FINNEGAN, H E N D E R S O N , FARABOW, GARRETT & D U N N E R , LLP

WWW. FIN N ECAN.COM

HINES
DORISJOHNSON
202.408.4250
dori.hines@finnegan.com
November 2 1,2008

VIA HAND DELIVERY

The Honorable Marilyn Abbott

Secretary
U.S. International Trade Commission
500 E Street, S.W.
Washington, D.C. 20436
. -*
Lr t

Re: Certain Semiconductor Chips Having Svnchronous Dynamic Random Access

Memory Controllers and Products Containing Same, Including Graphics Cards and
Motherboards, Docket No. 2637

Dear Secretary Abbott:

I am writing on behalf of Complainant Rambus Inc. (“Rambus”) to supplement the

Section 337 Complaint filed in the above-captioned matter on November 6, 2008.
Specifically, Rambus is supplementing information provided on the title page and in
paragraphs 40 and 832 of the Complaint to provide updated address information for one
of the proposed Respondents and updated status information on a related litigation.

The cover page and paragraph 40 of the Complaint identify, on information and
belief, an address for proposed respondent Asustek Computer Inc. That address, obtained
from a Dun & Bradstreet report, appears to be incorrect. Based on information from
Asustek’s web site, on information and belief, the address for Asustek Computer Inc. is:

No. 15, Li-Te Rd.

Peitou District,
Taipei 112
Taiwan, ROC

Paragraph 832 of the Complaint identifies a related ongoing California District

Court litigation, namely Rambus v. NVIDIA Corp., No. 8-3343 (N.D. Cal). As mentioned
in paragraph 832, NVIDIA filed a motion to dismiss and to strike, or in the alternative,
for a more definite statement. The Court had set a hearing on that motion for November
14,2008. On November 13,2008, the Court denied NVIDIA’s motion on the papers. A
copy of the Order is attached as Exhibit A to this letter. The court also postponed the
case management conference until January 30,2009.

901 NEW Y O R K AVENUE, NW I WASHINGTON, D C 20001-4413

PHONE: 202.408.4000 I FAX: 202.408.4400
The Honorable Marilyn Abbott
November 21,2008
Page 2

Paragraph 832 describes an action filed by NVIDIA on July 11, 2008 in the
District Court for the Middle District of North Carolina. The complaint in that action
alleges monopolization and attempted monopolization under the Sherman Act, 15 U.S.C.
0 2, antitrust violations under North Carolina law, and unfair and deceptive acts affecting
commerce under North Carolina General Statutes 0 75-1.1. Other than the litigations
described in Paragraphs 83 1-832, and the Oppositions described in Paragraphs 834-835,
there have been no other court or agency litigations, foreign or domestic, involving the
Asserted Patents.

Rambus also hereby provides Confidential Exhibit 48 to the Complaint.

Confidential Exhibit 48 contains license agreements for the involved U.S. patents that
Rambus relies upon to support its contention that a domestic industry, as defined in
section 337(a)(3), exists. Rule 210.12(a)(9)(iv). Confidential Exhibit 48 is being
provided with an original and 6 copies, plus 17 additional copies for each of the proposed
Respondents. Rule 210.1 1(a)(i) and (iii).

If you have any questions regarding the foregoing, please contact me.

Rqqqectfully submitted,

Do& Johnson Hines

DJH/rm

Enclosures

FINNEGAN, HENDERSON, FARABOW, GARRETT & D U N N E R , LLP

EXHIBIT A
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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8
RAMBUS, INC. NO. C 08-3343 SI
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Plaintiff, ORDER DENYING DEFENDANT’S
10 MOTION TO DISMISS AND TO STRIKE,
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V. OR IN THE ALTERNATIVE, FOR A
E I1 MORE DEFINITE STATEMENT
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k.43 NVIDIA CORPORATION,
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Defendant.
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$ 8 Defendant’s motion to dismiss is scheduled for a hearing on November 14,2008. Pursuant to
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z5 1 z6 ) Civil Local Rule 7- 1(b), the Court determines that the matter is appropriate for resolution without oral
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sc, argument and VACATES the hearing. Having considered the papers submitted, the Court hereby
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LL
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DENIES defendant’s motion to dismiss and to strike and for a more definite statement.
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BACKGROUND
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Plaintiff is a corporation that develops “memory interface solutions that enable higher
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performance and system bandwidth for a broad range of electronic, computing and networking
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applications for consumers and businesses.” First Amended Complaint 7 1. I Plaintiff alleges that it
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“licenses its technologies to various customers, who then incorporate them into various products.” Id.
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7 10. The technologies include memory controllers, memory components, memory modules, and
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27 Plaintiff filed the first amended complaint the same day as the initial complaint. The two
documents appear to be identical except that the first amended complaint attaches as exhibits copies of
28 the patents-in-suit.
 nt 45 Filed 1111~ / 2 e~ 2 of~

1 memory systems.
2 Plaintiff alleges that defendant NVIDIA has been and is infringing, contributing to the
3 infringement of, and/or actively inducing others to infringe fifteen’ patents assigned to Rambus. Id. 7
4 5. The complaint alleges,
5 Upon information and belief, NVIDIA has made, used, sold, imported and/or offered for
sale, and/or continues to make, use, sell, import and/or offer for sale, products in the
6 United States consisting of or including SDR (Single Data Rate) memory controllers,
DDR (Double Data Rate) memory controllers, DDRx memory controllers (where DDRx
7 includes at least DDR2 and DDR3), GDDR (Graphics Double Data Rate) memory
controllers, and/or GDDRy memory controllers (where GDDRy includes at least
8 GDDR3) (collectively “Accused Products”). Accused Products include chipsets,
graphics processors, media communication processors, multimedia applications
9 processors and/or products that are part of NVIDIA’s “GeForce,” “Quador,” “nForce,”
“Tesla,” “Tegra,” and/or “GoForce” product lines.
10
Id. 7 11. The complaint alleges that defendant’s infringement “has been and is willful, deliberate and
in disregard of Rambus’ patent rights . . . .” Id. 9 3 1. The complaint alleges, for each of the patents-in-
suit, that defendant has directly infringed the patents “and/or has contributed and continues to contribute
to the literal infringement and/or infringement under the doctrine of equivalents . . . and/or has actively
induced and continues to actively induce others to infringe [the patents-in-suit].” See, e.g., id. 7 34.
Plaintiff seeks monetary and injunctive relief, including treble damages and attorneys’ fees due to
defendant’s willful infringement and the “exceptional nature of this case.” Id, Prayer for Relief 77 D,
E.
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FL 18
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LEGAL STANDARD
20
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it
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fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss
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is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer
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evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Dismissal of a
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complaint may be based “on the lack of a cognizable legal theory or the absence of sufficient facts
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alleged under a cognizable legal theory.” Balistreri v. Pac@a Police Dep’t, 90 1 F.2d 696,699 (9th Cir.
26
27
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* The complaint alleges infringement of seventeen patents. However, after filing this lawsuit,
plaintiff filed a Notice of Covenant Not to Sue regarding two of the patents-in-suit. See Docket No. 39.

2
 1 1990). In answering this question, the Court must assume that the plaintiffs allegations are true and
2 must draw all reasonable inferences in the plaintiffs favor. See Usher v. City ofLos Angeles, 828 F.2d
3 556, 561 (9th Cir. 1987).
4 Two provisions of the Federal Rules of Civil Procedure address the problem posed by a vague
5 or confusing complaint. Federal Rule of Civil Procedure 8 requires that a complaint contain a “short
6 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).
7 Federal Rule of Civil Procedure 12(e) provides that, “[ilf a pleading to which a responsive pleading is
8 permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive
9 pleading, the party may move for a more definite statement before interposing a responsive pleading.”
10 Fed. R. Civ. P. 12(e). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlementto relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007). The complaint must
contain sufficient factual allegations “to raise a right to relief above the speculative level.” Id. at 1965.
To state a claim for patent infringement, “a patentee need only plead facts sufficient to place the
alleged infringer on notice. This requirement ensures that the accused infringer has sufficient
knowledge of the facts alleged to enable it to answer the complaint and defend itself.” Phonometries,
8
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18 Inc. v. Hospitality Franchise Sys., Inc., 203 F.3d 790, 794 (Fed. Cir. 2000); see also Bell Atlantic, 127
19 S.Ct. at 1971 n.lO. Thus, a plaintiff in a patent infringement suit is not required to specifically include
20 each element of the claims of the asserted patent. See Phonometries, 203 F.3d at 794.
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22 DISCUSSION
23 I. Willful infringement
24 Defendant moves to dismiss plaintiffs claims of willful infringement because plaintiff does not
25 allege that defendant knew or should have known that its activities had a high likelihood of infringing
26 the asserted patents. Relatedly, defendant moves to strike plaintiffs request for treble damages and
27 attorneys’ fees, which are only available for willful infringement and “exceptional” cases. Plaintiff
28 responds that the complaint sufficiently alleges that defendant willfully infringed the Rambus patents
 1 because the complaint alleges that “Defendant’s infringement of the Rambus Patents . . . has been and
2 is willful, deliberate and in disregard of Rambus’ patent rights . . . .” FAC 7 3 I.
3 The Court agrees with plaintiff, and finds that it is sufficient to allege that defendant’s
4 infringement has been “deliberate” and in “disregard” ofthe patents. See State Indus. Inc. v. A. 0.Smith
5 Corp., 75 1 F.2d 1226,1237 (Fed. Cir. 1986)(holding that willful infringement requires a determination
6 that “the infringer acted in disregard of the patent”); c j Stryker Corp. v. Intermedics Orthopedics,Inc.,
7 96 F.3d 1409, 1414 (Fed. Cir. 1996) (stating one of factors for determining willfulness is whether
8 infringer “deliberately” copied ideas or invention of another). While plaintiffs complaint could be more
9 factually detailed, the Court finds that it sufficiently alleges willful infringement. The cases defendant
10 relies on are distinguishable in that they either involve complaints that did not contain any allegation
to support treble damages, Nichia Corp. v. Seoul Semiconductor, Ltd., 2006 WL 1233148, at “2 (N.D.
Cal. May 9, 2006), or they address what is necessary to prove a claim of willfulness, not whether a
plaintiff has sufficiently alleged willlid infringement as a pleading matter. See, e g . , In re Seagate
Technology,LLC, 460 F.3d 1360 (Fed. Cir. 2007).3

[I. Induced infringement

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18 Next, defendant moves to dismiss plaintiffs claims for induced infringement because the
19 ;omplaint does not allege that defendant “knowingly” induced infringement. However, as defendant
20 icknowledges, the complaint alleges that defendant “actively induced and continues to actively induce
21 )them to infiinge.” FAC 7 34. The Court finds that alleging that defendant “actively induced” is
22 antamount to alleging that defendant knowingly induced infringement. Defendant also suggests that
23 )laintiff is required to specifically identify the third parties who have infringed, as provide more detailed
24
25 Plaintiff also argues that defendant “has already demonstrated that it understands the basis of
Xambus’s willful infringement allegations sufficiently to enable it to answer” because the day after this
awsuit was filed, defendant filed an antitrust and unfair competition action against plaintiff in North
26 Zarolina. Opposition at 5 n.3; Campione Decl. Ex. D. In that lawsuit, NVIDIA alleges that before filing
27 his patent infringement case, Rambus demanded that NVIDIA license Rambus’ patents. Id. Thus,
)laintiff asserts, NVIDIA’s own allegations acknowledge that NVIDIA had knowledge of Rambus’
)atents. The Court finds it inappropriate to consider pleadings from other lawsuits to analyze whether
28 )laintiff s complaint is sufficiently pled.

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 1 factual allegations regarding defendant’s inducement of such third party infringement. Defendant does
2 not cite any authority for the proposition that a complaint must identify the third party infringers, and
3 the cases cited by defendant are distinguishable. See, e.g., Guss Intern. Americas, Inc. v. UNRuland,
4 Inc., 2008 WL 3823707, at*l (D.N.H. Aug. 15, 2008) (complaint did not allege infringement by any
5 third parties); Hewlett-Packard Curp. v. Intergraph Curp., 2003 WL 23884794, at * 1-2 (N.D. Cal. Sept.
6 6,2003) (same).
7
8 111. Contributory infringement
9 Finally, defendant contends that plaintiff has failed to plead essential elements of a claim for
10 contributory infringement. The complaint alleges that defendant “has contributed to and continues to

contribute to” infringement, and that defendant has sold or offered for sale the Accused Products. FAC
f[ 34. Defendant argues that to state a claim for contributory infringement, plaintiff must also plead that
the accused devices have no substantial non-infringing uses and that use of these devices constituted
an act of direct infringement.
Plaintiff argues that the cases defendant relies on address proof, not pleading, and that the
complaint sufficiently alleges a claim of contributory infringement. The Court agrees, and finds that
while plaintiffs complaint is rather conclusory, it is sufficient to withstand a motion to dismiss. See,
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18 e.g., FujiMach. Mfg. Cu. v. Huver-Davis, Inc., 936 F. Supp. 93 (W.D.N.Y. 1996) (denying motion to
19 dismiss contributory infringement claim where complaint alleged supplier infringed claims of patent by
20 selling parts which were used by others in devices within scope of patent); One Wurld Techs., Ltd. v.
21 Robert Busch Tool Curp., 2004 U.S. Dist. LEXIS 14035, at *7 (N.D.111. July 21,2004) (holding that a
22 complaint that alleges “[dlefendants have infringed and are now directly infringing, inducing
23 infringement by others, and/or contributorily infringing” is sufficient).
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25 CONCLUSION
26 The Court concludes that the complaint is sufficient to withstand defendant’s motion to dismiss.
27 Plaintiff will be required to provide the additional factual information and legal contentions pursuant
28 to the Local Patent Rules and in discovery. For the foregoing reasons, the Court DENIES defendant’s

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motion to strike and to dismiss. (Docket No. 34).

IT IS SO ORDERED.

Dated: November 13,2008

SUSAN ILLSTON
United States District Judge

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CERTAIN SEMICONDUCTOR CHIPS HAVING Inv. No. 337-TA-
SYNCHRONOUS DYNAMIC RANDOM ACCESS MEMORY
CONTROLLERS AND PRODUCTS CONTAINING SAME,
INCLUDING GRAPHICS CARDS AND MOTHERBOARDS

CERTIFICATE OF SERVICE

I, W. Yorick Wrausmann, hereby certify that on November 21 ,2008, copies of the foregoing
document were filed as indicated:

Ms. Marilyn R. Abbott, Secretary

U.S INTERNATIONAL TRADECOMMISSION [7 Via First Class Mail
500 E Street, SW, Room 116 Via Hand Delivery
Washington, DC 20436 [7 Via Courier (FedEx)
[7 Via Facsimile
(ORIGINAL + 12 COPIES) [7 Via Email (PDF File)

I1

W. Y o r i g Wrausmann
Litigation Clerk
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, L.L.P.
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