Contract analysis

I. DEPOSITION OBJECTIVES A. Primary Objectives The following primary objectives should guide the examination of Raymond Bautista. Each line of questioning is designed to develop the factual record necessary to support Optiwave Semiconductor Corp.'s ("OWS") case-in-chief on willful infringement, and to advance OWS's pending Motion to Compel Production of Opinion-of-Counsel Letters (D.E. 38).

1. Establish Bautista's personal receipt of and response to the January 15, 2023 FairPoint licensing/notice letter. The first licensing communication from FairPoint Licensing Group, LLC on behalf of OWS was addressed directly to Raymond Bautista in his capacity as General Counsel. That letter identified three patents: the '847 Patent (U.S. Patent No. 10,234,847, "Multi-Wavelength Silicon Photonic Transmitter Array"),

2. Establish Bautista's receipt of FairPoint's May 15, 2023 supplemental letter. The second FairPoint letter expanded the scope of the patent assertions by adding the '015 Patent (U.S. Patent No. 11,402,015, "Polarization-Diverse Grating Coupler for Silicon Photonic Transceivers") and by expanding the list of accused products to include the LumiLink 800G-DR8, which had been launched by Lumicore in Q1 2023 — after rec

3. Pin down the timeline of Lumicore's internal response to each FairPoint letter. It is essential to develop a detailed chronology of who at Lumicore was informed of the FairPoint letters, what internal discussions took place, what actions were taken in response, and when each action occurred. This timeline will be critical in demonstrating the degree of Lumicore's deliberation (or lack thereof) in the face of notic

4. Explore the circumstances surrounding Lumicore's commissioning of opinion-of-counsel letters. Lumicore's July 10, 2023 declination letter expressly states that Lumicore "has obtained competent legal opinions that its products do not infringe." The existence of these opinion letters, the circumstances under which they were commissioned, and the identity of the opinion-rendering counsel are all factual matters that

5. Identify the scope of Bautista's communications with Hawthorne Vega & Cruz LLP concerning infringement risk, to probe potential privilege waiver. By affirmatively referencing "competent legal opinions" in the July 10, 2023 declination letter, Lumicore has placed — or arguably placed — the advice it received at issue. We need to develop the factual record around those communications to support the argument that Lum

6. Establish facts supporting willful infringement. The willful infringement theory rests on a mosaic of evidence: (a) actual notice via the January 15, 2023 and May 15, 2023 FairPoint letters; (b) an in-person licensing meeting on April 20, 2023 at which claim charts were presented; (c) continued sales of accused products after notice; (d) the launch of an entirely new accused product — the LumiEdge 1600G-LR — in Q4

7. Lay groundwork for the pending Motion to Compel Production of Opinion-of-Counsel Letters (D.E. 38). The Bautista deposition is a critical opportunity to develop the record that will be before the Court when it rules on the Motion to Compel. Every question relating to the opinion letters — and every privilege objection and instruction not to answer — should be carefully documented and preserved for citation in supp

1. Explore Bautista's involvement in or knowledge of the April 20, 2023 in-person licensing meeting in Austin, TX. This meeting was attended by Angela Reeves (FairPoint), Rebecca Tanaka (OWS), Raymond Bautista (Lumicore), and Kate Rourke (HVC). Reeves has testified that Lumicore's representatives showed "no interest in negotiating" at the meeting, and we need to develop Bautista's version of events to test that chara

2. Identify what internal analysis, if any, Lumicore performed before launching the LumiEdge 1600G-LR in Q4 2023. Specifically, we need to determine whether any freedom-to-operate study, design-around analysis, or infringement evaluation was conducted with respect to the new product and OWS's patents. The absence of any such analysis would be powerful evidence of willful indifference to OWS's patent rights.

3. Ascertain Bautista's awareness of OWS's broader patent portfolio. OWS holds 142 issued U.S. patents and has 58 pending applications. Bautista's awareness (or lack of awareness) of the scope of this portfolio bears on the reasonableness of Lumicore's response to the specific patent assertions at issue.

4. Determine Bautista's role in Lumicore's February 28, 2023 written response to FairPoint. This response disputed infringement and questioned the validity of the asserted patents. Understanding who at Lumicore provided the factual basis for those positions, and what analysis (if any) supported the response, is relevant to the adequacy of Lumicore's pre-suit investigation.

5. Identify all persons at Lumicore who reviewed OWS's patents or published applications, and the circumstances of such review. This is relevant both to the willfulness analysis and to the question of whether Lumicore's engineers were aware of OWS's patent claims during the product design phase.

6. Understand Bautista's role in Lumicore's decision to retain Hawthorne Vega & Cruz LLP and the scope of the retention. We need to clarify whether HVC was retained solely for litigation defense, or also for pre-suit counseling and opinion work, as this distinction bears on the privilege analysis.

7. Explore Bautista's knowledge of Melissa Chen's work on the LumiLink 400G-ZR+ design team. Chen was a member of the design team and may have consulted OWS published patent applications during the design phase. Her awareness is potentially imputable to Lumicore, and Bautista's knowledge of her activities is a key link in that chain. C. Limitations and Areas of Caution The following cautions should be borne in mind t

II. BACKGROUND AND PREDICATE QUESTIONS A. Personal Background The following questions establish Bautista's identity, qualifications, and ability to understand and assess patent documents. These are foundational and should be covered efficiently but thoroughly.

1. Please state your full name for the record.

2. What is your current title at Lumicore Technologies, Inc.?

3. Where did you attend law school, and when did you graduate?

4. Where did you attend college or university for your undergraduate degree, what was your major, and when did you graduate?

5. Do you hold any advanced technical degrees — for example, a degree in electrical engineering, physics, optics, or a related field?

6. In what states are you admitted to practice law? Please list each state and the approximate year of your admission.

7. Are you registered to practice before the United States Patent and Trademark Office? If so, when were you admitted to the patent bar?

8. When did you join Lumicore Technologies, Inc.? What was your initial title when you joined?

9. Prior to joining Lumicore, please describe your employment history. For each position, please identify the employer, your title, the approximate dates of your employment, and a general description of your responsibilities.

10. In any of your prior positions — whether in-house or at a law firm — did you have experience with patent litigation or patent licensing? If so, please describe the nature and extent of that experience. Approximately how many patent matters have you been involved in over your career?

11. Turning to your current role at Lumicore: please describe your responsibilities as General Counsel. What areas of law do you oversee?

12. How many attorneys are in Lumicore's legal department? How many report directly to you?

13. Does Lumicore's legal department include any attorneys who specialize in intellectual property matters? If so, please identify them by name and describe their responsibilities.

14. Do you personally oversee intellectual property matters for Lumicore, or do you delegate those matters to others within the legal department?

15. To whom do you report within Lumicore's organizational structure?

16. Do you report directly to CEO Tom Kessler?

17. In connection with intellectual property matters, do you regularly interact with CTO Dr. Sandra Michaud, VP of Product Development Dr. Eric Dalmqvist, or CFO Janet Moreno? Please describe the nature and frequency of those interactions. B. Lumicore Corporate Background The following questions establish foundational corporate facts that will be referenced throughout the deposition. The answers are expected to be la

1. Lumicore Technologies, Inc. is a corporation organized under the laws of the State of Delaware — is that correct?

2. And Lumicore's corporate headquarters is located at 9200 Spectrum Boulevard, Building C, Austin, Texas 78759 — is that correct?

3. Does Lumicore also maintain a facility at 2700 Earl Campbell Parkway, Suite 150, Tyler, Texas 75701? What is the function of that facility? Is it a sales office and technical support center?

4. Lumicore conducted its initial public offering on the Nasdaq exchange in March 2022 at an offering price of twenty-four dollars per share — is that correct?

5. Silverstone Capital Markets LLC served as the lead underwriter for that IPO — is that correct?

6. For fiscal year 2023, Lumicore reported total revenue of approximately $312.6 million — is that consistent with your understanding?

7. I'd like to discuss Lumicore's product lines at issue in this litigation. Lumicore manufactures and sells the LumiLink 400G-ZR+ silicon-photonic transceiver — is that correct? When was that product first commercially launched?

8. Lumicore also manufactures and sells the LumiLink 800G-DR8 silicon-photonic transceiver — correct? And when was that product first commercially launched?

9. And Lumicore manufactures and sells the LumiEdge 1600G-LR silicon-photonic transceiver — correct? When was that product first commercially launched?

10. For the record, I'd like to confirm that these three products — the LumiLink 400G-ZR+, the LumiLink 800G-DR8, and the LumiEdge 1600G-LR — are the products accused of infringement in this lawsuit. Is that consistent with your understanding?

11. Brennan Kellogg & Associates LLP serves as Lumicore's independent auditor — is that correct? C. Bautista's IP Responsibilities The following questions are designed to establish Bautista's specific role in intellectual property matters at Lumicore, which is critical context for the questions that follow about how Lumicore handled the FairPoint notice letters.

1. Mr. Bautista, what role do you personally play in freedom-to-operate analyses for new Lumicore products? Are you consulted before a new product is launched to assess whether the product may implicate third-party patent rights?

2. Does Lumicore have a formal process for conducting freedom-to-operate analyses before launching new products? If so, please describe that process. Who is responsible for initiating it, and who is responsible for carrying it out?

3. Does Lumicore have a process for monitoring competitor patents and published patent applications? For example, does Lumicore maintain any kind of patent watch service or periodic review of newly issued patents in its technology areas?

4. If such a monitoring process exists, is your office involved in it? Who within Lumicore is responsible for that monitoring?

5. Does your office maintain a database, log, or tracking system for recording third-party intellectual property notices received by Lumicore — such as licensing letters, cease-and-desist letters, or infringement allegations?

6. Prior to receiving the FairPoint Licensing Group letter in January 2023, had you or anyone in your legal department ever reviewed any patent or published patent application owned by or assigned to Optiwave Semiconductor Corp.? If yes, please identify which patents or applications were reviewed, when the review took place, and in what context.

7. Prior to January 2023, were you aware of Optiwave Semiconductor Corp. as a company? Were you aware that OWS was a competitor of Lumicore in the silicon-photonics transceiver market?

III. FAIRPOINT FIRST LICENSING LETTER (JANUARY 15, 2023) A. Receipt and Initial Handling This section addresses the first formal notice of patent infringement that Lumicore received. The goal is to establish a complete chronological account of how the letter was received, who reviewed it, and what actions were taken in response.

1. I am going to mark for identification as Exhibit 1 a letter dated January 15, 2023, from Angela Reeves, Managing Director, FairPoint Licensing Group, LLC, addressed to Raymond Bautista, General Counsel, Lumicore Technologies, Inc. Please take a moment to review this document.

2. Mr. Bautista, have you seen this letter before?

3. Do you recall receiving this letter? On or about what date did you receive it?

4. This letter was sent by Angela Reeves, Managing Director of FairPoint Licensing Group, LLC, on behalf of Optiwave Semiconductor Corp. — is that your understanding?

5. Directing your attention to page one of the letter, the letter identifies three patents: U.S. Patent No. 10,234,847, referred to as the '847 Patent; U.S. Patent No. 10,891,193, referred to as the '193 Patent; and U.S. Patent No. 9,678,562, referred to as the '562 Patent. Do you see those patent numbers identified in the letter?

6. The letter identifies the LumiLink 400G-ZR+ as a product that FairPoint and OWS believe infringes one or more of these patents — is that correct?

7. What did you do upon receiving this letter? Please describe your actions step by step.

8. Did you share the letter with anyone within Lumicore? If so, with whom, and when?