[00:00:00] Speaker 03:
Our next case is Netlist Inc.

[00:00:03] Speaker 03:
versus Samson Electronics Company, Limited 24-2203.

[00:00:08] Speaker 03:
Okay, Councilor Cordell, you reserve five minutes to rebuttal.

[00:00:19] Speaker 03:
Yes, sir.

[00:00:20] Speaker 03:
We're ready when you are.

[00:00:21] Speaker 00:
May it please the court, Ruffin Cordell, for appellant Samsung.

[00:00:26] Speaker 00:
I invited Mr. Lincoln to become the appellant given that he's sitting on this side, but he declined.

[00:00:33] Speaker 00:
I'd like to start my argument with the court's permission in an unusual spot.

[00:00:38] Speaker 00:
I'd like to start with damages.

[00:00:40] Speaker 00:
Because I think those issues are more far-reaching in this case than any of the other.

[00:00:45] Speaker 00:
But time permitting, I'd love to come back and talk about Netlist's, in our view, complete disregard for the claim construction for terms like DRAM circuit and byte.

[00:01:00] Speaker 00:
We think those are profound as well.

[00:01:02] Speaker 00:
But starting with damages,

[00:01:04] Speaker 00:
We have researched and researched and researched, and we have not found a single case of this court that awarded 100% of the revenue associated with the patented invention to the patentee.

[00:01:18] Speaker 00:
Not a single one.

[00:01:21] Speaker 00:
Netlist's experts simply disregards the basic construct of the hypothetical negotiation, where a party like Netlist and a party like Samsung meet across the table.

[00:01:32] Speaker 00:
And Netlist says, I've got a patented idea.

[00:01:35] Speaker 00:
Samsung says, I'd make products.

[00:01:37] Speaker 00:
And they come to an agreement about how to defy the profit associated with that endeavor.

[00:01:43] Speaker 00:
Samsung will have costs.

[00:01:45] Speaker 00:
They will have to pay engineers and buy materials and do manufacturing.

[00:01:48] Speaker 03:
And Netlist says- Why isn't comparing the accused products with the next best non-practicing Samsung products?

[00:01:57] Speaker 03:
Why is that not enough?

[00:01:59] Speaker 00:
Your Honor, that was a very curious approach.

[00:02:01] Speaker 00:
What they did in that sense is they looked to value what they said was the invention by creating essentially a fiction, creating a comparison between the current Samsung product and then in some cases some that were simply fanciful, that were made up.

[00:02:20] Speaker 00:
The best example of this is the 918-054 product where they sort of posit that the entirety of the delta between DDR4 standard memory and DDR5 standard memory is attributable to these two patents.

[00:02:41] Speaker 00:
It's a breathtaking leap.

[00:02:43] Speaker 00:
They cited a Samsung document in their briefing talking about the fact that there was a 30% improvement in power efficiency between the entirety of the DDR4 standard and the DDR5 standard.

[00:02:58] Speaker 00:
They then take a product that they made up.

[00:03:02] Speaker 00:
And they said, if we took one of these products and we ripped what's called the PMIC or PMEC off the board,

[00:03:08] Speaker 00:
And then value that we would compare the Delta and that would give us an idea of the revenue, not the profit, the revenue associated with making the change to the product.

[00:03:18] Speaker 00:
So we have a couple of problems with that.

[00:03:20] Speaker 00:
Number one, we shouldn't be talking about revenue in a hypothetical negotiation.

[00:03:25] Speaker 00:
The vast body of case law of this court talked about splitting the profits, and they walked away from all of that.

[00:03:34] Speaker 04:
But Mr. Kennedy's theory was not based on splitting profits.

[00:03:39] Speaker 04:
His theory was based on assessing the value of the invention.

[00:03:45] Speaker 00:
So the assessment of the value that he used was actually the revenue.

[00:03:51] Speaker 00:
It wasn't the profit.

[00:03:51] Speaker 04:
It was the incremental revenue, which he said was part of the equation.

[00:04:01] Speaker 00:
I agree.

[00:04:01] Speaker 00:
It should be part of the equation.

[00:04:02] Speaker 00:
It should be the first step.

[00:04:04] Speaker 00:
The first step should be to calculate the revenue associated with it.

[00:04:07] Speaker 00:
We then reduce that to the profit by apportioning out the costs that are associated with that.

[00:04:12] Speaker 00:
So in the hypothetical construct, Samsung has a reason to do this.

[00:04:17] Speaker 04:
Well, you don't necessarily have to then look to profits.

[00:04:23] Speaker 04:
I mean, Mr. Kennedy made

[00:04:26] Speaker 04:
his argument based upon his assessment of what the value would be based upon the incremental increase in revenue and I think part of his argument, correct me if I'm wrong, was that the value of the invention would contribute to increased sales which in and of themselves would increase profits

[00:04:49] Speaker 04:
So it was a complicated but and perhaps creative perhaps too creative but a complex complex and creative approach to assessing the value as a basis for

[00:05:05] Speaker 04:
the damages theory.

[00:05:06] Speaker 00:
So again, it would be a good first step, but he then needed to continue down that road and take out the costs that Samsung would bear and then find an equitable division.

[00:05:18] Speaker 02:
Isn't it at least possible that the value to Samsung of being able to practice this patented technology so as to continue your revenue stream for your larger products

[00:05:29] Speaker 02:
is in fact 100% of the revenue that would be generated by practicing this patent.

[00:05:35] Speaker 00:
Well, we have a rubric for that, Your Honor.

[00:05:37] Speaker 00:
It's called the EMVR, the entire market valuable.

[00:05:40] Speaker 00:
And that was available to them if they thought they could achieve that very high bar.

[00:05:44] Speaker 02:
I'm not sure that we've said that's the only, I mean, just as a factual matter, isn't it possible that this technology was so important to Samsung preserving its position in the marketplace

[00:05:55] Speaker 02:
that at the height of the negotiation, it would say, we will give you every last penny of revenue derived from this patent.

[00:06:02] Speaker 02:
You have a chance to argue, of course, on the facts that that wasn't the case here.

[00:06:06] Speaker 02:
But I'm not sure what law says that we have to rule that out.

[00:06:10] Speaker 00:
Well, because again, the cases like Lindemann tell us that it would be irrational for a party in Samsung's posture to do that.

[00:06:18] Speaker 02:
What if it turned out the facts were that this industry is so cutthroat and you've got competitors and if you don't practice, if you don't get their patented technology on your memory modules, you're going to lose 100% of your larger sales.

[00:06:34] Speaker 02:
That's not irrational at that point to pay them every penny of your revenue.

[00:06:39] Speaker 00:
Associated with their technology is it well first of all we obviously dispute that on the fact so I can show you those that very Conclusory testimony at best that that established that but I think that describes the entire market value rule If in fact this feature was the key to selling the product if you had to have it Then they would have made an entire market value rule showing there's a ton of arguments in your briefs I don't remember entire market value rule.

[00:07:05] Speaker 00:
It's there.

[00:07:06] Speaker 00:
It's there.

[00:07:06] Speaker 00:
It's a

[00:07:11] Speaker 00:
My apologies.

[00:07:28] Speaker 00:
It is at page 49 of the blue brief.

[00:07:31] Speaker 02:
Thank you.

[00:07:34] Speaker 00:
And we obviously take issue with the facts of that construct, because they absolutely did not make that showing.

[00:07:43] Speaker 00:
The best they did is they said Netlist really needs the technology, and they cite to it at appendix 5693 and 94.

[00:07:51] Speaker 00:
But the evidence they use is the prior agreement between the parties, where the entirety of the netless patent portfolio was licensed to Samsung for $8 million.

[00:08:03] Speaker 03:
What page did you direct us from to just start this question?

[00:08:06] Speaker 03:
Page 49?

[00:08:07] Speaker 00:
Yes, you are.

[00:08:10] Speaker 00:
Page 49.

[00:08:11] Speaker 03:
The entire market value rule, I think that's what we're talking about.

[00:08:14] Speaker 00:
That's right.

[00:08:20] Speaker 00:
That's right.

[00:08:21] Speaker 00:
Page 49, right above the break.

[00:08:24] Speaker 00:
Indeed, even if Netlist intended to pursue all revenue, which it ultimately did, the law requires that Netlist prove that 100% of the incremental revenue was attributable to the patented features.

[00:08:35] Speaker 00:
Netlist did none of this and so failed the apportionment test, providing an independent reason why the court should reverse damages.

[00:08:47] Speaker 00:
So let me get

[00:08:48] Speaker 00:
if I can, to the idea that, let me now jump to the Rambus license, given the time, because this is an independent basis for this court to order a new trial.

[00:09:04] Speaker 00:
Netlist intentionally introduced the Rambus license as a heading.

[00:09:08] Speaker 02:
Help me procedurally on this one.

[00:09:10] Speaker 02:
Did you file a motion in Lemonade?

[00:09:12] Speaker 02:
Did you make a 403 argument?

[00:09:13] Speaker 02:
Did you check to the expert's discussion of Rambus at trial?

[00:09:18] Speaker 00:
We did, Your Honor.

[00:09:19] Speaker 00:
And we filed a Daubert motion, which was denied.

[00:09:22] Speaker 02:
I heard about the Daubert.

[00:09:24] Speaker 02:
Did you ever make a 403 argument?

[00:09:26] Speaker 02:
Because I understand you'd be making a 403 argument now.

[00:09:29] Speaker 00:
We are, but we're also making the argument under Daubert that this should form, it should never been exposed to the jury.

[00:09:35] Speaker 00:
So I don't know if we use the number 403 per se or not, whether we cited 403, but that was the gist of our Daubert

[00:09:43] Speaker 02:
Because I know you submitted a 28-J letter relating to Optus, but I think in Optus we relied solely on Rule 403 as a basis to exclude a license.

[00:09:54] Speaker 00:
But this court's law is legion.

[00:09:57] Speaker 00:
Unilock, Lucent, Laser Dynamics.

[00:10:02] Speaker 00:
We have lots and lots of examples that putting the big number in front of the jury skews the damages horizon and it's typically dealt with at the Dalbert stage.

[00:10:12] Speaker 00:
Because we never want this evidence to find its way before the jury, making an objection.

[00:10:16] Speaker 00:
A trial, for example, would be a little late, because they would already be accused.

[00:10:19] Speaker 00:
And you did make that argument at Dalbert.

[00:10:22] Speaker 02:
It wasn't just that it wasn't comparable.

[00:10:24] Speaker 02:
It was, hey, it's going to be too prejudicial to put a $1.1 billion number in front of the jury.

[00:10:28] Speaker 00:
Absolutely.

[00:10:29] Speaker 00:
Absolutely.

[00:10:30] Speaker 00:
That was the entirety, in fact, of our Dalbert challenge.

[00:10:34] Speaker 00:
And it was the fact that they made no effort beyond the big number to show comparability.

[00:10:41] Speaker 00:
Their expert admitted that he didn't look at 99.4% of the patents included in the Rambus license.

[00:10:47] Speaker 00:
Made no analysis whatsoever.

[00:10:50] Speaker 00:
It's not material that their expert ultimately didn't rely on the Rambus license, which in fact really reveals their true motive.

[00:11:00] Speaker 00:
They didn't really want to use it.

[00:11:01] Speaker 02:
I know you're aware that the jury ended up awarding only, your client might not say only, but 75%

[00:11:08] Speaker 02:
of the damages that Mr. Kennedy opined for.

[00:11:12] Speaker 02:
Do you say there's not substantial evidence to support that number?

[00:11:16] Speaker 02:
And could we not just go directly to that question as we analyze it?

[00:11:21] Speaker 02:
Hey, is there substantial evidence?

[00:11:22] Speaker 02:
Put aside all the issues he's raising.

[00:11:24] Speaker 02:
Is there substantial evidence for at least a 75%?

[00:11:27] Speaker 02:
overall damages award.

[00:11:29] Speaker 00:
So you could, but there are a lot of issues knit up in there.

[00:11:32] Speaker 00:
Number one, the Rambus issue can't be ignored.

[00:11:34] Speaker 00:
We can't put the cat back in the bag.

[00:11:35] Speaker 00:
They've skewed the horizon of damages.

[00:11:37] Speaker 00:
All the cases talk about this.

[00:11:38] Speaker 00:
Once you put that big number in front of the jury, the 75% doesn't help them.

[00:11:43] Speaker 00:
They have skewed that horizon.

[00:11:46] Speaker 00:
I haven't gotten to my apportionment issues, but there's been zero apportionment in this case.

[00:11:50] Speaker 00:
Again, they claim the entirety of the DDR4 to DDR5 delta for their own.

[00:11:57] Speaker 00:
And they can't do that.

[00:11:58] Speaker 00:
There are thousands of technologies, thousands of patents that go into that.

[00:12:01] Speaker 00:
So on apportionment alone, that 75% verdict can't be maintained.

[00:12:09] Speaker 00:
I'm a little bit into my rebuttal time.

[00:12:11] Speaker 03:
Yes, you are.

[00:12:12] Speaker 03:
You can stop now, or?

[00:12:14] Speaker 00:
Could I mention just two quick things back on the merits, and that is that with respect to the DRAM circuit, what we can't have is a situation where parties approach a district court, we get a claim of construction, and then when we get to trial, it's disregarded.

[00:12:28] Speaker 00:
And that's what happened in this case.

[00:12:30] Speaker 02:
But here the problem for you, I think, but if I've missed something in the record, I hope you'll point me to it.

[00:12:36] Speaker 02:
I think Judge Gilstrap was explicit that he was done with construction and you were going to present expert testimony if you wanted about what a DRAM circuit

[00:12:48] Speaker 02:
is.

[00:12:49] Speaker 02:
Did you object to that approach?

[00:12:51] Speaker 02:
Did you say, no, respectfully, you're not done with claim construction.

[00:12:54] Speaker 02:
You can't put this in front of the jury?

[00:12:56] Speaker 00:
We did not.

[00:12:57] Speaker 00:
We were happy with the claim construction.

[00:12:58] Speaker 00:
The problem is netlist refused to follow it.

[00:13:00] Speaker 00:
So if you look at A5550.

[00:13:02] Speaker 02:
Did you object at trial that what they were doing was arguing claim construction in front of the jury?

[00:13:07] Speaker 00:
We did.

[00:13:08] Speaker 00:
And it began at

[00:13:14] Speaker 02:
It's fine if you won't give me an estate when you get back.

[00:13:16] Speaker 00:
I will.

[00:13:17] Speaker 00:
But it began, I think, about at 540 is about when my continual objections began.

[00:13:25] Speaker 00:
Thank you.

[00:13:26] Speaker 03:
Thank you.

[00:13:39] Speaker 01:
Thank you, your honor.

[00:13:41] Speaker 01:
May it please the court.

[00:13:42] Speaker 01:
I'm going to begin where my colleague did, which was with the revenues issue and damages.

[00:13:48] Speaker 01:
And I will concede that if you're going to claim that in a hypothetical negotiation that the implementer will pay 100% of the incremental, the additional revenues following based on the invention, you're going to have to have case-specific reasons why that would be the result of that negotiation.

[00:14:06] Speaker 01:
But here we actually have, and the consequence of that is not that there's no money for Samsung.

[00:14:11] Speaker 01:
Samsung continues to make the same profit margin it did, but not the same margin, but the same amount of profit it did.

[00:14:16] Speaker 01:
on the prior version of these chips.

[00:14:19] Speaker 01:
And the reasons given here were very clear and very compelling.

[00:14:23] Speaker 01:
Samsung knew that without the innovations, it would be locked out of the market.

[00:14:27] Speaker 01:
It would have no profit at all if the sales would evaporate.

[00:14:30] Speaker 01:
And so they wouldn't even get its formerly healthy 50% profit margin on the prior version of these chips.

[00:14:36] Speaker 01:
And the evidence that was legion, if I can point you to page 5699, lines 24 to 25.

[00:14:41] Speaker 01:
Hang on a second.

[00:14:50] Speaker 01:
There's a bunch of these, so I'll walk through them as quickly as I can.

[00:14:53] Speaker 01:
What was the page again?

[00:14:54] Speaker 01:
5699.

[00:14:55] Speaker 01:
And it says, right at the bottom, Samsung needed a 30% increase in power efficiency to make those sales.

[00:15:10] Speaker 01:
If you move two pages later to 5701, lines 13 to 17, it says,

[00:15:19] Speaker 01:
Without Netlist technology, they would lose the sale.

[00:15:22] Speaker 01:
They would not be able to sell the product.

[00:15:24] Speaker 01:
Appendix 5705, line 22.

[00:15:28] Speaker 01:
Speed is critical for this product.

[00:15:30] Speaker 01:
Their customers understand that.

[00:15:31] Speaker 01:
So with that in mind, how important speed is, just trying to sell the same thing for less, the more likely someone's gonna go somewhere else.

[00:15:38] Speaker 01:
So this is important for Samsung to retain its market position.

[00:15:41] Speaker 01:
And if you go to 5712, line 19,

[00:15:45] Speaker 01:
Our expert there explains that Samsung knew that was what is at risk because what happened with HBM 1 is they got locked out of the market entirely because Hynix beat them to the market.

[00:15:55] Speaker 01:
And on top of that, in this negotiation, Kennedy testified that everybody knew

[00:16:01] Speaker 01:
that Netlist did not give naked licenses.

[00:16:04] Speaker 01:
It always required the type of joint venture agreement, the type of cooperation that had formerly existed before there was the breach by Samsung.

[00:16:11] Speaker 01:
And for that reason, they would require a premium.

[00:16:13] Speaker 01:
So if you're looking for sufficient evidence here, the evidence is more than sufficient that based on the relative bargaining position of the parties, Samsung would have given up at least the 75% that the jury awarded.

[00:16:25] Speaker 01:
And this is not a question of an entire market value rule.

[00:16:28] Speaker 01:
We're not taking a percentage of the total price of the end user product.

[00:16:31] Speaker 01:
This is the incremental benefit of the invention.

[00:16:36] Speaker 01:
And it's the incremental benefit done invention by invention, patent by patent.

[00:16:41] Speaker 01:
So when my colleague says, oh no, you just said the difference between DDR4 and DDR5, that's not correct.

[00:16:47] Speaker 01:
Kennedy isolated the benefit of the patented features.

[00:16:49] Speaker 01:
So for example, turn to page 5332,

[00:16:54] Speaker 01:
the 533 of the record, he's talking about just the onboard PMIC, the onboard piece of the power converter, the power management and the grid circuit.

[00:17:04] Speaker 01:
And then the next page, 53845, he points out that led to a 30% increase of power efficiency according to Samsung's own documents.

[00:17:14] Speaker 01:
And there's an image in our brief for that, I should be able to point that to you, but there's an image from the Samsung document.

[00:17:19] Speaker 01:
And then he converted that 30% savings into a dollar amount.

[00:17:23] Speaker 01:
It wasn't the entirety between DDR4 and DDR5.

[00:17:26] Speaker 01:
It was patent-advanced by patent-advanced specific to the particular technology at issue here.

[00:17:32] Speaker 01:
If I could turn really briefly to the Rambus license.

[00:17:36] Speaker 01:
That Rambas license was put into evidence after the district court determined, and the district court actually made a finding, that it was comparable.

[00:17:45] Speaker 01:
And that's at page 53 of the appendix.

[00:17:47] Speaker 01:
And it wasn't relied on by the expert to try and do a calculation, and he specifically told the jury, don't rely on this to do a calculation.

[00:17:55] Speaker 01:
It's just the type of background information you need to know and that the parties would have been aware of when they're talking about these types of fundamental advances

[00:18:05] Speaker 01:
and that people worry about being locked out of the market.

[00:18:07] Speaker 01:
And it is also parallel, because it was exactly the same type of negotiating posture everybody was in in Rambus.

[00:18:13] Speaker 01:
Rambus, there was a former joint venture between Rambus and Samsung.

[00:18:16] Speaker 01:
There was a breach.

[00:18:17] Speaker 01:
They got into a fight.

[00:18:17] Speaker 01:
There was a patent suit.

[00:18:19] Speaker 01:
That's what came out of it.

[00:18:21] Speaker 01:
The expert also said, look, yes, 2,000 patents in the Rambus license, six here.

[00:18:28] Speaker 01:
But what drove the negotiations were the 10 to 12 that were in litigation.

[00:18:32] Speaker 04:
But you have to agree that

[00:18:34] Speaker 04:
putting that big number in front of the jury had the potential to impact the outcome in an inappropriate way.

[00:18:48] Speaker 01:
I don't think it would impact the outcome in an inappropriate way, Your Honor.

[00:18:51] Speaker 01:
It simply shows the background in the parties are looking at is these are very important advances.

[00:18:56] Speaker 01:
They make a huge difference.

[00:18:58] Speaker 01:
But when you get to the actual calculation, the jury simply sits down and looks and says, does Mr. Kennedy's calculation make sense?

[00:19:04] Speaker 01:
Has he looked at the right things?

[00:19:06] Speaker 01:
Is the power difference what really matters?

[00:19:08] Speaker 01:
Is it 30%?

[00:19:10] Speaker 01:
Has he calculated that properly at price?

[00:19:12] Speaker 01:
He hasn't pulled it in.

[00:19:12] Speaker 03:
The question is whether putting that big number before the jury is more prejudicial than provident.

[00:19:17] Speaker 01:
Well, there was no 403 objection, so the substantially more prejudicial than probative value standard is out.

[00:19:24] Speaker 01:
It's simply a Daubert question.

[00:19:26] Speaker 01:
Is this so far off that you really can't even put it before the jury?

[00:19:29] Speaker 01:
And since it wasn't part of the licensing methodology, I'm not sure what Daubert has to do with it.

[00:19:34] Speaker 01:
Daubert is a reliable method, reliably applied.

[00:19:37] Speaker 01:
This isn't about the reliability of his method.

[00:19:39] Speaker 02:
Yeah, Mr. Cordell says he made the prejudice argument at Daubert.

[00:19:43] Speaker 01:
Do you disagree?

[00:19:44] Speaker 01:
So he made the argument that it could skew the damages horizon, but the skew the damages horizon language is about prejudice.

[00:19:51] Speaker 01:
Yes, if you let this in improperly, that skews the damages horizon and it's therefore prejudicial.

[00:19:57] Speaker 01:
You can't unring the bell.

[00:19:58] Speaker 01:
It's not that you are, it's not an argument that, wait a minute, rule 403, and if you're asking me to make a rule 403 argument, every good trial lawyer, and Mr. Cordell is excellent.

[00:20:07] Speaker 01:
would say, Rule 403.

[00:20:11] Speaker 01:
And that's not there.

[00:20:12] Speaker 01:
You would recite the standards.

[00:20:13] Speaker 01:
Substantially more private judicial than probative.

[00:20:16] Speaker 01:
That's not there.

[00:20:17] Speaker 01:
The argument is simply, don't let this in.

[00:20:19] Speaker 01:
It's a matter of it's not sufficiently comparable.

[00:20:23] Speaker 01:
It skews the damages horizon.

[00:20:25] Speaker 01:
It's simply not a proper objection.

[00:20:26] Speaker 01:
This was brought in for a particular purpose.

[00:20:29] Speaker 01:
It wasn't for the actual calculation.

[00:20:31] Speaker 01:
And any impact was.

[00:20:32] Speaker 01:
What about the Rambus license?

[00:20:34] Speaker 03:
Wouldn't they have been less prejudicial?

[00:20:37] Speaker 03:
Or at least we wouldn't have that issue as big as it is today.

[00:20:42] Speaker 01:
Yes, so, oh, the prior licenses that argued between us and Rambus.

[00:20:47] Speaker 01:
You're talking about our prior license with Samsung?

[00:20:50] Speaker 01:
The Rambus license, yes.

[00:20:51] Speaker 01:
Yeah, so the Rambus license, I think, is the one we were just discussing, was the Rambus license that wasn't within Atlas.

[00:20:57] Speaker 01:
And so I think that is...

[00:20:59] Speaker 01:
If your honor is asking about the two other licenses that were not included in our calculation, those were excluded because they included joint venture elements that were extraordinarily hard to value.

[00:21:11] Speaker 01:
It's not like you can just do an unpacking if there's cross licenses for patents.

[00:21:15] Speaker 01:
it's a joint venture and it just makes it not comparable and the jury might disagree with Mr. Kennedy and think no I'm gonna go with those because opposing counsel put in those licenses but that's simply a jury argument.

[00:21:25] Speaker 02:
Can I ask you on the 060 and the 160 patents there's a damages theory that I think in part relies on

[00:21:35] Speaker 02:
believing that the ability to do the eight high stacks requires or was impossible before your two patents.

[00:21:45] Speaker 02:
Is that a component of the theory?

[00:21:46] Speaker 02:
And if so, is that supported by the evidence?

[00:21:50] Speaker 01:
Yes, it is supported by the evidence.

[00:21:52] Speaker 01:
And that was part of our theory.

[00:21:53] Speaker 01:
What it enabled was eight high stacks.

[00:21:55] Speaker 01:
And that's because before you couldn't go up to eight high stacks because you'd have too much load.

[00:22:00] Speaker 02:
Wasn't there evidence presented that you could have done it before the 06L?

[00:22:06] Speaker 01:
So they did argue otherwise, and that's just simply a jury question.

[00:22:10] Speaker 01:
Could you do it or couldn't?

[00:22:11] Speaker 01:
And the jury apparently agreed with us that you could not.

[00:22:14] Speaker 01:
And the reason is because the former, what was called a multi-drop system, is if you went with eight things, you'd have your TSV or channel go through eight different dyes.

[00:22:23] Speaker 01:
And going through eight different dyes, that load is incredible.

[00:22:26] Speaker 01:
But if you take them and you separate them into groups, one TSV is connected to two, one is connected to three, and other one's connected to two, you actually have much less load.

[00:22:36] Speaker 01:
And then there was a further invention we didn't discuss about balancing the load.

[00:22:40] Speaker 01:
But all these things point to one result.

[00:22:44] Speaker 01:
These are factual questions that are being disputed for which there was substantial evidence and that the jury was entitled to rule in our favor.

[00:22:52] Speaker 01:
If there's any further questions, maybe I should turn to the DRAM circuit question about whether or not the jury had substantial evidence, sufficient evidence to hold that the infringing array dies were array dies that were not DRAM circuits.

[00:23:04] Speaker 01:
And I think I would like to start out with, that was Samsung's construction.

[00:23:08] Speaker 01:
Based on a disclaimer, they wanted to argue that they got this construction, an array die that is different from a DRAM circuit.

[00:23:16] Speaker 01:
And Samsung argues now,

[00:23:19] Speaker 01:
something that probably could not have gotten if it asked for as a further construction, that if it has DRAM cells, the millions of tiny little cells that make up every DRAM array die or DRAM circuit,

[00:23:30] Speaker 01:
then it becomes a DRAM circuit, because an array die that's made of tiny cells is not a claimed array die, but instead is an excluded DRAM circuit.

[00:23:38] Speaker 01:
And a reasonable jury could reject that for at least three reasons.

[00:23:43] Speaker 01:
First, the jury's had actual pictures of DRAM circuits, the disclaimed DRAM circuits.

[00:23:47] Speaker 01:
If you turn to page 22,116, there's a picture of Rajan's stacked DRAM circuits.

[00:23:54] Speaker 01:
And these are these boxes, these modules, these monolithic pieces.

[00:23:59] Speaker 01:
And then, if you turn to page 16341, you see that there's not microscopic cells.

[00:24:05] Speaker 01:
They're these big blocks.

[00:24:08] Speaker 01:
As Dr. Borgoroli said, no, array dyes have DRAM cells in them, but that's not the DRAM circuit that they claim construction is talking about.

[00:24:15] Speaker 01:
The Samsung's corporate representative, Kim, testified, and this is at 22,105.

[00:24:19] Speaker 01:
The Samsung's dies have DRAM cells in an array format, but didn't equate DRAM circuits or array dies with DRAM cells.

[00:24:26] Speaker 01:
And it doesn't even make sense in terms of the words of the construction.

[00:24:29] Speaker 01:
The construction is an array die that is different from a DRAM circuit.

[00:24:33] Speaker 01:
It doesn't say an array die that is not made of DRAM cells.

[00:24:37] Speaker 01:
And finally, if you turn to claim 29 of the 060 patent, this is at appendix 718,

[00:24:44] Speaker 01:
Lines 26, or column 26, line 55.

[00:24:49] Speaker 01:
It actually has a claim.

[00:25:01] Speaker 01:
It's page seven, actually 718, or maybe seven, I'll do 742, 718, let's do 718, it's the same claim.

[00:25:08] Speaker 01:
All right, it actually has a claim there.

[00:25:12] Speaker 01:
Claim 29, and it claims a plurality of DRAM packages, so we know we're DRAM, and you look down to line 61, it says a plurality of array dies arranged in a stack.

[00:25:23] Speaker 01:
So this is array dies in a stack that's DRAM.

[00:25:26] Speaker 01:
It's gonna have DRAM cells.

[00:25:27] Speaker 01:
Either that disclaimer does not lock out everything that's DRAM, does not lock out everything with DRAM cells, or the examiner made a giant mistake and couldn't have issued claim 29.

[00:25:38] Speaker 02:
It can't be right.

[00:25:44] Speaker 01:
That is exactly what it is.

[00:25:45] Speaker 01:
And it's a claim construction dispute in which Samsung is basically arguing claim construction

[00:25:51] Speaker 01:
Um, and the jury had just had to have substantial evidence and there was ample evidence.

[00:25:55] Speaker 02:
I'm probably not being clear on my question.

[00:25:57] Speaker 02:
If it's a claim construction dispute, doesn't it mean the court had an obligation to resolve it and not let you all play this out in front of the jury?

[00:26:05] Speaker 01:
No, because O2 Micro gives district courts that obligation, but it has to be apparent that the parties have a claim construction dispute.

[00:26:13] Speaker 01:
And in Kauffman versus Microsoft, the court says, there's not necessarily an I02 micro decision whenever further claim construction could resolve the party's dispute.

[00:26:20] Speaker 01:
Rather, the party must sufficiently request further construction of the relevant limitation to raise an actual dispute.

[00:26:26] Speaker 01:
And everybody was content to let it go with the precise construction given by the district court.

[00:26:30] Speaker 02:
But the construction is, whatever we're talking about, erudite.

[00:26:35] Speaker 02:
It's not a DRAM circuit.

[00:26:36] Speaker 02:
And at a certain point, you wanted to object and get a further ruling on what a DRAM circuit was.

[00:26:43] Speaker 02:
And then you withdraw that objection.

[00:26:45] Speaker 02:
And I think Judge Gilstrap says, you can have your experts testify in front of my jury as to what a DRAM circuit is and therefore isn't.

[00:26:54] Speaker 02:
And why is that not an error?

[00:26:57] Speaker 02:
Why isn't that just saying, let's have a claim construction hearing in front of the jury?

[00:27:01] Speaker 01:
Well, no, that's having a dispute before the jury about the meaning about what is and isn't within the claim construction that's actually issued.

[00:27:09] Speaker 01:
Remember, this is Samsung's claim construction.

[00:27:12] Speaker 01:
Samsung asked for an array die that is not a DRAM circuit.

[00:27:15] Speaker 01:
And so the question for the jury is, do Samsung's products qualify as array, have array dies,

[00:27:21] Speaker 02:
If I think this is a claim construction issue, an O2 micro issue, have we said that that can be waived?

[00:27:29] Speaker 02:
And would you argue that they failed to preserve the issue?

[00:27:32] Speaker 01:
Doubly, Your Honor.

[00:27:34] Speaker 01:
First, because it was their claim construction, they never sought anything more.

[00:27:37] Speaker 01:
They're specifically told by the district court it was going to go to the jury.

[00:27:40] Speaker 01:
They didn't object.

[00:27:41] Speaker 01:
And at no point did they say to the district court, ah, in the middle of trial, it looks like we're fighting about the meaning of terms.

[00:27:47] Speaker 01:
we need a clean construction.

[00:27:48] Speaker 01:
Coffin is very clear that you can't just sort of sandbag the judge in that way.

[00:27:52] Speaker 01:
But finally, if I can make one last point on this in the 47 seconds remaining.

[00:27:57] Speaker 01:
And that is that there was ample evidence from which a jury could understand that the array dies here were not DRAM circuits.

[00:28:04] Speaker 01:
And that's because the DRAM circuits have sort of an independence, a standalone aspect that an array die doesn't.

[00:28:11] Speaker 01:
So first, if you look at the patent itself, it explains that for an array,

[00:28:15] Speaker 01:
Sorry, maybe if I go to our expert, our expert at page 5510 said, if you have a DRAM circuit, you can connect it directly to a microprocessor and run a program.

[00:28:24] Speaker 01:
So it can be put next to and hooked up with your microprocessor.

[00:28:28] Speaker 01:
And that's why you hook them together with separate wires.

[00:28:31] Speaker 01:
But if you're looking at the array dies here, they require a control die.

[00:28:36] Speaker 01:
They're not capable of talking to anything on its own.

[00:28:38] Speaker 01:
They don't have that independence.

[00:28:40] Speaker 01:
And that's Appendix 710.

[00:28:41] Speaker 01:
Lines 10 to 35.

[00:28:43] Speaker 01:
And Borgoli therefore said, look, a DRAM is monolithic.

[00:28:46] Speaker 01:
It's a standalone device.

[00:28:48] Speaker 01:
DRAM circuits have that electronic independence.

[00:28:51] Speaker 01:
If you remove one, the others won't work.

[00:28:53] Speaker 01:
That's Appendix 5509.

[00:28:55] Speaker 01:
The euridice, by contrast, lacked that independence.

[00:28:57] Speaker 01:
If you try and tear them apart, they won't work.

[00:29:00] Speaker 01:
That's 5509 again.

[00:29:01] Speaker 01:
And that's a huge impact.

[00:29:02] Speaker 01:
If the court has no further questions, I ask that the judgment be approved.

[00:29:12] Speaker 03:
You have three minutes of time.

[00:29:15] Speaker 00:
Thank you, Your Honor.

[00:29:15] Speaker 00:
If I could begin where my brother left off, we absolutely did object to their misuse of the other than a DRAM circuit claim construction.

[00:29:24] Speaker 00:
It started at 5503.

[00:29:26] Speaker 00:
I objected for pages and pages and pages.

[00:29:29] Speaker 00:
At Appendix 5550, Dr. Brogioli, their expert, said he had no opinion about the plain meaning of DRAM circuit.

[00:29:38] Speaker 00:
He feigned ignorance of circuit.

[00:29:40] Speaker 00:
I chased him around the courtroom for an hour.

[00:29:42] Speaker 00:
And he kept saying, I don't know.

[00:29:43] Speaker 00:
It depends on context.

[00:29:45] Speaker 00:
And we showed them his own papers.

[00:29:47] Speaker 00:
We showed them net lists, filings.

[00:29:50] Speaker 00:
We showed them the inventory statements.

[00:29:51] Speaker 00:
They clearly understood what a DRAM circuit was, and they chose not to acknowledge it.

[00:29:57] Speaker 00:
And if there's any doubt in your minds, please refer to Appendix 22054, which was the discussion in the

[00:30:06] Speaker 00:
in the PTAB argument that we heard argument on this morning by their lead counsel where he was asked what a DRAM circuit was and he said it's a DRAM circuit is a monolithic structure that includes transistors that hold state and the judge followed up and said if you have a monolithic structure with transistors that hold state that cannot meet your claim

[00:30:29] Speaker 00:
He answered, if that's what you have, if that's what your chip is, that doesn't meet the claim.

[00:30:33] Speaker 00:
That is what our chips are.

[00:30:34] Speaker 00:
So it wasn't a question of needing additional construction.

[00:30:38] Speaker 00:
It was a question of them not putting in evidence.

[00:30:40] Speaker 00:
If you look at their evidence, every single thing they cite

[00:30:44] Speaker 00:
at pages 13 and 26 through 29 of the Red Brief, every single citation is not having to do with the memory circuit.

[00:30:55] Speaker 00:
It has to do with how it's connected with these external bond wires.

[00:30:58] Speaker 00:
And they've added that as a limitation to the claim, as a limitation of the disclaimer.

[00:31:04] Speaker 00:
And therefore, it really shouldn't be permitted.

[00:31:06] Speaker 00:
Look at Exergen.

[00:31:08] Speaker 00:
In Exergen, some of my partners offered a trial theory that didn't work, and they were sent, they were denied because they twisted the claim construction in a way that wasn't included.

[00:31:18] Speaker 00:
We all have to obey those claim constructions, and if we don't, then you can't prevail.

[00:31:23] Speaker 00:
Let's get to damages.

[00:31:25] Speaker 00:
My brother said that, for example, at 5532 and 5533, there was a discussion of why these parts were so essential.

[00:31:38] Speaker 00:
But if you look at it closely, that's not what they say.

[00:31:41] Speaker 00:
What they say is, in fact, I'm sorry, 5332.

[00:31:49] Speaker 00:
What they say, in fact, is that these are very stilted statements.

[00:31:53] Speaker 00:
They don't tell us anything specific about these two patents.

[00:31:57] Speaker 00:
So at 5532, the question was, how do these patents address challenges with power management?

[00:32:03] Speaker 00:
And they say, well, there's a concept, and things are used.

[00:32:06] Speaker 00:
But then tellingly, their expert said at 5333 that the word PMIC, meaning which is the part that my brother said instantiates this technology,

[00:32:19] Speaker 00:
That's just one part of their power management, which is on module, just one part of the DIMMs.

[00:32:24] Speaker 00:
So at a minimum, they had to apportion that 30%.

[00:32:29] Speaker 00:
They had to reflect what portion of that 30% actually was found in these patents.

[00:32:34] Speaker 00:
The same is true for the 060 and the 160 at 5544.

[00:32:39] Speaker 00:
And I think, Judge Stark, you asked a question about this.

[00:32:42] Speaker 00:
The evidence is very thin about how they're able to claim that the expansion from four high to eight high was the result of these inventions, because it's admitted by everybody, or it will.

[00:32:55] Speaker 00:
Let me strike that.

[00:32:56] Speaker 00:
It's contended by Netlist that the four high also includes the invention.

[00:33:01] Speaker 03:
OK, counselor.

[00:33:02] Speaker 03:
We have your argument.

[00:33:03] Speaker 03:
You're out of time.

[00:33:04] Speaker 00:
Thank you.