1014-00003 · Optiwave Semiconductor Corp · Engagement & Client Intake

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PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION

DO NOT FORWARD, COPY, OR DISTRIBUTE WITHOUT AUTHORIZATION FROM GENERAL COUNSEL

LITIGATION HOLD NOTICE

PRESERVATION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION

June 1, 2022

FROM: Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, CA 94111

Outside Litigation Counsel for Optiwave Semiconductor Corp.

On behalf of Sandra Ellison, General Counsel Optiwave Semiconductor Corp. 2775 Augustine Drive, Suite 400 San Jose, CA 95054

TO: All Custodians Listed in Appendix A

RE: Preservation Obligations in Connection with Litigation Against Lumos Photonics, Inc.

MATTER REFERENCE: Calderwood & Harkness LLP Matter No. 1014-00003

This communication is protected by the attorney-client privilege and the work product doctrine. It is intended solely for the use of the individual or entity to whom it is addressed. If you have received this communication in error, please notify Calderwood & Harkness LLP immediately and destroy all copies. Unauthorized disclosure, copying, or distribution of this communication or any part thereof is strictly prohibited.

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SECTION 1: PURPOSE AND IMPORTANCE OF THIS NOTICE

You are receiving this Litigation Hold Notice because you have been identified as an individual likely to possess, control, or have access to documents and electronically stored information ("ESI") relevant to actual or anticipated litigation involving Optiwave Semiconductor Corp. ("OWS" or the "Company"). This notice is of critical importance, and your immediate attention and full compliance are required.

OWS has filed, or will imminently file, a patent infringement lawsuit against Lumos Photonics, Inc. ("Lumos" or "Defendant") in the United States District Court for the Northern District of California, San Jose Division. The anticipated case caption is Optiwave Semiconductor Corp. v. Lumos Photonics, Inc., Case No. 5:22-cv-03417-EJD. The complaint is expected to be filed on or about June 3, 2022. Regardless of the precise filing date, OWS's obligation to preserve relevant evidence has already been triggered by the Company's anticipation of this litigation and the pre-suit communications exchanged between the parties.

As a result of this actual and anticipated litigation, OWS has a legal obligation — arising under the Federal Rules of Civil Procedure, in particular Rules 26 and 37, and applicable case law including Zubulake v. Ashgrove Trust Bank, 220 F.R.D. 212 (S.D.N.Y. 2003), and its progeny — to preserve all documents and ESI that are or may be relevant to the subject matter of this litigation. This obligation extends to all OWS employees, officers, directors, agents, and consultants who possess or have access to such materials.

The importance of this obligation cannot be overstated. Failure to preserve relevant materials can result in severe sanctions, including but not limited to adverse inference instructions (whereby a jury or the court may be instructed to presume that destroyed evidence was unfavorable to OWS), monetary penalties, fee-shifting, and other court-ordered remedies. In egregious cases, courts have entered default judgments or dismissed claims as a sanction for spoliation of evidence. These consequences can be imposed upon the Company and, in appropriate circumstances, upon individual employees who are responsible for the destruction of relevant evidence.

This notice supersedes any document retention or destruction schedules, policies, or practices that might otherwise apply to the materials described herein. Effective immediately upon your receipt of this notice, you must suspend any routine deletion, overwriting, recycling, purging, shredding, or destruction of any documents or ESI that are or may be potentially relevant to the matters described in this notice. This suspension applies regardless of whether such destruction would otherwise be permitted or required under OWS's standard document retention policies, IT data management practices, or any other Company procedures.

You are personally responsible for ensuring that all potentially relevant materials within your possession, custody, or control are preserved. If you have any doubt about whether particular materials fall within the scope of this hold, you must err on the side of preservation and contact the undersigned or Sandra Ellison, General Counsel, for guidance immediately.

SECTION 2: NATURE OF THE LITIGATION

2.1 Parties

OWS is a Delaware corporation headquartered at 2775 Augustine Drive, Suite 400, San Jose, California 95054, which designs, develops, and commercializes silicon photonics integrated circuits and coherent optical transceiver technology for data center interconnect and telecommunications applications. OWS was founded in 2014 and holds a substantial intellectual property portfolio, including eighty-seven (87) issued U.S. utility patents and fourteen (14) pending U.S. patent applications.

The defendant, Lumos Photonics, Inc. ("Lumos"), is a Delaware corporation headquartered at 9400 McNeil Drive, Building 7, Austin, Texas 78758. Lumos also maintains a sales office and engineering center at 4750 Great America Parkway, Suite 320, Santa Clara, California 95054, and operates a fabrication facility in Hillsboro, Oregon. Lumos designs, manufactures, and sells silicon photonics-based optical transceiver products for data center and telecommunications markets.

2.2 Patents-in-Suit

OWS is asserting infringement of four United States patents (collectively, the "Patents-in-Suit"):

(a) U.S. Patent No. 10,234,567 (the "'567 Patent"), entitled "Integrated Waveguide Coupler with Tapered Mode Converter for Silicon Photonics Platforms," filed on March 14, 2017 and issued on March 19, 2019;

(b) U.S. Patent No. 10,891,234 (the "'234 Patent"), entitled "Germanium-on-Silicon Photodetector with Graded Buffer Layer for Enhanced Responsivity," filed on September 8, 2017 and issued on January 14, 2021;

(c) U.S. Patent No. 11,045,678 (the "'678 Patent"), entitled "Multi-Channel Optical Transceiver with Integrated Wavelength-Division Multiplexing on Silicon," filed on June 22, 2018 and issued on June 29, 2021; and

(d) U.S. Patent No. 11,312,890 (the "'890 Patent"), entitled "Driver Circuit Architecture for High-Speed Silicon Photonic Mach-Zehnder Modulators," filed on November 15, 2018 and issued on April 26, 2022.

2.3 Accused Products

The Lumos products accused of infringing the Patents-in-Suit are:

(a) The LumosBridge™ 800G Optical Engine; and

(b) The LumosEdge™ 400ZR+ Pluggable Transceiver.

These products are manufactured and sold by Lumos Photonics in the United States and internationally.

2.4 Infringement Theories

OWS's claims against Lumos encompass infringement theories relating to several key aspects of silicon photonics technology, including without limitation: (i) integrated waveguide coupling structures incorporating tapered mode converters; (ii) germanium-on-silicon photodetector architectures employing graded buffer layers for enhanced responsivity; (iii) monolithic wavelength-division multiplexing (WDM) integration on silicon photonics platforms; and (iv) co-integrated Mach-Zehnder modulator (MZM) driver circuit architectures designed for high-speed operation. The complaint will assert claims for literal infringement, and OWS reserves the right to assert infringement under the doctrine of equivalents.

2.5 Pre-Suit Communications

Prior to the filing of this lawsuit, OWS transmitted a cease-and-desist letter to Lumos on March 15, 2022, identifying the Patents-in-Suit and putting Lumos on notice of its alleged infringement. Lumos responded by letter dated April 4, 2022, denying infringement and declining to enter into licensing negotiations. These pre-suit communications and all related correspondence are within the scope of this litigation hold.

2.6 Board Authorization

The OWS Board of Directors authorized the filing of this litigation at a meeting held on April 28, 2022. All materials prepared for, presented to, or considered by the Board in connection with that authorization are within the scope of this litigation hold.

SECTION 3: YOUR OBLIGATIONS AS A CUSTODIAN

3.1 Custodian Identification

You have been identified as a custodian — that is, an individual who is likely to possess, control, or have access to documents and ESI that are or may be relevant to the litigation described in this notice. Your designation as a custodian reflects the assessment of OWS's legal team that, based on your role, responsibilities, and involvement with the subject matter of this litigation, you may hold materials that are pertinent to the claims and defenses at issue.

3.2 Immediate Obligations

You are required, effective immediately upon receipt of this notice, to take each of the following steps:

(a) Do not delete, destroy, alter, modify, overwrite, or discard any documents or ESI that are or may be potentially relevant to the matters described in this notice. This prohibition applies to all forms of documents and ESI, whether stored electronically or in hard copy, on Company systems or personal devices, or in any other medium.

(b) Suspend all automatic deletion routines, auto-purge settings, automatic recycling of backup media, scheduled destruction of files, and any other automated processes that could result in the deletion or overwriting of potentially relevant materials. This includes but is not limited to email auto-archive or auto-delete functions, automatic cleanup of recycling bins or trash folders, and any scheduled purging of files from network drives, cloud storage, or local hard drives. If you are unsure how to disable any such automated process, contact OWS IT support at it-support@optiwavesemi.com or extension 4500 immediately.

(c) Preserve all potentially relevant items in their current form and location. Do not move, reorganize, rename, compress, encrypt, or otherwise alter files for the purpose of making them less accessible or more difficult to locate. Documents and ESI should remain in the folders, directories, email accounts, and storage locations where they currently reside.

(d) Affirmatively search for and identify all potentially relevant materials in your possession, custody, or control. This obligation extends beyond materials stored on OWS-issued computers, servers, and devices. You must also search for and preserve potentially relevant materials stored on personal devices (including personal smartphones, tablets, laptops, USB drives, and external hard drives), home computers, personal email accounts (such as Northgate Software, Cascade Health IT, or Outlook personal accounts), and personal cloud storage services (such as Hollowell Health IT, Larkspur Technologies, Meridian Systems, or Cobalt Ridge Systems) if any such devices or accounts have been used for OWS business purposes.

(e) Contact the undersigned or Sandra Ellison, General Counsel, immediately if you become aware of any potentially relevant materials that are at risk of loss, destruction, or alteration, whether due to automated processes, hardware failure, system migrations, or any other cause. Time is of the essence in such situations, and prompt notification is critical to ensuring that the materials can be preserved.

3.3 Ongoing Obligation

Your obligation to preserve relevant materials is not a one-time event. It is a continuing obligation that remains in effect until you receive a written release from Calderwood & Harkness LLP or from Sandra Ellison, General Counsel of OWS. You must continue to preserve all new documents and ESI that come into your possession, custody, or control and that fall within the scope of this hold. If you create, receive, or otherwise come into possession of relevant materials after the date of this notice, those materials must also be preserved.

SECTION 4: SCOPE OF MATERIALS TO BE PRESERVED

The following categories describe the subject matter, types, and time period of materials that must be preserved under this litigation hold. These categories are intended to be illustrative and non-exhaustive. If you possess materials that you believe may be relevant to the litigation, even if they do not fall squarely within the categories listed below, you should preserve them and contact Sandra Ellison or the undersigned for further guidance.

4.1 Subject Matter Categories

You must preserve all documents and ESI relating to any of the following subject matter categories:

(a) The Patents-in-Suit. All documents and ESI relating to U.S. Patent Nos. 10,234,567; 10,891,234; 11,045,678; and 11,312,890, including but not limited to the patent specifications, claims, figures, file histories, and any analyses, opinions, or assessments of these patents.

(b) The Inventions Claimed in the Patents-in-Suit. All documents and ESI relating to the inventions claimed in the Patents-in-Suit, including but not limited to waveguide coupler designs incorporating tapered mode converters for silicon photonics platforms, germanium-on-silicon photodetectors employing graded buffer layers for enhanced responsivity, integrated wavelength-division multiplexing (WDM) systems on silicon, and driver circuit architectures for high-speed silicon photonic Mach-Zehnder modulators (MZMs).

(c) Conception, Development, and Reduction to Practice. All documents and ESI relating to the conception, development, design, testing, prototyping, fabrication, characterization, and reduction to practice of the inventions disclosed and claimed in the Patents-in-Suit. This includes engineering notebooks, lab notebooks (whether electronic or physical), design documents, simulation results, test data, fabrication records, and any other materials documenting the inventive process.

(d) Patent Prosecution. All documents and ESI relating to the prosecution of the Patents-in-Suit before the United States Patent and Trademark Office ("USPTO"), including all correspondence with patent counsel (whether internal or external), inventor declarations and assignments, prior art searches, information disclosure statements (IDS), office action responses, examiner interviews, claim amendments, prosecution file wrappers, and any continuation, divisional, or related application filings.

(e) Lumos Photonics, Inc. All documents and ESI relating to Lumos Photonics, Inc. in any way, including any communications with or about Lumos, its employees, agents, or representatives; any analyses, evaluations, or assessments of Lumos's products, technology, market position, competitive strategies, or business activities; and any documents reflecting OWS's awareness of or response to Lumos's activities in the silicon photonics market.

(f) Accused Lumos Products. All documents and ESI relating to the accused Lumos products — specifically, the LumosBridge™ 800G Optical Engine and the LumosEdge™ 400ZR+ Pluggable Transceiver — including but not limited to any analysis, comparison, reverse engineering, teardown, benchmarking, evaluation, testing, or characterization of these products or their components, and any documents comparing these products to OWS's own products or to the claims of the Patents-in-Suit.

(g) OWS Products Practicing the Patented Technology. All documents and ESI relating to OWS's own products that practice, embody, or implement the technology claimed in the Patents-in-Suit, including but not limited to the OWS-400ZR coherent optical transceiver chipset, the OWS-800LR coherent optical transceiver chipset, and OWS's integrated silicon photonics engines. This includes design documents, datasheets, product specifications, performance data, manufacturing records, and commercialization materials.

(h) Fabrication Processes. All documents and ESI relating to fabrication processes relevant to the claimed inventions, including but not limited to materials relating to OWS's engagement of Pinnacle Semiconductor Foundry Co., Ltd. ("Pinnacle") as OWS's contract foundry for the fabrication of silicon photonics integrated circuits using Pinnacle's 45nm silicon-on-insulator (SOI) process. This includes process design kits (PDKs), fabrication run sheets, wafer lot records, process specifications, and correspondence with Pinnacle personnel regarding the fabrication of devices relevant to the Patents-in-Suit.

(i) Prior Art. All documents and ESI relating to prior art pertaining to the Patents-in-Suit, including but not limited to analyses or evaluations of the following references and any other prior art identified during prosecution or otherwise:

(i) U.S. Patent No. 9,456,012 (Tanaka et al.);

(ii) The Chen & Liu 2016 publication (as cited in the prosecution history);

(iii) European Patent Application EP 3,234,567 A1 (Nordlicht Photonische GmbH); and

(iv) The Iyer & Patel 2018 IEEE publication.

(j) Licensing Activities. All documents and ESI relating to any licensing discussions, offers, proposals, negotiations, term sheets, or agreements involving any of the Patents-in-Suit or the broader OWS patent portfolio, whether with Lumos or with any third party. This includes all materials reflecting the terms offered or considered, the status of negotiations, and any royalty or payment structures discussed.

(k) Market Analyses and Competitive intelligence. All documents and ESI relating to market analyses, competitive intelligence reports, industry surveys, market share estimates, and business strategy documents relating to silicon photonics technology, data center interconnect markets, coherent optical transceiver technology, or the competitive landscape between OWS and Lumos or other market participants.

(l) Damages-Related Information. All documents and ESI relating to damages or financial matters relevant to this litigation, including but not limited to revenue data, pricing information, cost structures, profit margins, sales projections, sales data, customer lists, customer communications, marketing materials, supply agreements, and financial information relating to OWS's products that practice the patented technology and to the competitive landscape with Lumos. This includes data relevant to reasonable royalty calculations, lost profits analyses, and apportionment of damages.

(m) Pre-Suit Correspondence. All documents and ESI relating to the cease-and-desist letter sent by OWS to Lumos on March 15, 2022 and all related correspondence, including Lumos's response dated April 4, 2022, and any internal OWS communications discussing, analyzing, or preparing these communications.

(n) Board Authorization. All documents and ESI relating to the OWS Board of Directors' authorization of this litigation on April 28, 2022, including all materials presented to or considered by the Board in connection with that authorization, all minutes or notes from the relevant Board meeting, and all internal communications regarding the decision to pursue litigation.

(o) Investor Communications. All documents and ESI relating to communications with Vantage Point Capital Partners Fund IV, LP, or its representatives (including but not limited to Douglas Fairbanks III and Rebecca Torres), concerning the Patents-in-Suit, Lumos Photonics, the competitive landscape, OWS's intellectual property strategy, or this litigation.

(p) Lender Communications. All documents and ESI relating to communications with First Pacific Commerce Bank, N.A. regarding OWS's intellectual property assets, the revolving credit facility between OWS and First Pacific Commerce Bank, or any litigation notification obligation under the terms of that credit facility.

(q) Patent Portfolio Valuation. All documents and ESI relating to any pre-litigation valuation, assessment, analysis, or appraisal of OWS's patent portfolio, including but not limited to work performed by Clearpath IP Valuation Services, Inc. or any other valuation firm, and all internal OWS analyses of the value of the Company's intellectual property assets.

4.2 Types of Materials

The obligation to preserve extends to all forms and types of documents and ESI, regardless of the medium in which they are stored. The following is an illustrative, non-exhaustive list of the types of materials that must be preserved:

(a) Electronic Communications. Emails (including all attachments, headers, and metadata), text messages (SMS and MMS), instant messages transmitted via Meridian Solutions, Northgate Data Systems, or any other messaging platform used for OWS business, calendar entries and meeting invitations, and voicemail messages (whether stored on phones, servers, or cloud systems).

(b) Electronic Files. Word processing documents (including Microsoft Word files), spreadsheets (including Microsoft Excel files), presentation files (including Microsoft Northgate Services Inc. files), PDF files, computer-aided design (CAD) files, optical and photonic simulation files, semiconductor design databases, GDSII and OASIS layout files, Verilog and VHDL code files, SPICE netlists and simulation outputs, electronic lab notebooks and engineering notebooks, and any other electronic files relevant to the subject matter described above.

(c) Hard Copy Documents. Printed memoranda, handwritten notes, physical lab notebooks and engineering notebooks, meeting notes and agendas, whiteboard photographs or captures, printed copies of patent prosecution files, and any other tangible documents relevant to the subject matter described above.

(d) Databases and Enterprise Systems. Data and records stored in enterprise resource planning (ERP) systems, customer relationship management (CRM) systems, product lifecycle management (PLM) systems, engineering data management (EDM) systems, and any other enterprise or departmental databases containing information relevant to the subject matter described above.

(e) Public-Facing and Marketing Materials. Social media posts, blog entries, press releases, conference presentations and papers, webinar recordings, trade show materials, product demos, marketing collateral, datasheets, application notes, and white papers relating to the patented technology, OWS's products, or Lumos's products.

(f) Backup and Archival Media. Backup tapes, archived data sets, data stored on legacy systems or decommissioned servers, and any other archival or backup media containing potentially relevant information.

(g) Personal Devices and Accounts. Materials stored on personal devices (including personal smartphones, tablets, laptops, USB drives, and external hard drives) and personal accounts (including personal email accounts, and cloud storage services such as Hollowell Health IT, Larkspur Technologies, and Meridian Systems) to the extent that such devices or accounts have been used for OWS business purposes at any time.

4.3 Time Period

All responsive materials created, sent, received, modified, or stored during the period from January 1, 2014 (the year of OWS's founding) through the present must be preserved. This obligation is continuing and extends to materials created or received after the date of this notice, so long as they fall within the subject matter scope described above.

This litigation hold notice remains in effect until you receive a written release from Calderwood & Harkness LLP or from Sandra Ellison, General Counsel of OWS. You should not assume that the hold has been lifted or modified unless you have received such a written release. The preservation obligation is continuous and does not expire by operation of time alone.

SECTION 5: SPECIFIC INSTRUCTIONS

In addition to the general preservation obligations described above, the following specific instructions apply to particular categories of materials and systems.

5.1 Email Preservation

(a) Do not delete any emails — whether sent, received, or drafted — that relate to any of the subject matter categories described in Section 4 above.

(b) Immediately disable any auto-archive, auto-delete, or auto-purge functions configured for your email account, including any rules that automatically move emails to trash or deleted items folders after a specified period. If you are unsure how to disable such functions, contact OWS IT support at it-support@optiwavesemi.com or extension 4500 immediately. Do not wait to resolve this issue on your own.

(c) Preserve all email folders in their current state, including your inbox, sent items, deleted items or trash folder, drafts folder, archive folders, and any custom folders or labels you have created. Do not empty your deleted items or trash folder.

(d) If you have used any personal email account (such as a personal Northgate Software, Cascade Health IT, Ridgeline Technologies, or other email account) to conduct or discuss OWS business at any time, you must preserve all such communications. Do not delete any messages from personal email accounts that relate to OWS business.

5.2 Electronic Files and Shared Drives

(a) Do not delete, overwrite, modify, or relocate files stored on shared network drives, Aldermere Systems sites, confluence pages, wikis, Aldermere Data Systems or Strathmore Solutions repositories, or other collaboration platforms that relate to the subject matter of this notice.

(b) Preserve all versions of relevant documents, not just the final or most current version. Version histories, tracked changes, and prior drafts may contain information relevant to the litigation and must be retained.

(c) If you are aware of relevant files stored on local hard drives, USB drives, external hard drives, or other portable storage media, preserve those files in place and notify Sandra Ellison or the undersigned of their location.

5.3 Mobile Devices

(a) Preserve all text messages (SMS and MMS), coss, Meridian Services Inc. messages, signal messages, Kestrel Data Systems messages, and communications from any other messaging application that relate to any of the subject matter categories described in this notice.

(b) Do not perform a factory reset, data wipe, operating system reinstallation, or any other procedure that would result in the deletion of data on any mobile device (whether Company-issued or personal) that has been used for OWS business purposes.

(c) If you are planning to replace, upgrade, trade in, or dispose of a mobile device that has been used for OWS business, contact Sandra Ellison or OWS IT support before doing so to ensure that all relevant data is preserved.

5.4 Physical Documents

(a) Do not discard, shred, recycle, or destroy any physical documents — including but not limited to lab notebooks, engineering notebooks, handwritten notes, meeting notes, printed emails, printed reports, whiteboard photographs, and any other tangible materials — that relate to the subject matter of this notice.

(b) Secure all such physical materials in a designated, safe location where they will not be inadvertently discarded, damaged, or destroyed. If you need assistance identifying a suitable storage location, contact Sandra Ellison.

(c) If you have physical documents at your home or any other off-site location that relate to OWS business and the subject matter of this notice, those materials must also be preserved. Please notify Sandra Ellison of the existence and location of any such off-site materials.

5.5 IT Systems and Backup Media

(a) OWS's Information Technology department has been separately instructed to suspend any routine data destruction policies and automated data deletion processes, adjust backup rotation schedules to prevent overwriting of relevant backup media, and preserve relevant system backups, server images, and archived data sets.

(b) If you are aware of relevant data that is at risk of being overwritten, deleted, or destroyed by routine IT processes — including scheduled backup tape rotations, server decommissioning, system migrations, or software upgrades — you must notify Sandra Ellison or the undersigned immediately. Do not assume that the IT department is already aware of the specific data you have identified.

(c) Do not request that the IT department delete, overwrite, or purge any data, accounts, or systems that may contain relevant materials without first obtaining approval from Sandra Ellison.

SECTION 6: NAMED CUSTODIANS

The following individuals have been identified as custodians under this litigation hold. This list constitutes Appendix A to this notice. Each individual listed below is subject to all of the preservation obligations described in this notice.

Note Regarding Hideo Tanaka. Mr. Tanaka is a former OWS employee who departed the Company in 2019. To the extent that OWS retains any documents or ESI authored by, received from, or relating to Mr. Tanaka during his tenure at OWS, those materials must be preserved. If you possess any materials authored by or received from Mr. Tanaka, or if you are aware of the location of any such materials on OWS systems, please notify Sandra Ellison immediately. Sandra Ellison will coordinate any necessary outreach to Mr. Tanaka regarding materials that may be in his personal possession, in consultation with Calderwood & Harkness LLP.

Additional Custodians. As this litigation progresses and additional relevant custodians are identified through ongoing investigation, discovery, or further analysis, supplemental litigation hold notices will be issued to those individuals. The current list of custodians may be expanded at any time. If you believe that there are additional individuals at OWS who may possess relevant documents or ESI and who have not been identified as custodians, please bring this to the attention of Sandra Ellison or the undersigned promptly.

SECTION 7: CONSEQUENCES OF NON-COMPLIANCE

The duty to preserve evidence in anticipation of or during litigation is a well-established and serious legal obligation. Courts take this obligation extremely seriously, and the consequences of non-compliance can be severe for both the Company and for the individuals involved.

Spoliation of evidence — defined as the destruction, alteration, concealment, or failure to preserve documents and ESI that are relevant to pending or reasonably anticipated litigation — can result in the imposition of significant sanctions by the court, including but not limited to the following:

(a) Adverse Inference Instructions. The court may instruct the jury that it should presume the destroyed or spoliated evidence was unfavorable to OWS. Under Federal Rule of Civil Procedure 37(e)(2), if a court finds that a party acted with intent to deprive another party of the information's use in the litigation, the court may presume that the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable, or dismiss the action or enter a default judgment.

(b) Monetary Sanctions and Fee-Shifting. The court may impose monetary sanctions on OWS, including orders requiring OWS to pay the opposing party's reasonable attorneys' fees and costs incurred as a result of the spoliation. Under Rule 37(e)(1), even absent a finding of intent, the court may order measures no greater than necessary to cure the prejudice resulting from the loss of relevant information.

(c) Case-Dispositive Sanctions. In extreme circumstances involving willful or bad-faith destruction of evidence, courts have the power to enter default judgments against the spoliating party, strike pleadings, or preclude the spoliating party from presenting certain evidence or arguments at trial.

(d) Personal Liability. Individuals who deliberately destroy, conceal, or alter evidence in violation of a litigation hold may be subject to personal sanctions, contempt of court proceedings, disciplinary action by the Company, and, in certain circumstances, criminal liability for obstruction of justice.

OWS takes its preservation obligations with the utmost seriousness, and the Company expects every custodian to comply fully and promptly with this notice. Non-compliance with this litigation hold will be treated as a serious matter and may result in disciplinary action by the Company, up to and including termination of employment, in addition to any court-imposed sanctions.

If you have any questions about the scope of your obligations, or if you encounter any difficulty in complying with this notice, you must contact Sandra Ellison or the undersigned immediately. Uncertainty about whether particular materials fall within the scope of the hold is not a valid reason for failing to preserve those materials. When in doubt, preserve.

SECTION 8: ACKNOWLEDGMENT AND CONFIRMATION

Each custodian who receives this Litigation Hold Notice is required to sign and return the attached Custodian Acknowledgment Form (Appendix B) to Sandra Ellison, General Counsel, Optiwave Semiconductor Corp., within five (5) business days of receipt of this notice.

By signing the Acknowledgment Form, you confirm that:

(a) You have read this Litigation Hold Notice in its entirety and understand the obligations it imposes upon you;

(b) You have taken affirmative steps to identify and preserve all documents and ESI within your possession, custody, or control that are or may be potentially relevant to the matters described in this notice;

(c) You have suspended any routine destruction, deletion, purging, or overwriting of potentially relevant materials, including disabling any auto-delete or auto-archive functions on your email account and other systems; and

(d) You understand that this is a continuing obligation and that you will comply with this notice on an ongoing basis, including preserving any new documents and ESI that come into your possession and that fall within the scope of this hold.

If you have any questions about whether specific materials fall within the scope of this hold, or about how to comply with any aspect of this notice, you must err on the side of preservation and contact Sandra Ellison or Calderwood & Harkness LLP immediately for guidance. Do not make independent judgments about whether to discard or delete materials that may be relevant.

Failure to return the signed Acknowledgment Form within the required time period will be followed up by Sandra Ellison's office. However, your obligation to preserve relevant materials is effective immediately upon receipt of this notice and does not depend on the return of the Acknowledgment Form.

SECTION 9: CONTACT INFORMATION

If you have any questions regarding this Litigation Hold Notice, your preservation obligations, or the scope of materials covered by this hold, please contact any of the following individuals:

Sandra Ellison General Counsel Optiwave Semiconductor Corp. 2775 Augustine Drive, Suite 400 San Jose, CA 95054 Telephone: (408) 555-7200

Email: sellison@optiwavesemi.com

Alan Ngo Partner, intellectual Property Group Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, CA 94111 Telephone: (415) 555-3800

Email: ango@calderwoodharkness.com

Omar Siddiqui Associate, intellectual Property Group Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, CA 94111 Telephone: (415) 555-3815

Email: osiddiqui@calderwoodharkness.com

Please do not hesitate to reach out with any questions, no matter how minor they may seem. It is far better to ask a question and preserve materials than to make an incorrect assumption and risk the loss of relevant evidence.

SECTION 10: DURATION OF THIS LITIGATION HOLD

This Litigation Hold Notice remains in effect until further written notice from Calderwood & Harkness LLP or from Sandra Ellison, General Counsel of OWS. No oral communication, informal discussion, or passage of time will serve to terminate or modify this hold.

Do not assume that this hold has been lifted simply because you have not received communications about the litigation or this notice for a period of time. The absence of reminders or updates does not indicate that the hold has been released or that your preservation obligations have been relaxed.

Calderwood & Harkness LLP and Sandra Ellison will issue periodic reminders regarding this litigation hold to ensure continued awareness and compliance. However, the preservation obligation imposed by this notice is continuous and remains in full force and effect regardless of whether periodic reminders are received. Your responsibility to preserve relevant materials does not depend upon the receipt of reminder notices.

If the scope of this litigation hold is expanded, narrowed, or modified in any way, you will receive a supplemental written notice. If the hold is released in whole or in part, you will receive a written release specifying the categories of materials that may be released from the hold.

Until you receive such a written release, you must continue to comply with all aspects of this Litigation Hold Notice.

APPENDIX A

LIST OF CUSTODIANS

The following individuals have been identified as custodians subject to this Litigation Hold Notice. Each individual listed below is required to comply with all preservation obligations set forth in this notice.

This list is subject to supplementation. Additional custodians may be identified and notified as the litigation progresses.

APPENDIX B

CUSTODIAN ACKNOWLEDGMENT FORM

LITIGATION HOLD NOTICE — PRESERVATION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION

Optiwave Semiconductor Corp. v. Lumos Photonics, Inc. Case No. 5:22-cv-03417-EJD (N.D. Cal.) Calderwood & Harkness LLP Matter No. 1014-00003

INSTRUCTIONS: Each custodian identified in Appendix A must complete, sign, and return this Acknowledgment Form to Sandra Ellison, General Counsel, Optiwave Semiconductor Corp., 2775 Augustine Drive, Suite 400, San Jose, CA 95054 (or by email to sellison@optiwavesemi.com) within five (5) business days of receipt of the Litigation Hold Notice dated June 1, 2022.

Custodian Name: __________

Title / Position: __________

Department: __________

Date of Receipt of Litigation Hold Notice: __________

By signing below, I acknowledge and confirm the following:

1. I have received and read the Litigation Hold Notice dated June 1, 2022 in its entirety.

2. I understand my obligations as a custodian to preserve all documents and electronically stored information ("ESI") that are or may be potentially relevant to the litigation described in the notice.

3. I have taken affirmative steps to identify and preserve all potentially relevant documents and ESI within my possession, custody, or control, including materials stored on Company systems, personal devices, personal email accounts, and personal cloud storage services used for Company business.

4. I have suspended all routine destruction, deletion, purging, auto-archiving, and overwriting of potentially relevant materials, and I have disabled (or requested IT support to disable) any automated processes that could result in the loss of such materials.

5. I understand that this is a continuing obligation that remains in effect until I receive a written release from Calderwood & Harkness LLP or Sandra Ellison, General Counsel, and I will comply with this obligation on an ongoing basis.

6. I understand that failure to comply with this Litigation Hold Notice may result in severe legal consequences for Optiwave Semiconductor Corp. and may result in personal sanctions, disciplinary action, or other adverse consequences for me individually.

7. I will promptly notify Sandra Ellison or Calderwood & Harkness LLP if I become aware of any potentially relevant materials at risk of loss or destruction, or if I have questions about whether particular materials fall within the scope of this hold.

Please list below any categories of potentially relevant materials in your possession, custody, or control, along with their general location (e.g., office filing cabinet, laptop hard drive, personal email, shared network drive):

________________________________________

Please identify any concerns or issues regarding your ability to comply with this Litigation Hold Notice:

________________________________________

Custodian Signature: ________

Printed Name: ________

Date: ________

FOR OFFICE USE ONLY

Date Received by General Counsel: ____

Reviewed by: ____

Follow-up Required: Yes No

Notes: __________

PREPARED BY:

CALDERWOOD & HARKNESS LLP

By: ________

Alan Ngo Partner, intellectual Property Group

By: ________

Omar Siddiqui Lead Associate, intellectual Property Group

One Embarcadero Center, 34th Floor San Francisco, CA 94111

Date: June 1, 2022

Matter No.: 1014-00003

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION. This Litigation Hold Notice and all attachments hereto are protected by the attorney-client privilege and the work product doctrine. This document is intended solely for the use of the individuals and entities identified herein. Unauthorized disclosure, copying, forwarding, or distribution of this document or any portion thereof is strictly prohibited and may result in a waiver of privilege. If you have received this document in error, please contact Calderwood & Harkness LLP immediately at (415) 555-3800.

Name	Title	Relevance to Litigation
Dr. Priya Ramanathan	Chief Executive Officer & Co-Founder	Named inventor on the '567 and '678 Patents; executive oversight of OWS's intellectual property strategy, business operations, and authorization of this litigation
Dr. Kevin Fong	Chief Technology Officer & Co-Founder	Named inventor on the '567, '234, and '890 Patents; lead technical knowledge of the patented inventions; oversight of OWS's silicon photonics engineering and R&D programs
Dr. Amara Osei	Principal Engineer, Photonics Design Group	Named inventor on the '234 and '678 Patents; expertise in germanium-on-silicon photodetector design and wavelength-division multiplexing integration
Hideo Tanaka	Former OWS Engineer (2016–2019)	Named inventor on the '567 Patent; also the inventor of prior art U.S. Patent No. 9,456,012 (Tanaka et al.); relevant knowledge regarding the conception and development of the waveguide coupler invention
Liwei Zhang	Design Engineer, Transceiver Integration Team	Named inventor on the '678 Patent; primary designer of OWS's multi-channel optical transceiver architecture
Rajesh Iyer	Circuit Designer, High-Speed Electronics Group	Named inventor on the '890 Patent; designer of the MZM driver circuit architecture; also co-author of the Iyer & Patel 2018 IEEE publication identified as potential prior art
Theodore "Ted" Marchetti	Vice President of intellectual Property	Registered patent attorney (USPTO Reg. No. 58,304); oversight of patent prosecution for the Patents-in-Suit; authored the cease-and-desist letter dated March 15, 2022; primary liaison with outside patent counsel
Sandra Ellison	General Counsel	Legal oversight of all matters relating to this litigation; coordination of litigation authorization by the Board of Directors; communications with outside counsel, Vantage Point Capital Partners, and First Pacific Commerce Bank
No.	Name	Title / Position	Department	Contact Information
1	Dr. Priya Ramanathan	Chief Executive Officer & Co-Founder	Executive Office	pramanathan@optiwavesemi.com; Ext. 1001
2	Dr. Kevin Fong	Chief Technology Officer & Co-Founder	Engineering / R&D	kfong@optiwavesemi.com; Ext. 1002
3	Dr. Amara Osei	Principal Engineer	Photonics Design Group	aosei@optiwavesemi.com; Ext. 2045
4	Hideo Tanaka	Former OWS Engineer (2016–2019)	N/A (Former Employee)	Contact via Sandra Ellison, General Counsel
5	Liwei Zhang	Design Engineer	Transceiver Integration Team	lzhang@optiwavesemi.com; Ext. 2112
6	Rajesh Iyer	Circuit Designer	High-Speed Electronics Group	riyer@optiwavesemi.com; Ext. 2078
7	Theodore "Ted" Marchetti	Vice President of intellectual Property	Legal / IP	tmarchetti@optiwavesemi.com; Ext. 3010
8	Sandra Ellison	General Counsel	Legal	sellison@optiwavesemi.com; Ext. 3001

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION
DO NOT FORWARD, COPY, OR DISTRIBUTE WITHOUT AUTHORIZATION FROM GENERAL COUNSEL
LITIGATION HOLD NOTICE
PRESERVATION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION
June 1, 2022
FROM: Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, CA 94111
Outside Litigation Counsel for Optiwave Semiconductor Corp.
On behalf of Sandra Ellison, General Counsel Optiwave Semiconductor Corp. 2775 Augustine Drive, Suite 400 San Jose, CA 95054
TO: All Custodians Listed in Appendix A
RE: Preservation Obligations in Connection with Litigation Against Lumos Photonics, Inc.
MATTER REFERENCE: Calderwood & Harkness LLP Matter No. 1014-00003
This communication is protected by the attorney-client privilege and the work product doctrine. It is intended solely for the use of the individual or entity to whom it is addressed. If you have received this communication in error, please notify Calderwood & Harkness LLP immediately and destroy all copies. Unauthorized disclosure, copying, or distribution of this communication or any part thereof is strictly prohibited.
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SECTION 1: PURPOSE AND IMPORTANCE OF THIS NOTICE
You are receiving this Litigation Hold Notice because you have been identified as an individual likely to possess, control, or have access to documents and electronically stored information ("ESI") relevant to actual or anticipated litigation involving Optiwave Semiconductor Corp. ("OWS" or the "Company"). This notice is of critical importance, and your immediate attention and full compliance are required.
OWS has filed, or will imminently file, a patent infringement lawsuit against Lumos Photonics, Inc. ("Lumos" or "Defendant") in the United States District Court for the Northern District of California, San Jose Division. The anticipated case caption is Optiwave Semiconductor Corp. v. Lumos Photonics, Inc., Case No. 5:22-cv-03417-EJD. The complaint is expected to be filed on or about June 3, 2022. Regardless of the precise filing date, OWS's obligation to preserve relevant evidence has already been triggered by the Company's anticipation of this litigation and the pre-suit communications exchanged between the parties.
As a result of this actual and anticipated litigation, OWS has a legal obligation — arising under the Federal Rules of Civil Procedure, in particular Rules 26 and 37, and applicable case law including Zubulake v. Ashgrove Trust Bank, 220 F.R.D. 212 (S.D.N.Y. 2003), and its progeny — to preserve all documents and ESI that are or may be relevant to the subject matter of this litigation. This obligation extends to all OWS employees, officers, directors, agents, and consultants who possess or have access to such materials.
The importance of this obligation cannot be overstated. Failure to preserve relevant materials can result in severe sanctions, including but not limited to adverse inference instructions (whereby a jury or the court may be instructed to presume that destroyed evidence was unfavorable to OWS), monetary penalties, fee-shifting, and other court-ordered remedies. In egregious cases, courts have entered default judgments or dismissed claims as a sanction for spoliation of evidence. These consequences can be imposed upon the Company and, in appropriate circumstances, upon individual employees who are responsible for the destruction of relevant evidence.
This notice supersedes any document retention or destruction schedules, policies, or practices that might otherwise apply to the materials described herein. Effective immediately upon your receipt of this notice, you must suspend any routine deletion, overwriting, recycling, purging, shredding, or destruction of any documents or ESI that are or may be potentially relevant to the matters described in this notice. This suspension applies regardless of whether such destruction would otherwise be permitted or required under OWS's standard document retention policies, IT data management practices, or any other Company procedures.
You are personally responsible for ensuring that all potentially relevant materials within your possession, custody, or control are preserved. If you have any doubt about whether particular materials fall within the scope of this hold, you must err on the side of preservation and contact the undersigned or Sandra Ellison, General Counsel, for guidance immediately.
SECTION 2: NATURE OF THE LITIGATION
2.1 Parties
OWS is a Delaware corporation headquartered at 2775 Augustine Drive, Suite 400, San Jose, California 95054, which designs, develops, and commercializes silicon photonics integrated circuits and coherent optical transceiver technology for data center interconnect and telecommunications applications. OWS was founded in 2014 and holds a substantial intellectual property portfolio, including eighty-seven (87) issued U.S. utility patents and fourteen (14) pending U.S. patent applications.
The defendant, Lumos Photonics, Inc. ("Lumos"), is a Delaware corporation headquartered at 9400 McNeil Drive, Building 7, Austin, Texas 78758. Lumos also maintains a sales office and engineering center at 4750 Great America Parkway, Suite 320, Santa Clara, California 95054, and operates a fabrication facility in Hillsboro, Oregon. Lumos designs, manufactures, and sells silicon photonics-based optical transceiver products for data center and telecommunications markets.
2.2 Patents-in-Suit
OWS is asserting infringement of four United States patents (collectively, the "Patents-in-Suit"):
(a) U.S. Patent No. 10,234,567 (the "'567 Patent"), entitled "Integrated Waveguide Coupler with Tapered Mode Converter for Silicon Photonics Platforms," filed on March 14, 2017 and issued on March 19, 2019;
(b) U.S. Patent No. 10,891,234 (the "'234 Patent"), entitled "Germanium-on-Silicon Photodetector with Graded Buffer Layer for Enhanced Responsivity," filed on September 8, 2017 and issued on January 14, 2021;
(c) U.S. Patent No. 11,045,678 (the "'678 Patent"), entitled "Multi-Channel Optical Transceiver with Integrated Wavelength-Division Multiplexing on Silicon," filed on June 22, 2018 and issued on June 29, 2021; and
(d) U.S. Patent No. 11,312,890 (the "'890 Patent"), entitled "Driver Circuit Architecture for High-Speed Silicon Photonic Mach-Zehnder Modulators," filed on November 15, 2018 and issued on April 26, 2022.
2.3 Accused Products
The Lumos products accused of infringing the Patents-in-Suit are:
(a) The LumosBridge™ 800G Optical Engine; and
(b) The LumosEdge™ 400ZR+ Pluggable Transceiver.
These products are manufactured and sold by Lumos Photonics in the United States and internationally.
2.4 Infringement Theories
OWS's claims against Lumos encompass infringement theories relating to several key aspects of silicon photonics technology, including without limitation: (i) integrated waveguide coupling structures incorporating tapered mode converters; (ii) germanium-on-silicon photodetector architectures employing graded buffer layers for enhanced responsivity; (iii) monolithic wavelength-division multiplexing (WDM) integration on silicon photonics platforms; and (iv) co-integrated Mach-Zehnder modulator (MZM) driver circuit architectures designed for high-speed operation. The complaint will assert claims for literal infringement, and OWS reserves the right to assert infringement under the doctrine of equivalents.
2.5 Pre-Suit Communications
Prior to the filing of this lawsuit, OWS transmitted a cease-and-desist letter to Lumos on March 15, 2022, identifying the Patents-in-Suit and putting Lumos on notice of its alleged infringement. Lumos responded by letter dated April 4, 2022, denying infringement and declining to enter into licensing negotiations. These pre-suit communications and all related correspondence are within the scope of this litigation hold.
2.6 Board Authorization
The OWS Board of Directors authorized the filing of this litigation at a meeting held on April 28, 2022. All materials prepared for, presented to, or considered by the Board in connection with that authorization are within the scope of this litigation hold.
SECTION 3: YOUR OBLIGATIONS AS A CUSTODIAN
3.1 Custodian Identification
You have been identified as a custodian — that is, an individual who is likely to possess, control, or have access to documents and ESI that are or may be relevant to the litigation described in this notice. Your designation as a custodian reflects the assessment of OWS's legal team that, based on your role, responsibilities, and involvement with the subject matter of this litigation, you may hold materials that are pertinent to the claims and defenses at issue.
3.2 Immediate Obligations
You are required, effective immediately upon receipt of this notice, to take each of the following steps:
(a) Do not delete, destroy, alter, modify, overwrite, or discard any documents or ESI that are or may be potentially relevant to the matters described in this notice. This prohibition applies to all forms of documents and ESI, whether stored electronically or in hard copy, on Company systems or personal devices, or in any other medium.
(b) Suspend all automatic deletion routines, auto-purge settings, automatic recycling of backup media, scheduled destruction of files, and any other automated processes that could result in the deletion or overwriting of potentially relevant materials. This includes but is not limited to email auto-archive or auto-delete functions, automatic cleanup of recycling bins or trash folders, and any scheduled purging of files from network drives, cloud storage, or local hard drives. If you are unsure how to disable any such automated process, contact OWS IT support at it-support@optiwavesemi.com or extension 4500 immediately.
(c) Preserve all potentially relevant items in their current form and location. Do not move, reorganize, rename, compress, encrypt, or otherwise alter files for the purpose of making them less accessible or more difficult to locate. Documents and ESI should remain in the folders, directories, email accounts, and storage locations where they currently reside.
(d) Affirmatively search for and identify all potentially relevant materials in your possession, custody, or control. This obligation extends beyond materials stored on OWS-issued computers, servers, and devices. You must also search for and preserve potentially relevant materials stored on personal devices (including personal smartphones, tablets, laptops, USB drives, and external hard drives), home computers, personal email accounts (such as Northgate Software, Cascade Health IT, or Outlook personal accounts), and personal cloud storage services (such as Hollowell Health IT, Larkspur Technologies, Meridian Systems, or Cobalt Ridge Systems) if any such devices or accounts have been used for OWS business purposes.
(e) Contact the undersigned or Sandra Ellison, General Counsel, immediately if you become aware of any potentially relevant materials that are at risk of loss, destruction, or alteration, whether due to automated processes, hardware failure, system migrations, or any other cause. Time is of the essence in such situations, and prompt notification is critical to ensuring that the materials can be preserved.
3.3 Ongoing Obligation
Your obligation to preserve relevant materials is not a one-time event. It is a continuing obligation that remains in effect until you receive a written release from Calderwood & Harkness LLP or from Sandra Ellison, General Counsel of OWS. You must continue to preserve all new documents and ESI that come into your possession, custody, or control and that fall within the scope of this hold. If you create, receive, or otherwise come into possession of relevant materials after the date of this notice, those materials must also be preserved.
SECTION 4: SCOPE OF MATERIALS TO BE PRESERVED
The following categories describe the subject matter, types, and time period of materials that must be preserved under this litigation hold. These categories are intended to be illustrative and non-exhaustive. If you possess materials that you believe may be relevant to the litigation, even if they do not fall squarely within the categories listed below, you should preserve them and contact Sandra Ellison or the undersigned for further guidance.
4.1 Subject Matter Categories
You must preserve all documents and ESI relating to any of the following subject matter categories:
(a) The Patents-in-Suit. All documents and ESI relating to U.S. Patent Nos. 10,234,567; 10,891,234; 11,045,678; and 11,312,890, including but not limited to the patent specifications, claims, figures, file histories, and any analyses, opinions, or assessments of these patents.
(b) The Inventions Claimed in the Patents-in-Suit. All documents and ESI relating to the inventions claimed in the Patents-in-Suit, including but not limited to waveguide coupler designs incorporating tapered mode converters for silicon photonics platforms, germanium-on-silicon photodetectors employing graded buffer layers for enhanced responsivity, integrated wavelength-division multiplexing (WDM) systems on silicon, and driver circuit architectures for high-speed silicon photonic Mach-Zehnder modulators (MZMs).
(c) Conception, Development, and Reduction to Practice. All documents and ESI relating to the conception, development, design, testing, prototyping, fabrication, characterization, and reduction to practice of the inventions disclosed and claimed in the Patents-in-Suit. This includes engineering notebooks, lab notebooks (whether electronic or physical), design documents, simulation results, test data, fabrication records, and any other materials documenting the inventive process.
(d) Patent Prosecution. All documents and ESI relating to the prosecution of the Patents-in-Suit before the United States Patent and Trademark Office ("USPTO"), including all correspondence with patent counsel (whether internal or external), inventor declarations and assignments, prior art searches, information disclosure statements (IDS), office action responses, examiner interviews, claim amendments, prosecution file wrappers, and any continuation, divisional, or related application filings.
(e) Lumos Photonics, Inc. All documents and ESI relating to Lumos Photonics, Inc. in any way, including any communications with or about Lumos, its employees, agents, or representatives; any analyses, evaluations, or assessments of Lumos's products, technology, market position, competitive strategies, or business activities; and any documents reflecting OWS's awareness of or response to Lumos's activities in the silicon photonics market.
(f) Accused Lumos Products. All documents and ESI relating to the accused Lumos products — specifically, the LumosBridge™ 800G Optical Engine and the LumosEdge™ 400ZR+ Pluggable Transceiver — including but not limited to any analysis, comparison, reverse engineering, teardown, benchmarking, evaluation, testing, or characterization of these products or their components, and any documents comparing these products to OWS's own products or to the claims of the Patents-in-Suit.
(g) OWS Products Practicing the Patented Technology. All documents and ESI relating to OWS's own products that practice, embody, or implement the technology claimed in the Patents-in-Suit, including but not limited to the OWS-400ZR coherent optical transceiver chipset, the OWS-800LR coherent optical transceiver chipset, and OWS's integrated silicon photonics engines. This includes design documents, datasheets, product specifications, performance data, manufacturing records, and commercialization materials.
(h) Fabrication Processes. All documents and ESI relating to fabrication processes relevant to the claimed inventions, including but not limited to materials relating to OWS's engagement of Pinnacle Semiconductor Foundry Co., Ltd. ("Pinnacle") as OWS's contract foundry for the fabrication of silicon photonics integrated circuits using Pinnacle's 45nm silicon-on-insulator (SOI) process. This includes process design kits (PDKs), fabrication run sheets, wafer lot records, process specifications, and correspondence with Pinnacle personnel regarding the fabrication of devices relevant to the Patents-in-Suit.
(i) Prior Art. All documents and ESI relating to prior art pertaining to the Patents-in-Suit, including but not limited to analyses or evaluations of the following references and any other prior art identified during prosecution or otherwise:
(i) U.S. Patent No. 9,456,012 (Tanaka et al.);
(ii) The Chen & Liu 2016 publication (as cited in the prosecution history);
(iii) European Patent Application EP 3,234,567 A1 (Nordlicht Photonische GmbH); and
(iv) The Iyer & Patel 2018 IEEE publication.
(j) Licensing Activities. All documents and ESI relating to any licensing discussions, offers, proposals, negotiations, term sheets, or agreements involving any of the Patents-in-Suit or the broader OWS patent portfolio, whether with Lumos or with any third party. This includes all materials reflecting the terms offered or considered, the status of negotiations, and any royalty or payment structures discussed.
(k) Market Analyses and Competitive intelligence. All documents and ESI relating to market analyses, competitive intelligence reports, industry surveys, market share estimates, and business strategy documents relating to silicon photonics technology, data center interconnect markets, coherent optical transceiver technology, or the competitive landscape between OWS and Lumos or other market participants.
(l) Damages-Related Information. All documents and ESI relating to damages or financial matters relevant to this litigation, including but not limited to revenue data, pricing information, cost structures, profit margins, sales projections, sales data, customer lists, customer communications, marketing materials, supply agreements, and financial information relating to OWS's products that practice the patented technology and to the competitive landscape with Lumos. This includes data relevant to reasonable royalty calculations, lost profits analyses, and apportionment of damages.
(m) Pre-Suit Correspondence. All documents and ESI relating to the cease-and-desist letter sent by OWS to Lumos on March 15, 2022 and all related correspondence, including Lumos's response dated April 4, 2022, and any internal OWS communications discussing, analyzing, or preparing these communications.
(n) Board Authorization. All documents and ESI relating to the OWS Board of Directors' authorization of this litigation on April 28, 2022, including all materials presented to or considered by the Board in connection with that authorization, all minutes or notes from the relevant Board meeting, and all internal communications regarding the decision to pursue litigation.
(o) Investor Communications. All documents and ESI relating to communications with Vantage Point Capital Partners Fund IV, LP, or its representatives (including but not limited to Douglas Fairbanks III and Rebecca Torres), concerning the Patents-in-Suit, Lumos Photonics, the competitive landscape, OWS's intellectual property strategy, or this litigation.
(p) Lender Communications. All documents and ESI relating to communications with First Pacific Commerce Bank, N.A. regarding OWS's intellectual property assets, the revolving credit facility between OWS and First Pacific Commerce Bank, or any litigation notification obligation under the terms of that credit facility.
(q) Patent Portfolio Valuation. All documents and ESI relating to any pre-litigation valuation, assessment, analysis, or appraisal of OWS's patent portfolio, including but not limited to work performed by Clearpath IP Valuation Services, Inc. or any other valuation firm, and all internal OWS analyses of the value of the Company's intellectual property assets.
4.2 Types of Materials
The obligation to preserve extends to all forms and types of documents and ESI, regardless of the medium in which they are stored. The following is an illustrative, non-exhaustive list of the types of materials that must be preserved:
(a) Electronic Communications. Emails (including all attachments, headers, and metadata), text messages (SMS and MMS), instant messages transmitted via Meridian Solutions, Northgate Data Systems, or any other messaging platform used for OWS business, calendar entries and meeting invitations, and voicemail messages (whether stored on phones, servers, or cloud systems).
(b) Electronic Files. Word processing documents (including Microsoft Word files), spreadsheets (including Microsoft Excel files), presentation files (including Microsoft Northgate Services Inc. files), PDF files, computer-aided design (CAD) files, optical and photonic simulation files, semiconductor design databases, GDSII and OASIS layout files, Verilog and VHDL code files, SPICE netlists and simulation outputs, electronic lab notebooks and engineering notebooks, and any other electronic files relevant to the subject matter described above.
(c) Hard Copy Documents. Printed memoranda, handwritten notes, physical lab notebooks and engineering notebooks, meeting notes and agendas, whiteboard photographs or captures, printed copies of patent prosecution files, and any other tangible documents relevant to the subject matter described above.
(d) Databases and Enterprise Systems. Data and records stored in enterprise resource planning (ERP) systems, customer relationship management (CRM) systems, product lifecycle management (PLM) systems, engineering data management (EDM) systems, and any other enterprise or departmental databases containing information relevant to the subject matter described above.
(e) Public-Facing and Marketing Materials. Social media posts, blog entries, press releases, conference presentations and papers, webinar recordings, trade show materials, product demos, marketing collateral, datasheets, application notes, and white papers relating to the patented technology, OWS's products, or Lumos's products.
(f) Backup and Archival Media. Backup tapes, archived data sets, data stored on legacy systems or decommissioned servers, and any other archival or backup media containing potentially relevant information.
(g) Personal Devices and Accounts. Materials stored on personal devices (including personal smartphones, tablets, laptops, USB drives, and external hard drives) and personal accounts (including personal email accounts, and cloud storage services such as Hollowell Health IT, Larkspur Technologies, and Meridian Systems) to the extent that such devices or accounts have been used for OWS business purposes at any time.
4.3 Time Period
All responsive materials created, sent, received, modified, or stored during the period from January 1, 2014 (the year of OWS's founding) through the present must be preserved. This obligation is continuing and extends to materials created or received after the date of this notice, so long as they fall within the subject matter scope described above.
This litigation hold notice remains in effect until you receive a written release from Calderwood & Harkness LLP or from Sandra Ellison, General Counsel of OWS. You should not assume that the hold has been lifted or modified unless you have received such a written release. The preservation obligation is continuous and does not expire by operation of time alone.
SECTION 5: SPECIFIC INSTRUCTIONS
In addition to the general preservation obligations described above, the following specific instructions apply to particular categories of materials and systems.
5.1 Email Preservation
(a) Do not delete any emails — whether sent, received, or drafted — that relate to any of the subject matter categories described in Section 4 above.
(b) Immediately disable any auto-archive, auto-delete, or auto-purge functions configured for your email account, including any rules that automatically move emails to trash or deleted items folders after a specified period. If you are unsure how to disable such functions, contact OWS IT support at it-support@optiwavesemi.com or extension 4500 immediately. Do not wait to resolve this issue on your own.
(c) Preserve all email folders in their current state, including your inbox, sent items, deleted items or trash folder, drafts folder, archive folders, and any custom folders or labels you have created. Do not empty your deleted items or trash folder.
(d) If you have used any personal email account (such as a personal Northgate Software, Cascade Health IT, Ridgeline Technologies, or other email account) to conduct or discuss OWS business at any time, you must preserve all such communications. Do not delete any messages from personal email accounts that relate to OWS business.
5.2 Electronic Files and Shared Drives
(a) Do not delete, overwrite, modify, or relocate files stored on shared network drives, Aldermere Systems sites, confluence pages, wikis, Aldermere Data Systems or Strathmore Solutions repositories, or other collaboration platforms that relate to the subject matter of this notice.
(b) Preserve all versions of relevant documents, not just the final or most current version. Version histories, tracked changes, and prior drafts may contain information relevant to the litigation and must be retained.
(c) If you are aware of relevant files stored on local hard drives, USB drives, external hard drives, or other portable storage media, preserve those files in place and notify Sandra Ellison or the undersigned of their location.
5.3 Mobile Devices
(a) Preserve all text messages (SMS and MMS), coss, Meridian Services Inc. messages, signal messages, Kestrel Data Systems messages, and communications from any other messaging application that relate to any of the subject matter categories described in this notice.
(b) Do not perform a factory reset, data wipe, operating system reinstallation, or any other procedure that would result in the deletion of data on any mobile device (whether Company-issued or personal) that has been used for OWS business purposes.
(c) If you are planning to replace, upgrade, trade in, or dispose of a mobile device that has been used for OWS business, contact Sandra Ellison or OWS IT support before doing so to ensure that all relevant data is preserved.
5.4 Physical Documents
(a) Do not discard, shred, recycle, or destroy any physical documents — including but not limited to lab notebooks, engineering notebooks, handwritten notes, meeting notes, printed emails, printed reports, whiteboard photographs, and any other tangible materials — that relate to the subject matter of this notice.
(b) Secure all such physical materials in a designated, safe location where they will not be inadvertently discarded, damaged, or destroyed. If you need assistance identifying a suitable storage location, contact Sandra Ellison.
(c) If you have physical documents at your home or any other off-site location that relate to OWS business and the subject matter of this notice, those materials must also be preserved. Please notify Sandra Ellison of the existence and location of any such off-site materials.
5.5 IT Systems and Backup Media
(a) OWS's Information Technology department has been separately instructed to suspend any routine data destruction policies and automated data deletion processes, adjust backup rotation schedules to prevent overwriting of relevant backup media, and preserve relevant system backups, server images, and archived data sets.
(b) If you are aware of relevant data that is at risk of being overwritten, deleted, or destroyed by routine IT processes — including scheduled backup tape rotations, server decommissioning, system migrations, or software upgrades — you must notify Sandra Ellison or the undersigned immediately. Do not assume that the IT department is already aware of the specific data you have identified.
(c) Do not request that the IT department delete, overwrite, or purge any data, accounts, or systems that may contain relevant materials without first obtaining approval from Sandra Ellison.
SECTION 6: NAMED CUSTODIANS
The following individuals have been identified as custodians under this litigation hold. This list constitutes Appendix A to this notice. Each individual listed below is subject to all of the preservation obligations described in this notice.
Note Regarding Hideo Tanaka. Mr. Tanaka is a former OWS employee who departed the Company in 2019. To the extent that OWS retains any documents or ESI authored by, received from, or relating to Mr. Tanaka during his tenure at OWS, those materials must be preserved. If you possess any materials authored by or received from Mr. Tanaka, or if you are aware of the location of any such materials on OWS systems, please notify Sandra Ellison immediately. Sandra Ellison will coordinate any necessary outreach to Mr. Tanaka regarding materials that may be in his personal possession, in consultation with Calderwood & Harkness LLP.
Additional Custodians. As this litigation progresses and additional relevant custodians are identified through ongoing investigation, discovery, or further analysis, supplemental litigation hold notices will be issued to those individuals. The current list of custodians may be expanded at any time. If you believe that there are additional individuals at OWS who may possess relevant documents or ESI and who have not been identified as custodians, please bring this to the attention of Sandra Ellison or the undersigned promptly.
SECTION 7: CONSEQUENCES OF NON-COMPLIANCE
The duty to preserve evidence in anticipation of or during litigation is a well-established and serious legal obligation. Courts take this obligation extremely seriously, and the consequences of non-compliance can be severe for both the Company and for the individuals involved.
Spoliation of evidence — defined as the destruction, alteration, concealment, or failure to preserve documents and ESI that are relevant to pending or reasonably anticipated litigation — can result in the imposition of significant sanctions by the court, including but not limited to the following:
(a) Adverse Inference Instructions. The court may instruct the jury that it should presume the destroyed or spoliated evidence was unfavorable to OWS. Under Federal Rule of Civil Procedure 37(e)(2), if a court finds that a party acted with intent to deprive another party of the information's use in the litigation, the court may presume that the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable, or dismiss the action or enter a default judgment.
(b) Monetary Sanctions and Fee-Shifting. The court may impose monetary sanctions on OWS, including orders requiring OWS to pay the opposing party's reasonable attorneys' fees and costs incurred as a result of the spoliation. Under Rule 37(e)(1), even absent a finding of intent, the court may order measures no greater than necessary to cure the prejudice resulting from the loss of relevant information.
(c) Case-Dispositive Sanctions. In extreme circumstances involving willful or bad-faith destruction of evidence, courts have the power to enter default judgments against the spoliating party, strike pleadings, or preclude the spoliating party from presenting certain evidence or arguments at trial.
(d) Personal Liability. Individuals who deliberately destroy, conceal, or alter evidence in violation of a litigation hold may be subject to personal sanctions, contempt of court proceedings, disciplinary action by the Company, and, in certain circumstances, criminal liability for obstruction of justice.
OWS takes its preservation obligations with the utmost seriousness, and the Company expects every custodian to comply fully and promptly with this notice. Non-compliance with this litigation hold will be treated as a serious matter and may result in disciplinary action by the Company, up to and including termination of employment, in addition to any court-imposed sanctions.
If you have any questions about the scope of your obligations, or if you encounter any difficulty in complying with this notice, you must contact Sandra Ellison or the undersigned immediately. Uncertainty about whether particular materials fall within the scope of the hold is not a valid reason for failing to preserve those materials. When in doubt, preserve.
SECTION 8: ACKNOWLEDGMENT AND CONFIRMATION
Each custodian who receives this Litigation Hold Notice is required to sign and return the attached Custodian Acknowledgment Form (Appendix B) to Sandra Ellison, General Counsel, Optiwave Semiconductor Corp., within five (5) business days of receipt of this notice.
By signing the Acknowledgment Form, you confirm that:
(a) You have read this Litigation Hold Notice in its entirety and understand the obligations it imposes upon you;
(b) You have taken affirmative steps to identify and preserve all documents and ESI within your possession, custody, or control that are or may be potentially relevant to the matters described in this notice;
(c) You have suspended any routine destruction, deletion, purging, or overwriting of potentially relevant materials, including disabling any auto-delete or auto-archive functions on your email account and other systems; and
(d) You understand that this is a continuing obligation and that you will comply with this notice on an ongoing basis, including preserving any new documents and ESI that come into your possession and that fall within the scope of this hold.
If you have any questions about whether specific materials fall within the scope of this hold, or about how to comply with any aspect of this notice, you must err on the side of preservation and contact Sandra Ellison or Calderwood & Harkness LLP immediately for guidance. Do not make independent judgments about whether to discard or delete materials that may be relevant.
Failure to return the signed Acknowledgment Form within the required time period will be followed up by Sandra Ellison's office. However, your obligation to preserve relevant materials is effective immediately upon receipt of this notice and does not depend on the return of the Acknowledgment Form.
SECTION 9: CONTACT INFORMATION
If you have any questions regarding this Litigation Hold Notice, your preservation obligations, or the scope of materials covered by this hold, please contact any of the following individuals:
Sandra Ellison General Counsel Optiwave Semiconductor Corp. 2775 Augustine Drive, Suite 400 San Jose, CA 95054 Telephone: (408) 555-7200
Email: sellison@optiwavesemi.com
Alan Ngo Partner, intellectual Property Group Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, CA 94111 Telephone: (415) 555-3800
Email: ango@calderwoodharkness.com
Omar Siddiqui Associate, intellectual Property Group Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, CA 94111 Telephone: (415) 555-3815
Email: osiddiqui@calderwoodharkness.com
Please do not hesitate to reach out with any questions, no matter how minor they may seem. It is far better to ask a question and preserve materials than to make an incorrect assumption and risk the loss of relevant evidence.
SECTION 10: DURATION OF THIS LITIGATION HOLD
This Litigation Hold Notice remains in effect until further written notice from Calderwood & Harkness LLP or from Sandra Ellison, General Counsel of OWS. No oral communication, informal discussion, or passage of time will serve to terminate or modify this hold.
Do not assume that this hold has been lifted simply because you have not received communications about the litigation or this notice for a period of time. The absence of reminders or updates does not indicate that the hold has been released or that your preservation obligations have been relaxed.
Calderwood & Harkness LLP and Sandra Ellison will issue periodic reminders regarding this litigation hold to ensure continued awareness and compliance. However, the preservation obligation imposed by this notice is continuous and remains in full force and effect regardless of whether periodic reminders are received. Your responsibility to preserve relevant materials does not depend upon the receipt of reminder notices.
If the scope of this litigation hold is expanded, narrowed, or modified in any way, you will receive a supplemental written notice. If the hold is released in whole or in part, you will receive a written release specifying the categories of materials that may be released from the hold.
Until you receive such a written release, you must continue to comply with all aspects of this Litigation Hold Notice.
APPENDIX A
LIST OF CUSTODIANS
The following individuals have been identified as custodians subject to this Litigation Hold Notice. Each individual listed below is required to comply with all preservation obligations set forth in this notice.
This list is subject to supplementation. Additional custodians may be identified and notified as the litigation progresses.
APPENDIX B
CUSTODIAN ACKNOWLEDGMENT FORM
LITIGATION HOLD NOTICE — PRESERVATION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION
Optiwave Semiconductor Corp. v. Lumos Photonics, Inc. Case No. 5:22-cv-03417-EJD (N.D. Cal.) Calderwood & Harkness LLP Matter No. 1014-00003
INSTRUCTIONS: Each custodian identified in Appendix A must complete, sign, and return this Acknowledgment Form to Sandra Ellison, General Counsel, Optiwave Semiconductor Corp., 2775 Augustine Drive, Suite 400, San Jose, CA 95054 (or by email to sellison@optiwavesemi.com) within five (5) business days of receipt of the Litigation Hold Notice dated June 1, 2022.
Custodian Name: __________
Title / Position: __________
Department: __________
Date of Receipt of Litigation Hold Notice: __________
By signing below, I acknowledge and confirm the following:
1.  I have received and read the Litigation Hold Notice dated June 1, 2022 in its entirety.
2.  I understand my obligations as a custodian to preserve all documents and electronically stored information ("ESI") that are or may be potentially relevant to the litigation described in the notice.
3.  I have taken affirmative steps to identify and preserve all potentially relevant documents and ESI within my possession, custody, or control, including materials stored on Company systems, personal devices, personal email accounts, and personal cloud storage services used for Company business.
4.  I have suspended all routine destruction, deletion, purging, auto-archiving, and overwriting of potentially relevant materials, and I have disabled (or requested IT support to disable) any automated processes that could result in the loss of such materials.
5.  I understand that this is a continuing obligation that remains in effect until I receive a written release from Calderwood & Harkness LLP or Sandra Ellison, General Counsel, and I will comply with this obligation on an ongoing basis.
6.  I understand that failure to comply with this Litigation Hold Notice may result in severe legal consequences for Optiwave Semiconductor Corp. and may result in personal sanctions, disciplinary action, or other adverse consequences for me individually.
7.  I will promptly notify Sandra Ellison or Calderwood & Harkness LLP if I become aware of any potentially relevant materials at risk of loss or destruction, or if I have questions about whether particular materials fall within the scope of this hold.
Please list below any categories of potentially relevant materials in your possession, custody, or control, along with their general location (e.g., office filing cabinet, laptop hard drive, personal email, shared network drive):
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
Please identify any concerns or issues regarding your ability to comply with this Litigation Hold Notice:
________________________________________
________________________________________
________________________________________
Custodian Signature: ________
Printed Name: ________
Date: ________
FOR OFFICE USE ONLY
Date Received by General Counsel: ____
Reviewed by: ____
Follow-up Required:  Yes  No
Notes: __________
PREPARED BY:
CALDERWOOD & HARKNESS LLP
By: ________
Alan Ngo Partner, intellectual Property Group
By: ________
Omar Siddiqui Lead Associate, intellectual Property Group
One Embarcadero Center, 34th Floor San Francisco, CA 94111
Date: June 1, 2022
Matter No.: 1014-00003
PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION. This Litigation Hold Notice and all attachments hereto are protected by the attorney-client privilege and the work product doctrine. This document is intended solely for the use of the individuals and entities identified herein. Unauthorized disclosure, copying, forwarding, or distribution of this document or any portion thereof is strictly prohibited and may result in a waiver of privilege. If you have received this document in error, please contact Calderwood & Harkness LLP immediately at (415) 555-3800.
Name | Title | Relevance to Litigation
Dr. Priya Ramanathan | Chief Executive Officer & Co-Founder | Named inventor on the '567 and '678 Patents; executive oversight of OWS's intellectual property strategy, business operations, and authorization of this litigation
Dr. Kevin Fong | Chief Technology Officer & Co-Founder | Named inventor on the '567, '234, and '890 Patents; lead technical knowledge of the patented inventions; oversight of OWS's silicon photonics engineering and R&D programs
Dr. Amara Osei | Principal Engineer, Photonics Design Group | Named inventor on the '234 and '678 Patents; expertise in germanium-on-silicon photodetector design and wavelength-division multiplexing integration
Hideo Tanaka | Former OWS Engineer (2016–2019) | Named inventor on the '567 Patent; also the inventor of prior art U.S. Patent No. 9,456,012 (Tanaka et al.); relevant knowledge regarding the conception and development of the waveguide coupler invention
Liwei Zhang | Design Engineer, Transceiver Integration Team | Named inventor on the '678 Patent; primary designer of OWS's multi-channel optical transceiver architecture
Rajesh Iyer | Circuit Designer, High-Speed Electronics Group | Named inventor on the '890 Patent; designer of the MZM driver circuit architecture; also co-author of the Iyer & Patel 2018 IEEE publication identified as potential prior art
Theodore "Ted" Marchetti | Vice President of intellectual Property | Registered patent attorney (USPTO Reg. No. 58,304); oversight of patent prosecution for the Patents-in-Suit; authored the cease-and-desist letter dated March 15, 2022; primary liaison with outside patent counsel
Sandra Ellison | General Counsel | Legal oversight of all matters relating to this litigation; coordination of litigation authorization by the Board of Directors; communications with outside counsel, Vantage Point Capital Partners, and First Pacific Commerce Bank
No. | Name | Title / Position | Department | Contact Information
1 | Dr. Priya Ramanathan | Chief Executive Officer & Co-Founder | Executive Office | pramanathan@optiwavesemi.com; Ext. 1001
2 | Dr. Kevin Fong | Chief Technology Officer & Co-Founder | Engineering / R&D | kfong@optiwavesemi.com; Ext. 1002
3 | Dr. Amara Osei | Principal Engineer | Photonics Design Group | aosei@optiwavesemi.com; Ext. 2045
4 | Hideo Tanaka | Former OWS Engineer (2016–2019) | N/A (Former Employee) | Contact via Sandra Ellison, General Counsel
5 | Liwei Zhang | Design Engineer | Transceiver Integration Team | lzhang@optiwavesemi.com; Ext. 2112
6 | Rajesh Iyer | Circuit Designer | High-Speed Electronics Group | riyer@optiwavesemi.com; Ext. 2078
7 | Theodore "Ted" Marchetti | Vice President of intellectual Property | Legal / IP | tmarchetti@optiwavesemi.com; Ext. 3010
8 | Sandra Ellison | General Counsel | Legal | sellison@optiwavesemi.com; Ext. 3001

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION

DO NOT FORWARD, COPY, OR DISTRIBUTE WITHOUT AUTHORIZATION FROM GENERAL COUNSEL

LITIGATION HOLD NOTICE

PRESERVATION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION

SECTION 1: PURPOSE AND IMPORTANCE OF THIS NOTICE

SECTION 2: NATURE OF THE LITIGATION

SECTION 3: YOUR OBLIGATIONS AS A CUSTODIAN

SECTION 4: SCOPE OF MATERIALS TO BE PRESERVED

SECTION 5: SPECIFIC INSTRUCTIONS

SECTION 6: NAMED CUSTODIANS

SECTION 7: CONSEQUENCES OF NON-COMPLIANCE

SECTION 8: ACKNOWLEDGMENT AND CONFIRMATION

SECTION 9: CONTACT INFORMATION

SECTION 10: DURATION OF THIS LITIGATION HOLD

APPENDIX A

LIST OF CUSTODIANS

APPENDIX B

CUSTODIAN ACKNOWLEDGMENT FORM

FOR OFFICE USE ONLY

PREPARED BY:

CALDERWOOD & HARKNESS LLP

Record

Parties

Dates

Amounts