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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION RAMBUS INC., v. Plaintiff, Case No. C 05-00334 RMW MANUFACTURERS' OPPOSITION TO RAMBUS'S MOTION FOR LEAVE TO FILE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING UNCONTESTED CLAIM LIMITATIONS Date: Time: Location: Judge: February 5, 2009 9:00 a.m. Courtroom 6 Hon. Ronald M. Whyte

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

Case No. C 05-02298 RMW

Case No. C 06-00244 RMW

MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC., Defendants
MANUFACTURERS' OPPOSITION TO RAMBUS'S MOTION FOR LEAVE TO FILE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING UNCONTESTED CLAIM LIMITATIONS – CASE NOS. C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW

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I.

INTRODUCTION Certainly Rambus has more pressing matters than the untimely motion it seeks leave to file,

which induces understandable déjà vu. Despite the passage of multiple Court scheduled deadlines (including multiple deadlines for summary judgment) and everything this Court and the parties have on their plates, Rambus made the decision to file the instant motion, which flies in the face of the timeliness argument it made with respect to the Manufacturers’ motion for summary judgment based on the Novak reference and merely clogs the Court’s already overwhelmingly crowded docket and unnecessarily distracts the parties from preparation for trial. The motion that Rambus seeks leave to file is unjustifiably late. The deadlines for summary judgment based on claim construction and other summary judgment motions have long since passed. Rambus successfully argued that the Manufacturers’ motion for summary judgment of invalidity based on Novak, although filed on the Court schedule date for summary judgment motions, was untimely because it did not meet the deadline for summary judgment motions based on claim construction. Here, Rambus has failed to meet either deadline for filing summary judgment motions. Moreover, Rambus’s motion, while styled as a motion for partial summary judgment, is in some ways a motion in limine, as it ultimately seeks to limit what the Manufacturers are permitted to argue at trial. The deadlines for motions in limine have also long since passed. Rambus has made no attempt to demonstrate just cause for this motion’s tardiness. Moreover, Rambus’s untimely motion merely serves to distract from the current schedule. When Rambus filed the instant motion, trial was scheduled to begin less than a week later. Even with the month-long delay, the Court and the parties have plenty to occupy their time without being distracted by a motion that merely retreads issues this Court has already decided or that are already submitted for consideration via proper, timely vehicles. The Manufacturers invite the Court, if it has all the time that Rambus seems to think it has, to compare Rambus’s motion for partial summary judgment that it seeks leave to file side-by-side with its motion in limine no. 7. Except for the relief each seeks, they are nearly word for word identical. Although Rambus claims to have brought this motion in the interests of judicial efficiency (the same argument Rambus successfully rebutted with respect to the Manufacturers’ motion for summary
MANUFACTURERS' OPPOSITION TO RAMBUS'S MOTION FOR LEAVE TO FILE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING UNCONTESTED CLAIM LIMITATIONS – CASE NOS. C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW

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judgment based on Novak), it works the opposite effect this late in the case. The motion Rambus seeks leave to file requests an order granting partial summary judgment precluding the Manufacturers from arguing non-infringement of those claim elements that (a) this Court, on summary judgment has already held were infringed or (b) lack an opinion of non-infringement in the Manufacturers’ expert reports. With respect to (a), asking this Court to rule again what it has already ruled is inefficiency of the highest sort. With respect to (b), Rambus has already filed a motion in limine seeking precisely the same relief. All Rambus’s current motion accomplishes is to waste the time and resources of both this Court and the Manufacturers. Accordingly, the Manufacturers respectfully request that this Court deny Rambus’s motion for leave as untimely and unnecessary. II. ARGUMENT A. Rambus’s Motion Is Untimely, and Should Therefore Be Denied

Rambus’s motion is late, and that should end the inquiry. As a motion for partial summary judgment of infringement of certain claim terms, Rambus’s motion turns on claim construction, and was due on October 5, 2007. (See Rambus’s Motion to Strike, Dkt. No. 2533; Order on Motion to Strike, Dkt. No. 2873, at 3-4 (“The parties clearly understood that the court's order set a deadline for filing motions for summary judgment of infringement and non-infringement that turn on the interpretation of a claim term.”).) Rambus successfully argued that such motions are untimely. Therefore, the Court’s rationale for denying the Manufacturers’ motion for summary judgment should also apply with at least equal force to Rambus’s instant motion. Alternatively, to the extent that the motion does not turn on claim construction, such a dispositive motion was due on October 24, 2008 and thus this motion is untimely. If Rambus’s motion is, in fact, a motion in limine, it was due on December 3, 2008. Rambus does not, because it could not, provide a reason as to why its motion should be considered well after these deadlines and on the eve of trial. As such, the Manufacturers respectfully request that the Court deny Rambus’s motion as untimely. B. Rambus's Motion Is Redundant and Inaccurate

Frankly, the Manufacturers cannot comprehend why Rambus would waste the resources of this Court with its current motion, especially when it claims to be concerned with judicial efficiency.
MANUFACTURERS' OPPOSITION TO RAMBUS'S MOTION FOR LEAVE TO FILE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING UNCONTESTED CLAIM LIMITATIONS – CASE NOS. C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW

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Rambus seeks partial summary judgment of two overlapping sets of claim elements. First, it seeks to have the Court enter partial summary judgment for those claim elements highlighted in Exhibit B to its motion. To what end? The Court has already entered partial summary judgment of infringement of these claim elements. Why, then, is Rambus wasting the Court’s time with this motion, which asks the Court to enter the same judgment again? The Manufacturers have no plan to dispute at trial those elements that the Court has already decided on summary judgment. This aspect of Rambus’s Motion is simply unnecessary and a waste of time. Second, Rambus seeks partial summary judgment of those claim elements whose infringement allegedly is uncontested by the Manufacturers’ experts. As an initial matter, Rambus’s own motion is inaccurate. Rambus claims that the “Manufacturers’ expert reports do not contest infringement as to the claim limitations highlighted in Exhibit A attached hereto.” This is not true. As just one example, Rambus’s Exhibit A highlights “receiving the operation code . . . synchronously with respect to an external clock signal” as one of the elements of Claim 16 of the ‘863 patent that is allegedly undisputed by the Manufacturers’ experts. In reality, the Manufacturers’ experts have contested this limitation in their reports. (See, e.g., Expert Report of William K. Hoffman Regarding NonInfringement at 42 (“Micron's DDR3 products do not ‘[receive] data synchronously with respect to the external clock signal’.”) While the Manufacturers did not take the time to verify every highlighted element, it is clear that this Court cannot take Rambus at its word that its motion and exhibits accurately reflect the state of the disputes in this case. Furthermore, Rambus’s motion seeks precisely the same relief it has already requested in a motion in limine. In the instant motion, Rambus seeks to preclude the Manufacturers from arguing noninfringement of those claim elements for which there was no support in the noninfringement expert reports. But Rambus has already sought this relief. (See Rambus’s MIL No. 7, Dkt. No. 2703.) In fact, Rambus readily admits that this motion is redundant: “Rambus’s Motion in limine no. 7 regarding undisputed and resolved claim limitations . . . raised issues substantially similar to those in the present motion.” (Mot. Attach. A (SJ Mot.) at 7 n.4.) Rambus, despite that this motion drains the resources of this Court and the Manufacturers, did not expend any energy writing it; Rambus essentially copied its motion in limine No. 7 and re-titled it a motion for partial summary judgment.
MANUFACTURERS' OPPOSITION TO RAMBUS'S MOTION FOR LEAVE TO FILE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING UNCONTESTED CLAIM LIMITATIONS – CASE NOS. C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW

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Attached hereto as Exhibit A is a copy of Rambus’s instant motion, highlighted to reflect those portions that are carbon copies of Rambus’s motion in limine No. 7. This Court should not even entertain Rambus’s instant, duplicative motion, and Rambus has provided no reason to the contrary. C. Rambus Is Not Entitled to File a Motion Seeking Summary Judgment of Infringement of Claim 16 of the ‘285 Patent by Nanya DDR3

Rambus’s request to file a motion for summary judgment of infringement of Claim 16 of the ‘285 Patent by Nanya’s and Nanya USA’s DDR3 products should also be denied. To begin, Rambus complains that Nanya and Nanya USA have “declined Rambus’s request to stipulate that its DDR3 products infringe” Claim 16. Rambus’s Motion at 11. This is because Rambus is overreaching.1 A more appropriate stipulation would be along the lines of whether the Nanya DDR3 products function in normal operation in the same manner as the Nanya DDR2 products with respect to the steps of method claim 16. Instead of proposing such a narrow stipulation, which might be acceptable to Nanya and Nanya USA, Rambus filed a request to file an untimely motion for summary judgment of infringement. Rambus’s request and motion completely ignore the issues raised in Nanya’s and Nanya USA’s pending motion for summary judgment of non-infringement of the method claims. As set forth in that motion, there is no evidence that Nanya or Nanya USA has infringed any method claim with respect to DDR2 or DDR3 products. Further, Nanya and Nanya USA cannot stipulate that their DDR3 products infringe Claim 16 “for the same reasons as . . . Nanya’s own DDR2 parts” as Rambus requests because it simply is not true. Id. Rambus’s purported “evidence” of direct infringement is not the same with respect to the two product lines. In its expert report, and in response to Nanya’s and Nanya USA’s motion for summary judgment of non-infringement, Rambus alleged that certain Nanya and Nanya USA products were tested in the U.S. However, each of the alleged instances of testing involved DDR2 products. See Dkt # 2455, Nanya Technology Corporation’s and Nanya Technology

Further, at the time Rambus raised this issue, the parties were engaged in discussions regarding Nanya’s and Nanya USA’s proposal to not contest infringement. Had Rambus accepted that proposal, there would have been no need for a stipulation regarding DDR3 products.

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Corporation USA’s Motion for Summary Judgment of Non-Infringement of Method Claims and exhibits thereto (10/24/2008). There is no evidence that any DDR3 products were tested or otherwise used in the U.S. by Nanya, Nanya USA or any third party testing company. Neither Nanya nor Nanya USA will stipulate to infringement that simply has not happened. Nanya and Nanya USA also cannot stipulate that their DDR3 products infringe Claim 16 “for the same reasons” as the other Manufacturers’ DDR3 parts. Id. Neither Nanya nor Nanya USA has sufficient information about the other Manufacturers’ DDR3 products to know whether they function in the same manner with respect to Claim 16 as the Nanya DDR3 parts. Nor would any purportedly infringing activities of the other Manufacturers in the U.S. have any bearing on whether Nanya or Nanya USA practice method Claim 16 in the U.S. III. CONCLUSION For the foregoing reasons, the Manufacturers respectfully request that the Court strike and/or deny Rambus's Motion for Leave to File and Rambus’s Motion for Partial Summary Judgment.

DATED: January 26, 2009

Respectfully submitted,

By:

/s/ Theodore G. Brown, III 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 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

MANUFACTURERS' OPPOSITION TO RAMBUS'S MOTION FOR LEAVE TO FILE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING UNCONTESTED CLAIM LIMITATIONS – CASE NOS. C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW

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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 /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 Los Angeles, CA 90017 Telephone: (213) 443-3000 Facsimile: (213) 443-3100
MANUFACTURERS' OPPOSITION TO RAMBUS'S MOTION FOR LEAVE TO FILE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING UNCONTESTED CLAIM LIMITATIONS – CASE NOS. C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW

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Attorneys for Defendants MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC. /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/ Vickie L. Feeman

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

MANUFACTURERS' OPPOSITION TO RAMBUS'S MOTION FOR LEAVE TO FILE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING UNCONTESTED CLAIM LIMITATIONS – CASE NOS. C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW

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61782024 v1

ATTESTATION CLAUSE REGARDING SIGNATURES Pursuant to General Order No. 45, Section X(B) regarding signatures, I attest under penalty of perjury that I have on file permission to sign for co-counsel indicated by a “conformed” signature (/s/) within this e-filed document. /s/ Theodore G. Brown, III

MANUFACTURERS' OPPOSITION TO RAMBUS'S MOTION FOR LEAVE TO FILE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING UNCONTESTED CLAIM LIMITATIONS – CASE NOS. C 05-00334 RMW; C 05-02298 RMW; C 06-00244 RMW

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