1014-00003 · Optiwave Semiconductor Corp · Case Management

joint-stip-protective-order.docx DOCUMENT Litigation

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

JOINT STIPULATION AND [PROPOSED] ORDER GOVERNING THE PROTECTION OF CONFIDENTIAL INFORMATION

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 infringement action.

WHEREAS, the Parties anticipate that discovery in this Action will involve the production and exchange of confidential, proprietary, and trade secret information, including but not limited to:

(a) Technical design documents, schematics, and process specifications relating to silicon photonics integrated circuits, optical transceiver chipsets, and semiconductor fabrication processes;

(b) Financial information, including revenue data, pricing information, cost structures, and profit margins for accused and competing products;

(d) Source code and firmware for driver circuits and related electronic subsystems; and

(e) Patent prosecution files and related correspondence.

WHEREAS, good cause exists under Federal Rule of Civil Procedure 26(c) for the entry of this Protective Order to protect the Parties' legitimate confidentiality interests while ensuring that discovery proceeds efficiently and that neither Party is prejudiced by the disclosure of its most sensitive commercial, technical, and financial information to unauthorized persons;

WHEREAS, this Action involves the assertion by Plaintiff OWS of United States Patent Nos. 10,234,567; 10,891,234; 11,045,678; and 11,312,890 (collectively, the "Asserted Patents") against Defendant Lumos's LumosBridge™ 800G Optical Engine and LumosEdge™ 400ZR+ Pluggable Transceiver products (collectively, the "Accused Products"), and the Parties recognize that discovery will necessarily require the exchange of highly sensitive and competitively valuable technical and financial information relating to both the Asserted Patents and the Accused Products;

WHEREAS, the Parties have met and conferred regarding the scope and terms of this Protective Order and have reached agreement on its provisions;

NOW, THEREFORE, the Parties respectfully request that the Court enter the following Stipulated Protective Order.

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, excerpts, abstracts, summaries, or descriptions of such materials, whether created by the Producing Party, the Receiving Party, or any other person. Discovery Material also encompasses electronically stored information ("ESI") in all formats, including native files, images, metadata, and any forensic or processed copies thereof.

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 information may include non-public revenue figures, aggregate financial data, general product specifications not publicly available, non-public business strategies, internal communications regarding product development or market positioning, and other information of a commercially sensitive nature that does not rise to the level of HC-AEO material as defined below.

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 risk of serious competitive harm. By way of illustration and not limitation, HC-AEO information may include: detailed product design documents and schematics; semiconductor process specifications (including, e.g., fabrication process details from Pinnacle Semiconductor Foundry Co., Ltd. or details concerning Lumos's fabrication facility in Hillsboro, Oregon); source code and firmware; cost-of-goods-sold data; customer-specific pricing; licensing terms from third-party agreements; and detailed profit margins for the LumosBridge™ 800G Optical Engine, the LumosEdge™ 400ZR+ Pluggable Transceiver, or OWS's OWS-400ZR and OWS-800LR chipset products. The HC-AEO designation is reserved for the most competitively sensitive materials and shall not be used for materials that are appropriately designated at the CONFIDENTIAL level.

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 proprietary technology in sufficient detail that exposure to such material could influence the preparation or prosecution of patent claims in a manner adverse to the Producing Party's interests.

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 OWS, Outside Counsel means attorneys at Calderwood & Harkness LLP, including without limitation Alan Ngo and Omar Siddiqui and their colleagues at the firm who are assigned to this Action. For Defendant Lumos, Outside Counsel means attorneys at Brannick Howell & Stein LLP, including without limitation Victoria Ashworth and Daniel Kowalski and their colleagues at the firm who are assigned to this Action. The designation of a specific individual as Outside Counsel may be challenged pursuant to the procedures set forth in Sections 26 and 27 of this Order.

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 Richard Talbot, General Counsel. The Parties acknowledge that Mr. Marchetti is a registered patent attorney who is actively involved in patent prosecution activities on behalf of OWS, and the specific restrictions on his access to opposing-party HC-AEO material are addressed in Sections 20 and 23 of this Order. Additional In-House Counsel may be designated by a Party by providing written notice to the opposing Party, identifying the individual by name and title and certifying that the individual has executed an Acknowledgment in the form attached as Exhibit A.

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, Inc., Palo Alto, California (technical expert — silicon photonics design and semiconductor fabrication);

(ii) Dr. Lawrence Kessler, Apex Claim Analytics LLC, Chicago, Illinois (damages expert — patent infringement damages and financial analysis).

(b) For Defendant Lumos:

(i) Dr. Raymond Ng, Of Counsel and Technical Consultant, Brannick Howell & Stein LLP (technical expert — optical transceiver systems and waveguide design);

(ii) Dr. Patricia Moreno, Compass Forensic Accounting LLP, Dallas, Texas (damages expert — forensic accounting and damages analysis).

Additional Experts or Consultants may be designated by a Party at any time by providing written notice to the opposing Party identifying the Expert or Consultant by name, affiliation, and area of expertise, and by ensuring that such individual executes an Acknowledgment in the form attached as Exhibit A prior to receiving access to any CONFIDENTIAL or HC-AEO material.

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 defenses in this Action.

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 the World intellectual Property Organization and the European Patent Office). Patent Prosecution also includes participation in ex parte reexamination proceedings, inter partes review proceedings, post-grant review proceedings, covered business method review proceedings, and derivation proceedings before the Patent Trial and Appeal Board ("PTAB"), as well as any appeal from any such proceeding. Patent Prosecution does not include the defense of claims in this Action or participation in this litigation.

III. SCOPE AND APPLICABILITY

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 disclosures, supplemental disclosures, and any other form of disclosure required or permitted under the Federal Rules of Civil Procedure or the Local Rules of this Court. This Order also applies to information disclosed informally between the Parties or their counsel for purposes of this Action, to the extent such information is designated as CONFIDENTIAL or HC-AEO. Nothing in this Order shall prevent a Party from using or disclosing its own confidential information for any purpose, and no Party shall be restricted in the use of its own documents, data, or other materials merely because such materials have been produced in discovery in this Action.

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 destruction of CONFIDENTIAL and HC-AEO materials shall survive the termination of this Order and shall continue indefinitely until all such obligations have been fully satisfied. The Patent Prosecution Bar provisions set forth in Sections 22 through 25 shall remain in effect for the duration specified in Section 24, regardless of whether this Order otherwise expires or is vacated.

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 the image. For ESI produced in native format, the designation shall be made by including the applicable confidentiality legend in the accompanying production log or load file, as well as in any cover correspondence or transmittal letter accompanying the production. In the case of physical objects, tangible items, or other materials that cannot readily be marked, the Producing Party shall affix the designation to the container or packaging in which the item is produced, or shall include a written notice of the designation with the item. All designations shall be made in good faith and shall be limited to material that genuinely qualifies under the applicable definition set forth in Section 5 or Section 6 of this Order. Mass or blanket designations, in which a Producing Party designates all or substantially all of its production at the HC-AEO level without individualized consideration, are disfavored, and a Receiving Party may challenge such designations pursuant to the procedures set forth in Sections 26 and 27 of this Order.

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 other Parties and their counsel within thirty (30) calendar days after receipt of the final deposition transcript, specifying the pages and lines designated and the applicable level of designation (CONFIDENTIAL or HC-AEO).

If a designating Party elects to designate testimony after the deposition pursuant to subsection (b) above, all Parties and their counsel shall treat the entirety of the deposition testimony as HC-AEO from the date of the deposition until the expiration of the thirty (30)-day designation period. Upon expiration of the designation period, any testimony not designated shall be treated as non-confidential. The court reporter shall be instructed to mark the transcript cover page with the legend "SUBJECT TO PROTECTIVE ORDER — TREAT AS HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY PENDING DESIGNATION" until designations are finalized.

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 confidential and non-confidential information, the Producing Party should, to the extent practicable, designate only the confidential portions rather than the entire response.

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 notice to all Receiving Parties, identifying the specific documents or materials at issue and the applicable designation level. Upon receipt of such notice, the Receiving Party shall treat the material at the designated level from the time of receipt of the retroactive designation notice. To the extent that any Receiving Party has already disclosed the material to persons who would not be authorized to receive it under the retroactive designation, the Receiving Party shall promptly notify those persons of the designation and take reasonable steps to retrieve or secure the material. The Producing Party's retroactive designation is subject to challenge under the procedures set forth in Sections 26 and 27.

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 the Receiving Party who have signed an Acknowledgment in the form attached as Exhibit A to this Order, provided that such In-House Counsel shall use the CONFIDENTIAL material solely for purposes of this Action and shall not disclose it to any other person within or outside the Receiving Party's organization who is not authorized to receive CONFIDENTIAL material under this Order;

(c) The Court, including the presiding judge, magistrate judges, and court personnel (including law clerks and courtroom deputies) to whom disclosure is reasonably necessary;

(d) Experts and Consultants retained in this Action who have signed an Acknowledgment in the form attached as Exhibit A;

(e) The Producing Party and its counsel;

(f) Court reporters and videographers engaged for depositions, hearings, or other proceedings in this Action;

(g) Document review vendors, litigation support vendors, copy services, translators, and other third-party service providers engaged by counsel for purposes of this Action, provided that such vendors are bound by written confidentiality agreements or obligations no less protective than the terms of this Order;

(h) Witnesses during depositions and trial, to the extent necessary for examination, subject to an admonition on the record that the witness may not disclose the CONFIDENTIAL material to any person not authorized under this Order and that the witness's obligation to maintain the confidentiality of such material survives the conclusion of the deposition or trial testimony; and

(i) Any person identified on the face of a document as an author, addressee, recipient, or person otherwise reflected on the document, provided that such person's access is limited to the specific document on which the person is identified and the person is informed of the CONFIDENTIAL designation and the restrictions on further disclosure.

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), provided that such persons are not involved in competitive decision-making for the Receiving Party and do not have a role in formulating the Receiving Party's business strategy, product development decisions, pricing, or other commercial activities that could be informed by the HC-AEO material;

(b) The Court, including the presiding judge, magistrate judges, and court personnel (including law clerks and courtroom deputies) to whom disclosure is reasonably necessary;

(c) Experts and Consultants retained in this Action who have signed an Acknowledgment in the form attached as Exhibit A, provided that such Experts and Consultants are not current employees, officers, or directors of the Receiving Party or any of the Receiving Party's competitors, including but not limited to current employees of OWS, Lumos, Vantage Point Capital Partners Fund IV, LP, or Ridgeline Asset Management, LLC;

(d) The Producing Party and its counsel;

(e) Court reporters and videographers engaged for depositions, hearings, or other proceedings in this Action; and

(f) Document review vendors, litigation support vendors, copy services, translators, and other third-party service providers engaged by counsel for purposes of this Action, provided that such vendors are bound by written confidentiality agreements or obligations no less protective than the terms of this Order.

HC-AEO material shall NOT be disclosed to:

(i) Any officer, director, or employee of the Receiving Party, except during deposition or trial testimony where such person is a witness and disclosure of the HC-AEO material is necessary for examination. In such circumstances, disclosure shall be made only subject to appropriate protections, which may include conducting the relevant portions of the deposition or trial in camera or under seal, limiting the witness's retention of copies of HC-AEO exhibits, and admonishing the witness on the record regarding the restrictions on further disclosure of such material;

(ii) Any In-House Counsel of the Receiving Party, regardless of whether such In-House Counsel has signed an Acknowledgment, except to the extent specifically authorized by written consent of the Producing Party or by order of the Court. The Parties specifically note that In-House Counsel who are also involved in patent prosecution — including, without limitation, Theodore "Ted" Marchetti, Vice President of intellectual Property for OWS, who is a registered patent attorney (USPTO Reg. No. 58,304) — shall not have access to HC-AEO material produced by the opposing Party unless the Producing Party provides its prior written consent or the Court orders otherwise following an appropriate showing. This restriction is intended to prevent any risk that the opposing Party's most sensitive technical and commercial information could be used, whether consciously or unconsciously, in patent prosecution activities adverse to the Producing Party's interests; or

(iii) Any person who is not expressly identified in subsections (a) through (f) above.

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 person agrees to be bound by the terms of this Order and submits to the jurisdiction of this Court for purposes of enforcement. Signed Acknowledgments shall be retained by counsel for the Party that provides access to the designated material and shall be made available to the Producing Party or the Court upon reasonable request. Counsel need not file the executed Acknowledgments with the Court unless directed to do so or unless they are relevant to a motion or dispute arising under this Order.

VI. PATENT PROSECUTION BAR

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 (including grating couplers, edge couplers, and adiabatic couplers), photodetector architectures (including germanium-on-silicon photodetectors and avalanche photodiodes), wavelength-division multiplexing components (including arrayed waveguide gratings and micro-ring resonators), optical transceiver chipsets (including coherent DSP-integrated transceivers), and modulator driver circuits (including Mach-Zehnder modulator drivers and electro-absorption modulator drivers). The Prosecution Bar applies to Patent Prosecution before the USPTO, any foreign patent office, or any international patent authority, to the extent that such Patent Prosecution involves subject matter that would be informed or influenced by the Prosecution Bar Material received by the individual. The Prosecution Bar is intended to prevent the risk that a person exposed to another Party's most sensitive technical information could use that information, whether consciously or inadvertently, in the prosecution of patent claims that could be adverse to the Producing Party.

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 patent prosecution on behalf of OWS. Pursuant to Section 20 of this Order, Mr. Marchetti's access to Lumos's HC-AEO material is restricted unless Lumos provides written consent or the Court orders otherwise. To the extent that Mr. Marchetti is given access to any of Lumos's HC-AEO material by agreement or court order, the Prosecution Bar provisions of this Section shall apply in full, and Mr. Marchetti shall be barred from participating in Patent Prosecution in the subject-matter areas defined in Section 22 for the duration specified in Section 24. Given this potential conflict, the Parties anticipate that Mr. Marchetti will not access Lumos's HC-AEO material absent a separate written agreement between the Parties that addresses the scope and limitations of such access.

(b) Dr. Raymond Ng (Of Counsel, Brannick Howell & Stein LLP): Dr. Ng serves as a technical consultant and Of Counsel to Brannick Howell & Stein LLP. To the extent that Dr. Ng accesses OWS's HC-AEO Prosecution Bar Material, the Prosecution Bar shall apply, and Dr. Ng shall be barred from participating in Patent Prosecution in the subject-matter areas defined in Section 22 for the duration specified in Section 24.

(c) Alan Ngo (Calderwood & Harkness LLP, USPTO Reg. No. 52,871): Mr. Ngo is a registered patent attorney and counsel of record for Plaintiff OWS in this Action. If Mr. Ngo receives HC-AEO Prosecution Bar Material from Lumos, the Prosecution Bar shall apply to Mr. Ngo with respect to Patent Prosecution in the subject-matter areas defined in Section 22 for the duration specified in Section 24.

(d) Other Individuals: Any other individual who receives access to HC-AEO Prosecution Bar Material shall be subject to the Prosecution Bar as set forth herein. Before receiving such access, the individual's counsel shall inform the individual of the Prosecution Bar obligations, and the individual shall acknowledge the Prosecution Bar in the Acknowledgment executed pursuant to Section 21 and Exhibit A.

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 the Parties approved by the Court, or by order of the Court upon motion of any affected Party or individual. Any motion to modify or lift the Prosecution Bar shall be accompanied by a showing of good cause and shall address the risk of competitive harm to the Producing Party.

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.g., patent prosecution in fields other than silicon photonics, optical transceivers, and related semiconductor technologies);

(c) Patent Prosecution activities that are purely ministerial in nature, including without limitation paying maintenance fees, filing assignment or change-of-address documents, filing powers of attorney, or performing other administrative tasks that do not involve the preparation, drafting, or amendment of patent claims or patent application specifications; or

(d) Participating in this litigation, including preparing and filing motions, briefs, expert reports, claim construction arguments, and other litigation-related documents, even if such activities require reference to the Prosecution Bar Material.

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 line, or other identifying information) and shall state the basis for the challenge, including the reasons why the Receiving Party believes the designation is not warranted. Upon receipt of such challenge, the Parties shall meet and confer in good faith within ten (10) business days to attempt to resolve the dispute informally. During the meet-and-confer process, the Parties shall consider, among other things, whether a particular document or set of documents could appropriately be re-designated at a lower level, whether certain categories of information can be agreed upon for consistent treatment, and whether partial redaction or other measures could adequately protect the Producing Party's interests while permitting broader access by the Receiving Party.

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 dispute statements or letter briefs. The burden of demonstrating that the designation is proper shall be on the Producing Party, which must show that good cause exists under Federal Rule of Civil Procedure 26(c) for the material to be maintained at the designated confidentiality level. Pending resolution of the dispute by the Court, the material at issue shall continue to be treated at the confidentiality level designated by the Producing Party.

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 purpose unrelated to this Action. Without limiting the generality of the foregoing, no Receiving Party or person with access to CONFIDENTIAL or HC-AEO material shall use such material in connection with any other litigation, arbitration, administrative proceeding, regulatory investigation, patent prosecution, licensing negotiation, business transaction, or competitive activity, without the prior written consent of the Producing Party or leave of Court obtained upon appropriate motion and showing of good cause.

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 judge. Specifically:

(a) The filing Party shall file a redacted public version of the document on the public docket, with all CONFIDENTIAL or HC-AEO material redacted in a manner that allows the public to understand the general nature and context of the filing;

(b) The filing Party shall submit the unredacted version of the document under seal, accompanied by an administrative motion to file under seal that identifies the specific material for which sealing is sought and sets forth the applicable legal standard;

(c) The administrative motion to file under seal shall demonstrate "compelling reasons" sufficient to overcome the strong presumption of public access to judicial records, as required by the Ninth Circuit's decision in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), for dispositive motions, or "good cause" under Federal Rule of Civil Procedure 26(c) for non-dispositive motions and discovery materials, as set forth in Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206 (9th Cir. 2002); and

(d) The opposing Party shall cooperate in good faith in identifying the specific material to be sealed and shall narrow any sealing requests to the minimum necessary to protect legitimate confidentiality interests. Overbroad sealing requests that seek to seal entire documents or filings when only discrete portions contain CONFIDENTIAL or HC-AEO material are disfavored and may be challenged.

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 before the deposition — to the Producing Party's counsel, so that appropriate attendance limitations can be discussed and enforced. If a dispute arises regarding who may be present during the HC-AEO portions of a deposition, the Parties shall meet and confer in good faith, and if the dispute cannot be resolved, the examining counsel may raise the issue with the Court by telephone or in writing in accordance with the Court's procedures for resolving discovery disputes. Deposition transcripts containing CONFIDENTIAL or HC-AEO testimony shall be marked with the applicable confidentiality legend on the transcript cover page and on each page containing designated testimony, and shall be handled in compliance with this Order. Video recordings of depositions containing CONFIDENTIAL or HC-AEO testimony shall be similarly designated and handled.

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 advance, which may include one or more of the following measures: closing the courtroom to non-authorized persons during the presentation of HC-AEO material; presenting HC-AEO exhibits in a manner that restricts viewing to authorized persons (such as through the use of individual monitors rather than a public screen); submitting HC-AEO materials for in-camera review; sealing trial exhibits; and any other protective measures the Court deems appropriate. Nothing in this Order shall preclude either Party from objecting to proposed protective measures on the ground that they are unnecessary or unduly burdensome, and the Court shall retain discretion to balance the interests of confidentiality against the public's right of access to judicial proceedings.

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 Receiving Parties shall comply with the applicable restrictions on disclosure and use. A Non-Party that wishes to avail itself of the protections of this Order must serve a written notice on all Parties (through their counsel of record) indicating that the Non-Party will be producing material subject to this Order and specifying the applicable designation level for the material to be produced. Such notice shall be served prior to or concurrently with the production of the designated material. Third parties whose confidential information may be implicated in discovery in this Action include, but are not limited to: Pinnacle Semiconductor Foundry Co., Ltd. (OWS's contract foundry, headquartered in Hsinchu, Taiwan); Vantage Point Capital Partners Fund IV, LP; First Pacific Commerce Bank, N.A.; and Ridgeline Asset Management, LLC. The Parties shall include a copy of this Order with any subpoena served on a Non-Party in this Action and shall inform the Non-Party of its right to designate confidential materials under this Order.

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 Producing Party, including all copies, excerpts, abstracts, summaries, compilations, and notes derived therefrom, to the Producing Party by a method of delivery that ensures the security of the materials (such as overnight courier with tracking and signature confirmation); or

(b) Destroy all such material, including all copies, excerpts, abstracts, summaries, compilations, and notes derived therefrom, and provide a written certification of destruction signed by Outside Counsel for the Receiving Party, confirming that all such material has been destroyed and that no copies have been retained except as permitted under this Section.

If the Producing Party does not make an election within thirty (30) days after the final termination of the Action, the Receiving Party may elect either option at its discretion.

Notwithstanding the foregoing, Outside Counsel for the Receiving Party may retain one (1) archival copy of all pleadings, briefs, motions, expert reports, hearing transcripts, deposition transcripts, and attorney work product containing or reflecting CONFIDENTIAL or HC-AEO material, solely for purposes of complying with professional responsibility obligations, malpractice insurance requirements, and applicable rules of professional conduct. Such archival copy shall remain subject to all protections of this Order, including the restrictions on disclosure, use, and handling, for so long as it is retained. The obligation to return or destroy CONFIDENTIAL and HC-AEO material shall not apply to electronic backup media created in the ordinary course of Outside Counsel's information technology operations, provided that counsel makes reasonable efforts to ensure that such backup media is not accessed for any purpose inconsistent with this Order and that such media is destroyed or overwritten in the ordinary course of counsel's data retention practices.

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 under seal by the Clerk of Court.

XII. MISCELLANEOUS PROVISIONS

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 26(b)(3) or any analogous state-law doctrine. If a Producing Party inadvertently produces material that is protected by the attorney-client privilege, work product doctrine, or any other applicable privilege or protection, the procedures of Federal Rule of Civil Procedure 26(b)(5)(B) and Federal Rule of Evidence 502(b) shall apply. Upon receiving notice from the Producing Party that material was inadvertently produced, the Receiving Party shall promptly return, sequester, or destroy all copies of the material (including any copies, excerpts, or summaries) and shall not use or disclose the content of the inadvertently produced material for any purpose until the claim of privilege has been resolved by agreement of the Parties or by order of the Court. If the Receiving Party has already disclosed the inadvertently produced material to any third party, the Receiving Party shall take reasonable steps to retrieve the material from the third party. The Parties agree that inadvertent production of privileged or protected material in this Action shall not constitute a subject-matter waiver under Federal Rule of Evidence 502(a), and that this Order shall be enforceable as a court order within the meaning of Federal Rule of Evidence 502(d).

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 particular information is discoverable, relevant, or admissible, and the Parties expressly reserve all rights to challenge the discoverability, relevance, or admissibility of any discovery Material at any stage of this Action. The Parties further agree that the designation of material as CONFIDENTIAL or HC-AEO shall not be deemed an admission that the material is relevant, material, or responsive to any discovery request.

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 of the proposed modification on the Parties' confidentiality interests and on the efficient administration of discovery in this Action. Any agreed modification shall be submitted to the Court as a stipulation and proposed order and shall not take effect until approved and entered by the Court.

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 sanctions, attorneys' fees, and any other remedies available under the Federal Rules of Civil Procedure, the inherent power of the Court, or applicable law. The Court retains jurisdiction to enforce this Order even after the termination of this Action, including after the expiration of the two-year post-termination period described in Section 14, to the extent necessary to address any breach or threatened breach of the obligations imposed by this Order.

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, the laws of the State of California shall apply.

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 Court for the Northern District of California for purposes of enforcement of this Order, including any proceedings for contempt, sanctions, or injunctive relief arising from a violation of this Order. The obligations imposed by this Order shall be enforceable against any person who receives CONFIDENTIAL or HC-AEO material, regardless of whether such person is a Party, a counsel of record, an Expert, a Consultant, or any other person who has been given access to such material.

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 Center, 34th Floor San Francisco, CA 94111 Telephone: (415) 773-5800

Email: ango@calderwoodharkness.com

Omar Siddiqui (CA Bar No. 289456) One Embarcadero Center, 34th Floor San Francisco, CA 94111 Telephone: (415) 773-5800

Email: osiddiqui@calderwoodharkness.com

Attorneys for Plaintiff Optiwave Semiconductor Corp.

FOR DEFENDANT LUMOS PHOTONICS, INC.:

BRANNICK HOWELL & STEIN LLP

By: ________

Victoria Ashworth (CA Bar No. 261934) 555 California Street, Suite 2800 San Francisco, CA 94104 Telephone: (415) 392-4200

Email: vashworth@brannickhowell.com

Daniel Kowalski (CA Bar No. 304782) 555 California Street, Suite 2800 San Francisco, CA 94104 Telephone: (415) 392-4200

Email: dkowalski@brannickhowell.com

Attorneys for Defendant Lumos Photonics, Inc.

Dated: September _, 2022

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 information in this Action, hereby ORDERS as follows:

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 provisions, are incorporated into this Order by reference and shall have the full force and effect of a court order.

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 Semiconductor Corp. v. Lumos Photonics, Inc. Case No. 5:22-cv-03417-EJD United States District Court for the Northern District of California

I, the undersigned, hereby acknowledge and agree as follows:

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 I may not use such materials for any purpose other than this Action.

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.

4. Sanctions and Penalties. I understand that any violation of the Protective Order may subject me to sanctions, contempt of court, or other penalties imposed by the United States District Court for the Northern District of California, and that the Producing Party whose confidential information is compromised by any violation may seek injunctive relief, monetary sanctions, attorneys' fees, and other remedies.

5. Submission to Jurisdiction. I submit to the personal jurisdiction of the United States District Court for the Northern District of California for purposes of enforcement of the Protective Order, including any proceedings for contempt, sanctions, or injunctive relief arising from a violation of the Protective Order.

6. Patent Prosecution Bar (if applicable). Check this box if you will receive access to Prosecution Bar Material. I understand and agree that, by receiving access to Prosecution Bar Material as defined in the Protective Order, I am subject to the Patent Prosecution Bar set forth in Sections 22 through 25 of the Protective Order. I will not participate in Patent Prosecution activities relating to the subject matter of this Action (as defined in Section 22) for the duration specified in Section 24 of the Protective Order. I understand that this restriction may extend for up to two (2) years following the conclusion of this Action or one (1) year following the date I last had access to Prosecution Bar Material, whichever is later.

Signature: ________

Printed Name: ________

Title / Role: ________

Affiliation: ________

Date: ________

Address for Service of Process: