FR EA
1014-00004 · Hawthorne Vega & Cruz LLP · Damages Analysis
damages-summary-client-presentation.pptx DOCUMENT Litigation
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[slide 1]

Confidentiality Notice

PRIVILEGED & CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT

Prepared by Calderwood & Harkness LLP for the Board of Directors of Optiwave Semiconductor Corp. and Ridgeline Capital Partners, LP

Case No. 2:24-cv-00319-JRG (E.D. Tex.) — Judge James R. Gilstrap

March 2025 — Not for distribution beyond authorized recipients

[slide 2]

Agenda

Case Overview & Current Posture

Asserted Patents & Accused Products

Damages Theory 1: Lost Profits (Panduit Analysis)

Damages Theory 2: Reasonable Royalty (Georgia-Pacific Analysis)

Damages Theory 3: Enhanced Damages for Willful Infringement

Aggregate Damages Summary & Recovery Scenarios

Injunctive Relief — Strategic Value

Litigation Budget & Fee Update

Risk Assessment & Settlement Positioning

Key Upcoming Milestones & Next Steps

[slide 3]

Case Overview

Plaintiff: Optiwave Semiconductor Corp. (OWS) — $487.3M FY 2023 revenue; 142 issued U.S. patents; 3rd-largest U.S. supplier of silicon-photonics transceiver modules for hyperscale data centers

Defendant: Lumicore Technologies, Inc. (LTC) — ~$312.6M FY 2023 revenue; ~$3.4B market cap (Nasdaq-listed); fast-growing competitor in silicon-photonics transceivers

Filed April 22, 2024 in E.D. Tex. — 7 counts across 4 U.S. utility patents

Counsel: Calderwood & Harkness LLP (lead); Whitmore & Callahan LLP (local counsel, Tyler, TX)

Defense Counsel: Hawthorne Vega & Cruz LLP (lead partner: Kate Rourke); Trask Eddington LLP (local counsel)

Damages demand: approximately $210 million

[slide 4]

Current Case Posture

Infringement Contentions served September 16, 2024; Invalidity Contentions served October 14, 2024

Claim construction briefs fully briefed — 14 disputed terms (12 remain in dispute after 2 agreed)

Joint Claim Construction Chart (final) filed January 15, 2025

Markman hearing: March 14, 2025 (imminent)

Fact discovery closes: May 1, 2025

Plaintiff expert reports due: June 15, 2025

Dispositive motions due: September 15, 2025; Daubert motions due: November 1, 2025

Jury trial: February 2, 2026 (estimated 7–10 days)

[slide 5]

The Asserted Patents

U.S. 10,234,847 ('847 Patent) — 'Multi-Channel Silicon Photonic Waveguide Multiplexer with Low Insertion Loss' — Filed Sept. 14, 2016; Issued Mar. 19, 2019

U.S. 10,891,193 ('193 Patent) — 'High-Bandwidth Coherent Optical Transceiver Integrated on Silicon Substrate' — Filed Apr. 7, 2017; Issued Jan. 12, 2021

U.S. 9,678,562 ('562 Patent) — 'Method for Thermal Management of PICs Using Embedded Micro-Channel Heat Sinks' — Filed Nov. 22, 2014; Issued June 13, 2017 — Acquired from Solara Optics via APA (June 2018, $34.5M portfolio)

U.S. 11,402,015 ('015 Patent) — 'Polarization-Diverse Grating Coupler for Silicon Photonic Transceivers' — Filed Aug. 30, 2019; Issued Aug. 2, 2022

'562 and '847 are in the same family (continuation relationship); '193 and '015 share common Provisional App. No. 62/499,117

All maintenance fees current; no IPR petitions filed to date

[slide 6]

Accused Products & Revenue Base

LumiLink 400G-ZR+ — Launched Q3 2022 — FY 2023 Revenue: $94.8M — Accused of infringing '847, '193, '562

LumiLink 800G-DR8 — Launched Q1 2023 — FY 2023 Revenue: $128.4M — Accused of infringing '847, '193, '562, '015

LumiEdge 1600G-LR — Launched Q4 2023 — FY 2023 Revenue: $41.7M — Accused of infringing '193, '015

Total Accused Product Revenue (FY 2023): $264.9M

Total Accused Product Revenue (infringement period, Q3 2022 – Q1 2024): ~$378.2M

Projected Accused Product Revenue through trial (Q3 2022 – Q4 2025): ~$714.6M

[slide 7]

Damages Theory 1: Lost Profits — Panduit Analysis

Framework: Panduit Corp. v. Stahlin Bros. four-factor test

Factor 1 — Demand: OWS FY 2023 revenue of $487.3M demonstrates strong market demand for patented products (OWS-400ZR, OWS-800XR, OWS-1600DR)

Factor 2 — Absence of Non-Infringing Substitutes: 4 potential alternatives analyzed; each lacks key patented features (waveguide multiplexer, micro-channel heat sinks, grating coupler)

Factor 3 — Manufacturing & Marketing Capability: OWS has foundry capacity and established sales channels to serve displaced demand

Factor 4 — Profit Amount: OWS gross margin on competing products = 47.3%

Market-Share Displacement: 38.2% (head-to-head competition at 12 of top 20 hyperscale data-center operators)

Lost Profits Calculation: $714.6M × 38.2% × 47.3% ≈ $128.9M

[slide 8]

Damages Theory 2: Reasonable Royalty — Georgia-Pacific Analysis

Framework: Georgia-Pacific Corp. v. United States Plywood Corp. — 15-factor analysis

Applicable to Lumicore sales OWS could not have captured (non-overlapping customers / geographies)

Hypothetical negotiation date: Q2 2022 (pre-launch of LumiLink 400G-ZR+)

Royalty base (non-lost-profit sales): $714.6M – ($714.6M × 38.2%) = ~$441.6M

Proposed royalty rate: 8.5% of net sales — supported by 5 comparable licenses (range: 4.0%–12.5%)

Reasonable Royalty Calculation: $441.6M × 8.5% ≈ $37.5M

EMVR applies: patented features (waveguide multiplexer, thermal management, grating coupler) drive demand for entire transceiver module

[slide 9]

Damages Theory 3: Enhanced Damages — Willful Infringement

Legal Standard: Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93 (2016) — subjective willfulness; Read factors for enhancement

Pre-suit notice: FairPoint Licensing Group letter dated January 15, 2023 (identified '847, '193, '562 Patents)

Supplemental notice: FairPoint letter dated May 15, 2023 (added '015 Patent and LumiLink 800G-DR8)

In-person meeting: April 20, 2023 in Austin — Lumicore showed 'no interest in negotiating' (Angela Reeves testimony)

Post-notice product launch: LumiEdge 1600G-LR launched Q4 2023 — after full awareness of OWS patents

Lumicore CTO Dr. Michaud admitted reviewing OWS published patent application during LumiLink design; could not identify non-infringing alternatives

Lumicore engineer Melissa Chen: design team accessed OWS published patent application during 2021–2022 design phase

Post-notice lost profits: ~$109.2M; enhancement sought yields additional ~$43.6M (blended into $210M demand)

[slide 10]

Aggregate Damages Summary

Lost Profits (Panduit): ~$128.9M

Reasonable Royalty (Georgia-Pacific, 8.5%): ~$37.5M

Subtotal (without enhancement): ~$166.4M

Enhanced Damages (willful, blended component): ~$43.6M (as pled in complaint)

Total Damages Demand (as pled): ~$210.0M

Note: $210M reflects a blended, rounded demand — not a simple arithmetic sum of individual theory maxima

Dr. Keating's expert report will present multiple scenarios with ranges

[slide 11]

Recovery Scenarios

Best Case: $210M–$285M — Prevail on all patents, all products, full willfulness finding with trebling on post-notice component; permanent injunction granted

Expected Case: ~$138M — Weighted probability: 75% likelihood of prevailing on liability × 85% surviving invalidity defenses × damages range; reflects decision-tree analysis

Conservative Case: ~$145M — Prevail on infringement and validity but limited or no willfulness enhancement; royalty rate reduced to lower end of range

Settlement Recommendation: Minimum acceptable $125M cash + royalty-bearing license; or $100M cash + permanent injunction / product withdrawal

[slide 12]

Injunctive Relief — Strategic Value

Cascade Holdings four-factor test: irreparable harm, inadequacy of legal remedies, balance of hardships, public interest

OWS competes directly with Lumicore — practicing entity status strongly supports injunction

Price erosion: 18.7% ASP decline in 400G-ZR transceivers (Q3 2022 – Q4 2023) linked to Lumicore's market entry

7 major hyperscale customers purchase from both OWS and Lumicore — direct competitive overlap

If injunction granted: ~42% of Lumicore's product revenue at risk

Lumicore's estimated redesign timeline: 18–24 months — significant competitive disruption

Draft proposed injunction includes 18-month sunset provision for existing customer commitments

Injunction is primary settlement leverage — may drive resolution before trial

[slide 13]

Litigation Budget & Fee Update

Board-approved litigation budget: $18.5M through trial (OWS Board Resolution No. 2024-07; approved April 2, 2024)

Cumulative C&H fees through January 2025: $3,201,600

Cumulative costs through January 2025: $198,400 — Total billed: $3,400,000 (18.4% of budget consumed)

Remaining budget: $15,100,000

Blended cap rate: $925/hr (negotiated with Ridgeline Capital Partners)

Expert fee budget: ~$2.8M total (Dr. Ashford $1.1M; Dr. Keating $950K; Gregory Falk $375K; Benchmark $375K)

Success fee component: 5% of net recovery above $150M

Insurance: Pacific Rim Insurance Group Policy No. PLI-2023-08812 — notice provided April 24, 2024

[slide 14]

Key Risks & Mitigation

Claim Construction Risk: Narrow constructions of key terms could limit infringement findings — Markman hearing March 14, 2025

Invalidity Risk: 23 prior-art references; strongest challenges are Takahashi (anticipation of '847) and Lumicore prior-conception defense on '015 — mitigated by Dr. Ashford's rebuttal opinions

Doctrine of Equivalents Risk: Prosecution-history estoppel on '193 Claims 3/7 and '015 Claim 12 — Festo tangential-relation exception argued

IPR Risk: Statutory deadline for Lumicore to file IPR is May 1, 2025 — contingency opposition to stay is drafted

Daubert Risk: Anticipated challenges to Dr. Keating's EMVR and market-share displacement methodology — pre-emptive Daubert motions prepared against defense experts

Inequitable Conduct Counterclaim: Allegation re: Dr. Huang's prosecution of '193 Patent — assessed as weak (reference was cumulative; no specific intent to deceive)

[slide 15]

Settlement Positioning

Decision-tree expected value of trial outcome: ~$138M

Recommended minimum settlement: $125M cash + prospective royalty-bearing license on accused and next-generation products

Alternative minimum: $100M cash + permanent injunction or confirmed product withdrawal

Settlement leverage increases significantly after favorable Markman ruling (March 14, 2025) and after IPR deadline passes (May 1, 2025)

Potential mediation: three mediators identified — Ret. Judge Harold K. Devereaux (JAMS), Patricia Nolan-Ferris (ADR Services International), Carl Weingarten (Judicial Arbitration Associates)

Any settlement requires OWS Board and Ridgeline Capital approval per governance requirements

[slide 16]

Key Upcoming Milestones

March 14, 2025 — Markman Hearing (claim construction ruling expected shortly after)

May 1, 2025 — Fact discovery Close / IPR Filing Deadline (35 U.S.C. § 315(b))

June 15, 2025 — Plaintiff Expert Reports Due (Dr. Ashford, Dr. Keating, Gregory Falk)

July 15, 2025 — Defendant Rebuttal Expert Reports Due

August 15, 2025 — Expert discovery Close (expert depositions July–August 2025)

September 15, 2025 — Dispositive Motions Due (partial SJ planned on '562 infringement and '015 validity)

November 1, 2025 — Daubert Motions Due

January 5, 2026 — Pre-Trial Conference

February 2, 2026 — Jury Trial (7–10 days, E.D. Tex.)

[slide 17]

Recommended Board Actions

Affirm continuation of litigation through Markman hearing and expert-report phases

Authorize litigation team to finalize and file expert reports by June 15, 2025 deadline

Approve updated damages scenarios for settlement authority parameters

Direct management to preserve and supplement document holds as discovery expands

Schedule follow-up Board briefing for post-Markman analysis (target: April 2025)

Consider mediation timing — optimal window is post-Markman, post-IPR deadline (May–June 2025)