Case3:08-cv-03343-SI Document261

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(All parties and counsel listed on Signature Page)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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

Case No. C-10-5448-RS C-08-3343-SI STATEMENT OF CONDITIONAL NONOPPOSITION TO NVIDIA'S MOTION TO CONSOLIDATE Date: Time: Court: Judge: November 17, 2011 1:30 p.m. Courtroom 3, 17th Floor Honorable Richard Seeborg

STATEMENT OF CONDITIONAL NON-OPPOSITION TO NVIDIA'S MOTION TO CONSOLIDATE, CASE NOS. C-10-5448-RS AND C-08-3343-SI

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NVIDIA seeks to consolidate a suit brought by Rambus more than three years ago, referred to as NVIDIA I, 1 with a suit brought just last December, NVIDIA II. 2 Because NVIDIA II has already been administratively related to suits brought by Rambus against Broadcom Corporation ("Broadcom"), LSI Corporation ("LSI"), Mediatek Inc. ("Mediatek"), and STMicroElectronics, N.V. ("STMicro") (collectively, "the Related Cases"), 3 granting NVIDIAs motion would, effectively, relate the NVIDIA I case to the Related Cases. The defendants in the Related Cases do not oppose the consolidation so long as the consolidation will not prejudice their ability to litigate their own cases, including by accelerating the pace of the Related Cases, imposing the protective order of the NVIDIA I case on the Related Cases, or limiting the defendants' own voices. Defendants in the Related Cases conditionally do not oppose consolidation because the Farmwald-Horowitz patents asserted by Rambus in NVIDIA I are the same patents asserted by Rambus in the Related Cases. It makes little sense and would be a waste of judicial and party resources to have two pending cases in the same district involving the same patents. NVIDIA is correct that consolidation will result in a more efficient use of resources. However, NVIDIA I and the Related Cases have different procedural postures. The NVIDIA I case, being filed more than three years ago, has progressed further into the discovery stage than the Related Cases. Phased discovery has been proceeding for several years, with numerous disputes already briefed to and resolved by Judge Infante (the assigned special master);

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Rambus Inc. v. NVIDIA Corp., No. C-08-3343-SI. In NVIDIA I, Rambus asserts that NVIDIA infringes six patents of the Farmwald/Horowitz patent family, seven patents of the Barth patent family, and four patents of the Ware patent family. Rambus Inc. v. NVIDIA Corp., No. C-10-5448-RS. In NVIDIA II, Rambus asserts that NVIDIA infringes six patents of the Dally patent family. The Court has completely stayed NVIDIA II because the Dally patents are the subject of an investigation pending before the United States International Trade Commission, Inv. No. 337-TA-753 (the 753 Investigation). Rambus Inc. v. Broadcom Corp., No. C 10-5437; Rambus Inc. v. LSI Corp., No. C 10-5446; Rambus Inc. v. Mediatek Inc., No. C 10-5447; Rambus Inc. v. STMicroElectronics, N.V., No. C 10-5449. In these cases, Rambus asserts that the Defendants infringe ten patents of the Farmwald/Horowitz patent family, three patents of the Barth patent family, and six patents of the Dally patent family. As in NVIDIA II, litigation of the Barth and Dally patents has been stayed pending the outcome of the '753 Investigation. -1STATEMENT OF CONDITIONAL NON-OPPOSITION TO NVIDIA'S MOTION TO CONSOLIDATE, CASE NOS. C-10-5448-RS AND C-08-3343-SI

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a protective order is in place; invalidity contentions were served several months ago; and a claim construction hearing is set for March of 2012. By contrast, the Related Casesfiled in December of last yearhave only just started the discovery process. No documents have been exchanged, a protective order is still being negotiated, invalidity contentions are not due until February, and the claim construction hearing is set for July of 2012. Furthermore, the Related Cases have been assigned to have Judge Walker as their Special Master, 4 In other words, the other four pending cases are in an earlier stage than NVIDIA I. The Court in the Related Cases recently set a procedural schedule after briefing from the parties. Should the NVIDIA I matter be related to the Related Cases, the fact that Rambus's first case against NVIDIA has been pending so long should not now be, or later become, a justification for artificially accelerating the schedule of the later-filed cases, which involve defendants who are new to the asserted Farmwald-Horowitz patents. The existence of a protective order in the NVIDIA I matter should not be determinative of the appropriate protective order in any of the Related Cases, as the parties are differently situated and have different interests that need protection. Finally, to the extent that page or time limits are applied to the defendant group as a whole, adding a new party necessarily reduces the respective voices of each of Broadcom, LSI, Mediatek, and STMicro. This is not a proper goal of consolidation, and thus this effect should be explicitly prevented in any consolidation. If the Court grants NVIDIAs motion to consolidate but adopts the current NVIDIA I case schedule, rather than the schedule adopted by the Court on September 19, 2011, the defendants in the Related Cases will suffer undue prejudice. Consolidation may properly be denied in instances where the cases are at different stages of preparedness for trial. Mills v. Beech Aircraft, 886 F. 2d 758, 762 (5th Cir. 1989) (holding that denial of motion to consolidate was proper when a party did not want to be confined to the discovery performed or the pretrial order submitted). Defendants would suffer prejudice by being unable to prepare their invalidity
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Defendants understand that Judge Infante is unwilling to serve as the Special Master for the Related Cases. -2STATEMENT OF CONDITIONAL NON-OPPOSITION TO NVIDIA'S MOTION TO CONSOLIDATE, CASE NOS. C-10-5448-RS AND C-08-3343-SI

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contentions and claim construction contentions pursuant to the schedule set by the Court on September 19, 2011. Consolidation is only proper here if the NVIDIA I schedule is modified to match the schedule for the Related Cases. Thus, should the Court be inclined to grant NVIDIA's consolidation motion, Broadcom, LSI, Mediatek, and STMicro request that the Court do so in a manner that will not prejudice these four parties' rights. Specifically, Broadcom, LSI, Mediatek, and STMicro request that: (1) the Court instruct Judge Walker to give no weight to the existing NVIDIA I protective order in considering the other parties' respective protective order proposals; (2) the Court recognize that the greater length of time that the NVIDIA I case has been pending should not alter the schedule now set for the Related Cases; and (3) the Court also recognize that the addition of NVIDIA to the Related Cases should lead to a concomitant increase in page and time limits for briefing, hearing, discovery limits, and other litigation events, as appropriate. DATED: October 27, 2011 PERKINS COIE LLP By: /s/ Heather R. Bobkova Bobbie J. Wilson, Bar No. 148317 BWilson@perkinscoie.com Heather R. Bobkova, Bar No. 257014 HBobkova@perkinscoie.com Amanda J. Tessar, admitted pro hac vice CO Bar No. 33173 ATessar@perkinscoie.com

Attorneys for Defendant BROADCOM CORPORATION DATED: October 27, 2011 QUINN EMANUEL URQUHART & SULLIVAN LLP By: /s/ Gillian Thackray Charles K. Verhoeven (SBN 170151) charlesverhoeven@quinnemanuel.com Sean Pak (SBN 219032) seanpak@quinnemanuel.com Gillian Thackray (SBN 196756) gillianthackray@quinnemanuel.com 50 California Street, 22nd Floor San Francisco, California 94111-4788 Telephone: (415) 875-6600 Facsimile: (415) 875-6700

Attorneys for MEDIATEK INC. -3STATEMENT OF CONDITIONAL NON-OPPOSITION TO NVIDIA'S MOTION TO CONSOLIDATE, CASE NOS. C-10-5448-RS AND C-08-3343-SI

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DATED: October 27, 2011

KILPATRICK TOWNSEND & STOCKTON LLP By: /s/ Robert J. Artuz David E. Sipora (SBN 124951) dsipiora@kilpatricktownsend.com 1400 Wewatta Street, Suite 600 Denver, CO 80202 Telephone: (303) 571-4000 Facsimile: (303) 571-4321 Julie J. Han (SBN 215279) jhan@kilpatricktownsend.com Robert J. Artuz (SBN 227789) rartuz@kilpatricktownsend.com 1080 Marsh Road Menlo Park, CA 94025 Telephone: (650) 326-2400 Facsimile: (650) 326-2422

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Attorneys for LSI CORPORATION 11 12 13 By: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4STATEMENT OF CONDITIONAL NON-OPPOSITION TO NVIDIA'S MOTION TO CONSOLIDATE, CASE NOS. C-10-5448-RS AND C-08-3343-SI

DATED: October 27, 2011

K & L GATES LLP /s/ Deirdre M. Digrande Michael J. Bettinger (SBN 122196) mike.bettinger@klgates.com Stephen M. Everett (SBN 121619) stephen.everett@klgates.com Curt Holbreich (SBN 168053) curt.holbreich@klgates.com Elaine Y. Chow (SBN 194063) elaine.chow@klgates.com Deirdre M. Digrande deirdre.digrande@klgates.com Holly Hogan holly.hogan@klgates.com Four Embarcadero Center, Suite 1200 San Francisco, CA 94111 Tel: (415) 882-8200 Fax: (415) 882-8220

Attorneys for STMICROELECTRONICS N.V. and STMICROELECTRONICS, INC.

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Filers Attestation I, Heather R. Bobkova, am the ECF user whose identification and password are being used to file this STATEMENT OF CONDITIONAL NON-OPPOSITION TO NVIDIA'S MOTION TO CONSOLIDATE. In compliance with General Order 45.X.B., I hereby attest that the above-named signatories concur in this filing. DATED: October 27, 2011 /s/ Heather R. Bobkova

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STATEMENT OF CONDITIONAL NON-OPPOSITION TO NVIDIA'S MOTION TO CONSOLIDATE, CASE NOS. C-10-5448-RS AND C-08-3343-SI