CALDERWOOD & HARKNESS LLP INTERNAL MEMORANDUM
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT PREPARED IN ANTICIPATION OF LITIGATION NOT FOR DISCLOSURE OUTSIDE THE FIRM
July 21, 2025
FROM: Wendy Schultz, Associate, Calderwood & Harkness LLP
TO: Alan Ngo, Responsible Partner; Marcus Delgado, Billing Partner
CC: Omar Siddiqui, Associate
RE: Preparation of Dr. Lawrence Keating for Deposition — Optiwave Semiconductor Corp. v. Lumicore Technologies, Inc., Case No. 2:24-cv-00319-JRG (E.D. Tex.)
PURPOSE: This memorandum addresses the preparation of plaintiff's damages expert, Dr. Lawrence Keating (Managing Director, Meridian Economic Consulting Group, LLC, 233 South Wacker Drive, Suite 4400, Chicago, IL 60606), for his deposition by defendant's counsel, Hawthorne Vega & Cruz LLP ("HVC"). The anticipated lead examiner is Catherine "Kate" Rourke or Darren Cho, both experienced patent litigators at HVC's Austin office. The deposition is expected to occur between late July and mid-August 2025, ahead of the August 15, 2025 expert discovery close set by Judge Gilstrap's scheduling order. This memorandum summarizes Dr. Keating's opinions, identifies anticipated lines of cross-examination, outlines preparation strategies, and addresses logistical and administrative matters for the team's reference.
Right-click to update Table of Contents
I. EXECUTIVE SUMMARY
Dr. Lawrence Keating's expert report on damages was served on June 15, 2025, in compliance with the Court's scheduling order. The report presents three distinct but complementary damages theories, each grounded in well-established Federal Circuit precedent and supported by extensive financial and economic analysis. The three theories are summarized as follows:
First, Dr. Keating calculates lost profits under the Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978), framework. Applying a bottom-up, customer-by-customer market-share displacement analysis, Dr. Keating concludes that Optiwave Semiconductor Corp. ("OWS") would have captured 38.2% of Lumicore Technologies, Inc.'s ("Lumicore") accused-product sales absent the infringement. Applying OWS's gross margin of 47.3% to the displaced revenue, Dr. Keating calculates lost profits of approximately $128.9 million.
Second, Dr. Keating calculates a reasonable royalty under the Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970), framework. This theory applies to the remaining 61.8% of Lumicore's accused-product sales — those sales to customers that OWS could not have captured due to vendor-approval restrictions, geographic limitations, or other competitive factors. Dr. Keating derives a royalty rate of 8.5%, supported by five comparable license agreements and a comprehensive analysis of all fifteen Georgia-Pacific factors. Applied to the non-lost-profit royalty base of approximately $441.6 million, this yields a reasonable royalty of approximately $37.5 million.
Third, Dr. Keating analyzes enhanced damages for willful infringement pursuant to 35 U.S.C. § 284 and the Read factors. Focusing on Lumicore's post-notice conduct (following FairPoint's January 15, 2023 licensing letter), Dr. Keating models enhancement scenarios at 1.5×, 2×, and 3× multipliers. As pled in the complaint, the total damages demand incorporates a selected willful-infringement enhancement component of approximately $43.6 million, yielding a total blended and rounded demand of approximately $210.0 million.
The total damages demand in the complaint is therefore approximately $210.0 million. Dr. Keating's report presents the range without enhancement ($166.4 million) and with various enhancement scenarios extending up to approximately $285 million in the most favorable case. The $210.0 million figure represents the primary demand incorporating lost profits, reasonable royalty, and a moderate enhancement component.
Anticipated Lines of Cross-Examination. Based on HVC's litigation posture, the defense theories advanced in Lumicore's answer and counterclaims, and the anticipated rebuttal opinions of Dr. Natasha Volkov (Pinnacle Analytics Partners LLP), we expect HVC to focus its cross-examination of Dr. Keating on the following areas:
(a) The 38.2% market-share displacement assumption underlying the lost-profits analysis, which HVC will characterize as inflated and speculative;
(b) Apportionment and the entire market value rule ("EMVR"), with HVC arguing that Dr. Keating should have used a disaggregated royalty base reflecting the smallest salable patent-practicing unit ("SSPPU") rather than the entire transceiver module price;
(c) The reasonable-royalty base and rate of 8.5%, which HVC will challenge as excessive and unsupported by truly comparable licenses;
(d) The hypothetical negotiation methodology, including the selected negotiation date of Q2 2022 and the assumptions regarding what the parties would have known and agreed to at that time;
(e) The selection and comparability of the five benchmark license agreements;
(f) The methodology for calculating enhanced damages for willful infringement, including the appropriateness of the Read factors analysis and the selected multiplier scenarios; and
(g) The underlying data sources and financial inputs, including the reliability of projected revenue figures, OWS's financial data, and Lumicore's production data.
Deposition Defense. The deposition will be defended by Alan Ngo as primary defending counsel. Marcus Delgado will serve as alternate defending counsel in the event of a scheduling conflict. Omar Siddiqui will attend to assist with document management, exhibit tracking, and real-time issue identification.
Key Goal. The overarching objective for Dr. Keating's deposition is to provide consistent, well-grounded testimony that reinforces the reliability and soundness of his methodology and the reasonableness of his conclusions. Dr. Keating must avoid concessions — whether through inadvertent agreement with HVC's characterizations, imprecise language, or overreaching beyond his area of expertise — that could support Lumicore's anticipated motion to exclude Dr. Keating's testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. Lumicore's Daubert motion deadline is November 1, 2025. Every question and answer at this deposition should be understood in that context: HVC is building its Daubert record, and Dr. Keating's testimony must be bulletproof.
II. BACKGROUND ON DR. KEATING AND RETENTION
A. Qualifications and Engagement
Dr. Lawrence Keating is a Managing Director at Meridian Economic Consulting Group, LLC, a nationally recognized economic consulting firm headquartered at 233 South Wacker Drive, Suite 4400, Chicago, Illinois 60606. Dr. Keating was retained by Calderwood & Harkness LLP on behalf of Optiwave Semiconductor Corp. pursuant to a retention agreement dated August 5, 2024. His standard hourly rate is $875 per hour, and the estimated budget for his engagement (including all consulting, report preparation, deposition, and anticipated trial testimony) is approximately $950,000. The retention agreement provides for monthly billing with net-30 payment terms.
Dr. Keating holds a Ph.D. in Economics from the University of Chicago, where his doctoral research focused on the economics of innovation and intellectual property licensing. He also holds an M.A. in Economics from the University of Chicago and a B.A. in Economics with honors from Northwestern University. Prior to joining Meridian in 2009, Dr. Keating held academic positions in the Department of Economics at the University of Virginia and as a visiting scholar at the Stanford Institute for Economic Policy Research. He has published extensively on topics related to intellectual property valuation, reasonable royalty determination, and patent damages methodology in peer-reviewed journals, including the Journal of Law and Economics, the Review of Economics and Statistics, and the Journal of Industrial Economics, as well as practitioner-focused publications.
Dr. Keating has served as a damages expert in more than forty patent cases across a range of technology sectors, with particular concentration in the semiconductor, telecommunications, and photonics industries. He has been qualified as an expert and has testified at trial in federal courts in the Eastern District of Texas, the District of Delaware, the Northern District of California, the Central District of California, and the Western District of Texas, as well as before the International Trade Commission. His testimony has been accepted in every instance in which a Daubert challenge has been raised, and no court has excluded his testimony. His curriculum vitae, which was attached as Exhibit 1 to his expert report, provides a complete listing of his publications, prior case engagements, and testimonial history.
Important Preparation Note: While Dr. Keating's qualifications are extensive and well-established, he should be prepared to defend them without overstating their scope. Dr. Keating is an economist, not a technical expert. He does not hold engineering degrees, and he does not purport to offer opinions on matters of patent claim construction, infringement analysis, or the technical functionality of the accused products. Those opinions rest with Dr. Caroline Ashford, the technical expert retained from the Northfield Institute of Technology. During the deposition, HVC may attempt to blur the line between economic and technical opinions to elicit inadmissible technical testimony or to create the impression that Dr. Keating lacks the foundation for his economic conclusions. Dr. Keating must be disciplined in staying within his lane.
B. Materials Reviewed
Dr. Keating's expert report identifies the full universe of materials he reviewed and relied upon in formulating his opinions. For purposes of this preparation memorandum, the most significant categories of materials are summarized below.
Dr. Keating's Own Report and Appendices. Dr. Keating's report, served June 15, 2025, runs 147 pages exclusive of appendices. It is supported by four appendices: Appendix A (Lost Profits Model, containing the Excel-based financial model); Appendix B (Georgia-Pacific Factor Analysis, addressing all fifteen factors); Appendix C (Royalty Rate Benchmarking, analyzing the five comparable licenses and industry rate data); and Appendix D (Willful Infringement Enhancement, presenting the Read factors analysis and multiplier scenarios). These materials constitute the primary documents with which Dr. Keating must demonstrate complete familiarity.
OWS Financial Data. Dr. Keating reviewed OWS's audited financial statements for fiscal years 2020 through 2023, prepared by Gresham & Whitfield LLP (San Jose, California office). For FY 2023, OWS reported total revenue of $487.3 million, net income of $61.4 million, and a gross margin on its silicon-photonics transceiver products that compete with the accused Lumicore products (specifically the OWS-400ZR and OWS-800XR modules) of 47.3%. Dr. Keating also reviewed OWS's internal cost accounting data, product-line revenue breakdowns, foundry partner agreements with respect to manufacturing capacity, and customer lists.
Lumicore Financial Data. Through discovery, Lumicore produced detailed product-level financial data, designated "Highly Confidential — Attorneys' Eyes Only" under the Court's three-tier protective order. This data included gross margins on the accused products ranging from 52.1% for the LumiLink 400G-ZR+ to 58.3% for the LumiEdge 1600G-LR, average selling prices by product and by quarter, and customer-by-customer revenue breakdowns for each accused product line. This data was critical to Dr. Keating's market-share displacement analysis and to his Georgia-Pacific analysis (particularly those factors relating to Lumicore's profitability and the value of the patented technology to the accused products).
Benchmark Semiconductor Analysis Teardown Reports. Dr. Keating reviewed independent third-party teardown reports prepared by Benchmark Semiconductor Analysis for the three accused product lines: LumiLink 400G-ZR+ (teardown dated December 12, 2022), LumiLink 800G-DR8 (teardown dated June 2023), and LumiEdge 1600G-LR (teardown dated February 2024). These reports identify the internal components and subsystems of each accused product and were relevant to Dr. Keating's apportionment analysis and to his assessment of the integration of patented features into the accused modules.
Other Expert Reports. Dr. Keating reviewed the infringement and validity reports of Dr. Caroline Ashford (Northfield Institute of Technology), served June 15, 2025, and the industry background report of Gregory Falk, also served June 15, 2025. Dr. Keating relied on specific conclusions from these reports as inputs to his damages model, as detailed in Section IX below.
Deposition Transcripts. Dr. Keating reviewed transcripts from four fact depositions: Dr. Sandra Michaud (Lumicore's Vice President of Engineering, deposed November 19, 2024), Raymond Bautista (Lumicore's Vice President of Business Development, deposed December 3, 2024), Angela Reeves (Lumicore's General Counsel, deposed December 10, 2024), and Kevin Ng (OWS's Chief Technology Officer, deposed January 7, 2025). Key admissions from these depositions are discussed in the relevant sections below.
FairPoint Licensing Correspondence. Dr. Keating reviewed the January 15, 2023 and May 15, 2023 letters from FairPoint Licensing LLC (OWS's licensing agent) to Lumicore, which form the basis for the post-notice willfulness analysis.
Comparable License Agreements. Dr. Keating reviewed five comparable license agreements, discussed in detail in Section III.B below.
Public Filings and Other Materials. Dr. Keating reviewed Lumicore's Form 10-K annual reports, quarterly reports, segment disclosures, SEC filings, analyst reports, press releases, and other publicly available information. He also reviewed Lumicore's invalidity contentions, served October 14, 2024, and the twenty-three prior-art references cited therein, to the extent relevant to understanding Lumicore's likely positions regarding patent strength at the hypothetical negotiation date.
III. OVERVIEW OF DR. KEATING'S DAMAGES OPINIONS
This section provides a detailed summary of each of Dr. Keating's three damages theories, as set forth in his expert report. The purpose is to ensure that the preparation team and Dr. Keating himself have a common and precise understanding of the analytical framework, key assumptions, and numerical conclusions that will be the subject of cross-examination.
A. Theory 1: Lost Profits (Panduit Analysis)
Dr. Keating's primary damages theory seeks lost profits under 35 U.S.C. § 284 and the four-factor framework established in Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978). The Federal Circuit has consistently held that a patent holder is entitled to lost profits if it can demonstrate: (1) demand for the patented product; (2) the absence of acceptable non-infringing substitutes; (3) the manufacturing and marketing capability to exploit that demand; and (4) the amount of profit it would have made. See also Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538 (Fed. Cir. 1995) (en banc).
Accused-Product Revenue. Dr. Keating calculates total projected accused-product revenue from Q3 2022 (the launch of the first accused product, the LumiLink 400G-ZR+) through the end of Q4 2025 (immediately prior to the scheduled February 2026 trial date) at approximately $714.6 million. This figure is derived from actual reported revenue through FY 2024 (refreshed in the February 2025 Damages Update Memorandum) and projected revenue for FY 2025 based on historical growth rates, publicly available analyst estimates, and Lumicore's own forward-looking statements in its SEC filings.
Market-Share Displacement Factor. Dr. Keating determines that OWS would have captured 38.2% of Lumicore's accused-product sales absent the infringement. This figure is derived from a bottom-up, customer-by-customer analysis of purchasing patterns, vendor-approval status, and competitive dynamics, rather than a top-down market-share extrapolation. The analysis is detailed in Appendix A of Dr. Keating's report and in the internal Market Share Displacement Analysis memorandum dated June 2024. The methodology and supporting evidence are discussed in greater detail in Section IV.A below.
Gross Margin. Dr. Keating applies OWS's gross margin of 47.3% on its competing transceiver products (the OWS-400ZR and OWS-800XR lines) to the displaced revenue. This margin is derived from OWS's audited financial statements and internal cost accounting data, which Dr. Keating independently verified against publicly available information and industry benchmarks.
Calculation. The lost-profits calculation is straightforward:
$714.6M (total accused-product revenue) × 38.2% (displacement factor) × 47.3% (gross margin) = approximately $128.9 million
Panduit Factor Analysis. Dr. Keating addresses each of the four Panduit factors as follows:
Factor 1 — Demand for the Patented Product. OWS reported total revenue of $487.3 million in FY 2023, of which approximately $310 million is attributable to products that practice one or more of the four asserted patents (U.S. Patent Nos. 10,342,562 ("the '562 Patent"), 10,891,847 ("the '847 Patent"), 11,156,193 ("the '193 Patent"), and 11,498,015 ("the '015 Patent")). OWS's products have been widely adopted by hyperscale data-center operators, telecommunications carriers, and cloud-service providers. The demand for silicon-photonics transceiver modules with the performance characteristics enabled by the patented technologies is substantial and well-documented. Dr. Keating cites market research data from Falk's industry report indicating that the total addressable market for 400G+ silicon-photonics transceiver modules was approximately $4.2 billion in 2023 and is projected to grow at a compound annual growth rate of 18–22%.
Factor 2 — Absence of Acceptable Non-Infringing Substitutes. Dr. Keating, relying on Dr. Ashford's technical analysis and Falk's industry report, identifies four potential alternative products that HVC might characterize as non-infringing substitutes. Dr. Keating concludes that each of these alternatives lacks key patented features — specifically, the waveguide multiplexer technology (covered by the '562 and '847 Patents), the thermal management micro-channel architecture (covered by the '193 Patent), or the polarization-diverse grating coupler design (covered by the '015 Patent) — that provide critical performance advantages in insertion loss, bandwidth density, and thermal stability. Without these features, the alternative products are not acceptable substitutes from the perspective of the hyperscale data-center customers who constitute the primary market for these modules. This conclusion is further supported by the deposition testimony of Dr. Sandra Michaud (Lumicore's VP of Engineering), who was unable to identify specific non-infringing design alternatives during her November 19, 2024 deposition.
Factor 3 — Manufacturing and Marketing Capability. OWS has established foundry partner relationships with sufficient manufacturing capacity to serve the displaced demand identified in the market-share displacement analysis. OWS's existing foundry agreements provide for scalable production of its OWS-400ZR and OWS-800XR transceiver modules, and OWS has demonstrated the ability to ramp production in response to customer demand. OWS also maintains an established sales and marketing infrastructure, including direct sales teams and channel partnerships, that covers the geographic markets served by Lumicore's accused products.
Factor 4 — Amount of Profit OWS Would Have Made. OWS's gross margin on its competing transceiver products is 47.3%, as documented in OWS's audited financial statements for FY 2023. Dr. Keating applies this margin to the displaced revenue to calculate the incremental profit OWS would have earned on the sales it lost due to Lumicore's infringement.
B. Theory 2: Reasonable Royalty (Georgia-Pacific Analysis)
For the 61.8% of Lumicore's accused-product sales that OWS cannot claim as lost profits — because those sales were made to customers where OWS was not an approved vendor, where geographic or supply-chain considerations would have prevented OWS from capturing the sale, or where other competitive dynamics weighed against displacement — Dr. Keating calculates a reasonable royalty under the Georgia-Pacific framework.
Royalty Base. The non-lost-profit accused-product revenue is calculated as:
$714.6M (total accused-product revenue) − ($714.6M × 38.2%) = approximately $441.6 million
This figure represents the accused-product revenue attributable to sales where lost profits cannot be proven but where infringement nonetheless occurred and a royalty is owed.
Proposed Royalty Rate. Dr. Keating derives a running royalty rate of 8.5%, based on a comprehensive analysis of all fifteen Georgia-Pacific factors and supported by five comparable license agreements. The rate falls at or near the midpoint of the industry range of 4.0% to 12.5% identified by Dr. Keating through his analysis of licensing practices in the silicon-photonics and related semiconductor markets.
Calculation. The reasonable royalty is:
$441.6M (non-lost-profit royalty base) × 8.5% (royalty rate) = approximately $37.5 million
Hypothetical Negotiation Date. Dr. Keating places the hypothetical negotiation between a willing licensor and a willing licensee in Q2 2022, immediately before the launch of Lumicore's first accused product (the LumiLink 400G-ZR+, which entered the market in Q3 2022). At that date, three of the four asserted patents — the '562 Patent (issued June 13, 2017), the '847 Patent (issued March 19, 2019), and the '193 Patent (issued January 12, 2021) — were fully issued and in force. The fourth patent, the '015 Patent, issued on August 2, 2022, but was pending as a published application at the hypothetical negotiation date, providing constructive notice of the scope of the claimed technology. Dr. Keating analyzes the hypothetical negotiation framework under established Federal Circuit precedent, including Lucent Technologies, Inc. v. Gateway, Inc., 580 F.3d 1301 (Fed. Cir. 2009), and VirnetX, Inc. v. Sterling Reach Holdings, 767 F.3d 1308 (Fed. Cir. 2014).
Georgia-Pacific Factor Analysis. Dr. Keating's Appendix B provides a detailed analysis of all fifteen Georgia-Pacific factors. While each factor is addressed in the report, certain factors are particularly significant and will likely be the focus of cross-examination:
• Factor 1 (Established Royalties): OWS has an established licensing program with three executed licenses (Terralink, NovaWave, Helix), providing direct evidence of the royalties OWS has accepted for the patented technology.
• Factor 2 (Rates Paid by Licensee for Comparable Patents): Lumicore has not entered into any patent license agreements for silicon-photonics transceiver technology, which Dr. Keating treats as a neutral factor.
• Factor 5 (Commercial Relationship): OWS and Lumicore are direct competitors in the silicon-photonics transceiver market. This factor pushes the royalty rate higher, as a patentee would demand a higher royalty from a direct competitor than from a non-competing licensee.
• Factor 8 (Established Profitability of the Patented Product): The accused products are highly profitable, with gross margins ranging from 52.1% to 58.3%, supporting a higher royalty rate.
• Factor 11 (Extent of Use): The patented features are core to the functionality and market appeal of the accused transceiver modules, not peripheral features.
• Factor 13 (Portion of Profit Attributable to the Invention): Dr. Keating attributes a substantial portion of the accused products' profitability to the patented technologies, supported by Falk's industry expert report and by Lumicore's own marketing materials, which specifically tout the performance features enabled by the patented innovations.
Comparable License Agreements. Dr. Keating relies on five comparable license agreements to anchor his 8.5% royalty rate:
1. OWS–Terralink Semiconductor License (2020): Running royalty rate of 6.5% on licensed revenue of approximately $45 million. This license covered a subset of the patents at issue in this case and involved a smaller portfolio. Dr. Keating treats this as a floor because the license involved fewer patents and a licensee with a smaller competitive overlap with OWS.
2. OWS–NovaWave Corp. License (2021): Running royalty rate of 9.0% on licensed revenue of approximately $22 million. This is the most directly comparable license: it involved three of the four asserted patents in this case and was negotiated under circumstances analogous to the hypothetical negotiation at issue. The higher rate reflects the stronger patent position and the closer competitive relationship.
3. OWS–Helix Integrated Photonics License (2022): Running royalty rate of 7.75% plus a $2.5 million upfront payment, on licensed revenue of approximately $68 million. This license involved similar silicon-photonics transceiver technology. The upfront payment component reflects the licensee's desire for certainty and reduced per-unit royalty exposure. Dr. Keating calculates the effective all-in rate at approximately 8.1% when the upfront payment is allocated across the licensed revenue.
4. Stratos Photonics v. ArcLight Systems Settlement (2019): Running royalty rate of 8.0%, reached as part of a post-litigation settlement in a silicon-photonics patent dispute. Dr. Keating treats this as an industry comparable that validates market rates for licenses involving similar technology.
5. Coreline Technologies v. Prisma Semiconductor Cross-License (2021): Effective royalty rate of 10.2%, derived from a cross-license agreement with a balancing payment. The higher effective rate reflects the strength of the licensor's patent position and the value attributed to the licensed technology. Dr. Keating adjusts this rate downward in his analysis to account for differences in the scope and context of the cross-license.
Dr. Keating identifies the relevant industry range as 4.0% to 12.5% and concludes that his proposed rate of 8.5% falls at or near the midpoint, appropriately reflecting the strength of OWS's patent portfolio, the competitive relationship between the parties, and the value of the patented technology to the accused products.
C. Theory 3: Enhanced Damages for Willful Infringement
Under 35 U.S.C. § 284, the Court may enhance damages up to three times the amount found or assessed in cases of willful infringement. Dr. Keating analyzes the financial impact of various enhancement scenarios, while making clear that the determination of willfulness is a legal question for the Court and jury.
Post-Notice Period. Dr. Keating identifies January 15, 2023, as the beginning of the post-notice period, based on the date of FairPoint Licensing LLC's first letter to Lumicore, which identified the '847, '193, and '562 Patents and specifically accused the LumiLink 400G-ZR+ of infringement. FairPoint's second letter, dated May 15, 2023, added the '015 Patent (which had issued on August 2, 2022) and additionally accused the LumiLink 800G-DR8. Despite receiving notice, Lumicore declined to negotiate on July 10, 2023 and proceeded to launch its third accused product, the LumiEdge 1600G-LR, in Q4 2023.
Post-Notice Lost Profits. Dr. Keating calculates that post-notice lost profits (i.e., lost profits attributable to the period from January 15, 2023 through the projected trial date) total approximately $109.2 million.
Read Factors Analysis. Dr. Keating's Appendix D presents an analysis of the Read factors, which courts in the Eastern District of Texas and the Federal Circuit use to evaluate the appropriateness of enhanced damages. See Read Corp. v. Portec, Inc., 970 F.2d 816, 826–27 (Fed. Cir. 1992). While acknowledging that the weighing of the Read factors is ultimately a legal determination, Dr. Keating quantifies the financial impact of enhancement under three multiplier scenarios: 1.5×, 2×, and 3×.
Enhancement Scenarios. Dr. Keating models multiple enhancement configurations, applying the multipliers to different damage bases (full lost profits, post-notice-only lost profits, and the reasonable royalty component). As pled in the complaint, the total damages demand of approximately $210.0 million incorporates a selected willful-infringement enhancement component of approximately $43.6 million, in addition to the $128.9 million in lost profits and the $37.5 million in reasonable royalty.
D. Aggregate Damages
Dr. Keating's aggregate damages opinions are summarized as follows:
Dr. Keating's report presents multiple scenarios yielding a range of damages outcomes:
• Without enhancement: $166.4 million (lost profits plus reasonable royalty only)
• With selected enhancement component (as pled): $210.0 million (blended and rounded)
• With full enhancement (best-case scenarios): $210.0 million to $285.0 million (depending on multiplier applied and base used)
The report is structured to provide the Court and jury with a range of supportable outcomes, while the complaint focuses on the $210.0 million demand as the primary figure.
IV. ANTICIPATED AREAS OF CROSS-EXAMINATION
This section identifies the primary areas where HVC is expected to focus its cross-examination of Dr. Keating, explains the nature of the anticipated challenges, and provides specific preparation points for Dr. Keating's responses. For each area, we also identify key documents that Dr. Keating should review in preparation.
A. Market-Share Displacement (38.2%)
1. Expected Challenge
HVC will almost certainly attack the 38.2% market-share displacement figure as the linchpin of Dr. Keating's lost-profits analysis. This figure drives the entire lost-profits calculation: if HVC can reduce or eliminate it, the lost-profits theory falls and the entire damages analysis shifts to the lower reasonable-royalty framework. We anticipate the following specific lines of attack:
Derivation and Methodology. HVC will press Dr. Keating to explain in granular detail how the 38.2% figure was derived. The figure is based on customer overlap data showing that OWS and Lumicore compete head-to-head at twelve of the top twenty hyperscale data-center operators in the United States, adjusted for customers where OWS is not currently an approved vendor and would not have been positioned to capture the sale even absent infringement. HVC will attempt to characterize this as a subjective, results-driven exercise rather than a rigorous economic analysis.
Additional Competitors. HVC will argue that additional competitors — beyond the four alternatives identified and dismissed in Dr. Keating's analysis — exist in the market and would have captured some portion of the displaced sales, reducing OWS's share. HVC may point to other transceiver manufacturers such as Sundial Corporation, Penmark Group (now Ridgeline & Co.), Quillon Industries, or other players in the 400G+ silicon-photonics space, and argue that these companies would have absorbed some of the demand that Dr. Keating attributes entirely to OWS.
Non-Infringing Alternatives. HVC will argue that non-infringing alternative products were available from other suppliers, undermining the second Panduit factor and, by extension, the displacement analysis. HVC may present Dr. Volkov's alternative analysis suggesting that certain products from third-party suppliers could serve as acceptable substitutes, even if they lack specific patented features, because customers prioritize other attributes such as price, delivery schedule, and vendor relationships.
2. Preparation Points for Dr. Keating
Dr. Keating should be thoroughly prepared to defend the 38.2% figure by emphasizing the rigor of his bottom-up methodology and the factual foundation for his conclusions:
Methodology. Dr. Keating should emphasize that the 38.2% figure was derived through a bottom-up, customer-by-customer analysis of actual purchasing patterns, vendor-approval status, and competitive dynamics at each of the relevant accounts. This is not a top-down market-share extrapolation based on aggregate industry data. Rather, Dr. Keating analyzed detailed customer-by-customer revenue data produced by Lumicore in discovery (AEO designated) and compared it against OWS's own customer lists and vendor-approval records. For each customer account, he assessed whether OWS was (a) an approved vendor, (b) actively competing for the customer's business, and (c) positioned to serve the customer's requirements in terms of product specifications, delivery timelines, and geographic coverage. The 38.2% figure represents only those sales where the evidence supports a reasonable inference that OWS would have captured the sale absent Lumicore's infringing entry.
OWS's Market Position. Dr. Keating should note that OWS is the third-largest U.S. supplier of silicon-photonics transceiver modules for hyperscale data centers, with 142 U.S. patents and a robust product line that directly competes with Lumicore's accused products. OWS's competing products — the OWS-400ZR, OWS-800XR, and OWS-1600DR — address the same customer requirements and the same market segments as Lumicore's LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR, respectively.
Customer Overlap. Dr. Keating should highlight that OWS already competes directly with Lumicore at twelve of the top twenty hyperscale data-center customers. This is not a speculative market entry scenario; OWS is an established competitor with existing customer relationships at the same accounts that Lumicore serves. The 38.2% figure reflects a conservative assessment of OWS's ability to capture additional sales from customers where it already has an approved-vendor relationship and an active competitive presence.
Non-Infringing Alternatives. When questioned about non-infringing alternatives, Dr. Keating should defer to Dr. Ashford's technical analysis regarding why the four identified alternative products lack key patented features that are critical to customer purchasing decisions. Dr. Keating's role is to apply the Panduit framework to economic data; the technical determination of whether particular products constitute acceptable non-infringing substitutes is outside his area of expertise and rests with Dr. Ashford. That said, Dr. Keating should note that the economic evidence — including customer purchasing data and competitive analysis in Falk's industry report — supports the conclusion that no acceptable non-infringing substitute existed that would have satisfied the performance requirements of the relevant customer base.
Dr. Michaud's Deposition Admission. Dr. Keating should be prepared to reference the deposition testimony of Dr. Sandra Michaud (Lumicore's VP of Engineering), taken on November 19, 2024, in which Dr. Michaud was unable to identify specific non-infringing design alternatives for the accused products. This testimony from Lumicore's own technical witness supports the second Panduit factor and reinforces the conclusion that acceptable non-infringing substitutes were not available.
The Remaining 61.8%. HVC will likely ask about the 61.8% of sales that Dr. Keating does not attribute to OWS in the displacement analysis. Dr. Keating should be prepared to explain clearly that these represent sales to customers where OWS was not an approved vendor, where geographic factors (e.g., customers served primarily through Lumicore's Asia-Pacific distribution channels) would have prevented OWS from capturing the sale, or where other competitive dynamics (e.g., established supply-chain relationships with Lumicore that predated the accused products) weighed against displacement. The reasonable royalty is applied precisely to this segment because, while OWS cannot prove it would have made these sales, Lumicore nonetheless infringed OWS's patents in making them and a royalty is owed.
3. Documents to Review
• Market Share Displacement Analysis (internal, June 2024)
• Dr. Michaud deposition transcript (November 19, 2024) — specifically passages where she could not identify non-infringing alternatives
• Falk industry report, particularly sections addressing the competitive landscape, customer purchasing patterns, and vendor-approval dynamics among hyperscale data-center operators
• Lumicore customer-by-customer revenue data (AEO designated), as produced in discovery and analyzed in Dr. Keating's Appendix A
• Dr. Keating Damages Report — Appendix A: Lost Profits Model
B. Apportionment and Entire Market Value Rule (EMVR)
1. Expected Challenge
Apportionment is one of the most actively litigated issues in patent damages law, and HVC will devote significant attention to challenging Dr. Keating's use of the entire accused-product revenue as the royalty base. The Federal Circuit has repeatedly emphasized that patent damages must be apportioned to reflect the value attributable to the patented features, as distinct from the value of unpatented features. See Uniloc USA, Inc. v. Kestrel Partners LLC, 632 F.3d 1292 (Fed. Cir. 2011); LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51 (Fed. Cir. 2012).
HVC's expected challenges in this area include:
Component vs. Module. HVC will argue that the patented features — the waveguide multiplexer (covered by the '562 and '847 Patents), the thermal management micro-channels (covered by the '193 Patent), and the polarization-diverse grating coupler (covered by the '015 Patent) — are only subsystems or components within a larger and more complex transceiver module. HVC will contend that the accused transceiver modules contain numerous unpatented features (e.g., the driver electronics, the control firmware, the fiber-optic connector assembly, the housing and thermal enclosure) that also contribute to customer demand and should not be included in the royalty base.
Smallest Salable Patent-Practicing Unit. HVC will contend that Dr. Keating should have identified and used the smallest salable patent-practicing unit ("SSPPU") rather than the module-level price as the royalty base. HVC may argue that the photonic integrated circuit ("PIC") within the transceiver module is the SSPPU, or that an even smaller subcomponent (e.g., the waveguide multiplexer die alone) should serve as the base.
Dr. Volkov's Anticipated Rebuttal. We anticipate that Dr. Natasha Volkov (Pinnacle Analytics Partners LLP) will present a rebuttal damages opinion that uses a disaggregated royalty base — likely based on the estimated cost or value of the PIC or the specific patented subsystems — that artificially reduces the royalty award. Dr. Volkov's approach will likely yield a total reasonable royalty in the range of $8 million to $15 million, compared to Dr. Keating's $37.5 million.
Federal Circuit Precedent. HVC may cite cases requiring proof that the patented feature "drives demand" for the entire product before the entire market value rule can be applied. See Versata Software, Inc. v. Hollowell & Co. Am., Inc., 717 F.3d 1255 (Fed. Cir. 2013); VirnetX, 767 F.3d at 1326.
2. Preparation Points for Dr. Keating
Dr. Keating should be prepared to address the apportionment challenge on multiple levels:
The Transceiver Module Is the SSPPU. Dr. Keating's primary position is that the accused transceiver modules (LumiLink 400G-ZR+, LumiLink 800G-DR8, LumiEdge 1600G-LR) are themselves the smallest salable patent-practicing units. The patented waveguide multiplexer, thermal management micro-channels, and polarization-diverse grating coupler subsystems are not sold separately as standalone products or components. They are fabricated directly onto the photonic integrated circuit and are physically and functionally inseparable from the transceiver module as a whole. Lumicore does not sell PICs, waveguide multiplexer dies, or thermal management subsystems as separate products; it sells complete transceiver modules. The module is the unit of commerce. This is not a case like Uniloc, where the patented feature was a minor software activation component within a vastly larger software suite; rather, the patented technologies are core subsystems that are integral to the module's functionality and that cannot be meaningfully separated from the product as sold.
The Patented Features Drive Customer Demand. Even under the EMVR's demand-driver test, Dr. Keating can demonstrate that the patented features are the basis for customer demand for the accused modules. Customers purchase these transceiver modules specifically because of the performance attributes enabled by the patented technologies — including low insertion loss (enabled by the waveguide multiplexer), high bandwidth density (enabled by the polarization-diverse grating coupler), and thermal stability (enabled by the thermal management micro-channels). These are not minor features; they are the competitive differentiators that distinguish Lumicore's accused products from commodity transceivers. This conclusion is supported by Gregory Falk's industry expert report on the commercial significance of the patented innovations, by evidence from Lumicore's own marketing materials (which specifically tout these performance features), and by customer communications produced in discovery indicating that these capabilities were decisive factors in purchasing decisions.
The 8.5% Rate Already Reflects Apportionment. Dr. Keating should be prepared to explain that even if the Court were to question the use of the module-level revenue as the royalty base, the 8.5% royalty rate itself already reflects apportionment. The rate was derived from comparable licenses covering similar component-level technology (not entire product portfolios), and the Georgia-Pacific analysis accounts for the relative contribution of the patented features to the overall value of the accused products. In other words, the rate and the base work together: a higher base with a lower rate can yield the same result as a lower base with a higher rate, and Dr. Keating's methodology produces the same effective dollar-per-unit royalty under either approach.
Distinguishing Precedent. Dr. Keating should be prepared to distinguish cases where the patented feature was a minor component of a much larger product — such as a small software feature within a large software platform, or a single component within a multi-function device — from this case, where the patents cover core functionality of the transceiver module and where the module itself is the smallest unit sold.
3. Documents to Review
• Apportionment Analysis Memorandum (internal, August 2024)
• Lumicore marketing materials for accused products (from Lumicore's document production), particularly materials highlighting performance attributes enabled by patented technologies
• Falk industry report sections on technology value drivers and the commercial significance of the patented innovations
• Benchmark Semiconductor Analysis teardown reports showing the integration of patented features into the accused transceiver module design
• Dr. Keating Damages Report — Appendix B: Georgia-Pacific Factor Analysis, particularly factors relating to the contribution of the patented features to the value of the accused products
C. Reasonable Royalty Rate (8.5%)
1. Expected Challenge
HVC will mount a sustained challenge to Dr. Keating's proposed 8.5% royalty rate. The reasonableness of the royalty rate is often the single most consequential variable in a Georgia-Pacific analysis, and even a small reduction in the rate (e.g., from 8.5% to 4.0%) would roughly halve the reasonable-royalty component of damages. We anticipate the following lines of attack:
Comparability of the License Agreements. HVC will argue that the five comparable licenses cited by Dr. Keating are distinguishable from the hypothetical license at issue in this case. Specific arguments will likely include: the OWS licenses involved different patent portfolios (not all of the same four patents); the licenses were negotiated under different market conditions and at different times; some licenses may have been influenced by litigation threats or litigation risk, making them unreliable indicators of arm's-length market value; the industry comparables (Stratos v. ArcLight; Coreline v. Prisma) involved different technologies, different parties, and different licensing contexts.
Portfolio vs. Per-Patent Rate. HVC may argue that certain of the comparable licenses covered broader patent portfolios (i.e., more patents), and that when the rates are broken down on a per-patent basis, the implied per-patent rate is significantly lower than the 8.5% that Dr. Keating proposes for four patents.
Dr. Volkov's Alternative Rate. Dr. Volkov is expected to propose a royalty rate in the range of 2% to 4%, based on different comparable licenses, a different methodology, or different weighting of the Georgia-Pacific factors. HVC will use Dr. Volkov's opinion to frame Dr. Keating's 8.5% rate as an outlier.
Arm's-Length Nature of OWS Licenses. HVC may challenge whether the OWS licenses (Terralink, NovaWave, Helix) were truly arm's-length negotiations or were influenced by actual or threatened litigation, making them unreliable indicators of what a willing licensee would agree to pay in the hypothetical negotiation.
2. Preparation Points for Dr. Keating
Dr. Keating should be prepared to walk through each comparable license in detail, explain its relevance, and address the adjustments he made to account for differences between each comparable and the hypothetical negotiation in this case:
OWS–Terralink Semiconductor (2020, 6.5%). This license involved a subset of the patents at issue in the present case and covered a licensee with a smaller competitive overlap with OWS. The lower rate of 6.5% reflects these differences — specifically, a smaller portfolio and lower commercial stakes. Dr. Keating treats this as a floor for the appropriate rate in this case.
OWS–NovaWave Corp. (2021, 9.0%). This is the most directly comparable license. It involved three of the four asserted patents and was negotiated under circumstances analogous to the hypothetical negotiation, including a similar competitive relationship and similar commercial context. The 9.0% rate reflects a stronger negotiating position for OWS due to proven infringement (the NovaWave license followed OWS's identification of infringing products). Dr. Keating notes that the 9.0% rate is above his proposed 8.5%, reflecting that in the hypothetical negotiation, a rational licensee might negotiate a slightly lower rate before infringement was proven.
OWS–Helix Integrated Photonics (2022, 7.75% + $2.5M upfront). This license involved similar silicon-photonics transceiver technology and a licensee of comparable size to Lumicore. The upfront payment component of $2.5 million reflects the licensee's desire for certainty and reduced per-unit royalty exposure. When the upfront payment is allocated across the licensed revenue of approximately $68 million, the effective all-in rate is approximately 8.1%. Dr. Keating treats this as strong support for a rate in the 8%–8.5% range.
Stratos Photonics v. ArcLight Systems (2019, 8.0%). This industry comparable involves a post-litigation settlement in a silicon-photonics patent dispute. While the specific patents and parties differ from this case, the technology and market context are sufficiently similar to serve as a meaningful benchmark. The 8.0% rate validates the general range of market rates for licenses involving silicon-photonics technology.
Coreline Technologies v. Prisma Semiconductor (2021, 10.2%). This cross-license agreement, which involved a balancing payment reflecting the asymmetric value of the licensed portfolios, yielded an effective rate of 10.2% for the stronger portfolio. While Dr. Keating acknowledges that cross-licenses present analytical complexities, he treats this agreement as a useful data point at the upper end of the range, and he adjusts the rate downward in his analysis to account for the differences in scope and context.
Industry Range. The industry range of 4.0% to 12.5% is derived from Dr. Keating's review of publicly available licensing data, litigation settlements, and industry surveys. The 8.5% rate falls at or near the midpoint of this range and is fully supported by the five comparables.
Hypothetical Negotiation Dynamics. Dr. Keating should emphasize that the hypothetical negotiation date of Q2 2022 represents a point of maximum leverage for OWS: OWS held four strong patents, Lumicore was about to launch its first accused product, and OWS could have threatened to seek injunctive relief. At the same time, Lumicore had projected strong demand for its products and faced significant commercial pressure to launch on schedule. These dynamics support a royalty rate at or above the midpoint of the industry range.
Georgia-Pacific Factors Pushing the Rate Higher. Several Georgia-Pacific factors support a rate above the midpoint, including: OWS's established licensing program (Factor 1); the competitive relationship between OWS and Lumicore (Factor 5); the high profitability of the accused products, with Lumicore's gross margins of 52.1% to 58.3% (Factor 8); the importance of the patented technology to the accused products (Factor 11); and the portion of profit attributable to the patented invention (Factor 13).
3. Documents to Review
• Comparable License Analysis (internal, July 2024)
• Dr. Keating Damages Report — Appendix B: Georgia-Pacific Factor Analysis
• Dr. Keating Damages Report — Appendix C: Royalty Rate Benchmarking
• Hypothetical Negotiation Scenario (internal, May 2024)
• Actual license agreements for all five comparables (as produced in discovery or obtained through public sources)
• Lumicore financial data regarding accused-product gross margins (AEO designated)
D. Hypothetical Negotiation Methodology
1. Expected Challenge
HVC will challenge the construct and assumptions of Dr. Keating's hypothetical negotiation analysis, seeking to undermine the foundation for his reasonable royalty opinion. Several specific lines of attack are anticipated:
Negotiation Date. HVC may challenge the selection of Q2 2022 as the hypothetical negotiation date. In particular, HVC may argue that one of the four asserted patents — the '015 Patent — had not yet issued at that date (it issued August 2, 2022) and was not specifically identified in the FairPoint licensing correspondence until the May 15, 2023 letter. HVC may contend that the hypothetical negotiation should either exclude the '015 Patent entirely or use a later negotiation date.
Available Information. HVC may challenge Dr. Keating's assumptions about what the willing licensor and willing licensee would have known and agreed to at the Q2 2022 negotiation date. HVC may argue that Dr. Keating's analysis unfairly imports hindsight knowledge of actual infringement, actual revenue, actual market acceptance, and actual competitive dynamics that were not known or foreseeable as of Q2 2022.
Invalidity Considerations. HVC may argue that at the hypothetical negotiation date, a rational licensee would have discounted the royalty rate to account for the risk that the patents might be found invalid — particularly given the twenty-three prior-art references cited in Lumicore's invalidity contentions. HVC may push Dr. Keating to concede that invalidity risk should reduce the rate.
2. Preparation Points for Dr. Keating
Q2 2022 Is the Correct Date. Dr. Keating should be firm that Q2 2022 is the appropriate hypothetical negotiation date under Federal Circuit precedent. The hypothetical negotiation is deemed to take place immediately before the first infringing sale. See Georgia-Pacific, 318 F. Supp. at 1120; Lucent, 580 F.3d at 1324. The first accused product, the LumiLink 400G-ZR+, was launched in Q3 2022. Q2 2022 is therefore the correct date.
Status of the '015 Patent at Q2 2022. At Q2 2022, the '015 Patent application was pending and had been published, providing constructive notice of the scope of the claimed technology. A willing licensor and willing licensee engaging in a hypothetical negotiation in Q2 2022 would have been aware of the pending application and would have anticipated its issuance. Licensing negotiations routinely encompass pending patent applications as well as issued patents, particularly where the application has been published and the claims are well-defined. Moreover, the '847 Patent, '193 Patent, and '562 Patent were all fully issued and in force at Q2 2022, providing a robust portfolio even without the '015 Patent.
Book of Wisdom. Dr. Keating should explain that the hypothetical negotiation framework explicitly permits the use of post-negotiation-date information — the "book of wisdom" — to inform the analysis of what the parties would have anticipated. See Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689 (1933); Fromson v. Western Litho Plate & Supply Co., 853 F.2d 1568, 1575 (Fed. Cir. 1988). The book of wisdom allows the fact-finder to consider what actually happened after the negotiation date, not to import hindsight bias, but to illuminate what the parties would have reasonably anticipated at the time. Dr. Keating's use of post-negotiation-date revenue data and market information is fully consistent with this well-established principle.
Invalidity Risk. If pressed on invalidity risk, Dr. Keating should acknowledge that a rational licensee would consider the possibility of invalidity when negotiating a license rate. However, he should note that his Georgia-Pacific analysis already accounts for this consideration through Factor 14 (the nature and scope of the patent), and that the hypothetical negotiation presumes a valid and infringed patent. See Riles v. Shell Exploration & Production Co., 298 F.3d 1302, 1312 (Fed. Cir. 2002). Dr. Keating should not speculate about the strength or weakness of specific invalidity arguments, which are outside his area of expertise.
E. Data Sources and Financial Inputs
1. Expected Challenge
HVC will probe the reliability and verification of the financial data underlying Dr. Keating's analysis. This line of questioning serves a dual purpose: it may support a Daubert challenge (arguing that Keating's opinions lack a reliable factual foundation) and it may undermine the credibility of specific numerical inputs to the damages calculation.
Revenue Projections. HVC will challenge the projected total accused-product revenue of $714.6 million through Q4 2025, arguing that projections for future periods are inherently speculative and unreliable. HVC may contend that only pre-filing revenue of approximately $378.2 million (through Q1 2024) is a reliable base, and that any projection beyond that date introduces unacceptable uncertainty.
Product-Line Revenue. HVC may challenge specific product-line revenue figures, questioning their sources, accuracy, and the assumptions underlying any allocations or estimates.
Independent Verification. HVC will attempt to characterize Dr. Keating as a passive recipient of financial data supplied by OWS's counsel, rather than an independent analyst who independently verified the data. If HVC can establish that Keating merely "plugged in" numbers provided by the client without independent scrutiny, it may support an argument that his opinions lack the foundation required by Daubert.
2. Preparation Points for Dr. Keating
Revenue Sources. Dr. Keating should be prepared to identify the specific sources for all revenue figures used in his analysis. For Lumicore's accused-product revenues, the figures are sourced from:
• Lumicore's Form 10-K annual reports and quarterly filings with the SEC, which report segment-level revenue;
• Lumicore's detailed product-line financial data produced in discovery pursuant to the Court's protective order (AEO designated), including customer-by-customer revenue breakdowns; and
• Publicly available analyst estimates and industry reports.
Specific accused-product revenue figures for FY 2023, as reflected in Dr. Keating's report, are:
For OWS's financial data, the figures are sourced from OWS's audited financial statements, prepared by Gresham & Whitfield LLP (San Jose, California office), which were independently reviewed and verified by Dr. Keating against publicly available information and industry benchmarks.
Projections. Revenue projections for FY 2025 (and the portion of the damages period extending beyond actual reported data) are based on historical growth rates observed in the accused-product lines, publicly available analyst consensus estimates, and Lumicore's own forward-looking statements in its SEC filings and investor presentations. Dr. Keating applied conservative assumptions and tested the sensitivity of his results to variations in projected growth rates. He also notes that if FY 2024 actual data has been refreshed (as it was in the February 2025 Damages Update Memorandum), the remaining projection period is limited and the uncertainty correspondingly reduced.
Independent Verification. Dr. Keating should affirmatively state that he independently analyzed and verified all data inputs used in his analysis. He did not merely accept counsel's representations. He cross-checked OWS's financial data against publicly available information (SEC filings, press releases, analyst reports) and against Lumicore's own discovery productions. He had independent access to all Lumicore financial data through the protective order's three-tier confidentiality framework. His team at Meridian Economic Consulting Group independently built and tested the financial models reflected in the appendices to his report.
FY 2024 Actuals. If challenged on the accuracy of revenue projections for FY 2024, Dr. Keating should note that the Damages Update Memorandum dated February 2025 refreshed the model with actual FY 2024 data, and that the updated figures were consistent with the projections in his original analysis, providing additional confidence in the methodology.
F. Willful Infringement Enhancement
1. Expected Challenge
HVC will vigorously contest any enhancement of damages for willful infringement. The enhancement component, while constituting approximately $43.6 million of the $210 million demand, is particularly contentious because it rests on a finding of willfulness — a determination that HVC will strenuously resist. Specific expected challenges include:
Read Factors. HVC will argue that the Read factors do not support enhancement. HVC may contend that Lumicore acted in good faith based on its reasonable belief that its products did not infringe and that the asserted patents were invalid.
Opinion Letters. HVC may argue that Lumicore obtained competent legal opinions from qualified patent counsel both before and after receiving FairPoint's notice letters, demonstrating a good-faith belief in non-infringement and invalidity. HVC may use this as evidence that Lumicore's conduct was not willful or egregious.
Post-Notice Period Start Date. HVC may challenge the January 15, 2023 date as the beginning of the post-notice period, arguing that FairPoint's initial letter did not provide sufficiently specific notice to trigger willful-infringement liability. HVC may argue that a later date — such as the date the complaint was filed or the date of the Court's claim construction order — is more appropriate.
2. Preparation Points for Dr. Keating
Scope of Keating's Role. Dr. Keating must be clear about the limited scope of his role regarding willful infringement. His report calculates the financial impact of various enhancement scenarios; it does not offer a legal