Case 1:00-cv-00792-SLR Document 1137-1

Filed 03/28/12 Page 1 of 4 PageID #: 11148

EXHIBIT A

Case 1:00-cv-00792-SLR Document 1137-1

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OFFICE OF THE GENERAL COUNSEL

UNITED STATES INTERNATIONAL TRADE COMMISSION

WASHINGTON, DC 20436

May 16,2011 The Honorable Jan Horbaly Clerk of Court United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, DC 20439
Re: Rambus Inc. v. ITC (2010-1483) Asustek Computer, Inc. v. ITC (2010-1556) NVIDIA v. ITC (2010-1557)

Dear Mr. Horbaly, On May 13,2011, this Court issued decisions in Hynix Semiconductor Inc. v. Rambus Inc. (Nos. 2009-1299, -1347) and Micron Technology, Inc. v. Rambus Inc. (No. 2009-1263). The Commission submits, pursuant to Rule 280), that these decisions support affirmance of the Commission's determination under review in the above-captioned matters; the Commission filed its opposition briefs on May 9,2011. In particular: The Court applied a "flexible reasonably foreseeable standard" for determining when Rambus was required to preserve documents. Micron, slip. op. 2-13; Hynix, slip op. 13-15. The Commission applied such a test in arriving at dates like those upheld in Micron. A229-22. The Commission expressly distinguished the district court's decision in Hynix. A230.

Case 1:00-cv-00792-SLR Document 1137-1

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Rambus' s arguments that there was no duty to preserve until 2008, Rambus Green Br. 54-57 (Nos. 2010-1556, 1557), are now foreclosed. Hynix, slip op. 12-16. Dismissal is a harsh sanction, Micron, slip op. 29, for which reason the Commission declined to impose it. See ITC Red Br. 52 (No. 2010-1556, -1557). Because Rambus' s document destruction in California formed the basis for piercing in Micron and Hynix, Micron, slip op. 31-34, Hynix, slip op. 17, and because Rambus's same conduct formed the basis for the Commission's piercing, A219-32, there is no longer any substantial basis for Rambus' s challenge to the Commission's piercing. Rambus Blue Br. 57-66 (No. 2010-1483). NVIDIA's allegations of JEDEC-related misconduct, ITC Red. Br. 56 (No. 2010-1557), are barred by the earlier lnjineon decision. Hynix, slip op. 19-22. In addition, the Commission expects that NVIDIA will argue that the COllllnission's determination that the asserted patents are enforceable is unsupportable because the burden of demonstrating prejudice was ostensibly placed on NVIDIA and not Rambus. Micron, slip. op. 28; see A232-34. However, in the instant investigation, Rambus demonstrated that the supposedly destroyed evidence was actually produced. See ITC Red Br. 52-55 (Nos. 2010-1556, -1557); Rambus Green Br. 18-19 (Nos. 2010-1556,1557). Accordingly, whether it was NVIDIA's or Rambus's burden to demonstrate (lack of) prejudice from the missing documents is moot: i.e., because the documents existed, placement of the burden is immaterial.

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Case 1:00-cv-00792-SLR Document 1137-1

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Sincerely,

. 7 \~__J ) SIdney A. Rosenzweig . /

On behalf of Appellee, United States International Trade Commission

.~ LX~~---~

cc:

1. Neel Chaterjee Ruffin B. Cordell J. Michael Jakes

(via first-class mail and electronic mail)

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