Case 5:05-cv-00334-RMW Document 3003-4 Filed 12/29/2008 Page 1 of 2

From: Stone, Gregory

To: Bobrow, Jared;
cc: Powers, Matthew D; Cherensky, Steven; knisslyQ?omm.com;
tgbrown(§townsend.com; rfreitas(§orrick.com; Lender, David J;
Stone, Gregory;
Subject: Counter-proposal regarding trial protocol
Date: 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
claim constrction order, its Order ofNovember 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
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
order to be entered, as to which specific products have been found
to infringe which specific patent claims.
7. If 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