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 STAFF’S

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 Staff’s 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.

 2

I. Declaration, Deposition and Trial Testimony

Respondents have identified the deposition transcript of Complainant’s expert as a

rebuttal exhibit. See RX-1169. As Complainant’s 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 Staff’s 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
 3

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 Staff’s 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 Staff’s 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 Staff’s Objections to the Direct Exhibits of the Private Parties

(August 26, 2009) (hereinafter, “Complainant’s Response”). As stated in the Staff’s

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.

1
The 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
Staff’s objections apply to adverse 30(b)(6) witness deposition testimony to the extent
that the testimony was given in the witness’s personal capacity.
 4

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, 2009 Markman

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 Staff’s 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

Staff’s view, expert reports, claim charts and other similar exhibits are effectively

supplements to the witness’s 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 expert’s 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
 5

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, 2009 Markman 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.

2
As 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. Girdwood

Lynn I. Levine, Director
T. Spence Chubb, Supervisory Attorney
Daniel L. Girdwood, Investigative Attorney

OFFICE OF UNFAIR IMPORT INVESTIGATIONS

U.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
Certain Semiconductor Chips Inv. No. 337-TA-661
Having 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 COMMISSION
INVESTIGATIVE 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 indicated
below:

Counsel for Complainant Rambus Inc. (via email)

Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

J. Michael Jakes
Doris Johnson Hines
Christine E. Lehman
Kathleen A. Daley
Naveen Modi
901 New York Ave., NW
Washington, DC 20001-4413
202.408.4000 (ph)
202.408.4400 (fax)

ITC661-Service@finnegan.com
Counsel for Respondents NVIDIA Corporation, Asustek Computer Inc., Asus Computer Int’l
Inc., BFG Technologies, Inc., Biostar Microtech (USA) Corp., Biostar Microtech Int’l Corp.,
Diablotek Inc., EVGA Corp., GBT Inc., Giga-Byte Tech. Co., Ltd., Hewlett-Packard Co., MSI
Computer Corp., Micro-Star Int’l 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 Kopsidas
Brian R. Nester
Barbara A. Benoit
Jeffrey R. Whieldon
Kori Anne Bagrowski
Peter J. Sawert

1425 K Street NW, Suite 1100

Washington, DC 20005
202.783.5070 (ph)
202.783.2331 (fax)

Wasif Qureshi
1 Houston Center
1221 McKinney St., Suite 2800
Houston, TX 77010
713.654.5300 (ph)

Michael Chibib
John F. Horvath
David M. Hoffman
One Congress Plaza, Suite 810
111 Congress Ave.
Austin, TX 78701
512.472.5070 (ph)
512.320.8935 (fax)
Leeron G. Kalay
500 Arguello St., Suite 500
Redwood City, CA 94063
650.839.5070 (ph)
650.839.5071 (fax)

337-661NVIDIA@fr.com

/s/ Daniel L. Girdwood

Lynn Levine, Director
T. Spence Chubb, Supervising
Attorney
Daniel L. Girdwood, Investigative
Attorney

OFFICE OF UNFAIR IMPORT

INV.
U.S. Int’l Trade Comm’n
500 E Street SW, Suite 401
Washington, DC 20436
202.205.3409 (ph)
202.205.2158 (fax)