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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 Facsímile: (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 Plaintiff RAMBUS INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION RAMBUS INC., Plaintiff, v. LSI CORPORATION, Defendant. RAMBUS INC., Plaintiff, v. STMICROELECTRONICS N.V.; STMICROELECTRONICS INC., Defendants. Case No. 3:10-cv-05446 RS RAMBUS INC.’S OPPOSITION TO DEFENDANTS’ MOTION TO LIMIT THE NUMBER OF ASSERTED CLAIMS Date: Time: Judge: December 20, 2012 1:30 p.m. Hon. Richard Seeborg

Case No. 3:10-cv-05449 RS

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TABLE OF CONTENTS Page INTRODUCTION .............................................................................................................. 1 BACKGROUND ................................................................................................................ 1 A. B. C. Rambus Previously Reduced the Number of Its Asserted Claims.......................... 1 Defendants Have Refused to Reveal Their Noninfringement Theories.................. 2 Defendants Have Refused to Narrow Their Hundreds of Prior Art References and Obviousness Combinations ........................................................... 3 Now That the Court Has Construed the Claims, There Is No Excuse for Defendants not to Reveal Their Noninfringement Theories and Limit Their Prior Art References................................................................................................ 4 Until Defendants Reveal Their Noninfringement Theories and Limit Their Prior Art References, It Is Appropriate to Proceed with Thirty-Five Claims ......... 6 Rambus Would Be Prejudiced By Being Forced to Further Unilaterally Reduce Its Asserted Claims .................................................................................... 9 It Would Be Premature to Address the Number of Claims for Trial Now ............. 9

ARGUMENT ...................................................................................................................... 4

CONCLUSION ................................................................................................................. 10

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I.

INTRODUCTION Earlier this year, in response to the Court’s direction, Rambus reduced the number of its

asserted claims by well more than half. The Court rejected Defendants’ arguments, the same arguments they now raise again, that Rambus should be required to further reduce the number of claims. Rambus has, however, proposed to go further—offering to reduce its asserted claims to 20, just as Defendants request, if Defendants first reduce their prior art references and obviousness combinations and reveal their noninfringement theories to enable Rambus to choose the most appropriate 20 claims on which to proceed at this time in light of the defenses Defendants intend to raise. In their motion, Defendants ignore Rambus’s offer, refuse to reduce their mass of over 100 prior art references and many times that number of obviousness combinations, and refuse to reveal their noninfringement theories. Streamlining the litigation should be a two-way street. Before Rambus further reduces the number of claims on which it will proceed, Defendants should reduce their prior art references and reveal their noninfringement theories, theories that, to date, they insist on keeping secret. Indeed, now that the Court has issued its Claim Construction Order, Defendants have no justification for not finally disclosing their noninfringement arguments and appropriately narrowing their invalidity contentions. Once Defendants reveal how they intend to attack the 35 claims currently asserted, Rambus can make an informed decision to proceed on certain claims and defer others. However, unless and until Defendants provide the information necessary to enable Rambus to evaluate its claims in light of the defenses that Defendants intend to raise, Rambus should be allowed to proceed on the current set of 35 asserted claims. II. BACKGROUND A. Rambus Previously Reduced the Number of Its Asserted Claims

On October 4, 2011, Rambus served its Disclosure of Asserted Claims and Infringement Contentions on Defendants, asserting the same 81 claims from the ten Farmwald/Horowitz patents-in-suit against each. Detre Decl., ¶ 2. At a Case Management Conference on January 12, 2012, the Court directed the parties to meet and confer after Defendants had served their Invalidity Contentions with a view to reducing the number of claims.
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Defendants served their Invalidity Contentions on March 30, 2012. Detre Decl., ¶¶ 9-10. Rambus worked diligently to reduce its claims despite the large number of prior art references and obviousness combinations listed by the Defendants, see Section II.C, infra, and on April 16, 2012, provided Defendants with a reduced list of 35 asserted claims.1 Id., ¶ 3. Defendants argued then, as they do now, that Rambus should reduce its claims to 20. The parties’ dispute regarding the appropriate number of asserted claims was briefed and argued in connection with the May 10, 2012, Case Management Conference. Joint Case Management Statement (“JCMS”), 5/3/12, LSI Dkt. # 92, at 6-22. Rambus argued, inter alia, that a further reduction in the number of asserted claims was not appropriate because Rambus would only “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.” JCMS at 12. The Court declined to require Rambus to further limit the number of its asserted claims at that time. Case Management Scheduling Order, 5/10/12, LSI Dkt. # 94, at 2. Since then the Court has construed the claims, but, as set forth below, Defendants have unjustifiably refused to disclose their noninfringement arguments and also have refused to focus their invalidity arguments. B. Defendants Have Refused to Reveal Their Noninfringement Theories

On July 8, 2011, Rambus served its first set of interrogatories on LSI and STMicro. Declaration of Peter A. Detre In Support of Rambus’s Opposition, ¶ 4. Interrogatory No. 7 asked Defendants to state the bases for the denials in their Answers that their products infringe the Farmwald/Horowitz patents. Id. In its objections, LSI stated that it would provide a response “once Rambus identifies the asserted claims and the LSI product(s) that allegedly infringe those claims, and the Court issues an order construing the disputed term(s) of any asserted claim of the Farmwald/Horowitz Patents.” Detre Decl., Ex. A (LSI’s Responses to Rambus’s First Set of Interrogatories, 10/3/11) Rambus selected 35 claims that it believed would cover the most significant infringement and validity issues in this litigation, but reserved the possibility of litigating the other claims at a later time if circumstances so required.
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at 12-13. Rambus served its Infringements Contentions on October 4, 2011, and the Court issued its Claim Construction Order on September 26, 2012. LSI has indicated that it will supplement its response to this interrogatory, but it still has not done so Id., ¶ 6. STMicro, for its part, objected to the interrogatory as premature because it was “more properly the subject of expert testimony.” Detre Decl., Ex. B (STMicro’s Response to Rambus’s First Set of Interrogatories, 10/3/11) at 10-11. It stated that it would respond to the interrogatory “by or before the time set forth in the [September 19, 2011] Scheduling Order,” although that scheduling order provides no dates for the disclosure of non-infringement theories, or expert reports for that matter. Id.; see Case Management Scheduling Order, 9/19/11, LSI Dkt. # 70. Subsequently, STMicro stated that it would provide a substantive response to this interrogatory “at a reasonable time following issuance of a claim construction order, “ but it has not done so to date. Detre Decl., ¶ 8. There is no justification for Defendants’ continued refusal to reveal their noninfringement theories. C. Defendants Have Refused to Narrow Their Hundreds of Prior Art References and Obviousness Combinations

On March 30, 2012, Defendants each served invalidity contentions. LSI’s contentions list 104 prior art references, while STMicro has listed 105. Detre Decl., ¶¶ 9-10 & Exs. E, F. (Although there is substantial overlap between the two lists, they are not identical.) With respect to each asserted claim, 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. Detre Decl., ¶¶ 11-12 & Exs. G, H. Thus, for example, for claim 1 of the ’997 patent, LSI lists 16 primary references and 49 secondary references, while STMicro lists 13 primary references and 46 secondary references (with overlap between the primary and secondary references). 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 Defendant has alleged well over 500 obviousness combinations with respect to this one claim alone.

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On October 22, 2012, in response to Defendants’ renewed request that Rambus reduce the number of its asserted claims to 20, Rambus made a proposal to Defendants. Rambus proposed that Defendants provide substantive responses to Rambus’s interrogatory asking for their noninfringement positions and narrow their defenses based on prior art to three alleged anticipatory references and three alleged obviousness combinations per asserted claim. Detre Decl., Ex. I. Rambus would then reduce its asserted claims to 20 as Defendants requested. Id. Defendants did not respond to Rambus’s proposal. Id., ¶ 13. Instead, two days later, they filed the instant motion, making no mention of the fact that Rambus had conditionally offered to reduce its asserted claims to 20. III. ARGUMENT A. Now That the Court Has Construed the Claims, There Is No Excuse for Defendants not to Reveal Their Noninfringement Theories and Limit Their Prior Art References

Now that the Court has construed the claims, Defendants have all the information that they need to formulate their noninfringement arguments and narrow the mass of prior art in their invalidity contentions. But Defendants have refused to do so. Instead, they hope to gain the upper hand in this litigation by forcing Rambus to further unilaterally reduce the number of asserted claims without information about the defenses Defendants intend to pursue. Rambus is prepared to further reduce the number of asserted claims, but should not be required to do so in an information vacuum. Defendants’ motion does not even mention their persistent refusal to reveal their noninfringement theories, much less make any attempt to justify that refusal while insisting that Rambus nevertheless further limit the number of its asserted claims. The motion does acknowledge the large number of prior art references that Defendants have asserted and attempts to excuse their refusal to narrow them on the specious ground that “the number of prior art references on which Defendants rely is directly driven by the number of asserted claims Rambus pursues.” Mot. at 7. This argument is disingenuous because the asserted prior art references are not spread out among the asserted claims; rather, Defendants have listed many of the same large set of references against multiple claims. Indeed, the primary and secondary references asserted
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by each Defendant against just two of Rambus’s asserted claims (claim 6 of the ’097 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 33 asserted claims. Detre Decl., Exs. G, H. In other words, even if Rambus were to limit its asserted claims to just these two, it would not result in any narrowing of Defendants’ unreasonable number of prior art references. Moreover, Rambus has proposed that Defendants limit their prior art references on a claim-by-claim basis: no more than three alleged anticipatory references and three obviousness combinations per claim. Detre Decl., Ex. I. This approach ties the number of prior art references to the number of asserted claims; the more asserted claims, the more total prior art references and obviousness combinations that may be alleged. Currently, however, the Defendants assert dozens of prior art references, and hundreds of obviousness combinations, per claim. Plainly, Defendants will not rely on this unreasonably large number of references and obviousness combinations in their expert reports, in dispositive motions, or at trial. Now that the Court has construed the claims, Defendants have all the information they need to identify what they believe is the strongest prior art on a claim-by-claim basis. While Defendants assert that Rambus should further limit the number of asserted claims to streamline the litigation, conserve time and resources, and narrow the issues, Mot. at 7-8, they refuse to take any steps of their own to achieve these goals. If Defendants truly wished to streamline the litigation, they would respond to Rambus’s interrogatory regarding their noninfringement theories and narrow their large collections of prior art references to the ones on which they actually intend to rely. This would allow Rambus to evaluate its claims in light of the defenses that Defendants intend to assert and to limit its asserted claims accordingly. That Defendants have refused to reveal their noninfringement theories or narrow their prior art references reveals that their motion is not truly directed at streamlining this litigation. Instead, Defendants seek to gain a strategic advantage by forcing Rambus to limit its claims while Defendants continue to hide the ball regarding the defenses that they intend to assert so as to insure that Rambus’s claim selection is an uninformed one.

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B.

Until Defendants Reveal Their Noninfringement Theories and Limit Their Prior Art References, It Is Appropriate to Proceed with Thirty-Five Claims

Defendants raise the same failed arguments that they made in the prior briefing on this issue regarding why, in their view, Rambus should be limited to 20 asserted claims at this time. Compare Mot. at 5-7 with JCMS at 17-19. But they have no convincing answer to the factors that Rambus listed in the May briefing justifying proceeding with 35 claims, see JCMS at 7-9: • The Farmwald/Horowitz patents-in-suit claim multiple distinct inventions designed to improve the speed and efficiency of data transfer between memory controllers and synchronous memory devices. Defendants complain that Rambus has identified only four distinct inventions: programmable latency, variable burst length, dual-edge clocking, and auto-precharge. Mot. at 6. But, as Rambus has made clear, these terms are simply short-hand for certain key features of Rambus’s claims; each claim is its own distinct invention. Moreover, each of these key features can be used in connection with either read or write operations and can be claimed in various combinations, factors that Defendants ignore. • Rambus has claimed its inventions both as method claims and as apparatus claims. Defendants have failed to explain why Rambus should not be entitled to proceed with both types of claims, each of which has its advantages and disadvantages. • Rambus has used different terminology to claim its inventions and some of those differences have given rise to different noninfringement and invalidity arguments on the part of defendants in prior litigation. Defendants argue that the use of different terminology does not justify additional asserted claims because, if certain asserted claims are “found invalid following expert discovery, Rambus can simply move its eggs from the rejected basket to a different basket that uses slightly different claim language.” Mot. at 6-7. But, of course, the situation Defendants describe could only occur if some claims
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are found invalid based on arguments that do not apply to other claims, even if Defendants insist that they are only “slightly different.” In that case, Rambus should be allowed to proceed on the surviving claims. As noted above, Defendants have raised over a hundred prior art references in their Invalidity Contentions. While Rambus does not believe that these prior 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. In fact, if there was significant redundancy in Rambus’s claims as Defendants assert, then it would entail minimal extra work for them to deal with 35 claims rather than 20—they could simply recycle the arguments that they make with respect to one claim in connection with substantially similar ones. Defendants’ eagerness to have Rambus reduce the number of asserted claims can only stem from their recognition that material differences among the asserted claims do exist. Defendants want Rambus to reduce the number of claims in the absence of full information about the defenses Defendants intend to pursue in the hope that Rambus will not choose the claims most likely to stand up to those defenses. In the prior briefing on this issue, Defendants identified 11 of Rambus’s asserted claims to illustrate the purported redundancy among those claims, but Rambus pointed out the significant differences that existed among those claims. See JCMS at 11-12. This time around, Defendants couch their arguments in generalities and do not even attempt to identify a single pair of Rambus’s asserted claims that are redundant. much less 15 claims that could be dispensed with in light of the remaining 20. Defendants are incorrect that limitation of claims to 10-20 is “routine[].” Mot. at 5. While Defendants are able to point to some cases where courts have limited the number of claims to less than 20 at or before claim construction, see Mot. at 5, JCMS at 15-16, Rambus has pointed
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to others where courts have allowed the patentee to proceed with many more than 35, see JCMS at 9-10. As in the prior briefing on this issue, Defendants rely heavily on Judge Whyte’s decision to limit Rambus to 25 claims in the Coordinated Actions. Mot. at 4-5. But, as Defendants acknowledge, in the Hynix I litigation, Judge Whyte allowed Rambus to proceed with 65 claims until just before trial. Id. at 4, n. 7.2 These cases prove nothing other than that the appropriate number of asserted claims is a case-specific inquiry. Here, Rambus has identified 35 claims with different limitations that are necessary to cover the full range of its inventions; Defendants, by contrast, can point to nothing to show that their arbitrary selection of 20 claims is an appropriate number. The only significant event that has occurred in this litigation since Defendants’ prior unsuccessful attempt to force Rambus to reduce the number of asserted claims to 20 is that the Court has construed the claims.3 But in order to evaluate its claims before making a further reduction, Rambus is entitled to know the arguments that Defendants intend to make based on that claim construction. Defendants make no convincing argument that Rambus should further reduce the number of its asserted claims before Defendants reveal any information about their defenses.

2

Defendants suggest that there was a change in law between Judge Whyte’s decision to allow Rambus to proceed with 65 claims in Hynix I in 2003 and his decision to limit Rambus to 25 claims in the Coordinated Actions in 2007. Mot. at 4, n.7. There is no support for this suggestion. Indeed, the Supreme Court, Ninth Circuit and Federal Circuit authority that Defendants themselves cite for the proposition that courts may impose limits on the number of asserted claims either predate 2003 or postdate 2007. Id. at 4. Moreover, all but one of the decisions that Rambus has cited in which courts allowed cases to proceed with many more than 35 claims postdate Judge Whyte’s 2007 decision. JCMS at 9-10.

Defendants attach a decision of the Board of Patent Appeals and Interferences rejecting certain claims of Rambus’s ’097 patent and suggest that the decision should assist Rambus in narrowing its claims. Mot. at 2. First, that decision is not final, because Rambus is appealing it to the Federal Circuit. Second, the decision has minimal relevance to this case, because claim 6 of the ’097, the only claim asserted from that patent in this litigation, was not among the claims rejected by the Board. See Cadkin Decl., Ex. 1. Indeed, claim 6 has been confirmed. Detre Decl., Ex. J (Right of Appeal Notice in ’097 patent reexamination) at 2.
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C.

Rambus Would Be Prejudiced By Being Forced to Further Unilaterally Reduce Its Asserted Claims

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, before Defendants have disclosed their noninfringement theories or narrowed their invalidity contentions, would prejudice Rambus because it would be forced to select claims before being able to properly analyze those claims in light of the defenses Defendants intend to assert. Defendants’ arguments that Rambus would not suffer prejudice from being required to further reduce its claims cannot withstand scrutiny. First, as they did in the prior briefing on this issue, Defendants point out that, according to Rambus’s infringement contentions, two of the asserted claims cover all the accused products. Mot. at 8. This observation is irrelevant because Rambus must choose claims that not only cover the accused products but that will most clearly and simply meet the noninfringement and invalidity arguments that Defendants intend to present to the jury. Second, Defendants assert that Rambus would not be prejudiced because Rambus could move to add or substitute claims after expert discovery and/or summary judgment proceedings. Mot. at 9. This assertion is remarkable given Defendants’ purported interest in managing this litigation efficiently, because adding or substituting claims at a later date would then require redoing the expert discovery, summary judgment proceedings and, potentially, reopening fact discovery that would have proceeded without those claims being at issue. The truly efficient way to proceed would be for Defendants to stop withholding information regarding their noninfringement contentions, and to appropriately narrow their prior art references and obviousness combinations. Rambus would then be in a position to reduce the number of its asserted claims, as Defendants request. D. It Would Be Premature to Address the Number of Claims for Trial Now

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In their Conclusion, Defendants request that, in addition to requiring Rambus to reduce the number of asserted claims to 20 at this time, the Court limit the number of claims to be tried to ten. Mot. at 10. Defendants make no attempt to justify that ten is the appropriate number of
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claims to be tried. Nor do they provide any explanation as to why that decision should be made now. In fact, there is no reason to decide on the number of claims to be tried at this time. After expert discovery and dispositive motions the parties can meet and confer regarding the appropriate number of claims and prior art references to be tried, and, if necessary, bring any disputes to the Court’s attention. See, e.g., Detre Decl., ¶ 15 & Ex. K (in the Coordinated Actions Judge Whyte approved Rambus’s election of 12 claims for trial and ordered defendants to identify and proceed with only two obviousness combinations per claim absent a showing of good cause). IV. CONCLUSION For the reasons stated herein, Rambus respectfully requests that the Court deny Defendants’ motion to limit the number of asserted claims. DATED: November 7, 2012 MUNGER, TOLLES & OLSON LLP By: /s/ Peter A. Detre Peter A. Detre Attorneys for Plaintiff RAMBUS INC.

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