1014-00003 · Optiwave Semiconductor Corp · Case Management

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

The Court held an Initial Case Management Conference in this matter on August 15, 2022, pursuant to Federal Rule of Civil Procedure 16 and Civil Local Rule 16-2 of the Northern District of California. Present at the conference were counsel for Plaintiff Optiwave Semiconductor Corp. ("OWS" or "Plaintiff") and counsel for Defendant Lumos Photonics, Inc. ("Lumos" or "Defendant").

The parties have filed a Joint Case Management Statement pursuant to Civil Local Rule 16-9 and the Standing Order of the Honorable Edward J. Torvelis regarding Initial Case Management Conferences. The Court has reviewed the Joint Case Management Statement, the positions of the parties, and the nature of this action.

This action is a patent infringement case in which Plaintiff OWS asserts infringement of four United States utility patents: U.S. Patent Nos. 10,234,567; 10,891,234; 11,045,678; and 11,312,890. The proceedings in this action shall be governed by the Patent Local Rules of the Northern District of California, as supplemented by this Order and the Federal Rules of Civil Procedure.

Having considered the submissions of the parties, the representations of counsel at the Case Management Conference, and the nature and complexity of this patent infringement action, the Court hereby enters the following Case Management Order. This Order supersedes any prior scheduling orders or case management directives and shall govern all deadlines in this matter unless modified by further order of the Court upon a showing of good cause.

1. NATURE OF THE ACTION

1.1 Plaintiff Optiwave Semiconductor Corp. ("OWS") brings this action against Defendant Lumos Photonics, Inc. ("Lumos") for infringement of four United States utility patents under 35 U.S.C. § 271. The patents-in-suit are directed to the following technologies in the field of silicon photonics: (a) integrated waveguide coupling with tapered mode conversion for silicon photonics platforms; (b) germanium-on-silicon photodetector architectures employing graded buffer layers for enhanced responsivity; (c) multi-channel optical transceiver architectures incorporating integrated wavelength-division multiplexing on silicon substrates; and (d) driver circuit architectures for high-speed silicon photonic Mach-Zehnder modulators.

1.2 Plaintiff alleges that Defendant's LumosBridge™ 800G Optical Engine and LumosEdge™ 400ZR+ Pluggable Transceiver products (collectively, the "Accused Products") infringe certain claims of each of the four patents-in-suit. Plaintiff seeks damages, including lost profits and/or a reasonable royalty, as well as injunctive relief.

1.3 Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1338(a), as this action arises under the patent laws of the United States, 35 U.S.C. § 1 et seq. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1400(b). Defendant maintains a permanent and continuous sales office and engineering center at 4750 Great America Parkway, Suite 320, Santa Clara, California 95054, which is within the Northern District of California, San Jose Division. Defendant has committed acts of infringement within this judicial district, including the sale, offer to sell, and use of the Accused Products.

1.4 Defendant has filed counterclaims seeking a declaratory judgment of non-infringement and invalidity of each of the four patents-in-suit. Defendant's invalidity defenses and counterclaims include assertions under 35 U.S.C. §§ 102 (anticipation), 103 (obviousness), and 112 (indefiniteness and lack of written description/enablement).

2. COUNSEL OF RECORD

2.1 Counsel for Plaintiff Optiwave Semiconductor Corp.:

Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, California 94111 Telephone: (415) 555-7200 Facsimile: (415) 555-7201

Alan Ngo — Responsible Partner California State Bar No. 247839 USPTO Registration No. 52,871

Email: angu@calderwoodharkness.com

Marcus Delgado — Senior Associate California State Bar No. 298412

Email: mdelgado@calderwoodharkness.com

Omar Siddiqui — Associate California State Bar No. 312056

Email: osiddiqui@calderwoodharkness.com

Christy Bauer — Associate California State Bar No. 318774

Email: cbauer@calderwoodharkness.com

2.2 Counsel for Defendant Lumos Photonics, Inc.:

Brannick Howell & Stein LLP 555 California Street, Suite 2800 San Francisco, California 94104 Telephone: (415) 555-4100 Facsimile: (415) 555-4101

Victoria "Tori" Ashworth — Lead Partner California State Bar No. 231564 USPTO Registration No. 49,307

Email: tashworth@brannickhowell.com

2.3 All counsel identified above have appeared in this action and are authorized to receive service of all papers and filings on behalf of their respective clients. Each party shall promptly notify the Court and opposing counsel of any changes in representation or contact information.

3. PATENTS-IN-SUIT

The following four United States patents are asserted in this action (collectively, the "Patents-in-Suit"):

3.1 U.S. Patent No. 10,234,567 (the "'567 Patent")

Title: "Integrated Waveguide Coupler with Tapered Mode Converter for Silicon Photonics Platforms"

Issue Date: March 19, 2019 Asserted Claims: 1, 4, 7, 12, and 15

3.2 U.S. Patent No. 10,891,234 (the "'234 Patent")

Title: "Germanium-on-Silicon Photodetector with Graded Buffer Layer for Enhanced Responsivity"

Issue Date: January 14, 2021 Asserted Claims: 1, 3, 5, 8, and 11

3.3 U.S. Patent No. 11,045,678 (the "'678 Patent")

Title: "Multi-Channel Optical Transceiver with Integrated Wavelength-Division Multiplexing on Silicon"

Issue Date: June 29, 2021 Asserted Claims: 1, 2, 6, 9, and 14

3.4 U.S. Patent No. 11,312,890 (the "'890 Patent")

Title: "Driver Circuit Architecture for High-Speed Silicon Photonic Mach-Zehnder Modulators"

Issue Date: April 26, 2022 Asserted Claims: 1, 5, 8, and 13

4. CLAIM CONSTRUCTION SCHEDULE (PATENT LOCAL RULES)

The following deadlines shall govern claim construction proceedings in this action, consistent with Patent Local Rules 3 and 4 of the Northern District of California:

4.1 Disclosure of Asserted Claims and Infringement Contentions (Patent L.R. 3-1)

Plaintiff's Disclosure of Asserted Claims and Infringement Contentions, as required by Patent Local Rule 3-1, has been served on Defendant. Compliance with Patent Local Rule 3-1 was confirmed by the parties at the Initial Case Management Conference on August 15, 2022. The Infringement Contentions include claim charts mapping each asserted claim to the Accused Products and identifying, on a claim-by-claim and limitation-by-limitation basis, the specific aspects of the Accused Products that Plaintiff contends practice each element of each asserted claim.

4.2 Invalidity Contentions (Patent L.R. 3-3)

Defendant shall serve its Invalidity Contentions in accordance with the timeline established by Patent Local Rule 3-3. The Invalidity Contentions shall identify each item of prior art that Defendant contends anticipates or renders obvious each asserted claim of the Patents-in-Suit and shall include detailed claim charts mapping each prior art reference to each asserted claim on a limitation-by-limitation basis. Defendant's Invalidity Contentions shall further identify any bases for invalidity under 35 U.S.C. § 112 with the specificity required by Patent Local Rule 3-3(d).

4.3 Preliminary Claim Construction Contentions (Patent L.R. 4-1)

Deadline: September 12, 2022

Each party shall, by this date, serve its Preliminary Claim Construction Contentions identifying the claim terms, phrases, or clauses of the asserted claims that the party contends require construction by the Court and proposing constructions for each such term. Each party's Preliminary Claim Construction Contentions shall be accompanied by an identification of the intrinsic evidence, including the patent claims, specification, and prosecution history, that supports the party's proposed constructions. This deadline has been set and confirmed by the parties at the Case Management Conference.

4.4 Responsive Claim Construction Contentions (Patent L.R. 4-2)

Deadline: October 3, 2022

Each party shall, by this date, serve its Responsive Claim Construction Contentions, responding to the opposing party's Preliminary Claim Construction Contentions. The Responsive Contentions shall include the responding party's alternative proposed construction for each disputed claim term and an identification of the intrinsic and extrinsic evidence supporting the responding party's positions.

4.5 Joint Claim Construction and Prehearing Statement (Patent L.R. 4-3)

Deadline: October 14, 2022

The parties shall jointly file a Joint Claim Construction and Prehearing Statement with the Court. The Joint Claim Construction and Prehearing Statement shall: (a) identify all claim terms, phrases, or clauses on which the parties have agreed as to construction, along with the agreed construction; (b) identify all disputed claim terms, phrases, or clauses, together with each party's proposed construction for each disputed term; (c) identify the principal intrinsic and extrinsic evidence that each party contends supports its proposed construction of each disputed term; and (d) identify any claim terms that the parties agree require no construction or should be given their plain and ordinary meaning.

4.6 Close of Claim Construction discovery

Deadline: October 31, 2022

All discovery related to claim construction shall be completed by this date. Claim construction discovery shall include, without limitation, depositions of named inventors on the Patents-in-Suit and depositions of prosecution counsel, if applicable and to the extent permitted by applicable privilege rules. The parties may also conduct written discovery targeted to claim construction issues during this period. Discovery beyond October 31, 2022, related solely to claim construction issues shall not be permitted absent leave of Court.

4.7 Opening Claim Construction Briefs

Deadline: December 5, 2022

Each party shall file its Opening Claim Construction Brief addressing all disputed claim terms. The Opening Claim Construction Brief shall not exceed forty-five (45) pages per side, exclusive of cover pages, tables of contents, tables of authorities, and any appendices. All expert declarations submitted in support of claim construction positions shall be filed concurrently with the Opening Claim Construction Brief.

4.8 Responsive Claim Construction Briefs

Deadline: December 19, 2022

Each party shall file its Responsive Claim Construction Brief addressing all disputed claim terms. The Responsive Claim Construction Brief shall not exceed forty-five (45) pages per side, exclusive of cover pages, tables of contents, tables of authorities, and any appendices. Any expert declarations submitted in support of responsive claim construction positions shall be filed concurrently with the Responsive Claim Construction Brief.

4.9 Reply Claim Construction Briefs

Deadline: January 9, 2023

Each party may file a Reply Claim Construction Brief. Reply briefs shall not exceed fifteen (15) pages per side, exclusive of cover pages, tables of contents, tables of authorities, and any appendices. Reply briefs shall be limited to issues raised in the opposing party's Responsive Claim Construction Brief and shall not raise new arguments or address new claim terms not previously briefed.

4.10 Sur-Reply Briefs

Deadline: January 19, 2023 (if permitted by leave of Court)

Sur-reply briefs shall be permitted only upon leave of Court. Any party seeking leave to file a sur-reply brief shall file a motion for leave by January 13, 2023, briefly setting forth the grounds for the requested filing. If leave is granted, sur-reply briefs shall not exceed fifteen (15) pages per side.

4.11 Tutorial Presentations and Expert Declarations

Expert declarations submitted in support of claim construction positions shall be filed with the respective party's Opening or Responsive Claim Construction Brief, as applicable. The parties are encouraged, but not required, to submit technical tutorial presentations to assist the Court in understanding the technology at issue. Any technical tutorial presentations shall be submitted to the Court no later than five (5) court days before the Markman Hearing. The parties shall meet and confer in advance regarding the format and content of any tutorial presentations to avoid unnecessary duplication or inefficiency.

4.12 Markman Hearing (Claim Construction Hearing)

Date: January 30, 2023 Time: 9:00 a.m. Location: Courtroom 4 — 5th Floor, Robert F. Peckham Federal Building and United States Courthouse, 280 South 1st Street, San Jose, California 95113 Estimated Duration: Full day (the parties estimate approximately 6–7 hours of argument and presentation)

Each side shall be prepared to present oral argument on all disputed claim terms at the Markman Hearing. The Court may also hear testimony or presentations from technical tutorial witnesses. The parties shall confer in advance regarding the allocation of time and the order of presentations and shall submit a proposed schedule for the hearing to the Court at least seven (7) days before the hearing date.

5. FACT DISCOVERY SCHEDULE

5.1 Initial Disclosures (FRCP 26(a)(1))

Deadline: August 22, 2022 (Completed)

The parties have exchanged their Initial Disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) as of August 22, 2022. The parties confirmed at the Case Management Conference that Initial Disclosures have been served and that no issues remain outstanding regarding the sufficiency of such disclosures at this time. The parties are reminded of their continuing obligation to supplement their Initial Disclosures in a timely manner pursuant to Federal Rule of Civil Procedure 26(e).

5.2 Written discovery

The parties may commence serving written discovery — including requests for production of documents, interrogatories, and requests for admission — upon the date of entry of this Order. Written discovery shall be served in accordance with the Federal Rules of Civil Procedure and the Local Rules of this Court. Unless otherwise agreed in writing by the parties, responses to written discovery shall be due thirty (30) days from the date of service, consistent with the default periods set forth in the Federal Rules of Civil Procedure. The parties are encouraged to meet and confer regarding the timing and sequencing of written discovery requests to promote efficiency and minimize disputes.

5.3 Document Production

The parties shall produce documents responsive to document requests on a rolling basis. Initial substantial productions shall be made within thirty (30) days of service of the applicable document requests.

With respect to Electronically Stored Information ("ESI"), the parties shall meet and confer regarding ESI protocols — including search terms, custodians, date ranges, and production format (including metadata fields) — within fourteen (14) days of the date of this Order. The parties shall endeavor to reach agreement on an ESI Protocol and shall submit any agreed-upon protocol to the Court for entry as a supplemental order. Any disputes regarding ESI search methodology, custodians, production format, or related issues shall be raised promptly with the Court in accordance with Section 11 of this Order.

Unless otherwise agreed, all documents shall be produced in a format consistent with the parties' ESI Protocol or, absent such agreement, in a reasonably usable form as required by Federal Rule of Civil Procedure 34(b)(2)(E).

5.4 Fact Depositions

Fact depositions may commence after the close of claim construction discovery (October 31, 2022) and shall be completed by the close of fact discovery. Each side shall be limited to ten (10) fact depositions, each of no more than seven (7) hours on the record, unless the Court grants leave for additional depositions upon a showing of good cause. For purposes of this limitation, depositions of current officers, directors, or employees of a party shall be counted against that party's opponent's deposition allotment. The parties shall confer in good faith regarding the scheduling of depositions to avoid conflicts and to promote the orderly progression of discovery.

5.5 Close of Fact discovery

Deadline: May 15, 2023

All fact discovery, including the completion of all fact depositions and the production of all documents responsive to timely-served discovery requests, shall be completed by this date. Discovery served so late that responses would not be due until after the close of fact discovery shall not be deemed timely, and the Court will not compel responses to discovery served after the point at which responses would be due after the close of fact discovery, absent a showing of good cause and leave of Court.

5.6 Third-Party discovery

Subpoenas to non-parties may be issued in accordance with Federal Rule of Civil Procedure 45. The parties shall provide reasonable notice to the opposing party before issuing any third-party subpoena. All third-party discovery — including document subpoenas and deposition subpoenas — shall be completed by the close of fact discovery (May 15, 2023). Third-party depositions shall count against the noticing party's deposition allotment set forth in Section 5.4 above, unless the Court orders otherwise.

6. EXPERT DISCOVERY SCHEDULE

6.1 Expert Disclosures (FRCP 26(a)(2))

Expert disclosures shall be made in accordance with Federal Rule of Civil Procedure 26(a)(2) and shall include, for each retained expert, a complete written report meeting the requirements of Rule 26(a)(2)(B).

Plaintiff's (OWS) Expert Reports: June 30, 2023

Defendant's (Lumos) Responsive Expert Reports: August 14, 2023

Plaintiff's Rebuttal Expert Reports: September 15, 2023

Rebuttal expert reports shall be limited to matters raised in the opposing party's affirmative expert reports and shall not present new opinions or theories not responsive to the opposing party's expert opinions.

6.2 Expert Depositions

Expert depositions shall be completed within thirty (30) days after service of the opposing party's expert reports (or rebuttal reports, as applicable). Each side may depose each of the opposing party's testifying experts for a period not to exceed seven (7) hours on the record, unless the parties agree otherwise or the Court grants leave for additional time.

Close of Expert discovery: October 31, 2023

All expert discovery, including the completion of all expert depositions, shall be completed by this date.

6.3 Daubert / Expert Exclusion Motions

Motions to exclude expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702 shall be filed in accordance with the following schedule:

Deadline to File Motions: November 15, 2023

Opposition: December 6, 2023

Reply: December 20, 2023

Hearing: To be set by the Court upon receipt of the completed briefing.

The parties are reminded that expert exclusion motions should be reserved for genuinely disputed issues of expert qualification, methodology, or reliability, and should not be used as a vehicle for previewing substantive merits arguments more properly raised on summary judgment.

7. DISPOSITIVE MOTIONS

7.1 Summary Judgment and Other Dispositive Motions

Motions for summary judgment under Federal Rule of Civil Procedure 56, and any other dispositive motions (including motions for judgment on the pleadings under Rule 12(c)), shall be filed in accordance with the following schedule:

Deadline to File: January 15, 2024

Opposition: February 15, 2024

Reply: March 1, 2024

Hearing: To be set by the Court upon receipt of the completed briefing.

All dispositive motions shall comply with the page limitations set forth in the Civil Local Rules of the Northern District of California and any applicable standing orders of this Court. The parties shall meet and confer in advance of filing any dispositive motion to identify areas of agreement and narrow the issues presented, consistent with the requirements of the Civil Local Rules.

7.2 Motions in Limine

The deadline for filing motions in limine shall be set in the Final Pretrial Order or by separate order of the Court in connection with the Final Pretrial Conference. The parties should be prepared to address the timing and parameters of motions in limine at the Final Pretrial Conference.

8. PRETRIAL CONFERENCE AND TRIAL

8.1 Final Pretrial Conference

Date: April 2024 (exact date to be set by separate order of the Court)

The parties shall file a Joint Pretrial Statement at least fourteen (14) days before the Final Pretrial Conference. The Joint Pretrial Statement shall comply with Civil Local Rule 16-10 and the Court's standing orders, and shall include, without limitation: (a) a statement of uncontested facts; (b) a statement of contested facts and issues of law; (c) proposed jury instructions and verdict forms (in the event of a jury trial); (d) motions in limine, if not previously filed; (e) witness lists and exhibit lists; (f) deposition designations and counter-designations; and (g) any other matters required by the Court's standing order or the Civil Local Rules.

8.2 Trial. Estimated Trial Date: May 2024 (exact date to be set by the Court by separate order)

The estimated trial duration is seven (7) to ten (10) court days. Plaintiff has demanded a trial by jury pursuant to the Seventh Amendment to the United States Constitution and Federal Rule of Civil Procedure 38. Defendant has not waived its right to a jury trial. Accordingly, this matter shall be tried before a jury. The Court will determine the final allocation of trial time between the parties in the Final Pretrial Order.

9. ALTERNATIVE DISPUTE RESOLUTION (ADR)

9.1 The parties are hereby referred to the Court's Alternative Dispute Resolution (ADR) program in accordance with Civil Local Rule 16-8 and the ADR Local Rules of the Northern District of California.

9.2 The parties shall participate in at least one ADR process — which may consist of mediation, early neutral evaluation, or another ADR procedure approved by the Court — no later than March 31, 2023. The parties are encouraged to engage in ADR at the earliest practicable opportunity, including before the close of claim construction proceedings if the parties believe early resolution discussions would be productive.

9.3 The parties may select a private mediator by mutual agreement or may request that the Court assign a mediator from the Court's ADR panel. If the parties select a private mediator, they shall promptly notify the Court of the identity of the selected mediator and the scheduled date of the mediation session.

9.4 All ADR proceedings shall be confidential and conducted without prejudice to either party's positions in this litigation. Statements, offers, and communications made during ADR proceedings shall not be admissible in evidence in this action or any related proceeding, consistent with Federal Rule of Evidence 408 and applicable ADR confidentiality rules.

10. PROTECTIVE ORDER

10.1 The parties have filed, or shall promptly file, a Joint Stipulation and [Proposed] Order Regarding Stipulated Protective Order governing the treatment of confidential information exchanged during discovery in this action. The Stipulated Protective Order shall provide for at least two tiers of confidentiality designation: "CONFIDENTIAL" and "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY."

10.2 The Protective Order shall be entered separately by the Court upon review of the parties' joint stipulation and proposed order. Pending entry of the Protective Order, the parties shall treat all documents and information designated as confidential by the producing party in accordance with the terms of the proposed Protective Order, and the producing party's confidentiality designations shall be binding on the receiving party on an interim basis.

11. DISCOVERY DISPUTES

11.1 Before filing any discovery motion, the parties must meet and confer in good faith, in person or by telephone, in accordance with Civil Local Rule 37-1 of the Northern District of California. Counsel shall make a genuine effort to resolve discovery disputes without Court intervention.

11.2 If the parties are unable to resolve a discovery dispute through the meet-and-confer process, the dispute shall first be submitted to the Court via a Joint discovery Dispute Letter Brief, in accordance with the Court's Standing Order. The Joint discovery Dispute Letter Brief shall not exceed five (5) pages per side and shall concisely set forth the nature of the dispute, each party's position, the relief sought, and the parties' good-faith efforts to resolve the dispute. Joint discovery Dispute Letter Briefs shall be filed electronically via CM/ECF.

11.3 The Court may resolve discovery disputes on the papers, without a hearing, or may schedule a telephonic or in-person hearing at its discretion. The parties shall be prepared to participate in a discovery dispute hearing on short notice.

12. AMENDMENTS TO CONTENTIONS

12.1 Any amendments to Plaintiff's Infringement Contentions, Defendant's Invalidity Contentions, or either party's Claim Construction Contentions shall require leave of Court upon a showing of good cause, in accordance with Patent Local Rule 3-6. A party seeking leave to amend its contentions shall file a motion for leave to amend, setting forth with particularity the basis for the proposed amendment and the good cause justifying the amendment at the time it is sought.

12.2 The Court will consider, among other factors, whether the party seeking amendment acted with diligence in identifying the basis for the amendment, whether the opposing party would be unduly prejudiced by the amendment, and whether the amendment would disrupt the schedule set forth in this Order.

13. STIPULATIONS AND MODIFICATIONS

13.1 The parties may not modify the deadlines set forth in this Order by stipulation alone. Any modification of the deadlines established by this Order requires leave of Court.

13.2 Requests to modify deadlines shall be made by joint stipulation and proposed order filed with the Court, setting forth good cause for the requested modification. The joint stipulation shall identify the specific deadline(s) to be modified, the proposed new deadline(s), the reasons for the modification, and the impact, if any, on other deadlines in this Order and on the trial date. If the parties are unable to agree on a proposed modification, the requesting party may file an individual motion for modification of the schedule, which shall be noticed for hearing in accordance with the Civil Local Rules.

14. SERVICE AND NOTICE

14.1 All filings in this action shall be made electronically via the Court's Case Management / Electronic Case Filing (CM/ECF) system, in accordance with the General Orders of this Court regarding electronic filing. Service via CM/ECF constitutes service on all registered parties.

14.2 Courtesy copies of all briefs exceeding twenty-five (25) pages in length shall be delivered to Chambers in accordance with the Court's Standing Order regarding courtesy copies. Courtesy copies shall be clearly marked "COURTESY COPY" and shall be delivered within one (1) business day of electronic filing.

15. COMPLIANCE AND SANCTIONS

15.1 The deadlines and obligations set forth in this Order are binding on the parties and their counsel. Failure to comply with the deadlines, obligations, or procedures established by this Order may result in sanctions, including but not limited to: exclusion of evidence; preclusion of claims, defenses, or contentions; adverse inference instructions; monetary sanctions; or any other relief the Court deems appropriate under Federal Rule of Civil Procedure 16(f), Federal Rule of Civil Procedure 37, or the Court's inherent authority.

15.2 Counsel are reminded of their obligations under Federal Rule of Civil Procedure 1 to cooperate in the just, speedy, and inexpensive determination of this action.

IT IS SO ORDERED.

Dated: ____, 2022

________________________________________

HON. EDWARD J. TORVELIS United States District Judge

ATTESTATION OF COUNSEL / SUBMITTED BY

Respectfully Submitted:

For Plaintiff Optiwave Semiconductor Corp.:

CALDERWOOD & HARKNESS LLP

By: ________

Alan Ngo One Embarcadero Center, 34th Floor San Francisco, California 94111 Telephone: (415) 555-7200

Dated: August __, 2022

For Defendant Lumos Photonics, Inc.:

BRANNICK HOWELL & STEIN LLP

By: ________

Victoria Ashworth 555 California Street, Suite 2800 San Francisco, California 94104 Telephone: (415) 555-4100

Dated: August __, 2022

APPENDIX A SUMMARY DEADLINE TABLE

All deadlines are subject to modification only by order of the Court upon a showing of good cause. See Section 13 of this Order.

OPTIWAVE SEMICONDUCTOR CORP.,	Case No. 5:22-cv-03417-EJD
<!-- indent:2 -->Plaintiff,<!-- /indent -->	Hon. Edward J. Torvelis

[PROPOSED] CASE MANAGEMENT ORDER

LUMOS PHOTONICS, INC.,

Defendant.

Event / Deadline	Date
Initial Disclosures (FRCP 26(a)(1))	August 22, 2022 (completed)
Infringement Contentions (Patent L.R. 3-1)	(served; compliance confirmed)
Preliminary Claim Construction Contentions (Patent L.R. 4-1)	September 12, 2022
Responsive Claim Construction Contentions (Patent L.R. 4-2)	October 3, 2022
Joint Claim Construction & Prehearing Statement (Patent L.R. 4-3)	October 14, 2022
Close of Claim Construction discovery	October 31, 2022
Opening Claim Construction Briefs	December 5, 2022
Responsive Claim Construction Briefs	December 19, 2022
Reply Claim Construction Briefs	January 9, 2023
Sur-Reply Briefs (by leave of Court)	January 19, 2023
Markman Hearing	January 30, 2023
ADR Completion (at least one process)	March 31, 2023
Close of Fact discovery	May 15, 2023
Plaintiff's Expert Reports	June 30, 2023
Defendant's Responsive Expert Reports	August 14, 2023
Plaintiff's Rebuttal Expert Reports	September 15, 2023
Close of Expert discovery	October 31, 2023
Daubert / Expert Exclusion Motions	November 15, 2023
Daubert Opposition	December 6, 2023
Daubert Reply	December 20, 2023
Dispositive Motions (Filing Deadline)	January 15, 2024
Dispositive Motions (Opposition)	February 15, 2024
Dispositive Motions (Reply)	March 1, 2024
Final Pretrial Conference	April 2024 (exact date TBD)

Trial

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
The Court held an Initial Case Management Conference in this matter on August 15, 2022, pursuant to Federal Rule of Civil Procedure 16 and Civil Local Rule 16-2 of the Northern District of California. Present at the conference were counsel for Plaintiff Optiwave Semiconductor Corp. ("OWS" or "Plaintiff") and counsel for Defendant Lumos Photonics, Inc. ("Lumos" or "Defendant").
The parties have filed a Joint Case Management Statement pursuant to Civil Local Rule 16-9 and the Standing Order of the Honorable Edward J. Torvelis regarding Initial Case Management Conferences. The Court has reviewed the Joint Case Management Statement, the positions of the parties, and the nature of this action.
This action is a patent infringement case in which Plaintiff OWS asserts infringement of four United States utility patents: U.S. Patent Nos. 10,234,567; 10,891,234; 11,045,678; and 11,312,890. The proceedings in this action shall be governed by the Patent Local Rules of the Northern District of California, as supplemented by this Order and the Federal Rules of Civil Procedure.
Having considered the submissions of the parties, the representations of counsel at the Case Management Conference, and the nature and complexity of this patent infringement action, the Court hereby enters the following Case Management Order. This Order supersedes any prior scheduling orders or case management directives and shall govern all deadlines in this matter unless modified by further order of the Court upon a showing of good cause.
1. NATURE OF THE ACTION
1.1 Plaintiff Optiwave Semiconductor Corp. ("OWS") brings this action against Defendant Lumos Photonics, Inc. ("Lumos") for infringement of four United States utility patents under 35 U.S.C. § 271. The patents-in-suit are directed to the following technologies in the field of silicon photonics: (a) integrated waveguide coupling with tapered mode conversion for silicon photonics platforms; (b) germanium-on-silicon photodetector architectures employing graded buffer layers for enhanced responsivity; (c) multi-channel optical transceiver architectures incorporating integrated wavelength-division multiplexing on silicon substrates; and (d) driver circuit architectures for high-speed silicon photonic Mach-Zehnder modulators.
1.2 Plaintiff alleges that Defendant's LumosBridge™ 800G Optical Engine and LumosEdge™ 400ZR+ Pluggable Transceiver products (collectively, the "Accused Products") infringe certain claims of each of the four patents-in-suit. Plaintiff seeks damages, including lost profits and/or a reasonable royalty, as well as injunctive relief.
1.3 Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1338(a), as this action arises under the patent laws of the United States, 35 U.S.C. § 1 et seq. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1400(b). Defendant maintains a permanent and continuous sales office and engineering center at 4750 Great America Parkway, Suite 320, Santa Clara, California 95054, which is within the Northern District of California, San Jose Division. Defendant has committed acts of infringement within this judicial district, including the sale, offer to sell, and use of the Accused Products.
1.4 Defendant has filed counterclaims seeking a declaratory judgment of non-infringement and invalidity of each of the four patents-in-suit. Defendant's invalidity defenses and counterclaims include assertions under 35 U.S.C. §§ 102 (anticipation), 103 (obviousness), and 112 (indefiniteness and lack of written description/enablement).
2. COUNSEL OF RECORD
2.1 Counsel for Plaintiff Optiwave Semiconductor Corp.:
Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, California 94111 Telephone: (415) 555-7200 Facsimile: (415) 555-7201
Alan Ngo — Responsible Partner California State Bar No. 247839 USPTO Registration No. 52,871
Email: angu@calderwoodharkness.com
Marcus Delgado — Senior Associate California State Bar No. 298412
Email: mdelgado@calderwoodharkness.com
Omar Siddiqui — Associate California State Bar No. 312056
Email: osiddiqui@calderwoodharkness.com
Christy Bauer — Associate California State Bar No. 318774
Email: cbauer@calderwoodharkness.com
2.2 Counsel for Defendant Lumos Photonics, Inc.:
Brannick Howell & Stein LLP 555 California Street, Suite 2800 San Francisco, California 94104 Telephone: (415) 555-4100 Facsimile: (415) 555-4101
Victoria "Tori" Ashworth — Lead Partner California State Bar No. 231564 USPTO Registration No. 49,307
Email: tashworth@brannickhowell.com
2.3 All counsel identified above have appeared in this action and are authorized to receive service of all papers and filings on behalf of their respective clients. Each party shall promptly notify the Court and opposing counsel of any changes in representation or contact information.
3. PATENTS-IN-SUIT
The following four United States patents are asserted in this action (collectively, the "Patents-in-Suit"):
3.1 U.S. Patent No. 10,234,567 (the "'567 Patent")
Title: "Integrated Waveguide Coupler with Tapered Mode Converter for Silicon Photonics Platforms"
Issue Date: March 19, 2019 Asserted Claims: 1, 4, 7, 12, and 15
3.2 U.S. Patent No. 10,891,234 (the "'234 Patent")
Title: "Germanium-on-Silicon Photodetector with Graded Buffer Layer for Enhanced Responsivity"
Issue Date: January 14, 2021 Asserted Claims: 1, 3, 5, 8, and 11
3.3 U.S. Patent No. 11,045,678 (the "'678 Patent")
Title: "Multi-Channel Optical Transceiver with Integrated Wavelength-Division Multiplexing on Silicon"
Issue Date: June 29, 2021 Asserted Claims: 1, 2, 6, 9, and 14
3.4 U.S. Patent No. 11,312,890 (the "'890 Patent")
Title: "Driver Circuit Architecture for High-Speed Silicon Photonic Mach-Zehnder Modulators"
Issue Date: April 26, 2022 Asserted Claims: 1, 5, 8, and 13
4. CLAIM CONSTRUCTION SCHEDULE (PATENT LOCAL RULES)
The following deadlines shall govern claim construction proceedings in this action, consistent with Patent Local Rules 3 and 4 of the Northern District of California:
4.1 Disclosure of Asserted Claims and Infringement Contentions (Patent L.R. 3-1)
Plaintiff's Disclosure of Asserted Claims and Infringement Contentions, as required by Patent Local Rule 3-1, has been served on Defendant. Compliance with Patent Local Rule 3-1 was confirmed by the parties at the Initial Case Management Conference on August 15, 2022. The Infringement Contentions include claim charts mapping each asserted claim to the Accused Products and identifying, on a claim-by-claim and limitation-by-limitation basis, the specific aspects of the Accused Products that Plaintiff contends practice each element of each asserted claim.
4.2 Invalidity Contentions (Patent L.R. 3-3)
Defendant shall serve its Invalidity Contentions in accordance with the timeline established by Patent Local Rule 3-3. The Invalidity Contentions shall identify each item of prior art that Defendant contends anticipates or renders obvious each asserted claim of the Patents-in-Suit and shall include detailed claim charts mapping each prior art reference to each asserted claim on a limitation-by-limitation basis. Defendant's Invalidity Contentions shall further identify any bases for invalidity under 35 U.S.C. § 112 with the specificity required by Patent Local Rule 3-3(d).
4.3 Preliminary Claim Construction Contentions (Patent L.R. 4-1)
Deadline: September 12, 2022
Each party shall, by this date, serve its Preliminary Claim Construction Contentions identifying the claim terms, phrases, or clauses of the asserted claims that the party contends require construction by the Court and proposing constructions for each such term. Each party's Preliminary Claim Construction Contentions shall be accompanied by an identification of the intrinsic evidence, including the patent claims, specification, and prosecution history, that supports the party's proposed constructions. This deadline has been set and confirmed by the parties at the Case Management Conference.
4.4 Responsive Claim Construction Contentions (Patent L.R. 4-2)
Deadline: October 3, 2022
Each party shall, by this date, serve its Responsive Claim Construction Contentions, responding to the opposing party's Preliminary Claim Construction Contentions. The Responsive Contentions shall include the responding party's alternative proposed construction for each disputed claim term and an identification of the intrinsic and extrinsic evidence supporting the responding party's positions.
4.5 Joint Claim Construction and Prehearing Statement (Patent L.R. 4-3)
Deadline: October 14, 2022
The parties shall jointly file a Joint Claim Construction and Prehearing Statement with the Court. The Joint Claim Construction and Prehearing Statement shall: (a) identify all claim terms, phrases, or clauses on which the parties have agreed as to construction, along with the agreed construction; (b) identify all disputed claim terms, phrases, or clauses, together with each party's proposed construction for each disputed term; (c) identify the principal intrinsic and extrinsic evidence that each party contends supports its proposed construction of each disputed term; and (d) identify any claim terms that the parties agree require no construction or should be given their plain and ordinary meaning.
4.6 Close of Claim Construction discovery
Deadline: October 31, 2022
All discovery related to claim construction shall be completed by this date. Claim construction discovery shall include, without limitation, depositions of named inventors on the Patents-in-Suit and depositions of prosecution counsel, if applicable and to the extent permitted by applicable privilege rules. The parties may also conduct written discovery targeted to claim construction issues during this period. Discovery beyond October 31, 2022, related solely to claim construction issues shall not be permitted absent leave of Court.
4.7 Opening Claim Construction Briefs
Deadline: December 5, 2022
Each party shall file its Opening Claim Construction Brief addressing all disputed claim terms. The Opening Claim Construction Brief shall not exceed forty-five (45) pages per side, exclusive of cover pages, tables of contents, tables of authorities, and any appendices. All expert declarations submitted in support of claim construction positions shall be filed concurrently with the Opening Claim Construction Brief.
4.8 Responsive Claim Construction Briefs
Deadline: December 19, 2022
Each party shall file its Responsive Claim Construction Brief addressing all disputed claim terms. The Responsive Claim Construction Brief shall not exceed forty-five (45) pages per side, exclusive of cover pages, tables of contents, tables of authorities, and any appendices. Any expert declarations submitted in support of responsive claim construction positions shall be filed concurrently with the Responsive Claim Construction Brief.
4.9 Reply Claim Construction Briefs
Deadline: January 9, 2023
Each party may file a Reply Claim Construction Brief. Reply briefs shall not exceed fifteen (15) pages per side, exclusive of cover pages, tables of contents, tables of authorities, and any appendices. Reply briefs shall be limited to issues raised in the opposing party's Responsive Claim Construction Brief and shall not raise new arguments or address new claim terms not previously briefed.
4.10 Sur-Reply Briefs
Deadline: January 19, 2023 (if permitted by leave of Court)
Sur-reply briefs shall be permitted only upon leave of Court. Any party seeking leave to file a sur-reply brief shall file a motion for leave by January 13, 2023, briefly setting forth the grounds for the requested filing. If leave is granted, sur-reply briefs shall not exceed fifteen (15) pages per side.
4.11 Tutorial Presentations and Expert Declarations
Expert declarations submitted in support of claim construction positions shall be filed with the respective party's Opening or Responsive Claim Construction Brief, as applicable. The parties are encouraged, but not required, to submit technical tutorial presentations to assist the Court in understanding the technology at issue. Any technical tutorial presentations shall be submitted to the Court no later than five (5) court days before the Markman Hearing. The parties shall meet and confer in advance regarding the format and content of any tutorial presentations to avoid unnecessary duplication or inefficiency.
4.12 Markman Hearing (Claim Construction Hearing)
Date: January 30, 2023 Time: 9:00 a.m. Location: Courtroom 4 — 5th Floor, Robert F. Peckham Federal Building and United States Courthouse, 280 South 1st Street, San Jose, California 95113 Estimated Duration: Full day (the parties estimate approximately 6–7 hours of argument and presentation)
Each side shall be prepared to present oral argument on all disputed claim terms at the Markman Hearing. The Court may also hear testimony or presentations from technical tutorial witnesses. The parties shall confer in advance regarding the allocation of time and the order of presentations and shall submit a proposed schedule for the hearing to the Court at least seven (7) days before the hearing date.
5. FACT DISCOVERY SCHEDULE
5.1 Initial Disclosures (FRCP 26(a)(1))
Deadline: August 22, 2022 (Completed)
The parties have exchanged their Initial Disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) as of August 22, 2022. The parties confirmed at the Case Management Conference that Initial Disclosures have been served and that no issues remain outstanding regarding the sufficiency of such disclosures at this time. The parties are reminded of their continuing obligation to supplement their Initial Disclosures in a timely manner pursuant to Federal Rule of Civil Procedure 26(e).
5.2 Written discovery
The parties may commence serving written discovery — including requests for production of documents, interrogatories, and requests for admission — upon the date of entry of this Order. Written discovery shall be served in accordance with the Federal Rules of Civil Procedure and the Local Rules of this Court. Unless otherwise agreed in writing by the parties, responses to written discovery shall be due thirty (30) days from the date of service, consistent with the default periods set forth in the Federal Rules of Civil Procedure. The parties are encouraged to meet and confer regarding the timing and sequencing of written discovery requests to promote efficiency and minimize disputes.
5.3 Document Production
The parties shall produce documents responsive to document requests on a rolling basis. Initial substantial productions shall be made within thirty (30) days of service of the applicable document requests.
With respect to Electronically Stored Information ("ESI"), the parties shall meet and confer regarding ESI protocols — including search terms, custodians, date ranges, and production format (including metadata fields) — within fourteen (14) days of the date of this Order. The parties shall endeavor to reach agreement on an ESI Protocol and shall submit any agreed-upon protocol to the Court for entry as a supplemental order. Any disputes regarding ESI search methodology, custodians, production format, or related issues shall be raised promptly with the Court in accordance with Section 11 of this Order.
Unless otherwise agreed, all documents shall be produced in a format consistent with the parties' ESI Protocol or, absent such agreement, in a reasonably usable form as required by Federal Rule of Civil Procedure 34(b)(2)(E).
5.4 Fact Depositions
Fact depositions may commence after the close of claim construction discovery (October 31, 2022) and shall be completed by the close of fact discovery. Each side shall be limited to ten (10) fact depositions, each of no more than seven (7) hours on the record, unless the Court grants leave for additional depositions upon a showing of good cause. For purposes of this limitation, depositions of current officers, directors, or employees of a party shall be counted against that party's opponent's deposition allotment. The parties shall confer in good faith regarding the scheduling of depositions to avoid conflicts and to promote the orderly progression of discovery.
5.5 Close of Fact discovery
Deadline: May 15, 2023
All fact discovery, including the completion of all fact depositions and the production of all documents responsive to timely-served discovery requests, shall be completed by this date. Discovery served so late that responses would not be due until after the close of fact discovery shall not be deemed timely, and the Court will not compel responses to discovery served after the point at which responses would be due after the close of fact discovery, absent a showing of good cause and leave of Court.
5.6 Third-Party discovery
Subpoenas to non-parties may be issued in accordance with Federal Rule of Civil Procedure 45. The parties shall provide reasonable notice to the opposing party before issuing any third-party subpoena. All third-party discovery — including document subpoenas and deposition subpoenas — shall be completed by the close of fact discovery (May 15, 2023). Third-party depositions shall count against the noticing party's deposition allotment set forth in Section 5.4 above, unless the Court orders otherwise.
6. EXPERT DISCOVERY SCHEDULE
6.1 Expert Disclosures (FRCP 26(a)(2))
Expert disclosures shall be made in accordance with Federal Rule of Civil Procedure 26(a)(2) and shall include, for each retained expert, a complete written report meeting the requirements of Rule 26(a)(2)(B).
Plaintiff's (OWS) Expert Reports: June 30, 2023
Defendant's (Lumos) Responsive Expert Reports: August 14, 2023
Plaintiff's Rebuttal Expert Reports: September 15, 2023
Rebuttal expert reports shall be limited to matters raised in the opposing party's affirmative expert reports and shall not present new opinions or theories not responsive to the opposing party's expert opinions.
6.2 Expert Depositions
Expert depositions shall be completed within thirty (30) days after service of the opposing party's expert reports (or rebuttal reports, as applicable). Each side may depose each of the opposing party's testifying experts for a period not to exceed seven (7) hours on the record, unless the parties agree otherwise or the Court grants leave for additional time.
Close of Expert discovery: October 31, 2023
All expert discovery, including the completion of all expert depositions, shall be completed by this date.
6.3 Daubert / Expert Exclusion Motions
Motions to exclude expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702 shall be filed in accordance with the following schedule:
Deadline to File Motions: November 15, 2023
Opposition: December 6, 2023
Reply: December 20, 2023
Hearing: To be set by the Court upon receipt of the completed briefing.
The parties are reminded that expert exclusion motions should be reserved for genuinely disputed issues of expert qualification, methodology, or reliability, and should not be used as a vehicle for previewing substantive merits arguments more properly raised on summary judgment.
7. DISPOSITIVE MOTIONS
7.1 Summary Judgment and Other Dispositive Motions
Motions for summary judgment under Federal Rule of Civil Procedure 56, and any other dispositive motions (including motions for judgment on the pleadings under Rule 12(c)), shall be filed in accordance with the following schedule:
Deadline to File: January 15, 2024
Opposition: February 15, 2024
Reply: March 1, 2024
Hearing: To be set by the Court upon receipt of the completed briefing.
All dispositive motions shall comply with the page limitations set forth in the Civil Local Rules of the Northern District of California and any applicable standing orders of this Court. The parties shall meet and confer in advance of filing any dispositive motion to identify areas of agreement and narrow the issues presented, consistent with the requirements of the Civil Local Rules.
7.2 Motions in Limine
The deadline for filing motions in limine shall be set in the Final Pretrial Order or by separate order of the Court in connection with the Final Pretrial Conference. The parties should be prepared to address the timing and parameters of motions in limine at the Final Pretrial Conference.
8. PRETRIAL CONFERENCE AND TRIAL
8.1 Final Pretrial Conference
Date: April 2024 (exact date to be set by separate order of the Court)
The parties shall file a Joint Pretrial Statement at least fourteen (14) days before the Final Pretrial Conference. The Joint Pretrial Statement shall comply with Civil Local Rule 16-10 and the Court's standing orders, and shall include, without limitation: (a) a statement of uncontested facts; (b) a statement of contested facts and issues of law; (c) proposed jury instructions and verdict forms (in the event of a jury trial); (d) motions in limine, if not previously filed; (e) witness lists and exhibit lists; (f) deposition designations and counter-designations; and (g) any other matters required by the Court's standing order or the Civil Local Rules.
8.2 Trial.  Estimated Trial Date: May 2024 (exact date to be set by the Court by separate order)
The estimated trial duration is seven (7) to ten (10) court days. Plaintiff has demanded a trial by jury pursuant to the Seventh Amendment to the United States Constitution and Federal Rule of Civil Procedure 38. Defendant has not waived its right to a jury trial. Accordingly, this matter shall be tried before a jury. The Court will determine the final allocation of trial time between the parties in the Final Pretrial Order.
9. ALTERNATIVE DISPUTE RESOLUTION (ADR)
9.1 The parties are hereby referred to the Court's Alternative Dispute Resolution (ADR) program in accordance with Civil Local Rule 16-8 and the ADR Local Rules of the Northern District of California.
9.2 The parties shall participate in at least one ADR process — which may consist of mediation, early neutral evaluation, or another ADR procedure approved by the Court — no later than March 31, 2023. The parties are encouraged to engage in ADR at the earliest practicable opportunity, including before the close of claim construction proceedings if the parties believe early resolution discussions would be productive.
9.3 The parties may select a private mediator by mutual agreement or may request that the Court assign a mediator from the Court's ADR panel. If the parties select a private mediator, they shall promptly notify the Court of the identity of the selected mediator and the scheduled date of the mediation session.
9.4 All ADR proceedings shall be confidential and conducted without prejudice to either party's positions in this litigation. Statements, offers, and communications made during ADR proceedings shall not be admissible in evidence in this action or any related proceeding, consistent with Federal Rule of Evidence 408 and applicable ADR confidentiality rules.
10. PROTECTIVE ORDER
10.1 The parties have filed, or shall promptly file, a Joint Stipulation and [Proposed] Order Regarding Stipulated Protective Order governing the treatment of confidential information exchanged during discovery in this action. The Stipulated Protective Order shall provide for at least two tiers of confidentiality designation: "CONFIDENTIAL" and "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY."
10.2 The Protective Order shall be entered separately by the Court upon review of the parties' joint stipulation and proposed order. Pending entry of the Protective Order, the parties shall treat all documents and information designated as confidential by the producing party in accordance with the terms of the proposed Protective Order, and the producing party's confidentiality designations shall be binding on the receiving party on an interim basis.
11. DISCOVERY DISPUTES
11.1 Before filing any discovery motion, the parties must meet and confer in good faith, in person or by telephone, in accordance with Civil Local Rule 37-1 of the Northern District of California. Counsel shall make a genuine effort to resolve discovery disputes without Court intervention.
11.2 If the parties are unable to resolve a discovery dispute through the meet-and-confer process, the dispute shall first be submitted to the Court via a Joint discovery Dispute Letter Brief, in accordance with the Court's Standing Order. The Joint discovery Dispute Letter Brief shall not exceed five (5) pages per side and shall concisely set forth the nature of the dispute, each party's position, the relief sought, and the parties' good-faith efforts to resolve the dispute. Joint discovery Dispute Letter Briefs shall be filed electronically via CM/ECF.
11.3 The Court may resolve discovery disputes on the papers, without a hearing, or may schedule a telephonic or in-person hearing at its discretion. The parties shall be prepared to participate in a discovery dispute hearing on short notice.
12. AMENDMENTS TO CONTENTIONS
12.1 Any amendments to Plaintiff's Infringement Contentions, Defendant's Invalidity Contentions, or either party's Claim Construction Contentions shall require leave of Court upon a showing of good cause, in accordance with Patent Local Rule 3-6. A party seeking leave to amend its contentions shall file a motion for leave to amend, setting forth with particularity the basis for the proposed amendment and the good cause justifying the amendment at the time it is sought.
12.2 The Court will consider, among other factors, whether the party seeking amendment acted with diligence in identifying the basis for the amendment, whether the opposing party would be unduly prejudiced by the amendment, and whether the amendment would disrupt the schedule set forth in this Order.
13. STIPULATIONS AND MODIFICATIONS
13.1 The parties may not modify the deadlines set forth in this Order by stipulation alone. Any modification of the deadlines established by this Order requires leave of Court.
13.2 Requests to modify deadlines shall be made by joint stipulation and proposed order filed with the Court, setting forth good cause for the requested modification. The joint stipulation shall identify the specific deadline(s) to be modified, the proposed new deadline(s), the reasons for the modification, and the impact, if any, on other deadlines in this Order and on the trial date. If the parties are unable to agree on a proposed modification, the requesting party may file an individual motion for modification of the schedule, which shall be noticed for hearing in accordance with the Civil Local Rules.
14. SERVICE AND NOTICE
14.1 All filings in this action shall be made electronically via the Court's Case Management / Electronic Case Filing (CM/ECF) system, in accordance with the General Orders of this Court regarding electronic filing. Service via CM/ECF constitutes service on all registered parties.
14.2 Courtesy copies of all briefs exceeding twenty-five (25) pages in length shall be delivered to Chambers in accordance with the Court's Standing Order regarding courtesy copies. Courtesy copies shall be clearly marked "COURTESY COPY" and shall be delivered within one (1) business day of electronic filing.
15. COMPLIANCE AND SANCTIONS
15.1 The deadlines and obligations set forth in this Order are binding on the parties and their counsel. Failure to comply with the deadlines, obligations, or procedures established by this Order may result in sanctions, including but not limited to: exclusion of evidence; preclusion of claims, defenses, or contentions; adverse inference instructions; monetary sanctions; or any other relief the Court deems appropriate under Federal Rule of Civil Procedure 16(f), Federal Rule of Civil Procedure 37, or the Court's inherent authority.
15.2 Counsel are reminded of their obligations under Federal Rule of Civil Procedure 1 to cooperate in the just, speedy, and inexpensive determination of this action.
IT IS SO ORDERED.
Dated: ____, 2022
________________________________________
HON. EDWARD J. TORVELIS United States District Judge
ATTESTATION OF COUNSEL / SUBMITTED BY
Respectfully Submitted:
For Plaintiff Optiwave Semiconductor Corp.:
CALDERWOOD & HARKNESS LLP
By: ________
Alan Ngo One Embarcadero Center, 34th Floor San Francisco, California 94111 Telephone: (415) 555-7200
Dated: August __, 2022
For Defendant Lumos Photonics, Inc.:
BRANNICK HOWELL & STEIN LLP
By: ________
Victoria Ashworth 555 California Street, Suite 2800 San Francisco, California 94104 Telephone: (415) 555-4100
Dated: August __, 2022
APPENDIX A SUMMARY DEADLINE TABLE
All deadlines are subject to modification only by order of the Court upon a showing of good cause. See Section 13 of this Order.
OPTIWAVE SEMICONDUCTOR CORP., | Case No. 5:22-cv-03417-EJD
<!-- indent:2 -->Plaintiff,<!-- /indent --> | Hon. Edward J. Torvelis
v.
[PROPOSED] CASE MANAGEMENT ORDER
LUMOS PHOTONICS, INC.,
<!-- indent:2 -->Defendant.<!-- /indent -->
Event / Deadline | Date
Initial Disclosures (FRCP 26(a)(1)) | August 22, 2022 (completed)
Infringement Contentions (Patent L.R. 3-1) | (served; compliance confirmed)
Preliminary Claim Construction Contentions (Patent L.R. 4-1) | September 12, 2022
Responsive Claim Construction Contentions (Patent L.R. 4-2) | October 3, 2022
Joint Claim Construction & Prehearing Statement (Patent L.R. 4-3) | October 14, 2022
Close of Claim Construction discovery | October 31, 2022
Opening Claim Construction Briefs | December 5, 2022
Responsive Claim Construction Briefs | December 19, 2022
Reply Claim Construction Briefs | January 9, 2023
Sur-Reply Briefs (by leave of Court) | January 19, 2023
Markman Hearing | January 30, 2023
ADR Completion (at least one process) | March 31, 2023
Close of Fact discovery | May 15, 2023
Plaintiff's Expert Reports | June 30, 2023
Defendant's Responsive Expert Reports | August 14, 2023
Plaintiff's Rebuttal Expert Reports | September 15, 2023
Close of Expert discovery | October 31, 2023
Daubert / Expert Exclusion Motions | November 15, 2023
Daubert Opposition | December 6, 2023
Daubert Reply | December 20, 2023
Dispositive Motions (Filing Deadline) | January 15, 2024
Dispositive Motions (Opposition) | February 15, 2024
Dispositive Motions (Reply) | March 1, 2024
Final Pretrial Conference | April 2024 (exact date TBD)
Trial | May 2024 (exact date TBD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

IT IS SO ORDERED.

ATTESTATION OF COUNSEL / SUBMITTED BY

CALDERWOOD & HARKNESS LLP

BRANNICK HOWELL & STEIN LLP

APPENDIX A SUMMARY DEADLINE TABLE

LUMOS PHOTONICS, INC.,

Record

Parties

Dates

Amounts