Contract analysis

I. PREAMBLE AND STIPULATION Plaintiff Optiwave Semiconductor Corp. ("OWS") and Defendant Lumos Photonics, Inc. ("Lumos") (collectively, the "Parties"), through their respective counsel of record, Calderwood & Harkness LLP and Brannick Howell & Stein LLP, hereby stipulate and agree to the following Protective Order governing the disclosure and handling of confidential information produced or disclosed in this patent i

II. DEFINITIONS As used in this Stipulated Protective Order, the following terms shall have the meanings set forth below:

Section 1. "Action" means Optiwave Semiconductor Corp. v. Lumos Photonics, Inc., Case No. 5:22-cv-03417-EJD, pending in the United States District Court for the Northern District of California, San Jose Division, including any appeals, remands, or related proceedings arising therefrom.

Section 2. "Producing Party" means the Party or Non-Party that produces, discloses, or provides discovery Material in this Action. A Producing Party includes any person or entity that makes discovery Material available to another Party, whether through formal discovery responses, informal production, subpoena compliance, or other means.

Section 3. "Receiving Party" means the Party or Non-Party that receives discovery Material produced, disclosed, or provided by a Producing Party. A Receiving Party includes any person or entity that obtains access to discovery Material, whether directly or through counsel or other authorized representatives.

Section 4. "Discovery Material" means all documents, testimony (whether given at deposition, hearing, or trial), interrogatory responses, responses to requests for admission, responses to requests for production of documents, and any other materials produced, disclosed, or provided in discovery in this Action, regardless of the medium or form in which such materials exist. Discovery Material includes any copies, exce

Section 5. "Confidential Information" or "CONFIDENTIAL" means information designated as "CONFIDENTIAL" by the Producing Party that constitutes or contains non-public technical, business, financial, or commercial information that the Producing Party reasonably and in good faith believes would cause competitive harm if disclosed to unauthorized persons. By way of illustration and not limitation, CONFIDENTIAL informatio

Section 6. "Highly Confidential — Attorneys' Eyes Only" or "HC-AEO" means information designated as "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" by the Producing Party that constitutes or contains the Producing Party's most sensitive confidential information, trade secrets, or proprietary information, the disclosure of which to any person other than Outside Counsel and designated Experts would create a significant ri

Section 7. "Prosecution Bar Material" means any HC-AEO material that is subject to the Patent Prosecution Bar provisions set forth in Sections 22 through 25 of this Order. Prosecution Bar Material includes, without limitation, HC-AEO material that reveals or describes the technical details of the Producing Party's products, fabrication processes, circuit designs, firmware or software architecture, or other proprietar

Section 8. "Outside Counsel" means the attorneys of record in this Action and their law firm colleagues (including partners, associates, of counsel attorneys, and staff attorneys) who are working on this Action and who are not involved in patent prosecution activities for the designating Party's competitors in the field of silicon photonics, optical transceivers, or related semiconductor technologies. For Plaintiff O

Section 9. "In-House Counsel" means attorneys employed by a Party who are identified by name and whose access to discovery Material is subject to the terms and restrictions of this Order. For OWS, In-House Counsel includes Sandra Ellison, General Counsel, and Theodore "Ted" Marchetti, Vice President of intellectual Property (registered patent attorney, USPTO Reg. No. 58,304). For Lumos, In-House Counsel includes Rich

Section 10. "Expert" or "Consultant" means any person retained by a Party or its counsel to serve as a testifying or consulting expert in this Action, and who is not a current employee, officer, or director of any Party. As of the date of this Stipulation, the following Experts and Consultants have been identified by the Parties: (a) For Plaintiff OWS: (i) Dr. Harold Whitfield, Whitfield Technical Consulting Group, I

Section 11. "Non-Party" means any person or entity that is not a named Party in this Action but that produces discovery Material, whether voluntarily or pursuant to a subpoena or other compulsory process. Non-Parties include, without limitation, third parties served with subpoenas duces tecum under Federal Rule of Civil Procedure 45 and any other persons or entities that provide information relevant to the claims or

Section 12. "Patent Prosecution" means the preparation, filing, and prosecution of patent applications (including original applications, continuation applications, continuation-in-part applications, divisional applications, and reissue applications) before the United States Patent and Trademark Office ("USPTO"), any foreign patent office, or any international patent authority (including the International Bureau of th

Section 13. Scope. This Order governs all discovery Material produced, disclosed, or provided by any Party or Non-Party in this Action, regardless of the form or medium in which such material exists. This Order applies to all forms of discovery, including but not limited to documents, electronically stored information (ESI), interrogatory responses, deposition testimony, responses to requests for admission, initial d

Section 14. Duration. This Order shall remain in effect throughout the pendency of this Action, including any appeals, remands, or related proceedings, and for a period of two (2) years following the final resolution (including the exhaustion or expiration of all appellate rights) or dismissal of this Action. Notwithstanding the foregoing, the obligations set forth in Sections 33 and 34 regarding the return or destru

IV. DESIGNATION OF CONFIDENTIAL INFORMATION

Section 15. Designation of Documents and ESI. A Producing Party may designate discovery Material as CONFIDENTIAL or HC-AEO by marking each page or item with the appropriate confidentiality legend. For documents produced in image format (e.g., TIFF or PDF), the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" shall be affixed to each page of the document, either by stamping, branding, or endorsing

Section 16. Designation of Deposition Testimony. A Party or Non-Party may designate deposition testimony as CONFIDENTIAL or HC-AEO by either of the following methods: (a) Stating the designation on the record during the deposition at the time the confidential testimony is elicited, thereby putting all Parties and the court reporter on notice of the applicable designation level; or (b) Providing written notice to all

Section 17. Designation of Interrogatory Responses and Other Written discovery. A Producing Party may designate interrogatory responses, responses to requests for admission, or other written discovery responses as CONFIDENTIAL or HC-AEO by marking the response, or the specific portion thereof that contains confidential information, with the applicable confidentiality legend. Where a response contains both confidentia

Section 18. Inadvertent Failure to Designate. A Producing Party's failure to designate material at the time of production shall not constitute a waiver of the right to designate such material at a later time. If a Producing Party subsequently determines that previously produced material should have been designated as CONFIDENTIAL or HC-AEO, the Producing Party may make a retroactive designation by providing written n

V. PERMITTED DISCLOSURES AND ACCESS

Section 19. CONFIDENTIAL Information — Permitted Recipients. discovery Material designated CONFIDENTIAL may be disclosed only to the following categories of persons: (a) Outside Counsel for the Receiving Party, and support staff employed by or working under the direction of Outside Counsel, including paralegals, legal secretaries, litigation support personnel, and document review attorneys; (b) In-House Counsel for t

Section 20. HC-AEO Information — Permitted Recipients. discovery Material designated HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY may be disclosed only to the following categories of persons: (a) Outside Counsel for the Receiving Party, and support staff employed by or working under the direction of Outside Counsel (including paralegals, legal secretaries, litigation support personnel, and document review attorneys), p

Section 21. Acknowledgment Form (Exhibit A). Before receiving access to any CONFIDENTIAL or HC-AEO material produced by the opposing Party, each person (other than Outside Counsel of record who are already bound by this Order through their participation in this Action) must execute an Acknowledgment and Agreement to Be Bound in the form attached as Exhibit A to this Order. By executing the Acknowledgment, each such p

Section 22. Prosecution Bar — Scope. Any person who receives access to HC-AEO material designated as Prosecution Bar Material shall not participate in Patent Prosecution activities relating to the subject matter of this Action. For purposes of this Section, "subject matter of this Action" encompasses, without limitation, the following technology areas: silicon photonics integrated circuits, waveguide couplers (includ

Section 23. Prosecution Bar — Applicability to Specific Individuals. The Prosecution Bar applies to all Outside Counsel, Experts, and Consultants who access HC-AEO Prosecution Bar Material produced by the opposing Party. The Parties specifically note the following: (a) Theodore "Ted" Marchetti (OWS Vice President of IP, USPTO Reg. No. 58,304): Mr. Marchetti is a registered patent attorney who is actively involved in

Section 24. Prosecution Bar — Duration. The Prosecution Bar shall remain in effect for the later of: (a) Two (2) years following the conclusion of this Action, including the resolution of all appeals, remands, and related proceedings; or (b) One (1) year following the date on which the individual last had access to any Prosecution Bar Material. The Prosecution Bar may be modified or lifted by written stipulation of t

Section 25. Prosecution Bar — Exceptions. Notwithstanding the foregoing, the Prosecution Bar does not prohibit: (a) Advising a client on general patentability, validity, infringement, or freedom-to-operate matters that do not rely upon, and are not informed by, Prosecution Bar Material; (b) Participating in Patent Prosecution matters that are unrelated to the subject matter of this Action as defined in Section 22 (e.

VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS

Section 26. Informal Resolution (Meet and Confer). A Receiving Party that believes that any designation of CONFIDENTIAL or HC-AEO is improper, overbroad, or not justified under the applicable definition shall first raise the dispute with the Producing Party in writing. The written challenge shall identify with reasonable specificity the documents or materials at issue (by Bates number, deposition transcript page and

Section 27. Motion Practice. If the Parties are unable to resolve a designation dispute through the meet-and-confer process described in Section 26, the challenging Party may file a motion with the Court requesting that the designation be modified or removed. Any such motion shall comply with the Court's applicable rules and standing orders regarding discovery disputes, including any requirements for joint discovery

VIII. USE OF CONFIDENTIAL INFORMATION

Section 28. Use Limitation. discovery Material designated CONFIDENTIAL or HC-AEO shall be used solely for purposes of this Action, including the prosecution and defense of claims and counterclaims, the preparation of expert reports, and the preparation for and conduct of depositions, hearings, and trial. CONFIDENTIAL and HC-AEO material shall not be used for any business, commercial, competitive, personal, or other p

Section 29. Filing Under Seal. If a Party wishes to file any document containing CONFIDENTIAL or HC-AEO material with the Court, whether in connection with a motion, brief, exhibit, expert report, or any other filing, the filing Party shall comply with the Court's procedures for filing under seal, including Civil Local Rule 79-5 of the Northern District of California and any applicable standing orders of the assigned

IX. HANDLING OF CONFIDENTIAL MATERIALS AT DEPOSITIONS AND HEARINGS

Section 30. Depositions. Depositions in which CONFIDENTIAL or HC-AEO material is discussed, displayed, or otherwise used shall be attended only by persons authorized to receive such material under this Order. If HC-AEO material is to be used during a deposition of a Party's employee, officer, or other representative, the examining counsel shall provide reasonable advance notice — no less than two (2) business days be

Section 31. Court Hearings and Trial. The Parties shall work cooperatively and in good faith to protect CONFIDENTIAL and HC-AEO material during court hearings, pretrial conferences, and trial proceedings. If HC-AEO material must be presented, discussed, or otherwise disclosed at a hearing or trial, the Party seeking to introduce or reference such material shall request appropriate protections from the Court in advanc

X. THIRD-PARTY / NON-PARTY CONFIDENTIAL INFORMATION

Section 32. Application to Non-Parties. Any Non-Party that produces discovery Material in this Action, whether voluntarily or pursuant to a subpoena or other compulsory process, may designate such material as CONFIDENTIAL or HC-AEO under the same procedures and protections set forth in this Order. The Non-Party's designations shall be treated with the same force and effect as designations made by the Parties, and all

XI. RETURN OR DESTRUCTION OF CONFIDENTIAL MATERIALS

Section 33. Obligations Upon Termination. Within sixty (60) calendar days after the final termination of this Action (including the resolution of all appeals, remands, and related proceedings), or within sixty (60) calendar days after entry of a stipulated or court-ordered dismissal, each Receiving Party shall, at the Producing Party's election: (a) Return all CONFIDENTIAL and HC-AEO material received from the Produc

Section 34. Court Filings and Transcripts. Nothing in this Order requires the return or destruction of CONFIDENTIAL or HC-AEO material that has been filed with the Court, whether under seal or otherwise, or that constitutes official court records, including deposition transcripts maintained by the court reporting service. The protections of this Order shall continue to apply to any such material that is maintained un

Section 35. No Waiver of Privilege or Work Product Protection. The production of discovery Material pursuant to this Order shall not constitute a waiver of any applicable privilege, including the attorney-client privilege, the joint defense or common interest privilege, or any other applicable evidentiary privilege, nor shall it constitute a waiver of any work product protection under Federal Rule of Civil Procedure

Section 36. No Waiver of Objections. Nothing in this Order shall be construed as a waiver of any Party's right to object to any discovery request on any ground, including but not limited to relevance, undue burden, proportionality, privilege, overbreadth, or any other ground recognized under the Federal Rules of Civil Procedure or applicable law. The entry of this Order does not create any presumption that any partic

Section 37. Modification. This Order may be modified by written stipulation of the Parties approved by the Court, or by order of the Court upon motion of any Party or affected Non-Party. Any motion to modify this Order shall be governed by the good cause standard of Federal Rule of Civil Procedure 26(c) and shall be accompanied by a showing of the specific reasons why modification is warranted, including the impact o

Section 38. Enforcement and Remedies. Any violation of this Order may be enforced by motion for contempt, sanctions, or other appropriate relief as the Court deems just and proper. The Producing Party whose confidential information has been compromised by a violation of this Order shall be entitled to seek injunctive relief, including emergency or ex parte relief if warranted by the circumstances, as well as monetary

Section 39. Governing Law. This Order shall be governed by and construed in accordance with federal law, including the Federal Rules of Civil Procedure and the Federal Rules of Evidence, and the Local Rules of the United States District Court for the Northern District of California. To the extent that any question arises regarding the enforceability or interpretation of this Order that is not governed by federal law,

Section 40. Binding Effect. This Order shall be binding upon the Parties, their officers, directors, employees, agents, successors, and assigns, as well as upon their counsel of record and all persons who receive CONFIDENTIAL or HC-AEO material pursuant to this Order. Each person who executes an Acknowledgment in the form attached as Exhibit A hereby submits to the personal jurisdiction of the United States District

XIII. STIPULATION OF THE PARTIES The undersigned counsel, being duly authorized to act on behalf of their respective clients, hereby stipulate and agree to the foregoing Protective Order and respectfully request that the Court enter the Proposed Order set forth below. FOR PLAINTIFF OPTIWAVE SEMICONDUCTOR CORP.: CALDERWOOD & HARKNESS LLP By: ________ Alan Ngo (CA Bar No. 247813) USPTO Reg. No. 52,871 One Embarcadero C

XIV. [PROPOSED] ORDER ORDER The Court, having reviewed the foregoing Joint Stipulation and [Proposed] Order Governing the Protection of Confidential Information, and having considered the representations of counsel for the Parties, and finding good cause pursuant to Federal Rule of Civil Procedure 26(c) for the entry of a protective order to govern the handling of confidential, proprietary, and trade secret informati

1. The Stipulated Protective Order set forth above is hereby ADOPTED and ENTERED as an Order of this Court. All provisions of the Stipulated Protective Order, including the definitions, designation procedures, permitted disclosures, patent prosecution bar, procedures for challenging designations, use limitations, sealing procedures, handling requirements, return or destruction obligations, and miscellaneous provision

2. All Parties, counsel of record, Experts, Consultants, In-House Counsel, and all other persons receiving discovery Material designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY in this Action shall comply with the terms of this Order. Any person who receives access to such material shall be deemed to have notice of and to be bound by this Order.

3. The Court retains jurisdiction to enforce, modify, or vacate this Order at any time upon motion of any Party or affected Non-Party, or upon the Court's own initiative, as justice may require. IT IS SO ORDERED. Dated: September _, 2022 ________________________________________ HON. EDWARD J. TORVELIS United States District Judge EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY PROTECTIVE ORDER Optiwave Semicond

1. Review of Protective Order. I have read the Stipulated Protective Order entered in the above-captioned Action (the "Protective Order"), and I have had an opportunity to ask questions about its terms and requirements.

2. Understanding of Obligations. I understand the terms and obligations set forth in the Protective Order, including the restrictions on the disclosure, use, and handling of materials designated as CONFIDENTIAL and HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY. I understand that I may not disclose, discuss, or share such materials with any person who is not authorized to receive them under the Protective Order, and that

3. Agreement to Be Bound. I agree to be bound by all terms and conditions of the Protective Order, and I will comply with all restrictions, limitations, and obligations set forth therein.