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KENNETH NISSLY (SBN 77589) knissly@omm.com SUSAN VAN KEULEN (SBN 136060) svankeulen@omm.com SUSAN ROEDER (SBN 160897) sroeder@omm.com MISHIMA ALAM (SBN 271621) malam@omm.com O'MELVENY & MYERS LLP 2765 Sand Hill Road Menlo Park, California 94025 Telephone: (650) 473-2600 Facsimile: (650) 473-2601 KENNETH OROURKE (SBN 120144) korourke@omm.com OMELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 [Additional counsel listed on signature page.] Attorneys for Plaintiffs HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH, Plaintiffs, v. RAMBUS INC., Defendant.

Case No. CV 00-20905 RMW SK HYNIXS ADMINISTRATIVE MOTION FOR LEAVE TO FILE REPLY TO RAMBUSS BRIEF REGARDING THE COURTS DETERMINATION OF A RAND RATE PURSUANT TO ITS SEPTEMBER 21, 2012 ORDER Hearing Date: Time: Place: Judge: TBD TBD Courtroom 6, 4th Floor Hon. Ronald M. Whyte

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Pursuant to Civil Local Rule 7-11, Hynix1 hereby moves the Court for leave to file a reply to Rambuss Brief Regarding the Courts Determination of a RAND Rate Pursuant to its September 21, 2012 Order, filed November 13, 2012 (D.E.4182) (Rambus Brief). The Rambus Brief does not address the question presented in the Courts September 21 Order (D.E. 4160) -what royalty rate will ensure Hynix is not placed at a competitive disadvantage? -- but instead advances new arguments and submits new evidence, including a declaration from a new Rambus damages consultant who has never been deposed or cross-examined by Hynix, and the Hynix RDRAM license (which was not in evidence in the parties patent trial). Hynix has not had an opportunity to respond to this evidence. Hynix therefore files this administrative motion for leave to file the reply attached as Exhibit A to ensure that the Court has before it all facts necessary to make an informed decision on the issues upon which the Court ordered briefing in its September 21 Order. Separately, Hynix is submitting an Objection to the Declaration of Brian M. Hammer that Rambus submitted in support of the Rambus Brief. The Courts initial briefing schedule regarding sanctions for Rambuss spoliation did not provide an opportunity for Hynix to file a reply brief. Sept. 21 Order, at 65:18-66:1. In its opening brief, Hynix reserved the right to seek leave to file a reply brief depending on the contents of Rambuss brief. See SK hynixs Brief Regarding Sanctions for Rambuss Spoliation, filed October 30, 2013 (D.E. 4176) (Hynix Brief), p. 9 n.8. Rambus has now submitted its brief, which treats the current proceeding as if it were a new (bench) trial on damages, rather than a proceeding to determine a sanction for Rambuss bad faith or willful, prejudicial spoliation. Rambus now argues that the Court should calculate damages in this case by applying the royalty rate for Other DRAM in Hynixs RDRAM license with Rambus. Rambus never made this argument during the 2006 patent trial, which is the proceeding where the now-vacated damages judgment originated; indeed, Hynixs RDRAM license was not even in evidence during the patent trial. Although the Other DRAM provision was in evidence in the conduct trial, the On October 5, 2012, the parties formerly collectively referred to as Hynix filed an Administrative Motion informing the Court of changes to the those parties names. As of the date of filing this motion, the Administrative Motion had not been granted. For purposes of this motion, these parties continue to be referred to as Hynix.
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issue there was whether Rambus was equitably estopped from enforcing its SDR SDRAM and DDR SDRAM patents against Hynix as a result of Rambuss silence about the scope of its patent rights during the negotiation of the Other DRAM provision, not whether the royalty rate for Other DRAM was a RAND rate or a reasonable royalty. These are very distinct issues, and thus Hynix now needs an opportunity to address Rambuss new arguments regarding the Other DRAM clause. Hynix will be prejudiced if it is not given an opportunity to reply to the Rambus Brief. As explained in the Hynix Brief, all evidence regarding Rambuss claim for royalties that was admitted during the 2006 patent trial was stricken in the September 21 Order. Hynix Brief 10:112:15. Rambus does not dispute this, but has now come forward with new evidence and arguments that it claims entitle it to an enormous damages award. Rambus Brief, p. 20:12-13. For the Court to decide a royalty rate that Hynix must pay based on Rambuss submission, without giving Hynix a chance to respond to that submission, would be highly prejudicial. For the foregoing reasons, Hynix respectfully requests that the Court grant Hynix leave to file the Reply in Support of SK hynixs Brief Regarding Sanctions for Rambuss Spoliation attached as Ex. A. Dated: November 20, 2012 By: /s/ Kenneth L. Nissly Kenneth L. Nissly KENNETH L. NISSLY SUSAN van KEULEN SUSAN ROEDER OMELVENY & MYERS LLP KENNETH R. OROURKE OMELVENY & MYERS LLP THEODORE G. BROWN III KILPATRICK TOWNSEND & STOCKTON LLP Attorneys for Plaintiffs HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH
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SK HYNIXS ADMINISTRATIVE MOTION FOR LEAVE TO FILE REPLY CV 00-20905 RMW