Case 5:05-cv-00334-RMW Document 2317 Filed 09/30/2008 Page 1 of 11

1 GREGORY P. STONE (#78329)

KEITH HAMILTON (#252115)
2 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue, 35th Floor
3 Los Angeles, CA 90071-1560
Telephone: (213) 683-9100
4 Facsimile: (213) 687-3702
E-mail: gregory.stone@mto.com;
5 keith.hamilton@mto.com
6 BURTON A. GROSS (#166285)
CAROLYN HOECKER LUEDTKE (#207976)
7 MIRIAM KIM (#238230)
MUNGER, TOLLES & OLSON LLP
8 560 Mission Street, 27th Floor
San Francisco, CA 94105-2907
9 Telephone: (415) 512-4000
Facsimile: (415) 512-4077
10 E-mail: burton.gross@mto.com;
carolyn.luedtke@mto.com;
11 miriam.kim@mto.com
12
Attorneys for Plaintiff RAMBUS INC.
13
UNITED STATES DISTRICT COURT
14
NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
15

16 RAMBUS INC., CASE NO.: C 05-00334 RMW

17 Plaintiff, RAMBUS’S NOTICE OF LODGING OF
TRANSCRIPT OF VIDEO TESTIMONY
18 vs. OF CHARLES DONOHOE
19 HYNIX SEMICONDUCTOR INC., et al.,
20 Defendants. Trial Date: September 22, 2008
Courtroom: 6
21 Judge: Hon. Ronald M. Whyte
22 RAMBUS INC., CASE NO.: C 05-02298 RMW
23 Plaintiff,
24 vs.
25 SAMSUNG ELECTRONICS CO., LTD.,
et al.,
26
Defendants.
27

28
RAMBUS’S NOTICE OF LODGING OF TRANSCRIPT
6028117.1 OF VIDEO TESTIMONY OF CHARLES DONOHOE;
CASE NOS. 05-00334 RMW; 05-02298 RMW
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1 Rambus hereby gives notice that it is lodging, concurrently herewith, a transcript of the
2 video clips of the testimony of Charles Donohoe played in Court on September 29, 2008.
3 The video clips were taken from the following deposition transcripts:
4 Deposition of Charles Donohoe, taken on February 6, 2001, attached hereto as Exhibit A.
5 Deposition of Charles Donohoe, taken on May 14, 2008, attached hereto as Exhibit B.
6 This Notice is being filed with the Court and will be appended to the official trial
7 transcripts and, pursuant to the parties’ agreement, will become part of the official trial transcript.
8

9 DATED: September 30, 2008 MUNGER, TOLLES & OLSON LLP

10

11

12 By: /s/ Carolyn Hoecker Luedtke

Carolyn Hoecker Luedtke
13
Attorneys for Plaintiff RAMBUS INC.
14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
RAMBUS’S NOTICE OF LODGING OF TRANSCRIPT
6028117.1 -1- OF VIDEO TESTIMONY OF CHARLES DONOHOE;
CASE NOS. 05-00334 RMW; 05-02298 RMW
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Exhibit A
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Video Testimony of Charles Donohoe (2/6/01 Deposition)

Played 9/29/2008

8:22 Q. Could you please state your full name

9: 1 for the record?
9: 2 A. My name is Charles Richard Donohoe.
9: 3 Q. Who do you work for, Mr. Donohoe?
9: 4 A. I work for Samsung Electronics Co.,
9: 5 Limited, a company of South Korea.

11:15 Q. Mr. Donohoe, you are aware that you have

11:16 been designated by Samsung Electronics Company,
11:17 Limited, and Samsung Semiconductor, Inc., to give
11:18 testimony on their behalf today?
11:19 A. Yes, I am.

37: 1 Q. Did Rambus ever propose or suggest that

37: 2 Samsung not support the DDR technology?
37: 3 A. They felt that the RDRAM technology
37: 4 was -- their Rambus technology was better than that
37: 5 and, of course, what they did here is they skewed the
37: 6 royalty demand for DDR, such that we would not move
37: 7 into that area.
37: 8 Their objective was to promote and
37: 9 develop their technology to the exclusion of the DDR
37:10 technology or future generations of technology. They
37:11 refused to license us on future generations of
37:12 technology other than the DDR.

85:21 First of all, do you have Exhibit 7 in

85:22 front of you, sir?
86: 1 A. I do, yeah.

86:14 Q. So ultimately there was a substantial

86:15 amount of negotiation between Samsung and Rambus with
86:16 regard to this license agreement; would that be fair?
86:17 A. Yes. We had maybe three or four
86:18 meetings after the initial presentation.

87: 1 Q. Let me ask what your involvement was in

87: 2 those negotiations.
87: 3 A. I was perhaps lead negotiator in the
87: 4 negotiation. I was asked by the head of the
87: 5 semiconductor business to take part in the

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87: 6 negotiation.
87: 7 Our direct interface in the negotiation
87: 8 was J. Shim, who is head of our patent department in
87: 9 Kiheung. I'm in the corporate office in Seoul,
87:10 Korea, that's where my office is, so sometimes I get
87:11 involved in patent license negotiations, and
87:12 sometimes I don't, but this one here the president of
87:13 the company asked me to be involved.
87:14 Q. And did Mr. Shim have the day-to-day
87:15 responsibility for conducting the negotiations with
87:16 Rambus?
87:17 A. Yeah. He had -- he communicated with
87:18 Mr. Steinberg on a day-to-day basis, that's correct.
87:19 Q. And were there meetings between Mr. Shim
87:20 and representatives of Rambus that you weren't
87:21 present at?
87:22 A. Yes. There was one in August, that I'm
88: 1 aware of. The meetings in September and October, I
88: 2 was at.
88: 3 Q. But there was at least one meeting then
88: 4 that you were not present at?
88: 5 A. That's right. Of course, I was not at
88: 6 the very beginning meeting, the introductory meeting.
88: 7 Q. The meeting with Mr. Tate that you
88: 8 described earlier?
88: 9 A. With president Lee. It was after that
88:10 that Mr. Lee asked me to become involved.
88:11 Q. Were there also telephone discussions as
88:12 part of these negotiations?
88:13 A. Probably, yes. Yes.
88:14 Q. Did you participate in those telephone
88:15 negotiations?
88:16 A. I think I only had one telephone
88:17 conversation with Neil Steinberg, yes.
88:18 Q. Were there other telephone negotiations
88:19 between Mr. Shim and representatives of Rambus that
88:20 you did not personally participate in?
88:21 A. That's correct, but they were at my
88:22 direction, basically, yes.
89: 1 Q. And in addition were there letters and
89: 2 drafts exchanged between the parties?
89: 3 A. Yes.
89: 4 Q. And did you receive copies of all the
89: 5 letters and drafts that were received between the
89: 6 parties?
89: 7 A. I was supposed to, yes.

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89: 8 Q. So if Mr. Shim was keeping you updated,

89: 9 as he was supposed to, you would have received
89:10 copies; correct?
89:11 A. Yes.

99:16 Q. Was there any provision other than the

99:17 royalty rates, which were stated by Rambus to be
99:18 nonnegotiable?
99:19 A. Yes. I believe that we wanted an
99:20 overall peace agreement with Rambus. A license
99:21 agreement is really only an agreement not to sue, and
99:22 so in the term of the agreement we wanted to have a
100: Page 100
100: 1 complete peace accord with Rambus, and so we wanted
100: 2 all products covered by that agreement.
100: 3 And Rambus wanted only certain
100: 4 specifically identifiable products to be covered by
100: 5 the agreement, and that if we changed the products
100: 6 down the road then they would not be under the
100: 7 agreement.
100: 8 So that was one that Rambus would not
100: 9 budge on.

Total Length - 00:05:06

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Exhibit B
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Video Testimony of Charles Donohoe (5/14/2008 Deposition)

Played 9/29/2008

8:13 Q Would you state your name for the record.

8:14 A It's Charles Richard Donohoe.

9:15 Q Did you employ litigation counsel to assist

9:16 you in following the Rambus litigation in August of
9:17 2000?
9:18 A Yes. At some point it would have been
9:19 maybe the latter part of August we retained counsel
9:20 for that purpose, yes.
9:21 Q Who did you retain?
9:22 A David Healey at Weil, Gotshal & Manges, and
9:23 Clifford Chance in Germany.

63:15 Q (BY MS. LUEDTKE) Mr. Donohoe, you were the

63:16 lead negotiator for Samsung on the 2000 Rambus
63:17 license agreement, right?
63:18 A Yes.
63:19 Q Did anybody else from Samsung participate
63:20 with you in those negotiations?
63:21 A Sure.
63:22 Q Who would that be?
63:23 A Jay Shim and Mr. Gwangho Kim.

74:24 Q Going back to your recollection of the

74:25 September 21st, 2000 licensing meeting, do you
75: 1 recall what Samsung's position was with respect to
75: 2 whether the license agreement should cover DDR2 or
75: 3 other future generations of products after DDR
75: 4 SDRAM?

75: 7 THE WITNESS: My recollection was is that

75: 8 there was discussion over future DRAM generations,
75: 9 and that Rambus did not want to cover future DRAM
75:10 generations, this current DRAM generations. But now
75:11 I haven't read that part of this.
75:12 Q (BY MS. LUEDTKE) I'm just asking about
75:13 your -- you can put that exhibit aside. I'm asking
75:14 about your recollection as you have it now.
75:15 A That's my recollection, yes.
75:16 Q Your recollection as you sit here now of
75:17 this September licensing meeting at Rambus's offices
75:18 was that Rambus told you they didn't want the

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75:19 license to cover future DRAM generations, right?

75:20 A That's right.
75:21 Q What was Samsung's position?
75:22 A Well, we wanted it to cover future
75:23 generations -- generally the approach that Samsung
75:24 likes to take with its licensing is that we have a
75:25 complete piece accord for the term of the agreement.
76: 1 And at the end of the term, of course, then
76: 2 negotiate a renewal agreement. But we don't want to
76: 3 have a continuing series of negotiations as new
76: 4 products come on the market.
76: 5 And so in any event, the Rambus approach
76: 6 was different from that. And so we weren't used to
76: 7 that. This is actually the first time I think that
76: 8 we ever had a, a negotiation framed in this fashion,
76: 9 and that was part of the negotiation.

81:15 Have you seen this document before?

81:16 A Yes.
81:17 Q Does it appear to be a term sheet proposal
81:18 sent by Jay Shim to Neil Steinberg on October 6th,
81:19 2000?
81:20 A It is.
81:21 Q Did you see this document on or around that
81:22 time?
81:23 A Yes.
81:24 Q Did you see drafts of this document before
81:25 it was sent to Mr. Steinberg?
82: 1 A Yes.
82: 2 Q You would have reviewed it before it was
82: 3 sent by Mr. Shim?
82: 4 A Exactly, yes.
82: 5 Q He would not have sent it without your
82: 6 permission?
82: 7 A That's correct.

96: 3 Q In or around October 16th, 2000, did you

96: 4 see the suggested edits and comments provided by
96: 5 Mr. Steinberg in Exhibit 9083?
96: 6 A I might have. There was a time period just
96: 7 before the agreement was finalized when I didn't see
96: 8 some of the changes. And so I don't know whether
96: 9 this is one of those where I didn't see it or not.
96:10 Q There was a time period where Mr. Shim
96:11 handled the changes without your consultation?
96:12 A Yes, apparently.

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97:21 Q Now you said that at some time period

97:22 something in the signed executed license agreement
97:23 some language changed that you had not seen prior to
97:24 its execution. What language in the license
97:25 agreement changed that you didn't see until after it
97:
98: 1 had been signed?

98:12 THE WITNESS: Let me just take a look here

98:13 at the agreement.
98:14 I don't see in this agreement the
98:15 provisions for adjusting the royalty based on the
98:16 outcome of the litigations. Is that in here?
98:17 Q (BY MS. LUEDTKE) I can direct your
98:18 attention to section 3.8 is the most favored license
98:19 clause if that's where you think it would reside.
98:20 A Okay. Now --

98:24 THE WITNESS: Okay. My recollection was,

98:25 and I can't pinpoint it now, but that 3.8 and --
99: 1 section 3.8 and 3.9 which I had drafted were
99: 2 different than what's in the agreement. But I don't
99: 3 recall now what the difference was. That's all.
99: 4 Q (BY MS. LUEDTKE) Did you send any of the
99: 5 drafts you prepared to Rambus?
99: 6 A No. I mean -- what I prepared was given to
99: 7 Mr. Shim and then to communicate to Rambus. So I
99: 8 assume that he gave it to Rambus.
99: 9 Q But you don't believe that what you drafted
99:10 that didn't make it into the final agreement was
99:11 ever communicated to Rambus?

99:14 THE WITNESS: Oh, I believe it was

99:15 communicated to Rambus. It was just maybe changed.
99:16 I don't know. It's a black hole to me. I sent this
99:17 to Mr. Shim and it seems -- I can't even remember
99:18 what the differences were. But at the time I
99:19 remember there were differences when I read the
99:20 final agreement, so I don't know what the process
99:21 was for making the change.
99:22 Q (BY MS. LUEDTKE) What's missing from
99:23 section 3.8 and?
99:24 A I just told you I don't know, I don't know.
99:25 I don't know if it's missing or changed.

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100:17 Q So if you look at the term sheet that's

100:18 Exhibit 9080, paragraph 8, the most favored nations
100:19 clause communicated therein, it talks in the first
100:20 instance in No. 1 about the lowest possible royalty
100:21 rates, and the second instance it talks about lower
100:22 royalty terms.
100:23 Do you know whether those provisions for
100:24 lower royalty terms were included in the draft that
100:25 you initially gave to Mr. Shim?
101: 1 A Yes.

101: 4 THE WITNESS: Yes, they are in there, yeah.

101: 5 I mean it seems to me that what I had said, what I
101: 6 drafted for Mr. Shim was -- is in this final
101: 7 agreement. But my recollection at the time was
101: 8 there was some difference. I don't recall what it
101: 9 is.

133: 1 Q (BY MS. LUEDTKE) Do you recall at any

133: 2 point after this meeting any discussion about
133: 3 Samsung proposing any automatic renewal provision
133: 4 for the license agreement?
133: 5 A I don't recall that. I think that Samsung
133: 6 would not have -- Samsung would not have wanted an
133: 7 exact extension of the agreement. I think they
133: 8 would have wanted to have been able to renegotiate
133: 9 the economic terms of the agreement. So I don't
133:10 think they asked for an out and out extension of the
133:11 agreement.

242:19 Q (BY MS. LUEDTKE) Did you, in your

242:20 licensing work for Samsung, ever use a reverse
242:21 engineering study purchased from an outside company?
242:22 A Yes.
242:23 Q You use it to look for prior art or
242:24 determine whether there was infringement, anything
242:25 else?

243: 8 THE WITNESS: Nothing else.

Total Length - 00:10:08

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