Case 1:14-cv-01432-LPS Document 270 Filed 05/21/20 Page 1 of 11 PageID #: 16908
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ELM 3DS INNOVATIONS, LLC,
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`Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS CO., LTD., et
`al.
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`Defendants.
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`ELM 3DS INNOVATIONS, LLC,
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`
`Plaintiff,
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`
`
`v.
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`MICRON TECHNOLOGY, INC., et al.,
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`Defendants.
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`ELM 3DS INNOVATIONS LLC,
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`Plaintiff,
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`
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`v.
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`SK HYNIX INC., et al.,
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`Defendants.
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`C.A. No. 14-1430-LPS-CJB
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`JURY TRIAL DEMANDED
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`C.A. No. 14-1431-LPS-CJB
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`JURY TRIAL DEMANDED
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`C.A. No. 14-1432-LPS-CJB
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`JURY TRIAL DEMANDED
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`DEFENDANTS’ MOTION FOR AN EXPEDITED SCHEDULE AND LEAVE
`TO FILE ITS SUMMARY JUDGMENT MOTION ON
`INDEFINITENESS OF THE “LOW STRESS” TERMS
`
`Per Paragraph 16 of the May 9, 2018 Amended Scheduling Order (D.I. 179 in C.A. 14-
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`
`
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`
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`1432),1 Defendants SK hynix Inc.; SK hynix America Inc.; SK hynix Semiconductor
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`Manufacturing America Inc.; SK Hynix Memory Solution Inc.; Samsung Electronics Co., Ltd.;
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`1 For ease of reference, all docket citations in this motion are to C.A. 14-1432.
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`

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`Case 1:14-cv-01432-LPS Document 270 Filed 05/21/20 Page 2 of 11 PageID #: 16909
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`Samsung Semiconductor, Inc.; Samsung Electronics America, Inc.; Samsung Austin
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`Semiconductor, LLC; Micron Technology, Inc.; Micron Semiconductor Products, Inc.; and
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`Micron Consumer Products Group, Inc. (collectively, “Defendants”) respectfully seek leave of
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`Court to file an early summary judgment motion that the “low stress” terms discussed in the
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`Court’s Markman opinion are indefinite, and further seek an abbreviated schedule (including fact
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`and expert discovery) to expedite resolution of this potentially case-dispositive issue.
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`In its Markman opinion, the Court rejected all proposed and alternative claim constructions
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`for the “low stress” terms offered by the parties, and recognized that “[b]ecause the claims are
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`limited to a particular type of stress, measured at a specific place,” the terms could not be given
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`their plain and ordinary meaning, as Elm proposed. (D.I. 258 at 16). But the Court also indicated
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`that it could not determine, based on the current record, whether the “low stress” limitations
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`rendered the claims indefinite, noting Defendants are permitted to re-raise the issue at summary
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`judgment or trial. (Id. at 17).
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`By this motion, Defendants propose an expedited schedule to quickly fill out that record
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`and resolve this issue in the shorter term, months earlier than under the current schedule. If the
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`summary judgment motion is ultimately granted, it would be case dispositive and invalidate all
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`asserted claims. But even if it is denied, the parties and the Court will benefit greatly by addressing
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`the “low stress” terms now. Delaying resolution of this issue until the currently scheduled
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`summary judgment phase (starting summer of 2021) or trial (currently unscheduled) could
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`necessitate expert reports and summary judgment motions with hypothetical alternatives or lead
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`to requests for additional post-summary judgment expert reports and discovery (perhaps on the
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`eve of or during trial).
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`2
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`

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`Case 1:14-cv-01432-LPS Document 270 Filed 05/21/20 Page 3 of 11 PageID #: 16910
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`Moreover, Defendants do not currently request any changes to the rest of the schedule to
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`accommodate the proposed motion. Rather, Defendants request a quicker parallel schedule to
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`decide just one potentially case-dispositive motion, with the issue being ripe for the Court’s
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`decision later this year, around the time fact discovery on all other issues is scheduled to close.
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`For these reasons, Defendants’ Motion should be granted.
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`I.
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`SUMMARY OF FACTS
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`As part of the Markman process, the parties asked the Court to resolve a dispute concerning
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`various “low stress” terms found in each of the twelve asserted patents in this case.2 Defendants
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`argued the claims are indefinite because a person of ordinary skill would not know what type of
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`stress to measure, where to measure stress, how to measure stress, or when to measure that stress.
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`(D.I. 236 at 32, 39-42).3 Plaintiff, on the other hand, argued that the stress terms with the 5 x 108
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`dynes/cm2 numerical limitation should be given their plain and ordinary meaning, and the stress
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`terms without a numerical limitation should be construed to mean “having a stress of less than 8 x
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`108 dynes/cm2.” (D.I. 258 at 13-14). During the Markman hearing the Court expressed concerns
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`about the “low stress” terms: “You’re saying don’t tell the jury anything about any of this. And
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`your argument seems to be because manufacturers understand how to do this, but you don’t even
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`2 There are 67 claims that contain a “low stress” term. (D.I. 258 at 13-14). There are 30 additional
`claims that contain a substrate/semiconductor layer “substantially flexible” term that the Court
`construed as including “a sufficiently low tensile stress dielectric material” limitation. Id. at 6.
`Finally, there are two additional claims that contain a dice/die “substantially flexible” term that, as
`Defendants explained in their Motion for Clarification Under L.R. 7.1.5, should also be construed
`to include a “low stress” limitation consistent with the Federal Circuit’s construction. Id. at 6-7;
`D.I. 262. All the remaining asserted claims are dependent on one of these claims. Thus,
`Defendants’ proposed summary judgment motion could be dispositive of all asserted claims.
`3 Micron and Samsung proposed in the alternative a construction that was not joined by SK hynix.
`(D.I. 236 at 42-47).
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`3
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`

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`Case 1:14-cv-01432-LPS Document 270 Filed 05/21/20 Page 4 of 11 PageID #: 16911
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`want me to tell the jury that that is fair game to look to. So I guess I’m a little lost on how this
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`term could be definite.” (D.I. 241, Hearing Tr. 53:3-8).
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`Ultimately, the Court could not determine “at this stage of the case” whether the claims
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`were indefinite, but gave Defendants “an opportunity to renew their indefiniteness argument at the
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`summary judgment stage.” (D.I. 258 at 16-17). The Court further rejected Elm’s proposed
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`constructions (including its “plain and ordinary meaning” proposal),4 finding that the patents were
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`limited to a particular type of stress, measured at a specific place and time, but it could not
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`determine, based on the current record, what that particular stress was or how it should be
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`measured. (Id.)
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`Shortly after the Court issued its Markman opinion, Defendants contacted Elm seeking
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`agreement on an expedited schedule to address the indefiniteness issue. To start that discussion,
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`Defendants proposed the following schedule, with an expedited period of limited fact and expert
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`discovery relating to the “low stress” terms followed by a hearing sometime late this year (Ex. A):
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`Event
`Deadline for fact discovery on “low stress” indefiniteness
`Opening expert reports on “low stress” indefiniteness
`Responsive expert reports on “low stress” indefiniteness
`Deadline for Expert discovery on “low stress” indefiniteness
`Case dispositive motion on indefiniteness on “low stress” terms
`Response to motion
`Reply in support of motion
`Hearing, subject to Court availability
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`Importantly, Defendants’ proposed expedited schedule would run parallel to the existing
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`Deadline
`July 17, 2020
`August 7, 2020
`August 28, 2020
`September 18, 2020
`October 2, 2020
`October 16, 2020
`October 23, 2020
`TBD (November 6, 2020)
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`schedule, minimizing (if not eliminating) any perceived prejudice to Elm. The parties stipulated
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`to the current schedule on March 24, 2020. As shown below, that schedule has a fact discovery
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`4 The Court also rejected Micron’s and Samsung’s alternative construction.
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`4
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`Case 1:14-cv-01432-LPS Document 270 Filed 05/21/20 Page 5 of 11 PageID #: 16912
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`cutoff of October 26, 2020, around the same time Defendants propose a hearing on the “low stress”
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`terms in the parallel track (D.I. 255):5
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`
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`Event
`Substantial completion of document production;
`exchange of privilege logs
`Deadline to serve interrogatories, requests for
`admission, and Rule 30(b)(6) deposition notices
`Deadline to serve all other fact deposition notices
`Fact discovery closes
`Elm elects no more than 36 total claims and
`provides final infringement contentions
`Defendants’ responses to contention interrogatories
`related to infringement
`Defendants elect no more than 36 prior art
`references and provide final invalidity contentions
`Elm’s responses to contention interrogatories
`related to invalidity
`Opening expert reports
`Responsive expert reports
`Expert discovery closes
`Case dispositive and Daubert motions
`Responses to case dispositive and Daubert motions
`Replies to case dispositive and Daubert motions
`Hearing on pending dispositive and Daubert
`motions
`Rule 16 Conference
`Deadline for Elm to provide a draft pretrial order to all other parties
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`Deadline for all other parties to provide Elm and each other party
`with their responses to Elm’s draft
`order
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`Extended Deadline
`6/29/2020
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`7/23/2020
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`9/10/2020
`10/26/2020
`11/16/2020
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`12/7/2020
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`12/15/2020
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`1/5/2021
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`2/8/2021
`3/9/2021
`4/26/2021
`5/24/2021
`6/14/2021
`6/21/2021
`TBD
`
`TBD
`30 days before the
`pretrial order is to be
`filed with the Court
`14 days before the
`pretrial order is to be
`filed with the Court
`
`
`5 The parties’ stipulation extended the previous schedule by roughly three months to account for
`the difficulties encountered by the COVID-19 crisis. As explained in the letter accompanying that
`stipulation, Defendants felt a five-month extension to the schedule was “a more realistic
`assessment of the delay that will be caused by the complications of COVID-19,” but agreed to the
`three-month extension after Elm rejected Defendants’ initial proposal, with the understanding that
`they “may request a further extension if it becomes necessary.” (D.I. 256). In other words, an
`additional two-month extension to the current schedule may be necessary depending on the
`COVID-19 situation, irrespective of Defendants’ proposed motion.
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`5
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`

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`Case 1:14-cv-01432-LPS Document 270 Filed 05/21/20 Page 6 of 11 PageID #: 16913
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`Event
`Deadline for the parties to file a joint proposed statement setting
`forth their positions regarding trial sequencing and scheduling
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`Pretrial conference
`First jury trial (second and third jury trial to be
`determined by the Court)
`Deadline for the parties to jointly submit a form of order to enter
`judgment on the verdict and to submit a joint status report (should
`they wish to file one), indicating among other things how the case
`should proceed and listing any post-trial motions
`each party intends to file
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`Extended Deadline
`Third business day
`before the date of the
`Pretrial Conference
`(6 p.m. ET)
`TBD
`TBD
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`7 days after each jury
`verdict
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`
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`The Court has yet to schedule a hearing on dispositive and Daubert motions, a Rule 16 conference
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`to determine the sequence of trials, a pretrial conference date, or a trial date.6
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`II.
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`ARGUMENT
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`The Court has discretion in how it schedules its cases, and judicial economy and efficiency
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`considerations in this case weigh in favor of an expedited resolution of the indefiniteness issues.
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`As the Court recognized in its Markman opinion, the “low stress” terms found in each asserted
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`patent are difficult (if not impossible) to construe, and are thus susceptible to an indefiniteness
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`challenge. The proposed motion could also be case dispositive, and it would be relatively easy to
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`fill out the current record in the short term with any needed fact and expert discovery so that the
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`issue would be ripe for decision months earlier than the current schedule provides, potentially
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`saving the Court and the parties many months of unnecessary litigation. Elm will not be prejudiced
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`6 After Defendants reached out to Elm regarding the expedited schedule, Elm requested (for the
`first time) that the parties immediately ask for a trial date, in a rather obvious attempt to
`manufacture an issue with Defendants’ proposed schedule. (D.I. 267). Defendants will be filing
`a more complete response to this request shortly, but there is no need for the Court to set a trial
`date now, especially given the uncertainty with COVID-19, the fact that there is already a schedule
`in place through next summer, and the fact that Defendants’ proposed motion could be case
`dispositive and decided in the shorter term.
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`6
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`

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`Case 1:14-cv-01432-LPS Document 270 Filed 05/21/20 Page 7 of 11 PageID #: 16914
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`by this parallel schedule, as it will not impact the schedule (and therefore resolution) of all other
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`issues in this case.
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`Moreover, the “low stress” terms are currently undefined and all the constructions proposed
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`to date have been rejected by the Court. Going forward under the current schedule, without an
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`expedited parallel track, would force the parties to serve expert reports and file summary judgment
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`motions arguing infringement and invalidity in the alternative, essentially guessing as to the
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`construction the other party will push for and the Court will ultimately adopt, resulting in
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`unnecessary pages for the parties to draft and the Court to review.7 If that guess is later proven
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`wrong by the Court’s summary judgment decision, the parties may then have to seek additional
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`expert discovery on the eve of trial, as an unexpected construction could significantly change the
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`infringement/invalidity issues in the case. Expediting issues relating to the “low stress” terms
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`eliminates these concerns.
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`An earlier indefiniteness decision on these terms could also substantially encourage
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`settlement, as negotiations between the parties are unlikely to progress until that issue is decided.
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`Defendants acknowledge that the Court’s Markman order implied that these claim
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`construction issues may be resolved at a later stage of the case, even possibly at trial. With the
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`current backlog of cases, the unpredictability of a trial date in this case due to the current pandemic,
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`and the savings to the parties and the Court from an early resolution on this issue, Defendants’
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`believe its proposed expedited procedure would be in the best interest of justice in this case. In
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`the event that Defendants do not prevail on their motion, having knowledge of the Court’s
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`construction of these terms would inform the parties’ expert reports and positions on non-
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`infringement and invalidity.
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`7 In contrast, Defendants are willing to limit their proposed motion to 15-20 pages.
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`7
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`

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`Case 1:14-cv-01432-LPS Document 270 Filed 05/21/20 Page 8 of 11 PageID #: 16915
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`III. CONCLUSION
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`For all these reasons, this Court should grant Defendant’s motion and enter the Proposed
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`Order attached hereto.
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`
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`Dated: May 21, 2020
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`
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`Of Counsel:
`
`Allan M. Soobert
`Naveen Modi
`Phillip W. Citroën
`PAUL HASTINGS LLP
`875 15th Street N.W.
`Washington, DC 20005
`(202) 551-1700
`ELM3DS@paulhastings.com
`
`
`
`
`
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`Of Counsel:
`
`John Kappos
`Hana Oh Chen
`O’MELVENY & MYERS LLP
`610 Newport Center Drive
`Newport Beach, CA 92660
`(949) 823-6900
`jkappos@omm.com
`hchen@omm.com
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`
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`
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`Respectfully submitted,
`
`
`YOUNG CONAWAY STARGATT &
`TAYLOR, LLP
`
` /s/ Adam W. Poff
`Adam W. Poff (#3990)
`Pilar G. Kraman (#5199)
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`(302) 571-6600
`apoff@ycst.com
`pkraman@ycst.com
`
`Attorneys for Defendants Samsung
`Electronics Co., Ltd., Samsung
`Semiconductor, Inc., Samsung Electronics
`America, Inc., and Samsung Austin
`Semiconductor, LLC
`
`RICHARDS LAYTON & FINGER, P.A.
`
`
` /s/ Tyler E. Cragg
`Frederick L. Cottrell, III (#2555)
`Travis S. Hunter (#5350)
`Tyler E. Cragg (#6398)
`One Rodney Square
`920 North King Street
`Wilmington, DE 19801
`(302) 651-7836
`cottrell@rlf.com
`hunter@rlf.com
`cragg@rlf.com
`
`Attorneys for Defendants Micron Technology,
`Inc., Micron Semiconductor Products, Inc. and
`Micron Consumer Products Group, Inc.
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`8
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`

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`Case 1:14-cv-01432-LPS Document 270 Filed 05/21/20 Page 9 of 11 PageID #: 16916
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`Brian Cook
`Xin-Yi Zhou
`O’MELVENY & MYERS LLP
`400 South Hope Street
`Los Angeles, CA 90071
`(213) 430-6000
`bcook@omm.com
`vzhou@omm.com
`
`
`
`
`Of Counsel:
`
`L. Howard Chen
`Harold H. Davis
`Nicholas A. Brown
`GREENBERG TRAURIG, LLP
`Four Embarcadero Center, Suite 3000
`San Francisco, CA 94111
`(415) 655-1300
`chenh@gtlaw.com
`davish@gtlaw.com
`brownn@gtlaw.com
`
`Vishesh Narayen
`GREENBERG TRAURIG, LLP
`101 East Kennedy Boulevard, Suite 1900
`Tampa, FL 33602
`(813) 318-5700
`narayenv@gtlaw.com
`
`
`
`
`GREENBERG TRAURIG, LLP
`
` /s/ Benjamin J. Schladweiler
`Benjamin J. Schladweiler (#4601)
`The Nemours Building
`1007 North Orange Street, Suite 1200
`Wilmington, DE 19801
`(302) 661-7352
`schladweilerb@gtlaw.com
`
`Counsel for Defendants SK hynix Inc.,
`SK hynix America Inc., Hynix Semiconductor
`Manufacturing America Inc., and SK hynix
`Memory Solutions Inc.
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`9
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`

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`Case 1:14-cv-01432-LPS Document 270 Filed 05/21/20 Page 10 of 11 PageID #: 16917
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`CERTIFICATION PURSUANT TO D. DEL. LR. 7.1.1
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`Pursuant to District of Delaware Local Rule 7.1.1, the undersigned hereby certify that a
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`reasonable effort was made to reach agreement with opposing counsel regarding the subject matter
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`of this Motion, including oral communication involving Delaware counsel, but no agreement was
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`reached.
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`Dated: May 21, 2020
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`
`
`
`
`
`
`/s/ Adam W. Poff
`Adam W. Poff (#3990)
`Pilar G. Kraman (#5199)
`YOUNG CONAWAY STARGATT &
`TAYLOR, LLP
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`(302) 571-6600
`apoff@ycst.com
`pkraman@ycst.com
`
`Attorneys for Defendants Samsung Electronics
`Co., Ltd., Samsung Semiconductor, Inc.,
`Samsung Electronics America, Inc., and
`Samsung Austin Semiconductor, LLC
`
`/s/ Tyler E. Cragg
`Frederick L. Cottrell, III (#2555)
`Travis S. Hunter (#5350)
`Tyler E. Cragg (#6398)
`RICHARDS, LAYTON & FINGER, P.A.
`One Rodney Square
`920 North King Street
`Wilmington, DE 19801
`(302) 651-7700
`cottrell@rlf.com
`hunter@rlf.com
`cragg@rlf.com
`
`
`
`Attorneys for Defendants Micron Technology,
`Inc., Micron Semiconductor Products, Inc.
`and Micron Consumer Products Group, Inc.
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`
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`

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`Case 1:14-cv-01432-LPS Document 270 Filed 05/21/20 Page 11 of 11 PageID #: 16918
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`
`
`/s/ Benjamin J. Schladweiler
`Benjamin J. Schladweiler (#4601)
`GREENBERG TRAURIG, LLP
`The Nemours Building
`1007 North Orange Street, Suite 1200
`Wilmington, DE 19801
`Telephone: (302) 661-7000
`Fax: (302) 661-7360
`schladweilerb@gtlaw.com
`
`Attorneys for Defendants SK Hynix Inc., SK
`Hynix America Inc., Hynix Semiconductor
`Manufacturing America Inc., and SK Hynix
`Memory Solutions Inc.
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`
`
`
`
`
`2
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`