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Essex Administrative Law Judge


COMMISSION INVESTIGATIVE STAFFS OBJECTIONS TO THE DIRECT EXHIBITS OF THE PRIVATE PARTIES Pursuant to Order No. 16, the Commission Investigative Staff (Staff) hereby submits its objections to the private parties direct exhibits served on September 7, 2011. 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. I. Untimely Exhibits According to the private parties exhibit lists, both Complainant and the Respondents intend to introduce exhibits that were not timely produced during discovery and/or involve untimely identified witnesses.1 For example, the Respondents have identified RX-2175C as an exhibit (i.e., the Expert Report of Dr. Robert Ellett), and

In addition to the objections discussed in this section, the Staff notes that the private parties have served multiple supplements to their direct exhibit lists since the August 26, 2011 deadline for exchanging such lists. Certain of these supplements, such as the Respondents most recent supplement which was received via email at 8:46 pm on Monday, September 12, 2011, continued to add exhibits even beyond the date by which the actual exhibits are exchanged (i.e., September 7, 2011). The Staff objects to all such exhibits as untimely, i.e., the Respondents exhibits starting at RX-5495C and Complainants exhibits starting at CX-9636. The Staff may seek to raise additional objections as to the newly identified exhibits after having an adequate opportunity to review them.

2 RX-2004, 2176-2183C, 2594C, 3050C, 3055C, 3080C, 3905, 3915-3917, and 3979C3985C as exhibits for which Ellett is the sole sponsoring witness listed on their direct exhibit list. However, Order No. 48 rejected the Respondents untimely attempt to add Dr. Ellett as an expert witness. Thus, the aforementioned exhibits and all other Ellett related exhibits are improper. In addition, the Respondents have identified RX-3447C to 3451 as exhibits (i.e., documents used during the Richard Crisp deposition taken in this investigation). However, Order No. 41 rejected the private parties motion for leave to take the Crisp deposition after the close of fact discovery. Thus, Crisp exhibits that relate to his deposition in this investigation are improper.2 The Respondents have also identified RX-4002C as an exhibit (i.e., a document related to discovery from third party Intel). However, Order No. 39 rejected the Respondents motion for leave to obtain discovery from Intel after the close of fact discovery. Thus, Intel exhibits obtained after the close of fact discovery are improper. The Respondents have also identified RX-3979C to 3985C, 4298C-4319, and 4385 as exhibits (i.e., documents produced by third party IBM). However, Order No. 33 rejected the Respondents motion for leave to obtain discovery from IBM after the close of fact discovery. Thus, IBM exhibits obtained after the close of fact discovery are improper.

It is the Staffs understanding that the private parties have agreed to not object to the admission of Crisp exhibits (including deposition and trial testimony) from prior proceedings based on the fact that such exhibits were not obtained as part of discovery in this investigation. The Staff is of the view that such exhibits from prior proceedings are not impacted by Order No. 41, and thus objects solely with respect to those Crisp exhibits that relate to his untimely deposition in this particular investigation.

3 Complainant has also identified exhibits that were not timely produced during discovery and/or involve untimely identified witnesses. For example, CX-6337, 6338, 6373, 6374, and 6396 relate to discovery obtained from Respondent ST Microelectronics. Similarly, RX-5456C, CX-6338 to 6349C and CX-9566C relate to witness Alan Kobayashi, who is an ST Microelectronics employee. Further, CX-6584 relates to Florence Dion, who is also an ST Microelectronics employee. However, Order No. 38 rejected Complainants motion for leave to obtain discovery from ST Microelectronics, Mr. Kobayashi, and Ms. Dion after the close of fact discovery. Thus, ST Microelectronics / Kobayashi / Dion related exhibits obtained after the close of fact discovery are improper. II. Duplicates The Staff objects to the private parties identification of duplicative exhibits, including the following exhibits. The Staff understands that the private parties are working on updating their joint exhibit list which may reduce the number of duplicative exhibits and that some of the duplicates refer to redundant deposition exhibits. Pending appropriate revisions to such lists and withdrawals of duplicative exhibits, the following exhibits and all other duplicates remain objectionable. Duplicative Exhibit RX-4079C; RX-5317C; CX-4339C; CX7645C; CX-9374 RX-2242; RX-2777; RX-4097; CX-4005; CX-6421; CX-6468; CX-6508; JX-120; CX-9369 RX-2244; RX-4099; RX-4630; CX-4007; CX-6419; CX-6470; JX-121; CX-9371 RX-3325; RX-3442; RX-3627; RX-3641; RX-3720; RX-4539; CX-4001; CX-6471; CX-6507; CX-7062; CX-7068 Description Samsung Agreement 857 Patent

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4 Duplicative Exhibit RX-3326; RX-3364; RX-3372; RX-3626; RX-3642; RX-3676; RX-3690; RX-3719; RX-3723; RX-3847; RX-4289; RX-4540; CX-4002; CX-6472; CX-7061; CX-7067 RX-3327; RX-3375; RX-3628; RX-3643; RX-3721; RX-3807; RX-4541; CX-4003; CX-6473; CX-7069 CX-6337, 6373, 6397, 6568, 6576, 6585, 6713, 6929, 6337, 6373, 6397 CX-6338, 6374, 6396, 6569, 6577, 6586, 6714, 6930, 6338, 6374, 6396 CX-6403, 6509, 6536, 6605, 6743, 6904 CX-6404, 6510, 6537, 6606, 6744, 6905 CX-6516, 6545, 6616, 6627, 6638, 6691, 6758, 6793, 6809, 6888, 6915, 7000, 7020 CX-6517, 6546, 6617,6628, 6639, 6692, 6722, 6794, 6810, 6889, 6892, 6916, 7001, 7021 CX-6732, 6837 CX-6733, 6838, 6360 CX-7026, 6350 RX-2024C; 2769C; CX-6689C; CX-6264C III. Expert Reports and Claim Charts The private parties have identified expert reports, claim charts, and corresponding materials as direct exhibits. The Staff objects to those exhibits as constituting opinion testimony not subject to cross-examination. See Certain Mobile Devices and Related Software, Inv. No. 337-TA-750, Order No. 9 at 1, n. 1 (Aug. 8, 2011) (holding [t]he ALJ does not admit expert reports into evidence). The exhibits at issue include RX-2030C; RX-2175C; RX-2184C; RX-2188C to 2199C; RX-3873C; RX-4027C; RX-4085C; RX4088 to 4091; RX-4096; RX-4177C to 4223; RX-4702C; RX-5294C; RX-4703C; RX5295C; CX-4009 to 4011; CX-4047 to 4049; CX-4056 to 4061; CX-4067 to 4068; CX4078 to 4080; CX-4090 to 4095; CX-4107 to 4108; CX-4111 to 4113; CX-4128; CX4149 to 4150; CX-4165 to 4167; CX-4172 to 4176; CX-4193 to 4194; CX-4198 to 4199; Description 353 patent

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Notice of depo to ST Microelectronics Second notice of depo to ST Microelectronics Notice of depo to nVidia Second notice of depo to nVidia Notice of depo to LSI Second notice of depo to LSI

Notice of depo to Broadcom Second notice of depo to Broadcom Second notice of depo to MediaTek Declaration of J Poulton

5 CX-4213 to 4217; CX-7094; CX-8025C; CX-8029C to 8059C; CX-7665C; CX-7094C; CX-9043C; and CX-9046C to 9051C. The Staff has no objection to the use of relevant expert reports, claim charts, and corresponding materials as demonstrative exhibits and/or for impeachment purposes during cross examination, if appropriate. IV. Declaration, Deposition and Trial Testimony To the extent the private parties offer any of the following depositions or declarations (identified by the parties in their exhibit lists) as admissible evidence during the hearing, such exhibits are not admissible under Commission Rule 210.28(h). However, the Staff would not object to use of the following exhibits for impeachment purposes during cross-examination. Exhibit Number RX-2024C; RX-2769C; CX-6689; CX-6264 RX-5470C CX-9599C V. Exhibit Description Declaration of J Poulton Przybylski Depo Designations Walker Depo Designations

Legal Arguments and Discovery Responses Briefs and other documents containing legal argument submitted by the parties

are not properly admissible as evidence. See, e.g., Ground Rule 9.1. Similarly, pleadings, interrogatory responses, requests for production responses, etc. are not admissible as evidence except as admissions of an opposing party. Moreover, the pleadings and hearing transcripts of this investigation are already part of the official pleading record pursuant to Commission Rule 210.38. Thus, the Staff objects to exhibits RX-2073C; RX4238C; RX-4239C; RX-4240C; RX-4295C; RX-4296C; RX-4329; RX-4330; RX-4331; RX-4333; RX-4334; RX-4335C; RX-4344C; RX-5416C; RX-5490C; RX-5310C; RX2205C; RX-2213C; RX-2218C; RX-2226C; RX-2227C; RX-2234C; RX-2342C; RX4858C; RX-5145C; RX-5208C to 5218; RX-4638C; RX-4639; RX-5296C to 5299C;

6 RX-4647C to 4648; RX-5310C; CX-4000; CX-4259; CX-5835C to 5839C; CX-6412 to 6414; CX-7093; CX-5674C to 5686C; CX-7096; CX-7583; and CX-7585 as improper. VI. Foreign Language Documents The private parties have listed at least one exhibit that contains foreign language entries. Pursuant to Ground Rule 9.7, such exhibits are not to be received into evidence for substantive purposes unless a translation thereof is provided at the time set for exchange of exhibits. The Staff is unaware of translations having been provided for foreign language exhibit RX-4428, and thus objects to its admission into evidence.

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, SW., Suite 401 Washington, D.C. 20436 202.205.3409 (Phone): 202.205.2158 (Facsimile) Sept. 13, 2011

Certain Semiconductor Chips And Products Containing Same CERTIFICATE OF SERVICE

Inv. No. 337-TA-753

The undersigned certifies that on Sept 13, 2011, he caused the foregoing COMMISSION INVESTIGATIVE STAFFS OBJECTIONS TO THE DIRECT EXHIBITS OF THE PRIVATE PARTIES to be filed with the Commission, served by hand upon Administrative Law Judge Theodore R. Essex (2 copies plus a courtesy .pdf copy to, 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) 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 (secondary counsel for Broadcom, MediaTek, Oppo Digital, and Audio Partnership) S& (secondary counsel for Motorola) (secondary counsel for Broadcom) (secondary counsel for nVidia) (secondary counsel for nVidia) (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) 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) 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) 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) 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) /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