Case 3:14-cv-00757-REP-DJN Document 848 Filed 04/12/16 Page 1 of 9 PageID# 43163
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`RICHMOND DIVISION
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`Civil Action No. 3:14-cv-757-REP
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`SAMSUNG ELECTRONICS CO., LTD.,
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`Plaintiff,
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`-v.-
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`NVIDIA CORPORATION,
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`Defendant.
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`NVIDIA’S MEMORANDUM IN SUPPORT OF ITS MOTION IN LIMINE TO
`PRECLUDE SAMSUNG FROM PRESENTING EVIDENCE OR ARGUMENT THAT
`NVIDIA AND/OR TSMC ARE CUSTOMERS OF, OR HAVE PURCHASED REVERSE
`ENGINEERING REPORTS FROM, TECHINSIGHTS
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`Case 3:14-cv-00757-REP-DJN Document 848 Filed 04/12/16 Page 2 of 9 PageID# 43164
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`I.
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`INTRODUCTION
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`Defendant NVIDIA Corporation (“NVIDIA”) respectfully moves the Court in limine to
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`preclude Plaintiff Samsung Electronics Co., Ltd. (“Samsung”) from presenting evidence or
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`argument at trial that NVIDIA and/or TSMC are customers of, or have purchased reverse
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`engineering reports from, TechInsights. Samsung relies on certain reverse engineering reports
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`created by TechInsights to support its infringement contentions. Samsung also intends to present
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`evidence that NVIDIA and/or TSMC purchased other TechInsights reports that relate to other
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`products not at issue in this case, and will argue that such purchases of these other reports
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`bolsters the accuracy or reliability of the specific reverse engineering reports Samsung relies on
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`in this case. Such evidence and argument should be precluded under Federal Rules of Evidence
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`402 and 403, respectively, because (i) it is not relevant to any issue in this case, and (ii) its
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`probative value (if any) is substantially outweighed by the danger of unfair prejudice, misleading
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`the jury, and wasting time.
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`II.
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`FACTUAL BACKGROUND
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`TechInsights is a Canadian company that creates semiconductor reverse engineering
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`reports. Samsung’s expert, Dr. Jeongdong Choe, is a consulting engineer at TechInsights. (Dkt.
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`No. 796, Jan. 27, 2016 Tr. at 404:12-15.) Dr. Choe has provided 13 reverse engineering reports
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`as exhibits to his expert reports, each pertaining to an accused NVIDIA chip. All but one of
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`these reverse engineering reports were specially prepared by TechInsights for use by Samsung in
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`this litigation.1
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`During the January trial, Samsung repeatedly emphasized that NVIDIA and TSMC are
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`1 The only “off-the-shelf” report that was not prepared for this litigation is a February 17, 2015
`TechInsights report pertaining to NVIDIA’s GK107 chip (P-0077). There is no evidence that
`NVIDIA or TSMC have ever purchased this report.
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`2
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`Case 3:14-cv-00757-REP-DJN Document 848 Filed 04/12/16 Page 3 of 9 PageID# 43165
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`customers of, and have purchased reverse engineering reports from, TechInsights. For example,
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`counsel for Samsung stated (and illustrated) during opening statements:
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`TechInsights is a company in Canada that has some amazing machines that will
`look inside computer chips to see how they were made. TechInsights does this
`for a variety of companies around the world, companies that I am sure you
`recognize like Samsung, NVIDIA, the parties in this case, like TSMC, and also
`companies like Sony, Toshiba, Texas Instruments, Microsoft, and Panasonic.
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`(Dkt. No. 795, Jan. 26, 2016 Tr. at 97:22-98:7; Ex. A, Samsung Opening Demonstratives at 21.2)
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`Samsung elicited similar testimony from Dr. Choe during his direct examination:
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`Q:
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`A:
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`Q:
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`A:
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`Can you please identify some of TechInsights’ customers for the jury?
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`the
`in
`That would be encompassing many different companies
`semiconductor process technology area all over the world, actually. We’re
`talking about all the companies out there. For example, Samsung, LG,
`Toshiba, SK Hynix, TI and also NVIDIA and TSMC are some of our
`customers.
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`Is that the same NVIDIA and TSMC that we’ve been talking about in this
`litigation?
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`Yes, that’s right.
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`(Dkt. No. 796, Jan. 27, 2016 Tr. at 409:11-20.) Samsung’s counsel returned to the topic the next
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`day:
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`2 All emphasis added.
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`Q:
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`A:
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`Q:
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`A:
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`I believe earlier in your testimony, you identified NVIDIA and TSMC as
`two TechInsights customers; isn’t that correct?
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`That’s correct.
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`So those reverse engineering reports about the Samsung products could be
`purchased by NVIDIA or TSMC, correct?
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`They can, and they are.
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`(Dkt. 797, Jan. 28, 2016 Tr. at 514:21-17; see also Ex. B, Choe Demonstratives at 4.)
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`Samsung intends to admit 13 reverse engineering reports into evidence. There is no
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`evidence that NVIDIA or TSMC has ever purchased, relied on, or even been in possession of any
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`one of those 13 reverse engineering reports that Samsung will introduce in this case.
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`III. ARGUMENT
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`A. Whether NVIDIA Or TSMC May Purchase Other Reverse Engineering
`Reports From TechInsights Is Not Relevant To Any Claims Or Defenses In
`This Lawsuit
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`Samsung should be precluded under Rule 402 from presenting evidence or argument that
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`NVIDIA and TSMC are customers of, and have purchased reverse engineering reports from,
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`TechInsights because such evidence is not relevant to any issue in this case. Rule 402 provides
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`“[i]rrelevant evidence is not admissible.” Evidence is only relevant if “(a) it has any tendency to
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`make a fact more or less probable than it would be without the evidence; and (b) the fact is of
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`consequence in determining the action.” Fed. R. Evid. 401.
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`Neither NVIDIA nor TSMC have purchased any of the reverse engineering reports at
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`issue in this case. What is at issue is the reliability of the specific reverse engineering reports Dr.
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`Choe provided to Samsung to use as evidence in this case. Whether NVIDIA and TSMC have
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`purchased different unnamed, unidentified reports on different products for different
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`(business) purposes has no bearing on whether the reports manufactured for this case are
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`accurate or reliable. Any such evidence or argument is therefore irrelevant and should be
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`precluded under Rule 402.
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`In an analogous situation, the Court precluded admission of evidence of Samsung and
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`NVIDIA’s respective license agreements, holding that they were not comparable to the
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`hypothetical license the parties would agree to in this case. (See, e.g., Dkt. No. 795, Jan. 26,
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`2016 Tr. at 221:24-223:9.) The Court held that the licenses the parties entered into for other
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`patents and other technologies with other parties had no bearing on the determination of the
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`hypothetical license in this case. (Id.)
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`The same result follows here. There is no evidence that NVIDIA or TSMC purchased
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`any of the reverse engineering reports at issue in this case, and there is no evidence that other
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`unidentified reverse engineering reports NVIDIA or TSMC may have purchased are in any way
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`comparable to the reports Samsung seeks to present to the jury. The accuracy or reliability of the
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`reports manufactured for this case is based on the methodology used to create those reports.
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`That NVIDIA or TSMC may be TechInsights customers for other reports has no bearing on that
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`question. Samsung’s proposed evidence and argument that NVIDIA or TSMC purchase other
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`TechInsights reports should be precluded as irrelevant under Rule 402.
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`B.
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`The Probative Value of the Evidence is Substantially Outweighed by the
`Danger of Unfair Prejudice, Misleading the Jury, Confusing the Issues, and
`Needlessly Presenting Cumulative Evidence
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`Federal Rule of Evidence 403 provides that relevant evidence “may be excluded if its
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`probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
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`issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
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`presentation of cumulative evidence.” A district court “has broad discretion under Rule 403 to
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`exclude prejudicial evidence.” Schultz v. Butcher, 24 F.3d 626, 631 (4th Cir. 1994).
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`The introduction of evidence that NVIDIA and TSMC are customers of, and purchase
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`Case 3:14-cv-00757-REP-DJN Document 848 Filed 04/12/16 Page 6 of 9 PageID# 43168
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`reverse engineering reports from, TechInsights will unfairly prejudice NVIDIA, mislead the jury,
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`and confuse the issues. Such evidence will cause unfair prejudice to NVIDIA because it leads
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`the jury to improperly conclude that the particular reports at issue in this case, which form the
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`basis of Samsung’s infringement case, are reliable. But that conclusion does not follow from the
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`proposed evidence and argument that NVIDIA or TSMC have purchased other reports from
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`TechInsights. The improper evidence has a substantial probability of leading the jury to
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`determine the reliability of the reports at issue in this case based on other, unidentified reports
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`that have nothing to do with those at issue here. None of the unidentified reports allegedly
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`acquired by NVIDIA and TSMC will be offered into evidence, and there will be no testimony
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`concerning their preparation, purpose, accuracy, reliability or use. Samsung’s arguments also
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`may lead the jury to speculate why those other, unidentified reports were not discussed by any
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`other witnesses, or whether those other reports are somehow important to this case.
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`Samsung’s proposed evidence and argument about other, unidentified and unproduced
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`TechInsights reports will also waste the jury’s time, add confusion to an already complicated
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`case, and prejudice NVIDIA. NVIDIA cannot even defend itself against the implication of
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`reliability created by Samsung’s improper evidence because Samsung has not even identified the
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`reports allegedly purchased by NVIDIA and/or TSMC which it deems comparable to those at
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`issue here. The jury will be confused by Samsung’s proposed evidence, and will waste its time
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`grappling with an issue of little, if any, relevance.
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`IV. CONCLUSION
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`Accordingly, NVIDIA respectfully requests that the Court preclude Samsung from
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`presenting evidence or argument that NVIDIA or TSMC are customers of, and have purchased
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`reversed engineering reports from, TechInsights.
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`Case 3:14-cv-00757-REP-DJN Document 848 Filed 04/12/16 Page 7 of 9 PageID# 43169
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`Dated: April 12, 2016
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`Respectfully submitted,
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`By: /s/ Robert A. Angle
`Robert A. Angle, VSB No. 37691
`robert.angle@troutmansanders.com
`TROUTMAN SANDERS LLP
`1001 Haxall Point
`Richmond, VA 23219
`Tel: (804) 697-1200
`Fax: (804) 697-1339
`
`Maximilian A. Grant (admitted pro hac vice)
`max.grant@lw.com
`Gabriel K. Bell (admitted pro hac vice)
`gabriel.bell@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
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`Clement J. Naples (admitted pro hac vice)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022-4834
`Tel: (212) 906-1200; Fax: (212) 751-4864
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`Ron E. Shulman (admitted pro hac vice)
`ron.shulman@lw.com
`Richard G. Frenkel (admitted pro hac vice)
`rick.frenkel@lw.com
`Lisa K. Nguyen (admitted pro hac vice)
`lisa.nguyen@lw.com
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 94025
`Tel: (650) 328-4600; Fax: (650) 463-2600
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`Julie M. Holloway (admitted pro hac vice)
`julie.holloway@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (415) 395-8095
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`Case 3:14-cv-00757-REP-DJN Document 848 Filed 04/12/16 Page 8 of 9 PageID# 43170
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`Ann Marie T. Wahls (admitted pro hac vice)
`annmarie.wahls@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, Illinois 60611
`Tel: (312) 876-7700; Fax: (312) 993-9767
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`Counsel for NVIDIA Corp., Old Micro, Inc. f/k/a
`Velocity Micro, Inc., and Velocity Holdings, LLC
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`Case 3:14-cv-00757-REP-DJN Document 848 Filed 04/12/16 Page 9 of 9 PageID# 43171
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 13th day of April, 2016, I will electronically file the
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`foregoing with the Clerk of the Court using the CM/ECF system, which will then send a
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`notification of such filing (NEF) to the following:
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`Robert W. McFarland
`rmcfarland@mcguirewoods.com
`McGuire Woods LLP
`101 W. Main Street, Suite 9000
`Norfolk, VA 23510
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`Brian C. Riopelle
`briopelle@mcguirewoods.com
`McGuire Woods LLP
`Gateway Plaza
`800 East Canal Street
`Richmond, VA 23219
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`Counsel for Samsung Electronics Co., Ltd. and
`Samsung Electronics America, Inc.
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`Darin W. Snyder
`dsnyder@omm.com
`Alexander B. Parker
`aparker@omm.com
`Elysa Q. Wan
`ewan@omm.com
`O’Melveny & Myers LLP
`Two Embarcadero Center, 28th Floor
`San Francisco, CA 94111
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`Vision L. Winter
`vwinter@omm.com
`Ryan K. Yagura
`ryagura@omm.com
`Michael A. Koplow
`O’Melveny & Myers LLP
`400 South Hope Street, 18th Floor
`Los Angeles, CA 90071
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`Mishima Alam
`malam@omm.com
`O’Melveny & Myers LLP
`1625 Eye Street NW
`Washington, DC 20006
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`Robert A. Angle
`/s/
`Robert A. Angle (VSB No. 37691)
`robert.angle@troutmansanders.com
`TROUTMAN SANDERS LLP
`1001 Haxall Point
`Richmond, VA 23219
`T: (804) 697-1200
`F: (804) 697-1339
`
`