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Mary

Mary

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Published by: sabatino123 on Aug 24, 2012
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11/04/2013

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M
ORRIS
,
 
N
ICHOLS
,
 
A
RSHT
&
 
T
UNNELL LLP
 
1201
 
N
ORTH
M
 ARKET
S
TREET
 P.O.
 
B
OX
1347 W 
ILMINGTON
,
 
D
ELAWARE
19899-1347(302)
 
658-9200(302)
 
658-3989
 
FAX
M
ARY
B.
 
G
RAHAM
 
(302) 351-9199mgraham@mnat.com
August 24, 2012
BY E-FILING
The Honorable Sue L. RobinsonU.S. District Court for the District of DelawareJ. Caleb Boggs Federal Building844 N. King Street, Room 4124, Unit 31Wilmington, DE 19801-3568Re:
 Micron Technologies, Inc. v. Rambus Inc.
 C.A. No. 00-792 (SLR)Dear Judge Robinson:
I write in response to Mr. Cottrell’s letter dated August
20, 2012 regarding the
International Trade Commission’s opinion in Investigation No. 337
-TA-753. (D.I. 1146.)Among other rulings, the Commission found all of the asserted Barth patent claims to be invalid.The Commission also affirmed, over the opposition of the ITC staff, J
udge Essex’s
determination of unenforceability for the asserted Barth patents under the unclean hands
doctrine. The Commission’s opinion adds little, if anything, to Judge Essex’s opinion, which is
unpersuasive for reasons discussed in my letter dated March 28, 2012 (D.I. 1137).
1
 
Mr. Cottrell noted that the Commission affirmed Judge Essex’s determination of 
prejudice and imposition of the maximum sanction of unenforceability. However, the
Commission’s analysis on each of these issues is deeply flawed.
 Fir
st, in addressing prejudice, rather than analyzing Respondents’ defenses todetermine whether and to what extent their “substantial rights” were “affecte[d],”
 Micron Tech., Inc. v. Rambus Inc.
, 645 F.3d 1311, 1328 (Fed. Cir. 2011) (
 Micron II 
), the Commission
incorrectly put the burden on Rambus to demonstrate that “the materials destroyed did notinclude prior art” and other prior 
-art-related documents, Op. at 55. But the destruction of 
1
Rambus has also
discussed the errors in Judge Essex’s opinions in more detail in D.I.
1138-1,at 56-
95 (the unclean hands section of Rambus’s Petition for Review of the Initial
Determination by Judge Essex).
Case 1:00-cv-00792-SLR Document 1147 Filed 08/24/12 Page 1 of 3 PageID #: 11691
 
The Honorable Sue L. RobinsonAugust 24, 2012Page 2relevant documents, assuming it occurred, shows only spoliation, not material prejudice. Theonly two defenses the Commission addressed in discussing prejudice were anticipation andinequitable conduct in connection with a draft SyncLink specification produced by Rambus. Op.at 54-55. Both failed independently on the merits.
2
 
Although the Commission noted “that we
have rejected [those defenses] on the merits cannot be dispositive because a patent need not be
invalid or unenforceable for other reasons in order for it to be unenforceable for spoliation,”
id.
,both of those
defenses failed for reasons that had nothing to do with Rambus’s internal
documents. The Commission found that the draft SyncLink specification did not constitute priorart because it was not publicly available. Op. at 25-27. The Commission further found, underthe inequitable conduct doctrine, that the draft specification was immaterial because it was not
 prior art. Op. at 34. Given these determinations, Rambus’s document destruction could not have
been materially prejudicial.
See Micron Tech., Inc. v. Rambus Inc.
, 255 F.R.D. 135, 151 n.59(D. Del. 2009) (
 Micron
) (no prejudice to invalidity defenses because “prior art references (bydefinition) must be publicly available”);
 Ring Plus, Inc. v. Cingular Wireless, Inc.
, 614 F.3d1354, 1361 (Fed. Cir. 2
010) (“the materiality standard [for inequitable conduct] is an objectiveone”).
Second, the Commission then compounded its errors by conclusorily affirming
(Op. at 55) the “harsh sanction” of unenforceability without engaging in a rigorous analysis of “the degree of fault,” “the degree of prejudice,” and the availability of lesser sanctions.
 Micron II 
, 645 F.3d at 1328-29 (citation omitted). The Commission did not consider the fact that
Respondents’ supposedly prejudiced defenses contain essential prio
r art elements thatRespondents could not prove regardless of what Rambus did. Nor did the Commission giveadequate consideration to the fact that Rambus adopted an industry-standard, content-neutralpolicy under the advice of counsel years before the asserted Barth patents issued. TheCommission then rejected without explanation the lesser sanctions proposed by the ITC staff andRambus, even though
 Micron II 
 
requires “the least onerous sanction corresponding to the
willfulness of the destructive act and
the prejudice suffered by the victim,”
id.
at 1329 (citationomitted).As Rambus has explained at length, the objective legal standards governing
Micron’s defenses defeat any inference of material prejudice based on Rambus’s document
policy. And Rambus, i
n any event, preserved and produced the relevant documents for Micron’s
defenses, including all prior art.
See
D.I.
1130, Rambus’s Responsive Remand Br., Dec.
21,2011, at 12-17; D.I.
1124, Rambus’s Opening Remand Br., Nov.
9, 2011, at 9-25. While nosanction is warranted, terminating sanctions would be clearly inappropriate under the
 Micron II 
 standard. D.I. 1130 at 18-25; D.I. 1124 at 25-30.
2
The Commission found the asserted Barth claims anticipated and rendered obvious by otherprior art. Op. at 24-32.
Case 1:00-cv-00792-SLR Document 1147 Filed 08/24/12 Page 2 of 3 PageID #: 11692

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