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Rambus’s Response To Defendants STMicroelectronics N.V. And STMicroelectronics, Inc.’s Notice Of MotionAnd Motion For Leave To Supplement Preliminary Invalidity ContentionsCase No. 3:10cv5449 RS
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Pierre J. Hubert (pro hac vice)Craig N. Tolliver (pro hac vice)Trent E. Campione S.B. No. 200273Ramzi R. Khazen (pro hac vice)McKOOL SMITH HENNIGAN,A Professional Corporation300 W. 6th Street, Suite 1700Austin, Texas 78701Telephone: (512) 692-8700Facsimile: (512) 692-8744Email: phubert@mckoolsmith.com; ctolliver@mckoolsmith.comtcampione@mckoolsmith.com; rkhazen@mckoolsmith.comAttorneys for Plaintiff RAMBUS INC.
UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIASAN FRANCISCO DIVISION
RAMBUS INC.,Plaintiff,v.STMICROELECTRONICS N.V.;STMICROELECTRONICS INC.,Defendant.))))))))))))CASE NO. 3:10CV5449 RS
RAMBUS’S RESPONSE TODEFENDANTSSTMICROELECTRONICS N.V.AND STMICROELECTRONICS,INC.’S NOTICE OF MOTION ANDMOTION FOR LEAVE TOSUPPLEMENT PRELIMINARYINVALIDITY CONTENTIONSHEARING REQUESTEDDate: May 30, 2013Time: 1:30 p.m.Courtroom: 3Judge: Honorable Richard Seeborg
Case3:10-cv-05449-RS Document167 Filed05/09/13 Page1 of 9
 
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Rambus’s Response To Defendants STMicroelectronics N.V. And STMicroelectronics, Inc.’s Notice Of MotionAnd Motion For Leave To Supplement Preliminary Invalidity ContentionsCase No. 3:10cv5449 RS
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I.
 
INTRODUCTION
Defendants STMicroelectronics, Inc. and STMicroelectronics N.V. (“ST”) could haveasserted NeXT as § 102(g) art in March of 2012 or at any time over the past year, but waited until the day before discovery closed to file its Motion. Whether due to an extreme lack of diligence or calculated delay, ST cannot meet its heavy burden of proving diligence and  justifying its behavior. The reality is that ST had all of the information it needed to include its proposed theory in its original contentions more than a year ago, in March, 2012, when itasserted NeXT system specifications as prior art. Not only did LSI – the defendant in the onlyrelated case pending at that time – actually assert the § 102(g) theory that ST proposes now back in its original contentions, the contention was based on the same NeXT specifications ST knewand used in its own original March 2012 contentions. ST has no excuse for withholding itstheory for more than a year until discovery came to a close. ST made a deliberate choice not to join LSI in asserting § 102(g) prior invention and maintained that choice for the entire year thatfollowed. As a result, Rambus misallocated its resources over the course of discovery to thevoluminous sets of invalidity theories ST had actually advanced in its contentions. ST should not be rewarded for its delay and misdirection.Even setting aside ST’s initial decision not to disclose its theory in March 2012, it is ST’s burden to prove that it could not have pursued or advanced its theory at any time in the 13months that followed. ST provides no credible explanations. Contrary to ST’s suggestions, thewitnesses that supposedly provided ST with “new” information, Bruce Webster and KevinGrundy, did not surface recently. They are the named author and technical supervisor on the NeXT documents (respectively) ST had previously asserted, so ST could have found them at anytime. Remarkably, ST did not even need to make this small effort. LSI actually contacted Messrs. Webster and Grundy in 2012 and referred them to ST. In fact, papers ST filed with theCourt in January 2013 reveal that ST not only knew of these witnesses, but also knew all of theinformation that it now
claims
to have needed, but still withheld its contentions.
Case3:10-cv-05449-RS Document167 Filed05/09/13 Page2 of 9
 
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Case No. 3:10cv5447 RS
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In addition, rather than to attempt to ameliorate the prejudice it has caused, ST has used its own delay at every turn to gain a further unfair advantage and make what little discoveryRambus has been afforded as onerous as possible (
see, e.g.
, §§ II.1, II.3 and FN. 1, below).
1
And now that discovery has come to a close, ST is attempting to open the floodgates of informationon the NeXTBus chip from the witnesses to which it cites, both of whom are represented by ST’sown law firm in this case. ST’s year-long delay and subsequent attempts to leverage that delayare the quintessential abuses that timely invalidity contentions are designed to prevent. Rambusrespectfully submits that ST’s Motion should be denied accordingly.
II.
 
ARGUMENT
ST’s Motion is unprecedented. ST is unable to cite a single case where invaliditycontentions were allowed to be amended this late in the case – even where the movant was ableto prove diligence, which is not the case here. ST proposes a four-factor test for showing good cause based on
Yodlee, Inc. v. CashEdge, Inc.
, 2007 WL 1454259, *2-3 (N.D. Cal. May 17,2007). In fact,
Yodlee
proves only how egregious ST’s actions have been in contrast to a diligentamendment, as exhibited in that case. As an initial matter, the
Yodlee
case involved: (i) acompletely new prior art reference that was (ii) recently found after continuous and diligentsearching (iii) in a notoriously difficult subject area to search for prior art, and (iv) disclosed immediately when found and (v) proposed 
months
before the discovery cutoff.
Yodlee
, 2007 WL1454259, at *2-3 (noting, among other factors, that prejudice is minimized because “there isample time left to conduct discovery.”). None of that is true here.Further, the
Yodlee
court notes that each of the four considerations ST advances weighsheavily in favor of the movant. ST, on the other hand, does not address two out of the four 
1
For example, rather than make deposing the new witnesses as efficient as possible, ST forced Rambus to track down and subpoena Kevin Grundy at his residence. Rambus asked STrepeatedly whether Mr. Grundy was represented and if ST could accept service on his behalf.
See, e.g.
, Ex. A to the Declaration of Ramzi Khazen in Support of Rambus’s Response to ST’sMotion for Leave to Supplement Preliminary Invalidity Contentions (hereinafter “KhazenDecl.”). Knowing that time was running out, ST refused to answer. ST also refused to statewhere Mr. Grundy could be located and actually failed to provide this information in the initialdisclosures even though it was known to ST’s lawyers. Rambus came to find out after trackingdown and serving Mr. Grundy at his residence that he had been represented by ST’s lawyers,and none of this additional effort was necessary.
Case3:10-cv-05449-RS Document167 Filed05/09/13 Page3 of 9

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