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Gregory P. Stone (SBN 078329) Fred A. Rowley, Jr. (SBN 192298) 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 Email: Fred.Rowley@mto.com Peter A. Detre (SBN 182619) Carolyn Hoecker Luedtke (SBN 207976) MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco,CA 94105-2907 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Email: peter.detre@mto.com Email: carolyn.luedtke@mto.com Attorneys for RAMBUS INC.

Rollin A. Ransom (SBN 196192) 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 Pierre J. Hubert (Pro Hac Vice) Craig N. Tolliver (Pro Hac Vice) MCKOOL SMITH PC 300 West 6th Street, Suite 1700 Austin, TX 78701 Telephone: (512) 692-8700 Facsimile: (512) 692-8744 Email: phubert@mckoolsmith.com Emali: ctolliver@mckoolsmith.com

12 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 17 HYNIX SEMICONDUCTOR, INC., et al., 18 Plaintiffs, 19 v. 20 RAMBUS INC., 21 Defendant. 22 23 24 25 26 27 28
RAMBUSS OPPOSITION TO HYNIXS 2D SUPPLEMENTAL BILL OF COSTS CASE NO. 00-20905 RMW

CASE NO. CV 00-20905 RMW RAMBUS INC.S OPPOSITION TO HYNIXS SECOND SUPPLEMENTAL BILL OF COSTS Judge: Ctrm: Honorable Ronald M. Whyte 6

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Pursuant to Local Rule 54-2, Defendant Rambus Inc. (Rambus) respectfully submits this Opposition to the Second Supplemental Bill of Costs filed on December 9, 2011 by Hynix Semiconductor Inc., Hynix Semiconductor American, Inc., Hynix Semiconductor U.K., Ltd., and Hynix Semiconductor Deutschland GmbH (collectively, Hynix). In its Second Supplemental Cost Bill, Hynix sought to recover a further $1,267,297.83 in costs pursuant to Federal Rule of Appellate Procedure 39(e). (Second Supp. Bill at 1.) Hynix claimed that these costs were incurred subsequent to the filing of its Supplemental Bill of Costs on Aug. 24, 2011. Of these additional sums, $551,695 consist of payments of supersedeas bond premiums, and $715,602.83 comprise fees paid to various Korean banks on top of supresedeas bond premiums. (Third Supp. Decl. of Yoo Ho Roh, Dec. 9, 2011 (Roh 3d Supp. Decl.) 3, 5.) All of these are in addition to the $15,186,020.02 claimed by Hynix in its initial Bill of Costs and Supplemental Bill of Costs. (See Rambuss Oppn to Hynixs Bill of Costs and Supp. Bill of Costs, Sept. 20, 2011 (Rambus 9/20 Oppn), at 5 (summarizing Hynixs claimed costs).) 1 As Rambus explained in its opposition to Hynixs prior cost bills, if the Court does not deny Hynixs cost bills outright now (id. at 12-14), the Court should decide them at the end of remand proceedings, after the case has been resolved on the merits (id. at 14-15). If Rambus emerges as the judgment winner, then all of Hynixs cost bills should be denied. (Id.) If Hynix prevails, the Court can assess the cost bills in light of that outcome, while considering the relevant factors in its discretion. (Id. at 12-14.)2 On December 9, 2011, Hynix also filed a Supplemental Response In Support of Hynixs Bill of Costs and Supplemental Bill of Costs, in which Hynix argued for the release of the supersedeas bond and funds in the escrow account. That was procedurally improper. It was not provided for by the Stipulation and Order Regarding Schedule for Briefing with Regard to Hynixs Bill of Costs, June 23, 2011, and it was inappropriate for Hynix to put forth a new request for relief without first filing a noticed motion. As Rambus explained at the hearing of December 16, 2011, while Hynixs petition for certiorari review is pending or if it is granted, it is not impossible for the Supreme Court to remand the unclean hands issue on its own, thus making it premature to discharge the bond and the escrow under the parameters established by the Court and the parties. (12/16/2011 Reporters Transcript 28:1-30:16.) Given the importance of the issue, Rambus respectfully requests that the Court, if it chooses to consider Hynixs request, require full briefing on a noticed motion before granting Hynix any relief. (Id. at 30:2-9.) 2 Rambus incorporates by reference the arguments made in its Opposition to Hynixs Bill of Costs and Supplemental Bill of Costs, filed Sept. 20, 2011. Rambuss objections here are the same objections Rambus made with respect to Hynixs initial Bill of Costs and Supplemental Bill of Costs. (See Rambus 9/20/11 Oppn.) Counsel for the parties have previously met and conferred regarding these objections. (See Joint Statement of Disputed Costs, Oct. 3, 2011.) -1RAMBUSS OPPOSITION TO HYNIXS 2D SUPPLEMENTAL BILL OF COSTS CASE NO. 00-20905 RMW
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First, the Court has broad discretion with respect to Hynixs Rule 39(e) cost bills. See Republic Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442, 448-49 (7th Cir. 2007) ([A] district court has discretion not to award a party costs under Federal Rule of Appellate Procedure 39(e), despite an order by the appellate court awarding costs to that same party.); L-3 Communications Corp. v. OSI Sys., Inc., 607 F.3d 24, 30 (2d Cir. 2010) (a district court has broad discretion in awarding costs . This includes costs taxable in the district court under Rule 39(e).); Rambus 9/20/11 Oppn at 8-11. This is similar to the broad discretion the Court also has with respect to district court costs under Federal Rule of Civil Procedure 54(d). Johnson v. Pacific Lighting Land Co., 878 F.2d 297, 298 (9th Cir. 1989) (citing discretion under Rule 54(d) in reviewing Rule 39(e) costs); Wal-Mart Stores, Inc. v. Crist, 123 F.R.D. 590, 594 (W.D. Ark. 1988) (relying on Rule 54(d) case law to interpret Rule 39). Second, the Court, in exercising its discretion, should consider the outcome on remand. (Rambus 9/20/11 Oppn at 14-15.) How the case is ultimately resolved on the merits is an essential consideration in deciding whether to award Rule 39(e) costs. Berthelsen v. Kane, 907 F.2d 617, 622-23 (6th Cir. 1990); see also, e.g., Wal-Mart, 123 F.R.D. at 593 (denying bond costs because the final result of this litigation gave each of the parties something). If Rambus prevails on remandand Rambus firmly believes it willthe appeal merely would have resulted in a further delay of the judgment to which [Rambus] was rightfully entitled. Berthelsen, 907 F.2d at 623. In that scenario, the Court should exercise its discretion to deny all of Hynixs cost bills. Costs are meant to reimburse the winner in litigation, not the loser. Third, Hynixs Second Supplemental Cost Bill, like its prior cost bills, is excessive. Over half ($715,602.83) of these newly claimed costs consist of bank fees paid in addition to supresedeas bond premiums. (Roh 3d Supp. Decl. 5.) Controlling Ninth Circuit law holds that these bank fees are simply not taxable, because they are not expressly enumerated by Rule 39(e). Johnson, 878 F.2d at 298. Hynix claims that the bank guarantees were required by the bond surety (Roh 3d Supp. Decl. 4), but that was precisely the situation in Johnson, 878 F.2d at 297. And with respect to the newly claimed $551,695 in bond premiums, they should be denied for reasons stated above. To the extent the Court decides to tax any new bond premiums, they should -2RAMBUSS OPPOSITION TO HYNIXS 2D SUPPLEMENTAL BILL OF COSTS CASE NO. 00-20905 RMW

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be reduced by 4/5, to $110,337, to reflect the fact that Hynix lost four of the five issues it raised on appeal. (See Rambus 9/20/11 Oppn at 16.) For all of the foregoing reasons, the Court should decide Hynixs Second Supplemental Bill at the end of the remand proceedings, along with Hynixs other cost bills, and deny them if Rambus prevails on remand. If the Court taxes any of the newly claimed costs, they should be reduced as set forth above.

Dated: December 23, 2011

MUNGER, TOLLES & OLSON LLP SIDLEY AUSTIN LLP MCKOOL SMITH PC

By:

/s/ Gregory P. Stone Gregory P. Stone Attorneys for RAMBUS INC.

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RAMBUSS OPPOSITION TO HYNIXS 2D SUPPLEMENTAL BILL OF COSTS CASE NO. 00-20905 RMW