Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PROMOS TECHNOLOGIES, INC., Plaintiff, v. FREESCALE SEMICONDUCTOR, INC., Defendant. ) ) ) ) ) ) ) ) ) )

C.A. No. 06-788 (JJF)

FREESCALE'S OPPOSITION TO PROMOS TECHNOLOGIES' MOTION TO COMPEL FREESCALE TO PRODUCE TECHNICAL DOCUMENTS AND DAMAGES-RELATED DOCUMENTS RELATING TO ACCUSED PRODUCTS AND TO APPEAR FOR DOCUMENT-RELATED DEPOSITION MORRIS, NICHOLS, ARSHT & TUNNELL LLP Mary B. Graham (#2256) James W. Parrett, Jr. (#4292) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899-1347 302.658.9200 OF COUNSEL: Attorneys for Freescale Semiconductor, Inc. David L. Witcoff Kevin P. Ferguson John M. Michalik JONES DAY 77 West Wacker Chicago, IL 60601-1692 312.782.3939 F. Drexel Feeling JONES DAY North Point 901 Lakeside Avenue Cleveland, OH 44114-1190 216.586.3939 Dated: September 10, 2007

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TABLE OF CONTENTS PAGE I. PROMOS'S REFUSAL TO DEFINE AND CONFINE ITS DISCOVERY TO CHAN PATENTS THWARTED THE DISCOVERY PROCESS. ...........................................................................4 A. B. C. The Chan Patents, Which ProMOS Is Asserting Broadly, Are Very Narrow. ............................................................................5 ProMOS Refused To Narrow The Scope Of Its Discovery Requests Until July 6, 2007. ............................................................6 ProMOS's Attempt to Explain Away Its Overly Broad and Unduly Burdensome Discovery Requests Is Not Grounded In Fact. .............................................................................................7

II.

THE DOCUMENTS THAT PROMOS CLAIMS ARE "CRITICALLY ABSENT" FROM FREESCALE'S PRODUCTION HAVE ALREADY BEEN PRODUCED OR DO NOT EXIST. ................................................................................................9 A. B. Freescale Had Produced Its RTL Code Prior To ProMOS Filing Its Motion. .............................................................................9 Freescale Is Not Obligated To Create Documents That Do Not Already Exist, And If ProMOS Wants To Create Schematics It May Do So Under The Terms Of The Protective Order. ..............................................................................9 Contrary To ProMOS's Assertion, Freescale's Production Includes Documents That Exist That Show The Specific Design And Layout Of Its Products...............................................11 Freescale Is Producing Damages-Related Documents. .................12

C.

D. III.

FREESCALE'S PRODUCTION OF ITS RTL CODE WAS PROPERLY DONE PURSUANT TO THE TERMS OF THE PARTIES' PROTECTIVE ORDER...........................................................12 A. B. ProMOS Knew And Agreed That RTL Code Is Computer Code Protected By Paragraph 4 Of The Protective Order. ............13 As The Parties Previously Acknowledged, RTL Code Is "Computer Code" Covered By Paragraph 4 Of The Protective Order. ............................................................................13 i

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C. IV.

ProMOS's Own Letters Use the Term "RTL Code." .....................15

PROMOS'S 30(B)(6) TOPICS SUFFER THE SAME FLAW AS ITS DISCOVERY REQUESTS, AND DEPOSITIONS SHOULD BE CONDUCTED IN THE MOST REASONABLE LOCATION IN THE U.S. ..............................................................................................15 ANY DELAY IN OBTAINING DISCOVERY WAS SELFINFLICTED AND PROMOS'S REQUEST FOR SANCTIONS SHOULD BE DENIED. ............................................................................17

V.

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TABLE OF AUTHORITIES PAGE CASES Cornell Research Found., Inc. v. Hewlett Packard Co., 223 F.R.D. 55 (N.D.N.Y. 2003) .............................................................................................11 OTHER AUTHORITIES 7 Moore's Federal Practice ¶ 34.14 (2007) ......................................................................................9 RULES Rule 16 .............................................................................................................................................1 Rule 30(b)(6)..................................................................................................................................15

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NATURE AND STAGE OF THE PROCEEDINGS ProMOS filed its complaint in this action on December 22, 2006, a few weeks after Freescale filed a patent infringement action against ProMOS in Texas. As set forth in the scheduling order entered following the Rule 16 scheduling conference in this case on April 20, 2007, fact discovery is to be completed by January 21, 2008, with a document production completion date of August 15, 2007. After several months during which ProMOS refused to identify allegedly infringing products, whether by specific product name or by identifying characteristics, ProMOS finally on July 6, 2007 identified a complete list of allegedly infringing products. Prior to that time, ProMOS had identified only a few allegedly infringing products, although it pressed for discovery on virtually the entire Freescale product line. It was ProMOS's insistence on pursuing that vastly overbroad discovery that was the subject of the (misguided) motion to compel ProMOS filed on July 6, ironically a few short hours after it finally identified allegedly infringing products. Freescale had never refused to produce documents in response to discovery actually directed to allegations of infringement, and ProMOS's motion was shown to be unfounded by its own actions in finally identifying infringing products -- Freescale, as it had said it would do all along, has proceeded since then to produce documents relating to the specificallyidentified products. ProMOS's current motion is equally unfounded. Freescale has produced its

technical documents for the circuits possibly relevant to the Chan patents; Freescale has produced its RTL code pursuant to the negotiated provision of the Stipulated Protective Order that governs highly confidential computer code, such as RTL code; Freescale is currently producing the damages-related discovery that ProMOS requested; and Freescale has stood, and stands, ready to make a 30(b)(6) witness available to answer ProMOS's document-related -1-

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questions. To the extent ProMOS is complaining about the fact that document production was not completed by August 15, 2007, that is a problem of its own making, given its months-long refusal until July 6 to provide a reasonable scope to discovery. PROMOS'S MOTION ProMOS's motion asserts a litany of wholesale, alleged refusals by Freescale to provide discovery, specifically that Freescale allegedly: (i) refuses to produce technical documents that show the design and layout of its products; (ii) refuses to produce certain specific documents called circuit diagrams and schematics of its products; (iii) will produce RTL code but only under what ProMOS calls draconian restrictions; (iv) refuses to produce damagesrelated documents; and (v) has twice refused to appear for a 30(b)(6) deposition. None of ProMOS's assertions are correct. Freescale has fully complied with its discovery obligations. As to (i), at the time ProMOS filed its motion, Freescale had produced the technical documents that ProMOS complains are missing. Contrary to ProMOS's assertion, as to (ii), Freescale has not "refused to produce" circuit diagrams and schematics. Freescale has produced the responsive circuit diagrams and schematics that it found. As for any other circuit diagrams and schematics, as ProMOS admits in other parts of its papers, these documents do not actually exist and would have to be generated by Freescale. Moreover, they would have to be generated using parameters that ProMOS has not identified. ProMOS cites to no authority that Freescale can be compelled to produce such (undefined) documents that do not exist. The "draconian restrictions" that ProMOS cites in (iii) concerning Freescale's production of its RTL code are nothing more than the express terms that the parties agreed to and were entered by the Court in the parties' Stipulated Protective Order regarding the production of computer code. ProMOS's declaration, made to avoid ProMOS's own stipulation, -2-

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that recasts Freescale's "RTL code" as "documentation" and not "Code" is not correct. As counsel for Freescale told ProMOS's counsel during negotiations of the Protective Order terms and before ProMOS subsequently agreed to those terms, RTL code is the precise type of computer code that is contemplated by Paragraph 4 of the Stipulated Protective Order. Having negotiated the terms of this Stipulated Protective Order and having agreed to be bound by it, ProMOS now presents no basis for undoing this negotiated-for protection of the RTL code that ProMOS is demanding Freescale produce. With respect to (iv), damages-related documents, as Freescale informed ProMOS before it filed its motion, Freescale either has already produced, or will shortly produce, these documents. Again, any delay was caused by ProMOS's refusal to narrow its discovery requests. Once ProMOS finally identified the products it was actually accusing of infringement (as opposed to virtually every product made by Freescale), Freescale began collecting damagesrelated documents. Of course, ProMOS already would have received all these documents had it not refused to identify accused products for months. As to (v), notwithstanding ProMOS's statements to the contrary (D.I. 29 at 2), Freescale has offered ProMOS the opportunity to depose a 30(b)(6) witness on multiple occasions. ProMOS insisted that its deposition should take place in Delaware, even though everyone attending the deposition (the witness and both sets of counsel) would have to travel there. ProMOS rejected Freescale's offer to schedule depositions in the most reasonable location in the U.S. given the circumstances, which in this particular instance was Austin, Texas, where the Freescale witness and facility are located. If ProMOS were truly interested in obtaining the information as its motion suggests, it already would have conducted the deposition.

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Thus, contrary to what its motion papers say, ProMOS has not "bent over backwards to avoid involving the Court" in discovery disputes. The opposite appears to be true. On July 6, as noted above, ProMOS filed a motion to compel the production of documents related to 95 accused products from 12 product families that it had identified to Freescale just a few hours earlier. ProMOS ultimately withdrew the motion.1 Then, on August 8, using the Court's emergency email procedure, ProMOS asked the Court, in effect, to speed up Freescale's delivery of technical documents related to those products that ProMOS had identified only a month prior (the Court denied the request as not being of an emergency nature). ProMOS's approach seems to be to generate discovery disputes where none exist. As in its previous discovery motions, ProMOS's complaints in this motion are without merit, and should be denied. I. PROMOS'S REFUSAL TO DEFINE AND CONFINE ITS DISCOVERY TO CHAN PATENTS THWARTED THE DISCOVERY PROCESS.2 Beginning with its discovery requests in April 2007, ProMOS for months sought broad discovery on virtually Freescale's entire product line. In particular, ProMOS sought discovery related to "Freescale Products," which it defined to include, inter alia, "microcontrollers, microprocessors, processors, digital signal processors, controller cores, processor cores and all other components or goods you manufacture or market for sale or sell in any way that use, incorporate, work with or rely on cache memory." (ProMOS's motion to compel, D.I. 29 at 3). By this definition, ProMOS's discovery requests covered Freescale
1

As explained herein, ProMOS withdrew its motion realizing that it was premature and not supported. Contrary to ProMOS's accusations, Freescale has produced the documents as it agreed to do. Note that Part I of Freescale's brief, like Part A.1 of Freescale's Opening Brief in Support of Freescale's Motion to Compel ProMOS to Provide Infringement Contention and Licensing Information, explains how ProMOS's refusal to provide a reasonable scope delayed the discovery process.

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products of any kind using a cache memory in any way--even though Chan did not invent cache memories and the Chan patents claim only certain uses of a cache memory (because many such uses were known in the prior art). Most of Freescale's product line has or uses a cache memory of some sort, and were literally within the scope of ProMOS's vastly overbroad requests. ProMOS's discovery requests were therefore improper because ProMOS made no attempt to confine its expansive definition of "Freescale Products" to products that could reasonably be considered to potentially within the scope of the Chan patents. A. The Chan Patents, Which ProMOS Is Asserting Broadly, Are Very Narrow.

As described in detail in Freescale's Motion to Compel ProMOS to Provide Infringement Contentions and Licensing Information, the two Chan patents, U.S. Patent Nos. 5,488,709 and 5,732,241, are very narrow. As the Chan patents themselves acknowledge (see, e.g., Fig. 4 of each patent), cache memory had been used in semiconductor technology for years before the Chan invention. Because cache memories were so well-known in the prior art, the inventor had a difficult time convincing the PTO to grant the two Chan patents, and made statements and repeatedly amended the claims, both of which had the effect of limiting the claim scope. With respect to the Chan `709 patent, which is directed to a particular cache memory apparatus, the claims were amended four times before the PTO would grant the patent. In order to overcome the prior art cited by the PTO, the inventor argued that the distinguishing feature of the claims was not just any cache memory, but instead "[1] a cache memory which includes a memory write register for buffering data received from a host port and selectively providing that data to a RAM, to a system port, or to both, and [2] a write back register for holding data received from the RAM and selectively providing that data to a system port." Both -5-

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these arguments, and the fact that the claims were amended four times, narrow the scope of the Chan '709 claims to require particular structure and functionality that goes far beyond merely any product that in any way uses or works with cache memory, as ProMOS suggests. Similarly, the inventor had to amend the claims of the Chan `241 patent four times, each time incorporating additional structure and features to its computer system claims before the PTO granted the patent. To gain allowance, the inventor argued that the claims covered a computer system including, among other things, "a dual port cache memory coupled between a host processor and a system memory" with "one [port] connected to a host data bus of the system memory" and "having registers coupling cache storage locations to a host port and to a system port, wherein a data path between the host data bus and the system data bus is operably decoupled by buffering and selective provision of data to and from the cache storage locations by the registers, so as to allow concurrent transfer of data to and from the dual port cache memory." Again, these arguments and the four claim amendments narrow the Chan '241 claims, which also explicitly require particular structure and functionality beyond merely any product that in any way uses or works with cache memory. B. ProMOS Refused To Narrow The Scope Of Its Discovery Requests Until July 6, 2007.

Given the limited scope of ProMOS's patents and the vast scope of permissible uses of cache memory, ProMOS cannot rightfully accuse, or seek discovery regarding, any products that uses or relies upon a cache memory "in any way." Further, ProMOS cannot legitimately assert its patents against any product which does not have the specific structure and functionality that was required for patent issuance. Since serving its responses to ProMOS's discovery requests on May 17, 2007, Freescale repeatedly met and conferred with ProMOS in an effort to narrow the scope of

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ProMOS's requests to products in some way actually related to the Chan patent claims, as Freescale was fully willing to produce relevant documents. Indeed, contrary to ProMOS's suggestion that Freescale refused to produce documents despite having been provided with detailed information about the accused products (D.I. 29 at 4), Freescale months ago produced documents for the roughly 50 products that ProMOS identified in its initial responses to Freescale's first set of interrogatories. For months, Freescale requested that ProMOS either specifically identify the remaining Chan-accused products (which ProMOS could do from the extensive technical documentation on Freescale's website, just as ProMOS apparently had done for the 50 products it identified earlier) or provide criteria reasonably related to the Chan structure and functionality which Freescale could then use to identify products. Freescale even went so far as to provide ProMOS with suggested criteria that would confine its discovery requests to certain features in the Chan patents (See Ex. A, July 10, 2007 letter from Ferguson to Jensen.) Notwithstanding Freescale's extensive efforts, it was not until July 6, just a scant few hours before filing its (improper) motion to compel, that ProMOS provided a complete list of accused products, identifying an additional 95 products. Since July 6, Freescale has collected, from around the world, critical technical documents for these products and produced them to ProMOS on a rolling basis. C. ProMOS's Attempt to Explain Away Its Overly Broad and Unduly Burdensome Discovery Requests Is Not Grounded In Fact.

In its motion, ProMOS asserts that its requests "seek basic technical documents necessary for ProMOS to present its infringement case at trial." (D.I. 29 at 3.) In addition, ProMOS asserts that based on its definition of "Freescale Product," "[i]t should have been fairly easy for Freescale to generate a list of specific products." (Id. at 5.) As discussed above, the net -7-

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that ProMOS cast went far beyond ProMOS's characterization of merely seeking basic technical documents to present its case at trial. In fact, any list of Freescale products based on ProMOS's definition would include virtually all Freescale products and potentially require production of virtually every file and document that exists at Freescale.3 ProMOS's initial insistence on seeking discovery of all products of any kind that use cache memory in any way, in plain disregard of the actual, limited scope of the Chan patent claims, thwarted most discovery relating to those patents. ProMOS's self-inflicted refusal to either identify the remaining Chan-accused products using the extensive technical documentation on Freescale's website, or provide criteria reasonably related to the Chan structure and functionality which Freescale could then use to identify products, made it impossible for Freescale to proceed with producing technical documents relating to products accused of infringing those patents and was the sole cause of any delay in ProMOS receiving the technical documents it sought. Of course, had ProMOS truly wanted to get to the merits of its allegations earlier, as opposed to for its own strategic purposes be committed to generating seeming discovery disputes, it could have provided the July 6 list of accused Chan products months earlier as Freescale had requested.

3

For example, ProMOS document request no. 27 seeks "All documents relating to ... the design, development, or manufacture of any Freescale Product," and document request no. 28 seeks "All documents relating to ... the design, development, or manufacture of each cache memory used with, incorporated in or relied on by any Freescale Product." (See Ex. A to ProMOS's Opening Brief at 13.)

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II.

THE DOCUMENTS THAT PROMOS CLAIMS ARE "CRITICALLY ABSENT" FROM FREESCALE'S PRODUCTION HAVE ALREADY BEEN PRODUCED OR DO NOT EXIST. A. Freescale Had Produced Its RTL Code Prior To ProMOS Filing Its Motion.

ProMOS's brief states that "Freescale has failed to produce ... RTL documentation," (D.I. 29 at 1, 12.) But as ProMOS is aware, on August 21, 2007, days before ProMOS filed its present motion, Freescale produced its RTL code for inspection. (Ex. B, Aug. 21, 2007 letter from Feeling to Cook.) ProMOS's statements to the contrary in its motion are wrong. B. Freescale Is Not Obligated To Create Documents That Do Not Already Exist, And If ProMOS Wants To Create Schematics It May Do So Under The Terms Of The Protective Order.

In its motion ProMOS accuses Freescale of failing to produce circuit diagrams and schematics even though Freescale does not typically generate such documents. It is blackletter law that Freescale is not obligated to create documents for the specific purpose of answering ProMOS's discovery requests. See 7 Moore's Federal Practice ¶ 34.14 (2007) ("[A] document that does not exist is obviously not within the possession, custody, or control of a party"). To the extent that circuit diagrams and schematics exist, those documents have already been produced to ProMOS. ProMOS's contention that Freescale should have somehow just generated circuit diagrams and schematics of its own volition is not realistic. Circuit diagrams and schematics are pictorial representations of an electric circuit, and there are many electric circuits in Freescale's products. As Exhibit L to ProMOS's motion provides, modern circuits are designed using a hierarchical methodology, meaning that there are multiple levels of schematics that may be

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generated for a particular circuit. At the lowest level, the schematic or circuit diagram would show the hardware (e.g., logical gates or transistors) that make up the circuit. At a higher level, there may be a block diagram of a portion of the circuit. Thus, there are many parameters that must be specified before a circuit diagram or schematic for a particular circuit can be generated and ProMOS's suggestion that Freescale "should be able to do so without undue effort or burden" misses the mark. (D.I. 29 at 13.) As noted throughout this brief, ProMOS seems more interested in generating seeming fact disputes than in allowing the parties to examine the merits of ProMOS's allegations. Therefore, even though it is not obligated, Freescale would expect that if it were to generate schematics, ProMOS would continue its practice of complaining about the documents, accusing Freescale of improper conduct, and demanding additional discovery. To the extent that ProMOS would like to "run the appropriate software on the descriptions provided by the RTL documentation and generate the circuit diagrams" (ProMOS's Brief in Answer to Freescale's Motion to Compel, at 5), that capability was contemplated by Paragraph 4 of the Stipulated Protective Order. Paragraph 4 provides a detailed framework for ProMOS to use whatever software it would like with the RTL code that Freescale produced. Under that framework, ProMOS need only provide whatever authorized software it needs to Freescale and Freescale will install the software on the non-networked laptop. Because only ProMOS can know exactly what it wants, it thus seems far preferable to allow ProMOS to adhere to the Protective Order and generate whatever schematics or circuit diagrams it desires from the RTL code produced by Freescale. ProMOS's alternative argument that it should be allowed to access the computer system that Freescale uses at its facility so that ProMOS can generate circuit diagrams and

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schematics is not supported in caselaw and should be rejected. ProMOS states that the approach it suggests has been sanctioned by district courts under similar circumstances, and cites a single case: Cornell Research Found., Inc. v. Hewlett Packard Co., 223 F.R.D. 55, 74-75 (N.D.N.Y. 2003). In the Cornell case, however, the documents at issue actually existed; in fact, they had previously been produced in hard copy format. Id. at 73. The Cornell court allowed the patentee's expert to view "the technical drawings and specifications which [the accused infringer] maintains in the ordinary course of business in electronic format." Id at 75. Here, as discussed above, the circuit diagrams and schematics do not exist in the usual course of business--a fundamentally different set of facts than in Cornell. Thus, ProMOS's reliance on Cornell is misplaced. Nevertheless, as discussed above, ProMOS has the ability to generate its own schematics pursuant to the terms of the parties' Stipulated Protective Order. C. Contrary To ProMOS's Assertion, Freescale's Production Includes Documents That Exist That Show The Specific Design And Layout Of Its Products

Freescale has already produced a significant number of documents that exist in the usual course of business that show the structure and operation of the relevant circuits of the accused products. This production includes product manuals that describe at a high-level the operation of the product, proprietary Freescale circuit/subsystem workbooks/manuals that provide specifications for various circuits and describe how the RTL code works, and the RTL code itself, the production of which is discussed more fully below. For certain products,

Freescale has produced circuit diagrams and schematics where those documents exist. Not including RTL code, Freescale has produced over 90,000 pages that show the structure and operation of the relevant circuits of the accused products. Thus, ProMOS's assertion that

"Freescale has failed to produce any circuit diagrams, schematics, RTL documentation, or other documents that show the specific design and layout of its products" is facially wrong. - 11 -

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D.

Freescale Is Producing Damages-Related Documents.

ProMOS's requests for damages-related documents suffer from the same flaw as its other requests--they improperly implicated nearly every product Freescale makes. Thus, ProMOS's assertion that it notified Freescale on June 25, 2007 that Freescale had failed to produce a laundry list of damages-related documents and that "there simply is no reason why Freescale could not have produced these materials," misses the real issue. Until ProMOS provided a scope to discovery tied to its allegations, it was not possible for Freescale reasonably to produce documents relevant to the Chan patents. Once ProMOS specified the products it actually was accusing of infringement, Freescale began collecting damages-related documents. As Freescale had informed ProMOS before it filed its present motion, some of those documents already have been produced and the balance will be produced shortly. (Ex. D, Aug. 7, 2007 letter from Michalik to Jensen.) III. FREESCALE'S PRODUCTION OF ITS RTL CODE WAS PROPERLY DONE PURSUANT TO THE TERMS OF THE PARTIES' PROTECTIVE ORDER. The Stipulated Protective Order that ProMOS and Freescale negotiated and by which both parties agreed to be bound, provides a framework for the production of computer code. As ProMOS confirms in its motion, any code must be produced on a non-networked laptop located in the offices of the producing party's Outside Counsel. Freescale's RTL code, which basically provides a recipe from which all of its products can be immediately manufactured, is among Freescale's most highly-sensitive information. If the code fell into the hands of any of Freescale's competitors, they would be able to manufacture products identical to Freescale's. (Ex. E, Declaration of Michael Snyder.) Freescale would not have voluntarily entered into the Protective Order without the RTL protections found in Paragraph 4. During the

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negotiation process, ProMOS never once suggested that Freescale's RTL code (which ProMOS knew it would seek in discovery) would not be subject to Paragraph 4. A. ProMOS Knew And Agreed That RTL Code Is Computer Code Protected By Paragraph 4 Of The Protective Order.

Particularly disturbing about ProMOS's comments on this point is that ProMOS knew that Freescale considered RTL code to be covered by Paragraph 4 and then subsequently agreed to this provision. Specifically, in response to a direct question from counsel for ProMOS during the parties' negotiations of the Protective Order terms, counsel for Freescale advised that RTL code is to be protected by Paragraph 4 of the Protective Order. ProMOS subsequently agreed to those terms, and the parties then submitted the Stipulated Protective Order to the Court for entry. Moreover, during the negotiation process, ProMOS never once suggested that

Freescale's RTL code (which ProMOS knew it would seek in discovery) would not be subject to Paragraph 4. B. As The Parties Previously Acknowledged, RTL Code Is "Computer Code" Covered By Paragraph 4 Of The Protective Order.

Not happy with the deal it struck, ProMOS now attempts to miscast Freescale's "RTL code" as "RTL documentation" so as to avoid the protections provided Freescale by Paragraph 4 of the Protective Order. But ProMOS's McAlexander declaration does not

affirmatively state that RTL code is not "computer code." (See Ex. E to ProMOS's motion at ¶ 6.) If that were the case, ProMOS would have submitted a declaration explicitly stating so. Instead, McAlexander draws a distinction between RTL, which he alleges merely describes the architecture of a circuit but does not instruct a computer to do anything, and "computer code," which he alleges does instruct the computer to perform some function. Based on this carefullyworded assertion, ProMOS asserts that:

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On its face, Paragraph 4 applies only to "computer code" and therefore has no applicability to RTL documentation, which merely contains information about the design of the circuit and unlike computer code, does not instruct the computer to perform any functions. (Id. at 7.) Paragraph 4 explicitly applies to "source, object, machine, or other such computer code." (Ex. F, Excerpt from Stipulated Protective Order.) ProMOS's argument here suffers from two fatal flaws. First, Paragraph 4 is not limited to code that can "instruct the computer to perform some function." Thus, other types of computer code are equally covered by this

Paragraph. Second, under ProMOS's contention, source code and object code also would be excluded from Paragraph 4, despite their explicit identification in that Paragraph. Source code is a generic term that describes a series of instructions drafted in some human-readable programming language. (See Ex. G, Webster's Dictionary Of Computer Terms at 481; Ex. H, Barron's Dictionary of Computer and Internet Terms at 350; Ex. I, The Computer Glossary at 477.) In order for a computer to use source code, the code must first be converted (e.g., using a compiler) into a file that the computer can understand. (Id.) When source code is compiled, object code (which is also specifically identified in Paragraph 4) results. (See Ex. I.) Object code is then combined with other things and linked together in order to produce the machine code (also in Paragraph 4) that actually instructs the computer. (See Ex. H.) Thus, given that source and object code, like RTL code, do not actually "instruct the computer to perform some function," ProMOS's position that any code produced under Paragraph 4 must "instruct the computer to perform some function" excludes both the specifically-identified source code and object code and thus must be wrong. RTL code is part of a class of programming languages called hardware description language ("HDL") that is used to design circuits that will eventually be fabricated on - 14 -

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a semiconductor chip. (Ex. E, Snyder Declaration; Ex. J, The IEEE Standard Dictionary of Electrical and Electronics Terms at 895.) Like source code, which is expressly covered by Paragraph 4 of the Stipulated Protective Order, RTL code also is a type of human-readable source code. (Ex E.) RTL code, like other types of source code, must be converted (e.g., using a synthesis tool) into a form that a computer can understand. (Id.) Accordingly, RTL code is source code (and "other computer code") and is properly produced pursuant to the terms of Paragraph 4. C. ProMOS's Own Letters Use the Term "RTL Code."

That RTL code is "code" and not merely "documentation" is confirmed in letters written by ProMOS's attorneys where the terms are used interchangeably. In an August 3, 2007 letter, ProMOS uses the terms "RTL code" and "RTL documentation" interchangeably. (Ex. K, Aug. 3, 2007 letter from Cook to Ferguson & Feeling.) Similarly, in an August 30, 2007 letter, ProMOS again uses the terms interchangeably. (Ex. L, Aug. 30, 2007 letter from Cook to Ferguson.) IV. PROMOS'S 30(B)(6) TOPICS SUFFER THE SAME FLAW AS ITS DISCOVERY REQUESTS, AND DEPOSITIONS SHOULD BE CONDUCTED IN THE MOST REASONABLE LOCATION IN THE U.S. ProMOS asserts that "Freescale has twice refused to appear for a Rule 30(b)(6) deposition in Delaware first noticed by ProMOS on July 3, 2007 for the purpose of exploring the types of technical documents maintained by Freescale for the accused products." (D.I. 29 at 2.) ProMOS leaves out, however, that its Rule 30(b)(6) deposition notice had the same overly broad reach as its document requests, seeking testimony on virtually every Freescale product made since 2000. In addition, ProMOS left out the fact that it sought testimony not only on the types

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of documents, but also on technical aspects (e.g., vague and undefined "features") of the Freescale products. Freescale asked ProMOS to clarify and narrow its topics, both in terms of the products and the type of testimony so that Freescale could identify appropriate responsive witnesses. ProMOS, however, refused to substantively discuss Freescale's request until the July 20 meet-and-confer teleconference. At that time, ProMOS agreed to limit the scope to obtaining basic information about the types of technical documents maintained by Freescale. Freescale agreed to make witnesses available to testify regarding the narrowed scope as soon as possible given witness and counsel's schedules, and notified ProMOS on August 3 that it could make a witness available for a deposition on August 15 in Austin, Texas where the witness resides. Because both parties are obligated to produce their witnesses in the United States, Freescale has repeatedly suggested that depositions be taken in whatever location in the U.S. that is most reasonable under the circumstances of a particular deposition. Based on Freescale's reasonableness approach, Freescale offered to produce this particular 30(b)(6) witness in Austin, Texas, which Freescale felt was reasonable because the witness lives there and because counsel for both parties already were scheduled to be in Dallas (a short flight away) for a settlement conference on August 17. ProMOS, on the other hand, insists upon Freescale producing its witness in Delaware, even though that would require everyone attending the deposition--the witness and both sets of counsel--to travel to Delaware. ProMOS would only agree to travel to Austin if Freescale agrees to travel to Taiwan for all of ProMOS's depositions (an approach ProMOS calls "even-handed"), even though ProMOS elected to sue Freescale in the United States.

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In any event, notwithstanding ProMOS's statements to the contrary, Freescale did offer ProMOS the opportunity to depose a 30(b)(6) witness on "the types of technical documents maintained by Freescale for the accused products." Because ProMOS was dissatisfied with the location, it declined to take the deposition. If ProMOS were truly interested in the information as its motion suggests, it already would have conducted the deposition. Instead, ProMOS chose to assert that Freescale was the party that was unwilling to proceed in an apparent attempt to create a discovery dispute. Freescale stands ready to make a 30(b)(6) witness available to provide ProMOS information on the types of technical documents at Freescale at a location in the U.S. that is reasonable under the circumstances. Contrary to ProMOS's position, this location may not always be a location where everyone attending the deposition would need to travel. Indeed, Freescale has repeatedly told ProMOS that Freescale would consider taking depositions of ProMOS Taiwanese witnesses in Washington, D.C., where ProMOS' counsel reside, rather than make the witness (who already has to fly, so it's just a question of where he or she lands) and both sets of counsel always travel to Delaware. Moreover, last week Freescale offered to produce its 30(b)(6) Austin-based witness in Dallas at or near the time of the October 3 Markman hearing or the October 12 settlement conference in the Texas case since counsel for both parties already will be in the Dallas area. ProMOS has not responded to this offer. V. ANY DELAY IN OBTAINING DISCOVERY WAS SELFINFLICTED AND PROMOS'S REQUEST FOR SANCTIONS SHOULD BE DENIED. ProMOS's request for sanctions for what it alleges is "dilatory conduct" by Freescale should be denied, because any delay ProMOS experienced was self-inflicted. For months, Freescale informed ProMOS that its requests were overly broad, and suggested two ways to narrow the requests, yet ProMOS did nothing. On July 6, ProMOS finally provided a - 17 -

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complete list of accused products, and since then, Freescale has diligently collected and produced additional relevant documents. Any delay that ProMOS experienced in obtaining discovery was self-inflicted, and ProMOS's request for sanctions should be denied. CONCLUSION Freescale has produced all the technical documents it has for the circuits that are relevant to the Chan patents; Freescale is currently producing the damages-related discovery that ProMOS requested; Freescale's production of its RTL code pursuant to Paragraph 4 of the Protective Order was proper; and Freescale has offered a 30(b)(6) deponent. Thus, ProMOS's motion should be denied. MORRIS, NICHOLS, ARSHT & TUNNELL LLP

OF COUNSEL: David L. Witcoff Kevin P. Ferguson John M. Michalik JONES DAY 77 West Wacker Chicago, IL 60601-1692 312.782.3939 F. Drexel Feeling JONES DAY North Point 901 Lakeside Avenue Cleveland, OH 44114-1190 216.586.3939 Dated: September 10, 2007
1230662

/s/ James W. Parrett Mary B. Graham (#2256) James W. Parrett, Jr. (#4292) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899-1347 302.658.9200 Attorneys for Freescale Semiconductor, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on September 10, 2007, I caused the foregoing to be electronically filed with the Clerk of the Court using CM/ECF which will send electronic notification of such filing to the following:

John G. Day, Esquire Steven J. Balick, Esquire ASHBY & GEDDES

Additionally, I hereby certify that true and correct copies of the foregoing were caused to be served on September 10, 2007 upon the following individuals in the manner indicated: BY E-MAIL AND HAND DELIVERY John G. Day, Esquire Steven J. Balick, Esquire ASHBY & GEDDES 500 Delaware Avenue, 8th Floor Wilmington, DE 19899 [email protected] [email protected] BY E-MAIL Steven J. Routh, Esquire HOGAN & HARTSON LLP [email protected] William H. Wright, Esquire HOGAN & HARTSON LLP [email protected] William C. Gooding, Esquire GOODING & CRITTENDEN, L.L.P. [email protected]

BY E-MAIL AND FEDERAL EXPRESS (FOR WEDNESDAY DELIVERY) Sten A. Jensen, Esquire HOGAN & HARTSON LLP 555 Thirteenth Street, NW Washington, DC 20004 [email protected]

/S/ James W. Parrett, Jr. James W. Parrett, Jr. (#4292)

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JONES DAY
77 W EST W ACKER · CHICAGO, ILLINOIS 60601-1692 TELEPHONE: (312) 782-3939 · FACSIMILE: (312) 782-8585

Direct Number: (312) 269-4366 [email protected]

JP239140 878247-615013

July 10, 2007

VIA EMAIL Sten A. Jensen, Esq. Hogan & Hartson LLP 555 Thirteenth Street, NW Washington, DC 20004 [email protected] Re: Dear Sten: I am writing with regard to ProMOS' Motion to Compel filed last Friday night and the issue of where discovery stands for both Freescale and ProMOS. As Freescale advised ProMOS shortly before ProMOS filed its motion, ProMOS misstated Freescale's position with regard to ProMOS' Chan-related discovery requests. That is precisely why we suggested conducting a proper meet-and-confer, but ProMOS unfortunately ignored this suggestion and filed its motion anyway. Freescale's position is basic. ProMOS is seeking document discovery that is exceptionally broad and burdensome, both in terms of the scope of products and the breadth of documents related to those products. Freescale's position from the outset has been that there needs to be a narrowing in both scope and breadth of that discovery. ProMOS has not seriously disputed that its requests are overbroad, and indeed its motion effectively acknowledges as much. ProMOS' motion, however, continues to misstate Freescale's discovery position. For example, Freescale has never "suggested," as ProMOS asserts, that ProMOS must provide infringement contentions before Freescale would produce technical documents related to Chanaccused products. To the contrary, Freescale repeatedly said that it would work with ProMOS to provide any documents ProMOS reasonably requested pertaining to the Chan patents, and asked ProMOS to tell us precisely what documents it wanted. In this regard, Freescale asked ProMOS to either: (1) narrow its definition of "Freescale Products" to some workable definition even arguably related to the Chan patents' claims, rather than seeking discovery on every product Freescale makes that contains, uses, works with or relies in any way on a cache memory (which Steve Routh acknowledged during our May 23 meet-and-confer call was much broader than the inventions claimed in the Chan patents), or (2) specifically identify products that ProMOS
CHI-1596888v3
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ProMOS Technologies v. Freescale Semiconductor, Inc.

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July 10, 2007 Page 2 believes infringe the Chan patents. Similarly, Freescale also asked ProMOS to specify the types of documents it really wanted relating to the Chan-accused products, rather than seeking virtually every document in Freescale's possession as literally requested in ProMOS' document requests (see, e.g., document request nos. 6-10 and 16-20 [seeking every document containing the name of any employee or third-party who ever had any involvement whatsoever with any accused product] and document request no. 38 [seeking literally every document pertaining to each accused product]). Although ProMOS stated in each of our discussions that they would consider and respond to Freescale's requests to narrow its discovery requests; however, it simply repeated its earlier demands and then filed its motion to compel instead. Moreover, ProMOS' identification of more than 100 additional accused products shortly before filing its motion to compel obviously does not comply with its meet-and-confer obligations under the Local Rules. It is for these reasons (as well as those detailed below) that Freescale requests that ProMOS withdraw its motion until such time as the parties have properly conferred and determined whether any dispute does, in fact, exist that cannot be privately resolved between the parties. We also were surprised to see in ProMOS' motion the unsupported assertion that it was "willing to allow Freescale to make a limited production of critical technical documents relating to its other cache memory products... ." This is contrary to all of ProMOS' previous demands that Freescale produce "all documents" responsive to several dozen requests for production (see, e.g., section (2) on page 3 of your May 18, 2007 letter and section A(2) on page 4 of your June 25, 2007 letter). In fact, ProMOS' motion is the first effort by ProMOS to define a set of "critical technical documents" sufficient to allow it to investigate its infringement allegations. We view this as a positive step and is precisely what we requested almost two months ago. As promised during our July 5 meet-and-confer, one day in advance of ProMOS' motion to compel, Freescale has already produced the requested critical technical documents for each of the four product families which ProMOS deemed "representative" and for which ProMOS generated infringement claim charts. Additionally, and once again contrary to the representations in ProMOS' motion, Freescale has also produced critical technical documents for 5 other Freescale product families specifically accused in ProMOS' interrogatory responses, including the Coldfire V5 and V5E processor core, the e600 processor core, the i.MX31 processor, the Power Quicc II processor, and the Power Quicc III processor product families. Before making additional demands and accusations, please review the technical materials already produced for the previously-identified accused "representative" products, as ProMOS promised it would during our July 5 meet-and-confer, and let me know if ProMOS believes that additional information is needed to complete its infringement analysis. From the overbreadth of newly accused products (e.g., the MPC 5533 and 5534 processor products do not even "use, incorporate, work with or rely upon cache memory"), it appears that ProMOS has still not conducted any, let alone a good faith, review of the materials publicly available on Freescale's website to either: (1) narrow its definition of "Freescale Products" to something less than any product which contains, uses, works with or relies in any way on a cache
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July 10, 2007 Page 3 memory or (2) even identify products that at least contain cache memories. Nevertheless, even through ProMOS apparently refuses to accept its burden of properly defining the discovery it seeks, in an effort to resolve this matter and move forward with the case, Freescale is willing to produce critical technical documents for all relevant products meeting the following criteria related to the claimed inventions: Criteria for Chan `709 -- (a) a first and second port; (b) a write register between the first port and the random access memory and between the first port and the second port; and (c) a write-back register between the random access memory and the second port. Criteria for Chan `241 -- (a) A dual port cache memory having a first port connected to a first data bus and a second port connected to a second data bus; and (b) A cache controller connected to the dual port cache memory, the cache controller having a first port connected to a first address bus and a second port connected to a second address bus such that the dual port cache memory and the cache controller are connected in parallel between a host processor and system memory. Please let us know if these criteria are agreeable and Freescale will produce critical technical documents related to all qualifying products. In a related matter, Freescale does not understand what ProMOS is seeking by way of the extremely broad topics in ProMOS' recent Rule 30(b)(6) notice. Freescale has repeatedly informed ProMOS that it generates three categories of documents regarding its products: (i) publicly available product manuals, (ii) proprietary Freescale circuit/subsystem workbooks/manuals, and (iii) RTL code. If this is what ProMOS is seeking through the noticed deposition, please explain why such a deposition is necessary because we do not understand why it is necessary to conduct a deposition about an attorney's representation. If ProMOS is seeking more than this confirmation, then please specifically identify the additional information sought so Freescale can better assess the deposition request and the witnesses who would be appropriate. Finally, ProMOS' motion complaining of a failure to produce documents is ironic given ProMOS' own failure to produce virtually any documents relevant to Freescale's document requests, including but not limited to: - Documents concerning invention disclosures (and drafts of same), engineering/laboratory/inventor notebooks, drawings/sketches, prototypes, notes, schematics, experimental or test results, computer modeling, correspondence, project status reports, e-mails, or other documents memorializing any portion of the conception/development/reduction to practice process;

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July 10, 2007 Page 4 - Documents sufficient to identify each person that worked on the project or projects that led to the development of the inventions claimed in the Chan patents and documents sufficient to identify each person's contribution to the project; - Internal ProMOS, Mosel and Mosel Vitelic file histories and other correspondence regarding the filing and prosecution of the Chan patents; - Documents concerning communication between ProMOS and Mosel Vitelic regarding the Chan patents and the patent coverage or scope of patent claims; - Documents concerning valuation of the Chan patents, claim construction, prior art, patentability, novelty, validity, enforceability, infringement and/or the subject matter disclosed or claimed by the Chan patents that were generated by ProMOS in connection with its due dilligence investigation performed in its dealings with Mosel Vitelic and its acquisition of an interest in the Chan patents; and - Reverse engineering reports, test reports, or studies of Freescale products and other documents concerning the decision to file suit. We requested these documents three months ago and continue to prefer to avoid involving the Court, but we understandably cannot afford to wait much longer. Please tell us when we will receive the documents identified above. Given the pending deadline for Freescale to respond to the motion to compel, please indicate if the proposed compromise is acceptable and otherwise respond to the requests of this letter by noon Thursday, July 12, 2007.

Very truly yours,

Kevin P. Ferguson

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EXHIBIT I

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