Dear Tori,
Thank you for making time for our telephone call earlier today. I appreciated the productive and candid conversation, and I think it reflects well on both sides that we are willing to explore whether *Optiwave Semiconductor Corp. v. Lumos Photonics, Inc.*, Case No. 5:22-cv-03417-EJD (N.D. Cal.), can be resolved in a manner that serves our respective clients' interests without the continued expense and burden of protracted litigation. I wanted to memorialize the key points from our discussion so that we are aligned going forward.
First, I am writing to confirm our mutual agreement to a 30-day settlement discussion window, running through approximately early April 2023. During this period, both sides have committed to engage in good-faith discussions to explore whether a negotiated resolution can be reached. I believe this timeframe gives us a reasonable opportunity to assess the contours of a potential deal while maintaining appropriate momentum.
Second, we agreed to jointly seek a stipulated stay of all discovery deadlines while settlement discussions are underway. Omar Siddiqui on our end will coordinate with Daniel Kowalski at your firm to draft and file a Joint Stipulation and Proposed Order for Judge Torvelis's consideration. We would like to target filing the stipulation no later than March 10, 2023, so that both parties can preserve resources while we focus on these discussions. I trust Omar and Daniel can work through the specifics efficiently.
As we both recognized on today's call, the Court's February 17, 2023 Markman Order — construing the eleven disputed claim terms across the four patents-in-suit (U.S. Patent Nos. 10,234,567; 10,891,234; 11,045,678; and 11,312,890) — has significantly shaped the landscape of this case. Both parties now have the benefit of the Court's constructions and can assess their respective positions with considerably greater clarity than was possible before the ruling. In light of the Order, and given the substantial costs that continued fact discovery, expert discovery, Daubert practice, and ultimately trial would entail, I think there is real value in determining whether a resolution is achievable at this stage.
To that end, I would propose that each side prepare a preliminary settlement framework or term sheet to exchange within the next seven to ten days — by approximately March 15 or 16, 2023 — as a starting point for substantive discussions. Once both sides have had the opportunity to review initial proposals, I am happy to arrange a follow-up call or in-person meeting at a mutually convenient time. I can assure you that my client, Optiwave Semiconductor Corp., is prepared to engage constructively and in good faith throughout this process.
Finally, I want to confirm our shared understanding that all settlement discussions will be treated as confidential and subject to Federal Rule of Evidence 408. Neither side's willingness to engage in these discussions should be construed as an admission regarding infringement, validity, invalidity, or the merits of any claim or defense in this action.
Tori, I appreciate your professionalism and collaborative approach to this process. Please do not hesitate to reach out to me directly if you have any questions or would like to discuss any of the foregoing.
Best regards,
**Alan Ngo** Partner, intellectual Property Group Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, CA 94111 T: (415) 702-4100 E: alan.ngo@calderwoodharkness.com
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