Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page1 of 13

EXHIBIT A

Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page2 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ROBERT E. FREITAS (SBN 809480 rfreitas@ftbklaw.com JASON S. ANGELL (SBN 221607) jangell@ftbklaw.com FREITAS TSENG & KAUFMAN LLP 100 Marine Parkway, Suite 200 Redwood Shores, California 94065 Telephone: (650) 593-6300 Facsimile: (650) 593-6301 Attorneys for Amici Curiae Nanya Technology Corporation and Nanya Technology Corporation USA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH, Plaintiffs, v. RAMBUS, INC., Defendant.

Case No. CV 00-20905 RMW AMICI CURIAE BRIEF OF NANYA TECHNOLOGY CORPORATION AND NANYA TECHNOLOGY CORPORATION USA IN SUPPORT OF THE HYNIX PARTIES

Date: Time: Ctrm.: Judge:

December 16, 2011 9:00 a.m. 6 Hon. Ronald M. Whyte

DMS:101306.6

NANYAS AND NANYA USAS AMICI BRIEF C 00 02095 RMW

Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page3 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DMS:101306.6

STATEMENT OF INTEREST OF AMICI CURIAE Amici Nanya Technology Corporation (Nanya) and Nanya Technology Corporation USA (Nanya USA) respectfully submit this brief in support of plaintiffs and counterclaim defendants Hynix Semiconductor Inc., Hynix Semiconductor America Inc., Hynix Semiconductor U.K. Ltd., and Hynix Semiconductor Deutschland GmbH in connection with the proceedings on remand from the Federal Circuit. See Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336 (Fed. Cir. 2011). Like the Hynix parties in this case, Nanya and Nanya USA have asserted in their litigation against Rambus Inc. (Rambus) that Rambus engaged in spoliation of evidence. See generally Rambus, Inc. v. Hynix Semiconductor Inc., Case No. C-05-0334 RMW (N.D. Cal.) (334 Action). Although Nanya and Nanya USA will not be parties to the proceedings on remand, the Courts decision on the spoliation and related matters at issue here will have an impact on Nanyas and Nanya USAs ability to litigate identical or similar issues in the 334 Action. Therefore, Nanya and Nanya USA wish to present their views on the legal model applicable to the resolution of the issues on remand, and in particular, the role of issue preclusion. The issues discussed in this brief have not been fully addressed by either Hynix or Rambus in their recent briefing. Nanya and Nanya USA have concurrently filed a motion for leave to file this brief, and respectfully request the Courts consideration of the matters discussed below.

NANYAS AND NANYA USAS AMICI BRIEF C 00 02095 RMW

Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page4 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I.

THE ROLE OF ISSUE PRECLUSION IN THE HYNIX REMAND PROCEEDINGS. In addition to the matters that were resolved in the Hynix appellate proceedings and are

binding on this Court as a result of law of the case and the mandate rule, further matters must be considered to be determined in Hynixs favor as a result of issue preclusion. The Court previously rejected Hynixs argument in favor of issue preclusion in a context in which Hynix sought to avoid the result of a trial it lost. See February 3, 2009 Order Denying Hynixs Motion For Summary Judgment Of Unclean Hands (February 3, 2009 Order ) (D.E. 3897). Nanya and Nanya USA, as non-parties to this case, have not had an opportunity directly to address the analysis set forth in the Courts February 3, 2009 Order. Issue preclusion, in the past typically referred to as collateral estoppel, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979) (citing Blonder-Tongue Labs Inc. v. University of Ill. Found., 402 U.S. 313,328-29 (1971)). Issue preclusion prevents relitigation of issues actually litigated and necessarily decided, after a full and fair opportunity for litigation, in a prior proceeding. Shaw v. Hahn, 56 F.3d 1128, 1131 (9th Cir. 1991). Patent cases are governed by the same issue preclusion rules as other types of cases heard in the federal courts. When a patent is held invalid, the prior determination of patent invalidity may be asserted as a defense to a subsequent attempt to enforce the patent. Stevenson v. Sears, Roebuck & Co., 713 F.2d 705, 709 (Fed. Cir. 1983). In such a case, the defense must be accepted by a court unless the patentee demonstrates that he was denied a full and fair opportunity to litigate the validity of his patent in the prior unsuccessful action. Id. No further inquiry is appropriate. As the Stevenson court observed, the scope of review is limited to deciding whether the patentee had a full and fair opportunity to litigate the validity of his patent in the prior unsuccessful suit. Id. at 711. See also id. at 713 (The proper inquiry for the court is whether the patentee had a full and fair opportunity to litigate the validity of his patent in the prior unsuccessful suit.).
DMS:101306.6

-2-

NANYAS AND NANYA USAS AMICI BRIEF C 00 02095 RMW

Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page5 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In its prior order rejecting Hynixs issue preclusion argument, the Court read Stevenson as calling for a different scope of review. Stevenson involved a situation in which a patent had been held valid in one case and invalid in another. Sears, Roebuck & Company (Sears), the defendant in Stevenson, sought to take advantage of the invalidity determination by invoking what is known as defensive, non-mutual issue preclusion. The patentee claimed that issue preclusion should not be applied. Indeed, the patentee argued that issue preclusion should be applied against Sears, which was not a party to the case in which the patent was held valid. Id. at 710. The Federal Circuit rejected the patentees novel attempt to impose issue preclusion on a non-party, and it further rejected the patentees reliance on stare decisis. In the course of its discussion of stare decisis, the Federal Circuit explained the significance of the fact that inconsistent results were reached in the two prior cases in which the validity of the patent was considered. Thus, despite Stevensons contentions, we believe that our function here as dictated by the Supreme Courts decision in BlonderTongue is to determine whether Stevenson had a full and fair opportunity to litigate the validity of his patent against Grentec, Inc., in Suit I. This, of course, does not mean that the CCPAs prior decision in Stevenson v. International Trade Commission is to be ignored. Its effect, however, is limited. As we have indicated, the decision serves only as a red flag warning to the district court to apply the full and fair criteria very carefully; it does not change the inquiry to one of correctness. Id. at 711 (emphasis added). See also id. at 710 (we do not believe that the existence of a seemingly inconsistent prior holding on validity should change the inquiry from a full and fair opportunity to litigate to one of correctness; rather, it should serve only as a red flag warning to the court to apply the full and fair criteria more carefully.). With the limited scope of review dictated by Blonder-Tongue, inconsistency could produce no more than the need for a more careful assessment of the patentees opportunity to litigate the validity issue. The Court appears to have read Stevenson more broadly. Rather than refer to the red flag warning as a spur to more careful evaluation of the patentees opportunity to litigate, the Court stated that inconsistency serves as a red flag warning to the trial court to be especially careful
DMS:101306.6

-3-

NANYAS AND NANYA USAS AMICI BRIEF C 00 02095 RMW

Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page6 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

when applying the doctrine of non-mutual issue preclusion. February 3, 2009 Order at 4. The Courts statement is accurate, but the specific sense in which special care is warranted is limited in a defensive case such as Stevenson. The Courts next sentence departs from the teaching of Stevenson, which limits the focus of the special effort in a defensive case to the patentees opportunity to litigate. As the Supreme Court has made clear repeatedly, the application of non-mutual issue preclusion requires a careful weighing of the equities. The court therefore turns to examine the myriad factors that influence its exercise of discretion. Id. Stevenson did not involve a weighing of the equities or an exercise of discretion by the trial court or the Federal Circuit. All that took place in Stevenson was a review . . . limited to deciding whether the patentee had a full and fair opportunity to litigate the validity of his patent in the prior unsuccessful suit. Id. at 711. As explained below, Supreme Court case law does not require or allow a weighing of equities different from the limited evaluation of the patentees opportunity to litigate carried out by the Stevenson court, except in a case of offensive, nonmutual issue preclusion. In the Ninth Circuit, issue preclusion is available to a litigant if it can satisfy the following requirements: (1) the issue at stake must be identical to the one alleged in the prior litigation; (2) the issue must have been actually litigated in the prior litigation; and (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the earlier action. Trevino v. Gates, 99 F.3d 911, 923 (9th Cir. 1996). The prior adjudication must also be final, in the relaxed sense applicable to issue preclusion. See Luben Indus., Inc. v. United States, 707 F.2d 1037, 1040 (9th Cir. 1983). Each of the issues identified in Exhibit A to Hynixs September 30, 2011 Opening Brief Regarding Proceedings on Remand (Hynix Opening Br.) (D.E. 4066) is eligible for evaluation of the appropriateness of issue preclusion. There was a final judgment in the Micron case, and numerous issues were actually litigated. On appeal, many of Judge Robinsons findings were affirmed. Any of the affirmed issues that are identical to issues present in the Hynix case are entitled to preclusive effect if they were necessary to the aspects of Judge Robinsons decision
DMS:101306.6

-4-

NANYAS AND NANYA USAS AMICI BRIEF C 00 02095 RMW

Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page7 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

that were affirmed on appeal. II. DEFENSIVE, NON-MUTUAL ISSUE PRECLUSION MAY NOT BE WITHHELD ON THE BASIS OF AN EXERCISE OF DISCRETION BY THE TRIAL COURT. Issue preclusion was traditionally available only in mutual cases, i.e., cases in which the parties to a second case were also parties to a first case from which preclusion was sought. Forty years ago, the Supreme Court abandoned the requirement of mutuality of parties, broadened the scope of the doctrine of collateral estoppel beyond its common law limits, and approved the use of issue preclusion in the non-mutual context. United States v. Mendoza, 464 U.S. 154, 158 (1984) (citing Blonder-Tongue). It is well-established that non-mutual issue preclusion may be applied offensively and defensively. The Supreme Court has explained that [o]ffensive use of collateral estoppel occurs when a plaintiff seeks to foreclose a defendant from relitigating an issue the defendant has previously litigated unsuccessfully in another action against the same or a different party. Id. at 159 n.4. Defensive use of collateral estoppel occurs when a defendant seeks to prevent a plaintiff from relitigating an issue the plaintiff has previously litigated unsuccessfully in another action against the same or a different party. Id. See also State of Idaho Potato Commn v. G & T Terminal Packaging, Inc., 425 F.3d 708, 714 n.3 (9th Cir. 2005). While defensive non-mutual issue preclusion was held proper in Blonder-Tongue, the offensive use of non-mutual issue preclusion was first approved eight years later in Parklane Hosiery. Based on special concerns about the offensive use of issue preclusion, its offensive use was conditionally approved. Mendoza, 464 U.S. at 157 (the doctrine of nonmutual offensive collateral estoppel has been conditionally approved by this Court in Parklane Hosiery). See also id. at 158-59 (Parklane Hosiery conditionally approv[ed] the offensive use of collateral estoppel by a non-party to a prior lawsuit). The conditional approval of offensive, non-mutual issue preclusion in Parklane Hosiery did not similarly condition or limit the use of defensive, non-mutual issue preclusion. /// ///
DMS:101306.6

-5-

NANYAS AND NANYA USAS AMICI BRIEF C 00 02095 RMW

Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page8 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

A.

Parklane Hosierys Distinction Between Offensive And Defensive Issue Preclusion Is Widely Recognized In The Federal Courts.

Hynix advocated a rule by which a district court has the power to make a discretionary determination as to whether offensive, non-mutual issue preclusion will be applied, but no similar discretion with respect to defensive, non-mutual issue preclusion. The Courts February 3, 2009 Order rejected the distinction argued by Hynix, and recognized a discretionary power with respect to both offensive and defensive non-mutual issue preclusion. D.E. 3897 at 2-3. The Courts conclusion was based in part on language appearing in footnote 16 of the Supreme Courts Parklane Hosiery opinion. Id. The conclusion the Court drew from footnote 16 that discretion is available in the context of defensive, as well as offensive, non-mutual issue preclusion is not supported by Parklane Hosiery or other Supreme Court authority. As noted above, Parklane Hosiery was the first case in which the Supreme Court allowed offensive, non-mutual issue preclusion. While offensive, non-mutual issue preclusion had previously been recognized by some courts, other courts and commentators had identified additional or different policy concerns that they argued should result in the refusal to allow the offensive use of non-mutual issue preclusion. The Supreme Court was not persuaded that outright rejection of offensive, non-mutual issue preclusion was appropriate, but the Court also did not permit unrestricted offensive use. The Parklane Hosiery Court concluded that the preferable approach . . . is not to preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion to determine when it should be applied. 439 U.S. at 331. Immediately before this holding, in Section I.B of its opinion, the Court addressed the criticisms of offensive, non-mutual issue preclusion and discussed whether offensive and defensive issue preclusion should be treated differently. Id. at 329-31. In both situations, the Court observed, the party against whom estoppel is asserted has litigated and lost in an earlier action. Nevertheless, several reasons have been advanced why the two situations should be treated differently. Id. at 329. In the first sentence of Section I.C, the Court stated its conclusion that the trial courts should have broad discretion in applying offensive issue preclusion. Id. at 331. Directly
DMS:101306.6

-6-

NANYAS AND NANYA USAS AMICI BRIEF C 00 02095 RMW

Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page9 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

following the reference to discretion in the application of offensive, non-mutual issue preclusion is footnote 16, on which this Court relied in finding the existence of a discretionary power in defensive, non-mutual cases. In footnote 16, the Supreme Court first suggested that its distinction of offensive and defensive issue preclusion through the grant of a discretionary power in the case of the former is essentially the approach of the Restatement (Second) of Judgments. Emphasizing the recognition in the law that offensive issue preclusion is not so different from defensive issue preclusion that it should be precluded, the Court quoted a Restatement comment stating that there is no intrinsic difference between offensive as distinct from defensive issue preclusion, although a stronger showing that the prior opportunity to litigate was adequate may be required in the former situation than the latter. Id. at 331 n.16. Footnote 16 offered further comment on the rationale behind the rule announced in the text that offensive issue preclusion may be applied, subject to the discretionary power of the trial court but this Court interpreted the footnote as placing the same limitation on defensive and offensive issue preclusion. The contrary meaning of Parklane Hosiery is confirmed in the sentence following footnote 16. The general rule [in offensive cases] should be that where easy joinder by the plaintiff is possible, or either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel. Id. at 331 (emphasis added). Nowhere in Parklane Hosiery did the Court take a step backward from the law of defensive preclusion established in BlonderTongue, or otherwise limit defensive, non-mutual issue preclusion. The Court had no occasion in Parklane Hosiery to consider whether discretion could or should be applied to defensive, nonmutual cases. Parklane Hosiery is uniformly understood as an offensive, non-mutual case. Numerous cases in the Ninth Circuit and other federal courts have recognized Parklane Hosiery or its progeny as describing a rule that permits discretion in offensive cases. Collins v. D.R. Horton, Inc., 505 F.3d 874, 882 (9th Cir. 2007) (even when the traditional prerequisites for collateral estoppel are satisfied, trial courts have broad discretion to decide whether to apply offensive
DMS:101306.6

-7-

NANYAS AND NANYA USAS AMICI BRIEF C 00 02095 RMW

Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page10 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

non-mutual collateral estoppel. Indeed, where the application of offensive collateral estoppel would be unfair to a defendant, a trial judge should not allow the use of collateral estoppel.) (internal footnotes and citations omitted) (quoting Parklane Hosiery); Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 776-77 (9th Cir. 2003) (District courts have discretion whether to apply offensive non-mutual collateral estoppel . . . .); Jean Alexander Cosmetics, Inc. v. LOreal USA, Inc., 458 F.3d 244, 248-49 (3d Cir. 2006) (trial courts should have broad discretion to determine when to apply non-mutual offensive collateral estoppel) (de novo review is appropriate for defensive, non-mutual issue preclusion); Copeland v. Merrill Lynch & Co., Inc., 47 F.3d 1415, 1422 (5th Cir. 1995) (offensive issue preclusion should be applied only if there is no special circumstance that would make it unfair to apply the doctrine); United States v. Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994) (in an offensive case, there must be no special circumstance that would render preclusion inappropriate or unfair); Universal American Barge Corp., v. J-Chem, Inc., 946 F.2d 1131, 1136 (5th Cir. 1991) (the doctrine of offensive collateral estoppel requires . . . that no special circumstances exist that would render preclusion inappropriate or unfair); Lewisville Properties, Inc. v. Cauble, 849 F.2d 946, 949 (5th Cir. 1988) (Trial courts have been accorded wide latitude in ascertaining when collateral estoppel may be applied offensively.); Hauser v. Kropp Steel Producers, Inc., 761 F.2d 204, 207 (5th Cir. 1985) (In Parklane Hosiery, supra, the United States Supreme Court approved the use of offensive collateral estoppel. The Supreme Court noted that the preferable approach to offensive collateral estoppel was not to preclude the doctrine, but to grant the district court broad discretion to determine when the doctrine should be available. . . . This Court has recognized that district courts have broad discretion to determine the availability of offensive collateral estoppel.); Patrick v. South Central Bell Telephone Co., 641 F.2d 1192, 1199 (6th Cir. 1980) (offensive use of collateral estoppel was discussed extensively by the United States Supreme Court in Parklane Hosiery. . . . In Parklane Hosiery Co., the Supreme Court set down guidelines for the application of offensive collateral estoppel and granted to trial courts broad discretion in determining when it should be applied.); Liberty Mutual Ins. Co. v. FAG Bearings Corp., 335 F.3d 752,757 (8th Cir. 2003) (describing Parklane Hosiery as adopting a test of discretion with respect to nonmutual
DMS:101306.6

-8-

NANYAS AND NANYA USAS AMICI BRIEF C 00 02095 RMW

Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page11 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

offensive collateral estoppel only); Berger Transfer & Storage v. Central States, Southeast and Southwest Areas Pension Fund, 85 F.3d 1374 (8th Cir. 1996) (If application of offensive issue preclusion would be unfair to a defendant, a trial judge should not allow the use of offensive issue preclusion.); United States v. Sweet Little Mexico Corp., 2011 WL 1327483 (Ct. Intl. Trade April 4, 2011) (citing Parklane Hosiery: a trial court has broad discretion on when offensive collateral estoppel is to be applied, and in cases where a plaintiff could easily have joined in the earlier action or where . . . the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel); United States v. WB/Stellar IP Owner LLC, 2011 WL 1842856 (S.D.N.Y. May 11, 2011) (because non-mutual offensive collateral estoppel does not promote judicial economy in the same manner as traditional collateral estoppel and may result in unfairness to a defendant, the decision whether to allow it is committed to the broad discretion of the trial courts.). The Courts February 3, 2009 Order did not cite any cases in which a district court exercised discretion in the context of defensive, non-mutual collateral estoppel, or in which a court of appeals recognized a power to do so. Nor has Rambus cited any cases supporting a discretionary power in defensive cases. In its most recent briefing, Rambus cites no authority other than the February 3, 2009 Order. Blonder-Tongue, Parklane Hosiery, and the cases applying the rules they established, do not provide a basis for the application of discretion to defensive, non-mutual collateral estoppel. B. Blonder-Tongues Justice And Equity Concepts Related To The Full And Fair Opportunity To Litigate.

In its order denying Hynixs request for issue preclusion, this Court invoked a justice and equity concept referenced in Blonder-Tongue in finding a basis for the exercise of discretion in the case of defensive, non-mutual issue preclusion. The justice and equity point was made in a discussion of the evaluation of whether a party had a full and fair opportunity to litigate an issue in the proceeding offered as preclusive. It has no bearing on the possibility of a discretionary rejection of defensive, non-mutual issue preclusion. Blonder-Tongue established that non-mutual issue preclusion will apply unless the party
DMS:101306.6

-9-

NANYAS AND NANYA USAS AMICI BRIEF C 00 02095 RMW

Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page12 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

against which preclusion is sought did not have a full and fair opportunity to litigate. 402 U.S. at 329. The Supreme Court also explained that that there is no precise formula by which fullness and fairness can be measured for all purposes. Determining whether a patentee has had a full and fair chance to litigate the validity of his patent in an earlier case is of necessity not a simple matter. In addition to the considerations of choice of forum and incentive to litigate mentioned above, certain other factors immediately emerge. For example, if the issue is nonobviousness, appropriate inquiries would be whether the first validity determination purported to employ the standards announced in Graham v. John Deere Co., supra; whether the opinions filed by the District Court and the reviewing court, if any, indicate that the prior case was one of those relatively rare instances where the courts wholly failed to grasp the technical subject matter and issues in suit; and whether without fault of his own the patentee was deprived of crucial evidence or witness in the first litigation. But as so often is the case, no one set of facts, no one collection of words or phrases, will provide an automatic formula for proper rulings on estoppel pleas. In the end, decision will necessarily rest on the trial courts sense of justice and equity. Id. at 333-34 (footnotes omitted). In Stevenson, the Federal Circuit understood the reference to justice and equity to refer to the determination of whether a full and fair opportunity to litigate had been afforded, but the Court here interpreted this passage as a broad grant of discretion of the type subsequently recognized in Parklane Hosiery for offensive issue preclusion. Stevenson, 713 F.2d at 709, 713. The justice and equity language from Blonder-Tongue quoted by this Court in its February 3, 2009 Order, like the rest of the paragraph in which it appears, concerns whether the patentee had a full and fair opportunity to litigate. A sense of justice and equity, rather than a formula, is what determines whether a full and fair opportunity to litigate occurred. BlonderTongue does not stand for the proposition that trial courts have discretion to withhold the application of defensive, non-mutual issue preclusion when there was a full and fair opportunity to litigate.
DMS:101306.6

- 10 -

NANYAS AND NANYA USAS AMICI BRIEF C 00 02095 RMW

Case5:00-cv-20905-RMW Document4080-1

Filed11/11/11 Page13 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Dated: November 11, 2011

ROBERT E. FREITAS JASON S. ANGELL FREITAS TSENG & KAUFMAN LLP

/s/ Robert E. Freitas Robert E. Freitas Attorneys for Amici Curiae Nanya Technology Corporation and Nanya Technology Corporation USA

DMS:101306.6

- 11 -

NANYAS AND NANYA USAS AMICI BRIEF C 00 02095 RMW