Samsung v Rambus - VA (051021)

Rambus’s Memorandum On Remaining Proceedings

[Rambus has pending a motion to dismiss Samsung’s complaint due to its mootness. Samsung has pending a motion for Summary Judgment and a request that Payne find its case “exceptional” under Section 285 and award attorney fees. Judge Payne requested a memo on how he should proceed. Here is a link to the memo at Rambus.com. As follows is a brief summary.]

Rambus tells Judge Payne:

1. “All claims in this action have been mooted.”
2. We have “filed covenants not to sue for the patents-in-suit.”
3. We have formally offered to pay Samsung’s attorneys’ fees; and
4. You have no Article III jurisdiction

Then for a dozen or so pages Rambus provides His Honor with its argument.

No jurisdiction to determine the Section 285 claim. Court should dismiss claim.

Rambus has formally offered to pay Samsung’s attorneys’ fees. Samsung has not responded.

If Court accepts Samsung’s invitation to adjudicate is Section request “despite the lack of jurisdiction” it should proceed as follows:

1. Determine if Samsung is the “prevailing party”
2. Determine if Samsung has shown the case to be “exceptional”
3. Determine if it should exercise its discretion and award fees
4. Determine amount of fees to be awarded

Samsung is not the “prevailing party” in the action. This is the threshold question and Samsung can not satisfy it.

Even if the court where to find the case “exceptional” it cannot do so in the “truncated manner” Samsung proposes. There must be an evidentiary hearing. The Court cannot rely on the Infineon record for either of Samsung’s two theories:

1. Infineon record demonstrates Rambus engaged in “bad-faith litigation”
2. Infineon record establishes a separate and independent basis for finding “exceptional” case

No separate and independent basis. Pre-litigation conduct regarding Infineon is not a basis for “exceptional” in the Samsung matter. Must be inequitable before the Patent and Trademark Office.

“Bad-faith litigation” is litigation that is “vexatious, unjustified, or frivolous.” Must prove litigation brought in “subjective bad faith” and “objectively baseless.”

Judge Whyte rejected Hynix’s collateral estoppel argument demonstrating Rambus’s decision to proceed was not “objectively baseless.”

Samsung cannot use Infineon record to demonstrate bad faith.

1. Cannot use the record for the “truth of the matters asserted therein.” Rambus must have a fair opportunity to present evidence relating specifically to Samsung.
2. Rambus must be provided and opportunity so show that Samsung did not incur severe injury or prejudice by the destruction of JEDEC or licensing negotiation related documents.
3. Rambus must be provided and opportunity to show that it did not anticipate litigation against Samsung, a licensee at that time.
4. Rambus must be provided an opportunity to show if Samsung has unclean hands as a result of its (Samsung’s) spoliation of vast quantities of e-mail. Judge Hodges in the Mosaid litigation found Samsung’s intentional spoliation “staggering.”

If the issue of “exceptional” must be determined, it should be done before Judge Whyte after actually litigating the merits.

Section 285 claim will require full litigation procedure and discovery. Rambus must be afforded full and fair opportunity for discovery.