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(Reuters) – Stocks treaded water on Thursday after the previous day’s massive gains, but traders worried that recent strong data could set the market up for a selloff should Friday’s jobs report fall short of hopes.

Both the Dow and the S&P 500 dipped and the Nasdaq ended with a slight gain following Wednesday’s rally of more than 4 percent on an agreement from central banks to provide cheap dollar loans to struggling European banks.

Sentiment was underpinned by stronger-than-expected figures on U.S. factory activity, which came one day after private-sector payroll data also exceeded forecasts. Further gains could be sparked by a significant jump in November payrolls.

“At this point in time we are definitely building for a better payrolls number,” said David Lutz, a trader at Stifel Nicolaus Capital Markets in Baltimore.

The U.S. economy is expected to have added 122,000 jobs in November. Some investors think even a number slightly better than that from the Labor Department won’t be enough to justify more buying.

“I can’t believe people are getting excited about 150,000 (new jobs) four years into this economic malaise,” said Chad Morganlander, portfolio manager at Stifel, Nicolaus & Co in Florham Park, New Jersey.

Despite the importance of the payrolls figure, the market will still focus on the borrowing costs of euro-zone nations. Spanish and French government bond yields fell after well-bid auctions on Thursday, but relief may be brief with no solution for the euro zone’s debt crisis in sight.

The financial sector, the strongest gainer on Wednesday, gave back some of its gains. The S&P’s financial index .GSPF slid 0.95 percent.

“Until there’s a proper resolution among European policy makers, wild fluctuations in equity markets will continue forward,” Morganlander said.

The Dow Jones industrial average .DJI fell 25.65 points, or 0.21 percent, to 12,020.03. The S&P 500 .SPX lost 2.37 points, or 0.19 percent, to 1,244.59. The Nasdaq Composite .IXIC gained 5.86 points, or 0.22 percent, to 2,626.20.

All three indexes climbed more than 4 percent in Wednesday’s broad rally on heavy volume, with the Dow industrials gaining almost 500 points.

In the latest better-than-expected data, the pace of growth in the U.S. manufacturing sector picked up in November to its strongest since June and new orders rose, according to the Institute for Supply Management.

However, new claims for unemployment insurance rose last week in a reminder that any healing in the country’s battered labor market will be slow.

Barnes & Noble Inc (BKS.N) plummeted 16.3 percent to $14.59 on more than twice its recent daily average volume after it reported a quarterly loss. The bookseller was hurt by the cost for keeping competitive with Amazon.com Inc (AMZN.O).

On the upside, Yahoo Inc (YHOO.O) gained 3.3 percent to $16.23 after news that Blackstone Group LP (BX.N) and Bain Capital, along with Asian partners, were preparing a bid for the Internet company.

US Airways Group Inc (LCC.N) jumped 4.7 percent to $4.94 after Barclays Capital upgraded its rating on the stock. [ID:nL4E7N126E] An index of airline stocks .XAL rose 1.8 percent.

About 6.8 billion shares traded on the New York Stock Exchange, NYSE Amex and Nasdaq, below the current daily average of 7.97 billion shares traded per day.

Declining stocks outnumbered advancing ones on the NYSE by a ratio of about 3 to 2, and despite the overall gains on the Nasdaq just under 7 shares fell for every four that rose.

(Reuters) – Republican presidential hopeful Herman Cain, battling allegations of infidelity, said on Wednesday he would decide whether to continue his campaign after a face-to-face talk with his wife.

While vowing not to end his candidacy over accusations he had a long-term affair, the former pizza company executive said a frank talk on Friday with Gloria, his wife of 43 years, would be a big part of a “reassessment” of his White House bid.

“I have talked to my wife many times since Monday about this situation. I have not talked to her about this face to face,” Cain told reporters after rallying supporters at his New Hampshire campaign headquarters in Manchester.

Once a frontrunner in the race to challenge President Barack Obama in 2012, Cain called recent reports that he had an affair with an Atlanta-area woman “character assassination” and “conviction in the court of public opinion.”

He has said he will decide within “several days” whether to stay in the race.

Earlier, at rallies in Ohio, Cain said most of his supporters were sticking with him despite the latest controversy, which came amid accusations he had sexually harassed a number of women. He accused his critics of trying to bring down his upstart White House bid.

“They want you to believe that with enough character assassination on me that I will drop out,” a defiant Cain said in Dayton, drawing a chorus of “boos” from the crowd.

Cain, who has denied the affair and harassment accusations, did not rule out other potential accusers emerging. “My career was in business for over 40 years. I have worked with thousands of people. I can’t possibly say that someone wont trump up another allegation. It just goes with the territory.”

Cain, 65, denies having an affair with Ginger White, who says their 13-year, on-and-off relationship began in the mid-1990s. He said he thought she was a friend and he was simply giving her financial assistance.

The candidate, who led the Republican race barely more than a month ago, has nosedived in polls after being hit by sexual harassment charges from four women and stumbling recently on the campaign trail.

He raised alarm among conservatives with confusing comments about abortion and badly fumbled a question on Libya policy.

A Reuters/Ipsos poll found Cain’s departure would do little to change the race, with his depleted support carved up among the field. Top rivals Mitt Romney and Newt Gingrich would gain the most, with bumps of about 3 percentage points each, while other contenders would pick up slightly less.

‘MORE CONVINCED’

The allegation of an affair came five weeks before Iowa kicks off the state nominating contests, giving Cain little time to resurrect his once high-flying campaign.

But he said on Wednesday there was “a groundswell of support” for his candidacy after White’s claims. The new disclosures have not sparked widespread defections.

Some of those in Ohio who came to hear Cain speak said they were willing to give the candidate a chance.

“I am more convinced than I ever was. I believed him and I am going to donate to him and vote for him,” said Christine Bolte, 46, a substitute teacher who is working as a cashier at Wal-Mart to help pay her bills.

In New Hampshire, which will hold a closely-watched primary contest in January, Cain said fundraising slumped the day the Ginger White scandal broke, but had started to bounce.

“As the week has gone on and this woman who has made these accusations has started to contradict herself, our fundraising has gone up,” he said.

White told ABC’s “Good Morning America” program that she remained in contact with Cain until last week.

“I’ve received gifts and money for the last 2-1/2 years, consistently,” White said, adding Cain also took her on several trips. But she said he sought nothing in return.

“This was not sex for cash,” White said.

ABC said White’s phone records for October and November show numerous text exchanges with Cain, including daily contact in early November as reports emerged of sexual harassment allegations from other women.

(Reuters) – Scotland’s National Portrait Gallery reopens on Thursday after a 17.6 million-pound ($27 million) renovation that finally fulfils the dreams of its architect when it first opened its doors 120 years ago.

It is the second multi-million pound artistic project to be completed in the Scottish capital this year – both on budget and on time.

The National Museum of Scotland reopened its doors in July in all its Victorian glory after a 47-million-pound makeover gave it a spectacular boost into the 21st century. The museum said more than a million visitors have passed through its doors since they reopened.

Portrait Gallery Director James Holloway and museum chief Gordon Rintoul both said the successful completion of the renovations was down to careful prior planning and sticking strictly to the plans and budgets.

This is in stark contrast to two other huge projects in Edinburgh: the Scottish national parliament which was years late and many millions over budget before opening in 1999, and a curtailed tram system under construction, which is also running years late and hugely over budget.

Gallery officials said the neo-Gothic sandstone building was the world’s first purpose-built portrait gallery when it opened on Queen Street in Edinburgh’s New Town in 1889 to the design of architect Sir Robert Rowand Anderson. But for more than a century much of the space was taken up as a museum store-house and offices, with art displays crammed into only a third of the building.

National Galleries director John Leighton told Reuters at a preview that the renovation had changed this dramatically.

“The portrait gallery now occupies the whole building for the first time,” he said. “We have opened the upper floors to provide 60 per cent more space.”

Holloway said the building had been “brought back to life… its life force is so exciting.” The number of galleries, including beautifully arched top floor spaces with natural light from ceiling windows, has jumped to 10 from only three, providing space for an additional 606 works of art.

The gallery’s collection comprises 3,000 paintings and sculptures and 25,000 prints and drawings. It also houses the national collection of photography with some 38,000 historic and modern photographs.

Seventeen new exhibitions run through the history of Scotland from the Reformation, the 18th century Enlightenment, Empire, modernity and the contemporary.

(Reuters) – U.S. group Hewlett-Packard has rolled out its first software using technology gained from its $12 billion acquisition of British group Autonomy, eight weeks after the deal closed.

The new platform processes unstructured information, such as telephone calls, emails and video, and structured data in databases, making all forms of information searchable, HP’s vice-president of information management, Mike Lynch, said.

Lynch, who founded Autonomy, said on Tuesday the launch showed the rationale behind the deal. “We believe fundamentally that information is moving away from the rows and columns of databases, which has powered the industry for 40 years.”

HP has started selling Autonomy’s technology, used by governments and multinationals, to small and medium-sized firms, he said.

It acquired Autonomy as part of a shift toward higher-margin software that was accelerated with the arrival of former chief executive Leo Apotheker.

Shareholders were less enthusiastic about Apotheker’s changes, resulting in his ousting in favor of former eBay boss Meg Whitman in September.

Lynch said he was relishing the opportunities available as part of the bigger group and, even after pocketing hundreds of millions of pounds from the deal, he was sticking around.

Many other Autonomy employees also received large payouts.

(Reuters Health) – The digital age has left men’s nether parts in a squeeze, if you believe the latest science on semen, laptops and wireless connections.

In a report in the venerable medical journal Fertility and Sterility, Argentinian scientists describe how they got semen samples from 29 healthy men, placed a few drops under a laptop connected to the Internet via Wi-Fi and then hit download.

Four hours later, the semen was, eh, well-done.

A quarter of the sperm were no longer swimming around, for instance, compared to just 14 percent from semen samples stored at the same temperature away from the computer.

And nine percent of the sperm showed DNA damage, three-fold more than the comparison samples.

The culprit? Electromagnetic radiation generated during wireless communication, say Conrado Avendano of Nascentis Medicina Reproductiva in Cordoba and colleagues.

“Our data suggest that the use of a laptop computer wirelessly connected to the internet and positioned near the male reproductive organs may decrease human sperm quality,” they write in their report.

“At present we do not know whether this effect is induced by all laptop computers connected by Wi-Fi to the internet or what use conditions heighten this effect.”

A separate test with a laptop that was on, but not wirelessly connected, found negligible EM radiation from the machine alone.

The findings fuel concerns raised by a few other research teams.

Some have found that radiation from cell phones creates feeble sperm in the lab, for example. And last year urologists described how a man’s sitting with a laptop balanced on his knees can crank up the temperature of his scrotum to levels that aren’t good for sperm. (See Reuters Health story of November 8, 2010, at reut.rs/gHmXpC.)

So between the heat and the radiation from today’s electronic devices, testicles would seem to be hard-pressed.

But that is not at all clear, said Dr. Robert Oates, who has managed to father two kids despite having both a laptop and an iPad.

The president of the Society for Male Reproduction and Urology, Oates told Reuters Health he doesn’t believe laptops are a significant threat to male reproductive health.

“This is not real-life biology, this is a completely artificial setting,” he said about the new study. “It is scientifically interesting, but to me it doesn’t have any human biological relevance.”

He added that so far, no study has ever looked at whether laptop use has any influence on fertility or pregnancy outcomes.

“Suddenly all of this angst is created for real-life actual persons that doesn’t have to be,” said Oates, also of Boston Medical Center.

According to the American Urological Association, nearly one in six couples in the US have trouble conceiving a baby, and about half the time the man is at the root of the problem.

While the impact of modern technology is still murky, lifestyle does matter, researchers say.

Earlier this month, a report in Fertility and Sterility showed that men who eat a diet rich in fruit and grains and low in red meat, alcohol and coffee have a better shot at getting their partner pregnant during fertility treatment. (See Reuters Health story of November 18, 2011, at reut.rs/v9bobG.)

“You should be keeping yourself healthy,” including staying lean, eating healthy foods, exercising, not taking drugs and not smoking, agreed Oates.

And for those laptop worries, he mused, “I don’t know how many people use laptops on their laps anyway.”

(Reuters) – One glance at the numbers for the first big weekend of holiday shopping and you might think Americans are flush with cash and spending it freely.

A survey from the National Retail Federation, an industry trade group, indicates that Americans said they spent $7.4 billion more from Thursday’s Thanksgiving through Sunday this year, compared with the same period in 2010. The news drove retail shares sharply higher and helped the U.S. stock market to rally.

But a deeper look at the data reveals it would be wrong to suggest that conspicuous consumption is back in any way. Experts warn that the report gives just a snapshot and should not be given too much weight.

“We just wouldn’t draw any firm conclusions from these numbers,” said Paul Ashworth, an economist at Capital Economics in Toronto.

Capital Economics has crunched weekly sales numbers from the International Council of Shopping Centers and found that holiday seasons that start strong tend to end weak.

In other words, consumers merely bring forward spending that they would have done later to take advantage of retailers slashing prices for “Black Friday,” the day after Thanksgiving that marks the beginning of the shopping season.

That would not be a surprise this year, with the unemployment rate stuck around 9 percent and wages struggling to keep up with inflation.

The spending data from the federation, compiled in an online survey by BIGresearch, showed that sales rose 16.4 percent overall. Inflation-adjusted hourly earnings, however, are down 1.6 percent in the 12 months through October and other figures indicate consumers have cut back on saving in recent months to keep up spending. U.S. consumer spending rose at an annual rate of 2.3 percent in the third quarter, the commerce department has said, while a different report showed that disposable income fell 2.1 percent over the same period.

Credit card use may well have made up the difference. A total of 27.3 percent of consumers surveyed by America’s Research Group said they used credit cards as their main method of purchase this weekend, up from 16.3 percent in 2010.

MasterCard said the number of transactions on its cards in the 24 hours known as Black Friday increased 17 percent from 2010. But what it did not say is how many of those transactions were made with credit cards and how many were on debit cards.

To be sure, declines in mortgage balances may have helped free up cash, as total consumer credit in the third quarter was 0.6 percent below the second-quarter level, the New York Federal Reserve said on Monday.

HOLIDAY ADJUSTMENT

One reason to be skeptical about the NRF data is that Black Friday appears to be a bigger event than it was even a few years ago. More stores participate and many opened at midnight or even earlier – during Thanksgiving Thursday – rather than waiting until 5 or 6 a.m. as they used to.

Those added shopping hours in peak season mean that year-on-year comparisons will be skewed.

And it could even distort the U.S. government’s measures of retail sales over the next two months, Ashworth said.

The monthly retail sales report, which includes sales of everything from clothing and cars to gasoline, is seasonally adjusted to strip out regular factors such as holiday shopping. But the government probably will not take changes in store opening hours or shopping habits into account.

Also, extra spending on gifts might have come at the expense of other spending, such as visits to restaurants.

“If people chose to spend more on holiday gifts but offset that by spending less on discretionary services like restaurants and movie tickets, the retail sales numbers will overstate the big picture,” Ian Shepherdson, chief U.S. economist at High Frequency Economics, said in a note.

Many experts expect consumers to go into a prolonged spending lull from now until close to Christmas, as they have in recent years.

“I think there is going to be hangover,” said independent analyst Brian Sozzi, who follows retail stocks. “You’re going to see that fatigue with the consumer.”

More data reports are already out or set to come that could help fill in the picture on consumer spending, but they have their own flaws.

ShopperTrak, which uses sensors in stores and malls to measure traffic and then interprets the data for retail clients, estimated that sales rose 6.6 percent on Black Friday.

But that data is based on only one day, a day that has become less important as more people shop on Thanksgiving Day or online.

Last year, the NRF and ShopperTrak put out post-Black Friday reports that painted vastly different pictures, with ShopperTrak showing a 0.3 percent increase in sales for Friday alone, while NRF showed a 9.2 percent increase in spending over the four-day holiday period.

In the end, the results for the holiday season were in between the two numbers, with November and December sales for retailers up 5.2 percent, according to NRF.

On Thursday, MasterCard Advisors will release SpendingPulse, a study that uses MasterCard payment systems data. But MasterCard also has to rely on estimates to come up with the non-MasterCard portion of payments.

And the data is not publicly disclosed until two days after it is released to MasterCard clients, who include buy-side analysts and retailers trying to understand consumer shopping trends.

About two dozen individual retailers will put out November sales figures this week and many will comment on Thanksgiving weekend.

But that is also a very limited sample, which does not include behemoths like discount behemoth Wal-Mart Stores Inc and electronics retailer Best Buy Co Inc. They happen to be two of the retailers cited as big winners this weekend by analysts.

And even that handful of retailer reports leaves out one big piece of information … the extent of discounting and whether that hurt profit margins.

If you are looking for that data, you will have to wait for February, when most retailers report fourth-quarter financial results.

“Black Friday strength is not particularly encouraging, as shoppers showing a greater appetite for bargains suggests tighter consumer budgets and greater risk to retailer margins,” Goldman Sachs analysts said in a research note.

(Reuters) – U.S. investors came to the Thanksgiving holiday table on Thursday mostly thankful that the week was a short one, or losses could have been larger.

As another round of news and bond auctions from Europe begins next week, traders will watch closely sovereign bond yields that have kept markets on edge.

Yields rose in almost every euro-zone country this week, and Germany failed to find enough bids for a 10-year auction. The S&P 500 reacted by posting a second straight week of declines and its worst week in two months.

Politicians are scrambling to find a way out of a two-year-old sovereign debt crisis in the euro zone and a visit to Washington from top European Union officials, as well as a meeting of euro-zone finance ministers, will provide the market with headlines and possibly add to uncertainty.

With the specter of rising yields, France, Britain, Italy, Belgium and Spain are holding debt sales next week. The direction of bond yields will determine the direction of equity markets.

“Politicians are trying to buy themselves time so austerity measures kick in and impact budgets and deficits and markets become more forgiving and rates come down,” said Wasif Latif, vice president of equity investments at the San Antonio, Texas-based USAA Investment Management, which manages about $45 billion.

“The credit market and fixed income are a little bit more in the eye of storm; that’s where the issue is rising, so equities are more reactionary,” he said. “You may continue to see more of the same.”

Investors have worried about rising borrowing costs in many euro-zone nations, but Italy, the third-largest euro zone economy, has grabbed most of the focus. On Friday Rome paid a record 6.5 percent to borrow for six months and almost 8 percent to issue two-year zero coupon bonds.

Many market participants have said that the sharply differentiated risk-on and -off trades that the euro zone crisis has generated has seen equities being sold as an asset class, with little or no difference between strong and week balance sheets and earnings reports. But a wedge has opened at least from a global perspective, as data show stocks of companies with more exposure to Europe are underperforming.

POLITICS TO DRIVE THE WEEK

President Barack Obama will meet on Monday with European Council President Herman van Rompuy and European Commission President Jose Manuel Barroso, and Europe’s response to the two-year sovereign debt crisis is expected to top the agenda.

“The only thing that will come out of that is speculation,” said Todd Salamone, vice president of research at Schaeffer’s Investment Research in Cincinnati, referring to the meeting in Washington.

“It will come down to the U.S. trying to convince European leaders to get something in place to solve this crisis.”

Not many hopes are set either on Tuesday’s meeting where euro-zone finance ministers are expected to agree on how to further strengthen the region’s bailout fund.

On Thursday, European Central Bank President Mario Draghi presents the bank’s annual report to the European parliament.

As the latest reminder from markets to politicians that they are running out of time, Belgium’s credit rating was downgraded by Standard & Poor’s.

IF EUROPE ALLOWS, DATA WILL BE KEY

Some of the most important U.S. economic monthly data will be released next week, but will it be enough to unlink the stock market’s behavior and European yields.

New home sales and the S&P/Case-Shiller home prices index will start the week showing if the housing market continues on life support. Data on confidence among consumers, who flooded U.S. stores on Friday as the holiday shopping season started, will be released on Tuesday.

The Institute for Supply Management’s manufacturing report is due, with investors not only looking at the U.S. number on Wednesday but also factory readings from Europe and China on Thursday.

By midweek labor data takes over with the private sector employment report from ADP and Challenger’s job cuts report, followed Thursday by the weekly jobless claims numbers and topped by Friday’s monthly non-farm payrolls report.

“It would be a little bit refreshing to focus on the U.S. data for a change,” said Brian Lazorishak, senior quantitative analyst and portfolio manager at Chase Investment Counsel in Charlottesville, Virginia.

He said if European headlines allow it, the focus will be in the labor market where “most people are looking for modest improvement.”

(Reuters) – France and Germany are planning a quick new pact on budget discipline that might persuade the European Central Bank to ramp up its government bond purchases, Welt am Sonntag reported on Sunday.

Echoing a Reuters report on Friday from Brussels, the Sunday newspaper said the French and German leaders were prepared to back a deal with other euro countries that might induce the ECB to intervene more forcefully to calm the euro debt crisis.

The newspaper report quoted German government sources as saying that the crisis fighting plan could possibly be announced by German Chancellor Angela Merkel and French President Nicolas Sarkozy in the coming week.

In an advance release before publication, Welt am Sonntag said that because it would take too long to change existing European Union treaties, euro zone countries should just agree among themselves on a new Stability Pact to enforce budget discipline – possibly implemented at the start of 2012.

It could be similar to the Schengen Agreement which applies to EU countries that choose to take part and enables their citizens to enjoy uninhibited cross border travel. Among the countries in the Stability Pact, there would be a treaty spelling out strict deficit rules and control rights for national budgets.

The European Central Bank should also emerge more as a crisis fighter in the euro zone, Welt am Sonntag wrote, saying that while governments cannot tell the independent ECB what to do, the expectations are clear.

“Based upon these measures, there should be a majority within the ECB for a stronger intervention in capital markets,” Welt am Sonntag said. It quotes a central banker as saying: “If the politicians can agree to a comprehensive step, the ECB will jump in and help.”

The ECB, which cannot directly finance governments, has been buying Italian and Spanish bonds on the open market since August to try to keep down borrowing costs for the euro zone’s third and fourth largest economies.

Yields on Italian and Spanish debt have nonetheless climbed in recent weeks, despite the ECB intervention and the appointment of a new technocrat government in Rome and the election of the conservative Popular Party in Madrid.

In Brussels on Friday, euro zone officials said a push by euro zone countries toward very close fiscal integration could give the ECB the necessary room for maneuver to scale up euro zone bond purchases and stabilize markets.

France’s Journal du Dimanche newspaper said reforms to Europe’s economic governance would be the focus of a speech which Sarkozy will deliver in the Mediterranean port of Toulon on Thursday.

“The European Commission could take on supra-national powers,” said one French presidency source, according to the newspaper, saying that Brussels would supervise the decisions of countries at risk of default, provided they request this.

“National parliaments will retain the initiative over the (policy) efforts to be made,” one French negotiator told the paper.

The European Commission, the EU executive arm, put forward proposals on Wednesday to grant it intrusive powers of approval of euro zone budgets before they are submitted to national parliaments, which, if approved, would effectively mean ceding some national sovereignty over budgets.

Berlin, meanwhile, is pushing to change the European Union treaty so that a country could be sued for breach of EU budget rules in the European Court of Justice.

Le Figaro said there was resistance within Sarkozy’s government to allowing France’s budgets to be submitted for scrutiny by an “intergovernmental conference” in Brussels, but the president would seek to rally support for this.

A closer fiscal union could eventually pave the way for joint debt issuance for the euro zone, where countries would be liable for each others’ debts.

Germany strongly opposes the joint issuance idea fearing spendthrift countries would piggyback on its low borrowing costs – meaning no gain for the virtuous and no pain for the sinners.

WASHINGTON, Oct 6 (Reuters) – Chip technology company Rambus Inc (RMBS.O) was quizzed in court about destroyed documents and its own use of its patents as graphics chip maker Nvidia Corp (NVDA.O) sought relief from expensive licensing fees.

The two sides squared off on Thursday before the U.S. Court of Appeals for the Federal Circuit over whether Nvidia infringed Rambus patents for controlling and managing the flow of computer data to and from a chip’s memory.

The U.S. International Trade Commission, which hears patent cases involving imports, had previously found Nvidia infringed Rambus chip patents and issued an order barring the importation of any chip made with the infringing technology.

Nvidia licensed the Rambus technology at royalty rates of between 1 percent and 2 percent depending on the type of memory controller involved, to allow its chips to enter the country, but the legal battle has continued.

The ITC had found that Nvidia infringed three patents but did not infringe two others. Both sides appealed to the circuit court and the arguments were consolidated.

Part of the battle has centered on whether Rambus destroyed documents to avoid having them used against it in litigation.

Rambus has acknowledged document destruction but said it was part of ordinary business practices.

Judge Kathleen O’Malley, part of a three-judge panel that heard the case, took issue with an attorney for Rambus who said the company produced the documents that were requested and that all relevant documents were preserved.

“You admit you have no idea what was destroyed! You have no record of what was destroyed!” she said.

“Remember, you saved the ones that helped you and destroyed the ones that hurt you,” O’Malley said at another point.

The appeals court previously ruled in cases between Rambus and Micron Technology (MU.O) and Hynix Semiconductor (000660.KS) that Rambus destroyed documents inappropriately. The cases have been remanded back to lower courts for further consideration.

The battle is a key one for Nvidia, whose core business relies on the sale of specialized graphics cards.

Judge Raymond Clevenger on Thursday repeatedly asked whether Rambus had proved that it used the patents that it was seeking to defend.

Companies may not sue at the International Trade Commission unless they show that they are using the patent domestically. Rambus licensed the patents, and used that to proceed with the lawsuit.

Clevenger said district courts cannot order production or importation of infringing products to cease since the Supreme Court said in a 2006 decision that an injunction should not necessarily follow a finding of infringement. “It’s a factor we should think about,” he said.

Rambus and others go to the ITC to file patent complaints because the trade commission, unlike U.S. district courts, can bar the importation of devices made with infringing technology.

The case against Nvidia and others that was before the International Trade Commission is number 337-661. The U.S. Court of Appeals for the Federal Circuit case numbers are 2010-1483 and 2010-1556. (Reporting by Diane Bartz; Editing by Tim Dobbyn)

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