Beruflich Dokumente
Kultur Dokumente
NVIDIA CORPORATION, )
)
Plaintiff, )
) Civil Action No. 1:08-cv-473
v. )
RAMBUS, INC., )
)
Defendant. )
)
)
OHS West:260522266.13
Page
I. INTRODUCTION ................................................................................................... 1
II. FACTS..................................................................................................................... 3
III. ARGUMENT .......................................................................................................... 6
A. Standard of Review ...................................................................................... 6
B. Nvidia’s Antitrust Claims Are Adequately Pled .......................................... 7
1. Rambus’s characterization of Nvidia’s Antitrust claim is
wrong................................................................................................. 7
a. Rambus’s continuation application practice is
anticompetitive ....................................................................... 9
b. Rambus's appropriation of standards information is
anticompetitive ..................................................................... 11
c. Rambus's package licensing scheme is anticompetitive. ..... 13
2. Rambus Confuses Exclusionary Conduct With Damage
Caused by Such Conduct................................................................. 14
3. Previous Rambus Cases Are Not Controlling................................. 16
C. Nvidia Has Pled A Claim Under N.C. Gen. Stat. § 75-1.1 ........................ 17
D. Nvidia Has Pled A Claim Under N.C. Gen. Stat. § 75-2.1 ........................ 19
IV. RAMBUS'S MOTION FOR A MORE DEFINITE STATEMENT
SHOULD BE DENIED......................................................................................... 20
V. CONCLUSION ..................................................................................................... 20
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Page
FEDERAL CASES
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Erickson v. Pardus,
127 S. Ct. 2197 (2007) ................................................................................................... 6
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Qualcomm v. Broadcom,
501 F.3d (3d Cir. 2007)................................................................................................. 7
-iv-
DOCKETED CASES
Hynix v. Rambus,
N.D. Cal. Case No. 06-cv-00244 ............................................................................... 2, 4
Micron v. Rambus,
Case No. 00-792-JJF ...................................................................................................... 5
Rambus v. Nvidia,
Case No, C-08-03343-SI................................................................................................ 7
STATE STATUTES
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motion to dismiss rests on three faulty premises: (1) that Nvidia Corporation’s (“Nvidia”)
“entire claim rests on its contention that Rambus asserted” objectively baseless patent
claims, (2) that other courts have considered and rejected Nvidia’s claims, and (3) that
Nvidia has not pled sufficient North Carolina connections with respect to its state law
claims.
allegations of damages that resulted from the conduct. Contrary to Rambus’s argument,
Nvidia’s conduct allegations are not based on the initiation of patent litigation. Rather,
the anticompetitive conduct underlying the antitrust claims is made clear in paragraph 1
1
“A continuation application is a patent application that is entitled to the filing date of an
earlier ‘parent’ application. See 35 U.S.C. section 120. See, generally, Schwartz, “Patent
Law and Practice,” Federal Judicial Center (2d ed. 1995) at 19-21. A patent issued from
a continuation application benefits from the earlier filing date for the purpose of
determining its validity in view of prior art. ‘A continuation application is an application
whose specification is the same as that of the parent application, but whose claims may
be the same or different from those of the parent application.’” DiscoVision Associates v.
Disc Manufacturing, Inc., 1997 U.S. Dist. LEXIS 7507, *21, n. 6 (D. Del. April 3, 1997).
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anticompetitive and exclusionary activities, Nvidia has suffered damages. See Hynix
Second, Rambus’s assertion that Nvidia’s FAC duplicates claims from previous
with two issues: (1) Rambus’s violations of the patent disclosure rules of a standards
setting body called JEDEC by participating in the standards body and simultaneously not
disclosing its patents to JEDEC and (2) Rambus’s spoliation of evidence of its wrongful
acts in anticipation of litigation. None of these prior cases considered the entire scope of
Rambus’s anticompetitive business model. Nor has any court determined the merits of an
antitrust claim against Rambus at the motion to dismiss stage. This case, unlike others,
surreptitiously appropriating information that its competitors had revealed to JEDEC for
claims to cover current and emerging JEDEC standards, and coercing users of those
Third, Rambus’s challenge to Nvidia’s North Carolina claims fails. Rather than
focusing on the pleadings, Rambus seeks to challenge the factual underpinnings of the
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Carolina commerce, businesses and consumers. The pleadings establish that Nvidia: (1)
maintains an office at 2700 Meridian Pkwy, Suite 100, Durham, North Carolina, 27713;
(2) engages in numerous activities in its North Carolina office, including research and
development of its graphics processing units (“GPUs”); (3) maintains substantial business
Epic/Unreal (who develop games that run on NVIDIA’s GPUs), and personal computer
system companies with substantial operations in North Carolina, such as Lenovo and
IBM, who use NVIDIA GPUs and technology in their systems; and (4) makes GPUs that
Research Triangle Park facility. FAC at ¶ 9. Nvidia has also pled that Rambus’s actions
caused substantial injury to North Carolina business and consumers. FAC at ¶¶ 1, 4, 11,
and 12.
II. FACTS
Rambus’s anticompetitive conduct at issue in this case began long before Rambus
filed its patent infringement lawsuit against Nvidia. The FAC sets forth a detailed history
The story began while Rambus was a member of JEDEC. While a member of
altered its patent applications based on information learned at JEDEC meetings (but that
it did not invent itself). Rambus then secretly filed “piggy-back” patent applications and
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¶¶ 78-80, 86-87. Once the industry was locked in to the then emerging JEDEC standard,
Rambus approached the companies adhering to the JEDEC standards and sought
supracompetitive royalties. Id. at ¶¶ 139-141. This strategy was recognized in the Hynix
case, Hynix v. Rambus, N.D. Cal. Case No. 06-cv-00244, Dkt. 386 at 7, attached hereto
as Exhibit A. It was through this discovery, i.e. that patents could be drafted to cover an
supracompetitive package licenses, that the anticompetitive Rambus business model was
at ¶¶ 88-100. Rambus continued to hide the scope of its blocking patents from JEDEC
and abused the patent continuation application process to try and cover then-current and
developing JEDEC standards. Id. at ¶ 80. The FAC alleges that “Rambus’s continuation
patent applications have spawned dozens (if not hundreds) of patents and thousands of
claims.” Id. at ¶ 3. These continuation patents did not have a legitimate business
justification. Id. Indeed, Rambus has expanded a single patent application that it had
filed in 1990 into hundreds of claims in over 45 patents. Id. at ¶ 129. The purpose of this
When scrutinized for some of this behavior, Rambus has not always fared well but
has strategically avoided accountability. For example, Rambus filed its first lawsuit on
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of the Eastern District of Virginia against Infineon.2 See Rambus, Inc. v. Infineon Tech.
AG, 164 F. Supp. 2d 743 (E.D. Va. 2001). The Court stated from the bench that
Rambus’s patents were unenforceable and indicated that it would reduce such an order to
writing. In response, Rambus settled the case almost immediately for next to nothing for
the sole reason of saving its portfolio. FAC at ¶18. Later, Samsung would file a
declaratory judgment action against Rambus in the Eastern District of Virginia. See
Samsung, 439 F. Supp. 2d 524, 527 (E.D. Va. 2006). Rambus filed a motion to transfer
venue, arguing that Virginia was no longer a convenient forum to litigate its patent
claims. Rambus’s motion was denied in part, because, Rambus’s motion to transfer was
litigation against Samsung” in the Eastern District of Virginia. Id. at 532, n. 3. After
losing the motion to transfer, Rambus offered Samsung a covenant not to sue on the
patents at issue in the Eastern District of Virginia to avoid having that Court exercise
jurisdiction. Samsung Electronics. Co. v. Rambus, Inc., 523 F.3d 1374 (Fed. Cir. 2008).
Despite giving the covenant not to sue, Rambus sued Samsung on other patents in the
same families in the Northern District of California. See Rambus, Inc. v. Samsung
2
If Rambus's arguments related to venue in its currently pending motion to transfer are
accurate, it had little reason to file there.
3
In addition to these venues, Rambus has litigated in other fora, as set forth in paragraph
17 of the FAC Rambus has also had extensive activity before the FTC and the European
Union. The FTC originally found that Rambus violated section 5 of the FTC Act because
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Before filing its patent infringement action, Rambus demanded a package license for all
Rambus patents with royalties based upon worldwide sales. Id. at ¶ 106. Alternatively,
Rambus demanded that Nvidia abandon standards compliance and adopt the failed
Rambus technology. Id. Either option would have eliminated Nvidia’s ability to
compete. Id. Nvidia refused to capitulate, and as a result Rambus sued it for patent
III. ARGUMENT
A. Standard of Review
Capital One Bank (USA) N.A. v. Hess Kennedy Chtd., LLC, 2008 U.S. Dist. LEXIS
51252 (E.D. VA. July 3, 2008) (citing Fayetteville Investors v. Commercial Builders,
Inc., 936 F.2d 1462, 1471 (4th Cir. 1991)). On a motion to dismiss, the court must accept
the allegations in the complaint as true, and is bound to give a plaintiff the benefit of
every reasonable inference that can be drawn from the complaint. Anderson v. Sara Lee
Corp., 508 F.3d 181, 188 (4th Cir. 2007) (citing Erickson v. Pardus, 127 S. Ct. 2197,
2200 (2007) (citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007)); Edwards
v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); see also DiscoVision Associates,
of its acts before JEDEC. The FTC opinion was later overturned. In addition, one case,
Micron v. Rambus, Case No. 00-792-JJF, remains pending in the District of Delaware.
Nvidia is informed and believes other pending cases involving Rambus may exist in other
fora as well.
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Complex antitrust cases such as this are particularly ill-suited for summary
dismissal because they are fact intensive. See Dickson v. Microsoft Corp., 309 F.3d 193,
212 (4th Cir. 2002). Where, as here, facts are pled in detail and set forth a showing of
Continental Ore Co., v. Union Carbide & Carbon Corp., 370 U.S. 690, 698-99 (1962).
Relying upon Prof. Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc.,
508 U.S. 49, 60 (1993) (“PRE”), Rambus incorrectly asserts that Nvidia’s antitrust
allegations “rest on its contention that Rambus’s patent infringement suit in California is
The elements of a Sherman Act section 2 violation are (i) either monopoly power
with a specific intent to monopolize. Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,
472 U.S. 585, 595-96 (1985); see also Oksanen v. Page Memorial Hosp., 945 F.2d 696,
710 (4th Cir. 1991); see also DiscoVision, 1997 U.S. Dist. LEXIS 7507, at *22 (quoting
Spectrum Sports, Inc. vs. McQuillan, 506 U.S. 447, 459 (1993)). Exclusionary conduct is
conduct other than competition on the merits. Qualcomm v. Broadcom, 501 F.3d 297,
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by a firm without monopoly power. Allied Tube and Conduit Corp. v. Indian Head, Inc.,
486 U.S. 492 (1988); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S.
690, 707-708 (“it is well settled that acts which are themselves legal lose that character
The exclusionary conduct in this case is not premised on the assertion of patent
claims in a lawsuit, making PRE irrelevant. See Hynix 527 F. Supp. 2d at 1090. PRE
dealt only with a situation in which the lawsuit standing alone was alleged to have
created an unlawful monopoly. PRE, 508 U.S. at 72-73 (Stevens, concurring). Contrary
to Rambus’s argument, the FAC alleges the following exclusionary conduct distinct from
Failing to disclose relevant patents and patent applications and deceiving JEDEC,
its members and others about the scope of Rambus’s purported patents. FAC at ¶¶
66-93, 114-125.
allegations – combined with the allegation that Rambus has monopoly power in the
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motion ignores nearly all of these allegations. While these allegations read together can
In its motion to dismiss, Rambus ignores Nvidia’s allegation that Rambus used
continuation patent applications to conceal pending patent claims from the industry and
to delay issuance until the industry had become locked-in to JEDEC standards. FAC at ¶
130. This strategy has already been recognized, in a different context, by the Hynix
Court. Hynix v. Rambus, N.D. Cal. Case No. 06-cv-00244, Dkt. 386 at 7 (“Evidence also
suggests that Rambus repeatedly delayed issuing its patents or informing others about
them until the DRAM industry committed to making infringing products” and “Internal
Rambus documents also strongly suggest that Rambus was drafting its claims to cover
application practice is actionable under the antitrust laws. See DiscoVision, 1997 U.S.
Dist. LEXIS 7507 at *26 (finding that plaintiff’s allegations of abusive patent
continuation applications and coercive package licensing properly stated causes of action
under federal and state competition laws); see also SCM Corp. v. Xerox Corp., 463 F.
Supp. 983, 1007 (D. Conn. 1978), remanded, 599 F.2d 32 (2d Cir.), on remand, 474 F.
Supp. 589 (D. Conn. 1979), affirmed and remanded, 645 F.2d 1195 (2d Cir. 1981)
(noting that “once a company had acquired monopoly power, it could not thereafter
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the purpose of blocking the development and marketing of competitive products . . .”).
issue here. The plaintiff alleged that the defendant had monopolized the relevant market
by, among other things, filing numerous continuation applications. The Court noted that,
although the patent laws do not limit the number of continuation applications that can be
filed, and thus there was no Patent Act violation, the filing of multiple continuation
applications can constitute an anticompetitive delaying tactic that can violate Sherman
For example, Mark Lemley (the William Neukom Professor of Law at Stanford
University) and The Honorable Kimberly Moore (United States Judge for the Federal
Lemley and Moore, Ending Abuse of Patent Continuations, 84 Bost. U. L. Rev. 63, 65
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Guidelines for the Licensing of Intellectual Property, 4 Trade Reg. Rep. (CCH) ¶¶ 13,
132 (1995); Areeda ¶¶ 704b and 707a (discussing anticompetitive nature of patent
accumulation).
While abusive patent application continuation practice in and of itself can violate
the antitrust laws, Nvidia’s case presents particularly compelling facts because of
JEDEC meetings to use in its patent prosecution strategy. Rambus’s conduct was
equivalent to stealing the information necessary for its continuation patent strategy.
In Infineon, a case cited and relied upon by Rambus, the Court recognized that
Rambus could violate the antitrust laws by expanding a patent’s claims based on
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entrench a monopolist’s market power. See Areeda & Hovenkamp, Antitrust Law ¶ 707a
be a § 2 ‘exclusionary practice.’”). See also Areeda ¶ 704b (“[w]e would treat improper
procurement of a valid patent in the same way we would treat the acquisition of a patent
from another.”). Here, Rambus improperly procured its patents because its patents were
based on information that it had expropriated from JEDEC and used for purposes at odds
with JEDEC’s mission, not on information it had developed itself. See FAC at ¶ 70
(“Rambus began to alter its patent applications based on information it had learned at
JEDEC meetings, but that it did not invent itself”), ¶ 39 (JEDEC maintains “a
published standards”).
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Patent licensing contracts are subject to the Sherman Act. United States v. New
Winkle, Inc., 342 U.S. 371 (1952). An entity that “attempt[s] indirectly to extend the
scope of a lawful monopoly . . . beyond the terms of the grant” violates the antitrust
laws.” United States v. Associated Press, 52 F. Supp. 362, 369 (S.D.N.Y. 1943); see also
Atari Games Corp. v. Nintendo of Am., Inc., 897 F.2d 1572, 1576 (Fed. Cir. 1990).
The FAC alleges that Rambus unlawfully seeks to collect double royalties for the
use of the same patent, seeks to tie patents related to the JEDEC standard to patents that
are unrelated, and claims royalties on Nvidia products that could not, under any
indirectly extend the scope of a patent monopoly can violate the antitrust laws. See
Zenith Radio v. Hazeltine Research, Inc., 395 U.S. 100 (1969); U.S. v. Paramount
Pictures, Inc., 334 U.S. 131, 159 (1948) (holding that conditioning licensing of desired
Sherman Act); United States v. Associated Press, 52 F.Supp. 362, 369 (S.D.N.Y. 1943);
see also Atari Games Corp. v. Nintendo of Am., 897 F.2d 1572, 1576 (Fed. Cir. 1990).
Indeed, Sherman Act claims that a monopolist coerced others to pay supracompetitive
royalties based upon threats related to patents alleged to cover industry standards have
withstood Rule 12(b)(6) challenges. See Broadcom Corp. v. Qualcomm Inc., 501 F.3d
297 (3rd. Cir. 2007); see also Gideon Parchomovsky v. R. Polk Wagner, Patent
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licensing of patents).
exclusionary conduct. Contrary to Rambus’s argument, the FAC does not allege that
underlying the violation of Section 2 of the Sherman Act. Rather, Nvidia alleges that the
expenses that Nvidia has incurred in addressing Rambus’s exclusionary practices are part
Unlike the situation in PRE, Rambus’s patent infringement lawsuit is not the cause of the
antitrust violation but rather part of the damage resulting from the violation.4 Rambus
ignores the authority emphasizing the importance of the well recognized difference
between exclusionary conduct and damage. See, e.g., Angelico, M.D. v. Lehigh Valley
Hosp. Inc., 184 F.3d 268, 275 n.2 (3d Cir. 1999) (holding that the district court had
“erred by…confusing antitrust injury with an element of a claim under section one of the
Sherman Act, 15 U.S.C. § 1.”); see also 2 Areeda, ANTITRUST LAW at ¶ 335f.
4
Notably, many of the patents asserted against Nvidia have not been at issue in other
cases. See Rambus v. Nvidia, Case No, C-08-03343-SI, Dkt. 31, attached hereto as
Exhibit B. Application of the “objectively baseless” standard, even if it were a correct
statement of law, would not be applicable here as the Hynix case dealt with some similar
and some different patents.
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exclusionary conduct and not just constitute damages, Nvidia would still have a proper
Sherman Act § 2 claim. When, as here, the monopoly power is created by other
recovery of damages, including the cost of defending litigation, caused by the other
exclusionary conduct. See, e.g., Atari, 897 F.2d at 1576-77; Kobe v. Dempsey Pump Co.,
198 F.2d 416 (10th Cir. 1952), cert. denied 344 U.S. 837 (1952).
In fact, in Hynix – the case that Rambus argues controls the outcome of this case –
the Court held that where patent litigation is used to further an overall scheme of
the anticompetitive scheme. See Hynix Semiconductor, Inc. v. Rambus, Inc., 527 F.
Id. at 1098.
Similarly in this case, Rambus’s alleged misconduct before JEDEC, its abusive
patent continuation applications, and its coercive patent licensing practices independently
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Rambus also incorrectly suggests that Nvidia’s claims should be dismissed merely
because the jury found in favor of Rambus in Hynix Semiconductor Inc. v. Rambus Inc.,
2008 U.S. Dist. LEXIS 60838 at *11-12 (N.D. Cal. July 24, 2008). The fact that the
plaintiffs in Hynix did not present enough evidence at trial to convince the jury to rule in
their favor does not mean that Nvidia should be denied the opportunity to prove its own
case against Rambus – particularly when the court issued a carefully reasoned decision
permitting the case to go to the jury. Hynix, 527 F. Supp. 2d at 1084 (N.D. Cal. 2007).
that were not raised in Hynix, such as the following: (i) Rambus abused the patent
application process (even after it left JEDEC) to cover technology it did not invent; (ii)
Rambus delayed the issuance of the patents to try and cover current and future JEDEC
standards; and (iii) Rambus engaged in a scheme of coercive package licensing. That
conduct is exclusionary whether or not Rambus had a duty to disclose its pending patent
applications to JEDEC. See DiscoVision, 1997 U.S. Dist. LEXIS 7507 at *26-28. Thus,
the jury’s finding in Hynix that “JEDEC members did not share a clearly defined
5
Rambus does not raise the Noerr-Pennington defense – nor could it – since Nvidia's
antitrust claims are not focused on Rambus's filing of a patent infringement action as set
forth herein.
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affecting [North Carolina] commerce.” Rambus contends that Nvidia has no standing to
allege a violation under N.C. Gen. Stat. § 75-1.1 because Nvidia has not demonstrated
that its operations within the state of North Carolina have been injured. Rambus’ Mem.
at 7-8. Rambus is wrong under the law and the facts are pled.
making the Act available only to plaintiffs whose in-state business operations have been
injured.” Hardee’s Food Systems, Inc. v. Beardmore, 1997 U.S. Dist. LEXIS 9671, *9
(E.D.N.C. June 6, 1997). In fact, in 1977 the North Carolina General Assembly amended
§ 75-1.1 by deleting the words “within this state” from the statutory language, which has
been interpreted to expand the scope to the fullest extent permissible under conflicts of
Fiberglass, 640 F. Supp. 1411, 1427 (E.D.N.C. 1986). Indeed, North Carolina courts
have sustained claims with significantly fewer ties to North Carolina than are alleged
here. See Hardee’s, 1997 U.S. Dist. LEXIS 9671 at *8 (citing Broussard v. Meineke
6
Notably, the Infineon court and the FTC (prior to reversal by the D.C. Circuit) both
found that Rambus had engaged in improper behavior with respect to its activities before
JEDEC.
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franchise operating under a license agreement with the North Carolina defendant. The
Court held that the defendant’s alleged conduct “might also be said to affect North
have profited by them.” Id. Taking the allegations in the complaint as true, Hardee’s
held that there was a sufficient legal basis to sustain plaintiff’s claim under §75-1.1. Id.
In Sun Belt Rentals, Inc. v. Head & Engquist Equipment, L.L.C., 2003 NCBC
LEXIS 9, at *17-19 (N.C. Super. July 31, 2003), the Court held that a multistate scheme
impacting a number of states was within the reach of § 75-1.1 because the contacts were
not incidental. Here, as in Sun Belt Rentals, Inc., both Rambus and Nvidia have much
more than an incidental effect on North Carolina commerce. Id. at *25. As set forth in
the FAC, both Rambus and Nvidia maintain offices in North Carolina (¶¶ 9, 12), Nvidia
has significant customers in North Carolina for products that comply with JEDEC
standards (¶¶ 9, 12), and Rambus’s conduct has impeded innovation in North Carolina (¶
1). Moreover, contrary to Rambus’s assertion, Nvidia has alleged in-state injury both
because its relationship with its customers in North Carolina who use its JEDEC-
conforming technology are endangered and because Rambus’s conduct has chilled
innovation in North Carolina which otherwise could benefit Rambus. FAC at ¶¶ 1, and
12. Further, Nvidia has alleged that Rambus’s monopoly power extends to North
Carolina. Id.
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narrow the scope of §75-1.1. See Rambus’s Mem. at 8-10 (citing The ‘In’Porters, S.A. v.
Hanes Printables, Inc., 663 F. Supp. 494, 502 (M.D.N.C. 1987) and Dixie Yarns, Inc. v.
Plantation Knits, Inc., 1994 U.S. Dist. LEXIS 21725, at *8 (W.D.N.C. July 24, 1994)).
However, In Porters is distinguishable from this case for the same reasons that it was
distinguished in Sunbelt Rentals. The Sunbelt Rentals Court held that the facts were
“clearly and plainly” distinguishable from In Porters, where the sales of a French
plaintiff were limited to France and abroad, and completely devoid of any operations in
Rambus argues that the federal patent laws preempt Nvidia’s North Carolina
claims. However, preemption does not apply here because the patent laws do not
under N.C. Gen Stat. §75-1.1. Dow Chemical, Inc. v. Exxon Corp., 139 F.3d 1470, 1474
(Fed. Cir. 1998). Moreover, Nvidia’s complaint is not a response or defense to the
anticompetitive conduct.
that Nvidia is asserting a claim under N. C. Gen. Stat. §75-2.1, as opposed to N.C. Gen.
Statute §75-2. The reference in the Amended Complaint is a typographical error. Nvidia
has stated a claim under N.C. Gen. Stat. §75-2.1 for the same reasons as Nvidia’s claim
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Sherman Act §2 and is guided by Sherman Act §2 precedents. See Meijer, Inc. v. Abbott
Laboratories, Inc., 544 F. Supp. 2d 995, fn. 13 (N.D. Cal. 2008). Nvidia respectfully
requests that the Court administratively correct Nvidia’s FAC to correct the obvious
here, the allegations are sufficiently clear that it can be answered. Simaan, Inc. v. BP
Prods. N. Am., Inc., 395 F. Supp. 2d 271, 280 (M.D.N.C. 2005); see also Monster Daddy,
LLC v. Monster Cable Prods., 2007 U.S. Dist. LEXIS 5549 (D.S.C. Jan. 24, 2007)
(denying motion for more definite statement where plaintiff adequately pled claim for
relief). Here, Nvidia’s allegations are set forth in great detail and great specificity. Thus,
V. CONCLUSION
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-and-
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VIA ECF:
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