Case 1:14-cv-01430-LPS Document 289 Filed 05/26/20 Page 1 of 13 PageID #: 19581
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ELM 3DS INNOVATIONS, LLC,
`
`Plaintiff,
`
`v.
`
`
`
`
`SAMSUNG ELECTRONICS CO., LTD., et
`al.,
`
`Defendants.
`
`C.A. No. 14-cv-1430-LPS
`
`JURY TRIAL DEMANDED
`
`FILED UNDER SEAL
`
`DECLARATION OF NOSSON D. KNOBLOCH IN SUPPORT OF MOTION TO
`COMPEL
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`I, Nosson D. Knobloch, declare as follows:
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`1.
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`I am a partner with the law firm Bartlit Beck LLP and am admitted to practice pro
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`hac vice before this Court. I submit this declaration in support of Plaintiff’s Motion to Compel.
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`The facts set forth in this declaration are known to me personally. If called as a witness, I could
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`and would testify competently concerning these matters.
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`2.
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`On June 3, 2016, Elm served Interrogatory No. 4 on Samsung, seeking a list of all
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`“Stacked Integrated Circuit Products” that Samsung sells “directly to an affiliate or third party”
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`or incorporates “in products that you subsequently sell to an affiliate or a third party.” Ex. 1 at 3.
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`The request defined “Stacked Integrated Circuit Products” as “an integrated circuit product
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`where multiple silicon die are vertically stacked in a single chip package and at least one silicon
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`die is less than 150 microns in thickness.” Id. at 2.
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`3.
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`On July 11, 2016, this case was stayed pending Defendants’ IPRs regarding the
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`patents in suit. See July 11, 2016 docket text.
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`4.
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`On February 26, 2018, the stay was lifted following the PTAB’s denial of nearly
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`all of the IPR challenges. D.I. 170.
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`

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`Case 1:14-cv-01430-LPS Document 289 Filed 05/26/20 Page 2 of 13 PageID #: 19582
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`5.
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`On May 24, 2018, I sent a letter to Samsung concerning, among other things,
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`Samsung’s identification of relevant products. See Ex. 2. In that letter, I asked Samsung to
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`“update its identification of its stacked memory products and propose a subset of those products
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`that Samsung would agree to treat as representative products for purposes of Elm’s infringement
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`proof in this case.” Id. at 2.
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`6.
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`Since sending that letter to Samsung, I have sent well over a hundred emails to
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`Samsung’s counsel, the vast majority of which have addressed issues related to Samsung’s
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`identification of its relevant products or its production of technical and sales data about those
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`products. I have also participated in more than twenty calls with Samsung’s counsel during
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`which these issues have been discussed.
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`7.
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`On August 9, 2018, Samsung supplemented its response to Interrogatory No. 4,
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`and attached an Appendix listing more than 2000 products that Samsung identified as “having
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`two or more vertically stacked die that have been sold in the United States in the period between
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`2007 to present….” Ex. 3 at 7.
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`8.
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`The following day, I wrote a letter to Samsung’s counsel noting Elm’s
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`understanding that Samsung’s response to interrogatory number 4 “now includes all stacked IC
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`products (including stacked IC products incorporated into downstream Samsung products) that
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`Samsung has sold in the United States.” Ex. 4 at 1.
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`9.
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`On August 31, 2018, Samsung’s counsel responded to my letter. Samsung’s
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`response did not correct Elm’s understanding that—as described in my August 10 letter—
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`Samsung had identified all “stacked IC products incorporated into downstream Samsung
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`products.” Ex. 5.
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`10.
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`On November 13, 2018, Samsung’s counsel sent me an email noting that
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`2
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`Case 1:14-cv-01430-LPS Document 289 Filed 05/26/20 Page 3 of 13 PageID #: 19583
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`“Samsung is currently addressing some discrepancies in the information it compiled on the
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`products listed in response to ROG 4.” Ex. 6 at 1.
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`11.
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`On February 2, 2019, I emailed Samsung concerning a number of discovery-
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`related matters. Among other things, I noted that “[o]n January 23rd, you wrote in an email that
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`‘Samsung recently provided more information on the stacked die products. We are currently
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`reviewing and plan to produce this to you soon, assuming no unforeseen issues.’ It is now more
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`than a week later, and we have not received that information. With the claim construction
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`hearing coming up in just over a month, we cannot keep waiting for Samsung to produce this
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`long-awaited information.” Ex. 7 at 6.
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`12.
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`On February 25, 2019, I emailed Samsung concerning a number of discovery-
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`related matters. Among other things, I asked as follows: “What is the status of the stacked-die
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`info addressed in your email, below? After numerous delays, you indicated that you believed you
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`could provide it last week, but we did not receive it. Will you be providing that information this
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`week?” Id. at 1.
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`13.
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`On March 14, 2019, Samsung served a supplemental response to Elm’s
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`Interrogatory No. 4. Ex. 8. In its supplemental response, Samsung referred “Elm to the
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`documents bearing bates numbers SAMSUNG-ELM-000058542 – SAMSUNG-ELM-
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`000058543, wherein information responsive to this interrogatory may be found.” Id. at 7-8.
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`Samsung further stated that “[t]hese documents provide a revised list of all stacked silicon die
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`packages having two or more vertically stacked die that have been sold in the United States in
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`the period between 2007 to the present and that are not included in the Second Amended
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`Accused Product List served on June 3, 2016. . . . These documents include certain information
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`regarding the identified packages, including the number of stacked chips . . . and die thickness.”
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`3
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`Case 1:14-cv-01430-LPS Document 289 Filed 05/26/20 Page 4 of 13 PageID #: 19584
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`Id. at 8.
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`14.
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`The spreadsheets Samsung identified in Ex. 8 identified numerous products not
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`listed in Appendix A to Samsung’s prior response, and omitted hundreds of the products
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`previously included in Appendix A.1
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`15.
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`On March 19, 2019, I participated in a meet and confer with Samsung on a
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`number of issues, including its March 14 supplemental interrogatory response. Afterwards I
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`emailed Samsung’s counsel summarizing the parties’ meet and confer, including the following:
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`“We discussed Elm’s concerns that, given the gaps in Samsung’s understanding of its products,
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`there may be other stacked-die products that have been omitted from the -42 and/or -43
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`spreadsheets. You stated that these concerns were unfounded, and that you believed that all the
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`Samsung stacked products had been identified and included in these lists.” Ex. 9 at 1.
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`16.
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`On June 12, 2019, the Federal Circuit affirmed the PTAB’s denial of the
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`Defendants’ IPRs, and adopted a construction of the “substantially flexible” claim terms that
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`limits them to semiconductors that have been thinned to 50 microns or less. See Samsung Elecs.
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`Co., Ltd. v. Elm 3DS Innovations, LLC, 925 F.3d 1373, 1380 (Fed. Cir. 2019).
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`17.
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`On June 20, 2019, I emailed Samsung’s counsel. I made clear that, “[i]n light of
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`the Federal Circuit’s recent decision, Elm currently intends to accuse of infringement all
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`Samsung semiconductor products that contain more than one circuit layer, where at least one
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`circuit layer is stacked above or below another circuit layer, and where at least one of the layers
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`has a thickness of 50 microns or less.” Ex. 10 at 6. I asked “[w]hether Samsung has already
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`identified all products sold between 2008 and 2018 that meet [these] criteria.” Id. My email also
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`1 The produced spreadsheets referenced in this declaration are in native Excel format and may be
`difficult to print to PDF. Elm would be happy to lodge native version of these documents upon
`the Court’s request.
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`
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`4
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`

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`Case 1:14-cv-01430-LPS Document 289 Filed 05/26/20 Page 5 of 13 PageID #: 19585
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`asked for a meet and confer about the selection of representative products. Ex. 10 at 6.
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`18.
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`On June 24, 2019, I emailed Samsung’s counsel and identified 50 products
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`which—based on the spreadsheets Samsung identified in its March 14, 2019 Second
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`Supplemental Response to Elm’s Interrogatory No. 4—Elm had determined included at least one
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`die that was 50 microns or less. Id. at 4-5. My email also identified approximately 700 products
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`for which Samsung had not yet identified die thickness. Finally, my email requested that
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`Samsung confirm that Elm’s list of 50 products included “every Samsung semiconductor product
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`sold from 2008 to the present that Samsung knows to contain more than one circuit layer, where
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`at least one circuit layer is stacked above or below another circuit layer, and where at least one of
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`the layers has a thickness of 50µm or less.” Id. at 5.
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`19.
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`On June 24, 2019, Samsung’s counsel responded to my email and confirmed that
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`“Samsung has identified all products that you have asked about based on a reasonable search.”
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`Id. at 4. Samsung’s counsel further stated: “You have not given any basis for your suspicion that
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`the list of products that Samsung has identified is incomplete.” Id.
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`20.
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`Later that same day, I responded and asked as follows: “When will Samsung
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`provide a complete list of all stacked semiconductor products sold from 2008 to the present that
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`Samsung knows to contain more than one circuit layer, where at least one circuit layer is stacked
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`above or below another circuit layer, and where at least one of the layers has a thickness of 50μm
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`or less?” Id. at 3.
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`21.
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`On June 24, 2019, Elm served its Third Set of Common Interrogatories. These
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`interrogatories sought sales data concerning “any Product made or sold by you that contains a
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`semiconductor layer that is 50 microns or less.” Ex. 11 at 3.
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`22.
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`On July 10, 2019, Samsung’s counsel responded to my June 24 email and once
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`5
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`Case 1:14-cv-01430-LPS Document 289 Filed 05/26/20 Page 6 of 13 PageID #: 19586
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`again confirmed that it “has already identified all such products, and you have given us no basis
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`to suspect that Samsung has not done so.” Ex. 10 at 2.
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`23.
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`On July 15, 2019, I responded to Samsung’s July 10 email and provided two
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`examples of product types that appeared to be missing from Samsung’s identification of its
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`relevant stacked semiconductor products. Id. at 1.
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`24.
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`On September 4, 2019, Samsung indicated it would provide to Elm, by September
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`20, 2019, “a final list of the remaining stacked memory products, and an attestation that the list is
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`complete.” Ex. 12 at 2.
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`25.
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`On September 20, 2019, Samsung further supplemented its response to
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`Interrogatory No. 4. See Ex. 13. In that third supplemental response, Samsung identified “the
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`document bearing bates number SAMSUNG-ELM-000062355, wherein information responsive
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`to this interrogatory may be found.” Id. at 9. Samsung’s response further stated that “[t]his
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`document provides a revised list of all stacked silicon die memory packages having two or more
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`vertically stacked die that have been sold in the United States in the period between 2007 to
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`present. . . . This document includes certain information regarding the identified packages,
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`including . . . the minimum thickness of at least one stacked die in each product . . . .” Id.
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`26.
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`On September 20, 2019, Samsung’s counsel also sent me an email stating that “as
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`agreed, we separately produced an updated complete list of stacked memory products and a
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`supplemental interrogatory response today.” Ex. 14 at 1.
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`27.
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`Elm’s analysis of SAMSUNG-ELM-000062355 (the document identified in
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`Samsung’s September 20 supplemental interrogatory response) indicates that this document lists
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`a total of 274 products with a minimum die thickness of 50 microns or less.
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`28.
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`On October 4, 2019, Samsung’s counsel sent a letter stating that “after further
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`6
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`Case 1:14-cv-01430-LPS Document 289 Filed 05/26/20 Page 7 of 13 PageID #: 19587
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`investigation, Samsung has determined that the following products are not stacked.” Ex. 15.
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`Samsung’s letter proceeded to identify 19 products included in SAMSUNG-ELM-000062355.
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`Id.
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`29.
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`On December 15, 2019, I emailed Samsung’s counsel regarding Elm’s requests
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`for sales data relevant to the parties’ representative products agreement. Ex. 16.
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`30.
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`On January 21, 2020, I emailed Samsung’s counsel regarding Elm’s requests for
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`sales data, and noted that “[f]rom the start of our discussions on these issues, we have made it
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`clear that one of the primary reasons we sought Samsung’s sales data was to aid in the process of
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`reaching a representative products agreement.” Ex. 17 at 1.
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`31.
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`On February 5, 2020, I sent Samsung a letter noting “many deficiencies in
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`Samsung’s document productions and interrogatory responses.” Ex. 18.
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`32.
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`On February 13, 2020, Samsung produced a number of documents and sent me an
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`email stating as follows:
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`You have now received Samsung’s productions of:
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`1. worldwide sales for the memory products (SAMSUNG-ELM-
`000062369);
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`2. worldwide sales for the image sensor products (SAMSUNG-ELM-
`00062370);
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`3. transfer prices (SAMSUNG-ELM-0000628);
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`4. sales data for downstream products containing third-party components
`(SAMSUNG-ELM-000062371);
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`5. correlations of downstream products to third-party memory/image
`sensor components (SAMSUNG-ELM-000062372); and
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`6. correlations of downstream products to Samsung memory/image sensor
`products (SAMSUNG-ELM-000062373).
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`Ex. 19.
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`33.
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`Samsung’s February 13 production included a chart identifying the stacked
`7
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`Case 1:14-cv-01430-LPS Document 289 Filed 05/26/20 Page 8 of 13 PageID #: 19588
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`memory products that are included in the consumer electronics Samsung ships to the United
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`States. See SAMSUNG-ELM-000062373. This document identified 40 relevant memory
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`components. Id. Based on Elm’s analysis of this document, 34 of the 40 relevant memory
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`components had never previously been disclosed to Elm as relevant products in this case.2 Based
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`on Elm’s analysis of this document, and Samsung’s related sales data, Samsung has been
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`shipping products that incorporate relevant stacked memory components into the United States
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`since at least 2011. See, e.g., SAMSUNG-ELM-000062373 (identifying stacked memory
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`products MMB3R32GUACA-2GETN and MMBTR32GUBCA-2ABTN as products associated
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`with SEC Code 1109-001456, which in turn is associated with Samsung consumer electronic
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`product code SCH-I510RAAVZW) and SAMSUNG-ELM-000062360 (showing US sales
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`revenue in 2011 of product SCH-I510RAAVZW).
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`34.
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`On February 13, 2020, in its response to Elm’s motion to compel worldwide sales
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`data, Samsung represented to the Court that it had produced, among other things, “all worldwide
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`sales for accused memory and image sensor components” and “US Sales for . . . accused
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`memory components…” D.I. 254 at 1-3 (emphasis in original).
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`35.
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`On February 19, 2020, Samsung sent me a letter responding to my February 5
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`letter. Among other things, Samsung noted that it “proposes continuing to stage much of the
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`requested discovery until after the parties agree on a list of Representative Products.” Ex. 20 at 1.
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`Samsung also stated that it would produce certain categories of documents “in the upcoming
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`weeks.” Id. at 2-3.
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`2 Those 34 products had first been listed in a document produced the previous week that
`provided transfer prices for components that Samsung “sells” to its own affiliates. See
`SAMSUNG-ELM-000062368. But that document includes numerous components that, to Elm’s
`knowledge, Samsung has not otherwise identified as relevant to this case. So their inclusion in
`this one document did not alert Elm to their potential significance.
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`8
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`Case 1:14-cv-01430-LPS Document 289 Filed 05/26/20 Page 9 of 13 PageID #: 19589
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`36.
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`On February 20, 2020, Samsung sent me an email stating, among other things:
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`“We are still analyzing your recent questions about Samsung’s latest financial productions.” Ex.
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`21 at 1. Samsung further stated that “Samsung produced fully responsive data, and if we find real
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`errors, we will update Samsung’s spreadsheets with the errors corrected.” Id.
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`37.
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`On March 2, 2020, I participated in a telephonic meet and confer with Samsung.
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`On March 4, 2020, I emailed Samsung asking it to “confirm that the below accurately
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`summarizes our discussion.” My emailed summary included, among other things, the following:
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`Representative Products: Samsung rejected Elm’s proposal that Samsung’s
`products be grouped by process node, and representative products chosen
`based on the highest-volume sellers within each such group for which
`Samsung has a sufficient number of physical samples.
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`Instead, Samsung proposed as follows:
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` Samsung’s products be grouped by the following criteria:
`o Process Node
`o Interconnect type (TSV or wirebond)
`o Packaging type
`o Number of chips in the stack
` Samsung is not opposed to choosing representative products within the
`groups described above based on the highest-volume sellers within
`each such group for which Samsung has a sufficient number of physical
`samples.
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`Ex. 22 at 1-2.
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`38.
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`On March 6, 2020, Samsung responded to my March 4 email and provided in-line
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`responses in red font to my summary of the March 2, 2020 meet and confer. See id. at 1-5.
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`39.
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` On March 13, 2020, I participated in a telephonic meet and confer with Samsung.
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`During that meet and confer, the parties discussed, among other things, the representative
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`products issue. The following day, I emailed Samsung and stated that “[b]elow is my summary
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`9
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`Case 1:14-cv-01430-LPS Document 289 Filed 05/26/20 Page 10 of 13 PageID #: 19590
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`of the items we discussed.” See Ex. 23.
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`40.
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`On March 18, 2020, Samsung served its Objections and Responses to Plaintiff
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`Elm’s Fourth Set of Requests for Production. Ex. 24. In its response to more than 40 of the RFPs,
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`Samsung indicated that it would complete its production “once the parties agree on a set of
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`representative products.” Samsung included this statement in its response to RFP Nos. 87
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`(process node), 91 (number of die), and 80 (packaging).
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`41.
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`On March 26, 2020, I participated in a telephonic meet and confer with Samsung.
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`That same day, I emailed Samsung my summary of that discussion. See Ex. 25 at 3-8.
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`42.
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`On March 30, 2020, Samsung responded to Elm’s March 26, 2020 email with in-
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`line comments in red ink. Among other things, Samsung responded to the following statement
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`from Elm’s summary of the parties’ March 26 meet and confer:
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`The parties discussed the issue Elm had previously identified with regards to
`SAMSUNG-ELM-000062370. As a reminder, Elm had previously noted that
`Samsung has stated that SAMSUNG-ELM-000062366 lists SEC’s worldwide
`sales of image sensor products incorporating an SAS wafer, and SAMSUNG-
`ELM-000062370 lists SEC’s worldwide sales of image sensor products. Elm
`noted that, if those identifications are correct, 62366 should be a subset of
`62370. But 62366 shows more sales than 62370.
`
`On today’s call, Samsung explained that it turns out that SAMSUNG-ELM-
`000062370 is incomplete. Samsung stated that it would supplement its
`production to include the data missing from SAMSUNG-ELM-000062370
`within the next two weeks.
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`Samsung responded with the following in-line comment:
`
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`[PH] As mentioned on our meet and confer, Samsung believes that the data
`used to prepare the 62370 spreadsheet was incomplete and therefore is working
`to understand why that was the case. Samsung believes it will be able to
`produce any missing information in the coming weeks.
`
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`Id. at 6. To date, I am not aware of Samsung supplementing this data. Samsung also stated that it
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`would supplement certain requested discovery “in the coming weeks.” See id. at 5-7. Samsung
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`10
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`confirmed that its commitment to make productions “in the coming weeks” meant “no later than
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`the end of April.” Id. at 2.
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`43.
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`On April 3, 2020, I sent Samsung an email stating as follows: “In your February
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`19 letter, Samsung made numerous commitments to produce documents and to supplement other
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`discovery ‘in the upcoming weeks.’ More than 6 weeks have passed, and Samsung has not come
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`through on its commitments . . . .” Ex. 26 at 1.
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`44.
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`On April 30, 2020, I emailed Samsung for an update on the items addressed
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`during the March 26 meet and confer. I noted that Samsung had “agreed to address” most of
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`those items “by the end of April.” Ex. 25 at 2.
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`45.
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`That same day, Samsung responded and identified certain items it had produced.
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`Samsung also stated that it “expects to produce additional technical documents by May 15.”
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`Samsung also identified other items regarding which it stated that it “anticipate[s] that we will
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`finish productions in the coming weeks.” Id. at 1.
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`46.
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`On May 7, 2020, I sent Samsung an email stating Elm “is deeply disappointed by
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`the slow progress towards finalizing a representative products agreement.” Ex. 27 at 3. On May
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`8, 2020, Samsung responded and stated that “We want to continue working with Elm to reach a
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`representative products agreement, as we believe such an agreement would benefit the parties
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`and lessen the burden on the Court.” Id. at 1.
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`47.
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`Elm’s analysis of the documents produced in this case indicates that Samsung has
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`made more than
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` in U.S. sales of consumer electronic products that incorporate a
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`relevant stacked memory product. See SAMSUNG-ELM-000206025 and SAMSUNG-ELM-
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`000206024.
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`48.
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`On May 11, 2020, Samsung’s counsel emailed me stating as follows: “[d]uring
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`11
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`Case 1:14-cv-01430-LPS Document 289 Filed 05/26/20 Page 12 of 13 PageID #: 19592
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`the process of collecting data for this case, Samsung just discovered that there are additional
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`stacked memory products with a minimum die thickness of 50 microns or less that have been
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`inadvertently overlooked.” Ex. 28 at 3.
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`49.
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`On May 13, 2020, Samsung’s counsel emailed me stating as follows: “[w]e are
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`still receiving information about the new products. From what we can tell so far, there are a few
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`hundred new products, all made by Samsung.” Id. at 1.
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`50.
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`On May 18, 2020, Samsung sent an email in which it stated that it “agrees with
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`Elm’s proposal for grouping accused memory products” with certain modifications. Ex. 29 at 1.
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`Samsung’s email did not mention how the parties would address accused image sensor products.
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`51.
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`Attached as Exhibit 30 is a chart that Elm has put together to compile information
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`relevant to the parties’ representative products agreement. Elm has endeavored to accurately
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`compile the information of which it is currently aware based on its review of Samsung’s
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`documents and discovery responses to date but cannot attest to the accuracy of this data. The
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`chart includes the following columns:
`
`A.
`
`B.
`
`C.
`
`D.
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`Product: This column identifies the part numbers of the relevant products. This
`column does not include the part numbers of the hundreds of additional products
`Samsung first disclosed last week.3
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`Min. Thickness: This column identifies the minimum thickness of the die in the
`product.
`
`Product Type: This column identifies the product type (e.g., NAND, DRAM,
`etc.).
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`Process Node: This column identifies the process node on which the die in the
`product are made. Where more than one process node is used to make the die,
`each relevant process node should be listed. In that case, the process node(s) on
`
`
`3 Samsung has produced a spreadsheet identifying non-US sales revenue from parts that
`incorporate a die made from wafer made in the United States. See SAMSUNG-ELM-000062374.
`Because those sales are not identified by product number, they are not included in this chart.
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`
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`12
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`Case 1:14-cv-01430-LPS Document 289 Filed 05/26/20 Page 13 of 13 PageID #: 19593
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`E.
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`F.
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`G.
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`H.
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`I.
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`J.
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`K.
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`L.
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`which the die with a thickness of 50 microns or less are made should be bolded.
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`Stack chips: This column identifies the number of die or “chips” that are stacked
`in the product.
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`TSV/wire: This column identifies whether the die are connected via wires or
`TSVs (through-silicon vias).
`
`In Inventory: This column identifies whether Samsung has samples of the product
`available to provide to Elm.
`
`In Downstream Product Inventory: This column identifies whether Samsung has
`available samples of downstream products (e.g., consumer electronic products)
`that incorporate the relevant component. Elm does not currently know Samsung
`downstream product inventory, so this column is currently blank.
`
`Package Type: This column identifies the package type of the product. Samsung
`has proposed including this criteria in the grouping of relevant products, but has
`not explained exactly what this category is meant to capture. So this column is
`currently blank.
`
`U.S. Component Sales: This column identifies Samsung revenue from US sales of
`the relevant components. This column also includes sales to US-based customers
`that Samsung has indicated have occurred outside the US.
`
`Non-US Component Sales: This column identifies sales revenue that Samsung has
`indicated occurs outside the US.
`
`US Downstream Product Sales: This column identifies Samsung’s revenue from
`US sales of downstream products (e.g., consumer electronic products) that
`incorporate the relevant component.
`
`I declare under penalty of perjury under the laws of the State of Delaware that the
`
`foregoing is true and correct. This declaration was made this 19th day of May, 2020 in Denver,
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`Colorado.
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`
`
`/s/ Nosson D. Knobloch
`Nosson D. Knobloch
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`13
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`