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 RESPONSE TO THE RESPONDENTS OBJECTIONS TO STAFF EXHIBIT SX-0007C

Pursuant to Order No. 16 (Mar. 3, 2011), the Commission Investigative Staff (Staff) hereby responds to the Respondents objections to the Staffs direct exhibits.1 Specifically, the Respondents solely object to SX-0007C (Rambus Inc.s Supplemental Objections and Responses to MediaTek Inc.s Second Set of Interrogatories), a document they previously sought to compel, on the following grounds: (1) improper opinion testimony by lay witness; (2) produced after the close of discovery; (3) lacks foundation; (4) hearsay; (5) improper expert opinion; (6) not authenticated; (7) lack of notice; (8) prejudice, confusion, waste of time, misleading; (9) failure to comply with ALJs Ground Rules or Commission Rules; (10) selective production of information

Complainant Rambus Inc. (Rambus) did not object to any of the Staffs direct exhibits. As such, this submission addresses only the Respondents objections. See Respondents Objections to Commission Investigative Staffs Tentative Direct Exhibit List, EDIS Doc. ID 459159 (Sept. 14, 2011) (Respondents Objections).

2 previously withheld as privileged; (11) improper sponsoring witness; (12) relevance; and (13) incomplete. Each of these thirteen grounds for objecting should be rejected as discussed more fully below. I. Background The parties dispute regarding SX-0007C dates back to a June 29, 2011 teleconference with the presiding Judge and the corresponding Order No. 27 (July 6, 2011) that issued after that call. Specifically, the Respondents sought to compel Rambus to provide patent lists that were being withheld at that time on privilege and relevance grounds: (1) a list of patents corresponding to Rambuss SerDes portfolio (which allegedly includes the asserted Dally patents); and (2) a list of patents corresponding to Rambuss Concurrent Interface Technology portfolio (which allegedly includes the asserted Barth I patents). See Brief in Support of Respondents Broadcom and MediaTeks Request for Production of Rambuss List of Licensed Patents, EDIS Doc. ID 454140 at 1 (July 11, 2011) (Respondents Brief). According to the Respondents, the requested lists are relevant to whether a licensing-based domestic industry exists as to the asserted patents. See id. at 3-4. As to relevance, the Staff explained that the inquiry was complicated by a then-pending Commission review of analogous issues in the 694 investigation. See Teleconference Tr., EDIS Doc. ID 453574 at 39:02-40:15; Commission Investigative Staffs Response to Order No. 27, EDIS Doc. ID 454061 at 35 (July 11, 2011) (Staff Response); see also Certain Multimedia Display and Navigation Devices and Systems, Components Thereof, and Products Containing Same, Inv. No. 337-TA-694, Corrected Commn Op., EDIS Doc. ID 456236 at 8-23 (Aug. 8, 2011) (discussing the nexus requirement for a licensing-based domestic industry)

3 (694 Commn Op.). As to privilege, the parties disputed whether Rambus could assert privilege over certain licensing-related documents when it had alleged a licensing-based domestic industry. See Staff Response at 5-6. After issuance of the initial 694 Commn Op. on July 22, 2011, Rambus agreed to the Respondents request to produce the two lists.2 Specifically, on August 2, 2011 Rambus supplemented its responses to MediaTeks interrogatory numbers 77 and 78 to include lists of its SerDes and Concurrent Interface Technology patents. See SX-0007C at 2-6. In this regard, the Commissions holding in the 694 investigation indicates that the size of a licensed portfolio is one factor that may be considered in determining whether a licensing-based domestic industry exists as to a particular patent within the licensed portfolio. See 694 Commn Op. at 10 (The Commission may also consider other factors including . . . the number of patents in the portfolio . . . .) (emphasis added). On August 26, 2011, the Staff identified Rambuss supplemental responses as a direct exhibit (SX-0007C) for use in the Staffs case in chief. See Commission Investigative Staffs Tentative Direct Exhibit List at 2 (Aug. 26, 2011). The Staff thereafter provided a copy of SX-0007C to the private parties and the presiding Judge on September 9, 2011. The Respondents filed objections to SX-0007C on September 14, 2011, i.e., one day after the deadline for filing such objections. See generally, Respondents Objections; Appendix A to Order No. 16 at 2 (setting Sept. 13, 2011 as the deadline for filing direct exhibit objections).3 The Staff responds below.
2

The Commissions initial public opinion issued on July 22, 2011 contained redactions that were later removed from the Commissions corrected August 8, 2011, public opinion.

On September 15, 2011, the Respondents filed an unopposed motion for leave to file their objections out of time. See Unopposed Motion for Leave to File Objections to

4 II. Discussion The Respondents have identified thirteen separate grounds by which they object to SX-0007C. The Staff submits that all of these objections are meritless. (1) Improper Opinion Testimony by Lay Witness

The Respondents first object to SX-0007C on the grounds that it constitutes improper opinion testimony by a lay witness. However, SX-0007C is a verified interrogatory response not a deposition designation, declaration, or witness statement. As such, it does not constitute testimony of a witness. The basis for the Respondents objection is thus unclear. To the extent that the Respondents object to a witness opining on the size of Rambuss SerDes and Concurrent Interface Technology portfolios as set forth in SX-0007C, the Staff respectfully submits that such an objection is at the very least premature until an actual question has been posed to an actual witness and the Judge can make an informed decision accordingly. (2) Produced After the Close of Discovery

The Respondents next object to SX-0007C on the grounds that it was produced after the close of discovery. The Respondents assertions notwithstanding, SX-0007C consists of supplemental responses to contention interrogatories propounded by MediaTek that were served by Rambus on August 2, 2011. See SX-0007C at 38-42. According to the governing procedural schedule, the [c]ut-off date for supplementing responses to contention interrogatories other than claim construction interrogatories is August 2, 2011. See Appendix A to Order No. 16 at 2. Thus, SX-0007C was timely produced by Rambus. Staff Exhibits One Day After the Filing Deadline, Mtn. Dkt. No. 753-079, EDIS Doc. ID 459278 (Sept. 15, 2011).

5 Should the Respondents argue that they were entitled to follow up discovery on SX-0007C, e.g., a continued deposition of an appropriate Rambus witness with personal knowledge as the facts and circumstances surrounding the produced lists, the Staff disagrees. The Respondents solely requested production of the lists not a continued deposition of a Rambus employee or other follow up discovery. See Teleconference Tr., EDIS Doc. ID 453574 at 29:18-40:15. Precluding the Staff from introducing and relying upon SX-0007C for lack of follow up discovery is thus not warranted. See 19 C.F.R. 210.33(b) (providing a list of sanctions that a judge may impose where a party fails to comply with an order compelling discovery, including precluding the offending party from offering evidence or testimony on a particular topic); Certain Agricultural Tractors, Lawn Tractors, Riding Lawnmowers, and Components Thereof, Inv. No. 337-TA-486, Commn Op. at 19 n.14, USITC Pub. No. 3625 (Aug. 2003) (An order compelling discovery is a prerequisite to all sanctions under Commission Rule 210.33.); Certain Electronic Devices With Image Processing Systems, Components Thereof, and Associated Software, Inv. No. 337-TA-724, Order No. 39, 2011 ITC LEXIS 762 at *9 (Mar. 29, 2011) (denying a motion in limine as to proffered testimony because the moving party did not previously move to compel a corresponding deposition after subpoenaing the witness). Moreover, even assuming that the lists discussed in SX-0007C were not timely produced by Rambus and that Rambus has improperly refused to provide follow up discovery as to those lists, at most such discovery misconduct would support precluding Rambus the producing party from relying on SX-0007C. See Certain Mobile Communications and Computer Devices and Components Thereof, Inv. No. 337-TA-704,

6 Pre-hearing Conference Tr. at 78:11-81:04, EDIS Doc. ID436900 (Nov. 2, 2010) (Chief Judge Bullock explaining that only the party that provides dilatory discovery is precluded from relying on evidence that was produced late). The Staff is not the producing party and should thus be allowed to introduce and rely upon SX-0007C regardless of whether Rambus is permitted to do so. (3) Lacks Foundation

The Respondents next object to SX-0007C on the grounds that it lacks foundation. The Staff respectfully submits that this objection is at the very least premature. To the extent that foundation for an interrogatory response is required, the Staffs tentative direct exhibit list identifies Rambus employee Mr. Sobelman and Respondents expert Mr. Kaplan as potential sponsoring witnesses for SX-0007C. See Commission Investigative Staffs Tentative Direct Exhibit List at 2 (Aug. 26, 2011). If necessary, the Staff expects to lay a proper foundation for SX-0007C with Mr. Sobelman, Mr. Kaplan, or another appropriate witness at trial. (4) Hearsay

The Respondents next object to SX-0007C on the grounds that it constitutes hearsay. Hearsay is generally not a recognized objection at the Commission. See Certain Hybrid Electric Vehicles and Components Thereof, Inv. No. 337-TA-688, Prehearing Conference Tr., EDIS Doc. ID 429410 at 50:11-12 (July 15, 2010) (JUDGE ESSEX: Well, as you know, from your experience, that hearsay is not forbidden.). (5) Improper Expert Opinion

The Respondents next object to SX-0007C on the grounds that it constitutes an improper expert opinion. For similar reasons as discussed previously with respect to the

7 Respondents objection as improper opinion testimony by a lay witness, the Staff respectfully submits that this objection has not been sufficiently explained. This objection is also premature to the extent that the Respondents object to a witness being asked at trial to provide an expert opinion as to the size of Rambuss SerDes and Concurrent Interface Technology portfolios as set forth in SX-0007C. No such question has yet been posed by the Staff or any other party. (6) Not Authenticated

The Respondents next object to SX-0007C on the grounds that it has not been authenticated. In so objecting, the Respondents overlook Ground Rule 9.8.11, which states: All documents that appear to be regular on their face shall be deemed authentic, unless it is shown by particularized evidence that the document is a forgery or is not what it purports to be. The Respondents have failed to articulate any reason to believe that SX-0007C is a forgery or is not what it purports to be, much less come forward with particularized evidence to support such an allegation. Moreover, the Respondents ignore the fact that SX-0007C is a verified interrogatory response and has thus been authenticated by a Rambus employee. See SX-0007C at 43 (verification by Satish Rishi). (7) Lack of Notice

The Respondents next object to SX-0007C on the grounds that they lacked notice as to this exhibit. Again, the basis for Respondents objection is unclear. As supplemental interrogatory responses, SX-0007C was timely served by Rambus on August 2, 2011 in accordance with the governing procedural schedule. See SX-0007C at 39-42; Appendix A to Order No. 16 at 2. Moreover, the Respondents themselves sought to compel production of the lists contained in those supplemental interrogatory responses

8 as part of the June 29, 2011 teleconference with the presiding Judge. See Respondents Brief at 1; Staff Response at 3-5; Teleconference Tr., EDIS Doc. ID 453574 at 29:1840:15. The Respondents assertion that they somehow lacked notice as to lists that they previously sought to compel is thus nonsensical and should be rejected. In addition, the supplemental responses were also timely identified by the Staff as a tentative direct exhibit SX-0007C in its August 26, 2011 direct exhibit list and timely served (as an exhibit) by the Staff on September 9, 2011. See Commission Investigative Staffs Tentative Direct Exhibit List at 2 (Aug. 26, 2011). Thus, the Respondents had adequate notice as to the Staffs intent to rely on SX-0007C as part of the pre-trial exhibit identification and exchange procedure in this investigation. (8) Prejudice, Confusion, Waste of Time, Misleading

The Respondents next object to SX-0007C on the grounds that it is prejudicial, confusing, a waste of time, and misleading. Again, the basis for the Respondents objection is unclear, particularly given the fact that the Respondents previously sought to compel production of the lists contained in SX-0007C as part of the June 29, 2011 teleconference with the presiding Judge. See Respondents Brief at 1; Staff Response at 3-5; Teleconference Tr., EDIS Doc. ID 453574 at 29:18-40:15. The Respondents assertion that lists they previously sought to compel are prejudicial, confusing, a waste of time, and/or misleading is thus inconsistent with their prior positions as to those lists. (9) Failure to Comply with ALJs Ground Rules or Commission Rules

The Respondents next object to SX-0007C on the grounds that it fails to comply with the applicable Ground Rules or Commission Rules. However, the Respondents fail

9 to identify even a single rule with which SX-0007C purportedly fails to comply. As such, the basis for the Respondents objection is unclear. (10) Selective Production of Information Previously Withheld as Privileged

The Respondents next object to SX-0007C on the grounds that it reflects a selective production of information previously withheld as privileged. For similar reasons as discussed above with respect to Respondents objection on late production grounds, the Staff respectfully submits that this is not an appropriate rejection as to the Staffs use of SX-0007C. Simply put, the Staff never asserted a claim of privilege over information in Rambuss possession, custody, or control. Nor has the Staff selectively produced Rambus information in this investigation. As such, this objection does not reflect a valid basis for limiting the Staffs ability to introduce and rely upon SX-0007C. Moreover, the Respondents privilege-based objection overlooks the fact that the Judge recently denied their motion to compel Rambus to produce certain licensingrelated evidence that was being withheld by Rambus on privilege grounds. See Order No. 37 (July 28, 2011). The Staff respectfully submits that excluding SX-0007C because Rambus has allegedly produced only a portion of its privileged licensing-related evidence would be inconsistent with the holding of Order No. 37 that Rambus need not produce such evidence. The Respondents objection is thus defective for this additional reason. (11) Improper Sponsoring Witness

The Respondents next object to SX-0007C on the grounds of improper sponsoring witness. However, the Staffs tentative direct exhibit list identifies Rambus employee Mr. Sobelman and Respondents expert Mr. Kaplan as potential sponsoring witnesses for SX-0007C, both of whom have testified in depositions as to the size of Rambuss

10 licensed patent portfolios. See Commission Investigative Staffs Tentative Direct Exhibit List at 2 (Aug. 26, 2011). If appropriate, the Staff may further seek to address SX-0007C with other witnesses, such as Satish Rishi who verified the response. See SX-0007C at 43 (verification by Satish Rishi). Thus, this objection should be overruled. (12) Relevance

The Respondents next object to SX-0007C on relevance grounds. Again, the basis for the Respondents objection is unclear, particularly given the fact that the Respondents previously sought to compel production of the lists contained in SX-0007C as part of the June 29, 2011 teleconference with the presiding Judge. See Respondents Brief at 1; Staff Response at 3-5; Teleconference Tr., EDIS Doc. ID 453574 at 29:1840:15. The Respondents assertion that lists they previously sought to compel are irrelevant is thus inconsistent with their prior positions as to those lists. (13) Incomplete

The Respondents next object to SX-0007C as incomplete. Again, the basis for the Respondents objection is unclear, as SX-0007C appears to be a complete copy of Rambuss August 2, 2011 supplemental interrogatory responses along with the verification thereof. Thus, this objection should be overruled. III. Conclusion For the foregoing reasons, the Staff respectfully submits that the Respondents have failed to identify a valid basis for excluding SX-0007C. The Staff thus requests that the Respondents objections be overruled.

11 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) September 16, 2011

Certain Semiconductor Chips And Products Containing Same CERTIFICATE OF SERVICE

Inv. No. 337-TA-753

The undersigned certifies that on September 16, 2011, he caused the foregoing COMMISSION INVESTIGATIVE STAFFS RESPONSE TO THE RESPONDENTS OBJECTIONS TO STAFF EXHIBIT SX-0007C to be filed with the Commission, served by hand (2 copies) on Judge Theodore R. Essex (including 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