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NEEL CHATTERJEE (SBN 173985) nchatterjee@orrick.com JESSICA PERS (SBN 77740) jpers@orrick.com KAREN JOHNSON-McKEWAN (SBN 121570) kjohnson-mckewan@orrick.com CATHERINE KROW (SBN 208412 ) ckrow@orrick.com JUSTIN M. LICHTERMAN (SBN 225734) jlichterman@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105-2669 Telephone: (415) 773-5700 Facsimile: (415) 773-5759 Attorneys for Defendant NVIDIA CORPORATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

RAMBUS INC., Plaintiff, v. NVIDIA CORPORATION, Defendant.

Case Nos. 08-CV-3343-SI DEFENDANT NVIDIA CORPORATION’S RESPONSE TO RAMBUS INC.’S FIRST AMENDED COMPLAINT, AND COUNTERCLAIMS

RESPONSE TO FIRST AMENDED COMPLAINT 08-CV-3343 (JCS)

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Defendant NVIDIA Corporation (“NVIDIA”) hereby submits its Answer including affirmative defenses, and counterclaims to the First Amended Complaint for Patent Infringement and Jury Demand (“Complaint”) of plaintiff Rambus Inc. (“Rambus”) as follows: The Parties 1. NVIDIA lacks knowledge or information sufficient to form a belief regarding the

truth of the allegations in paragraph 1 of the Complaint and therefore denies those allegations. 2. NVIDIA admits that it is a Delaware Corporation with its headquarters located at

2701 San Tomas Expressway, Santa Clara, California, 95050. NVIDIA admits that it transacts business from its headquarters, which are located in the Northern District of California. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of the remaining allegations in paragraph 2 of the Complaint and therefore denies those allegations. 3. NVIDIA lacks knowledge or information sufficient to form a belief regarding the

truth of the allegations in paragraph 3 of the Complaint and therefore denies those allegations. Nature of the Action 4. 5. NVIDIA admits that the Complaint alleges patent infringement. NVIDIA denies plaintiff’s allegations in paragraph 5 of the Complaint. Jurisdiction and Venue 6. NVIDIA admits that the Complaint purports to bring this action under the patent

laws of the United States and that this Court has subject matter jurisdiction over causes of action related to the patent laws of the United States, Title 35 of the United States Code. NVIDIA, however, denies the merits of the claims asserted against it. 7. NVIDIA will not contest personal jurisdiction regarding the Complaint of

August 25, 2008. NVIDIA denies the remaining allegations in paragraph 7. 8. NVIDIA admits that venue is proper in this District pursuant to 28 U.S.C.

§§ 1391(b), (c) and 1400 (b), but reserves the right to transfer to a more convenient venue, and denies having committed any wrongful acts upon which venue is allegedly based. Intradistrict Assignment 9. This allegation is not a factual or legal allegation to which an admission or denial -1RESPONSE TO FIRST AMENDED COMPLAINT 08-CV-3343 (JCS)

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is required. To the extent this paragraph makes any factual or legal allegations, they are denied. Factual Background 10. NVIDIA admits that Rambus enters into licenses related to technology associated

with computers, consumer electronics and network systems. NVIDIA admits that at least some of the licenses purport to involve patents. NVIDIA denies the remaining allegations in paragraph 10. 11. NVIDIA admits that it has made, used, sold, imported and/or offered for sale,

and/or continues to make, use, sell, import and/or offer for sale certain products under the “GEForce,” “Quadro,” “nForce,” “Tesla,” and/or “GoForce” product names. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of the remaining allegations in paragraph 11 of the Complaint and therefore denies those allegations. 12. NVIDIA admits that U.S. Patent No. 7,209,997 (“the ‘997 Patent”), entitled

“Controller Device and Method for Operating Same,” states on its face that it was issued on April 24, 2007. NVIDIA admits that a copy of the ‘997 Patent is attached to the Complaint as Exhibit A. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 12 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 12 of the Complaint. 13. NVIDIA admits that U.S. Patent No. 6,751,696 (“the ‘696 Patent”), entitled

“Memory Device Having a Programmable Register,” states on its face that it was issued on June 15, 2004. NVIDIA admits that a copy of the ‘696 Patent is attached to the Complaint as Exhibit B. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 13 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 13 of the Complaint. 14. NVIDIA admits that U.S. Patent No. 6,564,281 (“the ‘281 Patent”), entitled

“Synchronous Memory Device Having Automatic Precharge,” states on its face that it was issued on May 13, 2003. NVIDIA admits that a copy of the ‘281 Patent is attached to the Complaint as -2RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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Exhibit C. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 14 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 14 of the Complaint. 15. NVIDIA admits that U.S. Patent No. 6,496,897 (“the ‘897 Patent”), entitled

“Semiconductor Memory Device Which Receives Write Masking Information,” states on its face that it was issued on December 17, 2002. NVIDIA admits that a copy of the ‘897 Patent is attached to the Complaint as Exhibit D. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 15 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 15 of the Complaint. 16. NVIDIA admits that U.S. Patent No. 6,493,789 (“the ‘789 Patent”), entitled

“Memory Device Which Receives Write Masking and Automatic Precharge Information,” states on its face that it was issued on December 10, 2002. NVIDIA admits that a copy of the ‘789 Patent is attached to the Complaint as Exhibit E. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 16 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 16 of the Complaint. 17. NVIDIA admits that U.S. Patent No. 6,470,405 (“the ‘405 Patent”), entitled

“Protocol for Communication with Dynamic Memory,” states on its face that it was issued on October 22, 2007. NVIDIA admits that a copy of the ‘405 Patent is attached to the Complaint as Exhibit F. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 17 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 17 of the Complaint. 18. NVIDIA admits that U.S. Patent No. 7,287,109 (“the ‘109 Patent”), entitled

“Method of Controlling a Memory Device Having a Memory Core,” states on its face that it was issued on October 23, 2007. NVIDIA admits that a copy of the ‘109 Patent is attached to the -3RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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Complaint as Exhibit G. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 18 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 18 of the Complaint. 19. NVIDIA admits that U.S. Patent No. 7,330,952 (“the ‘952 Patent”), entitled

“Integrated Circuit Memory Device Having Delayed Write Timing Based on Read Response Time,” states on its face that it was issued on February 12, 2008. NVIDIA admits that a copy of the ‘952 Patent is attached to the Complaint as Exhibit H. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 19 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 19 of the Complaint. 20. NVIDIA admits that U.S. Patent No. 7,330,953 (“the ‘953 Patent”), entitled

“Memory System Having Delayed Write Timing,” states on its face that it was issued on February 12, 2008. NVIDIA admits that a copy of the ‘953 Patent is attached to the Complaint as Exhibit I. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 20 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 20 of the Complaint. 21. NVIDIA admits that U.S. Patent No. 7,360,050 (“the ‘050 Patent”), entitled

“Integrated Circuit Memory Device Having Delayed Write Capability,” states on its face that it was issued on April 15, 2008. NVIDIA admits that a copy of the ‘050 Patent is attached to the Complaint as Exhibit J. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 21 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 21 of the Complaint. 22. NVIDIA admits that U.S. Patent No. 7,287,119 (“the ‘119 Patent”), entitled

“Integrated Circuit Memory Device with Delayed Write Command Processing,” states on its face that it was issued on October 23, 2007. NVIDIA admits that a copy of the ‘119 Patent is attached -4RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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to the Complaint as Exhibit K. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 22 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 22 of the Complaint. 23. NVIDIA admits that U.S. Patent No. 7,210,016 (“the ‘016 Patent”), entitled

“Method, System and Memory Controller Utilizing Adjustable Write Data Delay Settings,” states on its face that it was issued on April 24, 2007. NVIDIA admits that a copy of the ‘016 Patent is attached to the Complaint as Exhibit L. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 23 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder plaintiff’s allegations in paragraph 23 of the Complaint. 24. NVIDIA admits that U.S. Patent No. 7,177,998 (“the ‘998 Patent”), entitled

“Method, System and Memory Controller Utilizing Adjustable Read Data Delay Settings,” states on its face that it was issued on April 24, 2007. NVIDIA admits that a copy of the ‘998 Patent is attached to the Complaint as Exhibit M. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 24 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 24 of the Complaint. 25. NVIDIA admits that U.S. Patent No. 6,591,353 (“the ‘353 Patent”), entitled

“Protocol for Communication with Dynamic Memory,” states on its face that it was issued on July 8, 2003. NVIDIA admits that a copy of the ‘353 Patent is attached to the Complaint as Exhibit N. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 25 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 25 of the Complaint. 26. NVIDIA admits that U.S. Patent No. 6,260,097 (“the ‘097 Patent”), entitled

“Method and Apparatus for Controlling a Synchronous Memory Device,” states on its face that it was issued on July 10, 2001. NVIDIA admits that a copy of the ‘097 Patent is attached to the -5RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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Complaint as Exhibit O. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 26 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 26 of the Complaint. 27. NVIDIA admits that U.S. Patent No. 6,304,937 (“the ‘937 Patent”), entitled

“Method of Operation of a Memory Controller,” states on its face that it was issued on October 16, 2001. NVIDIA admits that a copy of the ‘937 Patent is attached to the Complaint as Exhibit P. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 27 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 27 of the Complaint. 28. NVIDIA admits that U.S. Patent No. 6,715,020 (“the ‘020 Patent”), entitled

“Synchronous Integrated Circuit Device,” states on its face that it was issued on March 30, 2004. NVIDIA admits that a copy of the ‘020 Patent is attached to the Complaint as Exhibit Q. NVIDIA lacks knowledge or information sufficient to form a belief regarding the truth of plaintiff’s assertions concerning ownership of the patent in paragraph 28 of the Complaint and therefore denies those allegations. NVIDIA denies the remainder of plaintiff’s allegations in paragraph 28 of the Complaint. 29. NVIDIA lacks knowledge or information sufficient to form a belief regarding the

truth of the allegations in paragraph 29 of the Complaint and therefore denies those allegations. 30. 31. 32. NVIDIA denies plaintiff’s allegations in paragraph 30 of the Complaint. NVIDIA denies plaintiff’s allegations in paragraph 31 of the Complaint. NVIDIA denies plaintiff’s allegations in paragraph 32 of the Complaint. Count I (Patent Infringement of U.S. Patent No. 7,209,997 Under 35 U.S.C. § 271, et seq.) 33. With respect to the allegations contained in paragraph 33, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 32 as if fully set forth herein. 34. NVIDIA denies the allegations of paragraph 34. -6RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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Count II (Patent Infringement of U.S. Patent No. 6,751,696 Under 35 U.S.C. § 271, et seq.) 35. With respect to the allegations contained in paragraph 35, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 34 as if fully set forth herein. 36. NVIDIA denies the allegations of paragraph 36. Count III (Patent Infringement of U.S. Patent No. 6,564,281 Under 35 U.S.C. § 271, et seq.) 37. With respect to the allegations contained in paragraph 37, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 36 as if fully set forth herein. 38. NVIDIA denies the allegations of paragraph 38. Count IV (Patent Infringement of U.S. Patent No. 6,496,897 Under 35 U.S.C. § 271, et seq.) 39. With respect to the allegations contained in paragraph 39, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 38 as if fully set forth herein. 40. NVIDIA denies the allegations of paragraph 40. Count V (Patent Infringement of U.S. Patent No. 6,493,789 Under 35 U.S.C. § 271, et seq.) 41. With respect to the allegations contained in paragraph 41, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 40 as if fully set forth herein. 42. NVIDIA denies the allegations of paragraph 42. Count VI (Patent Infringement of U.S. Patent No. 6,470,405 Under 35 U.S.C. § 271, et seq.) 43. With respect to the allegations contained in paragraph 43, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 42 as if fully set forth herein. 44. NVIDIA denies the allegations of paragraph 44. Count VII (Patent Infringement of U.S. Patent No. 7,287,109 Under 35 U.S.C. § 271, et seq.) 45. With respect to the allegations contained in paragraph 45, NVIDIA repeats and -7RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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incorporates its responses to paragraphs 1 through 44 as if fully set forth herein. 46. NVIDIA denies the allegations of paragraph 46. Count VIII (Patent Infringement of U.S. Patent No. 7,330,952 Under 35 U.S.C. § 271, et seq.) 47. With respect to the allegations contained in paragraph 47, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 46 as if fully set forth herein. 48. NVIDIA denies the allegations of paragraph 48. Count IX (Patent Infringement of U.S. Patent No. 7,330,953 Under 35 U.S.C. § 271, et seq.) 49. With respect to the allegations contained in paragraph 49, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 48 as if fully set forth herein. 50. NVIDIA denies the allegations of paragraph 50. NVIDIA lacks knowledge 50 of

the Complaint and therefore denies those allegations. Count X (Patent Infringement of U.S. Patent No. 7,360,050 Under 35 U.S.C. § 271, et seq.) 51. With respect to the allegations contained in paragraph 51, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 50 as if fully set forth herein. 52. NVIDIA denies the allegations of paragraph 52. Count XI (Patent Infringement of U.S. Patent No. 7,287,199 Under 35 U.S.C. § 271, et seq.) 53. With respect to the allegations contained in paragraph 53, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 52 as if fully set forth herein. 54. NVIDIA denies the allegations of paragraph 54. Count XII (Patent Infringement of U.S. Patent No. 7,210,016 Under 35 U.S.C. § 271, et seq.) 55. With respect to the allegations contained in paragraph 55, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 54 as if fully set forth herein. 56. NVIDIA denies the allegations of paragraph 56. -8RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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Count XIII (Patent Infringement of U.S. Patent No. 7,177,998 Under 35 U.S.C. § 271, et seq.) 57. With respect to the allegations contained in paragraph 57, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 56 as if fully set forth herein. 58. NVIDIA denies the allegations of paragraph 58. Count XIV (Patent Infringement of U.S. Patent No. 6,591,353 Under 35 U.S.C. § 271, et seq.) 59. With respect to the allegations contained in paragraph 59, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 58 as if fully set forth herein. 60. NVIDIA denies the allegations of paragraph 60. Count XV (Patent Infringement of U.S. Patent No. 6,260,097 Under 35 U.S.C. § 271, et seq.) 61. With respect to the allegations contained in paragraph 61, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 60 as if fully set forth herein. 62. NVIDIA denies the allegations of paragraph 62. Count XVI (Patent Infringement of U.S. Patent No. 6,496,897 Under 35 U.S.C. § 271, et seq.) 63. With respect to the allegations contained in paragraph 63, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 62 as if fully set forth herein. 64. NVIDIA denies the allegations of paragraph 64. Count XVII (Patent Infringement of U.S. Patent No. 6,715,020 Under 35 U.S.C. § 271, et seq.) 65. With respect to the allegations contained in paragraph 65, NVIDIA repeats and

incorporates its responses to paragraphs 1 through 64 as if fully set forth herein. 66. NVIDIA denies the allegations of paragraph 66. Plaintiff’s Prayer For Relief NVIDIA denies that plaintiff is entitled to any relief whatsoever, let alone the relief requested by plaintiff in its Complaint, and therefore denies all allegations and relief requested in -9RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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plaintiff’s Prayer For Relief. NVIDIA’S AFFIRMATIVE DEFENSES First Affirmative Defense (Lack of Standing) 1. NVIDIA is informed and believes and thereupon alleges that Rambus is not the

rightful assignee or the legal owner of certain patents asserted by Rambus against NVIDIA in its Amended Complaint (the ‘097 patent, the ‘937 patent, the ‘281 patent, the ‘020 patent, the ‘696 patent, and the ‘997 patent) and that Rambus therefore lacks standing to assert infringement of any of these patents. Second Affirmative Defense (Non-Infringement) 2. NVIDIA has not infringed and is not now infringing directly or indirectly, and has

not induced or contributed to and is not now inducing or contributing to the infringement of, any claim of the patents-in-suit, either literally or by application of the doctrine of equivalents. Third Affirmative Defense (Invalidity) 3. NVIDIA alleges, based upon information presently available, and without

prejudice to further amendment upon information learned during discovery, that one or more of the claims of one or more of the patents-in-suit are invalid because they fail to meet one or more of the “conditions of patentability” specified in Title 35 of the United States Code, including but not limited to 35 U.S.C. §§ 101, 102, 103 and/or 112, because one or more of the claims lack definiteness, because the alleged inventions thereof lack utility and one or more of the claims are not enabled, because one or more claims are invalid inasmuch as they are taught by, suggested by, anticipated by, and/or obvious in view of the prior art, and/or are unsupported by the written description of the invention, and because no claim of the patents can be validly construed to cover any product of either Defendant. ///

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Fourth Affirmative Defense (Implied License) 4. NVIDIA has an implied license to all patent rights associated with the patents-in-

suit based on Rambus’s membership in JEDEC and conduct in connection therewith. Fifth Affirmative Defense (Prosecution History Estoppel) 5. NVIDIA alleges that by reason of the proceedings in the United States Patent and

Trademark Office (“PTO”) during the prosecution of the applications for the patents-in-suit, specifically the admissions, representations and amendments made on behalf of the applicant for such patents to the PTO, Rambus is precluded or stopped from claiming an interpretation, scope or extending the coverage of the claims of the patents-in-suit under the doctrine of equivalents to cover or include any product made, used, sold, offered for sale, or imported in to the United States by NVIDIA. Sixth Affirmative Defense (Unenforceability – Unclean Hands) 6. unclean hands. 7. Rambus alleges that certain SDRAM related products that adhere to standards Rambus’s claims for relief are barred, in whole or in part, by the doctrine of

developed by a standard-setting organization known as the Joint Electronic Design Engineering Counsel (“JEDEC”) infringe one or more claims of the patents-in-suit. Rambus was a member of (or otherwise was a participant in) JEDEC from at least 1991 to until at least 1996. 8. Various of the patents-in-suit, including the ’405, ’353, ’109, ’119, ’050, ’952, and

’953 Patents, claim earliest effective filing dates in either 1995 or 1997. The ’016 and ’998 Patents claim earliest effective filing dates in 2001. 9. As early as 1996, Rambus was considering industry-wide adoption of its DRAM

technology (referred to as Rambus DRAM, or “RDRAM”). 10. In an aggressive approach to enforce its intellectual property against, for example,

entities considering or using competing DRAM technologies (e.g., SDRAM), Rambus (i) - 11 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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endeavored to create a “patent minefield” by extending claims in its patents to cover JEDECcompliant products and (ii) as of early 1998, anticipated and commenced plans for litigation in order to enforce its intellectual property. 11. Based on Rambus’s goals and under the circumstances Rambus found itself in

regarding the use of competing memory technologies by potential licensees, it was at least reasonably foreseeable and at most inevitable that litigation would take place between Rambus and one or more of the potential licensees. 12. After ligation was reasonably foreseeable, the Rambus litigation strategy

implemented in 1998 set forth a “document retention policy”, under which millions of pages of documents were destroyed during so-called “shred days”, which, upon information and belief, occurred in at least 1998, 1999, and 2000. 13. The destroyed documents included, for example, documents from Rambus’s patent

files, documents connected with licensing negotiations between Rambus and third parties regarding Rambus’s patents and/or DRAM technology, documents connected with Rambus’s involvement with and/or participation in JEDEC, and documents questioning the patentability of Rambus’s purported inventions. 14. Various courts that have adjudicated litigation involving Rambus and its memory

patents have found that Rambus engaged in the bad faith spoliation of evidence. Rambus’s mass spoliation has been recognized in the Micron Technology, Inc. v. Rambus, Inc., 225 F.R.D. 135, 144 (D. Del. 2009), Rambus, Inc. v. Infineon Technologies AG, et al., 222 F.R.D. 280, 290 (E.D. Va. 2004), and in the United States International Trade Commission’s Initial Determination on Violation of Section 337 and Recommended Determination on Remedy and Bond, issued January 22, 2010 (a copy of the full opinion is attached to this Answer as Exhibit A) actions. This spoliation was conducted by Rambus in bad faith. 15. Upon information and belief, the adjudged mass spoliation of evidence by Rambus

included the destruction of non-public documents that would have been relevant and/or material to NVIDIA’s defense in this investigation, including at least defenses asserting: invalidity, unenforceability due to patent misuse, estoppel and violation of antitrust and unfair competition - 12 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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laws and equitable estoppels. 16. Moreover, upon information and belief, due to the relatedness among the timing of

the patents-in-suit, the accused technologies in this investigation and other Rambus litigations in which spoliation has been found, and the period of time associated with Rambus’s destruction of documents, such as those documents connected with Rambus’s prosecution of patents attempting to cover the JEDEC standard, Rambus’s SDRAM licensing negotiations, and the relationship of Rambus’s patent applications and pending claims to JEDEC standards, Rambus has destroyed documents that would have been relevant to the validity, enforceability, and/or interpretation of the patents-in-suit. Seventh Affirmative Defense (Intervening Rights) 17. NVIDIA alleges that it has obtained intervening rights to continue the use of, to

offer to sell, or to sell to others to be used, offered for sale, or sold, or import, any and all products alleged to infringe the patents-in-suit, and that Rambus’s damages are barred and/or limited pursuant to 35. U.S.C. §§ 252 and 307. Eighth Affirmative Defense (Patent Exhaustion and First Sale Doctrine) 18. Rambus’s claims for relief are barred, in whole or in part, by the doctrines of

patent exhaustion and/or the first sale doctrine. Ninth Affirmative Defense (Patent Misuse – Double Royalty) 19. On information and belief, Rambus’s licensing program for accused products is a

misuse of the patent system and attempts to secure double royalties and extend the physical and temporal scope of the patent grant with anticompetitive effect. 20. On information and belief, the semiconductor memory devices within accused

products were manufactured under a license form Rambus. 21. On information and belief, the semiconductor memory devices license grants the

manufacturers of the memory device in the accused products the right to sell those memory
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devices under the patents-in-suit. 22. On information and belief, Rambus’s licensing program for the patents-in-suit

requires a royalty to be paid for the patents-in-suit that include one or more already licensed semiconductor memory devices. 23. On information and belief, Rambus’s licensing program for the patents-in-suit thus

attempts to levy a second royalty on the exhausted semiconductor memory devices within the accused semiconductor memory products. Tenth Affirmative Defense (Prosecution Laches) 24. On information and belief, Rambus’s claims for relief are barred, in whole or in

part, by the doctrine of prosecution laches. 25. Rambus also unreasonably and inexcusably prolonged the prosecution process of

the patents-in-suit and their families and, as a result, NVIDIA and others have been materially prejudiced. The asserted claims of the patents are unenforceable because they were granted to the patentee(s) after an unreasonable and unexplained delay in prosecution, which delay prejudiced NVIDIA and others. 26. Rambus and its predecessors-in-interest made material misrepresentations about,

intentionally concealed and failed to disclose its claimed rights in the patents-in-suit, and in particular that the patents read on interfacing technology standards, to among others its licensees and potential licensees, for the specific purpose of allowing and facilitating the development of intervening technology and products that it could claim infringed. 27. During the substantial period of delay in between the first filing and the most

recent filings, extending for periods of 17 years (Farmwald patents), more than 13 years (Barth I patents), more than 10 years (Barth II patents), and more than six years (Ware patents), substantial intervening rights of respondents and others have arisen that are substantially prejudiced by Rambus’s misuse of the patent system. In particular, the industry group JEDEC developed and promulgated several specifications of industry standards relating to memory
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interfacing technology. Rambus intentionally sought to claim rights that read on these standards. Additionally, during the intervening period respondents and others developed substantial technology that complies with and is reliant on these standards. 28. During the period of delay, NVIDIA and others invested substantially in,

independently developed, and used the technology later claimed by Rambus in the continuation applications. 29. suit. Eleventh Affirmative Defense (Limitation on Damages and Costs) 30. Rambus’s claim for relief and prayer for damages are limited by 35 U.S.C. §§ 286 Rambus’s abuse of the patent system forecloses its enforcement of the patents-in-

and 287 and Rambus’s recovery of costs is limited under 35 U.S.C. § 288. Twelfth Affirmative Defense (Waiver and Estoppel) 31. On information and belief, Rambus has waived all rights, if any, and is estopped

from enforcing any of the patents-in-suit against NVIDIA products due to Rambus’s knowledge of NVIDIA’s actions that are alleged to infringe one or more of the patents-in-suit, due further to the fact that Rambus misleadingly communicated to NVIDIA and others in the industry by words, conduct or silence that activities like those of NVIDIA (including NVIDIA’s own activities) are not infringing, due to NVIDIA’s reasonable reliance upon such communications (including NVIDIA’s continuing to maintain its activities that are now alleged to infringe the one or more of the patents-in-suit), and by virtue of the fact that insofar as NVIDIA reasonably relied upon Rambus’s communications, NVIDIA now would be materially harmed if Rambus were to be permitted to assert any claim against NVIDIA inconsistent with Rambus’s previous conduct. Thirteenth Affirmative Defense (Laches) 32. On information and belief, Rambus’s claims under the patents-in-suit are barred by

the doctrine of laches due to Rambus’s knowledge of NVIDIA’s allegedly infringing actions and - 15 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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Rambus’s inexcusable failure to pursue its claims of infringement diligently and timely, and by virtue of the fact that NVIDIA has been both economically and materially prejudiced and/or injured from Rambus’s inexcusable lack of diligence, including (but not limited to) through the loss of records of third parties pertaining to the prior art, and the unreliability of the memories of witnesses who otherwise possess knowledge of the technology at issue. Fourteenth Affirmative Defense (License) 33. On information and belief, Rambus or previous owners of the patents have

engaged in actions that have expressly or impliedly authorized NVIDIA to engage in the actions accused as infringing. Fifteenth Affirmative Defense (Failure to Mark) 34. Rambus is precluded from recovering, in whole or in part, the damages sought by

reason of its failure to mark, and/or to require its licensees to mark products that practice the patents-in-suit as limited by 35 U.S.C. § 287. Sixteenth Affirmative Defense (Unenforceability) 35. Each of the patents-in-suit is unenforceable due to Rambus’s misuse of these

patents, double royalty, prosecution laches and unclean hands. NVIDIA repeats and incorporates by reference its affirmative defenses of prosecution laches, double royalty, and unclean hands as if fully set forth herein. 36. Rambus’s patents are unenforceable because, as detailed above, Rambus has

engaged in patent misuse by attempting to expand the physical and temporal scope of its patent grant with anticompetitive effect. 37. On information and belief, Rambus has engaged in patent misuse by, among other

things, (1) employing an abusive patent strategy to cover JEDEC and other industry standards to exclude rival technologies and subject industry participants to patent claims; (2) subverting JEDEC and misusing information learned at JEDEC meetings to file undisclosed continuation - 16 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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patents, thereby concealing its patent claims until the industry was locked-in to the JEDEC standard believing it was not subject to patent claims; (3) misusing the patent continuation process; (4) destroying evidence in order to disadvantage its adversaries in patent infringement lawsuits in order to acquire and/or maintain its monopoly; (5) improperly expanding the scope of its patents in order to recover improper monopoly-level royalties, including double royalties; (6) violating its commitments to the EC in order to expand and entrench its monopoly power; and (7) employing a coercive “license or litigate” strategy against users of the JEDEC and other industry standards to license packages of Rambus patents and (8) refusing to withdraw this patent infringement litigation in bad faith and with the knowledge that Rambus’s patents are invalid and/or unenforceable. 38. dissipated. 39. The patents-in-suit also are unenforceable, in whole or in part, under the unclean None of the misuse of the Rambus patents has been purged and its effects have not

hands doctrine. After deciding to embark on its abusive use of the patent continuation application process and an aggressive litigation strategy to acquire and maintain its monopoly, Rambus destroyed millions of pages of documents from its patents files, connected to its patents and licensing negotiations, relating to its involvement with JEDEC, and concerning the patentability, validity, and enforceability of the patents-in-suit. Rambus implemented these policies in bad faith and in anticipation of litigation concerning the patents-in-suit against NVIDIA and others. Several courts have found that Rambus’s conduct constitutes spoliation of evidence. 40. Rambus’s mass spoliation of evidence destroyed nonpublic documents that would

have been relevant and/or material to NVIDIA’s defense of this action, including at least the defenses of invalidity, as well as unenforceability due to patent misuse and violation of antitrust and unfair competition laws. Rambus’s mass spoliation of evidence was recognized in both Rambus, Inc. v. Infineon Technologies AG, 155 F. Supp. 2d 668, 680-83 (E.D. Va. 2001) and Micron Technology, Inc. v. Rambus, Inc., -- F.3d – (Fed. Cir. 2011), 2011 WL 1815975, at *6-12 (Fed. Cir. May 13, 2011), and NVIDIA incorporates the findings in Rambus v. Infineon and Micron v. Rambus by reference. - 17 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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41. patents-in-suit.

Rambus’s bad faith spoliation of evidence forecloses its enforcement of the

Seventeenth Affirmative Defense (Collateral Estoppel) 42. On information and belief, Rambus is collaterally estopped from relitigating

previously adjudicated issues, including, but not limited to, relitigating adjudicated issues related to spoliation, unclean hands and/or unenforceability. Eighteenth Affirmative Defense (Reservation of Affirmative Defenses) 43. NVIDIA reserves all affirmative defenses under Rule 8(c) of the Federal Rules of

Civil Procedure, the Patent Laws of the United States and any other defenses, at law or in equity that may now exist or in the future be available based on discovery and further factual investigation in this suit. Demand for Jury Trial NVIDIA hereby demands a trial by jury on all issues so triable. NVIDIA’s Prayer for Relief Wherefore, NVIDIA respectfully requests that this Court enter judgment in its favor that: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) NVIDIA is not infringing and has not infringed the ‘997 patent; NVIDIA is not infringing and has not infringed the ‘696 patent; NVIDIA is not infringing and has not infringed the ‘281 patent; NVIDIA is not infringing and has not infringed the ‘897 patent; NVIDIA is not infringing and has not infringed the ‘789 patent; NVIDIA is not infringing and has not infringed the ‘405 patent; NVIDIA is not infringing and has not infringed the ‘109 patent; NVIDIA is not infringing and has not infringed the ‘952 patent; NVIDIA is not infringing and has not infringed the ‘953 patent; NVIDIA is not infringing and has not infringed the ‘050 patent; NVIDIA is not infringing and has not infringed the ‘119 patent; - 18 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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(l) (m) (n) (o) (p) (q) (r)

NVIDIA is not infringing and has not infringed the ‘016 patent; NVIDIA is not infringing and has not infringed the ‘998 patent; NVIDIA is not infringing and has not infringed the ‘353 patent; NVIDIA is not infringing and has not infringed the ‘097 patent; NVIDIA is not infringing and has not infringed the ‘937 patent; NVIDIA is not infringing and has not infringed the ‘020 patent; the ‘997 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(s)

the ‘696 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(t)

the ‘281 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(u)

the ‘897 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(v)

the ‘789 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(w)

the ‘405 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(x)

the ‘109 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(y)

the ‘952 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(z)

the ‘953 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(aa)

the ‘050 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(bb)

the ‘119 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112; - 19 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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(cc)

the ‘016 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(dd)

the ‘998 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(ee)

the ‘353 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(ff)

the ‘097 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(gg)

the ‘937 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(hh)

the ‘020 patent is invalid and/or unenforceable under one or more of 35 U.S.C. §§ 101, 102, 103, 112;

(ii) (jj) (kk)

plaintiff’s claims are dismissed in their entirety with prejudice; plaintiff shall take nothing by way of its Complaint; this is an exceptional case and awarding NVIDIA its reasonable attorney fees pursuant to 35 U.S.C. § 285 and any other applicable statutes, rules or laws;

(ll)

awarding NVIDIA its costs, and such additional relief as the Court may deem just and proper under the circumstances.

NVIDIA’S COUNTERCLAIMS AGAINST PLAINTIFF RAMBUS NVIDIA Corporation (“NVIDIA”) brings these counterclaims against Rambus, Inc. (“Rambus”), and alleges as follows:1

COUNTERCLAIMS
1. This is an action to stop a standards body patent predator: Rambus. Rather than use patents to foster innovation and spur competition, Rambus has done exactly the opposite. It has misused the patent process to engage in a pattern of continuing and pervasive unlawful

1

The allegations in this counterclaim are made on information and belief, except as otherwise noted or when referring to NVIDIA. - 20 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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behavior injuring competition in the market for technology that allows semiconductor devices to interoperate in accordance with particular industry standards (the “Relevant Market” or the “Interface Technology Market”). Rambus’s monopolistic scheme has focused on (but is not limited to) technology that allows for interoperability between controllers and various forms of memory devices, known as DRAM and SDRAM. 2. Rambus’s anticompetitive acts began in the mid-1990s and continue to this day.

Over time and in different ways, Rambus has used its scheme to inhibit competition and acquire a monopoly that far exceeds any lawful rights it might have in any intellectual property related to the Relevant Market. Every one of the actions was taken for an anticompetitive purpose, but taken together they have placed a stranglehold on the Relevant Market. That stranglehold, combined with Rambus’s conscious effort to destroy documents that could reveal its actions and allow its victims to defend against its behavior, makes it impossible for companies to compete on the merits in the Relevant Market, to the detriment of companies like NVIDIA that must incorporate interface technology in their products. 3. Rambus’s anticompetitive behavior in the Interface Technology Market takes as its

starting point that standard-setting organizations (“SSOs”)—including the Joint Electronic Device Engineering Council (“JEDEC”)—have been established to ensure both interoperability among products and free and effective competition. The SSO process relies on the integrity of industry participants and their joint responsibility to ensure open standards and free competition on the merits for the benefit of suppliers, manufacturers and consumers. 4. Rambus subverted the SSO process at every turn and hijacked the JEDEC

standard-setting process for its own benefit and for anticompetitive purposes. It also filed “continuation patent applications” not for any proper purpose, but rather to try to usurp evolving standards for interoperability by claiming that those standards were part of Rambus’s original invention when they were not. Rambus was able to implement this anticompetitive scheme by secretly using information learned while it was a member of JEDEC or from undisclosed informants after it had resigned from JEDEC and to misuse and abuse the patent continuation application process. - 21 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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5.

In its anticompetitive strategy, one common thread emerges: Rambus’s drafting

of new claims through continuation practice to try to cover ever-evolving interfacing standards with its patent filings, even though the original invention disclosure was directed to something else. Rambus’s strategy is designed to unlawfully acquire a monopoly by drafting its patent claims in continuation applications after competitors are locked in to an industry standard, and expand and maintain its stranglehold over the Relevant Market. 6. By pursuing this strategy and drafting patent claims in continuation patents after

the industry is already locked in to standards, Rambus strips industry members of viable alternatives. Rambus springs its patent trap only after standards have been adopted and Rambus has misused the continuation practice so that industry members are forced either to license a package of Rambus patents at supracompetitive royalty rates, based upon worldwide sales, or to incur millions of dollars defending themselves against Rambus’s patent infringement claims. At the same time, Rambus punishes any company that refuses to capitulate by threatening not to grant it a license, or demanding even higher royalties than those charged others who capitulate to Rambus’s scheme. Rambus first implemented this scheme against computer memory manufacturers throughout the country, claiming that those manufacturers, by adhering to the standards established by JEDEC, infringed Rambus’s patents. These cases include:         Rambus, Inc. v. Hitachi, Ltd., Case No. 1:00-cv-29 (D. Del.), filed January 18, 2000. Rambus, Inc. v. Hynix Semiconductor, Inc., Case No. 5:05-cv-334 (N.D. Cal.), filed January 25, 2000. Rambus, Inc. v. Hitachi, Ltd., Case No. 1:00-cv-130 (D. Del.), filed February 29, 2000. Rambus, Inc. v. Infineon, Case No. 3:00-cv-524 (E.D. Va.), filed August 8, 2000. Rambus, Inc. v. Hitachi, Ltd., Case No. 4:00-cv-1351 (N.D. Cal.), filed April 19, 2000. Rambus, Inc. v. Hitachi, Ltd., Case No. 4:00-cv-1716 (N.D. Cal.), filed April 21, 2000. Rambus, Inc. v. Samsung Electronics Co., Ltd., Case No. 4:05-cv-2298 (N.D. Cal.), filed June 6, 2005. Samsung Electronics Ltd. v. Rambus, Inc., Case No. 3:05-cv-406 (E.D. Va.), filed June 7, 2005.

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 7.

Rambus, Inc. v. Micron Technology, Inc., Case No. 5:06-cv-244 (N.D. Cal.), filed January 13, 2006. Rambus went even further. To cover their tracks on their unlawful scheme,

Rambus abused the litigation process by intentionally and deliberately destroying millions of pages of documents relating to its patents and its patent strategies to make it difficult, if not impossible, for its litigation adversaries to defend against Rambus’s infringement claims. Federal courts have already determined that Rambus improperly destroyed evidence as part of its litigation plan. See, e.g., Micron Tech., Inc. v. Rambus, Inc., 255 F.R.D. 135 (D. Del. 2009). 8. Rambus’s conduct obstructs competition and innovation at great cost to the

computer industry, including semiconductor companies like NVIDIA. This is not the “fair reward in exchange for public disclosure” that the patent law intended to cover; rather, it is a concerted effort to stifle innovation and prevent competition on the merits in violation of federal and California law.

JURISDICTION AND VENUE
9. This action arises under 15 U.S.C §§ 2, 4 and 26; the Declaratory Judgment Act,

28 U.S.C. § 2201; California Business & Professions Code § 17200 et seq., and the common law of California. 10. Claims 1 and 2 in this action arise under the antitrust laws of the United States –

namely, the Sherman Antitrust Act (15 U.S.C. § 1 et seq.). Accordingly, the Court has original jurisdiction of these federal antitrust claims pursuant to 28 U.S.C. §§1331 and 1337. Claims 3 through 5 of this action arise from violations of California statutory and common law. This Court has supplemental jurisdiction over those claims pursuant to 28 U.S.C. § 1367, as they arise from the same transactions and common nucleus of operative facts that form the basis of the antitrust claims. Claims 6 through 9 of this action arise under the Declaratory Judgment Act, 28 U.S.C § 2201, and seek declaratory judgment of noninfringement, invalidity and implied license, as well as determinations of patent misuse, prosecution laches and unclean hands under the Patent Laws of the United States, 25 U.S.C. §§ 101 et seq. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a).
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11. District. 12.

Rambus is a resident of California and subject to personal jurisdiction in this

Venue is proper in this Court under 28 U.S.C. §§ 1391(b)(2), 1391(c) and § 1400.

PARTIES
A. NVIDIA Corporation 13. NVIDIA is a Delaware corporation with its headquarters at 2701 San Tomas

Expressway, Santa Clara, California. Among other things, NVIDIA graphics processing units (“GPUs”) include industry standard technologies that allow the GPUs to interface with other semiconductors, such as Central Processing Units (CPUs), memory devices and peripheral devices. NVIDIA products incorporate, for example, DRAM (“Dynamic Random Access Memory”) interfacing technology specified by industry standards. Since its formation, NVIDIA has complied with industry standards to ensure that its products interoperate with products manufactured by others. NVIDIA’s products comply with relevant standards adopted by JEDEC, for example. 14. Some of NVIDIA’s products contain memory controllers that use interfacing

technology to interoperate with semiconductor memory devices, including various DRAM and SDRAM technologies manufactured by third party companies. Many of those third party companies have licenses from Rambus. B. Rambus 15. Rambus is a Delaware corporation with its principal place of business at 4440 El

Camino Real, Los Altos, California. 16. Rambus does not manufacture or sell GPU devices, memory devices, or integrated

circuits. Rather, Rambus derives revenue chiefly from licensing fees and royalties. Its primary business is prosecuting continuation patents to attempt to cover industry standards as they evolve, and then licensing its patent portfolio to participants in the Interface Technology Market after they have become locked in to industry standards.

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THE RELEVANT MARKET
17. Industry standards are essential to compatibility and fostering competition in the

semiconductor industry. They benefit manufacturers and consumers by providing a common set of ground rules that allow devices to interoperate and permit manufacturers to compete on the merits. Industry-wide standards, particularly in a technologically sophisticated market, promote market efficiency, expansion and competition by reducing barriers to entry and operating costs; allow for interoperability among products from different manufacturers and, therefore, lower switching costs, which in turn permit competition and consumer choice; and avoid creating splinter markets of different technologies and potential costly and inefficient standards wars. 18. Computer components, like memory chips and microprocessors, must be

compatible in order to function properly. Semiconductor companies therefore rely on open industry standards established by SSOs. Dynamic Random Access Memory, or “DRAM,” is the dominant form of memory chip. Synchronous DRAM, or “SDRAM,” is a high speed, high performance subset of DRAM. Memory chips must be compatible with and able to match performance demands of the latest microprocessors, which have become faster over time. Accordingly, DRAM and microprocessor manufacturers must make their products compatible with each other either through business agreements or accepted industry interface compatibility standards. 19. Rambus’s actions have affected the market for technology that allows

semiconductor devices to interoperate in accordance with established industry standards, including technology that allows for interoperability between controllers and various forms of DRAM and SDRAM. Rambus, through its patent portfolio and continuation practice strategy, now claims to control the technologies relied upon by market participants for interoperability. Rambus’s claimed control of or attempt to control that technology through its anticompetitive actions significantly diminishes competition, increases the costs of manufacture and ultimately, raises the cost of computer products to consumers. /// /// - 25 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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RAMBUS’S UNLAWFUL SCHEME
THE PATENTS 20. Rambus’s strategy began with the company’s cofounder, Mike Farmwald. Using

technology developed in 1990 while he was employed at MIPS Computer Systems (“MIPS”), Farmwald sought patents through U.S. Application No. 07/510,898 (the “‘898 Application”). The ‘898 Application disclosed Rambus’s invention of a type of memory known as “RDRAM,” or Rambus DRAM. Since that time, the ‘898 Application has spawned over 45 patents (the “Farmwald patents”) and continuation applications were prosecuted as late as 17 years after the initial filing. Rambus has used the ‘898 Application and its progeny to claim rights to many inventions other than RDRAM and to obtain royalties from companies that have designed their products to comply with industry standards. 21. As detailed below, Rambus has acted similarly with respect to other patents, again

tailoring its patent applications after industry standards had been adopted in order to later claim the patents covered those industry standards. For example, while it was a member of JEDEC, Rambus surreptitiously filed continuation applications to expand the scope of its invention in its “Barth I” patent family to try capture evolving JEDEC standards. Between 1997 and 2008, Rambus filed no fewer than seven continuation applications in its Barth II patent family, again to try to expand their scope to capture industry standards as they evolved. Similarly, Rambus filed at least nine continuation applications in its “Ware II” patent family to try to usurp established industry standards as they evolved. Rambus also abused the continuation application process to expand the scope of another patent family to try to capture the PCI-Express standard promulgated by a different SSO. 22. Exhibits B through E, attached to this Counterclaim, chart the evolution of

Rambus’s prosecution of the Farmwald, Barth I and II, and Ware II patent families respectively. Each patent family includes patents asserted by Rambus against NVIDIA in this case, and each of those patents-in-suit is alleged by Rambus to read upon an industry standard. /// /// - 26 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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THE PLAN 23. Rambus hatched its anticompetitive plan when it filed the original ‘898

Application and continued to implement the plan from that point until the present with respect to the Farmwald family of patents and other patents, including the Barth and Ware families. It has engaged in a pattern of exclusionary conduct in order to acquire and maintain monopoly power in the Relevant Market or attempt to acquire monopoly power. The scheme includes at least the following actions: a. Using an abusive patent strategy to try to cover the JEDEC industry standard for DRAM/SDRAM in order to exclude rival technologies and subject industry participants to patent claims; b. Misusing information learned at JEDEC meetings to file undisclosed continuing patent applications, thereby concealing its patent claims until the industry was locked in to the JEDEC standard believing the standard was not subject to patent claims; c. Misusing the patent continuation process with respect to the Farmwald, Barth and Ware patent families asserted against NVIDIA that Rambus contends cover the JEDEC industry standards for DRAM interfacing technology; d. Destroying evidence in order to disadvantage its adversaries in patent infringement lawsuits, and thereby making it more difficult, if not impossible, to scrutinize the validity and enforceability of Rambus’s patent and its misuse of the patent continuation process; e. Improperly expanding the scope of its patents via licensing designed to recover improper monopoly-level royalties, including double royalties and royalties covering worldwide sales; f. Violating the intent and purpose of its commitments to the European Commission to provide licenses to certain technologies at certain rates; g. Coercing users of the JEDEC standards to license packages of Rambus patents at supracompetitive rates after they were locked in to those standards. 24. Each of these acts, described in more detail below, was a part of Rambus’s overall

and continuing anticompetitive scheme. Collectively, they violate federal antitrust law by allowing Rambus to acquire and maintain a monopoly or by being unlawful attempts to monopolize. Rambus is doing far more than misusing its patents. It is manipulating the patent process to acquire, maintain and expand its monopoly power in the Relevant Market.

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THE PROCESS
Rambus Subverts JEDEC and Hijacks the DRAM Industry Standard 25. JEDEC develops and maintains standards to meet industry and user needs for

semiconductor devices and integrated circuits. It is committed to ensuring free competition with regard to the technology JEDEC seeks to address. As a standards setting body, JEDEC serves the pro-competitive purpose of effectuating compatibility between different technologies via standardization. 26. JEDEC standard technologies are “open standards” (i.e., not subject to royalties).

In addition to JEDEC members, many nonmember companies implement the JEDEC standards in reliance on the open and pro-competitive nature of the JEDEC standards-setting process, and expect that the standards are free of undisclosed encumbrances, such as patents, imposed by other JEDEC members. JEDEC therefore strives to avoid establishing patented technology as a standard unless the technology is essential and available for license on fair, reasonable and nondiscriminatory, or “FRAND,” terms. 27. In 1991, JEDEC started developing standards for the technology that permits the

interface between memory chips and microprocessors. Among the standards promulgated by JEDEC are those relating to DRAM interface technology, which is the most common memory chip interface technology. Generally, the DRAM chip communicates with a memory controller that, in turn, communicates with the microprocessor. As products have developed over time, the controller is now included as a part of the microprocessor chip. 28. Rambus joined JEDEC in or about December 1991. It joined to advocate adoption

of its proprietary “RDRAM” (“Rambus DRAM”) technology as the standard for memory interfacing technology. Rambus wanted to foreclose JEDEC’s adoption of SDRAM (“Synchronous DRAM”), a different technology not embodied in Rambus’s RDRAM and not covered by Rambus’s patents. If that were not possible, Rambus wanted to implement a strategy to try to capture the SDRAM standard through strategic prosecution of continuation applications to build its patent portfolio. 29. Rambus did not agree with JEDEC’s focus on open standards. It participated in - 28 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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JEDEC’s subcommittees to learn about the direction of the SDRAM standard and its likely future evolution in order to patent claims that it could try assert against the standard. Unbeknownst to JEDEC, its members, and non-members that relied on JEDEC’s open standards, Rambus used information it learned at JEDEC meetings to file continuation applications to the ‘898 Application to try to cover the JEDEC SDRAM standard as it evolved, even though Rambus’s invention set forth in the ‘898 Application disclosed only the RDRAM invention. 30. Ultimately, despite Rambus’s efforts, JEDEC did not adopt RDRAM as the

industry standard, choosing instead to standardize SDRAM. JEDEC-compliant SDRAM and subsequent versions of SDRAM (such as DDR, DDR2, DDR3, GDDR2, GDDR3 and LPDDR) are included in virtually every computer sold today. Recognizing that RDRAM would not become the industry standard technology for memory interfacing, Rambus implemented its alternative plan to use its continuation applications, wait until industry participants adopted the standard, and then try to draft claims to cover the adopted standards. 31. In March 1992, two years after it filed the ‘898 Application and while still a

member of JEDEC, Rambus secretly filed several piggy-back patent applications to the ‘898 Application to try include the features of the underlying architecture required to manufacture JEDEC-compliant SDRAM. Rambus broke out portions of its ‘898 Application into 10 divisional patent applications, each of which purported to “claim priority back” to the original application and its April 1990 filing date. These combined patents eventually resulted in at least 45 issued continuation applications and subsequent patents, all purportedly based on the ‘898 Application. 32. In May 1992, Rambus took further action to expand the scope of the ‘898

Application and draft ever more claims to attempt to cover the SDRAM standard. Rambus added claims to the original application to attempt to cover features that had been discussed at JEDEC committee meeting. In fact, Rambus cross-referenced SDRAM specifications to help draft claims that it could argue captured those specifications in its patent applications. Rambus also included inconsequential features solely to try make later invalidity challenges more difficult. Through those efforts, Rambus claimed that manufacturers who incorporated standard SDRAM - 29 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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technologies in their products were infringing Rambus’s patents. 33. At least as of 1993, JEDEC’s intellectual property policy required members to

disclose patents and patent applications related to the standardization work of JEDEC committees. This requirement was formulated to prevent a single company from secretly capturing the industry standard and manipulating the standards-setting process to its individual advantage to extract unreasonable and monopolistic royalties, or otherwise “hold up” manufacturers whose products were developed to be compatible with the standard. 34. Rambus and its agents who participated in JEDEC’s standard setting process on its

behalf were fully aware of JEDEC’s disclosure requirement. The requirement was frequently announced and included in presentations made at meetings. Although Rambus disclosed the specification for the Farmwald patents, it continued to participate in the standard-setting process without disclosing some of its other relevant patent applications, including continuation applications. For example, Rambus did not disclose anything about its application for the Barth I patent, which it later claimed covered JEDEC standards. It also knew of JEDEC’s purpose, goals and policies with respect to open standards, the incorporation of patented technology, and FRAND licensing. Nevertheless, Rambus flouted those goals by filing multiple applications to try to usurp the SDRAM standards with the intent to assert them against the industry after companies had become locked in to using them. 35. As a participant in the JEDEC process, Rambus owed an obligation of good faith

and fair-dealing to its fellow JEDEC members and those relying upon the JEDEC standard. Rambus’s intentional, covert decision to use its JEDEC membership to learn about and capture evolving industry-wide standards, even as industry participants believed those standards did not implicate any patented technology, was part of its scheme to monopolize the Relevant Market. 36. By concealing its intention to obtain patents to try to capture the JEDEC standards

as they were being adopted, Rambus induced JEDEC and JEDEC members to reveal information they would not have otherwise disclosed to Rambus. While it was concealing the true facts, Rambus intended all along to subsequently allege that the standards infringed the claims in its patent applications. - 30 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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Rambus’s Misuse of the Patent Application Process to Entrap the Industry 37. Rambus has used continuation applications to attempt to cover changes and

advances to the JEDEC standard. Rambus intentionally uses the continuation process to delay prosecution of its patents—in some cases for more than a decade—in order to add new patent claims that Rambus contends cover the evolving industry standard after it has become ubiquitous among industry participants. Rambus knew that JEDEC members and non-members would adopt the industry standard because of the importance of standardized technology in the Interface Technology Market. Therefore, Rambus prolonged prosecution to address how the standard was evolving. Rambus’s strategy was not designed to improve interfacing technology or increase the interoperability between products, but rather to allow Rambus to assert rights in evolving standards once the industry was locked in to those standards. Rambus’s continuation application strategy was another part of its scheme to acquire, maintain and extend its unlawful monopoly. 38. Rambus’s continuation applications impermissibly expanded the scope of its

patents and diminished competition in the Relevant Market. The continuation applications added claims that went beyond the invention originally disclosed by the patent, and, in some cases, contradicted previously disclosed limitations. Rambus planned to force industry participants to continue to pay it royalties as the standard evolved, even if Rambus’s original patent claims did not cover the standard. This scheme impedes innovation in the computer industry because participants cannot be certain if evolving technologies will implicate patents and claims that are not yet filed, and cannot know the cost of complying with supposedly “open” standards that a company could subsequently claim as proprietary. 39. For example, Rambus’s original ‘898 Application specification disclosed a narrow,

triple multiplexed, packetized bus that was inherent in the RDRAM design and distinct from the bus protocol that was chosen by JEDEC as a standard. After filing its ‘898 Application, Rambus filed related continuation and divisional patent applications based on substantially the same initial disclosure. But the claims set forth in those later filings extended far beyond the scope of the original specification disclosure, covering a wide, non-packetized bus protocol that was not part of the RDRAM product, but which had been adopted as the JEDEC industry standard. - 31 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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40.

In this manner, Rambus expanded a single patent application that it had filed in

1990 into hundreds of claims in scores of patents, thereby improperly extending the reach and scope of the original patent. Even as recently as April 24, 2007, Rambus procured the issuance of a new patent, ostensibly reading against the JEDEC standard, purporting to claim priority to the 1990 ‘898 Application. 41. Rambus employed a similar strategy in connection with later-filed patent

applications. While Rambus’s original patent strategy was directed at memory devices, it decided to take a more “controller centric” view of its patents, which would allow it to further control the Relevant Market. For example, in October 1995 Rambus filed patent Application Nos. 08/545,292 (the “‘292 Application”) and 08/545,294 (the “‘294 Application”), just weeks after it had attended a September meeting of the JEDEC committee focused on SDRAM standardization and two months before it attended the December meeting of the same committee. The ‘292 Application, which ultimately spawned the “Barth I” patent family, was directed to a flexible data transfer method, and distinguished prior art where the transfer amount is fixed. In other words, Rambus did not originally claim that Barth I covered fixed length data transfer. 42. Internally, Rambus admitted its anticompetitive motivation for filing these

applications. Senior Rambus personnel described the need for a “patenting spree” while it still had confidential information from JEDEC. Moreover, Rambus hoped to expand its patent claim scope so that it would have a high harassment value against memory controller manufacturers, like NVIDIA, as well as microprocessor and memory chip manufacturers. 43. In late 1995, Rambus’s lawyers advised it to terminate further participation in

standard-setting organizations like JEDEC because using the patent process to try to capture an evolving industry standard raised anticompetitive and patent enforceability concerns. The advice came in response to Federal Trade Commission enforcement activity against Dell, Inc. based on conduct in a standards-setting body similar to Rambus’s conduct in JEDEC. Rambus did not resign from JEDEC at that time. 44. In 1995 and early 1996, when Rambus was still a member of JEDEC and attending

meetings, a JEDEC committee was formally considering technologies such as write data latency - 32 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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and dual edge clocking in evaluating an industry standard. Although Rambus’s already-filed ‘292 Application described these exact features, Rambus never revealed the ‘292 Application to JEDEC or any JEDEC committee. This conscious non-disclosure was consistent with Rambus’s other JEDEC activities—attending meetings, learning about standards, concealing its own position and using the patent continuation process to attempt to capture standards that industry participants believed were “open” and not subject to any patent rights. 45. In 1996, after JEDEC discussed transferring data in fixed lengths in connection

with its evaluation of the standard, Rambus altered its pending claims on the Barth I patent (flexible length transfer) via continuation patent applications to reach memory transfers of fixed length, even though it had previously disclaimed fixed length transfers. Once again, Rambus misused the continuation process to expand the scope of its patent to cover technology that it did not invent. Until JEDEC began discussing a standard for fixed length transfer, Rambus had never asserted that Barth I covered that technology. Rambus made this change to acquire, maintain and extend its unlawful monopoly, or attempt to do so. 46. Even after it formally resigned from JEDEC in June 1996, Rambus continued to

use information from JEDEC about the direction of the industry standard to craft and implement its unlawful scheme. Rambus obtained reports about JEDEC’s memory interface standardization process from clandestine informants dubbed “Deep Throat” and “secret squirrel.” Because Rambus surreptitiously learned about JEDEC’s evolving standards, it continued to file continuation patent applications that were manipulated to allow it to assert that they cover the evolving standard, even after it had resigned from JEDEC. 47. Almost five years later, after JEDEC adopted an industry standard different from

the flexible length method claimed by Rambus in the ‘292 Application (related to Barth I), Rambus filed two continuation applications with independent patent claims designed to capture the JEDEC standard. Once again, Rambus changed the scope of the invention to attempt to cover the JEDEC standard and shift away from the original invention described in its application while gaining the benefit of the filing date of the ‘292 Application. 48. Rambus’s use of continuation applications frustrate the very goals that the patent - 33 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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system is designed to encourage. By filing repeated and substantial continuation applications year after year, Rambus could delay the issuance of its patents until after industry participants had become “locked in” to a standard, and could continue to file additional continuation applications to try to cover the standard. This tactic, known as “submarine patenting,” has anticompetitive impacts without any corresponding pro-competitive benefits. 49. Abusive continuation practices such as Rambus’s have been documented in the

academic literature. For example, Mark Lemley (the William Neukom Professor of Law at Stanford University) and Kimberly Moore (a new United States Judge for the Federal Circuit) have commented that: Continuation practice has a number of pernicious consequences . . . First, at a minimum, continuation practice introduces substantial delay and uncertainty into the lives of a patentee’s competitors, who cannot know whether a patent application is pending in most circumstances. Second, the structure of the PTO suggests that continuations may well succeed in “wearing down” the examiner, so that the applicant obtains a broad patent not because he deserves one, but because the examiner has neither incentive nor will to hold out any longer. Third, continuation practice can be—and has been—used strategically to gain advantages over competitors by waiting to see what product the competitor will make, and then drafting patent claims specifically designed to cover that product. Finally, some patentees have used continuation practice to delay the issuance of their patent precisely in order to surprise a mature industry, a process known as ‘submarine patenting.’ Lemley and Moore, “Ending Abuse of Patent Continuations,” 84 Bost. U. L. Rev. 63, 65 (2004) (footnotes omitted). Further: Permitting patentees to change claims to track competitor’s products invites abuse of the system. This practice seems fundamentally unfair, since a competitor who was legitimately first to invent a particular device or process may be held to have infringed on a patent claim written after (and indeed because of) that invention. It also seems inconsistent with the fundamental economic justification for the patent system, which is to encourage new inventions. As commentators have noted, the patent system must balance encouraging pioneering inventions and encouraging improvements. Strategic claim damages may hold-up legitimate improvers or independent inventors, reducing this ability and incentive to innovate. Id. at 78 (footnotes omitted), citing Michael J. Meurer, Controlling Opportunistic and - 34 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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Anticompetitive Intellectual Property Litigation, 44 B. C. L. Rev. 509 (2003). Rambus’s use of continuation patents to try to cover developing industry standards is more anticompetitive than the situation in which only one competitor is affected. 50. With respect to “submarine patents” like those obtained by Rambus, Professor

Lemley and Judge Moore have stated: There is no social benefit whatsoever to submarine patents. They extend the effective life of patents, permit patentees to hold-up competitors who have made investments in plant capacity, and upset the settled expectations of manufacturers in a variety of industries. They do nothing to encourage innovation and indeed, on balance, they probably discourage it . . . Id. at 80. These concerns are magnified in the context of industry SSOs, where an entire industry adopts an interface standard and invests time and resources to implement it. Interoperability standards foster competition to the benefit competitors, industry participants and end-consumers. Allowing one company like Rambus to hold up the others via an abusive use of the continuation patent process subverts these salutary purposes, and allows it to acquire and maintain an unlawful monopoly. 51. Even so, Rambus continued to file continuation applications for additional patents.

Each of these applications has spawned scores of continuations, continuing to this day. For example, in October 1997 Rambus filed for the Barth II patent through application No. 60/061,770, and has since filed at least seven continuation applications over a ten-year period claiming priority back to the October 1997 date. Rambus claims that the last-issued patent in the Barth II family reads on JEDEC’s additive latency technology standard, even though the earlierissued Barth II patents do not. Similarly, Rambus filed the original application for its “Ware II” patents on April 24, 2001, and subsequently filed no fewer than nine continuation or divisional applications over the next six years to expand the scope of the invention to try to capture “fly-by topology” technology adopted by JEDEC, but not covered by the claims in the original application. 52. But Rambus took other actions to ensure its anticompetitive strategy would be

successful. Rambus began systematically destroying critical documents in order to cover its - 35 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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tracks. Rambus knew that its document destruction would make it difficult—if not impossible— for defendants to prove Rambus’s strategy or defend against its infringement claims. Rambus Lies in Wait and Prepares to Spring Its Patent Trap 53. Failing to gain market acceptance for its RDRAM standard, Rambus waited until

the industry was locked in to the JEDEC SDRAM standard before springing the next part of its trap. 54. While Rambus lay in wait, companies like NVIDIA, and their suppliers and

customers, including manufacturers of computer memory, invested in, worked on and used the interfacing technology adopted as the JEDEC standard. NVIDIA and other companies in the computer industry, relying on JEDEC standards, designed and manufactured products that permit interoperability among and across devices. Those efforts increased competition among suppliers and benefited consumers. 55. Rambus knew that once suppliers and vendors had committed to a particular

DRAM architecture, they were unlikely to change. As the SDRAM standard evolved, each subsequent version had to be compatible with the earlier versions to be commercially viable. Once the infrastructure is developed to take advantage of a feature included in a DRAM standard, it is difficult to remove the feature. In essence, the removal of a feature creates a de facto new standard that would require industry participants to modify their infrastructure. This dislocation raises the risk of potential chaos for manufacturers of devices that incorporate the changing technologies. That, in turn, could harm consumers and other end-users who would not know whether and how devices interoperate. Rambus knew that by concealing its scheme and lying in wait, the industry would be locked in to the standard and unable to change. 56. In January 1998, Rambus began actively developing the systematic document

destruction that was an integral part of its scheme. By the end of the first quarter of 1998, Rambus’s vice president in charge of intellectual property had met with outside litigation counsel and proposed license royalty rates so onerous that litigation was inevitable. Rambus was advised to get “battle ready,” i.e., be ready for litigation and do what it needed to do to win. 57. At the suggestion of senior management, Rambus began to “clean out” its patent - 36 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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prosecution files. It also prepared a detailed internal litigation strategy that identified targets, selected preferred venues, outlined timetables for filing lawsuits, and identified experts to be hired in advance. Again at the advice of senior management, Rambus simultaneously developed and implemented its strategy to selectively destroy documents. At the time the document destruction process was implemented, Rambus employees were told to keep documents that would be helpful to Rambus in litigation. Thus, Rambus made certain that the “good” evidence would be retained while the “bad” evidence was being destroyed. 58. By June 1998, Rambus had internally identified NVIDIA as a target of its coercive

“license or litigate” strategy. 59. 60. In July 1998, Rambus officially implemented its document destruction policy. On September 3, 1998, Rambus commenced its first “shred party,” in which it

“cleansed” its patent prosecution and related files by destroying documents related to patents that Rambus was planning to enforce against the DRAM industry. Rambus knew that this evidence would be relevant to litigation it was already contemplating and planning, including litigation against NVIDIA. 61. In August 1999, Rambus commenced its second “shred party,” destroying

additional documents related to patents that Rambus was planning to enforce against the DRAM industry, including, among others, NVIDIA, Micron and Fujitsu. 62. 63. In December 1999, Rambus held its third “shred party.” The document destruction was undertaken consciously, deliberately and in bad

faith. It was designed to disadvantage whomever Rambus chose to sue, including NVIDIA, and thereby ensure that patent litigation adversaries could not fairly defend against infringement claims. Rambus’s pattern of document destruction and spoliation violated California Penal Code § 135. It was an integral part of Rambus’s anticompetitive scheme, designed to make it more difficult for defendants to counter Rambus’s efforts to unlawfully acquire and maintain its monopoly in the Relevant Market. Rambus knew that its large-scale destruction of evidence would undermine the truth-seeking function of the judicial process and protect its anticompetitive scheme from attack in a judicial forum, thereby further entrenching its unlawful monopoly. - 37 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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Rambus’s Coercive “License or Litigate” Strategy Holds Up the Industry 64. In August 1999, JEDEC approved and published a new DDR SDRAM standard.

Rambus waited until November of that year—after consumers and manufacturers were locked in to the technology—to reveal its previously issued patents or applications that Rambus claimed covered the SDRAM and DDR-related technology. 65. As Rambus asserted its patents to control the Interface Technology Market and

companies acceded to that power by agreeing to pay Rambus exorbitant royalties, it became more difficult for anyone to use standard technology without running afoul of Rambus. As a result, the costs of manufacturing and distributing memory chips, controllers, CPUs, GPUs and microprocessors increased to the detriment of consumers and end-users. Because the industry could not know what other continuation applications Rambus had filed and what other technology Rambus would claim those applications covered, and members were unsure whether they could obtain FRAND licenses for that technology, industry participants were paralyzed and unlikely to innovate or improve their product offerings. By “freezing” the market, Rambus entrenched its monopoly and enhanced its ability to continue the industry hold-up. Rambus Misuses Its Patents by Attempting to Extort Double Royalties 66. Rambus engaged in additional anticompetitive conduct by demanding double

royalties from companies that manufactured memory chips and microprocessors. 67. Rambus has entered into numerous license agreements with SDRAM

manufacturers. For example, on or about January 19, 2010, Samsung purchased a worldwide license from Rambus that permits it to practice all aspects of the JEDEC standard. That license reportedly will pay Rambus $900 million. 68. Not content to collect royalties from SDRAM manufacturers like Samsung,

Rambus sought royalties from memory controller manufacturers like NVIDIA as well, even though the Rambus patents contain no specifications or drawings of controllers or even discuss how they are built or might infringe. The memory controllers have no purpose other than to connect to memory devices, such as DRAM. Despite receiving payment from Samsung, Rambus demanded that NVIDIA pay exorbitant royalties for the same invention covered by the Samsung - 38 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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license: memory interface technology incorporated in the Samsung SDRAM. Expanding the scope of its patent to cover both memory devices and controllers could double the royalties Rambus could extract and further entrench its unlawful monopoly. 69. The collection of double royalties by Rambus for the same claimed inventions

suppresses competition by increasing the manufacturing cost of a memory device and/or memory controller and computers incorporating them. Consumers and end-users will necessarily have to pay more for a product because two different companies at different levels of the manufacturing process–controller manufacturers like NVIDIA and memory manufacturers like Samsung—each have to pay royalties to Rambus under the same patents for the same invention. 70. Rambus identified targets like NVIDIA because it knew that NVIDIA’s GPUs

interfaced with third party memory devices like Samsung’s. Rambus’s Anticompetitive Violation of Its European Commission Commitments 71. Rambus has also violated legally binding commitments it made to the European

Commission (“EC”) relating to DRAM. In mid-2007, the EC launched antitrust investigations against Rambus, for its “patent ambush” of JEDEC industry standards for DRAM. The EC contended that Rambus abused its dominant market position by claiming unreasonable royalties for the use of DRAM-related patents. To resolve the investigation, Rambus entered into a binding commitment with the EC to, among other things, offer licenses with agreed maximum royalty rates per unit for DDR, DDR2, DDR3, GDDR3 and GDDR4 (versions of SDRAM technology) memory devices and controllers. NVIDIA’s memory controllers are compatible with these technologies. 72. Despite its EC commitment, Rambus refused to enter into a license with NVIDIA

unless NVIDIA first agreed to pay a ransom. It demanded that NVIDIA license newer technologies not covered by the EC commitment, like GDDR5, from Rambus as a precondition to signing the license for the other older technologies. It also conditioned its signing the license on NVIDIA paying royalties on the entire GPU, rather than the portion attributable to the controller, and NVIDIA’s acquiescence up front in Rambus’s interpretation of the license’s royalty provisions, even though the license itself provided a mechanism for resolving royalty disputes. - 39 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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Rambus has also stated that if NVIDIA terminated the license as set forth in the license, Rambus would refuse to license NVIDIA in the future. The EC commitments do not allow for such a refusal to license. Thus, Rambus sought to use its commitments to the EC—made to deal with its dominant market position and patent ambush as to existing technologies—to entrench and expand its monopoly over newer technologies as well. Rambus Employs its Scheme Against NVIDIA 73. Rambus’s interactions with NVIDIA are a textbook application of its overall

scheme. Before filing its patent infringement actions against NVIDIA, Rambus allowed its submarine continuation patent applications to surface. It then demanded that NVIDIA either (a) take a worldwide license to all of Rambus’s patents at an exorbitant rate based upon worldwide sales, or (b) abandon the JEDEC standard and license Rambus’s failed RDRAM interface technology, or (c) do both. Moreover, because of Rambus’s conduct in the standardsetting process and abuse of the continuation patent process, NVIDIA lacked options for alternative technologies. NVIDIA refused to capitulate and was forced into litigation. Rambus, however, had unfairly corrupted the judicial process by willfully and consciously destroying evidence that NVIDIA could rely upon to prove its claims and defenses. 74. Rambus also refused to allow NVIDIA to sign a license pursuant to its EC

commitments unless NVIDIA first acceded to Rambus’s demands that NVIDIA agree to additional commitments not required by the EC license. It also demanded that NVIDIA pay royalties on inventions for which Rambus has already received royalty payments from Samsung and others. 75. As the final step in its scheme to obtain and maintain a monopoly, Rambus

initiated proceedings against NVIDIA in various fora, asserting claims based on the Farmwald, Barth and Ware patents. NVIDIA has incurred, and continues to incur, significant legal fees in defending those proceedings.

COUNT ONE (Monopolization Under The Sherman Act, 15 U.S.C. § 2)
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75 inclusive, and incorporates them by reference in this paragraph. 77. As explained in detail above, Rambus has engaged and is engaging in continuing

anticompetitive conduct with the specific intent of acquiring and maintaining monopoly power in the Relevant Market—the market for certain technologies that allows semiconductor devices to interoperate in accordance with established industry standards (the “Interface Technology Market”). The Relevant Market includes interface technologies that permit products of companies that manufacture CPUs, GPU’s, memory chips and microprocessors to interoperate. The geographic market is the United States. 78. By virtue of its claim to control the JEDEC-established standard for SDRAM ,

Rambus has obtained control over a substantial portion of the Relevant Market. In fact, through the implementation of the scheme set forth in the preceding paragraphs, Rambus has already achieved monopoly power and monopoly control over the Relevant Market. 79. The Relevant Market has barriers to entry because industry participants are locked

in to using technology that complies with the JEDEC standards for interoperability of semiconductor devices. Rambus claims the right to control that technology through its patents and to forbid any other company to offer competing technology that complies with industry standards. By ignoring JEDEC requirements concerning proprietary technology included in industry standards, it also seeks royalties different from and higher than FRAND terms. 80. Rambus has acquired and maintained its monopoly power through a pattern of

predatory and exclusionary conduct, antithetical to competition on the merits, in which Rambus has engaged with the specific intent of monopolizing the Relevant Market. Rambus’s conduct cannot reasonably be considered the exercise of superior skill, foresight or knowledge, or the result of business growth or development or legitimate acquisition and enforcement of patents. 81. Rambus’s exclusionary conduct includes the following acts—which, in

combination with each other and with acts that are currently unknown, permit Rambus to improperly acquire and maintain monopoly power: (1) using an abusive patent strategy to attempt to cover JEDEC industry standards to exclude rival technologies and subject industry participants to patent claims; (2) subverting JEDEC and misusing information learned at JEDEC meetings to - 41 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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file undisclosed continuation patents, thereby concealing its patent claims until the industry was locked in to the JEDEC standard believing it was not subject to patent claims; (3) misusing the patent continuation process; (4) destroying evidence in order to disadvantage its adversaries in patent infringement lawsuits in order to acquire and/or maintain its monopoly; (5) improperly expanding the scope of its patents in order to recover improper monopoly-level royalties, including double royalties and royalties on a worldwide basis; (6) violating its commitments to the EC in order to expand and entrench its monopoly power; and (7) employing a coercive “license or litigate” strategy against users of the JEDEC and other industry standards to force them to license packages of Rambus patents. 82. As a result of the foregoing conduct—both individually and collectively—Rambus

has willfully acquired and maintained monopoly power in the Relevant Market in violation of Section 2 of the Sherman Act. 83. If Rambus had not engaged in anticompetitive conduct, JEDEC would have

adopted different interface technology standards, so that Rambus could not assert patent rights, seek supracompetitive royalties, and hold up the computer industry. 84. NVIDIA has been harmed by Rambus’s conduct because it needs to comply with

industry standards to allow its products to interoperate with memory chips, microprocessors and peripheral devices. NVIDIA has also been harmed by Rambus’s conduct because it heavily invested in, worked on, adopted, and used the technology at issue while Rambus covertly delayed prosecution as part of its “patent trap.” Rambus used continuation patent applications to attempt to cover industry standards via pending patent claims, and to delay the issuance of patents and the filing of infringement actions until the industry had become locked in to the relevant standards. The delay and surreptitious actions themselves harmed competition because they ensured that market participants would be locked in before Rambus implemented the final step in its scheme, thereby ensuring that Rambus would have obtained monopoly power which it could use to extract monopoly-level royalties. Because it is locked in to using the JEDEC standard—which Rambus claims to control through its patents, patent applications, and continuation patents—NVIDIA

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must accede to Rambus’s demands. This, in turn, harms competition in the market for products that include interface technology. 85. NVIDIA has been directly harmed by Rambus’s willful and bad faith destruction

of evidence that has made it more difficult for NVIDIA to defend itself against Rambus’s infringement claims and to show the basis and extent of Rambus’s anticompetitive behavior. NVIDIA is now faced with a choice between two harmful alternatives: (a) pay supracompetitive (and double) royalties to license a package of patents or (b) incur millions of dollars—money that otherwise would have been spent on innovation—defending Rambus’s patent infringement action when Rambus has already stacked the deck in its own favor. 86. Rambus’s large-scale, conscious and willful destruction of evidence was part of its

scheme to use the judicial process to control the Relevant Market. Rambus’s document destruction increased NVIDIA’s cost of defending Rambus’s infringement claims. It also subverted the role of the judicial system to ensure that patent monopolies are confined to the scope of the patent, and not abusively used for anticompetitive purposes. Rambus’s spoliation therefore was both anticompetitive in and of itself, and a critical element in perpetuating its other anticompetitive and monopolistic acts. 87. Rambus’santicompetitive conduct began as long ago as the early 1990s and has

continued to this day. Rambus executed the final step its unlawful monopolization scheme against NVIDIA when Rambus asserted patent claims against NVIDIA in July 2008, based on patents and applications that Rambus concealed until NVIDIA and others in the industry were locked in to using industry standards. 88. As a result of Rambus’s violation, NVIDIA is threatened with irreparable injury to

its business and has been injured in its business and property in an amount to be determined at trial. Unless Rambus is enjoined, Rambus’s unlawful conduct will continue and NVIDIA will continue to sustain injury and damages. /// ///

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COUNT TWO
(Attempted Monopolization Under the Sherman Act, 15 U.S.C. § 2) 89. NVIDIA realleges each allegation set forth in the preceding paragraphs, 1 through

88 inclusive, and incorporates them by reference in this paragraph. 90. If the Court finds that Rambus has not achieved monopoly power in the Relevant

Market, NVIDIA is entitled to damages and injunctive relief against Rambus by reason of Rambus’s attempted monopolization of the Relevant Market in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2. 91. Rambus’s conduct, as detailed above, had and has a dangerous probability of

achieving monopoly power in the Relevant Market. If the conduct is not enjoined, NVIDIA and other companies who need to use the JEDEC standards in their products to allow them to interoperate with memory chips, microprocessors and peripheral devices may be forced to comply with Rambus’s demands, thereby giving Rambus a dangerous probability of acquiring and maintaining its monopoly power in the Relevant Market. 92. As a direct and proximate result of Rambus’s unlawful attempted monopolization,

NVIDIA is threatened with irreparable injury to its business and has been injured in its business and property in an amount to be determined at trial. 93. Unless Rambus is enjoined, its unlawful conduct will continue and NVIDIA will

continue to sustain injury and damages.

COUNT THREE
(Violation Of California Bus. & Prof. Code 17200, et seq.) 94. NVIDIA realleges each allegation set forth in the preceding paragraphs, 1 through

93 inclusive, and incorporates them by reference in this paragraph. 95. Rambus’s practices as alleged in this Complaint constitute unlawful, unfair and/or

fraudulent business acts or practices under California’s Unfair Competition Law (“UCL”), Bus. & Prof. Code §§ 17200 et seq. 96. The circumstances giving rise to NVIDIA’s allegations, including Rambus’s

conception, development, and implementation of its anticompetitive scheme, occurred in the State - 44 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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of California. Additionally, Rambus maintains its headquarters in Los Altos, California. Accordingly, California law applies. 97. By engaging in the above-described acts and practices, Rambus has committed one

or more acts of unfair competition within the meaning of Bus. & Prof. Code §§ 17200 et seq. 98.    99.   Rambus committed unlawful business acts and practices by: Engaging in conduct that violates the Sherman Act, 15 U.S.C. § 2; Engaging in conduct that violates California Penal Code § 135; Engaging in conduct in breach of its contractual obligations. Rambus committed “unfair” business acts and practices by: subverting the JEDEC standardization process; usurping standards that it did not invent by misusing the continuation patent application process;      engaging in intentional spoliation of evidence; demanding double royalties and royalties based on worldwide sales; devising a coercive “license or litigate” scheme; violating its commitments to the EC; intentionally making false and deceptive FRAND commitments in violation of JEDEC commitments to induce reliance on those standards;  refusing to offer licenses to the patents at issue on FRAND terms to NVIDIA and others who relied on Rambus’s FRAND commitments. 100.   Rambus committed fraudulent or deceptive business acts and practices by: subverting the JEDEC standardization process; usurping standards that it did not invent by misusing the continuation patent application process;   failing to disclose patents or pending patent applications to JEDEC; intentionally making false and deceptive FRAND commitments in violation of JEDEC commitments in order to induce reliance on those standards;  violating its commitments to the EC; - 45 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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refusing to offer licenses to the patents at issue on FRAND terms to NVIDIA and others who relied on Rambus’s FRAND commitments.

101.

Each of these acts individually and collectively constitutes unfair, immoral,

unethical, oppressive, unscrupulous, and deceptive business practices, the utility of which, if any, is outweighed by the gravity of the consequences to NVIDIA. 102. NVIDIA has suffered injury in fact and lost money and property as a direct,

proximate, and foreseeable result of Rambus’s unlawful, unfair and fraudulent or deceptive practices, including, without limitation, attorneys fees incurred as a result of Rambus’s spoliation, monies paid as a result of Rambus’s violations of its EC commitments, any amounts constituting double royalties received by Rambus, and any supracompetitive royalty amounts received by Rambus. 103. NVIDIA seeks declaratory and injunctive relief, restitution, and disgorgement of

all amounts obtained by Rambus from NVIDIA for unfair competition, and other relief as appropriate.

COUNT FOUR
(Breach of Contract to Which NVIDIA is a Third Party Beneficiary) 104. NVIDIA realleges each allegation set forth in the preceding paragraphs, 1 through

103 inclusive, and incorporates them by reference in this paragraph. 105. As set forth above, by joining JEDEC, and thereby agreeing to its guidelines,

membership agreements, bylaws, and other mutual understandings imposed by the organization, Rambus entered into an express or implied contract with and represented to JEDEC, its members, designers and sellers of products designed to be compliant with the standards promulgated by those organizations, including NVIDIA, to license the Farmwald and Barth I patents on FRAND terms. 106. At all relevant times, JEDEC’s policies, including those in its guidelines,

membership agreements, bylaws, and other mutual understandings constituted a contract that benefitted NVIDIA and other third parties who would require licenses to the technology required

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for the standards set by JEDEC. Each entity or party that would potentially implement JEDEC standards was an intended beneficiary of that contract. 107. Rambus’s breached this agreement by failing to offer to license the patents at issue

an FRAND terms. 108. Rambus’s filing of patent actions against NVIDIA in federal courts or the

International Trade Commission further constitute a breach of contract. 109. As a result of these breaches, NVIDIA has been injured, including in its business

or property. NVIDIA has been forced to expend resources defending patent disputes, and is threatened, in particular, by loss of profits, loss of customers and potential customers, loss of goodwill and product image, and uncertainty among customers and potential customers.

COUNT FIVE
(Promissory Estoppel) 110. NVIDIA realleges each allegation set forth in the preceding paragraphs, 1 through

109 inclusive, and incorporates them by reference in this paragraph. 111. Rambus made clear and definite promises to potential licensees, including

NVIDIA, through its commitments to JEDEC that it would license the Farmwald, Barth and Ware patents on FRAND terms. By joining JEDEC , and through its express and/or implied promises or failure to disclose patents or pending applications to adhere to their policies as a condition of membership, Rambus and/or its predecessors in interest also agreed not to assert patent infringement actions against other members of JEDEC or its intended beneficiaries. 112. The intended purpose of Rambus’s promises and/or failure to disclose patents or

pending applications was to induce reliance by members of JEDEC and practitioners of the adopted standards. Rambus knew or should have reasonably expected that its conduct would induce market participants, such as NVIDIA, to develop products implementing the industry standards promulgated by JEDEC. 113. NVIDIA made substantial investments in implementing the industry standards and

developed and marketed products and services in reliance on Rambus’s conduct and commitments. NVIDIA also relied on the conduct and commitment of other JEDEC members - 47 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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that contributed technology incorporated into the JEDEC standards, including by designing its products to be compliant with those standards. 114. Rambus is estopped from reneging on these promises under the doctrine of

promissory estoppel. 115. NVIDIA has been irreparably harmed and continues to be threatened with

irreparable harm as a result of its reasonable reliance on Rambus’s promises and unlawful conduct. NVIDIA has been forced to expend resources resolving patent disputes, and is threatened by loss of profits, loss of customers and potential customers, loss of goodwill and product image, uncertainty in business planning, and uncertainty among customers and potential customers. 116. NVIDIA lacks an adequate remedy at law.

COUNT SIX
(Declaratory Judgment of Non-Infringement of the Patents-in-Suit) 117. NVIDIA realleges each allegation set forth in the preceding paragraphs, 1 through

116 inclusive, and incorporates them by reference in this paragraph. 118. There is an actual and justiciable controversy within the meaning of 28 U.S.C. §§

2201 and 2202 between NVIDIA and Rambus with respect to whether any or all of the patents-insuit have been infringed directly or indirectly by NVIDIA, either literally or by virtue of the doctrine of equivalents, resulting in alleged liability for infringement. As used in these counterclaims, “patents-in-suit” means each of the 17 United States patents identified in paragraph five of Rambus’s First Amended Complaint, filed as Docket No. 4 in this action. 119. Rambus has alleged and continues to assert that NVIDIA and its products infringe

the “patents-in-suit.” 120. NVIDIA has not infringed and is not now infringing directly or indirectly, and has

not induced or contributed to and is not now inducing or contributing to the infringement of, any claim of the “patents-in-suit”, either literally or by application of the doctrine of equivalents, including, without limitation, pursuant to the doctrine of patent exhaustion.

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121.

NVIDIA seeks a declaratory judgment from this Court under Rule 57 of the

Federal Rules of Civil Procedure and 28 U.S.C. 2201 declaring that NVIDIA is not infringing and has not infringed the “patents-in-suit” and granting NVIDIA all other declaratory relief to which it may be entitled.

COUNT SEVEN
(Declaratory Judgment of Invalidity of the Patents-in-Suit) 122. NVIDIA realleges each allegation set forth in the preceding paragraphs, 1 through

121 inclusive, and incorporates them by reference in this paragraph. 123. There is an actual and justiciable controversy within the meaning of 28 U.S.C. §§

2201 and 2202 between NVIDIA and Rambus with respect to whether any or all of the “patentsin-suit” are valid or enforceable. 124. The claims of the “patents-in-suit” are invalid because they fail to comply with one

or more requirements of the Patent Laws of the United States. 125. NVIDIA seeks a declaratory judgment from this Court under Rule 57 of the

Federal Rules of Civil Procedure and 28 U.S.C. 2201 declaring that the “patents-in-suit” are invalid and granting NVIDIA all other declaratory relief to which it may be entitled.

COUNT EIGHT
(Declaratory Judgment of Implied License) 126. NVIDIA realleges each allegation set forth in the preceding paragraphs, 1 through

125 inclusive, and incorporates them by reference in this paragraph. 127. There is an actual and justiciable controversy within the meaning of 28 U.S.C.

§§ 2201 and 2202 between NVIDIA and Rambus as to whether NVIDIA has an implied license to all patent rights associated with the “patents-in-suit” based on Rambus’s membership in JEDEC and conduct in connection therewith. 128. To resolve legal and factual questions raised by Rambus, and to afford relief from

the uncertainty and controversy that Rambus’s assertions of infringement have precipitated, NVIDIA is entitled to a declaratory judgment that NVIDIA possesses an implied license to practice the “patents-in-suit.” - 49 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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COUNT NINE
(Declaratory Judgment of Unenforceability) 129. NVIDIA realleges each allegation set forth in the preceding paragraphs, 1 through

128 inclusive, and incorporates them by reference in this paragraph. 130. An actual controversy exists between Rambus and NVIDIA as to whether the

patents-in-suit patents are enforceable, as Rambus contends, or is unenforceable due to Rambus’s misuse of these patents, prosecution laches and unclean hands. 131. Rambus’s patents are unenforceable because, as detailed above, Rambus has

engaged in patent misuse by attempting to expand the physical and temporal scope of its patent grant with anticompetitive effect. 132. On information and belief, Rambus has engaged in patent misuse by, among other

things, (1) employing an abusive patent strategy to cover JEDEC and other industry standards to exclude rival technologies and subject industry participants to patent claims; (2) subverting JEDEC and misusing information learned at JEDEC meetings to file undisclosed continuation patents, thereby concealing its patent claims until the industry was locked in to the JEDEC standard believing it was not subject to patent claims; (3) misusing the patent continuation process; (4) destroying evidence in order to disadvantage its adversaries in patent infringement lawsuits in order to acquire and/or maintain its monopoly; (5) improperly expanding the scope of its patents in order to recover improper monopoly-level royalties, including double royalties; (6) violating its commitments to the EC in order to expand and entrench its monopoly power; and (7) employing a coercive “license or litigate” strategy against users of the JEDEC and other industry standards to license packages of Rambus patents and (8) refusing to withdraw this patent infringement litigation in bad faith and with the knowledge that Rambus’s patents are invalid and/or unenforceable. 133. dissipated. 134. Rambus also unreasonably and inexcusably prolonged the prosecution process of None of the misuse of the Rambus patents has been purged and its effects have not

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materially prejudiced. The asserted claims of the patents are unenforceable because they were granted to the patentee(s) after an unreasonable and unexplained delay in prosecution, which delay prejudiced NVIDIA and others. 135. Rambus and its predecessors-in-interest made material misrepresentations about,

intentionally concealed and failed to disclose its claimed rights in the patents-in-suit, and in particular that the patents read on interfacing technology standards, to among others its licensees and potential licensees, for the specific purpose of allowing and facilitating the development of intervening technology and products that it could claim infringed. 136. During the substantial period of delay in between the first filing and the most

recent filings, extending for periods of 17 years (Farmwald patents), 13 years (Barth I patents), 10 years (Barth II patents), and six years (Ware patents), substantial intervening rights of respondents and others have arisen that are substantially prejudiced by Rambus’s misuse of the patent system. In particular, the industry group JEDEC developed and promulgated several specifications of industry standards relating to memory interfacing technology. Rambus intentionally sought to claim rights that read on these standards. Additionally, during the intervening period respondents and others developed substantial technology that complies with and is reliant on these standards. 137. During the period of delay, NVIDIA and others invested substantially in,

independently developed, and used the technology later claimed by Rambus in the continuation applications. 138. suit. 139. The patents-in-suit also are unenforceable, in whole or in part, under the unclean Rambus’s abuse of the patent system forecloses its enforcement of the patents-in-

hands doctrine. After deciding to embark on its abusive use of the patent continuation application process and an aggressive litigation strategy to acquire and maintain its monopoly, Rambus destroyed millions of pages of documents from its patents files, connected to its patents and licensing negotiations, relating to its involvement with JEDEC, and concerning the patentability, validity, and enforceability of the patents-in-suit. Rambus implemented these policies in bad faith - 51 RESPONSE TO FIRST AMENDED COMPLAINT C0803343JCS

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and in anticipation of litigation concerning the patents-in-suit against NVIDIA and others. Several courts have found that Rambus’s conduct constitutes spoliation of evidence. 140. Rambus’s mass spoliation of evidence destroyed nonpublic documents that would

have been relevant and/or material to NVIDIA’s defense of this action, including at least the defenses of unenforceability due to patent misuse and violation of antitrust and unfair competition laws; equitable estoppel; and inequitable conduct. 141. patents-in-suit. Rambus’s bad faith spoliation of evidence forecloses its enforcement of the

DEMAND FOR JURY TRIAL
Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff NVIDIA Corporation hereby demands a trial by jury.

PRAYER FOR RELIEF
WHEREFORE, NVIDIA prays for relief as follows: a) That this Court declare that Rambus has attempted to monopolize and has

monopolized the Relevant Market in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2; b) That the Court preliminarily and permanently enjoin Rambus from monopolizing

and attempting to monopolize the market for technology that allows semiconductor devices to interoperate in accordance with particular industry standards (the “Relevant Market” or the “Interface Technology Market”), including technology that allows for interoperability between controllers and various forms of DRAM and SDRAM, under Section 16 of the Clayton Act, 15 U.S.C. § 16; c) That Rambus’s actions be adjudged and declared unlawful, unfair and/or deceptive

trade practices in violation of California Business & Professions Code § 17200; d) That the Court preliminarily and permanently enjoin Rambus from continuing its

anticompetitive scheme and from initiating or participating in any further anticompetitive conduct in connection to and with NVIDIA, and order it to pay restitution in an amount to be determined at trial, pursuant to, without limitation, California Business & Professions Code § 17203;

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e)

That this Court declare that the “patents-in-suit” are invalid and/or unenforceable,

and that NVIDIA has not infringed and is not now infringing any claim of the “patents-in-suit,” either literally or under the doctrine of equivalents; f) That the Court enter judgment for NVIDIA and against Rambus, dismiss entirely

and with prejudice all of the claims Rambus levied against NVIDIA, deny any all of Rambus’s requests for injunctive and other relief, and that Rambus take nothing by its First Amended Complaint against NVIDIA; g) That the Court award NVIDIA compensatory damages as a consequence of

Rambus’s conduct in an amount to be determined and trebled, as provided by Section 4 of the Clayton Act, 15 U.S.C. § 15; h) That the Court order Rambus to pay NVIDIA disgorgement and restitution in an

amount to be determined at trial; i) That the Court declare this case exceptional and Rambus be ordered to pay the

costs incurred by NVIDIA in responding to this action and NVIDIA’s reasonable attorneys’ fees pursuant to 35 U.S.C. § 285; j) That the Court award NVIDIA any other remedies to which it may be entitled,

including all remedies provided for in 15 U.S.C. § 15 and under state law; k) That the Court award NVIDIA all other costs and disbursements of this action and

other actions filed by Rambus against NVIDIA and described herein, including reasonable attorneys’ fees, pursuant to 15 U.S.C. § 15; l) For such further relief as the Court deems just, adequate and necessary.

Dated: August 1, 2011

ORRICK, HERRINGTON & SUTCLIFFE LLP

By: /s/ I. Neel Chatterjee I. NEEL CHATTERJEE Attorneys for Defendant NVIDIA CORPORATION

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