Judge Whyte's Case Management Conference - January 6
A great, great day for Rambus.
Today was like a lawyer convention. The manufacturers had fifteen lawyers at the table or in the gallery. Rambus had six, including Stone, Jeffries, Detre, and Ransom.
Judge Whyte started by saying, ?I think we are recognizing that there is too much to be done in too little time, but putting off the trial wouldn?t accomplish anything and we would end up right in the same place. So assuming I can hold up, we will forge forward.?
Stone said the parties conferred until 4:30 this morning, but couldn?t come up with a joint trial schedule statement. Stone said he thought 35 hours per side was appropriate, but the manufacturers estimate 131 hours just for their side. Stone said the manufacturers have 20 witnesses just for JEDEC issues. He said, ?The evidence keeps coming back again and again.? Stone said it is not just the court?s resources that aren?t being used efficiently, but also Rambus? resources. He said Rambus is finding it difficult to get XDR design wins, while the manufacturers continue to sell product below cost. Stone said Rambus doesn?t have anything approaching the resources to keep at this indefinitely and we need resolution as soon as possible.
Mr. Bobrow said the time and witnesses required are a function of the structure and the format of the trial. Judge Whyte said, ?The trouble with your proposal is that it isn?t fair to Rambus, nor could I order that?asking to have infringement determined without a full record.? Judge Whyte continued, ?If this were only an issue of jury instructions and adequate basis of evidence, or who goes first, I would feel comfortable ruling on this. But Rambus has a legitimate concern?the record is not sufficient to protect it on appeal.?
Powers tried to change Judge Whyte?s mind by adding a few sweeteners for Rambus that the manufacturers proposal originally didn?t include. He said Rambus is only asking for a mere 35 hours at trial, but we are allowing Rambus to supplement the record with more evidence than they ever could submit during trial. Powers also said the manufacturers would accept the adverse rulings on the relevant pending motions (There was no detail given on exactly what motions the judge and Powers were referring to). Powers said Rambus had no legitimate concern regarding an insufficient record and if there is something they want in they should identify the evidence. Rambus should ?Put up or shut up.?
Stone said the manufacturers still aren?t conceding the facts necessary for judgment. Stone also said infringement is a key secondary consideration in supporting validity and the evidence would need to come out even in a validity-only trial. Stone added that Rambus didn?t want a ?weak and watered-down assumption of infringement? as a jury instruction. The jury needs to be told in unambiguous terms the products have been found to infringe the patents and specific claims. The judge asked, ?If they concede infringement, can I make a finding on that?? Stone said the judge could, but only if Rambus stipulated to accept the concession. Stone reiterated, ?They need to concede the facts to remove the case or controversy. The issue can?t be taken in fairness and leave us with a sterile trial without being able to tell the whole story.? Stone also wanted to have collateral estoppel effect of any such concession. He said, ?There is nothing in the law to support their proposal, but maybe we are moving there.?
Judge Whyte said he needed to see the modified proposal in writing from the manufacturers. He also said any jury instruction would need to be the same as if Rambus had proceeded to trial and actually won the case. Judge Whyte said that each side should have 15 hours to discuss validity and he thought the infringement time estimate was high, but he would reserve that amount of time. He said the time required for willfulness is hard to say until the summary judgments are decided. Judge Whyte said once the willfulness and license defenses are ruled upon, it may save some time. The manufacturer table looked concerned, so Judge Whyte looked at their table and said, ?I?m not saying it will, but it may.?
Stone said he is worried that starting on the 20th may be physically impossible. He said he knows the judge is working hard on the remaining decisions, but maybe we should move the trial out one or two weeks. He said deciding the Samsung-only issues would benefit all the parties involved. Judge Whyte joked that he appreciated Stone?s acknowledgement of the judge working hard. Judge Whyte said he thought a delay of a week or two was a good idea. Powers said he could start on the 20th, but if the trial is moved back two weeks, it would cause scheduling conflicts and would require the trial to be reset by much longer than two weeks. Stone pointed out the hypocrisy of Powers because the manufacturers just asked for 26 weeks of trial and now just two weeks would cause the trial to be reset.
Judge Whyte said he agrees resetting the case would cause difficulty because 1) He would lose his law clerk 2) His own personal plans that would cause difficulties. He said one to two weeks may be a possibility. He said, ?I have one law clerk, I have 500 other cases. I?ve had some limitations on my time unrelated to the calendar.? It was at this point the judge became emotionally choked up. Stone relieved him by saying we should talk about the schedule later.
Judge Whyte changed topics and said opening statement should be no longer than 1-2 hours. He then said the number of claims Rambus has is fine, but the combinations the manufacturers are using to show obviousness is too much and should be limited to two. Bobrow then complained and said they needed up to five per claim. Judge Whyte mostly held his ground and said maybe he would allow an extra one if cause were shown.
Bobrow then complained about Rambus? 32 will-call witnessrs and 31 may-calls. Stone rebutted that the manufacturers have 35 will-calls and 90 may-calls. Stone then repeated his earlier point about the 20 JEDEC witnesses and Rambus? needed to rebut these witnesses. Stone said this is looking like a retrial of last January. Judge Whyte acknowledged Stones indirect point by saying, ?Part of the problem with getting everything done before trial may depend upon rulings that haven?t been made yet. Hopefully I?ll have more by Thursday." Judge Whyte responded to further complaints from Bobrow about Rambus?
witness list by saying, ?A lot of it depends on who you are willing to produce.? This was an indirect criticism of the manufacturers for not producing out of state witnesses.
Judge Whyte then discussed the inequitable conduct motion against Rambus. The manufacturers claim Rambus didn?t disclose all the prior art on child or grandchild applications, even though the art was disclosed on the parent patent. Judge Whyte seemed to largely agree with Rambus? position that all Rambus needed to do was initially disclose the art to the PTO and didn?t need to keep resubmitting the art for every child application.
Judge Whyte then addressed what Jedec conduct evidence would be allowed. Rambus was saying the jury already decided there was no duty to disclose. Nissley said that other JEDEC participants disclosed some art that shows some of the claims were obvious. Stone countered that the art disclosed actually came from Rambus? NDAs, but if the manufacturers claim there is true prior art, then they should provide such evidence. Stone said they shouldn?t be allowed to bring the evidence back in as JEDEC misconduct. Stone said they manufacturers should alert the judge outside the presence of the jury if they feel they need to discuss JEDEC conduct. Judge Whyte seemed to agree with this suggestion and it seems the JEDEC conduct might be allowed but only sparingly.
There was a long discussion about whether Samsung actually admits their products infringe the patents. Samsung still is clinging to the patent exhaustion defense. Mr. Detre reminded the judge that the tentative ruling precluded Mr. Powers' argument and if the final ruling is similar to the tentative, then this argument will be barred from the trial.
Judge Whyte then discussed the agenda for tomorrow. 1) The willfulness summary judgment. 2) The jury questionnaire 3) He will issue verbal rulings on the items discussed today or they will follow in the next couple days. He said the orders won?t include the normal detailed analysis, but hopefully they will provide sufficient guidance
Judge Whyte also said we will still start the jury questioning on January 20th and selection on the 22nd. He said he may delay the opening statements by 2-4 days to give more time for essential rulings.
Powers then brought up the Micron-only proposal. Judge Whyte said, ?Absent a stipulation, we won?t do that. I don?t think it is fair to Rambus to limit the evidence. I am also troubled by the idea that Rambus can?t have all the parties present. I don?t see why the manufacturers can dictate which defendant Rambus can try its case against.? Powers tried hard to change the judge?s mind, but I think to no avail. The judge said Powers can submit another proposal if he wants. Stone reminded the judge of the potential problems of possible settlement with Micron, bankruptcy of Micron, or a Judge Robinson ruling during the trial. Stone noted Micron?s dwindling cash position even though they are getting $120million per year from Nanya.
It was about here were the session ended.
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