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(All parties and counsel listed on Signature Page)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

RAMBUS INC., Plaintiff, v.

Case No. 3:10-cv-05446 RS JOINT CASE MANAGEMENT STATEMENT Date: May 10, 2012 Time: 10:00 a.m. Judge: Hon. Richard Seeborg Courtroom 3, 17th Floor Case No. 3:10-cv-05449 RS

15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. STMICROELECTRONICS N.V.; STMICROELECTRONICS INC., Defendants. LSI CORPORATION, Defendant. RAMBUS INC., Plaintiff,

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Plaintiff Rambus Inc. (Rambus) and Defendants LSI Corporation (LSI) and STMicroelectronics N.V. and STMicroelectronics Inc. (collectively, STMicro) hereby submit this Joint Case Management Statement to report on the progress of the litigation. I. JOINT STATEMENT A. Dismissal of Defendant MediaTek Inc.

Rambus and MediaTek reached a settlement in March 2012 and Rambus has dismissed the action against MediaTek in its entirety. Thus, of the four original defendants in these coordinated cases, only two LSI and STMicro remain. In addition, in February 2012, Rambus reached a settlement with NVIDIA, which resulted in dismissal of two additional actions one that was pending before Your Honor and one that was pending before Judge Illston. B. Status of Discovery 1. Protective Order

On February 27, 2012, the Special Master issued a Protective Order in these cases, which was thereafter amended by the Special Master. The parties are currently proceeding pursuant to the Amended Protective Order issued by the Special Master on March 14, 2012. 2. Written Discovery

The parties have propounded and responded to requests for production and interrogatories, and are continuing to meet and confer regarding their responses. On May 1, 2012, Rambus produced in this litigation the bulk of the documents that it had produced in the ITC investigation involving the defendants and others (the 753 Investigation).1 Rambus expects to supplement this production with additional documents in the near future. On March 30, 2012, LSI produced in this litigation the bulk of the documents that it had produced in the 753 Investigation.2 LSI expects to supplement this production with additional documents in the near future. The documents that have not yet been produced are ones that raise third-party confidentiality issues that have not yet been resolved as well as some privileged documents that had been inadvertently produced previously. 2 The documents that have not yet been produced are ones that raise third-party confidentiality issues that have not yet been resolved as well as some privileged documents that had been inadvertently produced previously.
Case Nos. 3:10-cv-05446 RS & 3:10-cv-05446 RS -11

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STMicro produced the majority of its 753 Investigation production on March 30, 2012. It expects to make a supplemental document production that includes the confidential documents of third parties in the near future. C. Disclosures Required by Patent Local Rules

Rambus served its Patent L.R. 3-1 Disclosure of Asserted Claims and Infringement Contentions and Patent L.R. 3-2 document production on October 4, 2011. Defendants served their Patent L.R. 3-3 Invalidity Contentions and Patent L.R. 3-4 document production on March 30, 2012. On April 20, 2012, the parties exchanged their Patent L.R. 4-1 proposed terms for construction and disclosed expert witnesses for claim construction. D. Tutorial and Claim Construction Hearing

The Court has scheduled a tutorial for August 1, 2012 at 10 a.m. The parties propose that each side be afforded one hour to present its tutorial to the Court. The parties further propose that each side be permitted to have an expert present at least some portion of the tutorial. Rambus additionally proposes that the tutorial be transcribed or videotaped at the Courts discretion, with each party providing the Court with a copy of its presentation. Rambus understands that the Court intends for the tutorial to be off the record and that the parties presentation materials, as well as any transcript or videotape of the tutorial, is not admissible in this or any other proceeding. The Court has scheduled a claim construction hearing for August 29, 2012 at 10 a.m. The parties propose that each side be afforded two hours to present its claim construction positions to the Court. The parties further propose that live testimony from expert witnesses shall not be permitted at this hearing unless the Court has questions from any of the experts who may be present. II. PROPOSED SCHEDULE Discovery in these cases began following the Rule 26(f) conference on July 7, 2011. The Court subsequently established a schedule for various pretrial activities up until the claim construction hearing on August 29, 2012. LSI Dkt. No. 76. That schedule provides for claim
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construction discovery to be completed no later than July 6, 2012, followed by briefing leading up to the claim construction hearing. 1. Rambuss Proposal

Rambus proposes the following schedule for further litigation events: Close of fact discovery (other than related to claim construction): September 28, 2012 6 Initial expert reports: 7 Rebuttal expert reports: 8 Close of expert discovery: 9 File dispositive motions: 10 Pretrial conference: 11 Trial: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Case No. 3:10-cv-05437 RS , the Court ordered Broadcom and Rambus to submit to mediation [w]ithin 60 days of the Courts claim construction ruling. Case No. 3:10-cv-05437 RS Dkt. No. 75, Order dated Sept. 27, 2011. 4 In any event, Rambuss proposed trial date of April 22, 2012 is unworkable because counsel for STMicro already has a trial scheduled at the same time.
Case Nos. 3:10-cv-05446 RS & 3:10-cv-05446 RS -33

October 12, 2012 November 12, 2012 December 14, 2013 January 17, 2013 April 4, 2013 April 22, 2013

2.

Defendants Proposal

Defendants submit that it is premature to schedule further litigation events at this time. To be feasible, a schedule must allow sufficient time (e.g. 90 days) for the claim construction order to be issued and include additional time for the parties to complete mediation.3 Defendants propose that the parties submit to mediation within 60 days of the Courts claim construction ruling and appear for a further case management conference thereafter to report the results. If necessary, the parties can then confer on the scheduling of further litigation events. If the Court is inclined to set a trial date at the May 10 case management conference, Defendants propose that it be scheduled for no earlier than September 16, 2013 and that the dates for all litigation events proposed by Rambus be pushed back accordingly by 90 to 120 days.4

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III.

THE PARTIES SEPARATE STATEMENTS REGARDING DISCOVERY LIMITS A. Plaintiffs Statement

In its September 19, 2011 Case Management Scheduling Order (Order), the Court ruled that defendants shall have 160 collective hours of fact depositions and Rambus shall have 60 hours in each case. LSI Dkt. No. 70. However, two of the four defendants addressed in that Order have now settled and have consequently been dismissed (Broadcom and MediaTek). In light of this change in circumstances, the defendants should have their time for fact depositions reduced to 80 hours (one-half of what they were earlier allocated). Even this will be far more time than the defendants will need for depositions in light of the extensive record of testimony that was developed in prior cases regarding the Farmwald/Horowitz patents, as well as in the related ITC proceedings. Discovery in these prior cases has exhaustively covered validity and enforceability of the Farmwald/Horowitz patents and all of the affirmative defenses (e.g., spoliation and JEDEC conduct) that defendants seek to raise in these cases. For instance, not including the ITC proceedings, Rambuss current and former officers, directors, employees, and agents have previously testified, under oath and on the record, for more than 1,500 hours, and the defendants have access to this testimony here.5 The bulk of this testimony was from litigation on patents in the Farmwald/Horowitz family, including some of the patents-in-suit here, and/or relates to the affirmative defenses and counterclaims asserted by the defendants. Furthermore, the two defendants who remain here participated fully in the 753 Investigation and there were permitted to take, and in fact took, discovery on many of the issues that they have raised in this case. As an example, in the 753 Investigation, these two defendants engaged in extensive discovery regarding Rambuss alleged spoliation, an issue that they have already indicated they intend to make a centerpiece of their defense here. During discovery in the 753 Investigation, the defendants were allowed to supplement the voluminous prior record on this issue by conducting spoliation-related questioning of over 25 current or former Rambus employees or attorneys. At trial in the 753 Investigation, the defendants made use of prior
5

Defendants use of this testimony, as well as other materials produced by Rambus is, of course, subject to any evidentiary objections Rambus may have.
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testimony regarding Rambuss alleged spoliation as well as the depositions that they took to try to make their case. Thus, the defendants have available here not only the prior testimony of these witnesses from cases involving other parties, but the testimony that they themselves elicited in the 753 Investigation.6 Consequently, Rambus respectfully requests that the Court revise the Case Management Order to take into account the settlement of two of the four related actions and limit the remaining two defendants to a collective 80 hours of fact depositions.7 B. Defendants Statement

Defendants propose that their allotted deposition hours be reduced from 160 to 120 and that all deposition and trial testimony from prior proceedings be deemed usable for all purposes in the present actions. Although the number of defendants has been cut by half since the last case management conference, the number of patents ten remains the same. The Farmwald/Horowitz patents were not asserted in the 753 Investigation.8 Of the ten Farmwald/Horowitz patents, a number have been involved in little or no substantive litigation. Defendants, therefore, have no record of testimony from previous proceedings specific to these patents with which to develop their invalidity claims. While there has been extensive discovery in prior litigations on Rambuss spoliation, the evidence educed in the 753 Investigation and other prior proceedings covers a time period starting roughly in 1995.9 The Farmwald/Horowitz patents, however, claim priority For instance, these two defendants deposed Lester Vincent, Rambuss former outside patent counsel, in the 753 Investigation, including on issues related to their claim of spoliation, and then also examined him at trial on those issues. This discovery and testimony of Mr. Vincent was in addition to his prior eleven depositions and his four prior instances of trial testimony, all of which related to his prosecution of patents in the Farmwald/Horowitz family. 7 In April 2007, in the coordinated Rambus cases pending before him, relying on what was already a substantial amount of prior testimony at that time, Judge Whyte limited four defendants to 125 collective additional hours of depositions (plus an extra 50 hours of depositions for Samsung alone on certain Samsung-unique issues that are not in play here). See 05-cv-00334RMW, Dkt. No. 174, at 8. Of course, the testimony that was taken pursuant to Judge Whytes Order is among the testimony available to defendants in these cases, so the need for additional testimony is even less now than it was then.
8 6

The 753 Investigation concerned the Dally and Barth patents, litigation of which is currently stayed in this action. 9 The patent applications from which the Barth and Dally patents claim priority were filed in
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through an application filed in April 1990, leaving a five-year period relatively unexplored in discovery. Thus, the remaining Defendants need for deposition testimony to develop their invalidity claims and affirmative defenses with respect to the Farmwald/Horowitz patents has not diminished. Defendants are acutely conscious of the expense of this litigation and wish to avoid any duplication of previous discovery. One hundred and twenty hours of deposition time for both Rambus and Defendants when coupled with the right to use and rely upon prior testimony is a reasonable compromise that advances a goal of all parties to conserve resources and keep costs to a minimum. IV. THE PARTIES SEPARATE STATEMENTS REGARDING LIMITATION OF ASSERTED CLAIMS A. Plaintiffs Statement 1. Thirty-Five Claims Is an Appropriate Number to Proceed With at this Stage of the Litigation

On October 4, 2011, Rambus served its Disclosure of Asserted Claims and Infringement Contentions asserting 81 claims from the ten Farmwald/Horowitz patents-in-suit. At the Case Management Conference on January 12, 2012, the Court directed the parties to meet and confer after the defendants had served their Invalidity Contentions with a view to reducing the number of patent claims to be litigated in these cases. The defendants served their Invalidity Contentions on March 30, 2012. On April 16, 2012, Rambus provided a list of 35 claims from the Farmwald/Horowitz patents-in-suit to the defendants and indicated that, reserving its right to assert other claims later, it would at this time, in response to the Courts direction, be prepared to proceed forward on these 35 claims.10 The October 1995 and June 1997, respectively.
10

While Rambus has selected 35 claims that it believes will likely cover the most significant infringement and validity issues in this litigation, it is possible that future events, including potentially the Courts claim construction or the noninfringement arguments raised by the defendants, will necessitate further litigation on other claims. See LML Patent Corp. v. JPMorgan Chase & Co., 2010 WL 5140823, at *1 - *2 (E.D. Tex. Oct. 12, 2010) (rejecting proposition that enforcement of the Courts claim election requirement would foreclose Plaintiffs rights as to all non-elected claims without ever reaching the merits of those claims);
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text of these 35 claims is attached as Plaintiffs Exhibit 1 to this Joint Statement.11 The defendants responded that Rambus should reduce the number of claims to 20. A subsequent meet and confer among the parties failed to resolve the parties differences on this issue. The defendants argue at length that it is within the Courts discretion to limit the number of claims that the parties will litigate as these cases move forward. There is no dispute, of course, that the Court has such discretion. Rather the question is the appropriate number at this time. Rambus has diligently analyzed its patent claims and has reduced the number of claims that it intends to litigate at this time by well over 50% in order to streamline these cases as they move forward. Thirty-five claims is a reasonable number of claims to proceed with at this stage of the litigation in light of the following factors, among others: Rambus has asserted ten patents from the Farmwald/Horowitz family, which claim multiple distinct inventions designed to improve the speed and efficiency of data transfer between memory controllers and synchronous memory devices.12 The claims of these patents include, both individually and in various combinations, inventions that have been referred to in a short-hand way as programmable latency, variable burst length, dual-edge clocking, and auto-precharge, each of which can be used in connection with either read or write operations. The defendants have included each of these distinct inventions in their products and have thus infringed numerous claims of Rambuss patents. To further limit Rambuss claims at this stage could have the effect of allowing defendants

Automotive Techs. Intl, Inc. v. Delphi Corp., 2009 WL 211039, at *2 (E.D. Mich. Jan. 28, 2009) (It is, however, possible, while perhaps not probable, that some unforeseen turn of events in this lawsuit will necessitate further litigation on one or some of the remaining [non-elected] fortyeight claims.). Claims that are in italics in Plaintiffs Exhibit 1 are not among the 35 claims, but are included because one or more of the 35 claims depend from them. 12 The defendants stress that the patents at issue are all from a single patent family and share a common specification. But while the number of distinct inventions claimed in the asserted patents may inform the determination of the appropriate number of claims to litigate, whether those inventions are disclosed in a single specification or multiple specifications is not relevant.
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13

to escape liability for their infringement of claims covering distinct inventions. Rambus should be allowed to proceed with claims directed to each of the inventions used by the defendants, as well as combinations of them. Rambus has claimed its inventions both as method claims and as apparatus claims. Rambus should be allowed to proceed with both types of claims. Rambus has used different terminology to claim its inventions. For example, certain claims refer to memory controllers sending a read request to a memory device, while other claims refer to the memory controller sending an operation code that specifies a read operation. These terms have been construed differently in the past and have given rise to different noninfringement and invalidity arguments on the part of defendants in prior Rambus litigation. It would be premature to force Rambus to select claims using particular terminology before the defendants have even set forth their positions regarding the appropriate construction of that terminology, much less formulated their noninfringement and invalidity positions based on the Courts ultimate claim construction. The defendants have raised over a hundred prior art references in their Invalidity Contentions.13 While Rambus does not believe that these prior In their Invalidity Contentions, LSI has listed 104 prior art references and STMicro has listed 105. (Although there is substantial overlap between the two lists, they are not identical.) With respect to each asserted claim, the defendants have each listed a set of so-called primary references, as well as a set of secondary references that allegedly may be combined with the primary references to form combinations that render the claim obvious. Thus, for example, for claim 1 of the 997 patent, LSI lists 16 primary and 49 secondary references, while STMicro lists 13 primary and 46 secondary references (with overlap between the primary and secondary references). No specific obviousness combinations are identified. Thus, even if the only combinations to be considered are a single primary reference with a single secondary reference (and defendants place no such limitation on their contentions), each of the defendants has alleged well over 500 potential obviousness combinations with respect to this one claim alone. The defendants argument that their large number of prior art references is necessitated by the number of Rambuss asserted claims rings hollow given that the defendants have listed the same large set of references against many of the asserted claims. Indeed, the primary and secondary references asserted by each defendant against just two of Rambuss asserted claims (claim 6 of the 097
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art references anticipate or render obvious any of its asserted claims, Rambus has included among its 35 selected claims certain dependent claims that add limitations well-suited to further distinguish particular prior art references raised by defendants, while other dependent claims are directed at distinguishing other prior art references. It would be unfair to require Rambus to limit its claims further, while defendants are permitted to proceed with their full panoply of prior art. 2. The Defendants Are Incorrect that the Limitation of Claims Is Routine

The defendants list several cases in which courts limited the patentee to fewer than 35 claims.14 But, numerous cases exist where courts have allowed the patentees to proceed with many more than 35 claims at this stage of the litigation. See, e.g., Gemalto S.A. v. HTC Corp., 10-cv-00561 (E.D. Tex), Dkt. # 171, Mar. 7, 2012 (denying motion to limit claims to six claims per patent prior to claim construction and allowing case to proceed with 100 claims from 3 patents); Automated Merchandis v. Crane Co., 04-cv-00048 (N.D.W.V., Dkt. #384, Feb. 15, 2012 (denying motion to limit claims and allowing case to proceed with 116 claims from 4 patents); Dataquill Ltd. v. High Tech Computer Corp., 08-cv-543 (S.D. Cal.), Dkt. # 87, Mar. 16, 2011 (denying motion to limit claims before close of discovery and allowing case to proceed with 159 claims from 2 patents); Fractus, SA. v. Samsung Elecs. Co., 09-cv-00203 (E.D. Tex.), Dkt. # 332, Mar. 8, 2010 (denying motion to limit claims prior to claim construction and allowing case to proceed with 148 claims from 9 patents); Sony Corp. v. Vizio Inc., 08-cv-01135 (C.D. Cal.), Dkt. #105, Aug. 31, 2009 (accepting patentees proposal to limit number of claims from 10 patents to 60, and, at a subsequent stage of the litigation, to 50); 911 EP, Inc. v. Whlean Engg

patent and claim 1 of the 997 patent) includes every single one of the primary and secondary references asserted by that defendant against the other 79 asserted claims.
14

A number of the cases cited by the defendants actually counsel against limiting the number of claims at this stage of the litigation. Specifically, (1) in Havco Wood Prods., the court did not limit the number of claims until after claim construction; (2) in High Point Sarl, the court did not limit the number of claims until after the defendants had disclosed their non-infringement contentions, and (3) in XPRT Ventures, the court did not limit the number of claims until after discovery had closed.
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Co., 05-cv-00137 (E.D. Tex.), Dkt. No. 148, Aug. 11, 2006 (denying motion to limit claims prior to claim construction and allowing case to proceed with 163 claims from 8 patents). The defendants have made much of the fact that, after invalidity contentions were served in other litigation also involving patents from the Farmwald/Horowitz family, Judge Whyte directed Rambus to limit to 25 the number of claims to be litigated from 22 patents. Rambus v. Hynix, et al., 05-cv-00334-RMW (N.D. Cal.); Rambus v. Micron, 06-00244-RMW (N.D. Cal.). At the time Judge Whyte made his decision in those coordinated cases, however, Rambus had been litigating other cases involving the Farmwald/Horowitz patents with two of the defendants, Hynix and Micron, for several years indeed, Rambus had already tried other Farmwald/Horowitz patent claims against Hynix. Rambus v. Hynix, 00-cv-20905-RMW (N.D. Cal.). Thus, Rambus had a good sense of the positions on claim construction and other matters that those defendants were likely to take as well as Judge Whytes likely claim construction rulings, expecting that they would in many cases track their prior positions and rulings, respectively. In Rambuss first case involving the Farmwald/Horowitz patents against Hynix, at a time when Hynix like the defendants here had not yet staked out positions regarding claim construction and noninfringement, Judge Whyte allowed Rambus to proceed with 65 claims from 15 patents. It was only after the Court had ruled on dispositive motions that Judge Whyte directed Rambus to select 10 of those 65 claims for trial. 3. The Defendants Provide No Support for the Proposition That Rambus Should be Limited to 20 Claims

The case law cited above, together with the cases cited by defendants, demonstrates only that whether it is appropriate to limit claims and, if so, the number of claims with which to proceed, requires a consideration of the particular litigation and the patents and claims at issue. Rambuss selection of 35 claims is based on a careful analysis of the patents and claims here. In response, the defendants primarily offer generalities about the efficiencies that would attend a greater reduction of the number of claims generalities that do nothing to show that their apparently arbitrary selection of 20 claims is the appropriate number in these cases.

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When the defendants do cite specific claims, namely in the color-coded chart referenced in their statement, these claims do not support their arguments. According to the defendants, their chart illustrat[es] the similarities across just some of the 35 claims that Rambus has recently selected. The chart includes 11 claims and, presumably, these are the claims that the defendants feel best demonstrate the purported redundancy of Rambuss selected claims. However, a review of the 11 claims shows that each raises significantly different issues from the others; together, these claims illustrate the types of differences among the claims selected by Rambus that justify proceeding with all of them at this time. A far from exhaustive list of such differences includes the following examples: Many of the claims include different key claim elements or combinations of claim elements. For example, using the shorthand above, claim 1 of the 918 patent is directed to variable burst length for read operations; claim 15 of the 916 patent is directed to variable burst length combined with programmable latency for read operations; and claim 1 of the 997 patent is directed to variable burst length combined with programmable latency and also combined with auto-precharge for read operations. Seven of the 11 claims are method claims; the remaining four are apparatus claims. Two of the claims are directed to controlling any memory device; six are directed to controlling synchronous memory devices; and three are directed to controlling synchronous dynamic random access memory devices. These differences lead to potentially significantly different claim scope. For example, beyond the obvious differences in the breadth of the terms that is apparent from their plain language, the Board of Patent Appeals and Interferences has ruled that a memory device, as opposed to a synchronous dynamic random access memory device, may include multiple computer chips (this issue is currently on appeal to the Federal Circuit).
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Three of the claims include the read request terminology, while the others use the operation code terminology. As noted above, these terms have been construed differently in the past and have led to different noninfringement and invalidity arguments.

Three of the claims include a claim limitation directed to what has been referred to by the shorthand auto-precharge (colored in orange in the defendants chart). But even with respect to just the claim limitations in this group, putting aside the other differences in the claims in which they appear, there are significant differences. For example, one of these claims (claim 36 of the 281 patent) requires that the sense amplifiers on the memory device be precharged automatically after the data is read, while the other two (claims 1 and 19 of the 997 patent) require only that precharge information be output to the memory device, but not that the sense amplifiers actually be precharged. This difference in scope is potentially significant with respect to both infringement and validity arguments. 4. Rambus Would Be Prejudiced By Being Restricted to Fewer Than 35 Claims at this Stage of the Litigation

Rambus has selected 35 claims of varying scope that raise differing issues of infringement and validity. Restricting Rambus to fewer claims at this stage of the litigation would prejudice Rambus because it would be forced to select claims before knowing which claims are the strongest. Rambus will be in a position to judge the strength of the claims once the Court has construed the claims, and the defendants have disclosed their noninfringement arguments and focused their invalidity arguments through expert reports and dispositive motions. The defendants make the preposterous assertion that Rambus could proceed with only two claims because, according to Rambuss infringement contentions, two claims suffice to cover all of the accused products. Of course, the defendants ignore that Rambus must also meet the noninfringement and invalidity arguments that the defendants will make. The defendants have
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failed to identify any pair of the 35 claims put forward by Rambus that necessarily raise identical infringement and validity issues, and no such pair of claims exist the 35 claims all potentially raise significantly different issues, though the extent of some of those differences may depend on the Courts claim construction. While Rambus believes that 35 claims is a reasonable number to proceed with at this time, Rambus intends to select a smaller number of claims for trial. Rambus submits, however, that the appropriate time to do that is after claim construction, expert reports, and dispositive motions. At that time, the strength of the 35 claims it has selected will have been tested and Rambus can proceed with confidence that it is selecting a sampling of its strongest claims for trial. B. Defendants Statement 1. The Court Should Limit Rambus to Twenty Asserted Claims

All 10 patents-in-suit (the Farmwald/Horowitz patents) are part of the same patent family, derive from the same patent application, and contain substantially identical specifications. Since the start of this case, Defendants have urged the Court to require Rambus to limit the number of asserted claims to 20. At the last case management conference on January 12, 2012, the Court indicated it was willing to consider limiting the number of asserted claims after Defendants served their invalidity contentions. On March 30, 2012, Defendants served their invalidity contentions. Hence Rambus is now fully apprised of Defendants invalidity arguments with respect to the 80-plus asserted claims. The parties also have met and conferred on this issue, but Rambus is only willing to reduce the number of asserted claims to 35. Although Rambuss offer is a step in the right direction, such a reduction only minimally reduces the unnecessary and heavy burden the number of asserted claims will have on the parties, the Court, and a jury. Rambus does not dispute that it cannot try 35 claims, let alone 80 plus claims, to a jury. Yet Rambus continues to assert a burdensome and unreasonable number of patents and claims, and has steadfastly refused to make this case manageable for the Court and the parties. In situations such as this, courts routinely order patentees to narrow their patent assertions to a reasonable number of claims in order to streamline claim construction, preparation of expert
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reports, dispositive motion practice, and ultimately trial. Defendants respectfully request the Court grant such relief here. Now that all infringement and invalidity contentions are on the table, this issue of reducing the number of asserted claims is ripe for decision. Defendants propose that Rambus be limited to 20 asserted claims for purposes of fact and expert discovery, claim construction, and summary judgment proceedings leading up to trial. Defendants propose that Rambus identify these 20 claims by May 24, 2012. As discussed in more detail below, the case management and litigation efficiencies that will be gained from a 20-claim limit will substantially outweigh any prejudice Rambus claims that it might suffer. Finally, at an appropriate time, Defendants also propose that Rambus further limit the number of asserted claims to 10 for trial. 2. The Court Has the Authority to Limit the Number of Asserted Claims a. Courts Have Broad Discretion to Manage their Dockets

Pursuant to Rule 1 of the Federal Rules of Civil Procedure, it is well within the Courts discretion to order Rambus to select for assertion only a reasonable number of asserted claims. Rule 1 empowers the Court to secure the just, speedy, and inexpensive determination of every action and proceeding before it. Fed. R. Civ. P. 1. The Supreme Court has long recognized the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). See also Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (District courts have the inherent power to control their dockets [. . .].). In the context of patent cases, courts limit the number of asserted claims to efficiently manage and streamline the litigation. See, e.g., Rambus Inc. v. Hynix Semiconductor Inc., No. 05cv-00334-RMW (N.D. Cal.), Docket No. 222 at 3-4 (Order dated June 27, 2007) (limiting Rambus to asserting 25 claims from 22 patents); Broadcom Corp. v. Emulex Corp., No. SACV 09-01058-JVS (ANx) (C.D. Cal.), Docket No. 167 at 9 (Order dated June 30, 2010) (ordering patentee to reduce the number of asserted claims from 178 to 20); Fenster Family Patent Holdings, Inc. v. Siemens Med. Solutions USA, Inc., No. 04-0038-JJF, 2005 U.S. Dist. LEXIS 2078, at *8 (D. Del. Sept. 20, 2005) (holding 90 asserted claims across 8 asserted patents to be
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unreasonable and ordering the patentee to select ten representative claims). The Federal Circuit has approved of the practice of limiting the number of asserted claims in patent cases. For example, in Stamps.com Inc. v. Endicia, Inc., the plaintiff originally asserted 629 claims across 11 patents against the defendant. No. 2010-1328, 2011 WL 2417044, at *1 (Fed. Cir. June 15, 2011). The district court limited the plaintiff to asserting no more than 15 claims. Id. The Federal Circuit affirmed the district courts decision. Id. at *3. As another example, in In re Katz Interactive Call Processing Patent Litigation, the Federal Circuit affirmed the decision of the district court to limit the plaintiff to 64 of the 1,975 claims originally asserted. 639 F.3d 1303, 1309-13 (Fed. Cir. 2011). The Court observed that the district court needs to have broad discretion to administer the proceeding. 639 F.3d at 1313 (quoting In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1232 (9th Cir. 2006)). 3. Courts Routinely Limit the Number of Asserted Claims in Patent Cases

Courts routinely require plaintiffs to select for litigation a small number of the total asserted claims to efficiently manage and dispose of the cases before them. Broadcom Corp. v. Emulex Corp., No. SACV 09-01058-JVS (ANx) (C.D. Cal.), Docket No. 167 at 8 (Order dated June 30, 2010). Moreover, courts routinely find it appropriate to limit the number of asserted claims prior to claim construction, the close of discovery, preparation of expert reports, and dispositive motion practice. The following table illustrates several examples: Case/Docket No. Asserted Patents Claims Originally Asserted Asserted patents collectively had 429 claims. 90 Claims Asserted After Limitation 10

Sky Techs. LLC v. SAP AG, No. 06-cv-440 (E.D. Tex.), Docket No. 42 at 1 (Order dated Feb. 6, 2007) Fenster Family Patent Holdings, Inc. v. Siemens Med. Solutions USA, Inc., No. 040038-JJF, 2005 U.S. Dist. LEXIS 20788, at *8 (D. Del. Sept. 20, 2005) Havco Wood Prods., LLC v. Indus. Hardwood Prods., Inc., No. 10-cv-566-wmc (W.D. Wis.), Docket No. 51 at 12 (Order dated Nov. 10, 2011)

10

135

15

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Case/Docket No.

Asserted Patents

Claims Originally Asserted 629

Stamps.com, Inc. v. Endicia, Inc., No. 067499 ODW (CTx) (C.D. Cal.), Docket No. 98 at 1 (Order dated Mar. 17, 2008) Data Treasury Corp. v. Wells Fargo & Co., No. 06-CV-72 (DF) (E.D. Tex.), Docket No. 325 at 4-5 (Order dated Oct. 25, 2006). Verizon Cal. Inc. v. Ronald A. Katz Tech. Licensing, L.P., 326 F. Supp. 2d 1060, 1066 (C.D. Cal. 2003) In re Katz Interactive Call Processing Patent Litig., No. 07-ML-1816-RGK (FFMx) (C.D. Cal.), Docket No. 221 at 1 (Order dated Aug. 31, 2007) *Applies to one case in a 26-case multidistrict litigation. Broadcom Corp. v. Emulex Corp., No. 0901058-JVS (ANx) (C.D. Cal.), Docket No. 167 at 9 (Order dated June 30, 2010) High Point Sarl v. Spring Nextel Corp., No. 09-2269-CM-DJW (D. Kan.), Docket No. 408 at 8 (Order dated Aug. 18, 2010) XPRT Ventures, LLC v. eBay, Inc., No. 10cv-00595-SLR (D. Del.), Docket No. 181 at 6 (Order dated March 26, 2012) DCG Sys., Inc. v. Checkpoint Techs., LLC, No. 11-CV-03792-PSG (N.D. Cal.), Docket No. 76 at 1-2 (Order dated April 13, 2012) Rambus Inc. v. Hynix Semiconductor Inc., No. 05-cv-00334-RMW, at 3-4 (N.D. Cal. June 27, 2007) (Docket No. 222)

11

Claims Asserted After Limitation 15

Asserted patents collectively had 224 claims Asserted patents collectively had 1,454 claims 1,975

18

16

20

31

20

11

178

20

117

20

50

25

57

25

22

Asserted patents collectively had 700+ claims.

25

A decision that is highly relevant to the issues in this case was rendered by Judge Whyte in Rambus v. Hynix Semiconductor Inc. In that case, Rambus asserted 22 patents including multiple patents from the Farmwald/Horowitz family and other families against multiple defendants. Before the exchange of infringement and invalidity contentions, Judge Whyte directed the parties to limit the number of claims that would be litigated. No. 05-cv-00334 RMW (N.D. Cal.), Docket No. 130 at 3 (Order dated Nov. 16, 2006). Because the parties could not agree on a specific limit, Judge Whyte, prior to claim construction, ordered Rambus to
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assert no more than 25 claims for the remainder of discovery. Id., Docket No. 222 at 3-4 (Order dated June 27, 2007).15 As that case got closer to trial, Judge Whyte cautioned that the parties must focus the issues both in fairness to each other and to the jury which will face the daunting task of understanding complex technology and applying its factual findings to the applicable patent law, and directed Rambus to further limit the number of claims at issue for trial. Id., Docket No. 2084 at 9. Judge Whyte later stayed that case before trial pending the outcome of certain appeals. 4. Twenty Asserted Claims Is an Appropriate Limit in this Case a. A 20-Claim Limit Provides Rambus with More than Enough Claims to Fully and Fairly Prosecute Its Infringement Case

Because all 10 of the asserted patents issued from a common parent application, the patents have nearly identical specifications. Defendants Exhibit 1 attached hereto includes a diagram illustrating the numerous divisional and continuation applications Rambus has filed over the past two decades, all of which claim priority back to the same common patent application.16 Defendants Exhibit 1 demonstrates that Rambus is not asserting 81 claims from 10 unique patents; instead, it is asserting 81 claims that are all derived from the same, single patent specification. Accordingly, the fact that this case involves multiple patents is not legitimate justification for Rambus to assert more than 20 claims. If this case involved one to three patents, it would be more than reasonable for the Court to limit Rambus to 10-20 claims. Likewise, limiting Rambus to 20 claims for a single-patent-family case is eminently reasonable. In addition, given that Rambus has only been able to rely on a single 24-column specification for the drafting of hundreds of new claims in multiple continuing applications,17 Rambus cites to an earlier case involving the Farmwald-Horowitz patents, Rambus v. Hynix, 00-cv-20905-RMW (N.D. Cal.), where Judge Whyte limited Rambus to 65 claims. Judge Whyte, however, made that decision back in approximately 2003, before courts were routinely limiting patentees to 10-25 asserted claims and well before the Federal Circuit had reviewed and affirmed that practice. As Defendants point out above, Judge Whyte later determined in 2007 that a 25claim limit for 22 patents was a more reasonable limit for Rambus. The 10 patents asserted in this case can be identified in Defendants Exhibit 1 by the shaded boxes. 17 Although the USPTO has issued numerous claims and patents from dozens of patent applications in the Farmwald-Horowitz patent family, Defendants do not admit that all such
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many of the asserted claims significantly overlap and contain the same five or six core limitations. For example, Defendants Exhibit 2 attached hereto includes a diagram illustrating the similarities across just some of the 35 claims that Rambus has recently selected. Defendants Exhibit 2 illustrates that many of Rambuss asserted claims are not very different; they just contain different combinations of the same handful of core concepts. Accordingly, Rambus does not need 35 claims to fairly and effectively litigate this case. Twenty claims provide Rambus with more than enough flexibility to cover all the core concepts of its alleged inventions disclosed in a single specification. Looking at it another way, 20 claims allows Rambus to assert one independent and one dependent claim from each asserted patent. In line with Defendants argument, Rambus argues that the Farmwald-Horowitz patents contain approximately four distinct inventions: programmable latency, variable burst length, dual-edge clocking, and auto-precharge. But Rambus does not explain how this alleged number of inventions justifies a 35-claim limit. Even if it were true that these four elements constitute distinct inventions, 20 claims is more than enough for Rambus to capture each alleged invention and multiple combinations thereof. Such a limit is also enough for Rambus select both representative apparatus and method claims. Rambus also argues that it is entitled to 35 asserted claims because it has used multiple claims to describe the same claimed inventions using different terminology. Such a practice should not entitle Rambus to a higher limit. Although a patentee can describe the same invention in dozens, if not hundreds, of different ways, this is not a legitimate reason for allowing Rambus to litigate a multitude of claims. Rambuss continued assertion of duplicative claims is nothing more than a transparent attempt to hedge its bets in claim construction and summary judgment. For example, for every one of Rambuss proposed claim constructions that is rejected by the Court, Rambus can simply move its eggs from the rejected basket to a different basket that uses slightly different claim language. Limiting Rambus to 20 claims will help, but not eliminate, this inefficient and unfair practice. Moreover, because Rambus has been

claims comply with the written description or enablement requirement of the 35 U.S.C. 112.
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prosecuting in the Patent Office and litigating in the courts the same family of patents for over 11 years, it should have no trouble determining at this stage of the litigation which 20 claims will serve it best. Finally, Rambus argues that Defendants assertion of 100+ prior art references also justifies a 35-claim limit. But Rambus overlooks the fact the number of prior art references on which Defendants rely is directly driven by the number of asserted claims. Before Defendants can begin to narrow their invalidity arguments, Rambus must significantly narrow its infringement case. Moreover, the vast majority of Defendants prior art references are not new to Rambus. Rambus has already reviewed and analyzed the majority of such references in prior litigations and in patent re-examination proceedings. 5. A 20-Claim Limit Will Streamline Many Aspects of the Case

Rambus chose to bring this action asserting an unreasonable number of claims and patents against Defendants, resulting in considerable expenditures of time, effort, and resources by the Court and the parties litigating claims and issues that will never be presented to a jury. Given Rambuss refusal to assert a reasonable number of claims at this stage of the litigation, it is more than fair for the Court, for its own benefit and for the parties, to reduce the number of asserted claims to 20 claims. When a patentee refuses to reduce the number of asserted claims to a reasonable number, the Court must intervene. Data Treasury Corp. v. Wells Fargo & Co., No. 06-CV-72 (DF) (E.D. Tex.), Docket No. 325 at 4 (Order dated Oct. 25, 2006). Limiting Rambus to 20 asserted claims will streamline all aspects of this case going forward, conserving considerable time and resources for the Court, the parties, and eventually a jury. First, reducing the number of asserted claims to 20 will reduce the number of disputed claim terms that need construction.18 Although Rambuss asserted claims cover only a handful of core concepts, Rambus over time has filed continuation after continuation to claim those core concepts using slightly different wording and in varying mix-and-match combinations. Accordingly, although there is a significant overlap in what the asserted claims cover, litigating Once the Court has issued its ruling on the permitted number of asserted claims, Defendants intend to initiate discussions with Rambus regarding limiting the number of claim terms.
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even 35 claims will result in numerous claim construction disputes.19 The Court will necessarily have to expend time and resources to resolve these disputes either this summer or before trial, where many such disputes differ in form but not substance. See Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1311 (Fed. Cir. 2003) (. . . by not interpreting [a] disputed claim term . . . the district court erred as a matter of law.); Allen Engg Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1346 (Fed. Cir. 2002) (The district courts failure to construe the claim limitations at issue . . . compel this court to remand for further proceedings [. . .].). Again, it appears that Rambuss preferred strategy is to hedge its bets and have the Court and the parties waste a lot of time construing and arguing about the meaning of multiple claim limitations that essentially cover the same thing. Limiting Rambus to 20 asserted claims will increase the efficiency of the entire claim construction process. Second, following claim construction, the parties experts will need to prepare in-depth reports detailing infringement/non-infringement and validity/invalidity arguments. Invalidity reports, for example, will require a detailed discussion of every claim limitation, including an identification of where each limitation is found in each prior art reference. Given the current number of asserted claims and prior art references, the parties and their experts will have to analyze and draft reports relating to a multitude of individual references and combinations thereof. Considerable time and resources will be conserved by not requiring the parties experts to analyze and opine on more than 20 asserted claims, especially where only a fraction of the claims will be presented to a jury. Third, summary judgment motions which Defendants are likely to bring to challenge the validity, enforceability, and/or alleged infringement of Rambuss asserted claims will be very burdensome without a reasonable limitation on the number of claims. Briefing and adjudicating summary judgment motions for potentially 35 asserted claims would be a highly burdensome undertaking for the parties and the Court.

Indeed, based on the original 81 asserted claims, the parties have already exchanged lists of claim terms that require construction. Rambus has identified 43 terms for construction and Defendants have identified 105 terms.
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Fourth, the Court cannot expect the parties to submit 35 or even 20 claims to a jury to decide issues of validity, enforceability, or infringement. The potential for jury confusion in a patent case increases exponentially with the number of claims asserted. Data Treasury Corp. v. Wells Fargo & Co., No. 06-CV-72 (DF) (E.D. Tex.), Docket No. 325 at 3-4 (Order dated Oct. 25, 2006). This is especially true in cases such as this, where the patents cover complex technology. It is therefore critical that the Court limit the number of claims asserted so the parties can direct their attention and energy to narrowing the issues and establishing which claims will be presented to the jury. The parties must focus the issues in this case both in fairness to each other and to the jury. Hynix, No. 05-cv-00334 RMW (N.D. Cal.), Docket No. 2084 at 9 (Order dated August 27, 2008). 6. Rambus Will Not be Prejudiced by a 20-Claim Limit

Defendants proposed limit of 20 asserted claims is more than fair to Rambus. According to its own infringement contentions, Rambus only needs to assert two claims to allegedly cover every accused product. A 20-claim limit would allow Rambus to proceed, at its discretion, with one independent and one dependent claim from each asserted patent. Where the asserted patents are so related and the claims overlap to such a substantial degree, such a limitation is fair, even generous. Havco Wood Prods., LLC v. Indus. Hardwood Prods., Inc., No. 10-cv-566-wmc (W.D. Wis.), Docket No. 51 at 12 (Order dated Nov. 10, 2011). Further, Rambus cannot suffer any prejudice because Defendants proposed limitation on the number of asserted claims is not immutable. If after claim construction and/or summary judgment proceedings Rambus can show good cause as to why it should be permitted to add more or substitute claims, the Court can consider such a motion from Rambus. In making such a motion, however, Rambus must demonstrate that the addition of new claims presents unique issues of infringement or invalidity. See In re Katz Interactive Call Processing Patent Litig., 639 F.3d at 1312 (there is no deprivation of due process where a patentee fails to demonstrate that some of its unselected claims [present] unique issues as to liability or damages.); Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1466 (Fed. Cir. 1998) (noting that property rights attach to patents as a whole, not individual claims.); Ziggity Sys., Inc. v. Val Watering Sys.,
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769 F. Supp. 752, 819 (E.D. Pa. 1990) (the amount of damages is not affected by the number of claims infringed). In summary, Defendants respectfully request that the Court limit the number of asserted claims to 20 and that Rambus identify such 20 claims by May 24, 2012. Additionally, Defendants request that the Court further limit the number of asserted claims for trial to 10. Respectfully submitted, Dated: May 3, 2012 MUNGER, TOLLES & OLSON LLP By: /s/ Peter A. Detre Gregory P. Stone (SBN 078329) gregory.stone@mto.com Katherine K. Huang (SBN 219798) katherine.huang@mto.com Peter E. Gratzinger (SBN 228764) peter.gratzinger@mto.com Keith R.D. Hamilton (SBN 252115) keith.hamilton@mto.com David H. Pennington (SBN 272238) david.pennington@mto.com MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Peter A. Detre (SBN 182619) peter.detre@mto.com MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Attorneys for RAMBUS INC. KILPATRICK TOWNSEND & STOCKTON LLP By: /s/ David E. Sipiora David E. Sipiora (SBN 124951) dsipiora@kilpatricktownsend.com 1400 Wewatta Street, Suite 600 Denver, CO 80202 Telephone: (303) 571-4000 Facsimile: (303) 571-4321

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Robert John Artuz (SBN 227789) rartuz@kilpatricktownsend.com 379 Lytton Avenue Palo Alto, CA 94301 Telephone: (650) 326-2400 Facsimile: (650) 326-2422 Attorneys for LSI CORPORATION K&L GATES LLP By: /s/ Michael J. Bettinger Michael J. Bettinger (SBN 122196) mike.bettinger@klgates.com Stephen M. Everett (SBN 121619) stephen.everett@klgates.com Curt Holbreich (SBN 168053) curt.holbreich@klgates.com Elaine Y. Chow (SBN 194063) elaine.chow@klgates.com Deirdre M. Digrande (SBN 199766) deirdre.digrande@klgates.com Four Embarcadero Center, Suite 1200 San Francisco, CA 94111 Tel: (415) 882-8200 Fax: (415) 882-8220 Attorneys for STMICROELECTRONICS N.V. and STMICROELECTRONICS, INC. Filers Attestation I, Peter A. Detre, am the ECF user whose identification and password are being used to file this JOINT CASE MANAGEMENT STATEMENT. In compliance with General Order 45.X.B., I hereby attest that the above-named signatories concur in this filing. Dated: May 3, 2012 _______/s/ Peter A. Detre______

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