Case 5:05-cv-00334-RMW Document 3150 Filed 01/26/2009 Page 1 of 11

MUNGER, TOLLES & OLSON LLP

ROBERT K. JOHNSON' TED DANE 560 MISSION STREET SHONT E. MILLER LEE S. TAYLOR
DEREK J. KAUFMAN
MARIA SEFERIAN
ALAN V. FRIEDMAN I MARK SHINDERMAN
MANUEL F. CACHAN KIMBERLY D. ENCINAS
RONALD L. OLSON' STUART N. SENATOR TWENTY-SEVENTH FLOOR ERIC J. LORENZINI MARCUS J. SPIEGEL
RICHARD S. VOLPERT MARTIN D. BERN
KATHERINE K. HUANG GABRIEL P. SANCHEZ
DENNIS C. BROWN ,- DANIEL P. COLLINS
ROBERT E. DENHAM R I CHARD E. DROOYAN SAN FRANCISCO, CALIFORNIA 94105-2907 ROSEMARIE T. RING BETHANY C. WOODARD
JOSEPH J. YBARRA PAULA R. LEVY
JEFFREY I. WEINBERGER ROBERT L. DELL ANGELO
CONNIE Y. CHIANG
CARY B. LERMAN BRUCE A. ABBOTT TELEPHONE (415) 512-4000 KATE K. ANDERSON
ALISON J. MARKOVITZ DAVID C. YANG
CHARLES O. SIEGAL JONATHAN E ALTMAN
E. DORSEY KLEGER-HEINE WILLIAM E. CANO
MARY ANN TODD
RONALD K. MEYER
GREGORY P. STONE MICHAEL. J. O ' SULLIVAN
FACSIMILE (415) 512-4077 JAY K. GHIYA EMILY PAN
SUSAN TRAUB BOYD BILL WARD
VILMA S. MARTINEZ KELLY NI. KLAUS
JENNIFER L. POLSE HENRY E. ORREN
BRAD D. BRIAN DAVID E. GOLDMAN
TODD J. ROSEN BENJAMIN W. HOWELL
BRADLEY S. PHILLIPS BURTON A GROSS
BRIAN R. HOCHLEUTNER WESLEY SHIN
GEORGE M. GARVEY KEVIN MASUDA
GRANT A DAVIS-DENNY JACOB S. KREILKAMP
WILLIAM D. TEMKO HOJOOS HWANG
JASON RANTANEN PAUL J. KATZ
STEVEN L. GUISE KRISTIN S. ESCALANTE
AMY C. TOVAR TYLER A. ROOZEN
ROBERT B. KNAUSS DAVID C. DINIELLI
355 SOUTH GRAND AVENUE REBECCA LOSE LYNCH JONATHAN M. WEISS
STEPHEN M. KRISTOVICH ANDREA WEISS JEFFRIES
JONATHAN H. BLAVIN ZACHARY KATZ
JOHN W. SPIEGEL PETER A. DETRE
LOS ANGELES, CALIFORNIA 90071-1560 JOHN R. GRIFFIN DANIEL A. LYONS
TERRY E. SANCHEZ PAUL J. WATFORD
STEVEN M. PERRY DANA S TREISTER KAREN J. FESSLER ELISABETH J. NEUBAUER
MARK B. HELM CARL H MOOR MICHELLE T. FRIEDLAND TREVOR D. DRYER
TELEPHONE (213) 683-9100
JOSEPH D. LEE DAVID M. ROSENZWEIG J. RAZA LAWRENCE ERIC P. TUTTLE
MICHAEL R. DOYEN DAVID H. FRY LIKA C. MIYAKE HEATHER E. TAKAHASHI
LISA J. DEMSKY FACSIMILE (213) 687-3702 MELINDA FADES LEMOINE KRISTINA L. WILSON
MICHAEL E. SOLOFF
GREGORY D. PHILLIPS MALCOLM A. HEINICKE ANDREW W. SONG KEVIN A. GOLDMAN
LAWRENCE C. BARTH GREGORY J. WEINGART YOHANCE C. EDWARDS ROBYN KALI BACON
KATHLEEN M. M c DOWELL TAMERLIN J. GODLEY JULIE D. CANTOR BERNARD A. ESKANDARI
GLENN D. POMERANTZ JAMES C. RUTTEN SETH GOLDMAN JENNY M. JIANG
RONALD C. HAUSMANN J. MARTIN WILLHITE FADIA RAFEEDIE KHOURY KEITH R.D. HAMILTON, II
PATRICK J. CAFFERTY, OR. RICHARD ST. JOHN JOSHUA P. GROBAN SORAYA C. KELLY
JAY M. FUJITANI ROHIT K. SINGLA VICTORIA L. BOESCH PATRICK ANDERSON
LUIS LI HAILYN J. CHEN MARK R. YOHALEM
O ' MALLEY M. MILLER
CAROLYN HOECKER LUEDTKE BRAD SCHNEIDER JEFFREY Y. WU
SANDRA A. SEVILLE-JONES
C DAVID LEE ALEXANDRA LANG SUSMAN VUVAL MILLER
MARK H. EPSTEIN
HENRY WEISSMANN
KEVIN S. ALLRED
MARK H. KIM
BRETT.1 RODDA
January 26, 2009 GENEVIEVE A. COX
MIRIAM KIM
MARK R. CONRAD
DANIEL R. M c CARTHY
BART H. WILLIAMS SEAN ESKOVITZ MISTY M. SANFORD
JEFFREY A. HEINTZ FRED A ROWLEY, JR. BRIAN P. DUFF
RICHARD D. ESBENSHADET
JUDITH T. KITANO KATHERINE M. FORSTER AIMEE FEINBERG
ALLISON B. STEIN
KRISTIN LINSLEY MYLES BLANCA. FROMM YOUNG JOEL D. WHITLEY
PETER R. TAFT,
MARC T.G. DWORSKY SUSAN R. SZABO KATHARINE L. HALL
OF COUNSEL
JEROME C. ROTH NATALIE PAGES STONE KATHERINE KU
STEPHEN D. ROSE MONIKA S. WIENER KIMBERLY A. CHI
LYNN HEALEY SCADUTO SHOSHANA E. BANNETT E. LEROY TOLLES
JEFFREY L. BLEICH
GARTH T. VINCENT RANDAI.L G. SOMMER TINA CHAROENPONG 11922-2008)

A PROFESSIONAL CORPORATION

WRTER ' S DIRECT LINE

(213) 683-9255
Via E-Filing and Email (213) 683-5155 FAX
Gregory. Stone@mto. corn

The Honorable Ronald M. Whyte

United States District Court
for the Northern District of California
280 South First Street, Courtroom Six
San Jose, California 95113

Re: Hynix Semiconductor, Inc., et al. v. Rambus Inc., C 00-20905

Rambus Inc. v. Hynix Semiconductor, Inc. et al., C 05-00334
Rambus Inc. v. Samsung Semiconductor Co., Ltd. et al., C 05-00298
Rambus Inc. v. Micron Technology, Inc. et al., C06-00244

Dear Judge Whyte:

At the hearing on January 14, 2009, the Court invited briefing on the best way to move
these long-pending cases toward final resolution, and suggested two avenues for the parties to
consider along with their own proposals. The Court suggested that, as a first possible approach
(Option 1), the Court could resolve the outstanding issues in Hynix I (the '905 case), enter final
judgment in that case and, through a combination of Rule 54(b) and 28 U.S.C. § 1292(b),
facilitate a coordinated appeal of the jury verdict in the conduct trial as to Micron and Nanya,
from the results of the Samsung spoliation trial and of the trial of Samsung's licensing claims,
and perhaps of the claim construction in the 05-06 cases. Under Option 1, the upcoming trial
would be stayed pending the appeal. The Court's second suggestion (Option 2) was that it
proceed with the upcoming patent trial, perhaps with a stay as to Micron.

Rambus respectfully suggests that, while there is no perfect or risk-free option here, the
most efficient and fair approach in the circumstances is a middle path between the Court's


Case 5:05-cv-00334-RMW Document 3150 Filed 01/26/2009 Page 2 of 11

MUNGER, TOLLES & OLSON LLP

The Honorable Ronald M. Whyte

January 26, 2009
Page 2

proposals. The Court should package for Federal Circuit review the issues that have been or are
nearly resolved, that have a solid jurisdictional basis for appeal, and that are susceptible of
review separate and apart from the issues slated for the upcoming patent trial. At the same time,
the Court should go forward with the trial, with a view to wrapping up the coordinated cases as
expeditiously as possible. The Court can pursue this parallel track by entering final judgment in
Hynix I, and by certifying for appeal, under Rule 54(b), the conduct-based claims already tried to
the conduct jury and this Court, as well as Samsung's affirmative section 17200 and breach of
contract claims. Claim construction from the 05-06 cases need not, and should not, be part of the
spoliation conduct appeal; as is customary in patent cases, claim construction should be reviewed
on appeal from the final judgment on infringement and validity in those cases. This approach
would allow the Federal Circuit to consider in a coordinated fashion the spoliation rulings from
this Court and the Delaware court, while ensuring a speedy resolution, through trial and verdict,
of Rambus's patent claims against the Manufacturers' accused DDR2+ products. Nor should the
Court sever and stay Micron from this trial: as Rambus explains in its concurrently filed brief,
the Delaware court's ruling does not collaterally estop Rambus from litigating its infringement
claims against Micron. (See Rambus's Consolidated Opp. to the Manufacturers' Summ. J.
Mots., filed concurrently on Jan. 26, 2009 ("Rambus Opp.").)

I. RAMBUS'S PROPOSAL
The challenge here is to optimize the expenditure of judicial and party resources in light
of the multiple litigations involving the parties and the inconsistent rulings they have produced
on spoliation. In our view. the best way of achieving this objective is to press forward with both
a carefully crafted appeal and a trial on the main issues remaining in this case, which center on
DDR2+.

A. The Court Should Enter Final Judgment in Hynix I and Should Enter Rule
54(b) Judgments on the Defendants' Affirmative Spoliation and Conduct
Claims:
On the appellate side, the best course is for the Court to (i) enter final judgment in the
'905 case, Hynix I; (ii) issue findings of facts and conclusions of law on Samsung's affirmative
breach of contract claims, as well as its California unfair competition claim (Cal. Bus. & Prof.
Code § 17200) which is based on spoliation allegations, and enter final judgment on those claims
under Rule 54(b); and (iii) issue final decisions on the outstanding conduct-based equitable
claims and defenses (equitable estoppel, waiver, implied license, section 17200), and then enter
final judgment, under Rule 54(b) as to Micron and Nanya, that encompasses the conduct trial
jury verdict and the Court's disposition of the conduct-based equitable claims.

As the Court suggested in Option 1, any imminent appeal to the Federal Circuit should be
grounded in the Hynix I judgment, which would include this Court's spoliation findings and
ruling, see Hynix Semiconductor Inc. v. Rambus Inc., No. C-00-20905, 2006 WL 565893 (N.D.
Cal. Jan. 5, 2006); the '905 patent trial verdict; and the conduct trial verdict as to Hynix. To
 Case 5:05-cv-00334-RMW Document 3150 Filed 01/26/2009 Page 3 of 11
MUNGER, TOLLES irk OLSON LLP

The Honorable Ronald M. Whyte

January 26, 2009
Page 3

finalize the Hynix I case for entry of judgment, Rambus believes that the Court must first rule on
the following outstanding issues and motions:

• Rambus's Request for Additional Damages and Equitable Relief;

• Hynix's Motion for JMOL and Motion for New Trial Re: Invalidity of
Rambus's Asserted Claims for Failure to Satisfy the Written
Description Requirement of 35 U.S.C. § 112;

• Equitable estoppel;

• Waiver and implied license; and

• Cal. Bus. & Prof. Code § 17200.

Because the Hynix I judgment includes the Court's spoliation ruling, and because the
Delaware court recently issued a conflicting spoliation ruling in Micron Tech., Inc. v. Rambus
Inc., No. 00-792-SLR (D. Del. Jan. 9, 2009) ("Delaware Ruling"), it makes sense for this Court
to resolve Samsung's spoliation claim so that it can be reviewed alongside Hynix I. This would
give the Federal Circuit the fullest view of the spoliation issues raised in this litigation and in
Delaware, and minimize the piecemeal review of those issues. This Court should completely
resolve Samsung's affirmative section 17200 claim, which encompasses Samsung's spoliation
allegations, and enter judgment on that claim under Rule 54(b). Further delay is not warranted,
because there is no material factual overlap between Samsung's section 17200 claim and the
Rambus infringement claims slated for trial, and Federal Circuit review of related spoliation
decisions is imminent. See Fed. R. Civ. P. 54(b) (authorizing entry of judgment "as to one or
more but fewer than all of the claims ... upon an express determination that there is no just
reason for delay and upon express direction for the entry of judgment"). Samsung's breach of
contract claims, which involve questions of fact and law distinct from Rambus's patent claims,
are similarly ripe for decision and entry of judgment under Rule 54(b).

As the Court has suggested, the issues to be readied for appeal now should include the
conduct jury verdict. Because the Delaware court ' s spoliation ruling rests in large part on its
view that Micron's conduct-based claims and defenses were prejudiced by Rambus's Document
Retention Policy (see Delaware Ruling, at 32-33), the Federal Circuit would benefit from being
able to review those conduct-based claims concurrently with spoliation. By having the full
conduct trial record before it, the Federal Circuit would be able to assess more effectively the
prejudice (or lack thereof) caused by Rambus's conduct. The conduct claims will already be
before the Circuit by virtue of Hynix I, so it makes sense to group the disposition of the conduct-
based claims brought by Nanya and Micron rather than awaiting final judgment against them. '
Entry of judgment pursuant to Rule 54(b) is appropriate for these claims. The jury verdict

Samsung earlier dismissed its conduct-based claims. See Stipulation and Order Dismissing Portions of Certain
Claims and Defenses with Prejudice, Sept. 16, 2008, CV 05-02298, Dkt. No. 1132.
 Case 5:05-cv-00334-RMW Document 3150 Filed 01/26/2009 Page 4 of 11
MUNGER, TOLLES & OLSON LLP

The Honorable Ronald M. Whyte

January 26, 2009
Page 4

completely disposed of the Manufacturers' antitrust and fraud claims, and this Court's
forthcoming decision would do the same for the conduct-based equitable claims. Since there is
no factual overlap between the conduct-based and patent claims, there is no reason to delay entry
of judgment, particularly in light of anticipated Federal Circuit review of related spoliation
rulings. To prepare the conduct trial issues for entry of judgment, however, the Court must
resolve the related equitable claims and defenses raised by the Manufacturers, including:

• Equitable estoppel;

• Waiver and implied license;

• Cal. Bus. & Prof. Code § 17200; and

• Rambus's Rule 52 motion.

In order to facilitate consolidation of Rambus's anticipated appeal from the Delaware

court's spoliation ruling with the appeals from the spoliation and other rulings in these cases, the
Court must resolve the outstanding issues expeditiously. Although Rambus has urged the
Delaware court to stay entry of any Rule 54(b) judgment pending the entry of final judgment in
Hynix I, along with any Rule 54(b) judgments in the 05-06 cases, Micron has taken the position
that the Delaware court should enter a Rule 54(b) judgment in advance of the January 30, 2009
hearing in this Court.

B. Proceed with the Upcoming Patent Trial, Including Micron

Rather than staying these proceedings pending resolution of the coordinated appeal
described above, the parties should proceed to trial on the DDR2+ infringement claims and
defenses. For the reasons set forth in Rambus's concurrently filed brief, the Delaware Ruling
works no collateral estoppel effect here, and does not bar Rambus from pursuing its claims
against any of the Manufacturers. The spoliation, prejudice, and sanction issues decided by the
Delaware Ruling are different from those presented here. Moreover, fairness, efficiency, and
this Court's prior spoliation ruling in Hynix I weigh strongly against allowing Samsung, Nanya,
and especially Hynix to invoke the Delaware Ruling.

Rambus submits that the trial can and should go forward on February 17, 2009.

C. Fairness and Efficiency Benefits of Rambus's Proposal

Because the course of trial court proceedings, the course of Federal Circuit proceedings,
and the outcome of those proceedings are not certain, it is inherently difficult to predict, ex ante,
the approach that will maximize efficiency and conserve the Court's and parties' resources. All
things considered, however, the proposal outlined above stands the best chance of speeding these
long-pending cases to final resolution while minimizing prejudice to the parties.
 Case 5:05-cv-00334-RMW Document 3150 Filed 01/26/2009 Page 5 of 11
MUNGER, TOLLES & OLSON LLP

The Honorable Ronald M. Whyte

January 26, 2009
Page 5

Expeditious Resolution: Rambus's suggested approach will almost certainly bring these
cases to ultimate conclusion sooner than any of the stay proposals advanced by the
Manufacturers. As even Hynix has recognized, a stay pending appeal is likely to delay trial of
the patent claims by at least two years. There is no reason for such delay. The parties and the
Court are now ready for trial, after many months of preparation and hard work. A last-minute
stay would effectively undo this effort, resulting in unnecessary waste of judicial and litigants'
resources. If the Federal Circuit affirms this Court's Hynix I, spoliation, and conduct trial
rulings as it likely will-the parties and this Court will again be exactly where we are today,
with nothing gained from the two-year delay. In contrast, proceeding with trial would take
advantage of the lag time in appellate matters to resolve, finally, Rambus's infringement claims
against the Manufacturers' DDR2+ products.

Minimizing Prejudice to the Parties: Rambus's proposal will minimize overall prejudice
to the parties. A two-year delay will severely and irreparably harm Rambus. For nearly a
decade, the Manufacturers have used Rambus's inventions without paying Rambus the
compensation due under the patent laws, a harm that they will continue to inflict until a judgment
is enforced against them. Uncertainty caused by unresolved litigation will continue to cloud
Rambus's patents and undermine Rambus's business, right up to and through the patents'
expiration in 2010. Rambus will lose any opportunity to prove its entitlement to injunctive
relief. Rambus's flagship products, including XDR and XDR2, will continue to be forced to
compete with infringing alternatives, such as DDR2 and DDR3. Rambus will be deprived of
royalties for its inventions in a difficult economic climate, when such compensation would make
a valuable contribution to Rambus's bottom line. Even Rambus's ability to collect a monetary
judgment including the ongoing royalties to which it would be entitled absent an injunction-
might be undermined if the Manufacturers' financial conditions deteriorate with the worsening
recession. Finally, from the standpoint of accurate fact-finding, the memory of witnesses might
fade in the interim, compromising Rambus's ability to prove its case.

In contrast, proceeding to trial will do no harm to the Manufacturers. It will lift the cloud
of litigation-related uncertainty over the Manufacturers' own businesses. In the event of a
verdict for Rambus, the Manufacturers will be able to seek plenary Federal Circuit review of all
adverse determinations sooner rather than later. In the event of a verdict for the Manufacturers,
that is surely a result they would prefer to have this year rather than two years in the future. To
the extent the Manufacturers complain about the expense of going to trial now, it is at best
questionable whether that burden outweighs the cost of abandoning already completed trial
preparation only to repeat it in two years. Indeed, it is quite likely that restarting trial preparation
over two years in the future will cost far more than proceeding now.

Given the Manufacturers' own clear interest in the expeditious resolution of the patent
claims, it is apparent that their stay proposals are designed not to advance judicial economy, but
to achieve some other, tactical goal.
 Case 5:05-cv-00334-RMW Document 3150 Filed 01/26/2009 Page 6 of 11
MUNGER, TOLLES 6, OLSON LLP

The Honorable Ronald M. Whyte

January 26, 2009
Page 6

Judicial Economy: A stay would work a serious hardship on Rambus, without any
countervailing benefit in the way of judicial economy. The efficiencies touted by the
Manufacturers are at best speculative, if not outright illusory. The Manufacturers contend that a
Federal Circuit decision on spoliation might render the patent trial unnecessary. That is possible
if, and only if, the Federal Circuit finds that this Court both committed clear error and abused its
discretion as to unclean hands. That is unlikely, to say the least. But even such an outcome in
Hynix I may not necessarily mandate findings of unclean hands as to the other Manufacturers,
due to the unique circumstances of each. (See Rambus Opp., at 15-19.) The Manufacturers also
claim that permitting interlocutory appeal of this Court's claim construction might avoid the
need for a retrial if the Federal Circuit ultimately modifies claim construction on appeal. While
it might, the probability that it will is quite low and is far outweighed by the additional costs that
will be imposed on the parties, and on the Court, as a result of a further lengthy delay. First, the
Manufacturers fail to give fair weight to the fact that the Federal Circuit usually does not accept
interlocutory appeal of claim construction, and might well decline review on the current record.
Second, the likelihood of this Court's claim construction being reversed and a retrial being
required is low. The Federal Circuit has already considered many of the claim construction
issues raised by the Manufacturers. See Rambus Inc. v. Infineon Techs. AG, 318 F.3d 1081 (Fed.
Cir. 2003). This Court's claim construction tracks that of the Federal Circuit and there is every
reason to believe this Court's carefully drawn construction will stand. Third, and perhaps most
importantly, the public interest in bringing this protracted litigation to closure, not to mention
Rambus's legitimate interest in securing relief from the Manufacturers, including to ensure its
ability in the future to continue to innovate, weighs heavily against hedging on the speculative
chance of more appellate guidance, and in favor of pushing through to the end. Thus, the benefits
of presenting the claim construction governing the 05-06 cases in its natural context, with a full
infringement record, far outweigh the benefit of having it considered along with the earlier claim
construction governing Hynix I. Nor, for these same reasons, would it make any sense to defer
the upcoming trial based upon the mere possibility that the Federal Circuit will modify some
aspect of this Court's Hynix I claim construction.

In contrast to the stay option, Rambus ' s proposal offers concrete, non-speculative
advantages in terms of both speed and fairness. Proceeding with trial will ensure resolution of
the DDR2+ infringement claims in the next few months, rather than the next few years. And
these efficiency benefits will not be dependent on the outcome of an unpredictable Federal
Circuit proceeding.

II. THIS COURT SHOULD DECLINE TO LIMIT APPELLATE CERTIFICATION

TO SPOLIATION, OR TO EXPAND APPELLATE CERTIFICATION TO
INCLUDE CLAIM CONSTRUCTION
The parties do not dispute that prompt appellate review of this Court's spoliation decision
is warranted in light of the recent Delaware Ruling. Micron has asked the Delaware court to
enter final judgment under Rule 54(b) as to Rambus's patent infringement counterclaims and
Micron's spoliation defense, and to do so in advance of this Court's January 30 hearing. If the
Delaware court adopts that course, its spoliation ruling will soon be before the Federal Circuit.


Case 5:05-cv-00334-RMW Document 3150 Filed 01/26/2009 Page 7 of 11

MUNGER, TOLLES & OLSON LLP

The Honorable Ronald M. Whyte

January 26, 2009
Page 7

While this Court and the Delaware court were confronted with distinct spoliation issues due to
the unique circumstances of each Manufacturer (see Rambus Opp., at 15-19), there is sufficient
similarity that the Federal Circuit should have the opportunity to review the decisions in a
coordinated fashion. That is also the approach favored by the Delaware court. 2 Having factual
records from multiple proceedings-Hynix I, the Micron Delaware litigation, the
Samsung/Rambus trial-will provide the Federal Circuit more context and a more
comprehensive view of the relevant facts and contentions. The Federal Circuit also would
benefit from this Court's analysis and reasoning in Hynix I, as well as the Court's spoliation
decision as to Samsung if that is adjudicated in time for coordinated appeal, as Rambus
respectfully urges it should be. Indeed, Rambus would be prejudiced if the Federal Circuit is
denied the opportunity to consider this Court's decision, and instead reviews the Delaware
Ruling in isolation, without considering this Court's view. The Manufacturers do not dispute the
benefits that would accrue from coordinated Federal Circuit review of the relevant spoliation
rulings.

Where the parties differ is on what, if any, additional issues should be certified for
review. Rambus's approach would put all already-tried spoliation and conduct claims before the
Federal Circuit in the same time frame, thus making possible coordinated appellate review and
helping to ensure consistent decision-making on appeal. By limiting the issues to be reviewed on
appeal to only those with a solid jurisdictional and prudential basis for review at this stage,
Rambus's approach would minimize the risk of a procedural remand, with its attendant
inefficiencies. The Manufacturers, on the other hand, have put forth appeal scenarios that are
either too narrow (Hynix's proposal for spoliation-only review) or too broad (Samsung and
Nanya's proposal for interlocutory appeal of claim construction). These proposals are fraught
with procedural and jurisdictional difficulties, and would do little to advance these cases.

A. Hynix's Proposal for a Spoliation-Only Appeal Is Procedurally Improper

Hynix's suggestion for a spoliation-only appeal is a jurisdictional non-starter. This
Court's spoliation ruling in Hynix I did not completely and finally dispose of any affirmative
claims or counterclaims. Short of entry of final judgment in Hynix I, which would permit review
of all issues leading to the judgment, there is simply no procedural vehicle that would permit
interlocutory appellate review of spoliation only. As this Court is aware, Hynix has previously
tried to obtain interlocutory appeal of spoliation under 28 U.S.C. § 1292(b), which the Court
correctly denied because the Court's spoliation ruling did not involve a "controlling question of
law" as required by the statute. See Order Denying Mot. Requesting Certification For
Interlocutory Appeal, CV-00-20905, Dkt. No. 2471, Dec. 19, 2006. Nor can final judgment be
entered under Rule 54(b) as to spoliation only, because Hynix has not pleaded spoliation as part
of an affirmative claim in the '905 action. "Rule 54(b) does not allow for certification of a
defense." W.L. Gore & Assocs. v. Int'l Med. Prosthetics Research, 975 F.2d 858, 863 (Fed. Cir.

2"I agree that this whole bundle of issues that both Judge Wh[y]te and I have should be reviewed, to some extent, in
a coordinated fashion by the Federal Circuit." Teleconference Transcript 13:3-7, Micron Tech., Inc. v. Rambus Inc.,
Civ. No. 00-792-SLR, Jan. 16, 2009 (D. Del.).


Case 5:05-cv-00334-RMW Document 3150 Filed 01/26/2009 Page 8 of 11

MUNGER, TOLLES Zk OLSON LLP

The Honorable Ronald M. Whyte

January 26, 2009
Page 8

1992). The proper way to facilitate appeal of the spoliation ruling in the '905 case is to enter
final judgment for the case as a whole.

Hynix's proposal is also unsound on a practical level. Spoliation should be reviewed

along with the jury verdict on the conduct claims, so that the Federal Circuit may assess the
extent of prejudice, if any, caused by Rambus's conduct. The Delaware court specifically stated
that destruction of Rambus's internal documents was prejudicial to Micron's conduct defenses,
but not to the invalidity claims and defenses that depend on publicly available prior art and
patent documents. (Del. Ruling, at 32 & n.59.) A spoliation-only appeal, just like an appeal of
only the Delaware Ruling without coordination with an appeal of Hynix I, would deny the
Federal Circuit the conduct trial record it should have in order to properly evaluate the
Manufacturers ' prejudice contentions.

B. Interlocutory Appeal of Claim Construction Is Inefficient and Disfavored by

the Federal Circuit
Contrary to the Manufacturers' suggestion, claim construction in the '334, '244, and '298
actions should not be certified for interlocutory appellate review at this stage, and no stay should
be entered to facilitate such review. 28 U.S.C. § 1292(b) provides the only procedural
mechanism for interlocutory review of claim construction, but even if this Court agrees to
certification, the Federal Circuit has complete discretion to determine whether to accept the
appeal. In re Convertible Rowing Exerciser Patent Litig., 903 F.2d 822 (Fed. Cir. 1990).
Indeed, the Federal Circuit may refuse interlocutory review under § 1292(b) "in much the same
manner ... the Supreme Court today refuses to entertain applications for writs of certiorari." Id.
(citation omitted). "Such appeals are rarely granted." Nystrom v. TREX Co., 339 F.3d 1347,
1351 (Fed. Cir. 2003); see also P. Mennell, et al., Patent Case Management Judicial Guide 11-
61, (forthcoming 2009) ("The Federal Circuit routinely refuses to entertain interlocutory appeals
on claim construction."). 3 It would not serve judicial economy or the convenience of the parties
to stay a long-scheduled trial, which the parties stand ready and able to prosecute, on the off-
chance that the Federal Circuit might grant review.

The Federal Circuit also has made clear that appellate review of claim construction
should proceed in the context of a full record on infringement and with regard to the accused
devices. In fact, even where a valid final judgment was entered below, the Court has declined
review and remanded for clarification where the judgment failed to "provide[] any context with
respect to how the disputed claim construction rulings relate to the accused products." Jang v.
Boston Scientific Corp., 532 F.3d 1330, 1337 (Fed. Cir. 2008); see also Lava Trading, Inc. v.
Sonic Trading Mgmt., LLC, 445 F.3d 1348, 1350 (Fed. Cir. 2006) ("Without knowledge of the
accused products, this court ... lacks a proper context for an accurate claim construction.").
Claim construction is so intertwined with the infringement issues awaiting trial that judicial
economy is best served by proceeding with trial as scheduled, so that both sets of issues can be
reviewed on appeal after entry of final judgment.

s Available at http://papers.ssrn .com/sol3/papers.cfm?abstract_id == 1328659.

 Case 5:05-cv-00334-RMW Document 3150 Filed 01/26/2009 Page 9 of 11
MUNGER, TOLLES & OLSON LLP

The Honorable Ronald M. Whyte

January 26, 2009
Page 9

III. THIS COURT SHOULD REJECT A STAY OF THE PATENT TRIAL, BECAUSE
NEITHER A CERTIFIED SPOLIATION APPEAL NOR ANY CLAIM
CONSTRUCTION REVIEW IS LIKELY TO AFFECT THAT TRIAL
The Manufacturers would have this Court stay the patent trial, which is now ripe for
resolution after countless hours of preparation by counsel, witnesses and this Court, on the off-
chance that the Federal Circuit might (1) reverse this Court's Hynix I and Samsung unclean
hands rulings, thereupon declaring all patents-in-suit unenforceable as to every Manufacturer and
mooting Rambus's outstanding patent claims; or (2) reverse this Court's claim construction,
thereby reframing the infringement issues to be tried. These arguments not only are speculative,
but also take no account of case law posing a substantial obstacle to the Manufacturers' success.

As noted above, the Federal Circuit may well refuse to review this Court's claim
construction ruling in the absence of the infringement record from the upcoming trial. Because
the Manufacturers ignore the Federal Circuit's repeated warnings about the adequacy of the
record underlying claim construction, their assumption that a stay will result in further claim
construction guidance is overly optimistic. And this is putting to one side the merits of this
Court's claim construction order, which, Rambus submits, is likely to be affirmed on appeal. See
Infineon, 318 F.3d at 1081.

The case law also shows that the Manufacturers overestimate the chance that the Federal
Circuit will reverse the Hynix I spoliation ruling. This Court, of course, is in the best position to
judge the merits of its spoliation ruling in Hynix 1 and the likelihood of reversal on appeal.
While Rambus believes that Order is both correct and highly persuasive, the likelihood of the
outcome hoped for by the Manufacturers is low by any objective standard. This Court's factual
findings will be reviewed only for clear error, and its ultimate conclusion on unclean hands can
be reversed only for abuse of discretion. In re Omeprazole Patent Litig., 483 F.3d 1364, 1374
(Fed. Cir. 2007); Leon v. IDX Sys. Corp., 464 F.3d 951, 957-58 (9th Cir. 2006). Thus, even in
the unlikely scenario that the Federal Circuit finds clear error as to any of this Court's factual
findings, it may still affirm if there has been no abuse of discretion as to the ultimate equitable
determination. Cf. Shat-R-Shield, Inc. v. Trojan, Inc., 1992 WL 90014, at *3 (Fed. Cir. 1992)
("The exercise of discretion respecting sanctions, particularly the denial of sanctions, is the type
of discretionary decision that is virtually unreviewable.") (emphasis added), disapproved on
other grounds, Cardinal Chem. Co. v. Morton Int'l Inc., 508 U.S. 83, 92 n.12 (1993).

Moreover, even if the Federal Circuit finds error in some respect with this Court's
spoliation ruling in Hynix I, that would not automatically terminate Rambus's property rights and
moot its patent claims as to all Manufacturers. The alleged spoliation implicates Rambus's
conduct toward individual Manufacturers, not the legitimacy of the patents granted by the PTO.
"No case law from the Supreme Court or [the Federal Circuit] provides a basis for nullifying
property rights granted by the United States when such property rights did not themselves accrue
through inequitable conduct." Aptix Corp. v. Quickturn Design Sys., Inc., 269 F.3d 1369, 1377
(Fed. Cir. 2001). As Rambus has discussed in detail elsewhere (Rambus Opp., at 15-19), the
unique factual circumstances of each Manufacturer and its relationship with Rambus creates
 Case 5:05-cv-00334-RMW Document 3150 Filed 01/26/2009 Page 10 of 11
MUNGER, TOLLES & OLSON LLP

The Honorable Ronald M. Whyte

January 26, 2009
Page 10

distinct factual issues as to spoliation. For example, the Federal Circuit might reach different
results on spoliation for Hynix and Samsung, based on unique circumstances created by
Samsung's business relationship with Rambus and Samsung's own inequitable conduct and
destruction of documents. (See Rambus Opp., at 16-18.) Coupled with the strength of this
Court's own analysis and the deferential standard of review, it is clear that the likelihood of
spoliation mooting all of Rambus's patent claims is remote at best. The Manufacturers' wishful
thinking does not justify prejudicing Rambus with further delays while forgoing the concrete and
substantial efficiency benefits that would accrue from trial and resolution of the pending patent
claims. Rather than relying on what the Federal Circuit may or may not do, the surest way to
bring closure to these long-pending cases is to proceed to trial as scheduled.

IV. HYNIX'S PURPORTED FINANCIAL DIFFICULTY IS NO REASON TO DELAY

ENTRY OF FINAL JUDGMENT IN HYNIX I, OR TO STAY THE UPCOMING
TRIAL
Finally, Hynix protests about the "enormous burden" it would face if appeal of the '905
case proceeds concurrently with the scheduled patent trial, and represents that it would be unable
to post a supersedeas bond to stay final judgment pending appeal. (Hynix Sum. J. Br., filed Jan.
19, 2008, at 3-4.) Hynix's assertion of financial dire straits is conclusory, grounded primarily in
information about the DRAM industry in general rather than Hynix's specific circumstances.
While Rambus is aware of the difficult conditions confronting the industry, there is good reason
to be skeptical of Hynix's premature plea of poverty. In fact, publicly available media reports
indicate that Hynix recently secured $600 million in fresh funding, expects to raise an additional
$249 million, and plans to spend $735 million on new investments in 2009. 4 To delay entry of
judgment or to stay the trial on account of Hynix's unsupported representations would unfairly
prejudice Rambus, by in effect subordinating Rambus's claims to those of other Hynix creditors.
The '905 action has been pending since 2000, and Hynix has profited handsomely from
unauthorized use of Rambus's inventions in the intervening time. Rambus, no less so than other
Hynix creditors, is entitled to the satisfaction of its claims. And it flies in the face of common
sense for Hynix to complain about the expense of parallel trial and appeal when Rambus, a much
smaller company, is ready and able to prosecute both.

Hynix has the burden of demonstrating, with evidence, its entitlement to relief from a
full-surety supersedeas bond. Poplar Grove Planting & Ref. Co. v. Bache Halsey Stuart, Inc.,
600 F.2d 1189, 1191 (5th Cir. 1979). Once final judgment is entered, Hynix may formally move
for relief from the bond requirement and offer proof accordingly, but it is both premature and
unnecessary for the Court to resolve this issue before entering judgment, as it should, in Hynix I.

' Reuters.com, Hynix Believes 04 2008 Bottom of DRAM Downturn - CEO, Jan. 12, 2009, available at
http://www.reuters.com/article/rbssSemiconductors/idUSSEO407 1 7200901 12; see also Reuters.com, Hynix Raises
$249 Million in New Shares Under Aid Plan, Jan. 6, 2009, available at
http://uk.reuters.com/article/rbssTechMediaTelecomNews/idUKSE01573520090106?pageNumber =2&virtualBrand
Channel=0.


Case 5:05-cv-00334-RMW Document 3150 Filed 01/26/2009 Page 11 of 11

MUNGER, TOLLES & OLSON LLP

The Honorable Ronald M. Whyte

January 26, 2009
Page 11

V. CONCLUSION
In the interest of efficiency, judicial economy, and the convenience of the parties, this
Court should (1) proceed with the upcoming patent trial as scheduled; and (2) facilitate a
consolidated appeal of Hynix 1 and the resolved spoliation and conduct trial issues. Rambus
looks forward to further discussing these issues at the hearing set for January 30, 2009.

cc: All counsel (via email and e-filing)