Case 1:00-cv-00792-SLR Document 1091 Filed 01/26/2009 Page 1 of 5

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

1201 N O R T H M A R K E T S T R EE T
P.O. B O X 1347
W I L M I N G T O N , D E L A W A R E 19899-1347

302 658 9200

302 658 3989 F A X
M A R Y B. G R A H A M
302.351.9199
mgraham@mnat.com

January 26, 2009

BY ELECTRONIC FILING

The Honorable Sue L. Robinson

United States District Court
Federal Building
844 King Street
Wilmington, DE 19801

Re: Micron Technologies, Inc. v. Rambus Inc., C.A. No. 00-792 (SLR)

Dear Judge Robinson:

Rambus submits this letter pursuant to the Court’s request (1/16/09 Tr. 16) that
the parties set forth their respective positions regarding the proper mechanism for appeal of this
Court’s January 9, 2009 Opinion and accompanying Order (“January 9th Order”).

During the January 16th teleconference with the Court, Micron asserted that the
Court may enter judgment on Rambus’s claims for patent infringement under Federal Rule of
Civil Procedure 54(b). Any decision on the Rule 54(b) issue must take into account the
relationship between the findings in the January 9th Order and Micron’s remaining claims in
addressing the threshold question of whether there is “no just reason for delay” in entering
judgment. In light of this relationship, Rambus believes that a Rule 54(b) judgment is
appropriate only if the Court stays Micron’s remaining claims until an appeal from the January
9th Order is resolved. Absent such a stay, the “no just cause for delay” requirement of Rule 54(b)
would not be satisfied.

In addition, as the Court is aware, Judge Whyte has previously issued findings on
spoliation that conflict with this Court’s January 9th Order. Both Rambus and Micron, as well as
Judge Whyte, have indicated an interest in having Judge Whyte’s spoliation findings reviewed
on appeal together with this Court’s January 9th Order. Judge Whyte has stated that he is
working towards entering a final judgment in Rambus’s litigation with Hynix; this judgment
would encompass his spoliation findings as well as the jury verdicts in Rambus’s favor on its
patent infringement claims against Hynix and on JEDEC-related antitrust, fraud, and unfair
competition claims against Rambus. In order to facilitate coordinated appellate review, Rambus
believes that this Court should defer entry of a Rule 54(b) judgment until Judge Whyte enters the
judgment referenced above. Micron and Rambus are scheduled to appear before Judge Whyte
 Case 1:00-cv-00792-SLR Document 1091 Filed 01/26/2009 Page 2 of 5

The Honorable Sue L. Robinson

January 26, 2009
Page 2

on Friday, January 30, to discuss (among other issues) the timing of Judge Whyte’s entry of
judgment. Based upon Judge Whyte’s comments to date, Rambus anticipates that Judge Whyte
will enter judgment in the near future. Rambus will update this Court on developments from that
January 30 hearing that are pertinent to the issues before this Court.

Background

When assessing the proper means for proceeding, it is necessary to consider the
following: (1) which claims were resolved by the January 9th Order and which claims remain
pending; (2) the status of the similar claims pending before Judge Whyte; and (3) the possible
impact, if any, of the January 9th Order on the pending claims both here and in California.

Claims Resolved By, and Still Pending After, the January 9th Order. Micron1
initiated this suit by asserting affirmative claims for, inter alia, violations of the antitrust laws,
fraud, and deceptive trade practices, and seeking a declaration that certain of Rambus’s patents
were invalid, unenforceable, and not infringed. After various amended pleadings, counterclaims,
and counterclaims in reply, as of the time of the January 9th Order, Micron had asserted claims
for Declaratory Judgment of Invalidity, Unenforceability and Noninfringement as to each of the
twelve Rambus patents-in-suit, as well as eight other affirmative claims, and Rambus had
asserted counterclaims against Micron for infringement of each of the twelve patents in suit.

In the January 9th Order, the Court held that each of the patents-in-suit is
unenforceable against Micron. Accordingly, Rambus believes that the January 9th Order
resolved all of Rambus’s counterclaims for patent infringement. In addition, Rambus believes
that the finding of unenforceability as to Micron mooted Micron’s declaratory judgment claims,
because there is no need to find invalidity, noninfringement or unenforceability of those patents
on other grounds. The January 9th Order did not, however, resolve any of Micron’s other
affirmative claims, which, with one exception, are all JEDEC-related or JEDEC-based:

- Monopolization and Attempted Monopolization, 15 U.S.C. §2

- Monopolization and Attempted Monopolization, 15 U.S.C. §2 (Walker Process)
- Deceptive Trade Practices under Del. Code Ann., Title 6, § 2532 et seq.
- Breach of Contract
- Fraud
- Equitable Estoppel
- Negligent Misrepresentation
- Unfair Competition under Cal. Bus. & Prof. Code § 17200 et seq.

1
Since April 27, 2001, this case has proceeded between Micron Technology, Inc. and Micron
Semiconductor Products, Inc. (collectively, “Micron”), on the one hand, and Rambus Inc.
(“Rambus”), on the other. Micron Electronics, Inc. was severed from this case on that date
and has not participated in the case in any way since that time. (D.I. 234).
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The Honorable Sue L. Robinson

January 26, 2009
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Status Of Micron’s Claims Before Judge Whyte And Relationship To The Claims
Pending Here. In the related litigation pending before Judge Whyte in California, Micron
asserted JEDEC-related claims that Micron itself characterizes as essentially identical to the
claims remaining here. (See January 14, 2009 Tr. at 12 (attached as Exh. A) (“The antitrust case
that we have in Delaware is the same as the case here . . . .”).) Specifically, Micron has asserted
the following claims against Rambus in California:

- Monopolization and Attempted Monopolization, 15 U.S.C. §2

- Monopolization and Attempted Monopolization, 15 U.S.C. §2 (Walker Process)
- Breach of Contract
- Fraud
- Equitable Estoppel
- Negligent Misrepresentation
- Unfair Competition under Cal. Bus. & Prof. Code § 17200 et seq.

Only the Delaware Deceptive Trade Practices Act claim was not also brought in
California (although it is based upon the same JEDEC-related conduct that underlies the other
claims). As to the remaining claims, they have already been tried or otherwise resolved in the
California litigation. Indeed, Micron has taken the position that the jury verdict in the so-called
“conduct” trial in early 2008 and Judge Whyte’s resolution of equitable issues relating to the
conduct trial will completely resolve Micron’s claims. Micron has further requested that, upon
Judge Whyte’s resolution of the equitable issues, Judge Whyte enter a final judgment in the
California litigation. (See J. Bobrow Ltr. to J. Whyte, dated Jan. 19, 2009 at 2 (attached as Exh.
B).) Although Rambus does not believe it is appropriate to enter final judgment on all issues in
the California litigation with Micron, Rambus agrees that Judge Whyte can and should enter a
Rule 54(b) judgment with respect to the “conduct” trial claims.

Possible Impact of January 9th Order on Micron’s Remaining Claims. Although

the January 9th Order did not address Micron’s remaining claims (and Micron did not request that
any sanction extend to Micron’s affirmative claims), Micron has asserted that Rambus’s alleged
spoliation “tainted” the jury’s verdict in Rambus’s favor on the “conduct” claims listed above.
(See Exh. A at 12-13, 53-55.) Thus, this Court’s findings in the January 9th Order with respect to
JEDEC-related materials are, in Micron’s view, intertwined with the parallel “conduct” claims
pending in this action.

A Rule 54(b) Judgment Is Appropriate Only If The Remaining Claims Are Stayed

The most effective and efficient means to secure appellate review of the January
th
9 Order is for the Court to enter judgment on Rambus’s patent infringement claims and on
Micron’s declaratory judgment claims pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure, thus permitting appeal of the January 9th Order and all prior orders related thereto.
However, to ensure the requirements of Rule 54(b) are met, and to promote judicial efficiency,
such a judgment must also include a stay of Micron’s remaining claims pending the outcome of
the appeal. The stay is needed to defer further consideration by this Court of issues related to
 Case 1:00-cv-00792-SLR Document 1091 Filed 01/26/2009 Page 4 of 5

The Honorable Sue L. Robinson

January 26, 2009
Page 4

those being addressed on appeal, and thus to eliminate the risk that the appellate court would
have to hear the same issues more than once – a key factor for a proper Rule 54(b) certification.

Rule 54(b) permits entry of judgment on fewer than all of the claims in a lawsuit
under certain circumstances. See W.L. Gore & Assocs., Inc. v. Int’l Med. Prosthetics Research
Assocs., Inc., 975 F.2d 858, 861 (Fed. Cir. 1992). Specifically, Rule 54(b) states that judgment
may be entered “as to one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). Whether Rule
54(b) is properly invoked hinges on two main issues: (1) finality of the judgment; and (2)
whether there is “no just reason for delay.” Curtiss-Wright Corp. v. General Elec. Co., 446 U.S.
1, 7-8 (1980); W.L. Gore, 975 F.2d at 862.

The issue of finality focuses on whether “an ultimate disposition of an individual

claim [has been] entered in the course of a multiple claims action.” Curtiss-Wright, 446 U.S. at
7 (emphasis added). Here, the Court’s resolution of Rambus’s patent infringement claims (and,
by extension, Micron’s declaratory judgment claims) is, for all intents and purposes, final.
Having declared the patents unenforceable as to Micron, Rambus’s counterclaims are “ultimately
disposed” because Rambus can proceed no further with them.

In evaluating whether there is “no just reason for delay,” the Supreme Court has
directed courts to focus on two related factors: (1) “whether the claims under review were
separable from the others remaining to be adjudicated”; and (2) “whether the nature of the claims
already determined was such that no appellate court would have to decide the same issues more
than once even if there were subsequent appeals.” Curtiss-Wright, 446 U.S. at 8. Thus, Rule
54(b) certification is improper where issues may “form the essential focus of successive
appeals,” i.e., where there are “interlocking factual issues common to” both matters on appeal
and matters remaining in the district court. Kersey v. Denison Mfg. Co., 3 F.3d 482, 487-88 (1st
Cir. 1993).

As detailed above, Micron has indicated that it believes the spoliation issues
addressed by the January 9th Order relate to, and are intertwined with, its remaining affirmative
claims. For example, Micron has contended that this Court’s spoliation findings with respect to
JEDEC bear on Micron’s claims in California, because Micron has grounded each of those
claims on Rambus’s conduct at JEDEC. Consequently, if the Court were to consider Micron’s
remaining affirmative claims here, which parallel those Micron has asserted in California, there
is a substantial risk that the issues being addressed by this Court would be intertwined with the
issues being considered on appeal. Moreover, to the extent that any action taken by this Court on
the remaining claims is based upon the findings in the January 9th Order, it is likely that the
Federal Circuit would have to address the spoliation findings again in the context of those
claims. Such a scenario would render Rule 54(b) certification inappropriate.

These concerns can be eliminated, and Rule 54(b) made an appropriate avenue for
proceeding to appeal, by staying the remaining claims pending resolution of the appeal. With a
stay, the ultimate fate of the spoliation issues will be known with certainty before the Court
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The Honorable Sue L. Robinson

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proceeds with Micron’s remaining claims, which should remove any chance that the Federal
Circuit will see the spoliation issues again or that this Court will have to re-litigate the remaining
issues in the event of a reversal of the January 9th Order. The Federal Circuit routinely considers
appeals under Rule 54(b) while the remaining claims are stayed in the district court. See, e.g.,
Arminak & Assocs., Inc. v. Saint-Gobain Calmar, Inc., 501 F.3d 1314, 1318 (Fed. Cir. 2007);
Schoenhaus v. Genesco, Inc., 440 F.3d 1354, 1356 (Fed. Cir. 2006). Other courts have likewise
employed Rule 54(b) in connection with a stay of remaining claims to promote efficiency and to
ensure compliance with Rule 54(b)’s requirements. See, e.g., Wrinn v. Johnson, Case No. 3:06
CV 2188, 2007 WL 2752384, at *2 (N.D. Ohio Sept. 20, 2007). Consistent with these
authorities, Rambus suggests that the Court should enter judgment under Rule 54(b) with respect
to Rambus’s patent infringement claims and Micron’s declaratory judgment claims (and
incorporate all prior orders related thereto) only if it also stays the remaining claims pending
resolution of the appeal.

The Court Should Defer Entry Of Judgment Until Judge Whyte Enters Judgment

Assuming that the Court concludes that entry of a Rule 54(b) judgment is
appropriate, the Court should defer entry of such a judgment until Judge Whyte enters an
appealable order that encompasses his findings on spoliation. Fairness and efficiency are best
served if the Federal Circuit considers the conflicting findings on these issues at the same time.
Indeed, Micron’s counsel recently took that position before Judge Whyte. (See Exh. A at 51-52.)
Rambus anticipates that Judge Whyte will issue an appealable judgment on his spoliation
findings and the “conduct” trial verdict in the near future.2 Accordingly, Rambus requests that
the Court refrain from entering the Rule 54(b) judgment and related stay until Judge Whyte
enters a judgment that incorporates his spoliation findings.

A form of Rule 54(b) judgment consistent with this letter is attached as Exhibit C.

Respectfully,
/s/ Mary B. Graham
Mary B. Graham (#2256)
Enclosures
cc: Clerk of the Court (by hand delivery)
Frederick L. Cottrell, III, Esquire (by e-mail and hand delivery)
Jared Bobrow, Esquire (by e-mail)
Gregory P. Stone, Esquire (by e-mail)
2701892

2
This approach would also avoid any prejudice to Micron, which has advised Judge Whyte
that its interests are protected so long as Rambus’s appeal of the January 9th Order and
Micron’s appeal of the California “conduct” trial verdict are heard at the same time. (See
Exh. A at 53-55.)