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[Parties Listed On Signature Page]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

RAMBUS INC., Plaintiff, v. HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR MANUFACTURING AMERICA INC., SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG AUSTIN SEMICONDUCTOR, L.P., NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION U.S.A., Defendants.

Case No. C 05-00334 RMW MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE (1) PORTIONS OF THE SECOND SUPPLEMENTAL MCALEXANDER EXPERT REPORT, AND (2) SUPPLEMENTAL SECTION 282 NOTICES Hearing Date: February 5, 2009 Time: 9:00 AM Courtroom: 6, 4th Floor Judge: Ronald M. Whyte

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RAMBUS INC., Plaintiff, v. SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG AUSTIN SEMICONDUCTOR, L.P., Defendants.

Case No. C 05-02298 RMW

RAMBUS INC., Plaintiff, v. MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC., Defendants.

Case No. C 06-00244 RMW

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TABLE OF CONTENTS Page I. INTRODUCTION ....................................................................................................................... 1 II. RESPONSE TO RAMBUS'S STATEMENT OF “RELEVANT” FACTS............................... 2 III. ARGUMENT ............................................................................................................................ 4 A. B. C. Rambus's Request to Strike is Fundamentally Unfair............................................. 4 The Opinions in Mr. McAlexander’s Second Supplemental Report Properly Responded to Rambus’s December 23, 2008 Letter............................................... 5 Rambus’s Request to Strike Mr. McAlexander’s Opinions Regarding Integration Is Without Merit ................................................................................... 6 Rambus’s Request to Strike Mr. McAlexander’s Opinions Related to the Morgan Deposition Is Misleading........................................................................... 8 Rambus’s Request to Strike the Opinions Related to the Horowitz, Fu, and Moussouris Articles Should Be Denied .................................................................. 8 The Manufacturers Properly Supplemented Their Section 282 Notices................. 8

IV. CONCLUSION......................................................................................................................... 9

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TABLE OF AUTHORITIES Page CASES Immersion Corp. v. Sony Computer Entertainment America, Inc. C-02-0710 (N.D. Cal., Feb. 26, 2004) ................................................................................ 5 STATUTES AND RULES

35 U.S.C. § 282 ............................................................................................................................... 1 Fed. R. Civ. P. 26(a)(2)(C).......................................................................................................... 7, 8

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I.

INTRODUCTION Rambus’s latest Motion to Strike (’334 D.E. 3107, “Motion”) is a transparent attempt to

foreclose Mr. McAlexander from fully addressing at trial the late-disclosed “opinions” of Mr. Murphy about the Court’s recently modified construction of “memory device.” The Court made significant changes to its construction of memory device on November 21, 2008. By that time, the date for completing expert discovery and deposing experts had long since passed. On December 23, 2008, Rambus submitted a letter to the Court which made clear that Mr. Murphy intends to offer additional opinions at trial about the Manufacturers’ prior art positions in light of the Court’s modified construction. Accordingly, and with express permission from the Court, the Manufacturers properly served Mr. McAlexander’s Second Supplemental Expert Report (“Report”) to address Rambus’s letter, the description of Mr. Murphy’s contemplated opinions set forth therein, and the effect of those opinions on Mr. McAlexander’s previously disclosed opinions. In doing so, Mr. McAlexander explained why it still would have been obvious to implement the features recited in Rambus's asserted claims under the Court’s new construction of “memory device.” Rambus now complains that Mr. McAlexander's opinions were not limited to the issue it wanted him to address—whether certain prior art disclosures meet the Court's modified construction of “memory device.” Rambus's argument is predicated on the incorrect view that the “memory device” recitation in 9 of the 12 asserted claims is an abstract stand-alone requirement entirely divorced from the actual claims. To the contrary, those claims are directed to Mr. McAlexander’s opinions were

implementing specific features on a “memory device.”

properly directed to the issues affected by Rambus’s letter—whether the prior art disclosed or rendered obvious the specifically recited features on a “memory device” under the Court’s modified construction. Rambus’s request to bar Mr. McAlexander from addressing the Court’s modified construction in the context of the claims should be denied. Rambus also seeks to strike the Manufacturers’ Supplemental Section 282 Notices as untimely. Section 282 requires “notice . . . at least thirty days before the trial.” 35 U.S.C. § 282. The Manufacturers served their supplemental Section 282 Notices no later than December 31,
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2008. The trial is scheduled to start no earlier than February 17, 2009, which is more than 30 days after December 31, 2008. Moreover, given that the Court gave the Manufacturers leave to supplement Mr. McAlexander’s report on December 30, 2008, the Manufacturers clearly had good cause to supplement their Section 282 Notices. II. RESPONSE TO RAMBUS'S STATEMENT OF “RELEVANT” FACTS 1. On July 11, 2007, the parties submitted a Joint Claim Construction and Prehearing (’334 D.E. 254.) The

Statement, which set forth their positions on claim construction.

Manufacturers asked the Court to construe “memory device” to mean a “device in which information can be stored and retrieved electronically.” (’334 D.E. 254, Appx. A at 22-23.) Rambus argued that “memory device” means “an integrated circuit device in which information can be stored and retrieved electronically.” Id. 2. Following briefing and argument, on July 10, 2008, the Court issued its Claim

Construction Order. The Order adopted the Manufacturers' proposed construction of “memory device.” (’334 D.E. 1960 at 88.) 3. The Manufacturers and Mr. McAlexander used the Court’s July 10, 2008

constructions in preparing their subsequent disclosures and filings, including the Manufacturers' Final Invalidity Contentions and Mr. McAlexander's Expert Report. 4. Not satisfied with the Court’s July 10, 2008 claim construction order, on August 19,

2008, Rambus filed a Motion for Leave to File a Motion for Reconsideration of the Claim Construction Order for the Farmwald/Horowitz Patents and Motion for Clarification. (’334 D.E. 2066, “Motion for Reconsideration.”) Rambus's Motion for Reconsideration again sought to limit the term “memory device” to single chip implementations and repeated the same arguments that had been made to, and rejected by, the Court. Id. at 2. 5. On November 21, 2008 – long after expert reports had been exchanged and expert

depositions had been taken – the Court issued its Order Clarifying its Construction of “Memory Device” (’334 D.E. 2603, “Order Construing ‘Memory Device’” The Court neither maintained its prior construction as requested by the Manufacturers, nor adopted the single chip requirement urged by Rambus. Id. at 2, 4. The Court substantially changed its construction, construing the
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term “memory device” as follows: “[A] component of a memory subsystem in which information can be stored and retrieved electronically. It is smaller in physical size than that of a prior art memory board and has low power dissipation so it can be closely spaced to other components of the memory subsystem such as a processing device.” Id. at 4. In addition, although not stated in the Court’s modified construction itself, the Order stated that “[a] ‘memory device’ does not include a microprocessor like a CPU or memory controller.” Id. at 3. 6. On December 10, 2008, the Manufacturers requested additional expert discovery to

understand what each side’s expert would say because the Court’s new construction of “memory device” came after the close of expert discovery and close to the pretrial conference scheduled for December 19, 2008. (See Lee Decl., Ex. A, 12/10/2008 Hearing Transcript at 129:20-131:8.) Rambus opposed. See id. at 131:17-132:3. The Court agreed with the Manufacturers in part and instructed Rambus to notify the Manufacturers as to whether Rambus would assert that any prior art references would no longer be relevant under the Court’s modified construction of “memory device.” See id. at 134:15-21. On December 19, 2008, the Court gave the Manufacturers permission to supplement Mr. McAlexander’s report in response to Rambus’s position on “memory device.” (See Lee Decl., Ex. B, 12/19/2008 Hearing Transcript at 13:13-21.) 7. On December 23, 2008, Rambus submitted a letter to the Court regarding the

memory device issue (’334 D.E. 2994.) The letter states that Mr. Murphy would opine that five prior art references relied upon by the Manufacturers failed to meet the Court's modified construction of “memory device.” In response, and with the Court’s permission (Lee Decl., Ex. B at 13:13-21), the Manufacturers served the Second Supplemental Expert Report of Joseph McAlexander Regarding Invalidity on December 30, 2008. The report responded to Rambus’s letter, the description of Mr. Murphy’s contemplated opinions set forth therein, and the effect of the opinions on Mr. McAlexander's previously disclosed opinions. On January 13, 2009, without leave of Court, Rambus responded to Mr. McAlexander’s report by serving a supplemental report from Mr. Murphy.

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8.

On December 30 and 31, 2008, the Manufacturers served Supplemental Section 282

Notices disclosing the prior art references relied upon in Mr. McAlexander's Second Supplement Report. 9. During a hearing on January 14, 2009, the Court scheduled jury selection to begin

no earlier than February 17, 2009. Thus, the Manufacturers served their supplemental Section 282 Notices more than 30 days before the start of the upcoming patent trial. III. ARGUMENT A. Rambus's Request to Strike is Fundamentally Unfair

Rambus’s “Statement of Relevant Facts” section omits one key fact—that the Court did not issue a modified construction sua sponte, but rather did so in response to Rambus’s motion for reconsideration. (’334 D.E. 2603 at 2.) Rambus effectively seeks to take the direct benefit of convincing the Court to revise its construction, and also to derive indirect benefit by raising objections to the Manufacturers’ legitimate attempts to address that new construction and Rambus’s expert’s opinions on the impact of that construction. By succeeding in its quest to narrow the construction, Rambus made it necessary for Mr. McAlexander to address that narrowed construction. A ruling to the contrary would unfairly prejudice the Manufacturers’ right to defend against Rambus’s claims. Further, it is telling that Rambus does not allege any prejudice resulting from Mr. McAlexander’s opinions. Were the Court to consider the issue of prejudice, that factor would heavily favor the Manufacturers. On January 13, 2009, Rambus served a Supplemental Expert Report from Mr. Murphy.1 That report responds to Mr. McAlexander’s disputed opinions.

Rambus did not seek leave to submit Mr. Murphy’s Supplemental Report, nor did it tie the admissibility of the opinions disclosed in that report to the outcome of its motion to strike. In effect, Rambus asserts that the deadlines for the disclosure of expert opinions apply only to the Manufacturers. As Rambus itself urged in a previous motion to strike, resolution of this dispute Mr. Murphy’s January 13, 2009, Supplemental Expert Report was actually his second supplemental report. A previous supplemental report on validity was served on November 14, 2008. Both supplemental reports were served after the close of expert discovery and without leave of Court.
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must seek “to preserve the fundamental fairness of the litigation process.” (’334 D.E. 2278 at 10 (citing Immersion Corp. v. Sony Computer Entm’t Am., Inc. C-02-0710, slip op. at 7 (N.D. Cal., Feb. 26, 2004).) On that basis alone, Rambus’s motion should be denied. B. The Opinions in Mr. McAlexander’s Second Supplemental Report Properly Responded to Rambus’s December 23, 2008 Letter

Rambus first requests that the Court strike portions of Mr. McAlexander’s report that “relate to ‘programmable latency’ and ‘autoprecharge,’ not ‘memory device.’” (’334 D.E. 3107 at 6.) Rambus supports this request by ignoring the language of the asserted claims. Instead, Rambus treats the term “memory device” as an abstract concept entirely divorced from the parties’ validity disputes. Contrary to Rambus’s argument, the cited portions of Mr.

McAlexander’s report are directly related to “memory device,” because they provide his opinion that it would have been obvious to a person having ordinary skill in the art to implement “programmable latency” and “auto precharge” on a “memory device” as provided in the Court’s modified construction. Where Rambus’s argument goes awry is in failing to address the actual live validity issues in this case—whether the prior art anticipates or renders obvious implementing claimed features on a memory device. For example, the dispute regarding the validity of claim 27 of the ’051 patent will involve a determination at trial of whether the prior art discloses or renders obvious programmable write delay on a memory device. Similarly, the dispute regarding the validity of claim 34 of the ’037 patent will involve a determination at trial of whether the prior art discloses or renders obvious auto precharge on a memory device. Contrary to Rambus’s unsupported allegation that the disputed opinions “have no bearing on the ‘memory device’ issue” (’334 D.E. 3107 at 5), whether it would have been obvious to a person having ordinary skill in the art to implement those features on a memory device goes to the very heart of the “memory device” issue. Indeed, when the latency and auto precharge issues are placed in the context of the opinions originally disclosed by Mr. McAlexander, the relevance of his supplemental opinions to the “memory device” issue becomes even more apparent. For example, in his original report, Mr.
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McAlexander opined that U.S. Patent No. 5,301,278 to Bowater et al. (“Bowater”) disclosed implementing the latency and auto precharge features on a memory device comprising a memory controller and memory chips. (See Lee Decl., Ex. C, 9/15/2008 McAlexander Corrected Report at ¶¶ 285-90.) According to Rambus, that opinion conflicts with the Court’s narrowed

construction of memory device. (’334 D.E. 2994 at 2.) Based on that purported conflict, Rambus concludes without support that the latency and auto precharge features disclosed in Bowater somehow disappear. To the contrary, and as demonstrated in Mr. McAlexander’s supplemental report, those disclosures remain equally as relevant under the Court’s modified construction as they were under the prior construction. The change is the precise wording of the issue, which previously related to whether Bowater disclosed those features on a memory device, and now relates to whether it would have been obvious to implement those features on a memory device. Mr. McAlexander’s Second Supplemental Report provides his opinion on this “memory device” issue as it relates to the validity of the claims in light of the prior art. It is also important to note that Rambus’s letter, to which Mr. McAlexander was responding, is not limited to arguing whether certain devices are memory controllers, and therefore, are outside the Court’s modified construction of memory device. Instead, as to four of the five references discussed, Rambus’s proposed new opinions extend to the disclosed memory controllers “alone or in combination with separate memory chips.” (’334 D.E. 2994 at 2

(emphasis added).) What a person having ordinary skill in the art would conclude from a prior art disclosure of a memory controller “alone or in combination with” memory chips is not an issue that was resolved by the Court’s modified construction. Mr. McAlexander should be permitted to provide his opinion regarding these combinations, which is what he did in his supplemental report. C. Rambus’s Request to Strike Mr. McAlexander’s Opinions Regarding Integration Is Without Merit

Rambus next requests that the Court strike portions of Mr. McAlexander’s Report directed to “the existence of an integration trend.” (’334 D.E. 3107 at 6.) According to Rambus, these opinions are improper because “Mr. McAlexander did include a lengthy section on integration in
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his original report and cannot dispute this fact.” Id. at 7 (emphasis in original). Rambus does not, of course, argue that the opinions are irrelevant or untimely. Instead, Rambus manufactures a new “no bolstering” limitation on supplemental expert reports. The sole legal support for

Rambus’s argument consists of an irrelevant citation to the disclosure requirement in the Federal Rules of Civil Procedure. Id. at 7-8. Because Mr. McAlexander’s disclosure was pursuant to an order from this Court, and responds directly to the contents and implications of Rambus’s December 23 letter, there is no basis to argue that it was improper. Fed. R. Civ. P. 26(a)(2)(C). The core of Rambus’s argument is that, because certain asserted claims as construed by the Court already include a single-chip requirement, Mr. McAlexander “had every reason to include opinions regarding integration in his original invalidity report.” (’334 D.E. 3107 at 6-7.) This argument improperly shifts the focus of the dispute to claims unaffected by the Court’s modified construction from the relevant claims. This dispute should be resolved by the

undisputed fact that Rambus’s letter relates to the application of the prior art to the nine asserted claims that include the “memory device” language. Further, even if Rambus is correct that the three claims which do not include “memory device” should be considered, Rambus’s argument fails. Prior to the Court’s modified

construction, integration was a peripheral issue affecting only those three asserted claims and the subset of features recited therein.2 In view of the Court’s modified construction, the integration issue now touches all twelve asserted claims. The suggestion that Mr. McAlexander’s “reason to include opinions regarding integration” remains unchanged is unsupportable.

The “integrated circuit” claims are claim 36 of the ’020 patent and claims 3 and 4 of the ’446 patent. Rambus argues that it “asserted claims with preambles narrower than ‘memory device’ . . . [f]or example . . . ‘synchronous semiconductor memory device.’” (’334 D.E. 3107 at 6). Nothing in that claim language—either as written or as previously construed by the Court— required a specific level of integration. Indeed, Rambus never sought to construe those “narrower” preambles separately. Regardless, the fact that a “memory device” is synchronous or is comprised of semiconductor material is irrelevant to the integration issue.
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D.

Rambus’s Request to Strike Mr. McAlexander’s Opinions Related to the Morgan Deposition Is Misleading

Rambus also objects to Mr. McAlexander’s citation to the “Morgan (CVAX) deposition” to support his opinion “that it would have been obvious ‘to have integrated the programmable timing control feature disclosed in CVAX.’” (’334 D.E. 3107 at 8.) Rambus’s argument is that “integration has been an issue for Mr. McAlexander throughout this case.” Id. What Rambus fails to tell the Court, however, is that all four claims that require programmable timing control are “memory device” claims rather than “integrated circuit” claims.3 Integration was simply not a live issue for those claims prior to the Court’s modified construction. Mr. McAlexander’s Report properly addresses whether it would have been obvious to integrate the timing control feature of CVAX onto a memory device as the Court has construed that term. Rambus’s argument, which again relies upon excising the “memory device” language from the claims of which they are a part, is in error. E. Rambus’s Request to Strike the Opinions Related to the Horowitz, Fu, and Moussouris Articles Should Be Denied

Rambus also requests that the Court strike Mr. McAlexander’s references to the Fu, Horowitz, and Moussouris articles. This request is based on the same flawed “bolstering”

argument discussed above. Again, these materials were properly discussed based on the content and implications of Rambus’s December 23 letter and Rambus’s discussion of the Court’s modified construction. F. The Manufacturers Properly Supplemented Their Section 282 Notices

Finally, Rambus requests that the Court strike the Manufacturers’ supplemental Section 282 Notices because the “deadline had passed.” (’334 D.E. 3107 at 9.) According to the current schedule, trial is not set to begin until February 17, 2009, at the earliest. Rambus’s argument that the December 30th and December 31st disclosures were outside the 30-day window, therefore, is in error.

28

Claim 16 of the ’285 patent, claim 27 of the ’051 patent, claim 28 of the ’916 patent, and claim 4 of the ’696 patent. 8
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In addition, as discussed above, the Court granted the Manufacturers leave to submit a supplemental expert report in response to Rambus’s December 23 letter. It follows that the Manufacturers also had good cause to disclose the prior art references discussed in the supplemental report and to supplement their Section 282 Notices accordingly. IV. CONCLUSION For the foregoing reasons, the Manufacturers respectfully request that the Court deny Rambus’s Motion to Strike.

Dated: January 26, 2009 By: /s/ Jared Bobrow

JARED BOBROW (Bar No. 133712) Email: jared.bobrow@weil.com SVEN RAZ (Bar No. _222262) Email: sven.raz@weil.com WEIL GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: (650) 802-3034 Facsimile: (650) 802-3100 ELIZABETH STOTLAND WEISWASSER Email: elizabeth.weiswasser@weil.com DAVID LENDER Email: david.lender@weil.com WEIL, GOTSHAL & MANGES LLP New York Office 767 Fifth Avenue New York, NY 10153 Telephone: (212) 310-8000 Facsimile: (646) 842-0505 WILLIAM C. PRICE (Bar No. 108542) Email: william.price@quinnemanuel.com HAROLD A. BARZA (Bar No. 80888) Email: halbarza@quinnemanuel.com JON R. STEIGER (Bar No. 229814) Email: jonsteiger@quinnemanuel.com ROBERT J. BECHER (Bar No. 193431) Email: robertbecher@quinnemanuel.com QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 865 South Figueroa Street, 10th Floor
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Los Angeles, CA 90017 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 Attorneys for Defendants MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC.

By:

/s/ Robert Berezin

MATTHEW D. POWERS Email: matthew.powers @weil.com STEVEN S. CHERENSKY Email: steven.cherensky@weil.com WEIL GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: (650) 802-3034 Facsimile: (650) 802-3100 ROBERT S. BEREZIN (pro hac vice) Email: robert.berezin@weil.com MATTHEW J. ANTONELLI (pro hac vice) Email: matthew.antonelli@weil.com WEIL, GOTSHAL & MANGES LLP New York Office 767 Fifth Avenue New York, NY 10153 Telephone: (212) 310-8000 Attorneys for Defendants SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., and SAMSUNG AUSTIN SEMICONDUCTOR, L.P.

By: /s/ DANIEL J. FURNISS (Bar No. 73531) Email: difurniss@townsend.com THEODORE G. BROWN, III (Bar No. 114672) Email: tgbrown@townsend.com JULIE J. HAN (Bar No. 215279) Email: jjhan@townsend.com TOWNSEND and TOWNSEND and CREW LLP 379 Lytton Avenue 10
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Palo Alto, California 94301 Telephone: (650) 326-2400 Facsimile: (650) 326-2422 KENNETH L NISSLY (Bar No. 77589) Email: knissly@omm.com SUSAN van KEULEN (Bar No. 136060) Email: svankeulen@omm.com O’MELVENY & MYERS LLP 2765 Sand Hill Road Menlo Park, California 94025 Telephone: (650) 473-2600 Facsimile: (650) 473-2601 KENNETH R. O’ROURKE (Bar No. 120144) Email: korourke@omm.com WALLACE A. ALLAN (Bar No. 102054) Email: tallan@omm.com O’MELVENY & MYERS LLP 400 South Hope Street, Suite 1060 Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Attorneys for HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR MANUFACTURING AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH By: /s/ Vickie L. Feeman

ROBERT E. FREITAS (Bar No. 80948) Email: rfreitas@orrick.com CRAIG R. KAUFMAN (Bar No. 159458)

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MANUFACTURERS’ OPPOSITION TO RAMBUS’S MOTION TO STRIKE

Email: ckaufman@orrick.com VICKIE L. FEEMAN (Bar No. 177487) Email: vfeeman@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: (650) 614-7400 Facsimile: (650) 614-7401 Attorneys for Defendants NANYA TECHNOLOGY CORPORATION and NANYA TECHNOLOGY CORPORATION U.S.A. ATTESTATION CLAUSE REGARDING SIGNATURES I hereby attest that I have on file permission to sign for counsel indicated by a “conformed” signature (/s/) within this document. /s/ Jared Bobrow (Bar No. 133712) Email: jared.bobrow@weil.com

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