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KILPATRICK TOWNSEND & STOCKTON LLP THEODORE G. BROWN, III (SBN 114672) 1080 Marsh Road Menlo Park, California 94025 Telephone: (650) 326-2400 Facsimile: (650) 326-2422 Email: tbrown@kilpatricktownsend.com OMELVENY & MYERS LLP KENNETH L. NISSLY (SBN 77589) SUSAN van KEULEN (SBN 136060) SUSAN ROEDER (SBN 160897) 2765 Sand Hill Road Menlo Park, California 94025 Telephone: (650) 473-2600 Facsimile: (650) 473-2601 Email: knissly@omm.com svankeulen@omm.com sroeder@omm.com Attorneys for Plaintiffs, HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH UNITED STATES DISTRICT COURT FOR THE 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 SUPPLEMENTAL DECLARATION OF THEODORE G. BROWN III IN SUPPORT OF (1) MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF THE COLLATERAL ESTOPPEL EFFECT OF REEXAMINATIONS OF RAMBUSS PATENTS; (2) MOTION FOR LEAVE TO FILE SUPPLEMENTAL REPLY TO DEFENDANT AND COUNTERCLAIM OF PLAINTIFF RAMBUS INC.S AMENDED COUNTERCLAIM; AND (3) MOTION FOR NEW TRIAL AND MOTION FOR STAY Date: December 19, 2012 Time: 2:00 p.m. Ctrm: 6 (Hon. Ronald M. Whyte) ///
SUPPLEMENTAL DECLARATION OF BROWN CASE NO. CV-00-20905 RMW

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I, Theodore G. Brown, III, declare: 1. I am an attorney licensed to practice law in the State of California and admitted to

practice before this Court. I am also admitted to practice before the United States Patent and Trademark Office (USPTO), with Registration No. 31,741. I am a partner in the law firm of Kilpatrick Townsend & Stockton LLP, attorneys for SK hynix Inc. (f/k/a Hynix Semiconductor Inc.), SK hynix America Inc. (f/k/a Hynix Semiconductor America Inc.), SK hynix U.K. Limited (f/k/a Hynix Semiconductor U.K. Ltd.), and SK hynix Deutschland GmbH (f/k/a Hynix Semiconductor Deutschland GmbH) (collectively Hynix) in the above-captioned matter. 2. Attached hereto as Exhibit 46 is a copy of the October 23, 2012, decision of the

Patent Trial and Appeal Board (PTAB), regarding Rambuss appeal from the examiner decisions in inter partes reexamination numbers 95/000,250 and 95/001,124 rejecting claims 1-28 of US Patent No. 6,425,863 (the 863 patent). 3. In its decision regarding the 863 patent, the PTAB affirmed the rejection of claim 1-

20 and 24-28 as anticipated by the iAPX reference. (Taylor Decl., Exh. 30) See Exhibit 46, page 12. The PTAB also affirmed the rejections of 863 claim 21 as obvious over the combination of iAPX and Lofgren. (Taylor Decl., Exh. 33) See Exhibit 46, page 15. The PTAB affirmed the rejection of 863 claim 22 as obvious over the combination of iAPX and Inagaki. (Taylor Decl., Exh. 32) See Exhibit 46, page 26. Finally, the PTAB affirmed the rejection of claim 23 as obvious over the combination of iAPX, Inagaki, and Lofgren. See Exhibit 46, page 27. 4. Independent claims 1 and 14 and dependent claims 22-24 are reproduced in Exhibit

46, on pages 3-4. All of the rejected 863 claims refer to block size information, sometimes referenced as variable burst length. Claims 22 and 24 also refer to a delay locked loop. Claim 23 and 24 also refer to dual edge clocking or double data rate. 5. As mention in the Taylor Decl., 15, the BPAI (since renamed the PTAB) issued its

decision regarding the inter partes reexaminations of US Patent No. 6,182,184 (the 184 patent) on January 19, 2012 (Taylor Exh. 16), and denied Microns request for rehearing in a decision dated July 25, 2012. (Taylor Exh. 17)

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6.

This BPAI decision denying Microns request for rehearing was final and

appealable, under 37 C.F.R. 41.81, to the US Court of Appeals for the Federal Circuit The procedure for filing such an appeal is outlined in 37 C.F.R 1.983, which requires a Notice of Appeal with the USPTO, 37 C.F.R. 1.983((b)(1), and forwarding this notice (and the fee for appeal) to the Federal Circuit. 37 C.F.R. 1.983((b)(2). The Notice of Appeal must be filed within two months of the date of the decision to be appealed. 37 C.F.R. 1.304(a). As a result, any Notice of Appeal regarding the 184 reexaminations would have been due September 25, 2012. 7. Although it is possible to file documents with the USPTO by mail, normally, all

documents, including any Notice of Appeal to the Federal Circuit, are filed electronically with the US Patent and Trademark Office, through the USPTOs Patent Application Information Retrieval (PAIR) electronic filing system. When a document is filed electronically, it normally is posted to PAIR system immediately or very shortly thereafter and available for download from PAIR. The files of all public proceedings (including reexaminations) are maintained on PAIR, accessible at http://portal.uspto.gov/external/portal/pair. 8. Attached as Exhibits 47 and 48 are extracts listing all the documents filed in

connection with the two inter partes reexamination proceedings regarding the 184 patent, assigned serial numbers 95/000,183 and 95/001,112. Each lists the last document filed as the July 27, 2012, decision of the BPAI; neither shows any indication of the filing of a Notice of Appeal. 9. Further, appeals from the BPAI (or PTAB) are normally docketed by the Federal

Circuit within a few days of the filing of the Notice of Appeal with the US Patent and Trademark Office. As of March 17, 2012, all documents in connection with appeals filed after that date are filed electronically via the Federal Circuits ECF system. See http://www.cafc.uscourts.gov/cm/ecf/case-management/electronic-case-files.html. As of November 1, 2012, no appeal by Rambus in connection with the 184 reexaminations has been docketed by the Federal Circuit according to its ECF system. 10. As a result, there is no evidence available that Rambus has appealed the BPAI

decision regarding the 184 patent, and all available evidence indicates that it did not.

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11.

On about October 25, 2012, after the PTAB decision regarding the 863 patent

issued, in the course of discussions regarding the briefing and hearing schedule of these motions, I informed Mr. Rollin Ransom, counsel for Rambus, that the pending motions regarding the reexaminations would be supplemented regarding the PTAB decision and Rambuss apparent failure to appeal the BPAI decision regarding the 184 patent. Since that time, counsel for Rambus has not provided any indication that any appeal has in fact been filed from the BPAI decision regarding the 184 patent. I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Executed this 2nd day of November, 2012, at Menlo Park, California. ___________________________ Theodore G. Brown, III

64643821V.1

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