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Gregory P. Stone (SBN 078329) Steven M. Perry (SBN 106154) MUNGER TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Email: gregory.stone@mto.com; steven.perry@mto.com Peter A. Detre (SBN 182619) MUNGER TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, California 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Email: peter.detre@mto.com Attorneys for RAMBUS INC.

Rollin A. Ransom (SBN 196126) SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013-1010 Telephone: (213) 896-6000; Facsimile: (213) 896-6600 Email: rransom@sidley.com

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

HYNIX SEMICONDUCTOR INC., et al., Plaintiffs, v. RAMBUS INC., Defendant.

CASE NO. CV 00-20905 RMW RAMBUS’S ADMINISTRATIVE MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF REGARDING THE COURT’S DETERMINATION OF A RAND RATE PURSUANT TO ITS SEPTEMBER 21, 2012 ORDER Date: Time: Ctrm: Judge: TBD TBD 6 Hon. Ronald M. Whyte

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ADMIN. MOTION FOR LEAVE TO FILE SUPPLE. BRIEF RE COURT’S DETERMINATION OF RAND RATE PURSUANT TO 9.21.2 ORDER, NO. CV 00-20905 RMW

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Pursuant to Local Rule 7-11, Rambus respectfully requests that, if the Court grants Hynix’s motion (D.E. 4192) to file its proposed 10-page supplemental brief on RAND issues, Rambus also be granted leave to file a supplemental brief in response. Rambus’s proposed supplemental brief is attached hereto as Exhibit A. In its Findings of Fact and Conclusions of Law on Spoliation and the Unclean Hands Defense (“9/21/12 Order”), the Court ordered Hynix and Rambus to each file a single brief, not to exceed twenty pages, that “address[ed] what a reasonable, nondiscriminatory royalty would be with respect to the patents-in-suit.” 9/21/12 Order at 65. In its brief, Hynix declined to address the RAND issue posed by the Court, claiming that the RAND determination was a “complicated matter.” Hynix’s Br. Regarding Sanctions for Rambus’s Spoliation, Oct. 30, 2012 (D.E. 4176) (“Hynix Remedy Br.”), at 9. After the parties filed their respective remedy briefs, Hynix moved, without first attempting to obtain a stipulation from Rambus as required by Local Rule 7-11(a), for leave to file a supplemental brief regarding the RAND issues that it could have addressed, but chose not to address, in its remedy brief. See Rambus’s Opp’n to Hynix Application Under L.R. 7-11 to File an Additional Brief on RAND Issues, Nov. 26, 2012 (D.E. 4196). Hynix then rejected a stipulation Rambus proposed that which would have permitted Hynix to file its 10-page supplemental brief, and Rambus to file a 5-page supplemental brief. See Declaration of Rollin A. Ransom in Support of Rambus’s Opp’n to Hynix’s Application, Nov. 26, 2012, at ¶¶ 4, 6, attached hereto as Exhibit B. Hynix’s position is that it alone should be permitted to exceed the page limit set by the Court, that it alone should be permitted to file a supplemental brief, and that it should be given the last word even though the 9/21/12 Order directed otherwise. There is no justification for providing Hynix such special treatment. Rambus should be permitted leave to file a supplemental brief in order to respond to Hynix’s new RAND arguments raised for the first time in its proposed additional brief. Hynix had argued in its remedy brief that “RAND rates are those rates that would have been obtained ‘just before’ the patented inventions were incorporated into the industry
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standards” (Hynix Remedy Br. at 11:18-19), yet Hynix failed to discuss any of the extensive record evidence in this case regarding royalty rates Rambus and Hynix had negotiated for non-RDRAM devices in that time period. Hynix’s proposed supplemental brief addressed that evidence for the first time. Ex. A. to Hynix’s Admin. Mot. for Leave (D.E. 4192-1) (“Hynix Suppl. Br.”), at 1-6. If Hynix had addressed the RAND issues in its remedy brief, Rambus could have responded in its own remedy brief, and the briefing could have been completed within the limits set by the 9/21/12 Order. Instead, Hynix pursued a wait-and-see strategy, claiming that the RAND issues that the Court had ordered it to address were just too complicated to bother with. It is apparent from Hynix’s proposed supplemental brief that a further reason it decided not to address the RAND issue in its initial brief is that it intended to use a reply brief to try to misrepresent the record. Hynix tells this Court, for example, that the “Other DRAM” rate that the parties negotiated in 1995 is irrelevant to the RAND analysis because “[t]he Court has found that at the time of the negotiation of the Other DRAM clause, Dr. K.H. Oh of Hynix ‘did not believe ‘Other DRAM’ encompassed Hynix’s JEDEC-standard SDRAM. . . .’” Hynix Suppl. Br. at 3:25-27, citing Phase III (Conduct Trial) Findings of Fact and Conclusions of Law, March 3, 2009 (D.E. 3904) 37:24-38:1). Not so. This Court explicitly found that Dr. Oh’s “credibility on this issue was questionable” and that “Hynix suspected that Rambus might have patent coverage of products like SDRAM in 1995 when it sought the expansive language in the ‘Other DRAM’ clause. . . .” Id. at 42:4-6; 52:22-24. Rambus should have the opportunity, through the attached supplemental brief, to correct such mischaracterizations. For these reasons, if the Court grants Hynix’s motion for leave, Rambus respectfully requests that the Court grant Rambus leave to file its proposed supplemental brief.

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DATED: November 30, 2012

MUNGER, TOLLES & OLSON LLP SIDLEY AUSTIN LLP By: /s/ Steven M. Perry Steven M. Perry

Attorneys for RAMBUS, INC.

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