Contract analysis

I. Introduction and Purpose of Letter This firm represents plaintiff Optiwave Semiconductor Corp. ("OWS" or "Optiwave") in the above-captioned patent infringement action against Lumos Photonics, Inc. ("Lumos"), currently pending before the Honorable Edward J. Torvelis in the United States District Court for the Northern District of California. We write to you in your capacity as Associate Team Lead of Brannick Howell

II. Background on discovery Requests By way of brief background, OWS served its First Set of Requests for Production of Documents (comprising 112 individual requests) and its First Set of Interrogatories (comprising 25 interrogatories) on November 21, 2022, in accordance with the Case Management Order entered by Judge Torvelis on August 22, 2022 (Dkt. No. 39). Lumos, for its part, served its own First Set of Document

III. Deficiency Category 1: Technical Design Documents for the LumosBridge™ 800G Optical Engine A. Specific Requests at Issue OWS's First Set of Requests for Production included numerous requests directed at the internal design and engineering documentation for the LumosBridge™ 800G Optical Engine, which is one of the two primary accused products in this action. The requests at issue include, without limitation, RFP

IV. Deficiency Category 2: Technical Design Documents for the LumosEdge™ 400ZR+ Pluggable Transceiver A. Specific Requests at Issue OWS's First Set of Requests for Production also included requests specifically directed at the internal design and engineering documentation for the second accused product, the LumosEdge™ 400ZR+ Pluggable Transceiver. The requests at issue include RFP Nos. 6, 8, 10, 13, 15, 18, 22, 24, 2

V. Deficiency Category 3: Source Code for Driver Circuit Firmware A. Specific Requests at Issue OWS's First Set of Requests for Production included requests directed at source code, firmware, and embedded software for the driver circuits used in both the LumosBridge 800G Optical Engine and the LumosEdge 400ZR+ Pluggable Transceiver. The requests at issue include RFP Nos. 38, 39, 41, 42, and 44, which collectively sou

1. Location: The inspection shall take place at a Lumos facility, at Lumos's election: either the Santa Clara office located at 4750 Great America Parkway, Suite 320, Santa Clara, CA 95054, or the Hillsboro, Oregon fabrication facility located at 3200 NE Shute Road, Hillsboro, OR 97124.

2. Access: Inspection shall be limited to OWS's outside litigation counsel (specifically, attorneys at Calderwood & Harkness LLP who are admitted to the bar of this Court and who have signed the Stipulated Protective Order) and OWS's designated technical expert, Dr. Harold Whitfield, each of whom shall have executed the Stipulated Protective Order's acknowledgment and agreement to be bound.

3. Designation: All source code materials made available for inspection shall be designated "Highly Confidential — Attorneys' Eyes Only" under the Stipulated Protective Order.

4. No Copying: No electronic or photographic copying of source code shall be permitted. Inspecting parties may take handwritten notes during the inspection, and such notes shall be subject to the Stipulated Protective Order's Highly Confidential — Attorneys' Eyes Only restrictions.

5. Duration: OWS proposes an initial inspection period of up to three (3) business days, with the parties to confer regarding any need for additional inspection time.

6. Timing: OWS proposes that the inspection occur within twenty-one (21) days of the date of this letter (i.e., by February 8, 2023), with specific dates to be coordinated between counsel. This proposed protocol is consistent with source code inspection protocols routinely employed in patent cases in this District and provides robust protections against any unauthorized use or disclosure of Lumos's proprietary code.

VI. Deficiency Category 4: Revenue Breakdowns by Product Configuration A. Specific Requests at Issue OWS's First Set of Requests for Production and First Set of Interrogatories included requests directed at revenue and financial data for the accused products. The requests at issue include RFP Nos. 52, 54, 56, 58, 60, and 62 and Interrogatory Nos. 14, 15, 16, and 17, which collectively sought revenue data for the Lumo

VII. Deficiency Category 5: Interrogatory Responses Regarding Non-Infringement and Invalidity Contentions A. Specific Interrogatories at Issue OWS's First Set of Interrogatories included contention interrogatories directed at the factual and legal bases for Lumos's affirmative defenses and counterclaims. The interrogatories at issue include Interrogatory Nos. 1 through 8, which sought the following information: (a) I

VIII. Deficiency Category 6: Documents Relating to Lumos's Knowledge of OWS's Patents A. Specific Requests at Issue OWS's First Set of Requests for Production included requests directed at documents and communications reflecting Lumos's awareness of, analysis of, consideration of, or opinions regarding OWS's patents-in-suit. The requests at issue include RFP Nos. 76, 77, 78, 79, 80, 81, and 82, which sought, among ot

IX. Summary of Deficiencies and Deadline for Supplementation For the convenience of all parties, OWS summarizes below the six categories of deficiencies identified in this letter and the corresponding relief requested:

1. Technical Design Documents — LumosBridge™ 800G Optical Engine. Production of all responsive internal design documents, including photonic circuit layout files, process integration documents, epitaxial growth specifications, waveguide coupler design documents, flip-chip bonding specifications, and related engineering documents. (Section III.)

2. Technical Design Documents — LumosEdge™ 400ZR+ Pluggable Transceiver. Production of all responsive internal design documents for the LumosEdge product, including the same categories of documents identified above. (Section IV.)

3. Source Code for Driver Circuit Firmware. Agreement on a source code inspection protocol and inspection within twenty-one (21) days, or alternatively, production of relevant source code on a secure, encrypted medium under Highly Confidential — Attorneys' Eyes Only designation. (Section V.)

4. Revenue Breakdowns by Product Configuration. Supplemental interrogatory responses and document production providing accused product revenue data broken down by product line, product configuration/SKU, customer, quarter, and geographic region, for the period from Q3 2021 through Q4 2022 (and any available Q1 2023 data). (Section VI.)

5. Contention Interrogatory Responses (Non-Infringement and Invalidity). Supplemental interrogatory responses providing element-by-element non-infringement contentions for each asserted claim and each accused product, and identification of all prior art references relied upon for invalidity, with claim-by-claim charts and identification of statutory bases. (Section VII.)

6. Documents Relating to Lumos's Knowledge of OWS's Patents and Associated Privilege Log. Production of all non-privileged documents relating to Lumos's awareness of and analysis of OWS's patents, and production of a compliant privilege log for all documents withheld on privilege grounds. (Section VIII.) OWS requests that supplemental production and supplemental interrogatory responses for all six categories be provi

X. Reservation of Rights OWS expressly reserves all rights and remedies available under the Federal Rules of Civil Procedure, the Northern District of California Local Rules, and the Patent Local Rules to seek a motion to compel if the deficiencies identified in this letter are not adequately and timely addressed. In the event that OWS is compelled to file a motion to compel, OWS will seek recovery of its reasonable

XI. Closing We sincerely hope that these issues can be resolved cooperatively without the need for judicial intervention. OWS's goal is to obtain the discovery to which it is entitled under the Federal Rules so that both parties can prepare their respective cases on a complete and accurate factual record. We believe that the requests outlined in this letter are reasonable, proportional to the needs of this case, and