2802

TOWNSEND and TOWNSEND and CREW

Palo Alto

379 Lytton Avenue

Palo Alto, California 94301-1431

Tel 650.326.2400 Fax 650.326.2422

Theodore G. Brown, III

LLP

650324.6353 tg brown iQtownsend. com

December 9,2008

VIA E-Mail and Hand Delivery

The Honorable Ronald M. Whyte United States District Court San Jose Division 2112 U.S. Courthouse 280 S. First Street Courtroom 6, 4th Floor San Jose, CA 95113 Re: Rambus v. Hynix, et al., U.S.D.C. N.D. CaL., CV -05-00334 RMW Rambus v. Sam sung, et al., U.S.D.C. N.D. CaL., CV-05-02298 RMW Rambus v. Micron, et al., U.S.D.C. N.D. CaL., CV-05-00244 RMW Our Reference No. 000939-090100

Dear Judge Whyte:

I write in response to Peter Detre's December 8, 2008 letter to the Court on behalf of the term new issues into the "memory device." This revised construction introduces a number of the parties in the infringement and litigation that have not previously been addressed by any of invalidity contentions, expert reports and depositions, or infringement summary judgment motions. Fairness and orderly trial management as reflected in the Local Patent Rules, require

Rambus regarding the Court's clarified, and significantly different, construction of

that the new issues raised by the revised construction be propedy framed prior to triaL.

To that end, on December 4,2008, the Manufacturers proposed to Rambus a very ambitious schedule of supplemental contentions, expert reports, and expert depositions that these new issues, all without affecting would have allowed at least some orderly consideration of the current trial date. (See the Raz letter attached to Rambus's letter.) Rather than even discuss this schedule with the Manufacturers, however, Rambus has simply dismissed the need for any Ram bus's further development of these new issues or any adequate notice prior to trial of positions. The revised construction raises a number of new issues, including whether a "memory device" must be smaller than any prior art memory board, including prior art memory modules

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TOWNSEND and TOWNSEND and CREW

The Honorable Ronald M. Whyte December 9, 2008 Page 2

LLP

(and, if so, by how much); what the other components of a memory subsystem can comprise; how to determine which "memory devices" have "low power dissipation"; and what level of power dissipation would allow close spacing of the memory device to the other components of the memory subsystem. None of these issues have previously been addressed in any of the parties' contentions, expert reports or depositions, or infrngement summary judgment papers. This is understandable, since no party suggested or contemplated these characteristics of a "memory device" and all of the parties' prior submissions preceded the Court's clarification of the term. All of these new issues must be properly framed before trial, for both infringement and validity, to avoid the unfair trial by surprise that the rules of discovery and disclosure are intended to avoid.

Mr. Detre's December 8 letter amounts to little more than an un-noticed motion for clarification of the Court's construction, and blithely takes the position that the additional limitations of the Court's construction are irrelevant to whether the Manufacturers infrnge, while carefully reserving both Rambus's positions as to whether these new limitations are met in the prior art and its ability to hamstring the Manufacturers' expert testimony at triaL. Rambus's selective quotations from the Court's Order of November 21,2008 and one-sided interpretations the Court's revised construction set out in this Order demonstrate the fundamental fairness of of the provisions in the Local Patent Rules providing for additional infrngement and invalidity contentions after a new and unanticipated claim construction is issued

The Manufacturers will be prepared to discuss these issues furher at the December 10 hearing. Very truly yours,

Theodore G. Brown, III TGB/amg cc: Gregory P. Stone (via e-mail gregory.stone(fmto.com) Peter A. Detre (via e-mail peter.

61383936 vI

detre(fmto.

com)