPEL AS OPPOSED TO

15:41:03 5 DEFENSIVE.

15:41:03 6 AND HERE WE DO HAVE, EVEN IN MICRON'S

15:41:06 7 CASE -- AND I REALIZE I'M TALKING ABOUT THE

15:41:08 8 TOUGHEST CASE FROM MY PERSPECTIVE -- EVEN IN

15:41:10 9 MICRON'S CASE, WE HAVE OFFENSIVE COLLATERAL

15:41:13 10 ESTOPPEL WHERE THE VARIOUS DISCRETIONARY FACTORS

15:41:17 11 SHOULD BE WEIGHED MOST HEAVILY.

15:41:19 12 THAT'S NOT TO SAY THEY'RE NOT WEIGHED IN

15:41:21 13 DEFENSIVE COLLATERAL ESTOPPEL. I THINK THEY ARE.

15:41:23 14 THE RESTATEMENT, AMONG OTHER AUTHORITIES, MAKES

15:41:25 15 THAT CLEAR.

15:41:27 16 BUT SO WE HAVE HERE A SITUATION IN WHICH

15:41:29 17 WE'RE GOING TO -- THIS COURT WILL LOOK AT, IN THE

15:41:32 18 BRIEFS WE FILE, I THINK AT WHETHER, IN FACT, A STAY

15:41:35 19 FROM MICRON IS APPROPRIATE, OR WHETHER THE DECISION

15:41:37 20 OF JUDGE ROBINSON HAS ANY IMPACT HERE.

15:41:40 21 YOU TALKED WITH MR. BOBROW ABOUT THE

15:41:42 22 OVERLAP IN THE PATENTS AND THE PRODUCTS, AND THERE

15:41:44 23 IS NO OVERLAP IN PATENTS AND PRODUCTS.

15:41:47 24 THERE ARE FOUR PATENTS WHICH ARE HERE,

15:41:50 25 BUT THEY'RE ASSERTED HERE AGAINST A PRODUCT THAT IS

34
15:41:52 1 NOT IN THE DELAWARE CASE, I'M TALKING NOW JUST

15:41:56 2 ABOUT MICRON, AGAINST DDR3, A PRODUCT THAT WAS NOT

15:42:00 3 EVEN IN CONTEMPLATION OR DESIGN AT THE TIME THAT

15:42:03 4 JUDGE ROBINSON FOUND THERE WAS A PERIOD OF

15:42:06 5 SPOLIATION.

15:42:07 6 THE COURT: BUT WHY DOES THAT MATTER,

15:42:11 7 BECAUSE WHAT CONDUCT SHE FOUND INFECTED THE PATENTS

15:42:14 8 WOULD APPLY TO THE -- IT WOULDN'T BE PRODUCT

15:42:19 9 DEPENDENT, WOULD IT?

15:42:21 10 MR. STONE: I DON'T -- I THINK, FOR THE

15:42:22 11 VERY REASON THAT THE MANUFACTURERS HAVE INSISTED ON

15:42:25 12 HAVING DIFFERENT REPRESENTATIVE PRODUCTS FOR EVERY

15:42:28 13 GENERATION OF PRODUCT, I THINK THERE ARE DIFFERENT

15:42:30 14 PRODUCTS.

15:42:30 15 I THINK THIS COURT LOOKED CAREFULLY AT

15:42:32 16 THE ABILITY TO REVERSE ENGINEER A PRODUCT.

15:42:34 17 I THINK A QUESTION AS TO WHETHER A DUTY

15:42:36 18 AROSE WITH RESPECT TO THAT PRODUCT AT A PARTICULAR

15:42:38 19 TIME, I THINK ALL OF THOSE ARE DIFFERENCES.

15:42:41 20 AND THE MOST CRITICAL DIFFERENCE, IN

15:42:43 21 TERMS OF THOSE TWO CASES AS IT BEARS ON MICRON, IS

15:42:47 22 WITH RESPECT TO THE TIME AT WHICH THE CASE WAS

15:42:49 23 FILED, BECAUSE JUDGE ROBINSON'S DECISION IS BASED

15:42:53 24 ON, AND HER FINDING OF PREJUDICE IS, AND BAD FAITH,

15:42:57 25 REALLY, IS BASED ON TWO THINGS: A DETERMINATION

35
15:43:03 1 ABOUT WHEN THERE WAS A DUTY TO PRESERVE AND A

15:43:05 2 FAILURE TO PRESERVE; AND, SECONDLY, ABOUT

15:43:08 3 LITIGATION MISCONDUCT THAT OCCURRED IN 2001.

15:43:11 4 AND SHE REFERS, AND IT'S NOT -- I THINK

15:43:14 5 IT'S CLEAR FROM HER RECORD AND HER DECISION WHAT

15:43:17 6 SHE'S REFERRING TO, AND WE CAN MAKE IT CLEAR IN OUR

15:43:20 7 BRIEFING IF IT'S NOT, AND I THINK THE COURT HAS

15:43:22 8 SEEN THE SAME EVIDENCE, BUT THERE WAS AN ARGUMENT

15:43:26 9 THAT IT WAS LITIGATION MISCONDUCT WHAT OCCURRED IN

15:43:29 10 THE INFINEON CASE, AND SHE REACHED OUT TO THAT

15:43:31 11 CONDUCT AND SHE SAID AT LEAST ONE BRIEF, OR PERHAPS

15:43:36 12 TWO, IT'S A LITTLE UNCLEAR FROM HER DECISION, THAT

15:43:39 13 WERE FILED IN HER CASE IN 2001 WERE NOT CONSISTENT

15:43:44 14 WITH THE FACTS AS SHE LATER FOUND THEM TO EXIST.

15:43:48 15 ALL OF THAT CAME TO LIGHT IN 2005, EARLY

15:43:52 16 2005 BEFORE THIS CASE WAS FILED.

15:43:54 17 SO THERE'S NO ARGUMENT, AND APTIX, I

15:43:57 18 THINK, MAKES CLEAR THAT THERE'S NO ARGUMENT THAT

15:44:00 19 THE LITIGATION MISCONDUCT, WHICH IS SORT OF

15:44:04 20 INTERWOVEN AND INEXTRICABLY TIED TO HER

15:44:07 21 CONCLUSIONS, HAS ANY BEARING IN THIS CASE, AND

15:44:09 22 MICRON I DON'T THINK CAN CONTEND OTHERWISE.

15:44:12 23 SO I THINK THERE'S REAL ISSUES FOR US TO

15:44:14 24 BRIEF ON THE MICRON QUESTION.

15:44:16 25 AND, OF COURSE, WITH RESPECT TO THE OTHER

36
15:44:18 1 PARTIES, HYNIX, OF COURSE, THERE'S BEEN A DECISION.

15:44:21 2 SAMSUNG, THE CASE -- THE MATTER IS

15:44:23 3 PENDING BEFORE YOUR HONOR.

15:44:25 4 AND NANYA, I THINK THERE'S GOING TO BE

15:44:27 5 VERY DISTINCT ISSUES, TOO, NOT THE LEAST OF WHICH

15:44:30 6 IS THE DIFFERENCE IN THE DATE THAT THE ACTION WAS

15:44:32 7 FILED.

15:44:33 8 SO I DO THINK WE'LL SEE SIGNIFICANT

15:44:36 9 DIFFERENCES, AND THE COURT -- I THINK THE COURT IS

15:44:38 10 RIGHT TO SAY THERE'S CERTAINLY THE POSSIBILITY THAT

15:44:41 11 THE FEDERAL CIRCUIT COULD REACH -- COULD AFFIRM,

15:44:45 12 LET'S SAY, BOTH DECISIONS, AND LEAVE THE DECISIONS,

15:44:48 13 ON THEIR FACE AT LEAST, ARRIVING AT INCONSISTENT

15:44:51 14 RESULTS, COULD LEAVE THEM STANDING, BOTH BECAUSE

15:44:54 15 ONE IS GOING TO BE ASSESSED UNDER NINTH CIRCUIT

15:44:58 16 LAW, THE OTHER UNDER THIRD CIRCUIT LAW.

15:45:00 17 THE FACTUAL SCENARIO IS DIFFERENT, AND

15:45:02 18 THE TIMING OF SOME OF THE ACTS, AS SEEN BY THE

15:45:05 19 COURTS, I THINK, CAME OUT DIFFERENT. SO IT'S

15:45:08 20 POSSIBLE.

15:45:09 21 SO I THINK THERE'S A NUMBER OF ISSUES

15:45:11 22 THAT WE WILL BRIEF IN AN EFFORT TO PERSUADE THE

15:45:15 23 COURT NOT TO STAY THE MICRON CASE AND TO PERSUADE

15:45:18 24 YOU THAT WHAT JUDGE ROBINSON DOES IN HER CASE

15:45:21 25 SHOULD NOT AFFECT WHAT THIS COURT DOES IN ITS CASE

37
15:45:24 1 AND THAT WE SHOULD PROCEED TO TRIAL ON FEBRUARY

15:45:27 2 17TH AS THE COURT SUGGESTED AS A POSSIBLE TRIAL

15:45:30 3 DATE.

15:45:30 4 NOW -- SO I THINK THAT'S A PREVIEW, I

15:45:34 5 GUESS, OF WHAT WE'LL TRY TO ADDRESS IN THE BRIEFS.

15:45:38 6 LET ME -- LET ME ADDRESS, IF I COULD, THE

15:45:44 7 COURT'S TWO SCENARIOS AND JUST TRY TO BREAK THEM

15:45:47 8 DOWN.

15:45:49 9 THE FIRST IS, SHOULD THE COURT ENTER

15:45:51 10 JUDGMENT IN HYNIX I AFTER -- WHICH IS COMPLETED BUT

15:45:55 11 FOR DECISIONS ON VARIOUS MOTIONS AND ONE MATTER

15:45:58 12 THAT HAD BEEN TRIED TO THE COURT AS OPPOSED TO THE

15:46:01 13 JURY IN THE CONDUCT TRIAL.

15:46:02 14 AND I THINK IT'S APPROPRIATE TO, TO ENTER

15:46:05 15 JUDGMENT IN THAT CASE AS PROMPTLY AS THE COURT CAN.

15:46:09 16 THE COURT: I, OBVIOUSLY, WISH IT HAD

15:46:12 17 ALREADY BEEN DONE, BUT IT'S -- IT HASN'T BEEN, SO I

15:46:15 18 DON'T THINK THERE'S ANY DISPUTE THAT THAT SHOULD

15:46:17 19 PROCEED.

15:46:17 20 MR. STONE: OKAY. AND SO THEN THAT

15:46:19 21 RAISES THE QUESTION OF, YOU KNOW, THAT TAKES UP THE

15:46:22 22 CONDUCT TRIAL, THE JURY'S VERDICT IN THE CONDUCT

15:46:25 23 TRIAL.

15:46:26 24 IT WOULD SEEM THAT THE OTHER PARTIES WHO

15:46:29 25 HAVE AN INTEREST IN APPEALING FROM THAT VERDICT,

38
15:46:32 1 THAT THEIR APPEAL SHOULD GO UP AT THE SAME TIME

15:46:34 2 JUST IN THE INTERESTS OF JUDICIAL EFFICIENCY. I

15:46:38 3 THINK THE FEDERAL CIRCUIT WOULD APPRECIATE THAT,

15:46:40 4 AND IT SEEMS TO ME TO MAKE SENSE.

15:46:42 5 AND TO THE EXTENT THAT ANY OF THE

15:46:44 6 DEFENDANTS WANT TO ARGUE THAT -- I GUESS THE

15:46:48 7 MANUFACTURERS ARE PLAINTIFFS IN THAT INSTANCE --

15:46:51 8 WANT TO ARGUE THAT THE FINDING THAT JUDGE ROBINSON

15:46:53 9 MADE SOMEHOW IMPACTS THE JURY'S VERDICT IN THE

15:46:56 10 CONDUCT TRIAL -- AND THE COURT WILL RECALL WE HAD A

15:46:59 11 STIPULATION AS TO HOW SPOLIATION WOULD BE TREATED

15:47:02 12 IN THE CONDUCT TRIAL, AND I DON'T THINK THERE'S ANY

15:47:05 13 ARGUMENT TO BE MADE THERE -- BUT THAT ISSUE SHOULD

15:47:07 14 GO UP ON THE RECORD OF THE CONDUCT TRIAL, NOT

15:47:09 15 ISOLATED.

15:47:12 16 SO I DO THINK THAT SHOULD GO UP.

15:47:14 17 IT MAKES SENSE TO ME, ALTHOUGH I

15:47:18 18 UNDERSTAND YOU CAN MAKE AN ARGUMENT TO THE CONTRARY

15:47:20 19 AND SOME OF THE APPELLATE DECISIONS WOULD SEEM TO

15:47:23 20 COME OUT TO THE CONTRARY, THAT THE SAMSUNG DECISION

15:47:26 21 THAT YOUR HONOR HAS UNDER SUBMISSION, THAT THAT

15:47:29 22 WOULD GO UP AT THE SAME TIME.

15:47:31 23 IT'S SIMILAR -- I MEAN, IT'S THE SAME

15:47:34 24 ISSUE AND SO I UNDERSTAND WHY IT MIGHT.

15:47:36 25 I UNDERSTAND THAT MANY APPELLATE COURTS,

39
15:47:38 1 INCLUDING THE FEDERAL CIRCUIT, MIGHT SAY, NO,

15:47:40 2 THAT'S JUST A PIECE OF THE WHOLE CASE AND WE SHOULD

15:47:42 3 TRY THE WHOLE CASE AND WE SHOULDN'T JUST SEND IT UP

15:47:45 4 PIECEMEAL.

15:47:46 5 I SEE BOTH SIDES OF THE SAMSUNG ISSUE AND

15:47:49 6 I'M NOT SURE WHICH IS RIGHT AND WHETHER IT SHOULD

15:47:51 7 BE CERTIFIED OR NOT.

15:47:53 8 BUT I'LL THINK ABOUT IT SOME MORE AND TRY

15:47:58 9 TO PROVIDE THE COURT WITH ANY HELPFUL INSIGHTS WE

15:48:02 10 CAN.

15:48:03 11 SIMILARLY, THE LICENSING ISSUE, ALTHOUGH

15:48:05 12 I THINK THERE THE ARGUMENT IS LESS STRONG THAT THAT

15:48:07 13 SHOULD GO UP BECAUSE IT'S NOT SIMILAR TO ANY

15:48:10 14 OTHERS.

15:48:10 15 THE COURT: I AGREE THAT THAT'S, IN MY

15:48:13 16 VIEW, THE MOST UNLIKELY ONE FOR INTERLOCUTORY

15:48:18 17 APPEAL.

15:48:19 18 MR. STONE: THE CLAIM CONSTRUCTION --

15:48:21 19 OBVIOUSLY YOUR CLAIM CONSTRUCTION IN HYNIX I WILL

15:48:23 20 GO UP. THAT'LL BE PART OF THE HYNIX VERDICT.

15:48:27 21 THE COURT: RIGHT.

15:48:27 22 MR. STONE: WHETHER THE CLAIM

15:48:28 23 CONSTRUCTION HERE SHOULD BE CERTIFIED IN MY MIND

15:48:31 24 SORT OF FALLS IN -- I MEAN, A, YOU MIGHT MODIFY

15:48:34 25 CLAIM CONSTRUCTION DURING THE COURSE OF THE TRIAL.

40
15:48:36 1 IT'S POSSIBLE THAT CERTAIN THINGS WILL NECESSITATE

15:48:39 2 THAT, OR THAT YOU WILL CONSTRUE ADDITIONAL CLAIMS

15:48:41 3 ALONG THE WAY.

15:48:42 4 AND AS WE'VE ARGUED PREVIOUSLY, I THINK

15:48:46 5 IT'S IMPORTANT, AND THE FEDERAL CIRCUIT HAS SEEMED

15:48:48 6 TO MAKE IT CLEAR THAT THEY WANT A FULL RECORD ON

15:48:50 7 CLAIM CONSTRUCTION. MAYBE THEY WILL THINK THEY

15:48:52 8 HAVE IT.

15:48:53 9 MAYBE THEY WILL THINK THE CASE SHOULD BE

15:48:54 10 TRIED BEFORE THEY REVIEW CLAIM CONSTRUCTION.

15:48:57 11 I THINK THEY CERTAINLY HAVE SOME

15:48:58 12 DECISIONS WHICH WOULD SUGGEST THAT THEY DON'T WANT

15:49:01 13 CERTIFICATION OF CLAIM CONSTRUCTIONS.

15:49:04 14 THE COURT: WELL, THEY'VE CERTAINLY

15:49:08 15 GENERALLY TAKEN THAT VIEW, BUT I'VE SENSED A LITTLE

15:49:10 16 BIT OF A SOFTENING OF THAT, AND I ALSO THINK THIS

15:49:14 17 CASE PRESENTS A VERY COMPELLING ARGUMENT FOR DOING

15:49:18 18 INTERLOCUTORY REVIEW OF CLAIM CONSTRUCTION.

15:49:20 19 MR. STONE: SO -- AND I -- AGAIN, IT'S AN

15:49:24 20 ISSUE I'D LIKE TO THINK ABOUT. I APPRECIATE THAT

15:49:26 21 THIS CASE HAS MANY UNIQUE ASPECTS TO IT, SO I DON'T

15:49:30 22 WANT TO TRY TO SAY THIS IS A RUN-OF-THE-MILL CASE,

15:49:32 23 NOR WOULD THE FEDERAL CIRCUIT, I THINK, LOOK AT

15:49:35 24 THIS AS AN ORDINARY CASE. I THINK THEY WOULD SEE

15:49:37 25 THE COMPLICATED ASPECT OF IT THAT THIS COURT HAS

41
15:49:40 1 CONFRONTED AND DEALT WITH.

15:49:43 2 SO I THINK THE LICENSING ISSUE FOR

15:49:44 3 SAMSUNG AND CLAIM CONSTRUCTION ARE SOMEWHAT

15:49:46 4 DIFFERENT IN MY MIND THAN THE OTHERS, BUT I

15:49:49 5 APPRECIATE THAT THEY'RE ALSO DIFFERENT FROM EACH

15:49:51 6 OTHER AND WOULDN'T NECESSARILY BE TREATED THE SAME

15:49:54 7 WAY.

15:49:54 8 I THINK WHICHEVER THINGS GO UP, THE

15:49:57 9 HYNIX I JUDGMENT AND WHATEVER THINGS ARE CERTIFIED

15:49:59 10 FOR INTERLOCUTORY APPEAL, I DON'T THINK THAT'S A

15:50:02 11 REASON TO DELAY THIS TRIAL, AND I DO WANT TO

15:50:05 12 ADDRESS THAT.

15:50:07 13 AS THE COURT KNOWS, RAMBUS MADE A VERY

15:50:12 14 STRONG ARGUMENT FOR AN INJUNCTION AT THE CONCLUSION

15:50:17 15 OF HYNIX I, WHICH THE COURT HAS UNDER SUBMISSION.

15:50:21 16 THIS IS A CASE NOT JUST ABOUT DAMAGES.

15:50:23 17 IT IS ALSO ABOUT RAMBUS'S RIGHT TO INJUNCTIVE

15:50:28 18 RELIEF.

15:50:29 19 MOREOVER, IT'S A CASE IN WHICH THERE IS

15:50:32 20 COGNIZABLE INJURY TO RAMBUS FROM DELAY IN RECEIVING

15:50:37 21 ROYALTIES IF IT TURNS OUT AT THE END OF THE DAY

15:50:40 22 IT'S ENTITLED TO THEM, AND WE LAID THAT OUT IN THE

15:50:45 23 INJUNCTION PAPERS AND POST-JUDGMENT PLEADINGS WE

15:50:49 24 FILED IN CONNECTION WITH HYNIX I, AND I THINK THE

15:50:52 25 COURT'S AWARE OF THE FACT THAT IT IS NOT SIMPLY --

42
15:50:55 1 A DOLLAR PLUS INTEREST DEFERRED IS NOT THE

15:50:58 2 EQUIVALENT TO RAMBUS OF A DOLLAR TODAY.

15:51:01 3 INDEED, THE COMPANY IS IN A MUCH

15:51:05 4 DIFFERENT SITUATION THAN THAT WHERE TRYING TO

15:51:07 5 RESOLVE THESE MATTERS PROMPTLY MAKES A HUGE

15:51:10 6 DIFFERENCE.

15:51:11 7 IN ADDITION, AS I KNOW THE COURT ALSO

15:51:13 8 APPRECIATES, THERE ARE REAL ISSUES WITH RESPECT TO

15:51:16 9 WITNESSES CONTINUING TO HAVE AS GOOD A RECALL AS

15:51:21 10 THEY HAD WHEN THE EVENTS OCCURRED, AND A DELAY -- I

15:51:25 11 THINK IT WOULD BE OPTIMISTIC TO SUGGEST THAT THE

15:51:27 12 COURT COULD GET THE CASE BACK IN 18 MONTHS. I

15:51:30 13 THINK WE'RE LOOKING AT SOMETHING LONGER THAN THAT,

15:51:33 14 PROBABLY TWO YEARS.

15:51:34 15 TWO YEARS IS A SIGNIFICANT PERIOD OF TIME

15:51:37 16 WITH RESPECT TO SOME OF THE WITNESSES WHO ARE

15:51:38 17 CRITICAL TO THIS CASE, SOME OF WHOM, FOR WHOM THERE

15:51:44 18 CONTINUES TO BE SOME HEALTH ISSUES, AND OTHERS FOR

15:51:47 19 WHOM JUST THE PASSAGE OF TIME, I THINK, MAKES IT

15:51:50 20 MORE DIFFICULT FOR THEIR TESTIMONY TO BE AS

15:51:54 21 COMPLETE AND WITH AS GOOD A RECALL AS THEY HAVE HAD

15:51:56 22 IN THE PAST.

15:51:57 23 SO I THINK THE COURT --

15:51:58 24 THE COURT: HAVEN'T MOST OF THESE

15:52:00 25 WITNESSES BEEN DEPOSED ABOUT FIVE TIMES?

43
15:52:03 1 MR. STONE: I WOULD SAY MOST OF THEM HAVE

15:52:05 2 BEEN DEPOSED MANY MORE THAN FIVE TIMES, YOUR HONOR.

15:52:08 3 THAT I DO AGREE WITH. AND WE HAVE LOTS OF CAPTURED

15:52:11 4 TESTIMONY.

15:52:11 5 BUT AS I THINK THE COURT KNOWS, AND WE

15:52:13 6 HAVE FELT IT'S A DIFFERENCE, THERE WAS CERTAINLY A

15:52:15 7 DIFFERENCE IN THE TRIAL BEFORE JUDGE ROBINSON AND

15:52:18 8 THE TRIAL HERE, IS OUR ABILITY TO GET WITNESSES WHO

15:52:20 9 NO LONGER WORK FOR RAMBUS AND HAVE NO PARTICULAR

15:52:23 10 TIES TO RAMBUS TO APPEAR VOLUNTARILY CONTINUES TO

15:52:26 11 BE A STRUGGLE WHEN WE'RE IN DELAWARE, OR OUTSIDE OF

15:52:29 12 CALIFORNIA, AND IT'S MUCH EASIER FOR US TO PROCURE

15:52:33 13 THEIR ATTENDANCE HERE.

15:52:34 14 AND WE DO THINK IT'S PREFERABLE FOR THEIR

15:52:36 15 TESTIMONY TO BE TAKEN LIVE RATHER THAN THROUGH

15:52:39 16 DEPOSITION OR PRIOR TRIAL TESTIMONY.

15:52:42 17 SO WE WOULD URGE YOU TO GO FORWARD WITH

15:52:44 18 THIS TRIAL AS EXPEDITIOUSLY AS POSSIBLE WITH

15:52:48 19 WHICHEVER PARTIES, WE THINK IT SHOULD INCLUDE

15:52:51 20 MICRON, BUT CLEARLY I RECOGNIZE MICRON'S IN A

15:52:54 21 DIFFERENT POSITION THAN THE OTHER THREE, AND INDEED

15:52:57 22 EACH OF THE OTHER THREE IS IN A DIFFERENT POSITION,

15:52:59 23 HYNIX HAVING TRIED THE CASE AND RECEIVED A

15:53:02 24 DECISION; SAMSUNG HAVING TRIED IT AND AWAITING A

15:53:05 25 DECISION; NANYA NOT HAVING YET TRIED THE

44
15:53:08 1 SPOLIATION.

15:53:09 2 I THINK THERE ARE DIFFERENCES THERE, BUT

15:53:12 3 I THINK WITH WHICHEVER PARTIES, WE THINK IT SHOULD

15:53:14 4 BE ALL FOUR, THAT TRIAL SHOULD MOVE FORWARD AS SOON

15:53:17 5 AS WE CAN.

15:53:18 6 I THINK IT'S IN THE INTERESTS OF JUDICIAL

15:53:20 7 ECONOMY AND EFFICIENCY.

15:53:21 8 AND, IN FACT, I THINK WHAT IT WOULD ALLOW

15:53:24 9 IS IT WOULD ALLOW A DECISION IN THIS CASE, WHICH

15:53:26 10 AFTER THE TRIAL THAT IS CURRENTLY SET, WE WILL HAVE

15:53:30 11 COMPLETED TRIAL OF ALL OF THE ISSUES FOR SAMSUNG;

15:53:32 12 AND IF MICRON IS IN IT, ALL OF THE ISSUES FOR

15:53:36 13 MICRON; AND WHAT WILL REMAIN TO BE TRIED, I THINK,

15:53:39 14 IS JUST THE NANYA SPOLIATION CLAIM.

15:53:41 15 SO WE WOULD BE ABLE -- AND I THINK THE

15:53:43 16 TIMING WOULD BE SUCH THAT THE APPEALS WOULD

15:53:46 17 ULTIMATELY BE CONSOLIDATED, THAT A TRIAL NOW WOULD

15:53:50 18 RESULT IN ALL OF THOSE ISSUES, AND PERHAPS WE COULD

15:53:52 19 DO THE NANYA ONE QUICKLY AND EVEN THE NANYA ONE

15:53:56 20 BEING PUT ON THE SAME APPELLATE SCHEDULE, SO THAT

15:53:59 21 ALL OF THE ISSUES AND FINAL JUDGMENTS IN ALL OF THE

15:54:01 22 CASES COULD BE BEFORE THE FEDERAL CIRCUIT AT ONE

15:54:04 23 TIME.

15:54:04 24 THAT, I THINK, WOULD ACCOMPLISH MORE IN

15:54:07 25 THE INTERESTS OF JUDICIAL EFFICIENCY AND MORE TO

45
15:54:09 1 ACHIEVE THE GOAL THAT SOME OF THE MANUFACTURERS'

15:54:15 2 COUNSEL HAVE SPOKEN TO OF SORT OF GETTING AN

15:54:18 3 INDUSTRY-WIDE RESOLUTION. THAT WOULD GIVE THE

15:54:20 4 FEDERAL CIRCUIT ALL OF THE PARTIES AND ALL OF THE

15:54:23 5 ISSUES IN FRONT OF THEM AT ONE TIME.

15:54:27 6 THE COURT: COSTS HAVE BEEN A CONCERN OF

15:54:31 7 MINE ALL ALONG, BUT, FRANKLY, HAVEN'T APPEARED TO

15:54:34 8 BE MUCH OF A CONCERN OF THE PARTIES, BUT I'M NOW

15:54:39 9 HEARING TALK OF CONCERNS FROM MICRON AND RAMBUS AND

15:54:47 10 OTHERS.

15:54:53 11 IT WOULD BE INTERESTING TO HAVE THE

15:54:56 12 PARTIES ADDRESS THE JUDICIAL EFFICIENCY/ECONOMY

15:55:03 13 ISSUE FOR ME, AND PERHAPS EVEN SUPPORT THAT BY SOME

15:55:08 14 EVIDENCE.

15:55:10 15 MR. STONE: WELL, WE CERTAINLY WILL

15:55:12 16 INCLUDE THAT --

15:55:13 17 THE COURT: BECAUSE THAT'S A REAL ISSUE

15:55:14 18 IN MY MIND AS TO WHETHER OR NOT IT'S MORE EFFICIENT

15:55:22 19 AND COST EFFECTIVE TO GET EVERYTHING WOUND UP NOW,

15:55:25 20 OR TO TAKE UP SOME ISSUES THAT ARE ISSUES THAT, AT

15:55:31 21 LEAST IN MY VIEW, COULD PRESENT SOME GENUINELY

15:55:36 22 TOUGH ISSUES ON APPEAL THAT COULD GO EITHER WAY.

15:55:39 23 MR. STONE: AND I THINK I WOULD LIKE TO

15:55:42 24 TRY TO COLLECT THOSE THOUGHTS AND SOME EVIDENCE TO

15:55:45 25 SUPPORT IT.

46
15:55:46 1 BUT I THINK, TO THE EXTENT I HAVE HAD

15:55:49 2 SOME TIME TO THINK ABOUT IT, MY VIEW IS, AT THE

15:55:51 3 MOMENT AT LEAST, THAT WE ACHIEVE REAL EFFICIENCIES

15:55:54 4 BY PROCEEDING FORWARD TO TRIAL AND TRYING TO GET

15:55:57 5 ALL THE ISSUES IN FRONT OF THE APPELLATE COURT.

15:56:00 6 OUR HISTORY IN THIS CASE HAS SUGGESTED

15:56:02 7 THAT, AS ISSUES HAVE BEEN DECIDED, BUT ENTIRE

15:56:07 8 CLAIMS HAVEN'T BEEN DECIDED, THAT IT HASN'T DONE

15:56:10 9 MUCH TO ADVANCE THE ULTIMATE RESOLUTION OF THE

15:56:13 10 CASES.

15:56:14 11 THE COURT: UNFORTUNATELY, I CAN'T

15:56:16 12 DISAGREE.

15:56:17 13 MR. STONE: IT HAS SOMETIMES CHANGED THE

15:56:19 14 DIRECTION WE'VE BEEN POINTED IN FROM TIME TO TIME,

15:56:22 15 AND IT HAS MOVED US ON DIFFERENT COURSES, BUT I

15:56:25 16 DON'T THINK IT'S RESULTED IN THE CONCLUSION THAT I

15:56:26 17 THINK YOU HEAR EVERYBODY SAYING IS DESIRABLE.

15:56:31 18 THEY OBVIOUSLY ALL WANT A CONCLUSION THAT

15:56:34 19 GOES ONE WAY OR THE OTHER, BUT I DON'T HEAR ANYBODY

15:56:37 20 SAYING TODAY THEY DON'T WANT SOME FINALITY, AND I

15:56:40 21 THINK THAT -- AND I'D LIKE TO ADDRESS IT IN OUR

15:56:42 22 BRIEF -- THAT THE PROPOSAL THAT I'VE AT LEAST

15:56:45 23 SKETCHED OUT WOULD BEST ACHIEVE THAT.

15:56:48 24 THE COURT: OKAY. THANK YOU.

15:56:49 25 MR. STONE: THANK YOU.

47
15:56:50 1 THE COURT: ANYBODY HAVE ANY ADDITIONAL

15:56:51 2 BRIEF COMMENTS?

15:56:53 3 MR. POWERS: JUST TWO ADDITIONAL THOUGHTS

15:56:57 4 AND ONE QUESTION.

15:56:58 5 ONE ADDITIONAL THOUGHT IS THAT OPTION A

15:57:03 6 AS LAID OUT BY YOUR HONOR HAS THE ADDITIONAL

15:57:05 7 ADVANTAGE OF ALLOWING THE PATENT OFFICE PROCEDURES

15:57:07 8 TO LET PLAY OUT AS WELL, AND THAT ADDS, AS YOUR

15:57:14 9 HONOR RECALLS FROM THE PRIOR MOTION, SIGNIFICANT

15:57:16 10 WEIGHT TO THE JUDICIAL ECONOMY AND FAIRNESS

15:57:21 11 CONSIDERATIONS, BECAUSE IF YOU FOLLOWED OPTION A,

15:57:24 12 YOU WOULD, IN ALL LIKELIHOOD, HAVE FINAL DECISIONS

15:57:27 13 FROM THE PTO ON THE PATENTS AT ISSUE.

15:57:30 14 THE PATENT OFFICE HAS BEEN PROGRESSING

15:57:32 15 TOWARDS THAT ALREADY. WE NOW HAVE FINAL DECISIONS,

15:57:35 16 I BELIEVE, IN ALL THE PATENTS STATING THERE'S A

15:57:39 17 SUBSTANTIAL NEW QUESTION OF PATENTABILITY, AND IF,

15:57:42 18 IN FACT, ALL OF THOSE PATENTS ARE FOUND INVALID,

15:57:47 19 THEN I THINK YOUR HONOR WILL SEE THE JUDICIAL

15:57:50 20 EFFICIENCY AS BEING QUITE SIGNIFICANT.

15:57:53 21 THE COURT: WHAT -- I DON'T KNOW OFF THE

15:57:58 22 TOP OF MY HEAD.

15:58:00 23 WHAT IS THE EFFECT OF GOING TO JUDGMENT

15:58:05 24 ON THIS CASE WITH RESPECT TO THE RE-EXAM?

15:58:07 25 MR. POWERS: IT WOULD HAVE NO EFFECT AT

48
15:58:09 1 THE MOMENT. THE WAY IT WORKS IS THE RE-EXAM

15:58:12 2 PROGRESSES AND THE APPEALS PROGRESS, AND WHICHEVER

15:58:15 3 ONE IS DECIDED FIRST AT THE FEDERAL CIRCUIT DECIDES

15:58:18 4 THE OTHER.

15:58:19 5 THE COURT: SO -- OKAY.

15:58:21 6 MR. POWERS: SO IF THE PTO -- LET'S SAY

15:58:23 7 ALL THE -- THAT PATENT X WAS FOUND INVALID, RAMBUS

15:58:28 8 APPEALED THAT TO THE FEDERAL CIRCUIT, AND THAT

15:58:31 9 APPEAL STARTED BEFORE, OR WAS RESOLVED BEFORE ANY

15:58:35 10 APPEAL FROM A SIMILAR VALIDITY QUESTION ON THE SAME

15:58:38 11 PATENT HERE, THAT DECIDES THE QUESTION.

15:58:40 12 THE COURT: SO AN INITIAL DECISION

15:58:43 13 FROM -- OR PTO DECISION THAT THE PATENTS ARE

15:58:46 14 INVALID, OR A DECISION FROM THIS COURT THAT THE

15:58:49 15 PATENTS -- THAT A PATENT WAS INVALID DOESN'T STOP

15:58:53 16 THE OTHER ONE?

15:58:54 17 MR. POWERS: CORRECT.

15:58:55 18 THE COURT: IT'S ONLY THE FEDERAL CIRCUIT

15:58:57 19 DECISION THAT DOES?

15:58:58 20 MR. POWERS: THAT'S MY UNDERSTANDING.

15:59:00 21 SECOND -- THE SECOND THOUGHT -- AND

15:59:02 22 OBVIOUSLY YOUR HONOR DENIED THAT MOTION TO STAY

15:59:06 23 UNDER SUBSTANTIALLY DIFFERENT CIRCUMSTANCES, BUT I

15:59:10 24 DON'T THINK -- I DON'T THINK IT'S -- I THINK IT'S

15:59:12 25 FAIR TO SAY THAT THE OPPORTUNITY TO HAVE THAT

49
15:59:17 1 PROCESS PLAY ITSELF OUT LENDS SUBSTANTIAL

15:59:20 2 ADDITIONAL WEIGHT IN FAVOR OF OPTION A OVER OPTION

15:59:23 3 B.

15:59:24 4 A SECOND THOUGHT WITH REGARD TO THE COSTS

15:59:27 5 OF PROCEEDING FORWARD, PROCEEDING WITH THE PARTIES,

15:59:31 6 AND THIS IS TRUE ON BOTH SIDES OF THE V, IN THE

15:59:35 7 CURRENT ECONOMIC CLIMATE, THE MILLIONS OF DOLLARS

15:59:41 8 THAT WOULD BE SPENT BY BOTH SIDES ON GOING TO TRIAL

15:59:45 9 CAN BE MUCH BETTER SPENT IN MANY OTHER WAYS.

15:59:48 10 THE -- THE ECONOMIC CONDITIONS ARE

15:59:50 11 AFFECTING EVERY SINGLE COMPANY IN THIS ROOM IN A

15:59:54 12 VERY, VERY SUBSTANTIAL WAY, AND I THINK THAT CAN'T

15:59:56 13 BE IGNORED.

15:59:58 14 THE COURT: AND, YET, THEY CAN'T FOR SOME

16:00:01 15 REASON REACH ANY KIND OF RESOLUTION.

16:00:03 16 MR. POWERS: IT TAKES TWO TO TANGO, AND

16:00:06 17 THE --

16:00:06 18 THE COURT: RIGHT.

16:00:07 19 MR. POWERS: WITHOUT COMMENTING ON WHO'S

16:00:09 20 NOT TANGOING, IT TAKES TWO.

16:00:11 21 THE COURT: RIGHT.

16:00:12 22 MR. POWERS: NO PARTY CAN DO THAT

16:00:14 23 UNILATERALLY.

16:00:15 24 THE COURT: WELL, IT TAKES MORE THAN TWO

16:00:17 25 IN THIS CASE BECAUSE OF THE MARKETPLACE.

50
16:00:19 1 MR. POWERS: THAT'S FAIR.

16:00:21 2 THE THIRD POINT, WHICH IS REALLY A

16:00:24 3 QUESTION, HAS TO DO WITH WHETHER YOUR HONOR WANTS

16:00:26 4 TO CONTINUE TO PROCEED WITH THE HEARING WE HAD

16:00:29 5 SCHEDULED FOR FRIDAY AFTERNOON.

16:00:31 6 THE COURT: MY SUGGESTION WAS, IF I

16:00:34 7 DIDN'T SAY IT AT THE BEGINNING, WAS TO FREE THE

16:00:42 8 PARTIES UNTIL THE 30TH, AND THEN SCHEDULE PERHAPS

16:00:47 9 TWO DAYS THE WEEK OF THE 9TH TO -- TWO HALF DAYS

16:00:52 10 THE WEEK OF THE 9TH TO FINISH UP PRETRIAL MATTERS.

16:00:56 11 MR. POWERS: OKAY. THANK YOU.

16:00:58 12 MR. BOBROW: YOUR HONOR, VERY BRIEFLY ON

16:01:01 13 THE ISSUE OF THE CERTIFICATION POINT THAT YOU

16:01:04 14 RAISED.

16:01:05 15 I SIMPLY WANTED TO ECHO THE THOUGHT THAT

16:01:07 16 MR. NISSLY HAD, WHICH IS THAT, AND PARTICULARLY IN

16:01:11 17 MICRON'S CASE, I THINK THAT IT WOULD BE

16:01:14 18 FUNDAMENTALLY UNFAIR, PREJUDICIAL, TO CERTIFY THE

16:01:16 19 ANTITRUST ISSUES FROM THE CONSOLIDATED CONDUCT

16:01:19 20 TRIAL UNLESS AND UNTIL THE COURT RESOLVES THE ISSUE

16:01:23 21 THAT WE'RE GOING TO PUT TO YOU ON SUMMARY JUDGMENT

16:01:25 22 AND WE HAVE OUR DECISION ON WHAT IS ESSENTIALLY THE

16:01:31 23 UNCLEAN HANDS, SPOLIATION, AND MISCONDUCT ISSUES,

16:01:35 24 BECAUSE JUDGE ROBINSON'S FINDING THAT THE ANTITRUST

16:01:42 25 CASE AND DEFENSE WAS TAINTED IS, WE SUBMIT AND WILL

51
16:01:45 1 BRIEF, BINDING ON THIS COURT.

16:01:47 2 AND BECAUSE OF THAT TAINT, TO THEN

16:01:49 3 CERTIFY THAT ISSUE WITHOUT TAKING TO GROUND THE

16:01:52 4 ISSUE OF MISCONDUCT AND THE ISSUE OF SPOLIATION AS

16:01:56 5 TO MICRON IS FUNDAMENTALLY UNFAIR.

16:01:59 6 THOSE ISSUES, IT SEEMS TO ME, HAVE TO GO

16:02:01 7 UP AT THE SAME TIME.

16:02:03 8 AND WHAT THE --

16:02:04 9 THE COURT: WHAT'S --

16:02:07 10 MR. BOBROW: I DIDN'T UNDERSTAND YOUR

16:02:08 11 HONOR TO SAY THAT ALL OF THOSE SPOLIATION ISSUES

16:02:11 12 WERE GOING TO GET RESOLVED AND CERTIFIED AS WELL.

16:02:14 13 PERHAPS I MISUNDERSTOOD.

16:02:15 14 THE COURT: I'M -- MY CONCERN --

16:02:22 15 CERTAINLY MY THOUGHT WOULD BE THAT ALL SPOLIATION

16:02:24 16 ISSUES WOULD GO AT THE SAME TIME. THE ONES FROM

16:02:27 17 JUDGE ROBINSON WOULD HAVE TO BE CONSOLIDATED IN

16:02:31 18 SOME WAY. I COULDN'T DO THAT.

16:02:32 19 MR. BOBROW: BUT -- YES, YOU CAN, IN

16:02:34 20 EFFECT, BY FINDING THAT IT HAS COLLATERAL ESTOPPEL

16:02:37 21 EFFECT AND DETERMINING IN THIS CASE, AND

16:02:39 22 ESSENTIALLY ENTERING THOSE FINDINGS IN THIS CASE,

16:02:42 23 BECAUSE WITHOUT THAT, THEN WE'RE PREJUDICED.

16:02:44 24 SO THAT'S MY POINT IS WE HAVE --

16:02:45 25 THE COURT: WHY?

52
16:02:47 1 MR. BOBROW: BECAUSE SHE HAS MADE A

16:02:48 2 FINDING THAT WE DIDN'T GET A FAIR TRIAL, IN EFFECT,

16:02:51 3 ON THE ISSUE OF ANTITRUST. SHE FOUND THAT THERE

16:02:54 4 WERE INNUMERABLE DOCUMENTS ACROSS RAMBUS'S BUSINESS

16:02:57 5 THAT HAD BEEN SPOLIATED.

16:02:58 6 THE COURT: BUT THAT'S GOING TO GO UP ON

16:03:00 7 APPEAL, RIGHT?

16:03:01 8 MR. BOBROW: WELL, PRESUMABLY RAMBUS MAY

16:03:04 9 DECIDE TO APPEAL THAT IN THE DELAWARE CASE.

16:03:07 10 I'M SAYING THAT IN THIS CASE, TO ALLOW

16:03:09 11 CERTIFICATION AS TO JUST PHASE 1 OF THE 244 CASE --

16:03:13 12 WE HAVE THE 244 MICRON-ONLY CASE. THE ONLY ASPECT

16:03:16 13 OF THAT THAT HAS GONE TO TRIAL IS THE CONDUCT

16:03:18 14 PHASE.

16:03:18 15 THAT PHASE, WE SUBMIT, HAS -- BY JUDGE

16:03:20 16 ROBINSON'S FINDINGS AND DETERMINATION, THAT PHASE

16:03:24 17 HAS BEEN TAINTED.

16:03:25 18 TO ALLOW THAT TO GO UP ON APPEAL AND

16:03:27 19 FORCE MICRON TO THEN APPEAL THAT ISSUE IN A VACUUM

16:03:30 20 IN THIS CASE ALONE, WITH ONLY THE HYNIX SPOLIATION

16:03:35 21 DECISION GOING UP AS WELL IS FUNDAMENTALLY UNFAIR

16:03:39 22 TO MICRON.

16:03:39 23 IT SEEMS TO ME THAT AS TO MICRON, EITHER

16:03:42 24 WE HAVE, AND WE THINK IT'S PROPER, WE HAVE A

16:03:45 25 SPOLIATION DECISION BASED UPON COLLATERAL ESTOPPEL,

53
16:03:48 1 OR WE HAVE TO HAVE PHASE 3 ADJUDICATED IN THIS

16:03:53 2 CASE.

16:03:53 3 WE THINK THAT WOULD BE IMPROPER BECAUSE,

16:03:55 4 AS RAMBUS SAID, AND I THINK EVERYBODY AGREED, THERE

16:03:58 5 SHOULD BE ONE SHOT AND RAMBUS HAD IT AND LOST.

16:04:02 6 BUT THERE ARE THREE PHASES TO THIS CASE,

16:04:04 7 AND ALLOWING THAT RECORD TO GO UP WITHOUT GIVING US

16:04:08 8 THE OPPORTUNITY TO LITIGATE PHASE 3 OF THIS CASE WE

16:04:11 9 THINK IS UNFAIR.

16:04:12 10 JUDGE ROBINSON FOUND THAT OUR DEFENSE WAS

16:04:14 11 PREJUDICED.

16:04:16 12 AND THEN TO ALLOW IT TO GO UP ON THE

16:04:19 13 HYNIX RECORD IS NOT FAIR TO MICRON.

16:04:21 14 NOW, THE QUESTION OF WHETHER CLAIM

16:04:23 15 CONSTRUCTION GOES UP IS A TOTALLY DIFFERENT

16:04:25 16 QUESTION, BUT THE ISSUE OF THE ANTITRUST CASE AND

16:04:29 17 US BEING FORCED TO DEAL WITH THAT ON APPEAL NOW

16:04:32 18 SEEMS TO ME IS FUNDAMENTALLY UNFAIR.

16:04:35 19 THE COURT WOULD HAVE TO ENTER,

16:04:36 20 ESSENTIALLY, THE JUDGMENT OF COLLATERAL ESTOPPEL

16:04:39 21 AND THEN, OF COURSE, THAT OPTION BECOMES VIABLE FOR

16:04:42 22 MICRON.

16:04:42 23 SHORT OF THAT, IT'S NOT.

16:04:44 24 THE COURT: IF THE COURT OF APPEALS

16:04:46 25 CONSOLIDATED THE APPEALS, RAMBUS'S APPEAL FROM THE

54
16:04:50 1 MICRON CASE WITH AN APPEAL FROM THIS CASE, THAT

16:04:55 2 WOULD SOLVE THE PROBLEM, WOULDN'T IT?

16:04:56 3 MR. BOBROW: YOU MEAN THE DELAWARE CASE?

16:04:59 4 THE COURT: YES, IF I MISSPOKE.

16:05:02 5 MR. BOBROW: TO THE EXTENT THAT THERE IS

16:05:04 6 CONSOLIDATION, I THINK THAT AMELIORATES THE ISSUE.

16:05:06 7 BUT I THINK THAT HAS TO GO UP IN A WAY

16:05:08 8 THAT ALLOWS MICRON TO BE ABLE TO HAVE, IN HAND ON

16:05:11 9 THAT APPEAL, THAT ISSUE BEING ADJUDICATED IN ITS

16:05:14 10 FAVOR.

16:05:15 11 OTHERWISE WE'RE STUCK WITH A RECORD WE

16:05:17 12 DIDN'T CREATE AND WERE NOT GIVEN THE OPPORTUNITY TO

16:05:20 13 ADDRESS THAT ISSUE FULLY AND COMPLETELY ON APPEAL.

16:05:23 14 THE COURT: OKAY.

16:05:29 15 MR. NISSLY: YOUR HONOR, I'LL JUST MAKE A

16:05:32 16 COUPLE OF BRIEF POINTS.

16:05:33 17 I THINK THE DISCUSSION WITH MR. STONE AND

16:05:36 18 MR. BOBROW HIGHLIGHTS A POINT THAT I WAS TRYING TO

16:05:40 19 MAKE BEFORE, WHICH IS THAT THIS SPOLIATION ISSUE IS

16:05:43 20 THE ISSUE WHICH CUTS ACROSS ALL OF THESE CLAIMS,

16:05:49 21 AND EVERY TIME ANOTHER ISSUE GETS TOUCHED OR

16:05:54 22 ANOTHER ISSUE GETS BROUGHT IN, WE DEVELOP ALL THESE

16:05:57 23 OTHER ARGUMENTS AND COMPLICATIONS ABOUT THE

16:06:00 24 POTENTIAL IMPACT OF THIS DECISION ON THAT ISSUE AND

16:06:03 25 THIS DECISION ON THE OTHER ISSUE.

55
16:06:09 1 PEOPLE ASK ME, HOW COME THIS CASE IS SO

16:06:11 2 COMPLICATED? AND I EXPLAIN, LOOK, THERE ARE A LOT

16:06:14 3 OF ISSUES HERE THAT CUT ACROSS A LOT OF

16:06:16 4 MANUFACTURERS WITH VERY DIFFICULT LAW.

16:06:19 5 BUT HERE WE HAVE AN ISSUE THAT DOES CUT

16:06:21 6 ACROSS, IT DOES CUT THIS KNOT, AND IF WE COMPLICATE

16:06:25 7 IT WITH THE CONDUCT CASE AND ALL THESE OTHER

16:06:29 8 ISSUES, IT SEEMS TO ME WE ARE DOING SOMETHING THAT

16:06:32 9 WE SHOULD NOT DO IN TERMS OF JUDICIAL EFFICIENCY

16:06:35 10 AND THAT THE BEST WAY TO DO THIS IS TO CUT THROUGH

16:06:38 11 IT.

16:06:38 12 THE COURT: LET ME RAISE THE QUESTION,

16:06:40 13 THOUGH, THAT I THINK YOU RAISED.

16:06:42 14 OBVIOUSLY WE'VE CUT THIS CASE UP IN A

16:06:44 15 VARIETY -- OR THESE CASES UP IN A VARIETY OF WAYS

16:06:47 16 IN THE HOPES OF BEING EFFICIENT. WHETHER IN

16:06:51 17 HINDSIGHT WE HAVE BEEN OR NOT IS ANOTHER QUESTION

16:06:53 18 PERHAPS.

16:06:54 19 MR. NISSLY: RIGHT.

16:06:54 20 THE COURT: BUT IF WE CARVE OUT THE

16:07:01 21 SPOLIATION ISSUE AND THAT GOES UP ON APPEAL AND THE

16:07:09 22 MANUFACTURERS AREN'T FULLY SUCCESSFUL ON THEIR --

16:07:13 23 OR IN THEIR POSITION ON APPEAL, THE COURT SAYS,

16:07:17 24 "WELL, THERE'S SPOLIATION, BUT THERE WAS TOO HARSH

16:07:20 25 A REMEDY, "OR "YES, THERE WAS SPOLIATION, BUT

56
16:07:25 1 THERE'S NO SHOWING THAT ANY MATERIAL DOCUMENTS WERE

16:07:28 2 MISSING," OR WHATEVER --

16:07:30 3 MR. NISSLY: RIGHT.

16:07:31 4 THE COURT: -- THEN IT COMES BACK AND WE

16:07:39 5 TRY THE CASE WITHOUT A RESOLUTION OF CLAIM

16:07:44 6 CONSTRUCTION OR OTHER ISSUES, CLAIM CONSTRUCTION

16:07:53 7 BEING THE MAIN ONE, OR -- AND WE HAVE TO DO IT

16:07:59 8 OVER, PERHAPS DO IT AGAIN, WHICH IS GOING TO PUT

16:08:02 9 THE FINAL RESOLUTION FURTHER DOWN THE ROAD.

16:08:04 10 SO I GUESS WHAT I'M SAYING IS, WHY

16:08:07 11 DOESN'T IT MAKE SENSE EITHER TO GO UP ON APPEAL ON

16:08:13 12 EVERYTHING, ESSENTIALLY, THAT'S POSSIBLE TO GO UP

16:08:15 13 ON -- NOW, PERHAPS, WITHOUT THE SAMSUNG LICENSING

16:08:23 14 ISSUE -- SO THAT THE RULES ARE PRETTY CLEAR WHEN

16:08:33 15 THE CASE COMES BACK TO BE TRIED, IF IT COMES BACK,

16:08:37 16 AS OPPOSED TO DOING AN APPEAL THAT STAYS EVERYTHING

16:08:43 17 ELSE AND IF THE MANUFACTURERS AREN'T FULLY

16:08:49 18 SUCCESSFUL ON THE SPOLIATION, WE'VE STILL GOT ALL

16:08:55 19 THESE OTHER ISSUES REMAINING, WHICH COULD REQUIRE

16:08:57 20 ANOTHER APPEAL AND ANOTHER TRIAL?

16:08:59 21 MR. NISSLY: MY THOUGHT IN RESPONSE TO

16:09:00 22 THAT IS THIS, YOUR HONOR: AND, AGAIN, THE CLAIM

16:09:03 23 CONSTRUCTION IS A, IS ONE THAT PERHAPS BELONGS IN

16:09:07 24 ITS OWN BUCKET BECAUSE OF THE ROLE OF CLAIM

16:09:10 25 CONSTRUCTION AND THE DE NOVO REVIEW.

57
16:09:13 1 BUT WHAT I SUGGEST TO YOU IS THAT IF WE

16:09:16 2 GET THE SPOLIATION ISSUE RESOLVED, ALL THOSE OTHER

16:09:20 3 ISSUES HAVE BEEN TRIED ONE WAY OR ANOTHER. THE

16:09:23 4 RECORD IS COMPLETE.

16:09:24 5 AS THE COURT NOTED, ALL THESE WITNESSES

16:09:26 6 HAVE BEEN DEPOSED MULTIPLE TIMES. THEY ALL HAVE

16:09:29 7 VIDEO DEPOSITION TAPES AVAILABLE. ALL OF THIS WORK

16:09:32 8 THAT HAS BEEN DONE OVER ALL THESE YEARS IS NOT

16:09:35 9 GOING AWAY.

16:09:37 10 BUT IF 15 ISSUES GO UP TO THE COURT OF

16:09:39 11 APPEAL ON ALL THESE VARIOUS ASPECTS, I SUBMIT AND

16:09:42 12 SUGGEST TO THE COURT THAT THAT'S NOT A WAY TO

16:09:45 13 PROCEED HERE, IT'LL MAKE THINGS WORSE, AND THAT THE

16:09:49 14 WAY TO PROCEED IS TO CARVE OUT THIS ONE ISSUE THAT

16:09:51 15 DOES GO ACROSS ALL OF THESE PATENTS AND ALL OF

16:09:54 16 THESE CLAIMS AND FIND OUT, ONCE AND FOR ALL, IS

16:09:57 17 RAMBUS PERMITTED TO ASSERT THESE CLAIMS OR NOT, BY

16:10:00 18 THE COURT OF APPEAL, AND GET THAT RESOLVED.

16:10:03 19 EVERYTHING ELSE IS IN THE CAN IN THE

16:10:04 20 SENSE THAT YOU HAVE CONSTRUED THESE CLAIMS, OR

16:10:07 21 MAYBE THE CIRCUIT TAKES A LOOK AT THAT. THESE

16:10:11 22 ISSUES HAVE BEEN TRIED AND THEN WE SEE WHERE WE

16:10:13 23 ARE.

16:10:14 24 BUT WE START TALKING ABOUT APPEALING

16:10:16 25 DETERMINATIONS FROM THE CONDUCT CASE WHEN MICRON

58
16:10:19 1 ARGUES, "NOT FAIR AS TO US," WE ARGUE THAT WASN'T

16:10:22 2 FAIR, THAT TRIAL WAS TAINTED BY SPOLIATION, THERE

16:10:25 3 ARE ALL THESE OTHER COMPLEX ISSUES AND FACTS THAT

16:10:28 4 MAKE IT SO DIFFICULT TO SORT OUR WAY THROUGH THAT

16:10:31 5 WE OUGHT TO FOCUS ON THE ONE ISSUE THAT'LL CUT

16:10:34 6 ACROSS ALL OF THESE.

16:10:35 7 THE COURT: OKAY. DO YOU HAVE ANY FINAL

16:10:37 8 FINAL?

16:10:38 9 MR. STONE: UM --

16:10:41 10 THE COURT: YOU CERTAINLY DON'T HAVE TO.

16:10:42 11 I JUST WANT TO GIVE EVERYBODY A CHANCE.

16:10:45 12 MR. STONE: I JUST THINK -- JUST AS TO

16:10:47 13 THE LATTER POINT.

16:10:48 14 I JUST THINK WE KNOW, FOR EXAMPLE, THAT

16:10:50 15 THE MANUFACTURERS BROUGHT THEIR JEDEC CLAIM AGAINST

16:10:54 16 RAMBUS AND WOULD INTEND TO PURSUE IT SOME DAY IN

16:10:59 17 ANY EVENT, SO THAT ISSUE IS GOING UP.

16:11:02 18 I THINK WE WILL SEE THAT IT COULD GO UP

16:11:06 19 ON CERTIFICATION AS TO THE PARTIES OTHER THAN HYNIX

16:11:08 20 WHERE IT WOULD BE A FINAL JUDGMENT VERY QUICKLY.

16:11:11 21 CERTAINLY IN SAMSUNG'S CASE, AFTER THE

16:11:13 22 TRIAL THAT YOU'VE SUGGESTED WE WOULD START IN

16:11:15 23 FEBRUARY, AS SOON AS THAT TRIAL ENDS SAMSUNG WOULD

16:11:20 24 HAVE A FINAL JUDGMENT IN THE CASES HERE AND WOULD

16:11:22 25 BE ABLE TO GO UP.

59
16:11:23 1 AND THERE WOULD THEN BE, UNDER -- I GUESS

16:11:26 2 MR. BOBROW CORRECTED ME.

16:11:28 3 THERE WOULD THEN BE, UNDER OUR VIEW OF

16:11:30 4 THE IMPLICATIONS OF JUDGE ROBINSON'S RULING, A

16:11:32 5 TRIAL ON THE SPOLIATION HERE INVOLVING BOTH MICRON

16:11:36 6 AND NANYA, AND AT THAT TIME THEIR CASES WOULD BE

16:11:39 7 DONE.

16:11:40 8 IF THAT WAS DONE PROMPTLY, THE APPEAL,

16:11:42 9 EVEN OF A FINAL JUDGMENT IN THOSE CASES, WOULD BE

16:11:45 10 IN TIME TO BE CONSOLIDATED WITH THE OTHERS.

16:11:49 11 SO I DO THINK WE SHOULD ADDRESS THIS AND

16:11:51 12 WE SHOULD LOOK AT REALISTIC TIME TABLES AND TRY TO

16:11:55 13 UNDERSTAND WHETHER THAT WOULD HAPPEN.

16:11:57 14 BUT THERE IS NO DOUBT, I THINK, THAT A

16:11:59 15 FINAL APPEAL IN SAMSUNG OF ALL OF THE ISSUES WOULD

16:12:02 16 BE ABLE TO BE CONSOLIDATED WITH AN APPEAL IN

16:12:05 17 HYNIX I GIVEN THE TENTATIVE SCHEDULE YOU'VE SORT OF

16:12:08 18 LAID OUT, AND PERHAPS THE MICRON ISSUES, AND

16:12:11 19 CERTAINLY, DEPENDING ON YOUR RULING ON THE

16:12:14 20 COLLATERAL ESTOPPEL CONSEQUENCES OF JUDGE

16:12:16 21 ROBINSON'S RULING, THAT RULING WOULD BE PART OF

16:12:19 22 WHATEVER WENT UP HERE IN ANY EVENT IF THERE WERE

16:12:22 23 CERTIFICATION OF THE CONDUCT TRIAL OR THE JEDEC

16:12:25 24 ISSUES AS TO MICRON.

16:12:27 25 SO I THINK IN THE -- THE CONCERN THAT

60
16:12:29 1 MR. BOBROW EXPRESSED, HE WOULD BE PROTECTED IN THAT

16:12:32 2 REGARD WITH WHATEVER THIS COURT RULES FOLLOWING THE

16:12:34 3 ARGUMENT, SAY, ON JANUARY 30TH. HE'D BE PROTECTED

16:12:39 4 THERE AND THAT ISSUE WOULD BE PROPERLY PRESENTED.

16:12:42 5 SO I DO THINK THAT THERE IS -- I THINK

16:12:44 6 THE BEST THAT WE CAN DO, THE BEST THING WE CAN DO

16:12:47 7 FOR THE FEDERAL CIRCUIT IS TO GIVE THEM AS MANY OF

16:12:51 8 THESE ISSUES THAT IT IS POSSIBLE FOR THEM TO DECIDE

16:12:53 9 AT THIS TIME, CONSISTENT WITH WHAT THEY'VE TOLD US

16:12:56 10 IN THE PAST IS THEIR PREFERENCE FOR HEARING THINGS

16:12:58 11 AFTER FINAL JUDGMENT, AS OPPOSED TO ON AN

16:13:01 12 INTERLOCUTORY BASIS.

16:13:02 13 THE COURT: OKAY.

16:13:03 14 MR. STONE: THANK YOU.

16:13:04 15 MR. POWERS: VERY BRIEFLY, IF I MAY, YOUR

16:13:04 16 HONOR.

16:13:06 17 MR. STONE'S SUGGESTION THAT IF YOU WENT

16:13:10 18 TO TRIAL IN THE CASE THAT'S CURRENTLY SET FOR

16:13:13 19 JANUARY, THAT THAT COULD REACH FINAL JUDGMENT SUCH

16:13:18 20 THAT IT COULD BE CONSOLIDATED WITH EVERYTHING

16:13:21 21 ANYWAY AND GO UP IN TIME TO BE HEARD WITH JUDGE

16:13:24 22 ROBINSON'S, THERE'S NO WAY THAT HAPPENS BECAUSE --

16:13:27 23 FOR TWO REASONS: ONE, THERE'S STILL THE

16:13:30 24 UNSCHEDULED SUBSEQUENT TRIAL, IN THEORY, WITH BOTH

16:13:35 25 NANYA AND SAMSUNG ON SDR AND DDR, THAT HASN'T EVEN

61
16:13:39 1 BEEN SCHEDULED; AND, SECONDLY, THERE WOULD BE THE

16:13:42 2 NEED FOR ALL THE POST-TRIAL MOTIONS. YOU DON'T

16:13:44 3 JUST ENTER FINAL JUDGMENT THE DAY A JURY COMES BACK

16:13:49 4 ONE WAY OR THE OTHER. THAT TAKES MONTHS.

16:13:51 5 SO IT'S FANTASY TO SUGGEST THAT WE CAN

16:13:54 6 COMBINE ALL OF THIS IN ONE AND GET ALL THE BENEFITS

16:13:57 7 AND GO TO TRIAL IN JANUARY. THAT JUST DOESN'T

16:14:00 8 WORK.

16:14:01 9 SO THAT, THAT I THINK -- I THINK THAT

16:14:03 10 HOPE THAT HE'S HOLDING OUT JUST ISN'T REALISTIC.

16:14:07 11 THE COURT: OKAY.

16:14:09 12 MR. BOBROW: I'M SORRY, YOUR HONOR. MAY

16:14:11 13 I, IN 30 SECONDS?

16:14:13 14 MR. STONE'S SUGGESTION THAT WE'RE

16:14:16 15 PROTECTED IF THIS COURT DENIES SUMMARY JUDGMENT IS

16:14:19 16 JUST WRONG. THERE'S NOTHING TO CERTIFY AND IT JUST

16:14:24 17 DOESN'T WORK THAT WAY. SO THAT'S A SIGNIFICANT

16:14:26 18 ISSUE.

16:14:27 19 WE HAVE TO HAVE EITHER, NUMBER ONE,

16:14:30 20 SUMMARY JUDGMENT AND JUDGMENT ENTERED BASED UPON

16:14:32 21 COLLATERAL ESTOPPEL, WHICH WE THINK IS THE ONLY

16:14:34 22 RIGHT THING TO DO HERE GIVEN THAT WE HAD OUR DAY IN

16:14:37 23 COURT WITH RAMBUS AND RAMBUS LOST; OR, NUMBER TWO,

16:14:40 24 WE HAVE TO HAVE THE SPOLIATION TRIAL OR ELSE ANY

16:14:43 25 RECORD GOING UP AS TO US ON THE ANTITRUST ISSUES IS

62
16:14:46 1 FUNDAMENTALLY UNFAIR.

16:14:48 2 A SCHEDULING ISSUE IF I MAY. THE COURT'S

16:14:50 3 SUGGESTION OF MOVING THINGS TO THE WEEK OF THE 9TH,

16:14:53 4 I HAVE A CONCERN ABOUT WHETHER OR NOT THAT'S GOING

16:14:56 5 TO GIVE THE PARTIES AND THE COURT ENOUGH TIME TO

16:14:59 6 RESOLVE THE ISSUES THAT NEED TO BE RESOLVED GIVEN

16:15:02 7 THE DATE THAT YOU HAD MENTIONED BEFORE IN TERMS OF

16:15:05 8 WHEN THE ISSUE WAS RAISED AS TO WHAT TO DO WITH THE

16:15:08 9 DAMAGES MOTIONS.

16:15:09 10 I DON'T KNOW IF THE COURT'S AVAILABLE THE

16:15:11 11 WEEK OF THE 2ND, TOWARDS THE END OF THAT WEEK, BUT

16:15:14 12 PERHAPS THAT'S A --

16:15:16 13 THE COURT: WHY DON'T I -- MS. GARCIA,

16:15:19 14 UNFORTUNATELY, IS NOT HERE. I DIDN'T REALIZE THAT

16:15:22 15 SHE WASN'T GOING TO BE HERE.

16:15:24 16 MAYBE THE BEST THING TO DO IS TO HAVE A

16:15:30 17 COORDINATED CALL WITH HER OR MR. FLETCHER WHEN WE

16:15:37 18 CAN LOOK AT A CALENDAR AND SEE WHAT -- WE COULD

16:15:44 19 TAKE A LOOK NOW, IF YOU WANT.

16:15:46 20 MR. BOBROW: I THINK IT'S -- OBVIOUSLY

16:15:48 21 THERE'S A LOT OF BRIEFING AND OTHER THINGS TO DO TO

16:15:51 22 TRY TO FIGURE OUT WHAT THE BEST APPROACH IS GOING

16:15:53 23 FORWARD AND WHETHER IT MAKES SENSE TO HAVE THAT

16:15:56 24 TRIAL SCHEDULED OR NOT, AS THE COURT HAD INDICATED

16:15:58 25 BEFORE.

63
16:15:59 1 THE COURT: I WANT TO SCHEDULE IT -- I

16:16:00 2 WANT A FIRM UNDERSTANDING THAT IF WE'RE GOING TO

16:16:03 3 GO, WE'RE GOING TO START ON THE 17TH.

16:16:05 4 MR. BOBROW: AND IN THAT EVENT, THEN, THE

16:16:07 5 ONLY ISSUE THAT I'M RAISING NOW, THEN, IS THE

16:16:10 6 QUESTION VIS-A-VIS THE MOTION THAT WE'LL BE FILING

16:16:13 7 AND OBVIOUSLY THE NEED FOR RESOLUTION EARLIER

16:16:17 8 RATHER THAN LATER AND WHETHER THAT GIVES THE COURT

16:16:20 9 AND THE PARTIES ENOUGH TIME TO HAVE ESSENTIALLY 17

16:16:23 10 DAYS IN BETWEEN THE TWO.

16:16:24 11 THE COURT: WELL, THEORETICALLY WE WERE

16:16:26 12 GOING TO START NEXT MONDAY AND YOU WERE GOING TO BE

16:16:29 13 IN HERE ON FRIDAY.

16:16:30 14 MR. BOBROW: I UNDERSTAND, BUT THINGS

16:16:32 15 HAVE CHANGED, AT LEAST I THINK AS TO MICRON, AS YOU

16:16:35 16 RECOGNIZED IN A FUNDAMENTAL WAY, AND I THINK THAT

16:16:38 17 IT'S IMPORTANT AND FAIR AND JUST THAT GIVEN THAT

16:16:40 18 WE'VE REALLY HAD PHASE 3 OF THIS TRIAL ALREADY,

16:16:43 19 THAT THE IMPLICATIONS OF THAT BE UNDERSTOOD RIGHT

16:16:45 20 AWAY SO THAT WE DON'T HAVE A TRIAL ON PATENTS THAT

16:16:48 21 ARE UNENFORCEABLE AS TO MICRON.

16:16:50 22 BUT HAVING SAID THAT, THE REASON I RAISE

16:16:52 23 THE ISSUE VIS-A-VIS THE 9TH, OR SCHEDULING THINGS

16:16:55 24 THE WEEK OF THE 9TH, IS UNDER WHAT THE COURT HAD

16:16:57 25 JUST TALKED ABOUT, WE'RE GOING TO HAVE OPENINGS THE

64
16:17:00 1 WEEK OF THE 17TH.

16:17:02 2 MR. STONE: I WAS JUST GOING TO SAY, I

16:17:04 3 AGREE WITH MR. BOBROW THAT IT WOULD BE PREFERABLE,

16:17:06 4 I THINK FROM EVERYBODY'S PERSPECTIVE, IF THE

16:17:09 5 REMAINING MOTIONS WERE ARGUED, IF IT WORKS WITH THE

16:17:13 6 COURT'S SCHEDULE, THE WEEK OF THE 2ND.

16:17:17 7 I WOULD GUESS -- IF WE START ON THE 17TH

16:17:19 8 WITH THE CURRENT PLAN, THE QUESTIONNAIRES WOULD BE

16:17:22 9 FILLED OUT ON THE 17TH, AND THEN I GUESS THE JURY

16:17:25 10 SELECTION WOULD PROBABLY BE ON THE --

16:17:31 11 THE COURT: PROBABLY ON THE 23RD.

16:17:33 12 MR. STONE: PROBABLY THE 23RD. SO I

16:17:34 13 THINK THAT'S -- WITH OPENINGS, I WOULD GUESS, ON

16:17:37 14 THE 24TH IS WHAT I'M --

16:17:39 15 THE COURT: I THINK THAT'S PROBABLY

16:17:40 16 CORRECT.

16:17:40 17 MR. STONE: THAT'S WHAT I'M THINKING

16:17:42 18 WOULD PROBABLY BE THE SCHEDULE.

16:17:43 19 I THINK THE SOONER, THOUGH, WE CAN DO THE

16:17:45 20 MOTIONS -- I AGREE WITH YOU WE WOULD BE DOING

16:17:48 21 MOTIONS THIS FRIDAY AND STARTING NEXT WEEK, BUT I

16:17:50 22 THINK IF IT'S POSSIBLE WITH THE COURT'S SCHEDULE,

16:17:52 23 I'D JOIN IN MR. BOBROW'S REQUEST.

16:17:54 24 AND I'M HAPPY TO MEET AND CONFER WITH

16:17:56 25 THEM AND TALK WITH MS. GARCIA.

65
16:17:58 1 THE COURT: MAYBE THE BEST THING TO DO,

16:17:59 2 IF YOU WANT TO TAKE FIVE MINUTES AND LET ME GO GET

16:18:03 3 MY SCHEDULE, I'LL RISK GETTING MYSELF INTO

16:18:11 4 DANGEROUSNESS, BUT I'LL AT LEAST GIVE YOU DATES

16:18:15 5 THAT ARE AVAILABLE.

16:18:17 6 MR. BOBROW: OKAY.

16:18:20 7 (WHEREUPON, A RECESS WAS TAKEN.)

16:21:44 8 THE COURT: MY REPORTER CALLED MY

16:21:47 9 ATTENTION TO THE FACT THAT I CAME OUT AND STARTED

16:21:49 10 BLABBING AND DIDN'T HAVE YOU STATE YOUR

16:21:52 11 APPEARANCES, SO WOULD YOU DO THAT AT THIS TIME SO

16:21:54 12 WE HAVE A RECORD OF WHO'S HERE.

16:21:56 13 MR. STONE: GOOD AFTERNOON, YOUR HONOR.

16:21:57 14 GREGORY STONE OF MUNGER, TOLLES & OLSON ON BEHALF

16:21:59 15 OF RAMBUS.

16:22:00 16 MR. POWERS: MATT POWERS AND STEVE

16:22:02 17 CHERENSKY FOR SAMSUNG.

16:22:04 18 MR. BOBROW: JARED BOBROW FOR MICRON.

16:22:06 19 MR. FREITAS: BOB FREITAS FOR NANYA AND

16:22:08 20 NANYA U.S.A.

16:22:09 21 MR. NISSLY: KEN NISSLY AND TED BROWN FOR

16:22:12 22 HYNIX, YOUR HONOR.

16:22:13 23 THE COURT: ALL RIGHT. LOOKING AT THE

16:22:14 24 CALENDAR, AND OBVIOUSLY I HAD DATES LOCKED OUT FOR

16:22:25 25 THE WEEK OF FEBRUARY 2ND ON TUESDAY THROUGH

66
16:22:28 1 THURSDAY, SO IF WE WANTED TO -- MAYBE WE SHOULD

16:22:34 2 PICK ONE OF THOSE DATES AND THEN ONE AT THE

16:22:36 3 BEGINNING OF THE WEEK OF THE 9TH.

16:22:40 4 SO YOU WANT TO DO, SAY, WEDNESDAY THE 4TH

16:22:47 5 AT 9:00 O'CLOCK? AND TUESDAY -- OR HOW ABOUT

16:23:04 6 WEDNESDAY THE 11TH AT 9:00. DOES THAT WORK?

16:23:09 7 MR. STONE: THAT'S FINE, YOUR HONOR.

16:23:10 8 AND WHAT TIME WOULD YOU LIKE US HERE ON

16:23:13 9 THE 30TH FOR THAT?

16:23:21 10 THE COURT: THAT'LL HAVE TO BE 2:00

16:23:26 11 O'CLOCK, BECAUSE I HAVE A FULL CALENDAR THAT

16:23:28 12 MORNING.

16:23:29 13 MR. STONE: OKAY.

16:23:33 14 MR. POWERS: YOUR HONOR, COULD WE DO

16:23:35 15 EITHER TUESDAY OR THURSDAY INSTEAD OF WEDNESDAY THE

16:23:38 16 4TH? IS THAT POSSIBLE?

16:23:40 17 THE COURT: SURE. I'M SORRY. INSTEAD OF

16:23:44 18 WHEN?

16:23:45 19 MR. POWERS: INSTEAD OF WEDNESDAY THE

16:23:48 20 4TH? AND IF WE COULD DO IT THE 12TH INSTEAD OF THE

16:23:51 21 11TH, I WOULD APPRECIATE IT, IF POSSIBLE.

16:23:57 22 THE COURT: 5TH AND 12TH WORK FOR

16:23:59 23 EVERYBODY?

16:24:00 24 MR. STONE: 5TH AND 12TH, YOUR HONOR?

16:24:03 25 THE COURT: RIGHT.

67
16:24:03 1 MR. STONE: YES, THAT'S FINE.

16:24:05 2 MR. BROWN: WOULD THAT BE IN THE

16:24:06 3 AFTERNOON, THEN, YOUR HONOR?

16:24:07 4 THE COURT: NO. THE 5TH AND 12TH WOULD

16:24:10 5 BE IN THE MORNING AT 9:00.

16:24:12 6 AND THEN THE 30TH WOULD BE AT 2:00.

16:24:16 7 NOW, I THINK RAMBUS FILED A COUPLE OF

16:24:27 8 MOTIONS THAT DON'T HAVE HEARING DATES ON THEM.

16:24:29 9 MR. STONE: THAT'S RIGHT, YOUR HONOR.

16:24:30 10 THE COURT: WOULD YOU SEE IF YOU CAN MEET

16:24:31 11 AND CONFER AND AGREE TO HEAR THOSE AND TELL ME WHAT

16:24:34 12 DATE YOU'RE PLANNING ON DOING THOSE?

16:24:37 13 MR. STONE: YES.

16:24:37 14 THE COURT: IF THERE'S A PROBLEM, LET ME

16:24:39 15 KNOW.

16:24:39 16 MR. STONE: THANK YOU, YOUR HONOR.

16:24:40 17 THE COURT: ALL RIGHT. ANYTHING ELSE?

16:24:41 18 MR. BOBROW: NO.

16:24:42 19 THE COURT: OKAY. THANK YOU.

16:24:43 20 MR. STONE: THANK YOU, YOUR HONOR.

16:24:45 21 MR. BOBROW: THANK YOU, YOUR HONOR.

16:24:47 22 MR. NISSLY: THANK YOU.

16:24:49 23 MR. POWERS: THANK YOU.

16:24:50 24 (WHEREUPON, THE PROCEEDINGS IN THIS

16:24:50 25 MATTER WERE CONCLUDED.)

68