Case3:08-cv-03343-SI Document245

Filed08/29/11 Page1 of 2

ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 MARSH ROAD MENLO PARK, CALIFORNIA 94025 tel +1-650-614-7400 fax +1-650-614-7401
WW W . O R R IC K . C O M

August 29, 2011 The Honorable Susan Illston United States District Court for the Northern District of California 450 Golden Gate Avenue, Courtroom Ten San Francisco, CA 94102 Re:

I. Neel Chatterjee (650) 614-7356 nchatterjee@orrick.com

Rambus v. NVIDIA, Case No. 08-cv-03343 SI / NVIDIA v. Rambus, Case No. 08-cv-05500 SI

Dear Judge Illston: We write in response to the Motion to Compel and for Expedited Briefing that was submitted by Rambus this morning in the above-referenced case. NVIDIA believes this motion should be heard by Judge Infante because it is a discovery matter and involves Judge Infantes August 24, 2011 Order. This Order stayed all infringement-related discovery because Rambus did not comply with its disclosure obligations under Patent Rule 3-1. August 24, 2011 Order at 18:12-13, attached hereto as Exh. A (Given Rambuss failure to comply with Patent L.R. 3-1, a stay of infringement-related discovery is appropriate. Rambuss arguments to the contrary are unpersuasive.); see also Exh. A at 18:5-7 (Until [a] plaintiff meets the burden of providing infringement contentions compliant with Patent L.R. 3-1, the Court will not order defendant to proceed with discovery.) (quoting Bender v. Maxim Integrated Prods., Inc., 2010 WL 1135762 at *2 (N.D. Cal. Mar. 22, 2010) (Illston, J.)). NVIDIA further believes that Rambuss request for expedited briefing is not appropriate. Notably, this issue has arisen because Rambus refused to provide proper disclosures in the face of clear authority from this Court and others in the Northern District. See, e.g., Exh. A at 5:13-17 (Rambus did not comply with Rule 3-1(f) because it did not specify the priority dates); 8:26-9:24 (Rambus did not comply with L.R. 3-1(b) because it did not properly identify the Accused Products); 12:10-14:23 (Rambus did not comply with L.R. 3-1(c) because it did not map the elements of each asserted claim to any accused NVIDIA product); 17:7-22 (portions of Rambuss disclosure fail to comply with L. R 31(d) regarding indirect infringement).1 NVIDIA should not be required to engage in expedited briefing over a holiday weekend as a result of Rambuss steadfast refusal to follow the rules. In addition, we note that NVIDIA intends to submit a motion pursuant to Local Rule 6-3 to Modify the Schedule of Disclosures and Markman Dates to account for Judge Infantes ruling and Rambuss failure to provide adequate infringement disclosures. This schedule will also allow for greater
1

Rambuss request for expedited briefing is also procedurally improper. To obtain expedited briefing, Rambus must separately move to shorten time pursuant to Local Rule 6-1 and 6-3, and fulfill the requirements of those rules. NVIDIA must be given four days to oppose that specific request. Rambus has not followed this procedure, but instead conflated its request with the underlying motion to compel.

Case3:08-cv-03343-SI Document245

Filed08/29/11 Page2 of 2