ATTORNEY WORK PRODUCT — PRIVILEGED AND CONFIDENTIAL This memorandum is protected by the attorney-client privilege and the work product doctrine. It is prepared in anticipation of litigation and for the purpose of providing legal advice. Do not distribute outside the Calderwood & Harkness LLP case team without express written authorization from the Responsible Partner.
SUMMARY JUDGMENT STRATEGY MEMORANDUM
CALDERWOOD & HARKNESS LLP
May 2, 2025
Prepared by: Wendy Schultz, Lead Associate, Calderwood & Harkness LLP; Omar Siddiqui, Working Associate, Calderwood & Harkness LLP
Reviewed by: Alan Ngo, Responsible Partner, Calderwood & Harkness LLP; Marcus Delgado, Billing Partner, Calderwood & Harkness LLP
Re: Optiwave Semiconductor Corp. v. Lumicore Technologies, Inc., Case No. 2:24-cv-00319-JRG (E.D. Tex.)
To: Case File — Internal Memorandum
Classification: ATTORNEY WORK PRODUCT — PRIVILEGED AND CONFIDENTIAL
Deadline Reference: Dispositive motions due September 15, 2025; Daubert motions due November 1, 2025; Pre-trial conference January 5, 2026; Jury trial February 2, 2026 (estimated 7–10 days)
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I. EXECUTIVE SUMMARY
The purpose of this memorandum is to outline all summary judgment motions that Optiwave Semiconductor Corp. ("OWS" or "Plaintiff") should consider filing in the above-captioned action, and to anticipate and prepare for all summary judgment motions that Lumicore Technologies, Inc. ("Lumicore" or "Defendant") is likely to bring. This memorandum reflects the case posture as of May 2, 2025, following the close of fact discovery on May 1, 2025. The remaining discovery and briefing schedule is as follows: Plaintiff's expert reports are due June 15, 2025; Defendant's rebuttal expert reports are due July 15, 2025; expert discovery closes August 15, 2025; and the dispositive motion deadline is September 15, 2025.
We have analyzed four categories of summary judgment motions and present our strategic recommendations with respect to each:
(A) Plaintiff's Affirmative Partial Summary Judgment on Infringement of the '562 Patent (Claims 1, 4, and 6). Of the four asserted patents, the '562 Patent presents the strongest case for partial summary judgment on literal infringement. The physical structures accused of infringement — micro-channel heat sinks embedded in silicon photonic integrated circuits — have been identified and measured by multiple independent sources, and the undisputed evidence establishes that each limitation of Claims 1, 4, and 6 is met by the LumiLink 400G-ZR+ and LumiLink 800G-DR8 products, regardless of which party's claim construction the Court adopts. We strongly recommend filing this motion.
(B) Plaintiff's Affirmative Summary Judgment on Validity of the '015 Patent (Rebutting Lumicore's Prior-Conception Defense). Lumicore's principal invalidity theory for the '015 Patent rests on a prior-conception defense based on internal design documents purportedly dated 2016–2017. This defense fails as a matter of law under the America Invents Act ("AIA") first-inventor-to-file framework, and is further undermined by the absence of corroboration, metadata anomalies, and the documents' failure to disclose every element of the asserted claims. We recommend filing this motion.
(C) Anticipated Defense Summary Judgment Motion on Doctrine of Equivalents (Prosecution History Estoppel for '193 Patent Claims 3/7 and '015 Patent Claim 12). We expect Lumicore to move for summary judgment of no infringement under the doctrine of equivalents based on prosecution history estoppel under Festo Corp. v. Fenmore & Co., 535 U.S. 722 (2002). Our response strategy centers on the tangential-relation and unforeseeability exceptions to the Festo presumption. We assess the risk as moderate and recommend preparing a robust opposition.
(D) Anticipated Defense Summary Judgment Motion on Damages Methodology (Entire Market Value Rule Challenge). We expect Lumicore to challenge Dr. Lawrence Keating's use of the entire transceiver module price as the royalty base. Our defense is grounded in the fact that the transceiver module is itself the smallest salable patent-practicing unit, that the patented features drive customer demand, and that comparable licenses uniformly apply module-level royalty rates. We assess the risk as moderate to low and recommend preparing a thorough opposition.
Overall Strategic Recommendation. We recommend filing the affirmative motions in categories (A) and (B), while preparing robust oppositions for the anticipated defense motions in categories (C) and (D). All summary judgment briefing should be coordinated with expert reports (due June 15, 2025) and Daubert motions (due November 1, 2025) to maximize the cumulative impact of our dispositive-motion strategy. We note that Lumicore did not file any inter partes review ("IPR") petitions before the one-year deadline under 35 U.S.C. § 315(b), which expired on May 1, 2025. The absence of IPR proceedings eliminates any stay risk and significantly strengthens our litigation posture, as the validity of all four asserted patents will be determined exclusively by this Court and the jury.
II. PROCEDURAL AND FACTUAL BACKGROUND
A. Case Posture
OWS filed its Complaint on April 22, 2024, asserting four United States utility patents against Lumicore: U.S. Patent No. 10,234,847 (the "'847 Patent"), U.S. Patent No. 10,891,193 (the "'193 Patent"), U.S. Patent No. 9,678,562 (the "'562 Patent"), and U.S. Patent No. 11,402,015 (the "'015 Patent"). The Complaint asserts seven counts: four counts of direct infringement (one per patent), one count of induced infringement, one count of contributory infringement, and one count of willful infringement with a request for enhanced damages under 35 U.S.C. § 284.
Lumicore filed its Answer and Counterclaims on June 17, 2024. The counterclaims assert non-infringement of all four asserted patents, invalidity under 35 U.S.C. §§ 102 and 103, unenforceability based on alleged inequitable conduct (as to the '193 Patent), and a declaratory judgment of non-infringement. Lumicore's invalidity contentions identify twenty-three prior-art references across the four patents, including a combination of published patents, PCT applications, and academic publications.
On June 28, 2024, Lumicore filed a Motion to Transfer Venue to the Western District of Texas under 28 U.S.C. § 1404(a). Judge James R. Gilstrap denied the motion on August 5, 2024, finding that the Eastern District of Texas was a proper venue based on Lumicore's regular and established place of business in the District and the convenience of witnesses. The Court issued a Scheduling Order on August 12, 2024, setting the case timeline that governs the current proceedings.
A Markman hearing was held on March 14, 2025, before Judge Gilstrap. The parties presented competing claim constructions for fourteen disputed claim terms across the four asserted patents. As of the date of this memorandum, the Court has not yet issued its claim construction order. This is a critical variable in our summary judgment strategy, and our recommendations below account for various construction outcomes. To the extent any motion depends on a particular construction, we recommend filing after the Markman order issues or, alternatively, demonstrating that the motion succeeds under either party's proposed construction.
B. Accused Products
OWS accuses three Lumicore product lines of infringement:
LumiLink 400G-ZR+ Coherent Optical Transceiver Module. The LumiLink 400G-ZR+ is a coherent pluggable transceiver designed for data-center interconnect ("DCI") applications supporting 400 gigabit-per-second transmission rates. Lumicore launched this product in Q3 2022. OWS accuses this product of infringing the '847, '193, and '562 Patents. According to Lumicore's financial disclosures produced in discovery, the LumiLink 400G-ZR+ generated FY 2023 revenue of approximately $94.8 million.
LumiLink 800G-DR8 Short-Reach Optical Transceiver Module. The LumiLink 800G-DR8 is a short-reach optical transceiver designed for intra-data-center connectivity supporting 800 gigabit-per-second transmission rates. Lumicore launched this product in Q1 2023. OWS accuses this product of infringing all four asserted patents — the '847, '193, '562, and '015 Patents. The LumiLink 800G-DR8 generated FY 2023 revenue of approximately $128.4 million, making it Lumicore's highest-revenue accused product.
LumiEdge 1600G-LR Long-Reach Optical Transceiver Module. The LumiEdge 1600G-LR is a long-reach optical transceiver designed for metro and regional network connectivity supporting 1.6 terabit-per-second aggregate transmission rates. Lumicore launched this product in Q4 2023 — notably, after OWS had sent two formal notice letters (January 15, 2023 and May 15, 2023) and conducted an in-person meeting with Lumicore (April 20, 2023) regarding infringement of the asserted patents. OWS accuses this product of infringing the '193 and '015 Patents. The LumiEdge 1600G-LR generated FY 2023 revenue of approximately $41.7 million during its partial-year launch period.
Total accused product revenue for FY 2023 across all three product lines was approximately $264.9 million. Dr. Lawrence Keating of Meridian Economic Consulting Group, LLC, OWS's damages expert, projects total accused product revenue from Q3 2022 (first product launch) through Q4 2025 (estimated trial conclusion) at approximately $714.6 million. This figure forms the revenue base for Dr. Keating's reasonable-royalty damages analysis.
C. Asserted Patents and Ownership
The four asserted patents and their relevant details are as follows:
The '847 Patent (U.S. Patent No. 10,234,847) — titled "Multi-Channel Silicon Photonic Waveguide Multiplexer with Low Insertion Loss" — was filed on September 14, 2016, and issued on March 19, 2019. It was originally assigned to OWS. The '847 Patent is directed to a silicon photonic waveguide multiplexer architecture that achieves significantly lower insertion loss than prior-art designs, enabling higher-bandwidth optical transmission. The '847 Patent and the '562 Patent are in the same patent family, sharing a continuation relationship.
The '193 Patent (U.S. Patent No. 10,891,193) — titled "High-Bandwidth Coherent Optical Transceiver Integrated on Silicon Substrate" — was filed on April 7, 2017, and issued on January 12, 2021. It was originally assigned to OWS. The '193 Patent is directed to a coherent optical transceiver architecture that integrates key optical components — including a coherent detection module, modulator, and waveguide interconnects — on a single silicon substrate, achieving a compact form factor with high bandwidth performance. The '193 Patent claims priority to Provisional Application No. 62/499,117, which it shares with the '015 Patent.
The '562 Patent (U.S. Patent No. 9,678,562) — titled "Method for Thermal Management of Photonic Integrated Circuits Using Embedded Micro-Channel Heat Sinks" — was filed on November 22, 2014, and issued on June 13, 2017. The '562 Patent was originally assigned to Solara Optics, Inc. OWS acquired the '562 Patent, along with eleven other patents, from Solara Optics pursuant to an asset purchase agreement dated June 15, 2018, for a total consideration of $34.5 million. The assignment was duly recorded with the United States Patent and Trademark Office. As noted above, the '562 Patent and the '847 Patent share a continuation relationship. The '562 Patent is directed to a method of thermal management for photonic integrated circuits that employs embedded micro-channel heat sinks to dissipate heat from thermally sensitive optical components, thereby improving long-term reliability and performance.
The '015 Patent (U.S. Patent No. 11,402,015) — titled "Polarization-Diverse Grating Coupler for Silicon Photonic Transceivers" — was filed on August 30, 2019, and issued on August 2, 2022. It was originally assigned to OWS. The '015 Patent claims priority to Provisional Application No. 62/499,117, filed April 7, 2017, which it shares with the '193 Patent. The '015 Patent is directed to a polarization-diverse grating coupler that uses a two-dimensional sub-wavelength grating structure to efficiently couple light of two orthogonal polarization states from an optical fiber to an on-chip waveguide, enabling high-performance silicon photonic transceiver operation.
All maintenance fees for the four asserted patents are current as of the date of this memorandum. As noted above, no IPR petitions were filed by Lumicore or any other party before the one-year deadline under 35 U.S.C. § 315(b), which expired on May 1, 2025, thereby eliminating any risk that the Court might stay these proceedings pending IPR.
D. Key discovery Developments
Fact discovery in this action was extensive. OWS produced approximately 182,000 documents comprising approximately 1.4 million pages. Lumicore produced approximately 147,000 documents comprising approximately 980,000 pages. A three-tier confidentiality order governs the exchange of materials: Confidential, Highly Confidential — Attorneys' Eyes Only ("AEO"), and Highly Confidential — Source Code.
Teardown Reports. Benchmark Semiconductor Analysis, LLC ("Benchmark") conducted independent teardowns and reverse-engineering analyses of all three accused products. Kevin Ng, the lead analyst at Benchmark, prepared detailed reports for each product: the LumiLink 400G-ZR+ teardown report was completed December 12, 2022; the LumiLink 800G-DR8 teardown report was completed June 2023; and the LumiEdge 1600G-LR teardown report was completed February 2024. Each report confirmed the presence of physical structures corresponding to the asserted patent claims, including waveguide multiplexer architectures, coherent transceiver structures, micro-channel heat-sink configurations, and grating coupler elements. These reports are central to our summary judgment motion on '562 infringement.
Key Depositions. The following depositions were completed during fact discovery:
•  Dr. Jian-Wei Huang (OWS Chief Technology Officer): deposed November 5, 2024. Dr. Huang testified regarding the development history of the patented technologies, OWS's licensing program, and the technical significance of the asserted claims.
•  Dr. Sandra Michaud (Lumicore Chief Technology Officer): deposed November 19, 2024. Dr. Michaud's testimony is particularly relevant to the '562 infringement motion; she admitted that Lumicore's products employ a silicon-substrate-based photonic integrated circuit architecture with embedded thermal management, and she was unable to identify any specific distinction between Lumicore's thermal management structure and the structure claimed in the '562 Patent.
•  Raymond Bautista (Lumicore General Counsel): deposed December 3, 2024. Mr. Bautista testified regarding Lumicore's receipt of OWS's notice letters, the April 20, 2023 in-person meeting, and Lumicore's decision to proceed with the LumiEdge 1600G-LR launch despite notice of the asserted patents. He invoked the attorney-client privilege in response to questions regarding the "competent legal opinions" referenced in Lumicore's July 10, 2023 declination letter.
•  Angela Reeves (FairPoint Licensing Group): deposed December 10, 2024. Ms. Reeves testified regarding the licensing program she administered on behalf of OWS, the notice letters sent to Lumicore, and OWS's prior licensing transactions involving the asserted patents.
•  Kevin Ng (Benchmark Semiconductor Analysis, LLC): deposed January 7, 2025. Mr. Ng confirmed the methodology employed in the teardown reports, the chain of custody for all sample units, and the industry-standard measurement techniques used to identify and characterize the accused structures.
•  Melissa Chen (former Lumicore engineer, now employed by Veridian Photonics, Inc.): a deposition subpoena was issued January 22, 2025, and her deposition was completed during the final weeks of fact discovery. Ms. Chen's testimony is highly relevant to the willful infringement claim, as she testified regarding Lumicore's awareness of OWS's patent applications during the design phase of the accused products.
Lumicore Design Files. Lumicore produced its design files and photonic-IC layout files under the Highly Confidential — Source Code tier of the confidentiality order. These files include RTL schematics, mask-level layout data, and process-flow documentation for all three accused products. The design files are critical to the '562 infringement motion, as they confirm the micro-channel heat-sink architecture identified in the Benchmark teardown reports.
Motion to Compel. On October 21, 2024, OWS filed a Motion to Compel Production of the opinion-of-counsel letters referenced in Lumicore's July 10, 2023 declination letter, in which Lumicore stated that it had obtained "competent legal opinions" concluding that its products do not infringe the asserted patents. Lumicore continues to assert the attorney-client privilege and work product protection over these materials. The Motion to Compel remains pending before the Court. The outcome of this motion may affect our willful infringement presentation at trial, but does not directly bear on the summary judgment motions analyzed in this memorandum.
III. PLAINTIFF'S AFFIRMATIVE MOTION: PARTIAL SUMMARY JUDGMENT ON INFRINGEMENT OF THE '562 PATENT
A. Overview and Strategic Rationale
Of the four asserted patents, the '562 Patent presents the strongest case for partial summary judgment on literal infringement. The micro-channel heat-sink structures accused of infringement are physically present in the LumiLink 400G-ZR+ and LumiLink 800G-DR8, and this fact has been confirmed by multiple independent sources: Benchmark's teardown reports, Lumicore's own design files, and Dr. Michaud's deposition testimony. The evidence of infringement is not merely strong — it is effectively undisputed on the material facts.
Securing a partial summary judgment ruling on '562 infringement would yield several significant strategic benefits. First, it would narrow the issues for trial by removing the infringement question for the '562 Patent from the jury's consideration, allowing the jury to focus on validity, damages, and the remaining patents. We estimate this would save approximately 1 to 1.5 trial days out of an estimated 7-to-10-day trial. Second, a favorable ruling would strengthen OWS's settlement leverage by establishing as a matter of law that Lumicore's products infringe at least one of the asserted patents, which directly enhances OWS's permanent-injunction case and increases the expected damages recovery. Third, simplifying the jury presentation by eliminating the need for extensive technical testimony on '562 infringement would allow the case team to allocate more trial preparation resources to the contested issues on the remaining patents.
We propose to assert Claims 1, 4, and 6 of the '562 Patent in the partial summary judgment motion. Claim 11, which contains a limitation directed to a "fluid distribution manifold," presents a potentially disputed factual issue — specifically, whether the accused structure qualifies as a "manifold" under the Court's forthcoming claim construction. We recommend reserving Claim 11 for trial rather than risk weakening the motion by including a claim with arguable disputes.
B. Applicable Legal Standard
Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment if the movant shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once this burden is met, the nonmoving party must come forward with specific facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view the evidence in the light most favorable to the nonmoving party. Id. at 255.
Patent infringement is determined through a two-step inquiry. The first step is claim construction — the interpretation of the patent claims — which is a question of law determined by the court. Markman v. Westview Instruments, Inc., 517 U.S. 370, 388–91 (1996). The second step is the comparison of the properly construed claims to the accused device, which is a question of fact. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed. Cir. 1998) (en banc). Although the comparison step is typically a question of fact for the jury, summary judgment on infringement is appropriate "when no reasonable jury could find that every limitation of the claim has not been met by the accused device." PC Connector Solutions LLC v. SmartDisk Corp., 406 F.3d 1359, 1364 (Fed. Cir. 2005). This is precisely the situation presented by the '562 Patent with respect to Claims 1, 4, and 6.
C. Claim-by-Claim Analysis
1. Claim 1 of the '562 Patent (Independent Claim).  Claim 1 is the independent claim from which Claims 4 and 6 depend. It recites a method for thermal management of a photonic integrated circuit, including, among other limitations, the use of a "micro-channel heat sink" that is "embedded" within a "silicon substrate" supporting a "photonic integrated circuit."
The key disputed limitation at Markman was the term "micro-channel heat sink." OWS proposed the construction: "a heat-dissipating structure containing channels with a hydraulic diameter of less than 1 mm." Lumicore proposed a significantly narrower construction: "a closed-loop liquid-cooling system with channels having a hydraulic diameter between 10 µm and 200 µm." The parties' dispute centers on whether the claimed "micro-channel heat sink" must employ a closed-loop liquid-cooling architecture and whether the hydraulic diameter is limited to Lumicore's proposed 10–200 µm range.
Critically, however, infringement is established under either party's proposed construction. The Benchmark teardown reports identified micro-channel heat-sink structures in both the LumiLink 400G-ZR+ and the LumiLink 800G-DR8 with measured hydraulic diameters ranging from 45 µm to 120 µm. These measurements fall squarely within even Lumicore's proposed narrow range of 10–200 µm. Moreover, the Benchmark analysis identified a closed-loop architecture in both accused products — the coolant circulates through the micro-channels and returns to a reservoir via a return path integral to the module design. Thus, even under Lumicore's narrow construction requiring a "closed-loop liquid-cooling system," the limitation is satisfied.
The remaining limitations of Claim 1 — including "photonic integrated circuit," "silicon substrate," and "embedded" — are effectively uncontested. Lumicore's own design documents describe the accused products as silicon-substrate-based photonic integrated circuits with embedded thermal management. Dr. Michaud confirmed this architecture during her deposition on November 19, 2024, testifying that Lumicore's transceiver products employ a silicon photonic integrated circuit fabricated on a silicon-on-insulator ("SOI") substrate with an embedded thermal management structure designed to dissipate heat from thermally active components. She did not dispute that the thermal management structure is "embedded" within the substrate in the manner described by the '562 Patent.
Accordingly, every limitation of Claim 1 is met by both the LumiLink 400G-ZR+ and the LumiLink 800G-DR8, and no genuine dispute of material fact exists regardless of which party's construction the Court adopts.
2. Claim 4 of the '562 Patent (Dependent on Claim 1).  Claim 4 depends from Claim 1 and adds the limitation of a channel arrangement pattern described as a "serpentine" or "branching" micro-channel configuration. This limitation specifies the physical routing geometry of the micro-channels within the heat-sink structure.
The Benchmark teardown photographs for both the LumiLink 400G-ZR+ and LumiLink 800G-DR8 clearly depict a serpentine channel layout. The micro-channels follow a meandering, back-and-forth path across the surface of the photonic integrated circuit die, consistent with the "serpentine" configuration described in the '562 Patent specification and claims. These photographs are corroborated by Lumicore's own design files produced under the Source Code tier of the confidentiality order. The photonic-IC layout files for both products show an identical serpentine routing pattern for the micro-channel heat-sink structure, using the same design-tool layer designations for the channel geometry.
Lumicore has not offered any alternative characterization of its micro-channel routing pattern in its discovery responses, interrogatory answers, or deposition testimony. Dr. Michaud was not asked about the specific channel geometry during her deposition, but the documentary evidence is unambiguous and uncontested. No reasonable jury could find that the "serpentine" or "branching" micro-channel configuration limitation is not satisfied.
3. Claim 6 of the '562 Patent (Dependent on Claim 1).  Claim 6 depends from Claim 1 and adds a thermal conductivity specification for the channel wall material, requiring that the material forming the walls of the micro-channels have a thermal conductivity above a specified threshold. This limitation ensures that the micro-channel structure effectively transfers heat from the photonic circuit to the coolant fluid.
The Benchmark testing data include thermal conductivity measurements of the channel wall material in both accused products, confirming compliance with the specified threshold. Additionally, Lumicore's own material specifications, produced in discovery, identify the channel wall material by composition and grade, and the published thermal conductivity values for that material exceed the threshold recited in Claim 6.
Dr. Michaud, during her November 19, 2024 deposition, was asked whether she could identify any distinction between Lumicore's thermal management structure and the structure claimed in the '562 Patent. She testified that she could not identify a specific distinction. While this testimony alone would not necessarily compel summary judgment, when combined with the Benchmark measurements and Lumicore's own material specifications, the evidence establishes that no genuine dispute exists as to whether the thermal conductivity limitation of Claim 6 is satisfied.
D. Evidence Supporting No Genuine Dispute of Material Fact
The evidentiary record supporting partial summary judgment on infringement of Claims 1, 4, and 6 of the '562 Patent is comprehensive and mutually reinforcing. The principal items of evidence are as follows:
Benchmark Semiconductor Analysis Teardown Reports. The teardown reports dated December 12, 2022 (LumiLink 400G-ZR+) and June 2023 (LumiLink 800G-DR8) provide detailed physical identification, measurement, and characterization of the micro-channel heat-sink structures in the accused products. The reports include high-resolution micrographs, cross-sectional scanning electron microscope ("SEM") images, energy-dispersive X-ray spectroscopy ("EDS") analysis of channel wall materials, and hydraulic diameter measurements using calibrated optical metrology equipment. Kevin Ng confirmed the methodology and chain of custody during his deposition on January 7, 2025.
Lumicore Design Files. The RTL schematics and photonic-IC layout files produced by Lumicore under the Source Code tier show the micro-channel heat-sink architecture in detail, including the serpentine channel routing, the material composition of channel walls, and the integration of the heat-sink structure with the silicon photonic integrated circuit. These files independently confirm every limitation of Claims 1, 4, and 6 and corroborate the Benchmark teardown findings.
Dr. Sandra Michaud Deposition Testimony. During her November 19, 2024 deposition, Lumicore's CTO admitted that Lumicore's products employ a silicon-substrate-based photonic integrated circuit architecture with embedded thermal management. She could not identify any specific distinction between Lumicore's thermal management structure and the structure claimed in the '562 Patent. She did not dispute the use of micro-channel heat sinks and acknowledged that thermal management is a critical component of Lumicore's product design.
Lumicore's Invalidity Contentions Are Not Relevant to the Infringement Question. Lumicore's invalidity contentions for the '562 Patent cite the Bergmann patent (U.S. Patent No. 8,412,007) and a conference paper by Dr. Li Wei (presented at OFC 2013) as prior art. These references may bear on the validity of the '562 Patent, but they do not create any factual dispute on the infringement question. Invalidity and non-infringement are distinct defenses, and the existence of prior-art references does not negate the factual showing that the accused products practice the asserted claims.
Dr. Caroline Ashford's Forthcoming Expert Report. Dr. Ashford's expert report, due June 15, 2025, is substantially complete in draft form. It will provide a detailed element-by-element infringement analysis for each asserted claim of each asserted patent, including a comprehensive mapping of Claims 1, 4, and 6 of the '562 Patent to the accused products. Dr. Ashford's analysis corroborates and synthesizes the teardown evidence, the design-file evidence, and Dr. Michaud's deposition testimony into a unified infringement opinion.
E. Anticipated Lumicore Opposition Arguments
We anticipate that Lumicore may raise several arguments in opposition to this motion, each of which can be effectively rebutted:
Argument: Claim construction is not yet final. If the Court has not issued its Markman order by the September 15, 2025 dispositive motion deadline, Lumicore may argue that partial summary judgment on infringement is premature because claim construction has not been finalized. Our response is twofold. First, we may be able to file the motion after the Markman order issues if the order is entered before September 15, 2025. Second, and more fundamentally, our motion demonstrates that infringement is established under either party's proposed construction of every disputed term. Because no construction the Court could reasonably adopt would change the infringement analysis, the motion is ripe regardless of the Markman order's timing. We will include a section in the brief demonstrating infringement under both constructions, which effectively moots this objection.
Argument: "Micro-channel heat sink" requires a "closed-loop liquid-cooling system." Lumicore may rely on its narrow proposed construction to argue that the accused products do not contain a "micro-channel heat sink" as properly construed. Our response: even under Lumicore's narrow construction, the Benchmark teardown reports identified a closed-loop architecture in both accused products. The coolant in Lumicore's thermal management system circulates through the micro-channels and returns to a reservoir via an integrated return path, satisfying the "closed-loop" requirement. Moreover, Lumicore's own design documents internally label the structure as a "closed-loop micro-channel thermal system" — Lumicore's own engineers characterized the structure using language that matches their proposed construction.
Argument: Factual disputes regarding measurement methodology. Lumicore may argue that the Benchmark teardown measurements are unreliable or that factual disputes exist regarding the measurement methodology. Our response: Kevin Ng's deposition testimony (January 7, 2025) confirmed the chain of custody for all sample units, the use of industry-standard calibrated metrology equipment, and the well-established measurement protocols employed by Benchmark. Critically, Lumicore has not offered any competing teardown data, independent measurements, or expert analysis contradicting the Benchmark findings. To create a genuine dispute of material fact, the nonmoving party must come forward with specific facts, not mere allegations or denials. Anderson, 477 U.S. at 248. Lumicore's failure to produce competing evidence during fact discovery — which is now closed — forecloses this argument.
F. Recommendation.  We strongly recommend filing a partial summary judgment motion on infringement of the '562 Patent, Claims 1, 4, and 6, as to both the LumiLink 400G-ZR+ and the LumiLink 800G-DR8. This motion has a high probability of success based on the undisputed evidence, the construction-independent nature of the infringement showing, and the absence of any competing evidence from Lumicore.
A draft motion has been prepared (see draft-psj-562-infringement.docx) and will be finalized after expert reports are served and the Markman order is issued. If the Markman order construes the term "micro-channel heat sink" in a manner materially different from both parties' proposals — for example, by imposing an additional limitation not proposed by either party — we will reassess before filing. However, given the physical evidence in the record, we believe the motion succeeds under virtually any reasonable construction of the disputed terms.
IV. PLAINTIFF'S AFFIRMATIVE MOTION: SUMMARY JUDGMENT ON VALIDITY OF THE '015 PATENT (PRIOR-CONCEPTION DEFENSE)
A. Overview and Strategic Rationale
Lumicore's principal invalidity theory for the '015 Patent is a prior-conception defense premised on internal design documents that Lumicore contends were created in 2016–2017. Lumicore asserts that these documents reflect its independent conception of the polarization-diverse grating coupler technology claimed in the '015 Patent prior to OWS's priority date. This defense is central to Lumicore's invalidity case for the '015 Patent and has been prominently featured in Lumicore's invalidity contentions and discovery correspondence.
The '015 Patent was filed on August 30, 2019, and claims priority to Provisional Application No. 62/499,117, filed April 7, 2017. The effective filing date — and thus the relevant priority date for prior-art purposes — is April 7, 2017.
Lumicore's prior-conception defense fails as a matter of law for multiple independent reasons. First, the defense has no statutory basis under the AIA's first-inventor-to-file framework, which governs the '015 Patent. Second, the internal documents Lumicore relies upon are uncorroborated by any independent evidence. Third, forensic analysis of the documents' metadata raises substantial questions about their actual creation dates. Fourth, even taken at face value, the documents do not disclose every element of the asserted '015 claims.
Eliminating the prior-conception defense at the summary judgment stage would remove Lumicore's most prominent invalidity theory for the '015 Patent, significantly narrowing the invalidity portion of the trial. It would also undermine the credibility of Dr. Rajesh Sundaram's expert opinions, which rely heavily on these same documents.
B. Applicable Legal Standard
The applicable legal framework depends on the effective filing date of the patent at issue. The '015 Patent has an effective filing date of April 7, 2017 — the filing date of Provisional Application No. 62/499,117, to which it claims priority. Because this date falls after March 16, 2013, the '015 Patent is governed by the America Invents Act's first-inventor-to-file regime.
Under the AIA, prior art is defined by 35 U.S.C. § 102(a). Section 102(a)(1) provides that "[a] person shall be entitled to a patent unless the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention." Section 102(a)(2) provides that a person shall be entitled to a patent unless "the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention."
Critically, the AIA eliminated the prior-invention defense that existed under pre-AIA 35 U.S.C. § 102(g). Under the AIA's first-to-file system, an inventor's earlier date of conception or reduction to practice is no longer a defense to a later-filed patent. The relevant inquiry is the effective filing date, not the date of conception. Accordingly, Lumicore's assertion that it conceived of the claimed technology in 2016–2017 — even if true — does not constitute a defense to the validity of the '015 Patent under the AIA framework.
To the extent Lumicore argues that its internal documents constitute prior art under § 102(a)(1) or (a)(2), this argument fails because the documents are unpublished internal engineering files. They were not "patented," "described in a printed publication," "in public use," "on sale," or "otherwise available to the public" before the '015 Patent's effective filing date. Similarly, they are not described in any patent or published application that was effectively filed before April 7, 2017.
To the extent Lumicore asserts a prior-user-rights defense under 35 U.S.C. § 273, such a defense requires "commercial use" of the subject matter in the United States before the effective filing date. See 35 U.S.C. § 273(a)(1). Internal design documents do not constitute "commercial use." Lumicore's first accused product, the LumiLink 400G-ZR+, was not launched until Q3 2022 — more than five years after the '015 Patent's priority date.
C. Analysis of Lumicore's Asserted Prior-Conception Evidence
Lumicore's invalidity contentions for the '015 Patent cite internal design documents purportedly created in 2016–2017 as evidence of prior conception of the polarization-diverse grating coupler technology. Our analysis of these documents reveals four independent deficiencies, any one of which is sufficient to warrant summary judgment:
(1) No Corroboration. The documents Lumicore relies upon are internal engineering files generated by Lumicore employees. They are not corroborated by any contemporaneous external evidence, such as a published paper, a patent application, a conference presentation, a communication with a third party, or testimony from an independent witness. Under well-established law, an inventor's uncorroborated testimony — or, analogously, internal documents standing alone — is insufficient to establish prior conception. See Price v. Symsek, 988 F.2d 1187, 1194–95 (Fed. Cir. 1993) (requiring corroboration of prior-conception evidence through evidence independent of the inventor's own testimony). The same principle applies to internal corporate documents that have not been independently verified. Lumicore has not identified any third-party witness who can independently corroborate the substance and timing of the design work reflected in these documents.
(2) Metadata and Dating Issues. Our forensic review of the produced documents — conducted in conjunction with the Calderwood & Harkness digital forensics team — has identified significant discrepancies between the dates asserted by Lumicore and the documents' actual metadata. Several of the key documents have metadata showing file-creation or file-modification dates that postdate the April 7, 2017 provisional filing date. While metadata can be altered or may reflect file-system operations rather than content-creation dates, these discrepancies at a minimum undermine Lumicore's assertion that the documents were created in the 2016–2017 timeframe. At worst, they suggest the documents may have been created or modified after OWS's provisional application was filed, negating any prior-conception claim even under the now-inapplicable pre-AIA framework.
(3) Incomplete Conception. Even accepting Lumicore's representations about the documents' dates at face value, the documents do not disclose every element of the asserted '015 claims. The documents describe a one-dimensional grating coupler concept — a structure that couples light using a periodic pattern with features varying in only one dimension. The '015 Patent claims, by contrast, are directed to a polarization-diverse grating coupler employing a two-dimensional sub-wavelength grating structure. The two-dimensional grating is essential to the polarization-diversity function because it enables efficient coupling of both orthogonal polarization states simultaneously. The one-dimensional concept described in Lumicore's documents does not achieve this function and does not disclose the claimed two-dimensional sub-wavelength grating structure. Accordingly, even if the documents were both properly dated and legally cognizable as prior art — which they are not — they would not anticipate or render obvious the asserted claims.
(4) AIA Framework. As discussed in Section IV.B above, the AIA's first-to-file system does not recognize a prior-conception defense. Internal unpublished documents, regardless of their date, do not constitute "prior art" under 35 U.S.C. § 102(a). Lumicore's defense has no statutory basis under the law governing the '015 Patent.
D. Evidence Supporting Summary Judgment
The following evidence supports our motion for summary judgment on the validity of the '015 Patent with respect to Lumicore's prior-conception defense:
Lumicore's Internal Documents. The internal documents Lumicore relies upon, produced in discovery and designated Highly Confidential — Attorneys' Eyes Only, are facially incomplete. They describe a one-dimensional grating coupler concept that lacks the two-dimensional sub-wavelength grating structure and the polarization-diversity function claimed in the '015 Patent. A side-by-side comparison of the documents with the asserted claims demonstrates the absence of key claim elements.
Metadata Analysis. Our forensic metadata analysis of the Lumicore documents identifies file-creation and file-modification dates that postdate the April 7, 2017 provisional filing date for several key documents. This analysis will be presented through a declaration from our digital forensics consultant.
Dr. Eric Dalmqvist Testimony. Dr. Eric Dalmqvist, Lumicore's Vice President of Product Development, was designated as Lumicore's 30(b)(6) witness on the topic of the prior-conception defense. During his deposition, Dr. Dalmqvist was unable to provide detailed corroborating testimony about the 2016–2017 design work. He testified in general terms about Lumicore's research-and-development activities during that period but could not identify specific individuals who worked on the grating coupler concept, could not recall the circumstances under which the design documents were created, and could not confirm the accuracy of the dates asserted in Lumicore's invalidity contentions.
Absence of External Corroboration. There are no published papers, patent applications, conference presentations, trade-show materials, customer communications, or third-party collaborations by Lumicore personnel that describe the polarization-diverse grating coupler technology prior to April 7, 2017. The complete absence of external corroboration is fatal to the prior-conception defense.
No Commercial Use Before the Priority Date. Lumicore's first accused product, the LumiLink 400G-ZR+, was not launched until Q3 2022, more than five years after the '015 Patent's priority date. There is no evidence of any commercial use of the claimed technology before the priority date, precluding a prior-user-rights defense under 35 U.S.C. § 273.
Expert Opinions. Dr. Caroline Ashford's forthcoming expert report will include an opinion that the Lumicore internal documents do not disclose all elements of the asserted '015 claims, with a detailed claim-by-claim mapping. Additionally, Dr. Rajesh Sundaram's reliance on these uncorroborated documents in his invalidity opinion will be the subject of a separate Daubert challenge (draft-daubert-sundaram.docx), which we will coordinate with this summary judgment motion.
E. Anticipated Lumicore Opposition Arguments
We anticipate the following arguments from Lumicore in opposition to this motion:
Argument: Factual disputes exist regarding the dating and completeness of the internal documents. Lumicore may argue that the Court should deny summary judgment because there are factual disputes about when the documents were created and whether they disclose the full scope of the claimed invention. Our response: even viewing the evidence in the light most favorable to Lumicore, the prior-conception defense fails as a matter of law because (a) the AIA does not recognize a prior-conception defense, (b) internal unpublished documents are not prior art under § 102(a), and (c) even if the documents were dated correctly and legally cognizable, they do not disclose every element of the asserted claims. The factual disputes Lumicore may assert are immaterial to the legal conclusion.
Argument: Recharacterize the defense as an obviousness combination under § 103. Lumicore may attempt to recharacterize its prior-conception evidence as part of a broader obviousness argument, combining the internal documents with other published prior-art references. Our response: to the extent Lumicore seeks to rely on published prior-art references in an obviousness combination, those arguments are separate from the prior-conception defense and are not addressed by this motion. However, to the extent Lumicore seeks to use its own unpublished internal documents as part of a § 103 combination, those documents are not "prior art" under AIA § 102 and cannot form the basis for an obviousness rejection or invalidity defense.
Argument: Prior-user-rights defense under § 273. Lumicore may invoke the statutory prior-user-rights defense. Our response: § 273 requires "commercial use" of the subject matter in the United States before the effective filing date of the claimed invention. Lumicore's internal design documents do not constitute "commercial use." The statute requires that the person asserting the defense "commercially used the subject matter in the United States" or "made serious preparations therefor." 35 U.S.C. § 273(a)(1). There is no evidence that Lumicore commercially used the polarization-diverse grating coupler technology or made serious preparations for commercial use before April 7, 2017. The first commercial product incorporating this technology was launched in Q3 2022.
F. Recommendation.  We recommend filing a summary judgment motion on the validity of the '015 Patent, specifically targeting and eliminating Lumicore's prior-conception defense. The motion is well-grounded in both the legal framework of the AIA and the factual deficiencies of Lumicore's evidence. This motion does not address Lumicore's other invalidity contentions for the '015 Patent based on published prior-art references under §§ 102 and 103 — those contentions present factual disputes that are better resolved at trial with the benefit of expert testimony.
A draft motion has been prepared (see draft-psj-015-validity.docx) and will be finalized after expert reports are served and the Markman order is issued. We recommend coordinating this motion with the Daubert motion against Dr. Sundaram (draft-daubert-sundaram.docx, due November 1, 2025), which will challenge his reliance on the same uncorroborated internal documents that form the basis of the prior-conception defense. Together, the summary judgment motion and the Daubert motion will subject Lumicore's most prominent invalidity theory for the '015 Patent to a comprehensive two-pronged attack.
V. ANTICIPATED DEFENSE MOTION: SUMMARY JUDGMENT ON DOCTRINE OF EQUIVALENTS (PROSECUTION HISTORY ESTOPPEL)
A. Overview of Anticipated Motion
Based on Lumicore's discovery positions and the prosecution history of the '193 and '015 Patents, we anticipate that Lumicore will file a summary judgment motion seeking a ruling that OWS is barred from asserting infringement under the doctrine of equivalents ("DOE") for the following claims and limitations:
•  Claims 3 and 7 of the '193 Patent: DOE is asserted for the "coherent detection module" limitation, where the accused products employ a digital coherent receiver with DSP-assisted polarization recovery rather than the specific balanced receiver architecture recited in the claims as amended during prosecution.
•  Claim 12 of the '015 Patent: DOE is asserted for the "two-dimensional sub-wavelength grating" limitation, where the accused products employ a grating structure with a pitch-to-wavelength ratio that falls outside the literal claim scope as narrowed during prosecution but is functionally equivalent.
Lumicore's anticipated argument will be grounded in prosecution history estoppel under Festo Corp. v. Fenmore & Co., 535 U.S. 722 (2002). Under Festo, when a patent applicant narrows a claim during prosecution to overcome a prior-art rejection, a presumption arises that the patentee has surrendered the territory between the original claim scope and the amended claim scope. This presumption bars the patentee from recapturing the surrendered territory through the doctrine of equivalents. Because prosecution history estoppel is a question of law, id. at 733–34, Lumicore can properly raise this issue on summary judgment.
B. Prosecution History Background — '193 Patent
During prosecution of the '193 Patent, the examiner rejected the pending claims under 35 U.S.C. § 102 as anticipated by Takahashi et al., "Dense WDM Silicon Photonic MUX," published in IEEE Photonics Technology Letters in March 2014. The Takahashi reference disclosed a coherent optical transceiver on a silicon substrate with a detection module.
In response to the rejection, OWS's prosecution counsel — Dr. Martin Chu of Cascade IP Advisors, LLC — filed an amendment on behalf of OWS that narrowed the "coherent detection module" limitation. Specifically, the amendment added a structural requirement specifying a balanced receiver architecture to distinguish over Takahashi's unbalanced receiver design. The examiner subsequently allowed the amended claims.
Under Festo, this narrowing amendment, made for reasons of patentability (i.e., to overcome a § 102 rejection), creates a presumption that OWS surrendered the territory between the original broad "coherent detection module" limitation and the narrower "balanced receiver architecture" limitation. Lumicore will argue that this presumption bars DOE for Claims 3 and 7 with respect to the "coherent detection module" limitation, foreclosing OWS's argument that Lumicore's digital coherent receiver with DSP-assisted polarization recovery is an equivalent of the claimed balanced receiver.
C. Our Response Strategy — '193 Patent
The Festo presumption of prosecution history estoppel is rebuttable. The Supreme Court in Festo identified three circumstances under which the presumption can be overcome: (1) the equivalent was unforeseeable at the time of the amendment; (2) the rationale underlying the amendment bore only a tangential relation to the equivalent in question; and (3) there is some other reason suggesting the patentee could not reasonably have been expected to have described the insubstantial substitute in question. 535 U.S. at 740–41. We intend to assert the first two exceptions.
Tangential Relation Exception. This is our strongest argument. The amendment to the "coherent detection module" limitation was specifically directed at distinguishing over Takahashi's unbalanced receiver architecture. The amendment added a "balanced receiver" structural requirement to address the specific deficiency identified by the examiner — namely, that Takahashi's receiver lacked the balanced detection capability that reduces common-mode noise. The purpose of the amendment was narrow and specific: to distinguish balanced from unbalanced receiver designs.
Lumicore's accused equivalent, however, is not an unbalanced receiver. Rather, Lumicore's LumiLink and LumiEdge products employ a digital coherent receiver with DSP-assisted polarization recovery — a fundamentally different detection architecture that achieves polarization diversity through digital signal processing rather than through optical balancing. The digital coherent receiver is neither the balanced receiver recited in the amended claims nor the unbalanced receiver over which the amendment was made. It is a third category of detection architecture that was not the subject of the amendment.
Accordingly, the rationale underlying the amendment — distinguishing balanced from unbalanced receivers — bore only a tangential relation to the specific equivalent at issue: a digital coherent receiver with DSP-assisted polarization recovery. The patentee cannot reasonably be expected to have surrendered territory that was not related to the reason for the amendment. See Insituform Techs., Inc. v. Cat Contracting, Inc., 385 F.3d 1360, 1370 (Fed. Cir. 2004) (finding tangential relation where the amendment was directed to a different aspect of the limitation than the accused equivalent).
Unforeseeability Exception. At the time of the 2018–2019 prosecution of the '193 Patent, digital coherent receivers with the specific DSP architecture used in Lumicore's products were not commercially available or well-established in the silicon-photonics-on-chip context. This technology emerged as a practical solution for silicon photonic transceivers in 2020–2021, after the amendment was made. The unforeseeability of the specific equivalent further supports rebuttal of the Festo presumption. See Festo, 535 U.S. at 740 ("The equivalent may have been unforeseeable at the time of the application; the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question . . .").
Our internal prosecution history estoppel analysis memorandum (phe-analysis-193-patent.docx, dated October 10, 2024) provides a detailed treatment of both exceptions, including a chronological analysis of the state of the art at the time of the amendment and a technical comparison of the three receiver architectures (balanced, unbalanced, and digital coherent with DSP). Dr. Ashford's expert report will include a function-way-result analysis confirming that the accused digital coherent receiver performs substantially the same function (detecting and demodulating coherent optical signals), in substantially the same way (converting optical signals to electrical signals and recovering the transmitted data with polarization diversity), to achieve substantially the same result (high-bandwidth coherent detection with low error rate) as the claimed "coherent detection module" with balanced receiver architecture.
D. Prosecution History Background — '015 Patent
During prosecution of the '015 Patent, Claim 12 was rejected under 35 U.S.C. § 103 as obvious over a combination of the Bergmann patent (U.S. Patent No. 8,412,007, issued April 2, 2013) and the Simonsen PCT application (PCT/EP2015/071234, filed September 17, 2015). The Bergmann reference disclosed a grating coupler with a two-dimensional periodic structure, and the Simonsen reference disclosed a sub-wavelength grating with a specific pitch-to-wavelength ratio. The examiner concluded that it would have been obvious to combine the two references to arrive at the claimed two-dimensional sub-wavelength grating coupler.
In response, OWS (again through Dr. Martin Chu of Cascade IP Advisors, LLC) amended Claim 12 to narrow the "two-dimensional sub-wavelength grating" limitation by adding a specific pitch-to-wavelength ratio requirement. The amendment specified that the pitch of the grating features must fall within a defined ratio relative to the operating wavelength, thereby distinguishing over the Bergmann/Simonsen combination, which disclosed a different pitch-to-wavelength ratio. The examiner allowed the amended claim.
Lumicore will argue that this narrowing amendment creates Festo estoppel barring DOE for Claim 12, because OWS surrendered the territory between the original broader claim scope (any pitch-to-wavelength ratio) and the amended narrower scope (the specific ratio range).
E. Our Response Strategy — '015 Patent
Tangential Relation Exception. The amendment to Claim 12 was directed at a specific numerical pitch-to-wavelength ratio in order to distinguish over the specific ratio disclosed by the Bergmann/Simonsen combination. The focus of the amendment was on the particular numerical range of the prior-art combination, not on the broader concept of two-dimensional sub-wavelength gratings or grating-coupler pitch in general.
Lumicore's accused grating coupler uses a pitch-to-wavelength ratio that falls outside the literal claim scope — that is, outside the specific numerical range added during prosecution — but the ratio is very close to the boundary of the claimed range and is functionally equivalent. The amendment was focused on the Bergmann/Simonsen prior-art combination's specific ratio, which was substantially different from both the claimed range and the accused ratio. The accused ratio occupies territory between the claimed range and the prior art, closer to the claimed range than to the prior art. Accordingly, the rationale underlying the amendment — distinguishing the specific Bergmann/Simonsen ratio — bore only a tangential relation to the accused equivalent, which employs a nearly identical ratio falling just outside the literal claim boundary.
Function-Way-Result Analysis. The function-way-result test for the doctrine of equivalents is satisfied for Claim 12. Lumicore's accused grating coupler performs substantially the same function (coupling light of two orthogonal polarization states from an optical fiber to an on-chip waveguide), in substantially the same way (using a two-dimensional periodic structure with sub-wavelength features that diffract and redirect incident light into the waveguide mode for both polarization states), to achieve substantially the same result (efficient polarization-diverse coupling with low insertion loss and high coupling efficiency). The minor difference in pitch-to-wavelength ratio does not alter the fundamental function, way, or result of the grating coupler.
Our internal prosecution history estoppel analysis memorandum for the '015 Patent (phe-analysis-015-patent.docx, dated October 12, 2024) provides a detailed analysis. Dr. Ashford's expert report appendix (ashford-appendix-b-doe-analysis.docx) will include a comprehensive function-way-result analysis for Claim 12, supported by simulation data and technical comparison.
F. Risk Assessment
Prosecution history estoppel is a question of law for the Court, and if the Court finds that the Festo presumption applies and that no exception has been established, DOE is barred as a matter of law for the affected claims and limitations. We assess the risk of an adverse ruling as moderate.
The tangential-relation argument is our strongest basis for rebutting the Festo presumption, particularly for the '193 Patent where the amendment was clearly focused on the balanced-versus-unbalanced receiver distinction and Lumicore's products employ an entirely different architecture. The unforeseeability argument provides an independent basis for rebuttal. For the '015 Patent, the tangential-relation argument is somewhat weaker because the amendment was more directly related to the pitch-to-wavelength ratio, but the argument that the amendment was directed at the specific prior-art combination's ratio, not the broader pitch parameter, has support in the case law.
If DOE is barred for the affected claims, the impact is limited and manageable. We retain literal infringement theories for the remaining claims of the '193 Patent (Claims 1, 10, 15, and 18) and the '015 Patent (Claims 1, 5, 8, and 16). Only the DOE theories for Claims 3 and 7 of the '193 Patent and Claim 12