UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C. Before The Honorable Theodore R.

Essex Administrative Law Judge

In the Matter of CERTAIN SEMICONDUCTOR CHIPS AND PRODUCTS CONTAINING SAME Inv. No. 337-TA-753

COMMISSION INVESTIGATIVE STAFFS MOTION FOR A PAGE LIMIT ON PRE-HEARING BRIEFS

The Commission Investigative Staff (the Staff) respectfully moves for an order limiting pre-hearing briefs in this investigation to 300 pages. Other Judges at the Commission have recently started imposing such limits in light of a growing trend towards unduly large briefs that are not consistent with the limits traditionally placed on post-trial briefing. Pursuant to Ground Rule 3.2, the Staff certifies that it has made reasonable, goodfaith efforts to contact and resolve the matter with the other parties at least two business days prior to filing this motion. It is the Staffs understanding that none of the private parties are per se opposed to imposition of a page limit. However, the private parties disagree as to what limit should be imposed. Complainant Rambus Inc. (Rambus) has

2 indicated that a 400 page limit would be acceptable if the Respondents collectively share a 400 page limit (i.e., the Respondents total briefing does not exceed 400 pages). The Respondents have not provided a concrete proposal as of the filing of this motion, but are generally of the view that Rambus should be given a lower page limit than the Respondents (in total). For the reasons set forth in the Staffs Memorandum of Points and Authorities in Support of Its Motion for a Page Limit on Pre-hearing Briefs, the Staff is of the view that a 300 page limit should be imposed in this investigation, with the Respondents collectively sharing a 300 page limit, Rambus having a 300 page limit, and the Staff having a 300 page limit.

Respectfully Submitted, /s/ Daniel L. Girdwood Lynn I. Levine, Director David O. Lloyd, Supervisory Attorney Daniel L. Girdwood, Investigative Attorney OFFICE OF UNFAIR IMPORT INVESTIGATIONS U.S. International Trade Commission 500 E Street S.W., Suite 401-H Washington, D.C. 20436 202.205.3409 (ph) 202.205.2158 (fax) August 29, 2011

UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C. Before The Honorable Theodore R. Essex Administrative Law Judge

In the Matter of CERTAIN SEMICONDUCTOR CHIPS AND PRODUCTS CONTAINING SAME Inv. No. 337-TA-753

COMMISSION INVESTIGATIVE STAFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR A PAGE LIMIT ON PRE-HEARING BRIEFS

The Commission Investigative Staff (the Staff) respectfully moves for an order limiting pre-hearing briefs in this investigation to 300 pages.1 It is the Staffs understanding that none of the private parties are per se opposed to imposition of a page limit. However, the private parties disagree as to what limit should be imposed. Complainant Rambus Inc. (Rambus) has indicated that a 400 page limit would be acceptable if the Respondents collectively share a 400 page limit (i.e., the Respondents total briefing does not exceed 400 pages). The Respondents have not provided a concrete proposal as of the filing of this motion, but are generally of the view that Rambus should be given a lower page limit than the Respondents due to issues unique to a number of the Respondents in the investigation.

The Staff previously raised the possible imposition of a pre-trial brief limit during the February 10, 2011 scheduling conference in this investigation. See Transcript at 30:17-31:19. The Judge declined to impose a page limit at that time, but indicated his willingness to revisit the issue later in the investigation. See id. at 31:10-18.

2 The Staff notes that there has been a relatively recent trend towards much longer pre-hearing briefs by the private parties in Section 337 investigations, with pre-hearing briefs coming close to, and sometimes exceeding, 1,000 pages in certain investigations. In discussions regarding possible page limits in this investigation, the private parties have referenced Ground Rule 8(f)s instruction that [a]ny contentions not set forth in detail [in a pre-trial statement] as required herein shall be deemed abandoned, or withdrawn, except for contentions of which a party is not aware and could not be aware in the exercise of reasonable diligence at the time of filing the pre-hearing statements as one of the primary concerns for not being able to agree to a particular page limit. The Staff notes, however, that in the past, many private parties have complied with the same or a similar ground rule by submitting briefs that fell well short of the 300 page mark. The Staff further notes that rules very similar to Ground Rule 8(f) in this investigation have been interpreted as not requiring an overly extensive, hyper-technical identification of issues to be raised at the hearing in the pre-hearing briefs at the risk of being exposed to an argument that a partys position on a particular issue may be waived. For example, in Certain Semiconductor Chips with Minimized Chip Package Size and Products Containing Same (Semiconductor Chips), the judge found in the initial determination that Complainant had failed to raise any specific arguments concerning indirect infringement of the patents at issue and that Complainants arguments were therefore waived. Inv. No. 337-TA-605, Initial Determination at 69 (Dec. 1, 2008). The

3 ground rules for post-hearing briefs in Semiconductor Chips included a similar provision to Ground Rule 8(f) in this investigation.2 However, the Commission held that because the Staffs post-hearing brief included two pages addressing indirect infringement that the issues were preserved for all parties. Inv. No. 337-TA-605, Commn Opn at 52 (June 3, 2009) (stating that [w]e reverse the finding of waiver because the IA has preserved the issue of indirect infringement by presenting argument concerning indirect infringement in his post-hearing brief). The Commission thus considered Complainants arguments regarding indirect infringement on review based on the relatively short, two-page discussion set forth in the Staffs post-hearing briefing. Id. at 52-55. In the Staffs view, the time, cost and complexity of producing massive prehearing briefs simply to avoid a hyper-technical argument that an issue may be waived by application of Ground Rule 8(f) is unwarranted. Moreover, the burden on the Judge, the Judges attorney advisor, and the Staff of having thousands of pages of pre-hearing briefs to digest in advance of a hearing could be alleviated if the private parties were convinced that a reasoned view of Ground Rule 8(f) should apply, which could be achieved by placing a reasonable page limit on pre-hearing briefs. Indeed, the recent trend has been for imposition of such limits in other investigations.3
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Ground Rule 11.1 in Inv. No. 337-TA-605 recited in relevant part: The post-trial brief shall discuss the issues and evidence tried within the framework of the general issues determined by the Commissions Notice of Investigation, the general outline of briefs as set forth in Appendix B, and those issues that are included in the pre-trial brief and any permitted amendments thereto. All other issues shall be deemed waived. Order No. 11 (Oct. 30, 2007). See, e.g., Certain Portable Electronic Devices and Related Software, Inv. No. 373-TA-721, Order No. 44 (April 4, 2011) (ALJ Bullock granting Staffs motion for a page limit on pre-trial briefs); Certain Electronic Devices, Including Mobile Phones,
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4 Furthermore, there are many reasons specific to this investigation as to why a 300 page limit on pre-hearing briefs is reasonable. Exemplary reasons include the following: Claim Construction Order - There appear to be few disputed claim terms yet to be construed with respect to the Barth I patents asserted in this investigation in light of the prior claim construction order of the 661 investigation. See Certain Semiconductor Chips Having Synchronous Dynamic Random Access Memory Controllers and Products Containing Same, Inv. No. 337-TA-661, Order No. 12 (June 22, 2009) (construing disputed claim terms in the asserted Barth I patents). Patent Families The five asserted patents at issue in this investigation stem from only two patent families. Between the related patents, the asserted claims share many of the same, or very similar, claim terms and substantially identical specifications. Thus, this investigation is, in essence, a two patent case i.e., the Barth I patent group and the Dally patent group. Stipulations - The private parties have entered into a number of stipulations that simplify the issues to be tried, such as representative products, importation, etc. See, e.g., Stipulations Regarding Respondent Hitachi Global Storage Technologies, Inc., EDIS Doc. ID. 454292 (July 12, 2011); Stipulation Regarding Representative Broadcom Accused Products, EDIS Doc. ID. 454301 (July 12, 2011).4 Several of the corresponding sections in the briefs can thus be relatively short. Infringement Despite the large number of accused products, accused standards, and Respondent entities, the technological focus of investigation is more limited than the pleadings might

Portable Music Players, and Computers, Inv. No. 337-TA-701, Order No. 50 (Oct. 25, 2010) (ALJ Gildea warning the private parties that the pre-hearing briefing [should] not stray too far outside [the] scope of the typical 175 page limit imposed on initial posttrial briefs); Certain Electronic Devices, Including Mobile Phones, Portable Music Players, and Computers, Inv. No. 337-TA-701, Order No. 52 (Oct. 25, 2010) (ALJ Gildea noting that the private parties had submitted pre-trial briefs consisting of several boxes despite the warning provided in Order No. 50); Certain Portable Electronic Devices and Related Software, Inv. No. 337-TA-797, Order No. 2 (Aug. 12, 2011) (ALJ Gildea imposing a 175 page limit on pre-trial briefs in Ground Rule 7.2). It is the Staffs understanding that additional, related stipulations have been entered into but not yet filed with the Commission.
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5 otherwise suggest. Only a subset of the operations performed with JEDEC compliant memory devices are implicated by the asserted Barth I patents. Similarly, only a subset of the operations performed with standardized interface technology (e.g., PCI Express, SATA, and SADA interface standards) are implicated by the asserted Dally patents. There appear to be few material product-to-product or standard-to-standard differences in how the accused products perform these operations. Thus, the number of technological issues in dispute is relatively limited. Given the above, it is the Staffs view that 300 pages (12 pt font, with standard margins) without appendices should be sufficient for the parties to set forth with particularity the issues to be tried while complying with Ground Rule 8(f). Alternatively, the Staff would suggest that if the Judge declines to adopt a strict page limit, guidance may be useful as well.

Respectfully Submitted, /s/ Daniel L. Girdwood Lynn I. Levine, Director David O. Lloyd, Supervisory Attorney Daniel L. Girdwood, Investigative Attorney OFFICE OF UNFAIR IMPORT INVESTIGATIONS U.S. International Trade Commission 500 E Street S.W., Suite 401-H Washington, D.C. 20436 202.205.3409 (ph) 202.205.2158 (fax) August 29, 2011

Certain Semiconductor Chips And Products Containing Same CERTIFICATE OF SERVICE

Inv. No. 337-TA-753

The undersigned certifies that on August 29, 2011, he caused the foregoing COMMISSION INVESTIGATIVE STAFFS MOTION FOR A PAGE LIMIT ON PRE-HEARING BRIEFS to be filed with the Commission, served by hand on Administrative Law Judge Theodore R. Essex (2 copies plus a courtesy .pdf copy to Gregory.Moldafsky@usitc.gov), and served upon the parties (1 copy each) in the manner indicated below: Complainant Rambus Inc. Christine E. Lehman c/o Finnegan Henderson 901 New York Ave., N.W. Washington, D.C. 20001-4413 202.408.4000 (ph) 202.408.4400 (fax) ITC753-Service@finnegan.com Respondents Broadcom Corp. MediaTek Inc., Cisco Systems Inc. Motorola Mobility Inc., Oppo Digital Inc., Audio Partnership PLC, and nVidia Corp. Thomas Pease c/o Quinn Emanuel 51 Madison Ave., 22nd Floor New York, N.Y. 10010 212.849.7000 212.849.7100 Via Email Via Email

Quinn-ITC-753@quinnemanuel.com 337-753Kenyon@Kenyon.com (secondary counsel for Broadcom, MediaTek, Oppo Digital, and Audio Partnership) S&Jmotorola753@steptoe.com (secondary counsel for Motorola) Perkins-753-Dist@perkinscoie.com (secondary counsel for Broadcom) orrick753-service@orrick.com (secondary counsel for nVidia) 337-753Fish@fr.com (secondary counsel for nVidia) ciscoITCclientTeam@winston.com (secondary counsel for Cisco)

Respondents LSI Corp. and Seagate Technology Jonathan D. Link c/o Kilpatrick Townsend & Stockton LLP Suite 900 607 14th St., N.W. Washington, D.C. 20005 202.508.5800 (ph) 202.508.5858 (fax) lsirambusitc@kilpatricktownsend.com FM-LSI@fostermurphy.com Respondents ASUSTek Computer Inc., Asus Computer Intl Inc., Biostar Microtech (USA) Corp., Biostar Microtech Intl Corp., EliteGroup Computer System Co. Ltd., EVGA Corp., Galaxy Microsystems Ltd., Giga-Byte Tech. Co. Ltd., G.B.T. Inc., Hewlett-Packard Co., Jaton Corp., Jaton Technology TPE, Micro-Star Intl Co., MSI Computer Corp., Gracom Tech. LLC, Palit Microsystems Ltd., Pine Technology Holdings Ltd., Sparkle Computer Co. Ltd., Zotac USA Inc., and Zotac Intl (MCO) Ltd. Andrew R. Kopsidas c/o Fish Richardson 1425 K Street, N.W. - 11th Floor Washington, D.C. 20005 202.783.5070 (ph) 202.283.7331 (fax) 337-753Fish@fr.com Respondents STMicroelectronics N.V. and STMicroelectronics Inc. Eric Rusnak c/o K&L Gates 1601 K Street, N.W. Washington, D.C. 20006 202.778.9000 (ph) 202.778.9100 (fax) STMicro_ITC753@klgates.com Via Email Via Email Via Email

Respondent Hitachi Global Storage Tech. Alexander J. Hadjis c/o Morrison & Foerster 2000 Pennsylvania Ave., N.W. Suite 600 Washington, D.C. 20006 202.887.1500 (ph) 202.887.0763 (fax) mofo753-service@mofo.com Respondent Garmin Intl Louis S. Mastriani c/o Adduci, Mastriani & Schaumberg LLP 1200 Seventeenth St., N.W. - 5th Floor Washington, D.C. 20036 202.467.6300 (ph) 202.466.2006 (fax) GAR-3@adduci.com /s/ Daniel L Girdwood Office Of Unfair Import Investigations U.S. International Trade Commission 500 E Street, S.W., Suite 401-H Washington, D.C. 20436 202.205.3409 202.205.2158 (Facsimile) Via Email Via Email