UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE INC.,
`Petitioner,
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`v.
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`REALTIME DATA LLC,
`Patent Owner.
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`
`
`Case IPR2016-01737
`Patent 8,880,862
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`PETITIONER’S OPPOSITION TO PATENT OWNER’S
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`MOTION TO EXCLUDE
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`

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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`
`
`TABLE OF CONTENTS
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`Introduction .................................................................................................... 1 
`
`Exhibit 1038 Should Not be Excluded as Hearsay ........................................ 2 
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`Exhibit 1038 is Relevant ................................................................................ 5 
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`Exhibit 1040 is Withdrawn ............................................................................ 7 
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`Exhibits 1048 and 1049 Are Authentic .......................................................... 7 
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`Exhibits 1048 and 1049 Should Not be Excluded as Hearsay ....................... 8 
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`I. 
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`II. 
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`III. 
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`IV. 
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`V. 
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`VI. 
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`VII.  Exhibits 1048 and 1049 are Relevant ........................................................... 11 
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`VIII.  Conclusion .................................................................................................... 14 
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` 
`
`i
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`
`I.
`
`Introduction
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`Patent Owner, Realtime Data, LLC (“Realtime”), filed a motion to exclude
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`Exhibits 1038, 1040, 1048, and 1049 on December 22, 2017. As discussed below,
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`Petitioner hereby withdraws Exhibit 1040.
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`As to Exhibits 1038, 1048, and 1049, Realtime fails to adequately explain
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`why these exhibits are inadmissible, merely asserting inadmissibility and
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`improperly shifting the burden to Petitioner to explain why Exhibits 1038, 1048,
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`and 1049 are admissible. Realtime, as the moving party, bears the burden to show
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`entitlement to the relief requested by the motion to exclude. 37 C.F.R. § 42.20.
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`Realtime has not done so.
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`Indeed, relevant evidence is generally admissible. See FRE 402. “Evidence
`
`is relevant if: (a) it has any tendency to make a fact more or less probable than it
`
`would be without the evidence; and (b) the fact is of consequence in determining
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`the action. FRE 401. “The Rule’s basic standard of relevance thus is a liberal
`
`one.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993). Moreover,
`
`where necessary, administrative agencies further relax the rules of evidence to
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`account for the skill possessed by administrative judges to handle evidence that
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`may otherwise mislead a jury. See Peabody Coal Co. v. McCandless, 255 F.3d
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`465, 469 (7th Cir. 2001). With this in mind, the PTAB favors inclusion. See, e.g.,
`
`Liberty Mutual Ins. v. Progressive Casualty Ins., CBM2012-00002, Paper 66, pp.
`
`1
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`60-61 (PTAB Jan. 23, 2014) (“It is better to have a complete record of the evidence
`
`submitted by the parties than to exclude particular pieces.”). As discussed in more
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`detail below, Exhibits 1038, 1048, and 1049 are relevant to this proceeding and
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`admissible.
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`In accordance with 37 C.F.R. §42.64, Petitioner’s opposition addresses “the
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`objections in the record in order,” starting with the objections to Exhibit 1038. For
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`the reasons discussed below, Patent Owner’s Motion to Exclude Exhibits 1038,
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`1048, and 1049 should be denied.
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`II. Exhibit 1038 Should Not be Excluded as Hearsay
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`Exhibit 1038 is issued U.S. Patent No. 6,633,968 to Zwiegincew et al.
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`Realtime contends that Exhibit 1038 “constitutes impermissible hearsay without an
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`applicable exception.” Motion to Exclude, p. 1. Realtime is incorrect.
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`As an initial matter, the substance of Exhibit 1038 is not hearsay. Indeed,
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`the substance of the Zwiegincew patent is being “offered as evidence of what it
`
`describes to an ordinary artisan, not for proving the truth of the matters addressed
`
`in the document.” Biomarin Pharm. Inc., v. Genzyme Therapeutic Products Ltd.
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`P’ship, IPR2013-00537, Paper No. 79, p. 25 (P.T.A.B. Feb. 23, 2015); see also
`
`EMC Corp. v. Personal Web Technologies, LLC, IPR2013-00085, Paper 73, p. 66
`
`(PTAB May 15, 2014).
`
`2
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`Moreover, Exhibit 1038 was relied upon by Dr. Neuhauser in formulating
`
`his opinion that Zwiegincew’s scenario files are operational and useful during
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`operating system boot. See, e.g., Ex. 1003, ¶¶ 63-64, 68, 148-149, 184-186, 202-
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`204; Ex. 1030, ¶¶ 20, 36-39, 56; Ex. 1043, ¶ 78. For at least this reason, Exhibit
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`1038 should not be excluded because, under FRE 703, it is proper for Dr.
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`Neuhauser to rely on facts and/or data, even if otherwise inadmissible, to the extent
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`that (as here) experts in the field would reasonably rely on those kinds of facts or
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`data in forming an opinion on the subject. FRE 703 goes on to state that the
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`proponent of the opinion may disclose otherwise inadmissible facts or data to the
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`jury if their “probative value in helping the jury evaluate the opinion substantially
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`outweighs their prejudicial effect.” In this case, Realtime makes no argument that
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`Exhibit 1038 is untrustworthy or inaccurate, and your Honors are certainly well-
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`qualified to evaluate the competing opinions on Zwiegincew in view of Exhibit
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`1038 without being prejudiced. Indeed, “because the Board is not a lay jury, and
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`has significant experience in evaluating expert testimony, the danger of prejudice
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`in this proceeding is considerably lower than in a conventional district court trial.”
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`SK Innovation Co., Ltd. v. Celgard, LLC, IPR2014-00679, Paper No. 58, p. 50
`
`(PTAB Sept. 25, 2015). Thus, Exhibit 1038 is proper and should not be excluded.
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`Id., pp. 50-51.
`
`3
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`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`Further, even assuming Exhibit 1038 is hearsay (it is not), several exceptions
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`apply. For example, Exhibit 1038 is a patent issued by the United States Patent
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`and Trademark Office. With this status, Exhibit 1038 qualifies as a public record
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`under FRE 803(8) and a document that affects an interest in property under FRE
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`803(14)-(15).
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`Finally, even assuming Exhibit 1038 is hearsay (it is not) and not covered by
`
`an enumerated exception (it is), Exhibit 1038 qualifies under the hearsay exception
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`set forth in FRE 807, known as the “Residual Exception.” FRE 807 establishes
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`that “a hearsay statement is not excluded by the rule against hearsay even if the
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`statement is not specifically covered by a hearsay exception in Rule 803 or 804.”
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`FRE 807. The residual exception applies if “(1) the statement has equivalent
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`circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a
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`material fact; (3) it is more probative on the point for which it is offered than any
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`other evidence that the proponent can obtain through reasonable efforts; and (4)
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`admitting it will best serve the purposes of these rules and the interests of justice.”
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`See SAP America, Inc. v. Lakshmi Arunachalam, IPR2013-00194, Paper No. 67, p.
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`36 (PTAB Sept. 18, 2014) (relying on FRE 807 to admit evidence). As discussed
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`above, Exhibit 1038 is a U.S. Patent that is subject to extensive guarantees of
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`trustworthiness. Additionally, Exhibit 1038 is being offered as evidence of how a
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`POSITA would have interpreted Zwiegincew’s scenario files. Further,
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`4
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`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`Zwiegincew’s own writing on scenario file technology is the most probative
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`evidence of whether scenario files are operational and useful during operating
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`system boot. Because Zwiegincew is not a party to these proceedings, alternative
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`sources of evidence are not immediately available and would require extensive
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`effort and cost to secure. For these reasons, admitting Exhibit 1038 will best serve
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`the purposes of these rules and the interests of justice because “[t]here is a strong
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`public policy for making all information filed in a non-jury, quasi-judicial
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`administrative proceeding available to the public, especially in an inter partes
`
`review which determines the patentability of claims in an issued patent. It is better
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`to have a complete record of the evidence submitted by the parties than to exclude
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`particular pieces.” Nichia Corp. v. Emcore Corp., IPR2012-00005, Paper No. 68,
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`p. 59 (PTAB Feb. 11, 2014).
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`For these reasons, Exhibit 1038 should not be excluded as hearsay.
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`III. Exhibit 1038 is Relevant
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`Realtime also argues that “Exhibit 1038 is…not relevant under FRE 402.”
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`Motion to Exclude, p. 3. Specifically, Realtime contends that “no evidence exists
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`that Exhibit 1038’s ‘scenario files’ and ‘boot’ refer to the same ‘scenario files’ and
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`‘boot’ on which Apple relies in Zwiegincew.” Id. Realtime’s position is
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`untenable.
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`5
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`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`As Realtime acknowledges, “Exhibit 1038 is a continuation-in-part of the
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`application that issued as Zwiegincew.” Id. Yet, Realtime would have you believe
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`that when Zwiegincew uses the terms “scenario files” and “boot” in Exhibit 1038,
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`he means something different than when he uses the very same terms in Exhibit
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`1010. This position is inconsistent with legal precedent, and is unsupported by
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`review of the two exhibits. See, e.g., Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d
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`1314, 1334 (Fed. Cir. 2003) (“unless otherwise compelled...the same claim term in
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`the same patent or related patents carries the same construed meaning.”) For
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`example, the background on hard page fault scenarios discussed by Zwiegincew is
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`identical for the two exhibits. Compare Exhibit 1038, 1:20-2:49 with Exhibit
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`1010, 1:10-2:39. And, Figs. 1-3 and the corresponding description is highly
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`similar and nearly identical. Compare Exhibit 1038, Figs. 1-3, 4:66-10:59 with
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`Exhibit 1010, Figs. 1-3, 4:31-10:13. Thus, Exhibits 1010 and 1038 are referring to
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`the same “scenario files” and “boot” and Zwiegincew’s discussion in Exhibit 1038
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`is relevant to how a POSITA would have viewed the disclosure in Exhibit 1010.
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`Just because Exhibit 1038 supports Dr. Neuhauser’s position, and contradicts Dr.
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`Back’s, does not make Exhibit 1038 irrelevant. To the contrary, Exhibit 1038 is
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`highly relevant to the credibility of the competing expert opinions as to whether
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`Zwiegincew’s scenario files are operational and useful during operating system
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`boot.
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`6
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`For these reasons, Exhibit 1038 should not be excluded as irrelevant. See
`
`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993) (“The Rule’s basic
`
`standard of relevance thus is a liberal one.”)
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`IV. Exhibit 1040 is Withdrawn
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`Realtime’s Motion to Exclude argues that Exhibit 1040 is not relevant to this
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`proceeding. Motion to Exclude, pp. 4-5. Although this exhibit provides evidence
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`generally relevant to the related IPR proceedings involving Realtime’s patents and
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`is relevant and admissible in at least one of the related IPR proceedings, this
`
`exhibit is not explicitly cited in the present proceeding. Accordingly, Petitioner
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`withdraws Exhibit 1040 from this proceeding, thereby rendering Patent Owner’s
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`Motion to Exclude this exhibit moot.
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`V. Exhibits 1048 and 1049 Are Authentic
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`Realtime argues that “Exhibits 1048 and 1049 are unauthenticated.” Motion
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`to Exclude, p. 6. Exhibit 1048 is a web page discussing cost of Flash Memory vs.
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`HDDs and Exhibit 1049 is a web publication discussing The Rise of the Flash
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`Memory Market. Attached as Appendix A, Petitioner provides supplemental
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`evidence showing an Internet Archive version of Exhibit 1048, an Internet Archive
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`7
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`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`version of Exhibit 1049, and a supporting authentication declaration.1 Internet
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`Archive versions of web pages are routinely accepted as evidence in PTAB
`
`proceedings. See, e.g., Johns Manville Corp. et al. v. Knauf Insulation, Inc.,
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`IPR2015-01453, Paper No. 49, pp. 12-15 (PTAB Jan. 11, 2017). Thus, the
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`attached supplemental evidence is sufficient to authenticate Exhibits 1048 and
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`1049.
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`VI. Exhibits 1048 and 1049 Should Not be Excluded as Hearsay
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`Realtime contends that Exhibits 1048 and 1049 “should also be excluded as
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`inadmissible hearsay.” Motion to Exclude, p. 8. Realtime is incorrect.
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`                                                            
`1 The attached supplemental evidence is timely because it is being served within
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`ten business days of Realtime’s first objection to Exhibits 1048 and 1049 on
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`December 20, 2017. See 37 CFR § 42.64. Indeed, given the compressed schedule
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`in this proceeding, the present opposition is being filed a week in advance of
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`Petitioner’s deadline of January 5, 2018 for providing supplemental evidence.
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`Accordingly, Petitioner has not had a full time period for submitting supplemental
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`evidence in response to the objections to Exhibits 1048 and 1049. The reduced
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`time period should be considered in assessing the amount of evidence needed for
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`Petitioner to authenticate Exhibits 1048 and 1049.
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`8
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`As an initial matter, the substance of Exhibits 1048 and 1049 is not hearsay.
`
`Indeed, the substance of Exhibits 1048 and 1049 is being “offered as evidence of
`
`what it describes to an ordinary artisan, not for proving the truth of the matters
`
`addressed in the document.” Biomarin Pharm. Inc., v. Genzyme Therapeutic
`
`Products Ltd. P’ship, IPR2013-00537, Paper No. 79, p. 25 (P.T.A.B. Feb. 23,
`
`2015); see also EMC Corp. v. Personal Web Technologies, LLC, IPR2013-00085,
`
`Paper 73, p. 66 (PTAB May 15, 2014). Specifically, Exhibits 1048 and 1049 show
`
`that a POSITA would have perceived a cost difference between flash memory and
`
`RAM in February 2000 and, as a consequence, would have been motivated by cost
`
`to use RAM over flash memory. This motivation exists based on perception and
`
`knowledge in the field, regardless of whether the underlying fact is true.
`
`Moreover, Exhibits 1048 and 1049 were relied upon by Dr. Neuhauser in
`
`formulating his opinion that cost would have motivated a POSITA to use RAM
`
`over flash memory. See, e.g., Ex. 1043, ¶¶ 11, 13, 25, 27-28, 31, 44, 50, 53. For at
`
`least this reason, Exhibits 1048 and 1049 should not be excluded because, under
`
`FRE 703, it is proper for Dr. Neuhauser to rely on facts and/or data, even if
`
`otherwise inadmissible, to the extent that (as here) experts in the field would
`
`reasonably rely on those kinds of facts or data in forming an opinion on the
`
`subject. FRE 703 goes on to state that the proponent of the opinion may disclose
`
`otherwise inadmissible facts or data to the jury if their “probative value in helping
`
`9
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`the jury evaluate the opinion substantially outweighs their prejudicial effect.” In
`
`this case, Realtime presents no evidence that Exhibits 1048 and 1049 are
`
`untrustworthy or inaccurate, and your Honors are certainly well-qualified to
`
`evaluate the competing opinions on prior art combinations in view of Exhibits
`
`1048 and 1049 without being prejudiced. Indeed, “because the Board is not a lay
`
`jury, and has significant experience in evaluating expert testimony, the danger of
`
`prejudice in this proceeding is considerably lower than in a conventional district
`
`court trial.” SK Innovation Co., Ltd. v. Celgard, LLC, IPR2014-00679, Paper No.
`
`58, p. 50 (PTAB Sept. 25, 2015). Thus, Exhibits 1048 and 1049 are proper and
`
`should not be excluded. Id., pp. 50-51.
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`Further, even assuming Exhibits 1048 and 1049 are hearsay (they are not),
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`exceptions apply. For example, Exhibits 1048 and 1049 provide financial data,
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`including charts and lists, related to memory prices. Thus, Exhibits 1048 and 1049
`
`qualify as market reports or commercial publications under FRE 803(17).
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`Finally, even assuming Exhibits 1048 and 1049 are hearsay (they are not)
`
`and not covered by an enumerated exception (they are), Exhibits 1048 and 1049
`
`qualify under the hearsay exception set forth in FRE 807 for similar reasons as
`
`Exhibit 1038. For example, with the supplemental evidence in Appendix A and no
`
`evidence from Realtime—e.g., evidence of tampering or alteration—to suggest that
`
`the documents are anything but what they facially purport to be, Exhibits 1048 and
`
`10
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`1049 have extensive guarantees of trustworthiness. Additionally, Exhibits 1048
`
`and 1049 are being offered as evidence of how a POSITA would have viewed the
`
`price of flash memory relative to RAM in the relevant time frame. Further, reports
`
`or studies on the relevant pricing is the most probative evidence of the relative cost
`
`of flash memory and RAM in the relevant time period. Because these reports were
`
`compiled with data from over 15 years ago, alternative sources of evidence are not
`
`immediately available and would require extensive effort and cost to secure. For
`
`these reasons, admitting Exhibits 1048 and 1049 will best serve the purposes of
`
`these rules and the interests of justice because “[t]here is a strong public policy for
`
`making all information filed in a non-jury, quasi-judicial administrative proceeding
`
`available to the public, especially in an inter partes review which determines the
`
`patentability of claims in an issued patent. It is better to have a complete record of
`
`the evidence submitted by the parties than to exclude particular pieces.” Nichia
`
`Corp. v. Emcore Corp., IPR2012-00005, Paper No. 68, p. 59 (PTAB Feb. 11,
`
`2014).
`
`For these reasons, Exhibits 1048 and 1049 should not be excluded as
`
`hearsay.
`
`VII. Exhibits 1048 and 1049 are Relevant
`
`Realtime also argues that “Exhibits 1048 and 1049 are irrelevant to the
`
`current proceedings.” Motion to Exclude, p. 8. Specifically, Realtime focuses
`
`11
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`largely on the publication dates of these exhibits as being after February 2000. Id.,
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`pp. 8-9. Realtime’s position on publication date, however, does not account for
`
`realties of the time needed to conduct studies and provide reports. Indeed, a report
`
`for data relevant to February 2000 necessarily must be published after February
`
`2000 to allow time for data to be compiled, analyzed, and reported. The reports in
`
`Exhibits 1048 and 1049 squarely and unequivocally cover the time period of
`
`February 2000 and, thus, provide evidence relevant to that time period.
`
`In fact, Realtime itself relies on documents published after February 2000 to
`
`provide evidence of the relative pricing of flash memory and RAM. See Ex. 2029
`
`and 2030. Accordingly, Realtime acknowledges the need and appropriateness of
`
`turning to evidence published after February 2000 to demonstrate the pricing of
`
`memory in February 2000. Thus, if Petitioner’s evidence is irrelevant, so is
`
`Realtime’s.
`
`And, Realtime’s evidence is far less relevant to the pertinent memory pricing
`
`question than Petitioner’s evidence. In particular, Realtime’s evidence provides
`
`three isolated examples that amount to little more than comparing apples (memory
`
`cards for cameras) to oranges (DIMM modules of computer RAM). See Exs.
`
`2028-2030. Realtime’s evidence is unreliable and represents a cherry-picked
`
`sample of very different form factors of memory in an attempt to manufacture
`
`support for its desired result. By contrast, Petitioner’s evidence presents two
`
`12
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`detailed studies of the same form factor of flash memory and RAM and quite
`
`clearly demonstrate that RAM was less costly than flash memory prior to the ’862
`
`patent. See Exs. 1048-1049.
`
`Indeed, Petitioner’s evidence aligns exactly with the testimony of both
`
`experts in the proceeding and confirms the accuracy of that testimony. See, e.g.,
`
`Ex. 1043, ¶ 25 (Dr. Neuhauser: “in February of 2000 the cost of DRAM was
`
`significantly less than the cost flash memory”); Ex. 1046, 58:9-59:1 (Dr. Back: “a
`
`person of ordinary skill would probably be discouraged from the use of non-
`
`volatile memory for a number of reasons, one of which is the higher price of the
`
`memory.”) Dr. Back’s decision to change his testimony after seeing Petitioner’s
`
`briefing does not render Exhibits 1048 and 1049 irrelevant. See Ex. 2027, ¶¶ 25-28
`
`(Dr. Back: “a POSA could have easily obtained flash for a lower cost than RAM
`
`on a per-megabyte basis at that time.”) Rather, Exhibits 1048 and 1049 are clearly
`
`relevant to the credibility of the competing witnesses, confirming that (1) all
`
`testimony provided by Dr. Neuhauser is credible, (2) the initial testimony of Dr.
`
`Back, provided before Petitioner’s brief, is credible, and (3) the changed testimony
`
`of Dr. Back, provided after Petitioner’s brief, is not credible. Accordingly, the
`
`studies of memory pricing provided in Exhibits 1048 and 1049 are relevant to this
`
`proceeding.
`
`13
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`For these reasons, Exhibits 1048 and 1049 should not be excluded as
`
`irrelevant. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993)
`
`(“The Rule’s basic standard of relevance thus is a liberal one.”)
`
`VIII. Conclusion
`
`For the above reasons, Exhibits 1038, 1048, and 1049 should be allowed
`
`entry into the proceeding, and Patent Owner’s Motion to Exclude Exhibits 1038,
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`1048, and 1049 should be denied.
`
`
`
`Date: December 29, 2017
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`
`/Jeremy J. Monaldo/
`W. Karl Renner, Reg. No. 41,265
`Jeremy Monaldo, Reg. No. 58,680
`Andrew B. Patrick, Reg. No. 63,471
`Fish & Richardson P.C.
`3200 RBC Plaza, 60 South Sixth Street
`Minneapolis, MN 55402
`T: 202-783-5070
`F: 877-769-7945
`
`Attorneys for Petitioner
`
`14
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`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 CFR §§ 42.6(e)(1) and 42.6(e)(4)(iii), the undersigned
`
`certifies that on December 29, 2017, a complete and entire copy of this Petitioner’s
`
`Opposition to Patent Owner’s Motion to Exclude was provided via email to the
`
`Patent Owner by serving the email correspondence addresses of record as follows:
`
`Joseph F. Edell, Richard Z. Zhang, Desmond S. Jui (pro hac vice)
`Fisch Sigler LLP
`5301 Wisconsin Avenue NW, Fourth Floor
`Washington, DC 20015
`
`William P. Rothwell, Kayvan B. Noroozi (pro hac vice)
`Noroozi PC
`2245 Texas Drive, Suite 300
`Sugar Land, TX 77479
`
`Email: Joe.Edell.IPR@fischllp.com
`Richard.Zhang.IPR@fischllp.com
`Desmond.Jui.IPR@fischllp.com
`William@noroozipc.com
`Kayvan@noroozipc.com
`
`
`/Edward G. Faeth
`Edward G. Faeth
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`(202) 626-6420
`
`
`
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`APPENDIX A
`
`APPENDIX A
`
`

`

`
`
`www.arch1vc.org
`415.561.6767
`4158400391 c-fax
`
`Internet Archive
`300 l‘unston Avenue
`
`San Francisco, (IA 94118
`x
`
`AFFIDAVIT OF CHRISTOPHER BUTLER
`
`l. I am the Office Manager at the Internet Archive, located in San Francisco,
`California. I make this declaration of my own personal knowledge.
`2. The lntemet Archive is a website that provides access to a digital library of
`lntemet sites and other cultural artifacts in digital form. Like a paper library, we provide
`free access to researchers, historians, scholars, and the general public. The lntemet
`Archive has partnered with and receives support from various institutions, including the
`Library ofCongress.
`3. The lntemet Archive has created a service known as the Wayback Machine. The
`Wayback Machine makes it possible to surf more than 450 billion pages stored in the
`lntemet Archive's web archive. Visitors to the Wayback Machine can search archives
`by URL (i.e., a website address). If archived records for a URL are available, the visitor
`will be presented with a list of available dates. The visitor may select one of those
`dates, and then begin surfing on an archived version of the Web. The links on the
`archived files, when served by the Wayback Machine, point to other archived files
`(whether HTML pages or images). If a visitor clicks on a link on an archived page, the
`Wayback Machine will serve the archived file with the closest available date to the page
`upon which the link appeared and was clicked.
`4. The archived data made viewable and browseable by the Wayback Machine is
`compiled using software programs known as crawlers, which surf the Web and
`automatically store copies of web files, preserving these files as they exist at the point of
`time of capture.
`5. The lntemet Archive assigns a URL on its site to the archived files in the format
`http://web.archive.org/web/[Year in yyyy][Month in mm][Day in dd][Time code in
`hh:mm:ss]/[Archived URL]. Thus, the lntemet Archive URL
`http://web.archive.org/web/19970l26045828/http://www.archive.org/ would be the
`URL for the record of the Internet Archive home page HTML file
`(http://www.archive.org/) archived on January 26, 1997 at 4:58 am. and 28 seconds
`(1997/01/26 at 04:58:28). A web browser may be set such that a printout from it will
`display the URL of a web page in the printout’s footer. The date assigned by the lntemet
`Archive applies to the HTML file but not to image files linked therein. Thus images that
`appear on a page may not have been archived on the same date as the HTML file.
`Likewise, ifa website is designed with "frames," the date assigned by the lntemet
`Archive applies to the frameset as a whole, and not the individual pages within each
`frame.
`
`6. Attached hereto as Exhibit A are true and accurate copies of printouts of the
`lntemet Archive‘s records of the HTML files or PDF files for the URLs and the dates
`specified in the footer of the printout (HTML) or attached coversheet (PDF).
`7. I declare under penalty of perjury that the foregoing is true and correct.
`
`DATE:
`
`ll’z "ff/l7
`
`,\
`
`/
`
`Christopher Butler
`
`

`

`
`Exhibit A
`
`Exhibit A
`
`

`

`https://web.archive.org/web/20110812133458/https://www.usitc.gov/publicatio
`ns/332/journals/rise_flash_memory_market.pdf
`
`
`
`
`
`

`

`The Rise of the Flash
`Memory Market: Its Impact
`on Firm Behavior and
`Global Semiconductor
`Trade Patterns
`
`Web version:
`July 2007
`
`Author:
`Falan Yinug1
`
`Abstract
`
` This article addresses three questions about the flash memory
`market. First, will the growth of the flash memory market be a
`short- or long-term phenomenon? Second, will the growth of the
`flash memory market prompt changes in firm behavior and
`industry structure? Third, what are the implications for global
`semiconductor trade patterns of flash memory market growth?
`The analysis concludes that flash memory market growth is a
`long-term phenomenon to which producers have responded in
`four distinct ways. It also concludes that the rise in flash memory
`demand has intensified current semiconductor trade patterns but
`has not shifted them fundamentally.
`
`1 Falan Yinug (Falan.Yinug@usitc.gov) is a International Trade Analyst from the Office of
`Industries. His words are strictly his own and do not represent the opinions of the US
`International Trade Commission or of any of its Commissioners.
`
`1
`
`

`

`Introduction
`
`The past few years have witnessed rapid growth in a particular segment of the
`semiconductor market known as flash memory.2 In each of the past five years,
`for example, flash memory market growth has either outpaced or equaled that
`of the total integrated circuit (IC) market3 (McClean et al 2004-2007, section 5).
`One observer expects flash memory to have the third-strongest market growth
`rate over the next six years among all IC product categories (McClean et al
`2007, 5-6). As a result, the flash memory share of the total IC market has
`increased from 5.5 percent in 2002, to 8.1 percent in 2005. As a share of the
`memory market segment, flash memory has increased from 28.7 percent to 38.2
`percent during the same period. In short, the flash memory market has quickly
`become a significant part of the overall semiconductor market that cannot be
`ignored; some predict it will soon compete with the dynamic random access
`memory (DRAM) market for dominance within the memory sector in the not-
`too-distant future (McClean et al 2007, 5-4).4
`
`Given its market size and projected growth, flash memory is likely to have an
`increased impact on the global semiconductor industry, and the decisions that
`flash memory producers make are likely to have a significant influence on
`industry evolution. These decisions have already been as dynamic as the recent
`performance of the flash memory market. Some firms have shifted production
`from other products to flash memory. In addition, some other firms have
`partnered to gain flash memory market share. Also, some firms have
`aggressively moved to lock in long-term deals with certain flash memory
`consumers.
`
`This article will address three questions about the flash memory market. First,
`will the growth of the flash memory market be a short- or long-term
`phenomenon? Second, will the growth of the flash memory market prompt
`
`2 Flash memory is a type of nonvolatile memory that can be electrically erased and
`reprogrammed. Nonvolatile memory is memory that retains data when the power is turned
`off. Flash memory costs less and includes more functionality than other forms of nonvolatile
`memory.
`3 The semiconductor market is composed of two main subsets, the integrated circuit (IC)
`market and the optoelectronics, sensors, and discretes (O-S-D) market. The IC segment of the
`semiconductor market is by far the biggest (85 percent in 2006) and comprises
`semiconductors that are harder to manufacture, more advanced, and more expensive. Flash
`memory is a type of IC.
`4 DRAM is a popular type of volatile memory used mainly in computers. Compared to
`nonvolatile memory, volatile memory loses data when powered down. DRAM composes the
`largest share of the memory market, though flash memory has eroded its lead in recent years.
`
`2
`
`

`

`changes in firm behavior and industry structure? Third, what are the
`implications for global semiconductor trade patterns of flash memory market
`growth?
`
`The analysis concludes that (1) flash memory market growth is a long-term
`phenomenon; (2) flash memory producers have responded to flash memory
`market growth in four distinct ways: choosing to produce flash memory rather
`than nonvolatile memory, entering into flash memory production, increasing
`flash memory production and production capacity, and partnering with each
`other; and (3) increased demand for flash memory and the response of
`producers to meet this demand have intensified current semiconductor trade
`patterns but has not shifted them fundamentally.
`
`Flash Memory To Endure
`
`The semiconductor industry has experienced many changes since flash memory
`first appeared in the early 1980s, one of the most dramatic and long-term of
`which has been the rise of the consumer electronics market as a demand driver
`for semiconductors. This rise in the consumer electronics market has fueled
`flash memory market growth and helped to make flash memory a prominent
`segment within the semiconductor industry.
`
`Broadly speaking, flash memory ideally suits the consumer electronics market,
`because it bestows upon electronic devices two qualities that the market
`demands: mobility and miniaturization. For example, cell phones, a major
`application for flash memory, require data storage to save and store frequently
`called numbers and perform other convenient functions for which a traditional
`hard drive would prove impractical; such information would be erased every
`time the phone were turned off. Because (1) flash memory is small, reliable,
`and (2) its memory is nonvolatile, numerous applications not practicable with
`traditional data storage technology are emerging. Flash memory brings mobility
`and miniaturization to electronics products, two defining features of most
`consumer electronics products today.
`
`Given capabilities and attractiveness of flash memory to the consumer market,
`it is clear why demand for it has rapidly grown. Flash memory allowed existing
`electronic products to adopt mobile and miniature qualities they did not have
`before and thus opened them up to new and very large consumer markets. In
`addition to cell phones, USB flash memory drives function as portable and
`smaller floppy drives.