Contract analysis

I. INTRODUCTORY STATEMENT The parties, Plaintiff Optiwave Semiconductor Corp. ("OWS") and Defendant Lumicore Technologies, Inc. ("Lumicore"), by and through their undersigned counsel, respectfully submit this Joint discovery Plan and Report to the Court pursuant to Federal Rule of Civil Procedure 26(f) and the applicable Local Rules and Patent Rules of the United States District Court for the Eastern District of Texa

II. NATURE OF THE ACTION A. Plaintiff's Description of Claims OWS is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business located at 4810 Bayside Technology Parkway, Suite 300, Santa Clara, California 95054. OWS is a fabless semiconductor company specializing in the design, development, and sale of silicon photonics chipsets for data-center interconnects.

III. PROPOSED CASE SCHEDULE The parties have conferred regarding an appropriate case schedule and intend to file a Joint Motion for Entry of Docket Control Order on or before August 9, 2024. That Joint Motion will set forth the parties' agreed-upon schedule for all major case milestones. Set forth below is a summary of the key proposed dates: Initial Disclosures (Fed. R. Civ. P. 26(a)(1)): August 19, 2024 P.R. 3-1 In

IV. INITIAL DISCLOSURES A. Timing and Scope The parties agree to serve initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) on or before August 19, 2024. Each party's initial disclosures shall comply with the requirements of Rule 26(a)(1)(A) through (D), including: (i) The name and, if known, the address and telephone number of each individual likely to have discoverable information — along with t

V. DISCOVERY PLAN A. Scope of discovery Discovery in this action shall be conducted in phases as described below and shall be governed by the principles of relevance and proportionality set forth in Federal Rule of Civil Procedure 26(b)(1). The parties acknowledge that discovery is expected to be extensive given the following factors: • The number of asserted patents (four patents, each directed to different aspects

VI. ELECTRONICALLY STORED INFORMATION (ESI) PROTOCOL A. General Principles The parties acknowledge that this litigation will involve the production of substantial volumes of electronically stored information ("ESI"). The parties agree to negotiate and execute a separate ESI Protocol Agreement, which they anticipate finalizing by August 15, 2024. The ESI Protocol Agreement, once executed, will be incorporated by refer

I. Volume Estimates Based on their preliminary assessments of the volume of potentially responsive ESI, the parties provide the following estimates: OWS estimates that its total document production will encompass approximately 150,000 to 200,000 documents, comprising approximately 1.0 to 1.5 million pages. Lumicore estimates that its total document production will encompass approximately 100,000 to 175,000 documents,

VII. PROTECTIVE ORDER / CONFIDENTIALITY A. Proposed Three-Tier Framework The parties have agreed in principle on a three-tier confidentiality framework to govern the treatment of confidential discovery materials produced in this action. The parties anticipate filing a Proposed Stipulated Protective Order with the Court by August 19, 2024. The three-tier framework is as follows: Tier 1 — "Confidential": This designati

VIII. PRIVILEGE LOG PROCEDURES A. Timing. Each party shall produce an initial privilege log concurrently with, or within thirty (30) days following, its initial document production. Supplemental privilege logs shall be produced on a rolling basis thereafter, and in any event no later than fourteen (14) days after each supplemental production. B. Content. Each entry on a privilege log shall include, at a minimum, the

IX. 30(b)(6) DEPOSITION SCHEDULING FRAMEWORK A. General Principles Each party may notice one or more depositions of a corporate representative pursuant to Federal Rule of Civil Procedure 30(b)(6). The following procedural framework shall govern the scheduling and conduct of 30(b)(6) depositions: (i) The noticing party shall serve its Rule 30(b)(6) deposition notice at least thirty (30) days before the proposed deposi

1. The design, development, testing, and qualification of the accused products (LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR), including design specifications, engineering change orders, and any modifications to the products since their initial commercial release;

2. Revenue and cost accounting for the accused products, including unit sales, revenue by product and by customer, cost of goods sold, gross margins, and profitability analyses;

3. Customer identification and sales history for the accused products, including customer lists, purchase orders, invoices, and customer-specific pricing arrangements;

4. Prior-art awareness and prior-art searches conducted by or on behalf of Lumicore before and after notice of OWS's patents, including any freedom-to-operate analyses;

5. Lumicore's knowledge of OWS's patents and patent applications, including the timing and circumstances of first awareness;

6. Receipt, handling, and internal distribution of the FairPoint Licensing Group, LLC licensing correspondence dated January 15, 2023 and May 15, 2023, including all internal communications regarding the licensing offers;

7. The decision-making process by which Lumicore decided to decline the license offered by OWS, including the individuals involved and the factors considered;

8. The commissioning and receipt of opinion-of-counsel letters regarding the asserted patents, including the scope of the opinions, the identity of counsel, and the factual materials provided to counsel (to the extent not protected by privilege);

9. Non-infringing design alternatives considered, evaluated, or implemented by Lumicore, including any design-around efforts and their feasibility, cost, and timeline;

10. Marketing and competitive positioning of the accused products, including marketing materials, product presentations, trade-show demonstrations, and competitive benchmarking analyses;

11. Manufacturing processes and supply chain for the accused products, including fabrication partners, foundry relationships, mask-set procurement, and assembly and test procedures;

12. Technical specifications and engineering changes to the accused products over time, including changes to photonic-IC layouts, firmware, and transceiver module configurations;

13. Lumicore's patent licensing history and patent licensing policies, including any licenses granted or received for silicon photonics technology;

14. Lumicore's relationship with OWS, including competitive awareness, meetings between personnel of the two companies, and interactions at industry conferences (e.g., OFC, ECOC, Photonics West);

15. IPO-related disclosures and risk factors pertaining to patent litigation, including communications with Silverstone Capital Markets LLC (underwriter) regarding intellectual property risks and the potential impact of this litigation on Lumicore's business;

16. Communications with customers regarding OWS's patents or this litigation, including any indemnification requests or hold-harmless letters;

17. Document retention and preservation practices, including the implementation and scope of Lumicore's litigation hold, custodian identification, and any document destruction or loss occurring after the hold was implemented; and

18. Lumicore's corporate structure, organizational charts, and identification of relevant personnel with knowledge of the claims and defenses in this action. C. Lumicore's Anticipated 30(b)(6) Topics for OWS Lumicore anticipates noticing a Rule 30(b)(6) deposition of OWS with topics to include, but not limited to, the following: • The prosecution history and development of each of the four asserted patents, including

X. THIRD-PARTY DISCOVERY A. Anticipated Third-Party discovery The parties anticipate the need for third-party discovery, including document subpoenas and deposition subpoenas, directed to the following non-party witnesses and entities: OWS's Anticipated Third-Party Subpoenas: (i) Melissa Chen (current employer: Veridian Photonics, Inc.) — OWS intends to serve a subpoena for documents and testimony on Ms. Chen, a form

XI. CLAIM CONSTRUCTION COORDINATION The parties acknowledge that claim construction proceedings under Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), will proceed in parallel with fact discovery. The parties have agreed to the following claim construction schedule, which will be included in the proposed Docket Control Order: Joint Claim Construction Statement (identifying all disputed claim terms, each pa

XII. PATENT LOCAL RULE CONTENTIONS A. Infringement Contentions (P.R. 3-1) OWS shall serve its P.R. 3-1 Infringement Contentions by September 16, 2024. OWS's Infringement Contentions will identify each asserted claim of the '847 Patent, the '193 Patent, the '562 Patent, and the '015 Patent, each accused product and process, and the specific basis for infringement on a claim-by-claim, limitation-by-limitation basis, wi

XIII. PRESERVATION OBLIGATIONS Both parties represent to the Court that they have implemented litigation hold procedures and are actively preserving all potentially relevant documents and electronically stored information in accordance with their obligations under law. OWS's Preservation Efforts: OWS represents that it implemented a written litigation hold on March 22, 2024. The litigation hold was directed to OWS's

XIV. ALTERNATIVE DISPUTE RESOLUTION The parties acknowledge the Court's Alternative Dispute Resolution ("ADR") program and the Court's authority to order the parties to participate in mediation or other ADR proceedings. At this time, neither party proposes formal mediation. Both parties, however, agree to remain open to ADR at an appropriate stage of the case. The parties believe that mediation is most likely to be p

XV. OTHER MATTERS A. Consent to Magistrate Judge The parties have discussed whether to consent to the conduct of all proceedings, including trial, before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). At this time, the parties do not consent to trial before a Magistrate Judge. B. Bifurcation. Lumicore has raised the possibility of bifurcating the trial into a liability phase and a damages phase. Lum