Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 1 of 13 PageID #: 26685
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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.
`SAMSUNG ELECTRONICS CO., LTD.., et al.,
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`Defendants.
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`C.A. No. 14-cv-1430-LPS
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`JURY TRIAL DEMANDED
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`FILED UNDER SEAL
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`AMENDED REPRESENTATIVE PRODUCTS AGREEMENT
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`Plaintiff Elm 3DS Innovations, LLC (“Elm”) and Defendants Samsung Electronics Co. Ltd.,
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`Samsung Semiconductor, Inc., Samsung Electronics America, Inc., Samsung Telecommunications
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`America, LLC, and Samsung Austin Semiconductor, LLC (collectively “Samsung”), hereby enter
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`into this Representative Products Agreement.
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`On October 26, 2020, Samsung provided Elm an Excel file, attached hereto as Exhibit A.
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`Samsung represents that the data in Exhibit A is accurate to the best of its knowledge after a
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`reasonable investigation and lists every stacked semiconductor product with a minimum die
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`thickness of 50 microns or below, along with summary technical and sales data for each listed
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`product, to the extent found after a reasonable investigation.1 2 Samsung acknowledges that the
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`parties are relying on this data to enter this agreement.
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`A. Memory Products
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`The “Memory” tab to Exhibit A lists
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`accused memory products. The parties have
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`agreed to organize those products into groups (the “Memory Product Groups”) that share the
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`following characteristics, which are included in Exhibit A: “Min. Die Thickness”; “Process Node”;
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`1 The parties are working together in good faith to reach a separate agreement regarding stacked
`semiconductor products that may be added to the case as a result of the Magistrate Judge’s
`December 4, 2020 ruling.
`2 As used herein, a “die” includes the silicon substrate, the active layer, and the polyimide layer.
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`Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 2 of 13 PageID #: 26686
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`and “TSV/Wire” (the “Relevant Criteria”). Any product that is missing one or more Relevant
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`Criteria shall be considered individually as a separate Memory Product Group. To the extent the
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`missing Relevant Criteria becomes known during discovery, the parties will work quickly to add the
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`product to the Memory Product Group that shares the same Relevant Criteria, if one exists. The
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`current Memory Product Groups are identified in Exhibit B, and include a total of Memory
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`Product Groups.
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`For each Memory Product Group, the parties agree that one product will be considered
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`representative for purposes of the infringement issues in this case (the “Representative Memory
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`Product”). A Representative Memory Product may be identified by “Memory Product Part
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`Number” or “Corresponding Chip Part Number for Modules.” Proof that a Representative Memory
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`Product infringes an asserted claim in this case will constitute proof that all the products in the same
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`Memory Product Group also infringe that claim. Conversely, proof that a Representative Memory
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`Product does not infringe an asserted claim in this case will constitute proof that all the products in
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`the same Memory Product Group also do not infringe that claim. In addition, Samsung’s production
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`of all relevant, nonprivileged documents responsive to Elm’s requests for production in its
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`possession, custody, or control (and subject to Samsung’s written objections), including all core
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`technical documents, that relate to a Representative Memory Product will discharge its obligation to
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`provide such documents for the other products included within that Memory Product Group.
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`The parties agree that, where possible, the Representative Memory Product for each
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`Memory Product Group will be the product in that Memory Product Group for which Samsung has
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`supplied samples. If samples are not available for any of the products in a Memory Product Group,
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`or if Samsung has supplied samples for more than one product in a given Memory Product Group,
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`then the Representative Memory Product will be selected based on the following criteria:
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`2
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`Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 3 of 13 PageID #: 26687
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`First, of those products for which Samsung has supplied samples, the product with the
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`greatest number of stacked chips will be the Representative Memory Product. If Samsung has
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`supplied samples of multiple products in a Memory Product Group, and no single product has the
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`greatest number of stacked chips, then the product for which Samsung has supplied samples with
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`the highest “U.S. Component Sales” will be considered the Representative Memory Product. If the
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`products for which Samsung has supplied samples do not have any “U.S. Component Sales,” the
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`product for which Samsung has supplied samples that has the highest “U.S. Downstream Product
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`Sales” will be considered the Representative Memory Product. Finally, if the products for which
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`Samsung has provided samples do not have any “U.S. Component Sales” or any “U.S. Downstream
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`Product Sales,” the product with the highest “Non-U.S. Component Sales” will be considered the
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`Representative Memory Product. Notwithstanding the above, to the extent that samples of any
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`particular Representative Memory Product cannot be produced within a reasonable amount of time,
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`have quality control issues, cannot be purchased without a large minimum order, or have other
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`constraints on availability, the parties will negotiate in good faith to determine if a different
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`Representative Memory Product can or should be selected.
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`The parties note that this agreement depends on Samsung accurately disclosing the products
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`for which it can provide samples (including accurate disclosure of the minimum order requirements
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`and other constraints on availability). In the event that Elm later discovers that Samsung inaccurately
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`stated that it could not provide samples for a given product (or that the product was only available
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`with a very significant minimum order, following an unusually long and unexpected waiting period,
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`or subject to other significant constraints), then the following procedures shall govern:
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`1. Elm will have the unilateral right to decide whether to select the product for which
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`samples were newly-discovered (the “Newly Discovered Product”) as the Representative
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`Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 4 of 13 PageID #: 26688
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`Memory Product for the Memory Product Group of which it is a part, provided that
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`there is a reasonable basis for doing so.
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`2. Regardless of Elm’s decision, Elm reserves the right to, upon identifying a Newly
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`Discovered Product, seek fees and costs reasonably incurred by Elm while analyzing a
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`product other than the Newly Discovered Product. Samsung, in turn, reserves its right to
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`oppose any such request.
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`To the extent Samsung does not have samples available for any product in a Memory
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`Product Group, the parties agree that the Representative Memory Product for that group will be a
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`product with corresponding “U.S. Downstream Product Sales” for which Elm is reasonably able to
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`locate samples in the open market. Upon obtaining samples of a particular downstream product that
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`it believes includes a product in that Memory Product Group that is an appropriate candidate for the
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`Representative Memory Product for that Memory Product Group, Elm will promptly inform
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`Samsung. Samsung will have two weeks to raise any objections to the selection of that
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`Representative Memory Product. If no objection is raised, or after any objections are resolved, that
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`product will then be considered the Representative Memory Product.
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`To the extent that Samsung does not have samples available for any product in a Memory
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`Product Group and Elm is unable to reasonably and efficiently obtain samples in the open market
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`within one month of finalizing this Agreement, then the Representative Memory Product for such
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`groups will be selected using the following criteria: the product with the highest “U.S. Component
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`Sales” will be considered the Representative Memory Product. If none of the products in the group
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`have any “U.S. Component Sales,” the product in the group with the highest “U.S. Downstream
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`Product Sales” will be considered the Representative Memory Product. If none of the products in
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`the group have any “U.S. Component Sales” or any “U.S. Downstream Product Sales,” the product
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`with the highest “Non-U.S. Component Sales” will be considered the Representative Memory
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`4
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`Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 5 of 13 PageID #: 26689
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`Product. Nothing in this Agreement will prevent Elm from asserting that any later-obtained samples
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`of a product in a group are representative of other products in the group, regardless of whether such
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`a later-obtained sample is of the selected Representative Memory Product. Nothing in this
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`Agreement will prevent Samsung from asserting that any later-obtained samples of a product in a
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`group are representative of other products in the group, regardless of whether such a later-obtained
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`sample is of the selected Representative Memory Product, provided that Samsung make an equal
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`number of samples of any such product available to Elm.
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`The current list of Representative Memory Products is provided in Column F of Exhibit B.
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`As can be seen in Column F of Exhibit B, a Representative Memory Product has not yet been
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`selected for
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`of the Memory Product Groups. In most cases, a Representative Memory Product
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`has not been identified in Column F of Exhibit B because Samsung does not have samples available
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`for any of the products in that group and/or does not sell downstream products that include any of
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`the products in that group that Elm is able to purchase. With respect to these Memory Product
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`Groups, Samsung agrees to provide all reasonably available information in its possession, custody,
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`or control that would aid Elm in locating samples of products in the Memory Product Groups for
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`which a Representative Memory Product has not been selected, including the following categories of
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`information requested in Common Interrogatory No. 6 for an agreed-upon list of products that the
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`parties will negotiate in good faith, to the extent found after a reasonable search:
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`1. An identification of every Downstream Product that includes the product;
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`2. An identification of the five customers who have purchased the greatest number of the
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`product from Samsung, including the date of their last purchase;
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`3. An identification of the five customers who have most recently purchased the product
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`from Samsung, including the date of their last purchase;
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`Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 6 of 13 PageID #: 26690
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`4. The identity of the five Downstream Purchasers who, to Samsung’s knowledge, have
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`purchased the greatest number of the product; and
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`5. The identity of the five Downstream Purchasers who, to Samsung’s knowledge, have
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`most recently purchased the product.
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`Elm agrees to work diligently to locate samples of such products and to update Column F of
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`Exhibit B with the identification of any additional Representative Memory Products.
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`To the extent not already produced, Samsung agrees to produce all relevant, nonprivileged
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`documents responsive to Elm’s requests for production relating to the Representative Memory
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`Products within Samsung’s possession, custody, or control (and subject to Samsung’s written
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`objections), including all core technical documents. The parties will negotiate in good faith a date by
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`which Samsung must produce these documents, which will be no later than the agreed-upon date
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`for producing such documents for any newly-accused stacked semiconductor products that have a
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`minimum die thickness greater than 50 microns. By that same date, Samsung will also produce all
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`such documents relating to any product that is missing one or more Relevant Criteria.
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`In order to facilitate the production of documents outlined above, Samsung will make an
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`initial production of documents for two agreed upon exemplar Representative Memory Products
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`(i.e., one exemplar NAND product and one exemplar DRAM product). Once the exemplar
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`Representative Memory Products are selected, Samsung will then, within 30 days of the selection,
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`use best efforts to produce all relevant, nonprivileged documents responsive to Elm’s requests for
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`production within Samsung’s possession, custody, or control (and subject to Samsung’s objections),
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`relating to the two exemplar Representative Memory Products. After Samsung makes its production,
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`the parties will meet and confer to discuss the adequacy of Samsung’s production and whether
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`additional documents or information need to be produced. Through this process, the parties will
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`attempt in good faith to reach agreement regarding the kinds and categories of documents and
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`6
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`Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 7 of 13 PageID #: 26691
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`information Samsung will produce with regard to the broader set of Representative Memory
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`Products.
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`B. Image Sensor Products
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`The “Image Sensor” tab to Exhibit A lists
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`accused image sensor products. The parties
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`have agreed to organize those products into groups (the “Image Sensor Product Groups”) that share
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`the following characteristics, which are included in Exhibit A: Number of Stacked Chips; Process
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`Node; Trench Isolation; Number of Metal Layers (Top Wafer); and Number of Metal Layers
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`(Bottom Wafer). The Image Sensor Product Groups are identified in Exhibit D, which includes a
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`total of
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`Image Sensor Product Groups.
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`For each Image Sensor Product Group, the parties agree that one product will be considered
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`representative for purposes of the infringement issues in this case (the “Representative Image Sensor
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`Product”). Representative Image Sensor Products may be identified by Image Sensor Product
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`Number. Proof that a Representative Image Sensor Product infringes an asserted claim in this case
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`will constitute proof that all the products in the same Image Sensor Product Group also infringe
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`that claim. Conversely, proof that a Representative Image Sensor Product does not infringe an
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`asserted claim in this case will constitute proof that all the products in the same Image Sensor
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`Product Group also do not infringe that claim. In addition, Samsung’s production of all relevant,
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`nonprivileged technical data responsive to Elm’s requests for production in its possession, custody,
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`or control (and subject to Samsung’s written objections), including all core technical documents, that
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`relate to a Representative Image Sensor Product will discharge its obligation to provide such
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`technical data for the other products included within that Image Sensor Product Group.
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`The parties agree that, where possible, the Representative Image Sensor Product for each
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`Image Sensor Product Group will be the product in that Image Sensor Product Group for which
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`Samsung has supplied samples. If samples are not available for any of the products in an Image
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`Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 8 of 13 PageID #: 26692
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`Sensor Product Group, or if Samsung has supplied samples for more than one product in a given
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`Image Sensor Product Group, then the Representative Image Sensor Product will be selected based
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`on the following criteria:
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`First, of those products for which Samsung has supplied samples, the product with the
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`highest “U.S. Downstream Product Sales” will be considered the Representative Image Sensor
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`Product. If the products for which Samsung has supplied samples do not have any “U.S.
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`Downstream Product Sales,” the product with the highest “Non-U.S. Component Sales” will be
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`considered the Representative Image Sensor Product. Notwithstanding the above, to the extent that
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`samples of any particular Representative Image Sensor Product cannot be produced within a
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`reasonable amount of time, have quality control issues, cannot be purchased without a large
`
`minimum order, or have other constraints on availability, the parties will negotiate in good faith to
`
`determine if a different Representative Image Sensor Product can or should be selected.
`
`The parties note that this agreement depends on Samsung accurately disclosing the products
`
`for which it can provide samples (including accurate disclosure of the minimum order requirements
`
`and other constraints on availability). In the event that Elm later discovers that Samsung inaccurately
`
`stated that it could not provide samples for a given product (or that the product was only available
`
`with a very significant minimum order, following an unusually long and unexpected waiting period,
`
`or subject to other significant constraints), then the following procedures shall govern:
`
`1. Elm will have the unilateral right to decide whether to select the product for which
`
`samples were newly-discovered (the “Newly Discovered Product”) as the Representative
`
`Image Sensor Product for the Image Sensor Product Group of which it is a part,
`
`provided that there is a reasonable basis for doing so.
`
`2. Regardless of Elm’s decision, Elm reserves the right to, upon identifying a Newly
`
`Discovered Product, seek fees and costs reasonably incurred by Elm while analyzing a
`
`
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`8
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`Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 9 of 13 PageID #: 26693
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`product other than the Newly Discovered Product. Samsung, in turn, reserves its right to
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`oppose any such request.
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`To the extent Samsung does not have samples available for any product in an Image Sensor
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`Product Group, the parties agree that the Representative Image Sensor Product for that group will
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`be a product with corresponding “U.S. Downstream Product Sales” for which Elm is reasonably
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`able to locate samples in the open market. Upon obtaining samples of a particular downstream
`
`product that it believes includes a product in that Image Sensor Product Group that is an
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`appropriate candidate for the Representative Image Sensor Product for that Image Sensor Product
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`Group, Elm will promptly inform Samsung. Samsung will have two weeks to raise any objections to
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`the selection of that Representative Image Sensor Product. If no objection is raised, or after any
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`objections are resolved, that product will then be considered the Representative Image Sensor
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`Product.
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`To the extent that Samsung does not have samples available for any product in an Image
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`Sensor Product Group and Elm is unable to reasonably and efficiently obtain samples in the open
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`market within one month of finalizing this Agreement, then the Representative Image Sensor
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`Product for such groups will be selected using the following criteria: the product in the group with
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`the highest “U.S. Downstream Product Sales” will be considered the Representative Image Sensor
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`Product. If none of the products in the group have any “U.S. Downstream Product Sales,” the
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`product with the highest “Non-U.S. Component Sales” will be considered the Representative Image
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`Sensor Product. Nothing in this Agreement will prevent Elm from asserting that any later-obtained
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`samples of a product in a group are representative of other products in the group, regardless of
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`whether such a later-obtained sample is of the selected Representative Image Sensor Product.
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`Nothing in this Agreement will prevent Samsung from asserting that any later-obtained samples of a
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`product in a group are representative of other products in the group, regardless of whether such a
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`9
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`Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 10 of 13 PageID #: 26694
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`later-obtained sample is of the selected Representative Image Sensor Product, provided that
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`Samsung make an equal number of samples of any such product available to Elm.
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`The current list of Representative Image Sensor Products is provided in Column I of Exhibit
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`D. As can be seen in Column I of Exhibit D, a Representative Image Sensor Product has not yet
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`been selected for
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`of the Image Sensor Product Groups. In most cases, a Representative Image
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`Sensor Product has not been identified in Column I of Exhibit D because Samsung does not have
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`samples available for any of the products in that group and/or does not sell downstream products
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`that include any of the products in that group that Elm is able to purchase. With respect to these
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`Image Sensor Product Groups, Samsung agrees to provide all reasonably available information in its
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`possession, custody, or control that would aid Elm in locating samples of products in the Image
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`Sensor Product Groups for which a Representative Image Sensor Product has not been selected,
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`including the following categories of information requested in Common Interrogatory No. 6 for an
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`agreed-upon list of products that the parties will negotiate in good faith, to the extent found after a
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`reasonable search:
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`1. An identification of every Downstream Product that includes the product;
`
`2. An identification of the five customers who have purchased the greatest number of the
`
`product from Samsung, including the date of their last purchase;
`
`3. An identification of the five customers who have most recently purchased the product
`
`from Samsung, including the date of their last purchase;
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`4. The identity of the five Downstream Purchasers who, to Samsung’s knowledge, have
`
`purchased the greatest number of the product; and
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`5. The identity of the five Downstream Purchasers who, to Samsung’s knowledge, have
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`most recently purchased the product.
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`10
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`Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 11 of 13 PageID #: 26695
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`Elm agrees to work diligently to locate samples of such products and to update Column I of
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`Exhibit D with the identification of any additional Representative Image Sensor Products.
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`To the extent not already produced, Samsung agrees to produce all relevant, nonprivileged
`
`documents responsive to Elm’s requests for production relating to the Representative Image Sensor
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`Products within Samsung’s possession, custody, or control (and subject to Samsung’s written
`
`objections), including all core technical documents. The parties will negotiate in good faith a date by
`
`which Samsung must produce these documents, which will be no later than the agreed-upon date
`
`for producing such documents for any newly-accused stacked semiconductor products that have a
`
`minimum die thickness greater than 50 microns. By that same date, Samsung will also produce all
`
`such documents relating to any product that is missing one or more Relevant Criteria.
`
`In order to facilitate the production of documents outlined above, Samsung will make an
`
`initial production of documents for one exemplar Representative Image Sensor Product. Once the
`
`exemplar Representative Image Sensor Product is selected, Samsung will then, within 30 days of the
`
`selection, use best efforts to produce all relevant, nonprivileged documents responsive to Elm’s
`
`requests for production within Samsung’s possession, custody, or control (and subject to Samsung’s
`
`objections), relating to the exemplar Representative Image Sensor Product. After Samsung makes its
`
`production, the parties will meet and confer to discuss the adequacy of Samsung’s production and
`
`whether additional documents or information need to be produced. Through this process, the
`
`parties will attempt in good faith to reach agreement regarding the kinds and categories of
`
`documents and information Samsung will produce with regard to the broader set of Representative
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`Image Sensor Products.
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`C. Sales Thresholds
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`The parties currently agree to exclude from this agreement any product group for which
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`Exhibit A shows less than
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`in U.S. component sales, less than
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`in total Non-
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`11
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`Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 12 of 13 PageID #: 26696
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`U.S. Component Sales, and less than
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`in U.S. Downstream Product sales, except for the
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`following products:
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`The excluded groups are listed in Exhibit C (memory products) and Exhibit E (image
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`sensors) and are not subject to discovery.
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`If any of the excluded groups are included in Elm’s expert report, Samsung may in its
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`responsive expert report submit additional evidence relating to those groups, which was not
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`produced during fact discovery.
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`To the extent that Samsung later produces sales data indicating that a product group
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`eliminated for the above reasons in fact had more sales during the relevant damages period than
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`indicated in Exhibit A (the “previously eliminated product group in question”), the parties agree to
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`the following procedures:
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`1. Elm may unilaterally select an existing product group in which to include the previously
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`eliminated product group in question so long as the existing product group selected is
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`among the product groups that share the most number of Relevant Criteria with the
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`previously eliminated product group in question.
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`2. The representative product for the product group that Elm selects will then also be
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`treated as representative for the products in the previously eliminated product group in
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`question that have been included in the existing product group.
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`The parties agree to continue negotiating in good faith to eliminate additional product
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`groups based on agreed-upon sales thresholds or other considerations after the parties have finalized
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`the list of additional stacked memory products added to the case as a result of the Magistrate Judge’s
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`December 4, 2020, ruling, with the aim of arriving at a reasonable number of product groups.
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`Case 1:14-cv-01430-LPS Document 444 Filed 11/22/21 Page 13 of 13 PageID #: 26697
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`D. Miscellaneous Provisions
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`This agreement will not be used to prejudice either party’s ability to present their case. For
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`example, neither party will assert that the omission of evidence that Samsung has withheld because
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`of this agreement has led to a failure of proof on any issue.
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`
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`November 15, 2021
`
`/s/ Adam W. Poff
`
`Adam W. Poff (#3990)
`Pilar G. Kraman (#5199)
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`Tel: (302) 571-6600
`apoff@ycst.com
`pkraman@ycst.com
`
`Allan M. Soobert
`Naveen Modi
`Phillip Citroën
`PAUL HASTINGS LLP
`2050 M Street, N.W.
`Washington, D.C. 20036
`Tel: (202) 551-1700
`ServicePHSamsung-
`ELM3DS@paulhastings.com
`
`Attorneys for Defendants Samsung
`Electronics Co., Ltd., Samsung
`Semiconductor, Inc., Samsung Electronics
`America, Inc., and Samsung Austin
`Semiconductor, LLC
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`Respectfully submitted,
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`/s/Michael J. Farnan
`
`Brian E. Farnan (#4089)
`bfarnan@farnanlaw.com
`Michael J. Farnan (#5165)
`mfarnan@farnanlaw.com
`FARNAN LLP
`919 North Market Street
`12th Floor
`Wilmington, DE 19801
`Tel: (302) 777-0300
`Fax: (302) 777-0301
`
`Matthew R. Ford (pro hac vice)
`matthew.ford@bartlitbeck.com
`BARTLIT BECK LLP
`54 W. Hubbard Street, Suite 300
`Chicago, IL 60654
`Tel: (312) 494-4400
`Fax: (312) 494-4440
`
`John M. Hughes (pro hac vice)
`john.hughes@bartlitbeck.com
`Nosson D. Knobloch (pro hac vice)
`nosson.knobloch@bartlitbeck.com
`Katherine L.I. Hacker (pro hac vice)
`kat.hacker@bartlitbeck.com
`BARTLIT BECK LLP
`1801 Wewatta Street, Suite 1200
`Denver, CO 80202
`Tel: (303) 592-3100
`Fax: (303) 592-3140
`
`Adam K Mortara (pro hac vice)
`adam@mortaralaw.com
`125 South Wacker Dr., Suite 300
`Chicago, IL 60606
`Tel: (773) 750-7154
`
`Attorneys for Plaintiff Elm 3DS Innovations,
`LLC
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`13
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