ITC - Latest ITC Docket Entries Sept 03, 2009 Part3 - 090309

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UNITED STATES INTERNATIONAL TRADE COMMISSION

Washington, D.C.

Before Honorable Theodore R. Essex

Administrative Law Judge

In the Matter of

CERTAIN SEMICONDUCTOR CHIPS

HAVING SYNCHRONOUS DYNAMIC

RANDOM ACCESS MEMORY

CONTROLLERS AND

PRODUCTS CONTAINING SAME Inv. No. 337-TA-661

COMMISSION INVESTIGATIVE STAFFS

OBJECTIONS TO THE REBUTTAL EXHIBITS

OF THE PRIVATE PARTIES

Pursuant to Order No. 17, the Commission Investigative Staff (Staff) hereby

submits its objections to the private parties rebuttal exhibits served on August 28, 2009.

In addition to the objections listed below, the Staff may seek to address or adopt one or

more of the objections set forth in the private parties objections.

As an initial matter, the Staff generally objects to the Respondents rebuttal

exhibit list as failing to comply with Ground Rule 9.8.10 because it does not refer

specifically to the exhibits being rebutted. By contrast, Complainant provided in its

rebuttal exhibit list a column that purportedly lists the exhibits being rebutted by a given

rebuttal exhibit. Because the Staffs ability to review Respondents rebuttal exhibits is

inhibited by their failure to comply with Ground Rule 9.8.10, the Staff may seek to raise

additional objections for a given exhibit on Respondents rebuttal exhibit list if and when

it becomes clear what exhibits are purportedly being rebutted thereby.


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I. Declaration, Deposition and Trial Testimony

Respondents have identified the deposition transcript of Complainants expert as a

rebuttal exhibit. See RX-1169. As Complainants expert was not testifying as an adverse

party witness at a 30(b)(6) deposition, this exhibit is not admissible under Commission

Rule 210.28(h)(2). The Staff is similarly unaware of any circumstances that would make

this exhibit admissible under Commission Rule 210.28(h)(3). Accordingly, the Staff

objects to RX-1169, but would not object to the extent this exhibit is being used for

impeachment purposes under Rule 210.28(h)(1).

Complainant has identified designations and counter designations for various

deposition transcripts. See CX-3906 through CX-3963 and CX-3965 through CX-3972.

Complainant has also identified a declaration and trial transcripts as exhibits.

See CX-3722, CX-3905, and CX-3964. These exhibits contain sworn testimony not

subject to cross-examination before the Administrative Law Judge. For reasons similarly

discussed in the Staffs objections to the private parties direct exhibits, to the extent that

Complainant offers any of the aforementioned exhibits as evidence during the hearing

and the witness was not testifying at a deposition as an adverse party witness under Rule

30(b)(6), such exhibits are not admissible under Commission Rule 210.28(h)(2).

However, the Staff understands that some of the witnesses may be unavailable, that the

private parties may have entered into stipulations as to the use of transcripts or

declarations in lieu of live witness testimony for certain witnesses, and that some of the

exhibits may be intended for use solely for impeachment purposes. Accordingly, the


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Staff objects to the aforementioned exhibits,1

but would not object to the extent such

exhibits are used for impeachment purposes under Rule 210.28(h)(1), for adverse party

witnesses under Rule 210.28(h)(2), for witnesses that are proven to be unavailable under

Rule 210.28(h)(3), or for witnesses as to which the private parties have reached an

agreement suitable to the Administrative Law Judge for the use of transcripts and

declarations in lieu of live witness testimony.

The Staff notes that, in responding to the Staffs objections to the private parties

direct exhibits, both Complainant and Respondents have referred to their stipulation as to

the use of declarations and transcripts in lieu of live testimony. Respondents Response

to the Commission Investigative Staffs Objections to Respondents Direct Exhibits and

Witness Statement and Unopposed Motion for Leave to File Out of Time at 2 (August 27,

2009) (hereinafter, Respondents Response); Complainant Rambus Inc.s Response to

Commission Investigative Staffs Objections to the Direct Exhibits of the Private Parties

(August 26, 2009) (hereinafter, Complainants Response). As stated in the Staffs

objections to the private parties direct exhibits, the Staff does not oppose the use of

declarations and transcripts in lieu of live testimony as the private parties have stipulated

to provided that the stipulation is suitable to the Administrative Law Judge. Because the

Judge has not yet indicated that this stipulation is in fact acceptable, the Staff maintains

its objections as to the use of this declaration, deposition, and trial testimony at this time.

1The Staff notes that numerous witnesses were deposed in both their individual and

corporate capacities, and such testimony is co-mingled in the transcripts. Thus, the

Staffs objections apply to adverse 30(b)(6) witness deposition testimony to the extent

that the testimony was given in the witnesss personal capacity.


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II. Exhibit RX-1168

Respondents have identified RX-1168 as a rebuttal exhibit. This exhibit appears

to be an overview of Respondents claim construction position for two of the five

asserted patents as presented by Respondents during the March 24, 2009Markman

hearing. Since Respondents have not identified what RX-1168 is supposedly rebutting,

the Staff is unable to fully respond to this exhibit at this time.

To the extent that RX-1168 is a supplementation of the testimony of Respondents

expert, the Staff objects to RX-1168 as constituting opinion testimony not subject to

cross-examination. The Staff has no objection to use of RX-1168 by Respondents expert

as a demonstrative exhibit. The Staff notes that, in responding to the Staffs objections to

the Respondents direct exhibits, the Respondents argued that because [t]he Staff and

Complainant have had, and will have, an opportunity to cross-examine Dr. Subramanian[,

Respondents expert,] about his expert report on this subject matter, objections of this

nature should be overruled. Respondents Response at 2. The Staff disagrees. In the

Staffs view, expert reports, claim charts and other similar exhibits are effectively

supplements to the witnesss testimony when introduced into evidence as direct or

rebuttal exhibits. Obviously, these exhibits cannot themselves be cross-examined.

Rather, the author of the exhibits must be cross-examined. Thus, the introduction of such

exhibits would greatly increase the scope of the experts testimony and has the potential

to greatly increase the duration and the scope of cross-examination. For at least these

reasons, the Staff maintains its objections to admitting such direct and rebuttal exhibits


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into evidence, but would not object to their use as demonstrative exhibits or for

impeachment purposes.2

To the extent that RX-1168 corresponds to Respondents presentation during the

March 24, 2009Markman hearing as to the scope of the asserted claims in two of the five

patents in suit and this exhibit is already part of the record pursuant to Commission Rule

210.38, the Staff objects to its re-introduction as a rebuttal exhibit. Briefs and other

documents containing legal argument submitted by the parties are not properly

admissible as evidence. Moreover, the pleadings and hearing transcripts are already part

of the official record pursuant to Commission Rule 210.38. The Staff understands that

the Ground Rules, e.g., Ground Rule 9.6, could be read as indicating that certain

pleadings and hearing transcripts that would otherwise be considered to be part of the

official record pursuant to Commission Rule 210.38 should be re-introduced as exhibits

and received into evidence at the discretion of the Administrative Law Judge. The Staff

does not object to the re-introduction of RX-1168 if this exhibit would otherwise be

covered by Commission Rule 210.38 and the Ground Rules indeed require such re-

introduction.

III. Witness Statements

The Staff has no objections to the rebuttal Witness Statements at this time but

may seek to address or adopt the private parties objections.

2As stated in Ground Rule 9.5.1, the parties are to submit a statement stating their

position as to the introduction of expert reports into evidence after mutually conferring.

To date, the Staff is unaware of any such meet and confer or the private parties having

submitted such a statement.


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Respectfully submitted,

/s/ Daniel L. GirdwoodLynn I. Levine, DirectorT. Spence Chubb, Supervisory Attorney

Daniel L. Girdwood, Investigative Attorney

OFFICE OF UNFAIR IMPORT INVESTIGATIONSU.S. International Trade Commission

500 E Street, S.W., Suite 401

Washington, D.C. 20436(202) 205-3409

(202) 205-2158 (Facsimile)

September 3, 2009


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Certain Semiconductor Chips Inv. No. 337-TA-661Having Synchronous Dynamic

Random Access Memory Controllers

And Products Containing Same

CERTIFICATE OF SERVICE

The undersigned certifies that on September 3, 2009, he caused the foregoing COMMISSIONINVESTIGATIVE STAFF'S OBJECTIONS TO THE REBUTTAL EXHIBITS OF THE

PRIVATE PARTIES to be filed with the Secretary, served by hand on Administrative Judge

Theodore R. Essex (2 copies), and served upon the parties (1 copy each) in the manner indicatedbelow:

Counsel for Complainant Rambus Inc. (via email)

Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

J. Michael JakesDoris Johnson Hines

Christine E. Lehman

Kathleen A. DaleyNaveen Modi

901 New York Ave., NW

Washington, DC 20001-4413202.408.4000 (ph)

202.408.4400 (fax)

[email protected]


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Counsel for Respondents NVIDIA Corporation, Asustek Computer Inc., Asus Computer Intl

Inc., BFG Technologies, Inc., Biostar Microtech (USA) Corp., Biostar Microtech Intl Corp.,

Diablotek Inc., EVGA Corp., GBT Inc., Giga-Byte Tech. Co., Ltd., Hewlett-Packard Co., MSI

Computer Corp., Micro-Star Intl Co., Ltd., Palit Multimedia Inc., Palit Microsystems Ltd.,

Pine Tech. Holdings, Ltd., and Sparkle Computer Co., Ltd. (via email)

Fish & Richardson LLP

Ruffin Cordell

Andrew KopsidasBrian R. Nester

Barbara A. Benoit

Jeffrey R. WhieldonKori Anne Bagrowski

Peter J. Sawert

1425 K Street NW, Suite 1100Washington, DC 20005

202.783.5070 (ph)202.783.2331 (fax)

Wasif Qureshi1 Houston Center

1221 McKinney St., Suite 2800

Houston, TX 77010713.654.5300 (ph)

Michael ChibibJohn F. Horvath

David M. Hoffman

One Congress Plaza, Suite 810111 Congress Ave.

Austin, TX 78701

512.472.5070 (ph)512.320.8935 (fax)


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Leeron G. Kalay500 Arguello St., Suite 500

Redwood City, CA 94063

650.839.5070 (ph)650.839.5071 (fax)

[email protected]

/s/ Daniel L. GirdwoodLynn Levine, Director

T. Spence Chubb, Supervising

AttorneyDaniel L. Girdwood, Investigative

Attorney

OFFICE OF UNFAIR IMPORT

INV.

U.S. Intl Trade Commn

500 E Street SW, Suite 401Washington, DC 20436

202.205.3409 (ph)

202.205.2158 (fax)

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ITC - Latest ITC Docket Entries Sept 03, 2009 Part3 - 090309