Case 5:05-cv-00334-RMW

Document 3003-4

Filed 12/29/2008

Page 1 of 2

From: To: cc:

Stone, Gregory Bobrow, Jared;
Powers, Matthew D; Cherensky, Steven; knisslyQ?omm.com;

tgbrown(§townsend.com; rfreitas(§orrick.com; Lender, David J;

Subject: Date:

Stone, Gregory; Counter-proposal regarding trial protocol
Monday, December 29,20081:31:30 PM

Dear Jared,

I am wrting in response to the Manufacturers' two proposals regarding how the
trial should proceed. We believe the two proposals are procedurally improper, not

consistent with the Federal Rules or controllng precedent, and unacceptably unfair to Rambus. If need be, we will file a brief with the Court on January 5 setting forth the bases for our objections. Rather than doing so, however, I want to propose an alternative strcture for the tral.
The specific elements of our proposal are as follows:
i. The Court wil enter a final order determining that various and

specifically identified products infringe the claims in suit, with the specification of which products infringe which claims to be consistent with Mr. Murphy's infrngement report and Rambus's
infringement contentions. This order wil be based on the Court's

November 24, 2008, the additional factual submission to be made by Rambus as described in paragraph 4 below, and the Manufacturers' statement that they wil no longer contest infrngement. An appeal with regard to this finding of infringement can be taken only to the extent the finding depends upon the claim constrction order, the November 24,2008
claim constrction order, its Order of

Order, or both.

2. The Court's final order determining infringement also wil extend to

the SDR and DDR products of Samsung and Nanya that are accused
in this case. The patent claims to be adjudicated as infringed by

these SDR and DDR parts wil be the same claims asserted against the DDR2+ products. The parties wil need to reach agreement on which of these claims wil be found to be infringed by which specific SDR and DDR products.
3. The Court's final order adjudicating infringement wil have the

same force and effect as if it had been entered after a full tral and

Case 5:05-cv-00334-RMW

Document 3003-4

Filed 12/29/2008

Page 2 of 2

jury verdict determining Rambus' s infrngement claims in Rambus's favor and shall also compel a dismissal on the merits and with prejudice of the Manufacturers' counterclaims for a declaratory
judgment of non-infrngement.
4. For purposes of an appeal from the final determination of

infringement, the record that was developed in connection with the summary judgment motions shall be supplemented by Mr. Murphy's reports regarding infrngement and such other evidence, including exhibits, designated wrtten discovery responses, and designated prior testimony as Rambus may choose to submit as part of an offer of proof. 5. The tral shall proceed with Rambus as the plaintiff and the first issue to be tried wil be damages. This is consistent with the tral protocol followed in Hynix 1. The Manufacturers' claim that Rambus's patents are not valid shall be the second issue tred. To be clear, the only grounds for invalidity that wil be tried wil be those set forth in Mr. McAlexander's invalidity reports, subject to Rambus's pending Daubert and in limine motions and to any further objections it may make prior to or during tral. In other words, there shall be no expansion of the issues as the result of our agreement,
assuming we reach agreement on this proposaL.
6. The jury shall be instrcted, consistent with the specifics of the

7. If

order to be entered, as to which specific products have been found to infringe which specific patent claims. Rambus requests that a witness employed by or under the control of one of more of the Manufacturers testify live at trial, and if the witness is not produced as and at the time requested, the Manufacturers may not call that witness to testify live during any of the remaining proceedings in these coordinated actions, including specifically during the trial of wilfulness. 8. All of the Manufacturers shall remain as parties in the upcoming
triaL.

Jared, please let me know if

this proposal is acceptable to the Manufacturers.

Greg

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