1014-00004 · Hawthorne Vega & Cruz LLP · Injunctive Relief

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CUSTOMER IMPACT DECLARATION TEMPLATE

CONFIDENTIAL — ATTORNEY WORK PRODUCT PREPARED BY CALDERWOOD & HARKNESS LLP FOR USE IN OPTIWAVE SEMICONDUCTOR CORP. V. LUMICORE TECHNOLOGIES, INC.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

DECLARATION OF [INSERT DECLARANT FULL NAME]

I. INTRODUCTORY PARAGRAPH AND IDENTIFICATION OF DECLARANT

I, [INSERT DECLARANT FULL NAME], hereby declare under penalty of perjury pursuant to 28 U.S.C. § 1746 as follows:

1. My name is [INSERT DECLARANT FULL NAME]. I am currently employed by Optiwave Semiconductor Corp. ("OWS" or the "Company") as [INSERT TITLE, e.g., Vice President of Sales / Regional Sales Director — [Region]]. My business address is 4810 Bayside Technology Parkway, Suite 300, Santa Clara, California 95054 [or, if applicable, insert regional office address].

[INSTRUCTION TO DECLARANT: This template is intended for use by Karen Whitfield (VP of Sales) and three regional sales directors. Each declarant should insert his or her specific name, title, and business address in the spaces indicated above. Regional sales directors should use their regional office addresses if different from the Santa Clara headquarters.]

2. I am over eighteen (18) years of age, am competent to testify in this matter, and make this declaration based upon my personal knowledge. If called as a witness, I could and would competently testify to the matters set forth herein. The statements in this declaration are true and correct to the best of my knowledge, information, and belief.

3. I submit this declaration in support of Plaintiff Optiwave Semiconductor Corp.'s request for permanent injunctive relief against Defendant Lumicore Technologies, Inc. ("Lumicore"), and in support of OWS's showing of irreparable harm under the four-factor framework established by the Supreme Court in Northgate Group v. MercExchange, L.L.C., 547 U.S. 388 (2006). This declaration also provides factual support for the lost-profits component of OWS's damages case, as quantified by OWS's damages expert, Dr. Lawrence Keating of Meridian Economic Consulting Group, LLC.

II. BACKGROUND AND QUALIFICATIONS

A. Professional Background

4. I have been employed by Optiwave Semiconductor Corp. since [INSERT START DATE], a period of approximately [INSERT NUMBER] years. During that time, I have held positions of increasing responsibility within OWS's sales organization, culminating in my current role as [INSERT CURRENT TITLE].

5. Prior to joining OWS, I was employed in the silicon-photonics transceiver and data-center interconnect industry for approximately [INSERT NUMBER] years. My prior experience includes [INSERT PRIOR RELEVANT EMPLOYMENT HISTORY, including company names, positions held, and approximate dates of employment]. Through these positions, I have developed extensive knowledge of the commercial dynamics of the optical transceiver market, including the procurement practices of hyperscale data-center operators, the competitive landscape among transceiver module suppliers, and the technical specifications and performance parameters that drive customer purchasing decisions.

6. I hold a [INSERT DEGREE(S)] from [INSERT INSTITUTION(S)]. [If applicable: I also hold the following professional certifications or qualifications: [INSERT].] My educational background and professional training have provided me with a thorough understanding of silicon-photonics technology and the products at issue in this litigation.

B. Role and Responsibilities

7. In my current role as [INSERT TITLE] at OWS, I am responsible for the management and oversight of customer accounts on a [global / national / regional — INSERT SCOPE] basis. My specific responsibilities include, but are not limited to, the following:

(a) Managing and maintaining relationships with OWS's key customer accounts, including hyperscale data-center operators, Tier 1 telecommunications carriers, and large-scale cloud service providers;

(b) Directing the sale of OWS's transceiver module product families, specifically including the OWS-400ZR, OWS-800XR, and OWS-1600DR product lines, which are the OWS products that compete directly with Lumicore's accused products in this litigation;

(c) Overseeing and participating in customer "design-in" processes — that is, the competitive evaluation and qualification processes by which hyperscale data-center operators and telecom customers select transceiver modules for integration into their network infrastructure and subsequent large-scale deployment;

(d) Monitoring competitive activity and market developments, including activity by Lumicore Technologies, Inc., and developing and executing competitive strategies to retain and grow OWS's market share;

(e) Preparing and approving pricing proposals, discount authorizations, and other commercial terms in connection with customer procurement activities; and

(f) Interacting regularly with customers who also purchase from, or are actively evaluating products manufactured by, Lumicore Technologies, Inc.

8. In my current role, I am directly responsible for [INSERT NUMBER] customer accounts, representing approximately $[INSERT AMOUNT] million in annual revenue to OWS. This figure encompasses revenue from all OWS product lines sold to the accounts under my purview, including the OWS-400ZR, OWS-800XR, and OWS-1600DR product lines at issue in this litigation.

9. OWS's total revenue for fiscal year 2023 was approximately $487.3 million. Of that total, I estimate that approximately $[INSERT AMOUNT] million, or [INSERT PERCENTAGE]%, was attributable to sales of the OWS-400ZR, OWS-800XR, and OWS-1600DR product families — the product lines that compete directly with Lumicore's accused LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR modules. The revenue generated by these product lines constitutes a substantial and material portion of OWS's overall business.

C. Familiarity with Competitive Landscape

10. Through my role at OWS, I have direct, personal knowledge of the competitive dynamics in the silicon-photonics transceiver market for hyperscale data centers. This market is characterized by a relatively small number of qualified suppliers competing for procurement contracts from a concentrated group of hyperscale data-center operators and major telecommunications carriers. Purchasing decisions in this market are driven by a combination of technical performance, reliability, qualification status, pricing, and the specific photonic-integration features offered by each supplier's product.

11. I am personally familiar with Lumicore Technologies, Inc. as a competitor to OWS in the silicon-photonics transceiver market. Specifically, I am familiar with Lumicore's accused product lines: the LumiLink 400G-ZR+, the LumiLink 800G-DR8, and the LumiEdge 1600G-LR modules. These products compete directly with OWS's OWS-400ZR, OWS-800XR, and OWS-1600DR product lines, respectively, for the same customer applications and procurement opportunities.

12. Based on my personal knowledge and experience, OWS and Lumicore compete head-to-head at a significant number of the top hyperscale data-center operators. Specifically, I am aware that both OWS and Lumicore are actively competing for business at twelve (12) of the top twenty (20) hyperscale data-center operators worldwide. Of those twelve accounts, seven (7) major hyperscale customers currently purchase transceiver modules from both OWS and Lumicore, creating direct, ongoing competitive encounters between the two companies' product lines. This overlap is a primary driver of the customer diversion, lost design-in opportunities, and price erosion that I describe in detail below.

III. SPECIFIC INSTANCES OF CUSTOMER DIVERSION

[INSTRUCTION TO DECLARANT: For each instance of customer diversion described below, provide the following details based on your personal knowledge: (1) the name of the customer (or, if subject to confidentiality restrictions, a coded identifier consistent with the Court's three-tier protective order: Confidential / Highly Confidential — Attorneys' Eyes Only / Highly Confidential — Source Code); (2) the customer's location, particularly noting if within the Eastern District of Texas (specifically Pinnacle Data Systems, LLC, Longview, TX; Frontier Cloud Services, Inc., marshall, TX; and CrossPoint Networking Corp., Plano, TX); (3) the specific OWS product(s) the customer was purchasing or evaluating (OWS-400ZR, OWS-800XR, and/or OWS-1600DR); (4) the specific Lumicore accused product(s) that diverted or displaced OWS's sale (LumiLink 400G-ZR+, LumiLink 800G-DR8, and/or LumiEdge 1600G-LR); (5) the approximate date(s) of the diversion event; (6) the approximate revenue or unit volume lost; and (7) any communications from the customer explaining the reason for switching to or selecting Lumicore (e.g., price, availability, or feature parity enabled by the allegedly infringing technology). Remove this instruction block before finalization.]

A. Overview of Customer Diversion

13. In the ordinary course of my duties at OWS, I have become personally aware of multiple specific instances in which customers that were purchasing, or were in the process of evaluating for purchase, OWS's transceiver module products diverted their procurement to Lumicore's accused products. Each of the instances described below is based on my personal knowledge and involvement in the relevant customer relationship and competitive engagement. I describe these instances below in chronological order.

B. Customer Diversion Instance 1

14. Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]

15. Customer Location: [INSERT CITY, STATE]

16. OWS Product Under Consideration or Previously Supplied: [INSERT PRODUCT, e.g., OWS-400ZR]

17. Lumicore Product Selected by Customer: [INSERT PRODUCT, e.g., LumiLink 400G-ZR+]

18. Timeframe of Diversion: [INSERT APPROXIMATE DATE, e.g., Q3 2023]

19. Estimated Revenue Impact to OWS: Approximately $[INSERT DOLLAR AMOUNT] in lost revenue, representing approximately [INSERT NUMBER] units of the [INSERT OWS PRODUCT] that OWS would have sold to this customer but for the diversion.

20. Description of Circumstances: [INSERT NARRATIVE PARAGRAPH. The paragraph should describe: (a) the nature and history of OWS's relationship with this customer, including the length of the relationship and prior product purchases; (b) the customer's stated procurement needs and the competitive evaluation process in which both OWS and Lumicore participated; (c) the specific events leading to the customer's decision to select Lumicore's product over OWS's product, including any side-by-side technical evaluations, sample testing, or benchmark comparisons; and (d) the impact of the diversion on OWS's sales and customer relationship.]

21. Customer Communications: [INSERT DESCRIPTION OF ANY RELEVANT COMMUNICATIONS. Reference any emails, RFQ responses, meeting notes, or verbal statements from the customer indicating the reason for selection of Lumicore's product. In particular, note any customer references to (a) Lumicore's price competitiveness relative to OWS, (b) specific technical features of Lumicore's product that the customer identified as differentiating factors, including any features corresponding to OWS's patented innovations (e.g., waveguide multiplexer architecture, thermal management solutions, grating coupler design, or coherent DSP integration), or (c) Lumicore's claim that its product offered performance parity with OWS's product at a lower price point.]

C. Customer Diversion Instance 2

22. Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]

23. Customer Location: [INSERT CITY, STATE]

24. OWS Product Under Consideration or Previously Supplied: [INSERT PRODUCT, e.g., OWS-800XR]

25. Lumicore Product Selected by Customer: [INSERT PRODUCT, e.g., LumiLink 800G-DR8]

26. Timeframe of Diversion: [INSERT APPROXIMATE DATE, e.g., Q1 2024]

27. Estimated Revenue Impact to OWS: Approximately $[INSERT DOLLAR AMOUNT] in lost revenue, representing approximately [INSERT NUMBER] units of the [INSERT OWS PRODUCT].

28. Description of Circumstances: [INSERT NARRATIVE PARAGRAPH describing the customer relationship, the competitive evaluation, and how Lumicore's product displaced OWS's product, following the same format as Instance 1 above.]

29. Customer Communications: [INSERT DESCRIPTION OF ANY RELEVANT COMMUNICATIONS from the customer indicating the reason for selection of Lumicore's product, following the same format as Instance 1 above.]

D. Customer Diversion Instance 3

30. Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]

31. Customer Location: [INSERT CITY, STATE]

32. OWS Product Under Consideration or Previously Supplied: [INSERT PRODUCT, e.g., OWS-1600DR]

33. Lumicore Product Selected by Customer: [INSERT PRODUCT, e.g., LumiEdge 1600G-LR]

34. Timeframe of Diversion: [INSERT APPROXIMATE DATE, e.g., Q2 2024]

35. Estimated Revenue Impact to OWS: Approximately $[INSERT DOLLAR AMOUNT] in lost revenue, representing approximately [INSERT NUMBER] units of the [INSERT OWS PRODUCT].

36. Description of Circumstances: [INSERT NARRATIVE PARAGRAPH describing the customer relationship, the competitive evaluation, and how Lumicore's product displaced OWS's product, following the same format as Instance 1 above.]

37. Customer Communications: [INSERT DESCRIPTION OF ANY RELEVANT COMMUNICATIONS from the customer indicating the reason for selection of Lumicore's product, following the same format as Instance 1 above.]

E. Additional Instances

[INSTRUCTION TO DECLARANT: Add additional subsections as needed using the same format set forth above. Sequentially number each additional instance (Instance 4, Instance 5, etc.) and continue the paragraph numbering accordingly. Each declarant should include as many specific instances of customer diversion as can be attested to from personal knowledge; at minimum, three to five instances should be documented per declarant. If additional instances are known but cannot be documented in detail by this declarant, note the existence of such instances and identify the OWS personnel with direct knowledge.]

IV. LOST DESIGN-IN OPPORTUNITIES

A. Explanation of the Design-In Process

38. In the silicon-photonics transceiver market for hyperscale data centers, the "design-in" process is the critical, multi-step competitive evaluation through which a customer selects a transceiver vendor's module for integration into its data-center infrastructure. The design-in process is the principal mechanism by which hyperscale operators and major telecommunications carriers identify, qualify, and approve transceiver modules for large-scale deployment across their networks.

39. The design-in process is rigorous and typically involves multiple phases, including initial technical evaluation, sample qualification testing, interoperability validation, field trials, and, ultimately, formal vendor qualification and placement on the customer's approved vendor list ("AVL"). From the initial request for proposal to final vendor selection, a design-in evaluation can span six to eighteen months or longer, depending on the customer and the complexity of the application.

40. Winning a design-in is of paramount commercial importance in this industry because it typically locks in a customer relationship for the full product lifecycle of the relevant transceiver generation — often a period of three to five years. Once a customer has completed the qualification process and integrated a vendor's module into its network architecture, the cost and complexity of switching to an alternative vendor are substantial. As a result, losing a design-in to a competitor creates lasting competitive harm that extends far beyond the immediate procurement cycle and that cannot be adequately remedied by an award of monetary damages alone.

41. OWS's product lines at issue in this litigation — the OWS-400ZR, OWS-800XR, and OWS-1600DR — embody the innovations protected by the patents asserted in this case: 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"). These patents cover core aspects of OWS's silicon-photonics platform, including, among other things, the waveguide multiplexer architecture, thermal management solutions, grating coupler designs, and coherent DSP integration techniques that are integral to the performance advantages of OWS's products. It is precisely these patented innovations that have historically differentiated OWS's products in design-in competitions and that have been misappropriated by Lumicore in its accused product lines.

B. Lost Design-In Instance 1

42. Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]

43. Customer Location: [INSERT CITY, STATE]

44. OWS Product Proposed for Design-In: [INSERT PRODUCT, e.g., OWS-800XR]

45. Lumicore Product That Won the Design-In: [INSERT PRODUCT, e.g., LumiLink 800G-DR8]

46. Timeframe: The design-in evaluation commenced on or about [INSERT APPROXIMATE START DATE] and the customer's selection decision was communicated to OWS on or about [INSERT APPROXIMATE DECISION DATE].

47. Estimated Multi-Year Revenue Impact to OWS: Approximately $[INSERT DOLLAR AMOUNT], covering the expected lifecycle procurement volume of approximately [INSERT NUMBER] units over a [INSERT NUMBER]-year deployment period.

48. Description of Circumstances: [INSERT NARRATIVE PARAGRAPH. The paragraph should describe: (a) OWS's participation in the design-in evaluation process, including the stages of evaluation in which OWS participated; (b) the competitive field, including whether Lumicore was the only other competitor or one of several; (c) the customer's evaluation criteria and the relative performance of OWS's and Lumicore's products during testing; (d) the customer's ultimate selection decision and the reasons communicated to OWS for that decision; and (e) the commercial consequences of the lost design-in, including the duration of the expected customer lock-in with Lumicore.]

49. Specific Technical or Pricing Factors Cited by the Customer: [INSERT DESCRIPTION. Reference any customer statements identifying specific features of Lumicore's product as differentiating factors in the design-in decision, including, for example, waveguide multiplexer performance, thermal management capabilities, grating coupler design efficiency, coherent DSP integration, or power consumption. Also reference any customer statements regarding Lumicore's pricing relative to OWS's pricing as a factor in the selection decision.]

50. Connection to OWS Patented Technology: [INSERT STATEMENT, if applicable, that the customer specifically identified features corresponding to OWS's patented innovations as differentiators in Lumicore's product. For example, if the customer stated that Lumicore's waveguide multiplexer architecture provided superior signal integrity in dense wavelength-division multiplexing applications — a feature covered by the '847 Patent — that statement should be described here.]

C. Lost Design-In Instance 2

51. Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]

52. Customer Location: [INSERT CITY, STATE]

53. OWS Product Proposed for Design-In: [INSERT PRODUCT, e.g., OWS-400ZR]

54. Lumicore Product That Won the Design-In: [INSERT PRODUCT, e.g., LumiLink 400G-ZR+]

55. Timeframe: The design-in evaluation commenced on or about [INSERT APPROXIMATE START DATE] and the customer's selection decision was communicated to OWS on or about [INSERT APPROXIMATE DECISION DATE].

56. Estimated Multi-Year Revenue Impact to OWS: Approximately $[INSERT DOLLAR AMOUNT], covering the expected lifecycle procurement volume of approximately [INSERT NUMBER] units over a [INSERT NUMBER]-year deployment period.

57. Description of Circumstances: [INSERT NARRATIVE PARAGRAPH describing OWS's participation in the design-in process, the competitive evaluation, and how Lumicore's accused product won the design-in, following the same format as Instance 1 above.]

58. Specific Technical or Pricing Factors Cited by the Customer: [INSERT DESCRIPTION, following the same format as Instance 1 above.]

59. Connection to OWS Patented Technology: [INSERT STATEMENT, if applicable, following the same format as Instance 1 above.]

D. Lost Design-In Instance 3

60. Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]

61. Customer Location: [INSERT CITY, STATE]

62. OWS Product Proposed for Design-In: [INSERT PRODUCT, e.g., OWS-1600DR]

63. Lumicore Product That Won the Design-In: [INSERT PRODUCT, e.g., LumiEdge 1600G-LR]

64. Timeframe: The design-in evaluation commenced on or about [INSERT APPROXIMATE START DATE] and the customer's selection decision was communicated to OWS on or about [INSERT APPROXIMATE DECISION DATE].

65. Estimated Multi-Year Revenue Impact to OWS: Approximately $[INSERT DOLLAR AMOUNT], covering the expected lifecycle procurement volume of approximately [INSERT NUMBER] units over a [INSERT NUMBER]-year deployment period.

66. Description of Circumstances: [INSERT NARRATIVE PARAGRAPH describing OWS's participation in the design-in process, the competitive evaluation, and how Lumicore's accused product won the design-in, following the same format as Instance 1 above.]

67. Specific Technical or Pricing Factors Cited by the Customer: [INSERT DESCRIPTION, following the same format as Instance 1 above.]

68. Connection to OWS Patented Technology: [INSERT STATEMENT, if applicable, following the same format as Instance 1 above.]

E. Additional Instances

[INSTRUCTION TO DECLARANT: Add additional subsections as needed using the same format set forth above. Sequentially number each additional instance and continue the paragraph numbering accordingly. Each declarant should include all lost design-in instances of which the declarant has personal knowledge.]

V. PRICE EROSION AND COMPETITIVE PRESSURE

A. Market Pricing Dynamics

69. In addition to the direct customer diversions and lost design-in opportunities described above, Lumicore's entry into the silicon-photonics transceiver market with products that incorporate OWS's patented technology has caused significant and ongoing price erosion that has directly harmed OWS's revenues, profitability, and competitive position.

70. Lumicore entered the market in the third quarter of 2022 with the launch of the LumiLink 400G-ZR+ module, and subsequently introduced the LumiLink 800G-DR8 and LumiEdge 1600G-LR modules. Since Lumicore's market entry, the average selling price ("ASP") of 400G-ZR transceiver modules — the product category most directly affected by Lumicore's initial competitive entry — has declined by approximately 18.7% from the third quarter of 2022 through the fourth quarter of 2023. Based on my personal knowledge and experience, this ASP decline is attributable in significant part to Lumicore's aggressive pricing of products that incorporate OWS's patented technology, which has enabled Lumicore to offer feature-competitive products at price points that undercut OWS and other competitors who do not benefit from the use of OWS's innovations.

71. Based on my personal knowledge and experience in managing customer accounts and negotiating pricing with OWS's customers, I can confirm that OWS has been forced to reduce prices and offer discounts on its OWS-400ZR, OWS-800XR, and OWS-1600DR product lines in order to retain customers and remain competitive in the face of Lumicore's pricing pressure. These pricing concessions have been a direct and unavoidable response to competition from Lumicore's accused products.

B. Specific Pricing Concessions

72. I describe below specific instances in which I personally authorized or was involved in the decision to reduce OWS's pricing or offer special commercial terms to retain a customer in the face of competition from Lumicore's accused products.

73. Pricing Concession Instance 1:

(a) Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]

(b) OWS Product: [INSERT PRODUCT]

(d) Original OWS Price Point: $[INSERT] per unit

(e) Reduced/Negotiated Price: $[INSERT] per unit

(f) Approximate Revenue Reduction Attributable to the Price Concession: $[INSERT], calculated based on the difference between the original and negotiated price points across the contracted volume of approximately [INSERT NUMBER] units.

(g) Date(s): [INSERT APPROXIMATE DATE(S)]

(h) Description: [INSERT BRIEF NARRATIVE describing the circumstances of the pricing concession, including any communications from the customer referencing Lumicore's competing offer or pricing.]

74. Pricing Concession Instance 2:

(a) Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]

(b) OWS Product: [INSERT PRODUCT]

(d) Original OWS Price Point: $[INSERT] per unit

(e) Reduced/Negotiated Price: $[INSERT] per unit

(f) Approximate Revenue Reduction Attributable to the Price Concession: $[INSERT]

(g) Date(s): [INSERT APPROXIMATE DATE(S)]

(h) Description: [INSERT BRIEF NARRATIVE describing the circumstances of the pricing concession.]

[INSTRUCTION TO DECLARANT: Add additional pricing concession instances as needed using the same format. Each instance should be based on the declarant's personal knowledge and involvement in the pricing decision.]

C. Impact on OWS's Overall Pricing Strategy

75. The competitive pricing pressure from Lumicore's accused products has not been limited to the specific customer accounts where Lumicore directly competed against OWS. Based on my personal experience and observations, Lumicore's aggressive pricing has forced OWS to adopt lower pricing across its broader customer base. Customers who are aware of Lumicore's pricing — whether or not they are actively evaluating Lumicore's products — have used Lumicore's market pricing as leverage in negotiations with OWS, demanding comparable price reductions as a condition of continued procurement.

76. This broad-based pricing pressure has had a material impact on OWS's gross margin on competing products. OWS's gross margin on the OWS-400ZR, OWS-800XR, and OWS-1600DR product lines was approximately 47.3% at the time of Lumicore's market entry. Based on my personal knowledge of pricing trends and the concessions that have been made across OWS's customer base, I am aware that this margin has been compressed, and I anticipate that continued competition from Lumicore's accused products — which are enabled by OWS's patented technology — will cause further margin erosion if Lumicore is not enjoined from the infringing activity.

VI. ONGOING AND FUTURE HARM

A. Pending Customer Evaluations

77. The harm caused by Lumicore's infringing products is not merely historical; it is ongoing and will continue into the future absent injunctive relief. Based on my personal knowledge, there are currently [INSERT NUMBER] active or upcoming design-in evaluations and procurement competitions in which Lumicore's accused products are competing against OWS's products. These pending opportunities involve [INSERT DESCRIPTION OF PENDING OPPORTUNITIES, including, to the extent known, customer names or coded identifiers, products under evaluation, and the approximate value of the pending procurement].

78. Each of these pending evaluations represents a significant opportunity at risk for OWS. If Lumicore is permitted to continue offering its accused products — products that incorporate OWS's patented technology — in these competitive engagements, OWS faces the prospect of additional customer diversion, additional lost design-ins, and further price erosion, compounding the harm already suffered.

B. Reputational and Market-Position Harm

79. Beyond the quantifiable revenue losses described above, Lumicore's use of OWS's patented technology in competing products has caused significant damage to OWS's market position and reputation as an innovator in the silicon-photonics transceiver market. OWS has invested hundreds of millions of dollars in research and development to create the patented innovations at issue in this case. These innovations are the foundation of OWS's competitive differentiation and are the reason that OWS has historically been recognized by customers as a technology leader in this space.

80. When a competitor such as Lumicore is able to offer products incorporating the same core innovations — without having made the substantial R&D investment required to develop those innovations — the value of OWS's technological differentiation is diminished in the eyes of customers. Customers who might otherwise recognize and reward OWS's innovation through premium pricing and design-in wins instead perceive OWS's technology as a commodity available from multiple sources, undermining OWS's ability to command the pricing and market position to which its innovation entitles it.

81. This reputational and market-position harm is exceedingly difficult to quantify through monetary damages. The erosion of a company's reputation as an innovator and technology leader operates over time and across a broad range of customer relationships and market perceptions in ways that cannot be captured by a simple calculation of lost sales or reduced margins.

C. Irreparability of Harm

82. Based on my personal knowledge and experience in the silicon-photonics transceiver market, I believe that the customer diversion, lost design-in opportunities, and price erosion described in this declaration represent harms that cannot be fully remedied by an award of monetary damages. Specifically:

(a) Multi-Year Customer Lock-In. As I explained above, lost design-ins result in multi-year customer lock-in with the winning vendor. Once a customer has qualified Lumicore's product and integrated it into its network infrastructure, the customer is committed to that vendor for the duration of the product lifecycle — typically three to five years. Even if this Court were to award OWS full monetary compensation for the initial lost design-in, the ongoing revenue from the locked-in customer relationship would continue to flow to Lumicore rather than OWS.

(b) Customer Switching Costs. Customers who have switched to Lumicore's products may not return to OWS even if infringement is established and damages are awarded. The substantial qualification and integration costs that customers incur when adopting a new transceiver platform create powerful inertia against switching back. In my experience, a customer that has switched to a competing vendor's product rarely reverses that decision, even when the original vendor offers a technologically superior product.

(c) Irreversible Price Erosion. Price erosion, once established in the market, is extremely difficult or impossible to reverse. Once customers have experienced lower pricing — even if that lower pricing was enabled by infringing technology — their expectations are permanently reset. Attempting to raise prices back to pre-competitive levels after a period of Lumicore-driven erosion would result in customer resistance, further competitive disadvantage, and potential loss of additional accounts.

(d) Cascading Effects on R&D Investment. Loss of market share and competitive position has cascading effects on OWS's ability to invest in future research and development. OWS funds its R&D activities in substantial part from the revenue and profits generated by the very product lines that Lumicore's infringement is targeting. As Lumicore captures OWS's customers and erodes OWS's margins, OWS's ability to invest in the next generation of silicon-photonics innovations is correspondingly diminished, creating a compounding cycle of competitive harm.

VII. SUMMARY OF HARM

83. In summary, the customer diversions, lost design-in opportunities, and pricing concessions described in this declaration have caused, and continue to cause, substantial and irreparable harm to Optiwave Semiconductor Corp.

84. Aggregate Revenue Impact. Across all instances described in this declaration, the total estimated revenue impact to OWS is approximately $[INSERT AGGREGATE FIGURE], consisting of approximately $[INSERT] in direct customer diversions (Section III), approximately $[INSERT] in lost design-in lifecycle revenue (Section IV), and approximately $[INSERT] in price erosion losses (Section V).

85. Total Customer Accounts Affected. The instances described in this declaration involve a total of [INSERT NUMBER] customer accounts.

86. Representative, Not Exhaustive. The instances described in this declaration are representative of the harm caused by Lumicore's infringing products and are not intended to be exhaustive. Based on my position within OWS's sales organization and my knowledge of other OWS sales personnel's customer accounts, I am aware of additional instances of customer diversion, lost design-ins, and price erosion attributable to Lumicore's accused products that may be attested to by other members of OWS's sales team. These additional instances further demonstrate the breadth and severity of the competitive harm caused by Lumicore's infringement.

87. Relationship to Expert Damages Analysis. I understand that OWS's damages expert, Dr. Lawrence Keating of Meridian Economic Consulting Group, LLC, has separately quantified OWS's damages in this action, including lost profits of approximately $128.9 million and a reasonable royalty of approximately $37.5 million. The factual testimony set forth in this declaration is offered to support the factual foundation of Dr. Keating's calculations and to provide the Court with first-hand evidence of the commercial impact of Lumicore's infringement from the perspective of an OWS sales professional with direct knowledge of the affected customer relationships.

VIII. VERIFICATION AND OATH

88. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

89. Executed on [INSERT DATE] at [INSERT CITY, STATE].

IX. SIGNATURE BLOCK

________________________________________

[INSERT DECLARANT FULL NAME] [INSERT TITLE] Optiwave Semiconductor Corp.

Date: ________

X. ATTORNEY CERTIFICATION AND FILING INFORMATION

This declaration was prepared by counsel for Plaintiff Optiwave Semiconductor Corp.:

Calderwood & Harkness LLP

Alan Ngo, Partner Wendy Schultz, Lead Associate 350 South Grand Avenue, 48th Floor Los Angeles, California 90071 Telephone: (213) 555-8400 Facsimile: (213) 555-8401

Case Reference: Optiwave Semiconductor Corp. v. Lumicore Technologies, Inc., Case No. 2:24-cv-00319-JRG, United States District Court for the Eastern District of Texas, marshall Division.

Filing Purpose: This declaration is to be filed as an exhibit in support of OWS's request for permanent injunctive relief and, where applicable, in support of the irreparable harm element under the four-factor framework established by the Supreme Court in Northgate Group v. MercExchange, L.L.C., 547 U.S. 388 (2006). This declaration may also be offered in support of the factual foundation for OWS's damages claims, including the lost-profits analysis prepared by Dr. Lawrence Keating of Meridian Economic Consulting Group, LLC.

Confidentiality Designations: Counsel and the declarant are advised that if any customer-specific information contained in this declaration or its attached exhibits is subject to the Stipulated Protective Order entered in this action, the declaration (or the portions thereof containing such information) should be filed under seal in accordance with the three-tier confidentiality framework established by the Court's order:

• Confidential: Information that the producing party has designated as confidential business information.

• Highly Confidential — Attorneys' Eyes Only: Information designated as requiring heightened protection, disclosed only to outside counsel, experts, and designated court personnel.

• Highly Confidential — Source Code: Information relating to proprietary source code or equivalent highly sensitive technical information.

Any motion to file under seal must comply with the Court's standing orders and the requirements of Local Rule CV-5(a)(7).

APPENDIX A — SUPPORTING DOCUMENTS

[INSTRUCTION TO DECLARANT: Attach as exhibits to this declaration any documentary evidence supporting the instances described herein. Supporting documents should include, but are not limited to, the following categories:]

1. Customer Correspondence. Emails, letters, and RFQ responses from customers referencing their selection of Lumicore's products over OWS's products, including any communications identifying the technical features or pricing advantages of Lumicore's products as factors in the customer's decision.

2. Internal OWS CRM Records. Customer relationship management ("CRM") records, sales pipeline reports, and opportunity tracking records reflecting lost opportunities attributable to competition from Lumicore's accused products.

3. Pricing Proposals and discount Approvals. Internal pricing proposals, discount authorization forms, and pricing exception requests that were submitted in response to competitive pressure from Lumicore's accused products.

4. Design-In Evaluation Materials. Design-in evaluation scorecards, customer feedback documents, qualification test reports, and related materials reflecting OWS's participation in and the outcome of design-in competitions where Lumicore's accused products were selected.

5. Market and Competitive intelligence. Internal OWS reports, competitive intelligence analyses, and market assessments documenting the impact of Lumicore's market entry and the competitive dynamics described in this declaration.

Each exhibit should be labeled sequentially as follows: Exhibit 1 to Declaration of [INSERT DECLARANT FULL NAME], Exhibit 2 to Declaration of [INSERT DECLARANT FULL NAME], and so forth.

[INSTRUCTION REGARDING CONFIDENTIALITY: All exhibits must be reviewed for confidentiality designations before filing. Customer-confidential materials, Lumicore-designated materials, and any documents bearing confidentiality designations under the Stipulated Protective Order must be treated in accordance with the applicable tier of the protective order. Exhibits containing Highly Confidential — Attorneys' Eyes Only or Highly Confidential — Source Code materials must be filed under seal with appropriate redactions in any publicly filed version.]

APPENDIX B — LIST OF AFFECTED CUSTOMER ACCOUNTS

The following table summarizes all instances of customer harm described in Sections III, IV, and V of this declaration:

[INSTRUCTION: This table should aggregate all instances described in Sections III (Customer Diversion), IV (Lost Design-In Opportunities), and V (Price Erosion and Competitive Pressure) of the declaration for ease of reference by the Court and counsel. Each row should correspond to a single instance described in the body of the declaration. Additional rows should be added as necessary to capture all instances. The "Type of Harm" column should identify whether the entry represents a customer diversion, a lost design-in, or a price erosion event (or a combination thereof). Customer names that are subject to the Stipulated Protective Order should be replaced with coded identifiers in any publicly filed version of this appendix.]

END OF DECLARATION TEMPLATE

Internal Note: This template is attorney work product prepared by Calderwood & Harkness LLP for Optiwave Semiconductor Corp. Each declarant — Karen Whitfield (VP of Sales) and three regional sales directors — should work with Wendy Schultz or Omar Siddiqui to customize this template with their specific factual knowledge before execution. All draft declarations should be reviewed and approved by Alan Ngo before finalization and execution by the declarant. The completed declarations are intended for use in support of OWS's permanent injunction request and irreparable harm showing under the Cascade Holdings framework, as well as to provide factual support for the lost-profits component of Dr. Lawrence Keating's damages analysis. All bracketed fields must be completed with specific factual information, and all instruction notes (in italics) must be removed before the declaration is finalized for execution and filing.

OPTIWAVE SEMICONDUCTOR CORP.,

Plaintiff,

Civil Action No. 2:24-cv-00319-JRG

Hon. James R. Gilstrap

LUMICORE TECHNOLOGIES, INC.,

Defendant.

No.	Customer Name	Location	OWS Product	Lumicore Product	Type of Harm	Approximate Date	Est. Revenue Impact
1	[Insert]	[Insert]	[Insert]	[Insert]	[Insert: Diversion / Lost Design-In / Price Erosion]	[Insert]	$[Insert]
2	[Insert]	[Insert]	[Insert]	[Insert]	[Insert: Diversion / Lost Design-In / Price Erosion]	[Insert]	$[Insert]
3	[Insert]	[Insert]	[Insert]	[Insert]	[Insert: Diversion / Lost Design-In / Price Erosion]	[Insert]	$[Insert]
4	[Insert]	[Insert]	[Insert]	[Insert]	[Insert: Diversion / Lost Design-In / Price Erosion]	[Insert]	$[Insert]
5	[Insert]	[Insert]	[Insert]	[Insert]	[Insert: Diversion / Lost Design-In / Price Erosion]	[Insert]	$[Insert]
6	[Insert]	[Insert]	[Insert]	[Insert]	[Insert: Diversion / Lost Design-In / Price Erosion]	[Insert]	$[Insert]
7	[Insert]	[Insert]	[Insert]	[Insert]	[Insert: Diversion / Lost Design-In / Price Erosion]	[Insert]	$[Insert]
8	[Insert]	[Insert]	[Insert]	[Insert]	[Insert: Diversion / Lost Design-In / Price Erosion]	[Insert]	$[Insert]
9	[Insert]	[Insert]	[Insert]	[Insert]	[Insert: Diversion / Lost Design-In / Price Erosion]	[Insert]	$[Insert]
10	[Insert]	[Insert]	[Insert]	[Insert]	[Insert: Diversion / Lost Design-In / Price Erosion]	[Insert]	$[Insert]
TOTAL	$[Insert Aggregate]

CUSTOMER IMPACT DECLARATION TEMPLATE
CONFIDENTIAL — ATTORNEY WORK PRODUCT PREPARED BY CALDERWOOD & HARKNESS LLP FOR USE IN OPTIWAVE SEMICONDUCTOR CORP. V. LUMICORE TECHNOLOGIES, INC.
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
DECLARATION OF [INSERT DECLARANT FULL NAME]
I. INTRODUCTORY PARAGRAPH AND IDENTIFICATION OF DECLARANT
I, [INSERT DECLARANT FULL NAME], hereby declare under penalty of perjury pursuant to 28 U.S.C. § 1746 as follows:
1.  My name is [INSERT DECLARANT FULL NAME]. I am currently employed by Optiwave Semiconductor Corp. ("OWS" or the "Company") as [INSERT TITLE, e.g., Vice President of Sales / Regional Sales Director — [Region]]. My business address is 4810 Bayside Technology Parkway, Suite 300, Santa Clara, California 95054 [or, if applicable, insert regional office address].
[INSTRUCTION TO DECLARANT: This template is intended for use by Karen Whitfield (VP of Sales) and three regional sales directors. Each declarant should insert his or her specific name, title, and business address in the spaces indicated above. Regional sales directors should use their regional office addresses if different from the Santa Clara headquarters.]
2.  I am over eighteen (18) years of age, am competent to testify in this matter, and make this declaration based upon my personal knowledge. If called as a witness, I could and would competently testify to the matters set forth herein. The statements in this declaration are true and correct to the best of my knowledge, information, and belief.
3.  I submit this declaration in support of Plaintiff Optiwave Semiconductor Corp.'s request for permanent injunctive relief against Defendant Lumicore Technologies, Inc. ("Lumicore"), and in support of OWS's showing of irreparable harm under the four-factor framework established by the Supreme Court in Northgate Group v. MercExchange, L.L.C., 547 U.S. 388 (2006). This declaration also provides factual support for the lost-profits component of OWS's damages case, as quantified by OWS's damages expert, Dr. Lawrence Keating of Meridian Economic Consulting Group, LLC.
II. BACKGROUND AND QUALIFICATIONS
A. Professional Background
4.  I have been employed by Optiwave Semiconductor Corp. since [INSERT START DATE], a period of approximately [INSERT NUMBER] years. During that time, I have held positions of increasing responsibility within OWS's sales organization, culminating in my current role as [INSERT CURRENT TITLE].
5.  Prior to joining OWS, I was employed in the silicon-photonics transceiver and data-center interconnect industry for approximately [INSERT NUMBER] years. My prior experience includes [INSERT PRIOR RELEVANT EMPLOYMENT HISTORY, including company names, positions held, and approximate dates of employment]. Through these positions, I have developed extensive knowledge of the commercial dynamics of the optical transceiver market, including the procurement practices of hyperscale data-center operators, the competitive landscape among transceiver module suppliers, and the technical specifications and performance parameters that drive customer purchasing decisions.
6.  I hold a [INSERT DEGREE(S)] from [INSERT INSTITUTION(S)]. [If applicable: I also hold the following professional certifications or qualifications: [INSERT].] My educational background and professional training have provided me with a thorough understanding of silicon-photonics technology and the products at issue in this litigation.
B. Role and Responsibilities
7.  In my current role as [INSERT TITLE] at OWS, I am responsible for the management and oversight of customer accounts on a [global / national / regional — INSERT SCOPE] basis. My specific responsibilities include, but are not limited to, the following:
(a) Managing and maintaining relationships with OWS's key customer accounts, including hyperscale data-center operators, Tier 1 telecommunications carriers, and large-scale cloud service providers;
(b) Directing the sale of OWS's transceiver module product families, specifically including the OWS-400ZR, OWS-800XR, and OWS-1600DR product lines, which are the OWS products that compete directly with Lumicore's accused products in this litigation;
(c) Overseeing and participating in customer "design-in" processes — that is, the competitive evaluation and qualification processes by which hyperscale data-center operators and telecom customers select transceiver modules for integration into their network infrastructure and subsequent large-scale deployment;
(d) Monitoring competitive activity and market developments, including activity by Lumicore Technologies, Inc., and developing and executing competitive strategies to retain and grow OWS's market share;
(e) Preparing and approving pricing proposals, discount authorizations, and other commercial terms in connection with customer procurement activities; and
(f) Interacting regularly with customers who also purchase from, or are actively evaluating products manufactured by, Lumicore Technologies, Inc.
8.  In my current role, I am directly responsible for [INSERT NUMBER] customer accounts, representing approximately $[INSERT AMOUNT] million in annual revenue to OWS. This figure encompasses revenue from all OWS product lines sold to the accounts under my purview, including the OWS-400ZR, OWS-800XR, and OWS-1600DR product lines at issue in this litigation.
9.  OWS's total revenue for fiscal year 2023 was approximately $487.3 million. Of that total, I estimate that approximately $[INSERT AMOUNT] million, or [INSERT PERCENTAGE]%, was attributable to sales of the OWS-400ZR, OWS-800XR, and OWS-1600DR product families — the product lines that compete directly with Lumicore's accused LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR modules. The revenue generated by these product lines constitutes a substantial and material portion of OWS's overall business.
C. Familiarity with Competitive Landscape
10.  Through my role at OWS, I have direct, personal knowledge of the competitive dynamics in the silicon-photonics transceiver market for hyperscale data centers. This market is characterized by a relatively small number of qualified suppliers competing for procurement contracts from a concentrated group of hyperscale data-center operators and major telecommunications carriers. Purchasing decisions in this market are driven by a combination of technical performance, reliability, qualification status, pricing, and the specific photonic-integration features offered by each supplier's product.
11.  I am personally familiar with Lumicore Technologies, Inc. as a competitor to OWS in the silicon-photonics transceiver market. Specifically, I am familiar with Lumicore's accused product lines: the LumiLink 400G-ZR+, the LumiLink 800G-DR8, and the LumiEdge 1600G-LR modules. These products compete directly with OWS's OWS-400ZR, OWS-800XR, and OWS-1600DR product lines, respectively, for the same customer applications and procurement opportunities.
12.  Based on my personal knowledge and experience, OWS and Lumicore compete head-to-head at a significant number of the top hyperscale data-center operators. Specifically, I am aware that both OWS and Lumicore are actively competing for business at twelve (12) of the top twenty (20) hyperscale data-center operators worldwide. Of those twelve accounts, seven (7) major hyperscale customers currently purchase transceiver modules from both OWS and Lumicore, creating direct, ongoing competitive encounters between the two companies' product lines. This overlap is a primary driver of the customer diversion, lost design-in opportunities, and price erosion that I describe in detail below.
III. SPECIFIC INSTANCES OF CUSTOMER DIVERSION
[INSTRUCTION TO DECLARANT: For each instance of customer diversion described below, provide the following details based on your personal knowledge: (1) the name of the customer (or, if subject to confidentiality restrictions, a coded identifier consistent with the Court's three-tier protective order: Confidential / Highly Confidential — Attorneys' Eyes Only / Highly Confidential — Source Code); (2) the customer's location, particularly noting if within the Eastern District of Texas (specifically Pinnacle Data Systems, LLC, Longview, TX; Frontier Cloud Services, Inc., marshall, TX; and CrossPoint Networking Corp., Plano, TX); (3) the specific OWS product(s) the customer was purchasing or evaluating (OWS-400ZR, OWS-800XR, and/or OWS-1600DR); (4) the specific Lumicore accused product(s) that diverted or displaced OWS's sale (LumiLink 400G-ZR+, LumiLink 800G-DR8, and/or LumiEdge 1600G-LR); (5) the approximate date(s) of the diversion event; (6) the approximate revenue or unit volume lost; and (7) any communications from the customer explaining the reason for switching to or selecting Lumicore (e.g., price, availability, or feature parity enabled by the allegedly infringing technology). Remove this instruction block before finalization.]
A. Overview of Customer Diversion
13.  In the ordinary course of my duties at OWS, I have become personally aware of multiple specific instances in which customers that were purchasing, or were in the process of evaluating for purchase, OWS's transceiver module products diverted their procurement to Lumicore's accused products. Each of the instances described below is based on my personal knowledge and involvement in the relevant customer relationship and competitive engagement. I describe these instances below in chronological order.
B. Customer Diversion Instance 1
14.  Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]
15.  Customer Location: [INSERT CITY, STATE]
16.  OWS Product Under Consideration or Previously Supplied: [INSERT PRODUCT, e.g., OWS-400ZR]
17.  Lumicore Product Selected by Customer: [INSERT PRODUCT, e.g., LumiLink 400G-ZR+]
18.  Timeframe of Diversion: [INSERT APPROXIMATE DATE, e.g., Q3 2023]
19.  Estimated Revenue Impact to OWS: Approximately $[INSERT DOLLAR AMOUNT] in lost revenue, representing approximately [INSERT NUMBER] units of the [INSERT OWS PRODUCT] that OWS would have sold to this customer but for the diversion.
20.  Description of Circumstances: [INSERT NARRATIVE PARAGRAPH. The paragraph should describe: (a) the nature and history of OWS's relationship with this customer, including the length of the relationship and prior product purchases; (b) the customer's stated procurement needs and the competitive evaluation process in which both OWS and Lumicore participated; (c) the specific events leading to the customer's decision to select Lumicore's product over OWS's product, including any side-by-side technical evaluations, sample testing, or benchmark comparisons; and (d) the impact of the diversion on OWS's sales and customer relationship.]
21.  Customer Communications: [INSERT DESCRIPTION OF ANY RELEVANT COMMUNICATIONS. Reference any emails, RFQ responses, meeting notes, or verbal statements from the customer indicating the reason for selection of Lumicore's product. In particular, note any customer references to (a) Lumicore's price competitiveness relative to OWS, (b) specific technical features of Lumicore's product that the customer identified as differentiating factors, including any features corresponding to OWS's patented innovations (e.g., waveguide multiplexer architecture, thermal management solutions, grating coupler design, or coherent DSP integration), or (c) Lumicore's claim that its product offered performance parity with OWS's product at a lower price point.]
C. Customer Diversion Instance 2
22.  Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]
23.  Customer Location: [INSERT CITY, STATE]
24.  OWS Product Under Consideration or Previously Supplied: [INSERT PRODUCT, e.g., OWS-800XR]
25.  Lumicore Product Selected by Customer: [INSERT PRODUCT, e.g., LumiLink 800G-DR8]
26.  Timeframe of Diversion: [INSERT APPROXIMATE DATE, e.g., Q1 2024]
27.  Estimated Revenue Impact to OWS: Approximately $[INSERT DOLLAR AMOUNT] in lost revenue, representing approximately [INSERT NUMBER] units of the [INSERT OWS PRODUCT].
28.  Description of Circumstances: [INSERT NARRATIVE PARAGRAPH describing the customer relationship, the competitive evaluation, and how Lumicore's product displaced OWS's product, following the same format as Instance 1 above.]
29.  Customer Communications: [INSERT DESCRIPTION OF ANY RELEVANT COMMUNICATIONS from the customer indicating the reason for selection of Lumicore's product, following the same format as Instance 1 above.]
D. Customer Diversion Instance 3
30.  Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]
31.  Customer Location: [INSERT CITY, STATE]
32.  OWS Product Under Consideration or Previously Supplied: [INSERT PRODUCT, e.g., OWS-1600DR]
33.  Lumicore Product Selected by Customer: [INSERT PRODUCT, e.g., LumiEdge 1600G-LR]
34.  Timeframe of Diversion: [INSERT APPROXIMATE DATE, e.g., Q2 2024]
35.  Estimated Revenue Impact to OWS: Approximately $[INSERT DOLLAR AMOUNT] in lost revenue, representing approximately [INSERT NUMBER] units of the [INSERT OWS PRODUCT].
36.  Description of Circumstances: [INSERT NARRATIVE PARAGRAPH describing the customer relationship, the competitive evaluation, and how Lumicore's product displaced OWS's product, following the same format as Instance 1 above.]
37.  Customer Communications: [INSERT DESCRIPTION OF ANY RELEVANT COMMUNICATIONS from the customer indicating the reason for selection of Lumicore's product, following the same format as Instance 1 above.]
E. Additional Instances
[INSTRUCTION TO DECLARANT: Add additional subsections as needed using the same format set forth above. Sequentially number each additional instance (Instance 4, Instance 5, etc.) and continue the paragraph numbering accordingly. Each declarant should include as many specific instances of customer diversion as can be attested to from personal knowledge; at minimum, three to five instances should be documented per declarant. If additional instances are known but cannot be documented in detail by this declarant, note the existence of such instances and identify the OWS personnel with direct knowledge.]
IV. LOST DESIGN-IN OPPORTUNITIES
A. Explanation of the Design-In Process
38.  In the silicon-photonics transceiver market for hyperscale data centers, the "design-in" process is the critical, multi-step competitive evaluation through which a customer selects a transceiver vendor's module for integration into its data-center infrastructure. The design-in process is the principal mechanism by which hyperscale operators and major telecommunications carriers identify, qualify, and approve transceiver modules for large-scale deployment across their networks.
39.  The design-in process is rigorous and typically involves multiple phases, including initial technical evaluation, sample qualification testing, interoperability validation, field trials, and, ultimately, formal vendor qualification and placement on the customer's approved vendor list ("AVL"). From the initial request for proposal to final vendor selection, a design-in evaluation can span six to eighteen months or longer, depending on the customer and the complexity of the application.
40.  Winning a design-in is of paramount commercial importance in this industry because it typically locks in a customer relationship for the full product lifecycle of the relevant transceiver generation — often a period of three to five years. Once a customer has completed the qualification process and integrated a vendor's module into its network architecture, the cost and complexity of switching to an alternative vendor are substantial. As a result, losing a design-in to a competitor creates lasting competitive harm that extends far beyond the immediate procurement cycle and that cannot be adequately remedied by an award of monetary damages alone.
41.  OWS's product lines at issue in this litigation — the OWS-400ZR, OWS-800XR, and OWS-1600DR — embody the innovations protected by the patents asserted in this case: 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"). These patents cover core aspects of OWS's silicon-photonics platform, including, among other things, the waveguide multiplexer architecture, thermal management solutions, grating coupler designs, and coherent DSP integration techniques that are integral to the performance advantages of OWS's products. It is precisely these patented innovations that have historically differentiated OWS's products in design-in competitions and that have been misappropriated by Lumicore in its accused product lines.
B. Lost Design-In Instance 1
42.  Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]
43.  Customer Location: [INSERT CITY, STATE]
44.  OWS Product Proposed for Design-In: [INSERT PRODUCT, e.g., OWS-800XR]
45.  Lumicore Product That Won the Design-In: [INSERT PRODUCT, e.g., LumiLink 800G-DR8]
46.  Timeframe: The design-in evaluation commenced on or about [INSERT APPROXIMATE START DATE] and the customer's selection decision was communicated to OWS on or about [INSERT APPROXIMATE DECISION DATE].
47.  Estimated Multi-Year Revenue Impact to OWS: Approximately $[INSERT DOLLAR AMOUNT], covering the expected lifecycle procurement volume of approximately [INSERT NUMBER] units over a [INSERT NUMBER]-year deployment period.
48.  Description of Circumstances: [INSERT NARRATIVE PARAGRAPH. The paragraph should describe: (a) OWS's participation in the design-in evaluation process, including the stages of evaluation in which OWS participated; (b) the competitive field, including whether Lumicore was the only other competitor or one of several; (c) the customer's evaluation criteria and the relative performance of OWS's and Lumicore's products during testing; (d) the customer's ultimate selection decision and the reasons communicated to OWS for that decision; and (e) the commercial consequences of the lost design-in, including the duration of the expected customer lock-in with Lumicore.]
49.  Specific Technical or Pricing Factors Cited by the Customer: [INSERT DESCRIPTION. Reference any customer statements identifying specific features of Lumicore's product as differentiating factors in the design-in decision, including, for example, waveguide multiplexer performance, thermal management capabilities, grating coupler design efficiency, coherent DSP integration, or power consumption. Also reference any customer statements regarding Lumicore's pricing relative to OWS's pricing as a factor in the selection decision.]
50.  Connection to OWS Patented Technology: [INSERT STATEMENT, if applicable, that the customer specifically identified features corresponding to OWS's patented innovations as differentiators in Lumicore's product. For example, if the customer stated that Lumicore's waveguide multiplexer architecture provided superior signal integrity in dense wavelength-division multiplexing applications — a feature covered by the '847 Patent — that statement should be described here.]
C. Lost Design-In Instance 2
51.  Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]
52.  Customer Location: [INSERT CITY, STATE]
53.  OWS Product Proposed for Design-In: [INSERT PRODUCT, e.g., OWS-400ZR]
54.  Lumicore Product That Won the Design-In: [INSERT PRODUCT, e.g., LumiLink 400G-ZR+]
55.  Timeframe: The design-in evaluation commenced on or about [INSERT APPROXIMATE START DATE] and the customer's selection decision was communicated to OWS on or about [INSERT APPROXIMATE DECISION DATE].
56.  Estimated Multi-Year Revenue Impact to OWS: Approximately $[INSERT DOLLAR AMOUNT], covering the expected lifecycle procurement volume of approximately [INSERT NUMBER] units over a [INSERT NUMBER]-year deployment period.
57.  Description of Circumstances: [INSERT NARRATIVE PARAGRAPH describing OWS's participation in the design-in process, the competitive evaluation, and how Lumicore's accused product won the design-in, following the same format as Instance 1 above.]
58.  Specific Technical or Pricing Factors Cited by the Customer: [INSERT DESCRIPTION, following the same format as Instance 1 above.]
59.  Connection to OWS Patented Technology: [INSERT STATEMENT, if applicable, following the same format as Instance 1 above.]
D. Lost Design-In Instance 3
60.  Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]
61.  Customer Location: [INSERT CITY, STATE]
62.  OWS Product Proposed for Design-In: [INSERT PRODUCT, e.g., OWS-1600DR]
63.  Lumicore Product That Won the Design-In: [INSERT PRODUCT, e.g., LumiEdge 1600G-LR]
64.  Timeframe: The design-in evaluation commenced on or about [INSERT APPROXIMATE START DATE] and the customer's selection decision was communicated to OWS on or about [INSERT APPROXIMATE DECISION DATE].
65.  Estimated Multi-Year Revenue Impact to OWS: Approximately $[INSERT DOLLAR AMOUNT], covering the expected lifecycle procurement volume of approximately [INSERT NUMBER] units over a [INSERT NUMBER]-year deployment period.
66.  Description of Circumstances: [INSERT NARRATIVE PARAGRAPH describing OWS's participation in the design-in process, the competitive evaluation, and how Lumicore's accused product won the design-in, following the same format as Instance 1 above.]
67.  Specific Technical or Pricing Factors Cited by the Customer: [INSERT DESCRIPTION, following the same format as Instance 1 above.]
68.  Connection to OWS Patented Technology: [INSERT STATEMENT, if applicable, following the same format as Instance 1 above.]
E. Additional Instances
[INSTRUCTION TO DECLARANT: Add additional subsections as needed using the same format set forth above. Sequentially number each additional instance and continue the paragraph numbering accordingly. Each declarant should include all lost design-in instances of which the declarant has personal knowledge.]
V. PRICE EROSION AND COMPETITIVE PRESSURE
A. Market Pricing Dynamics
69.  In addition to the direct customer diversions and lost design-in opportunities described above, Lumicore's entry into the silicon-photonics transceiver market with products that incorporate OWS's patented technology has caused significant and ongoing price erosion that has directly harmed OWS's revenues, profitability, and competitive position.
70.  Lumicore entered the market in the third quarter of 2022 with the launch of the LumiLink 400G-ZR+ module, and subsequently introduced the LumiLink 800G-DR8 and LumiEdge 1600G-LR modules. Since Lumicore's market entry, the average selling price ("ASP") of 400G-ZR transceiver modules — the product category most directly affected by Lumicore's initial competitive entry — has declined by approximately 18.7% from the third quarter of 2022 through the fourth quarter of 2023. Based on my personal knowledge and experience, this ASP decline is attributable in significant part to Lumicore's aggressive pricing of products that incorporate OWS's patented technology, which has enabled Lumicore to offer feature-competitive products at price points that undercut OWS and other competitors who do not benefit from the use of OWS's innovations.
71.  Based on my personal knowledge and experience in managing customer accounts and negotiating pricing with OWS's customers, I can confirm that OWS has been forced to reduce prices and offer discounts on its OWS-400ZR, OWS-800XR, and OWS-1600DR product lines in order to retain customers and remain competitive in the face of Lumicore's pricing pressure. These pricing concessions have been a direct and unavoidable response to competition from Lumicore's accused products.
B. Specific Pricing Concessions
72.  I describe below specific instances in which I personally authorized or was involved in the decision to reduce OWS's pricing or offer special commercial terms to retain a customer in the face of competition from Lumicore's accused products.
73.  Pricing Concession Instance 1:
(a) Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]
(b) OWS Product: [INSERT PRODUCT]
(c) Competing Lumicore Product: [INSERT PRODUCT]
(d) Original OWS Price Point: $[INSERT] per unit
(e) Reduced/Negotiated Price: $[INSERT] per unit
(f) Approximate Revenue Reduction Attributable to the Price Concession: $[INSERT], calculated based on the difference between the original and negotiated price points across the contracted volume of approximately [INSERT NUMBER] units.
(g) Date(s): [INSERT APPROXIMATE DATE(S)]
(h) Description: [INSERT BRIEF NARRATIVE describing the circumstances of the pricing concession, including any communications from the customer referencing Lumicore's competing offer or pricing.]
74.  Pricing Concession Instance 2:
(a) Customer Name: [INSERT CUSTOMER NAME OR CONFIDENTIAL IDENTIFIER]
(b) OWS Product: [INSERT PRODUCT]
(c) Competing Lumicore Product: [INSERT PRODUCT]
(d) Original OWS Price Point: $[INSERT] per unit
(e) Reduced/Negotiated Price: $[INSERT] per unit
(f) Approximate Revenue Reduction Attributable to the Price Concession: $[INSERT]
(g) Date(s): [INSERT APPROXIMATE DATE(S)]
(h) Description: [INSERT BRIEF NARRATIVE describing the circumstances of the pricing concession.]
[INSTRUCTION TO DECLARANT: Add additional pricing concession instances as needed using the same format. Each instance should be based on the declarant's personal knowledge and involvement in the pricing decision.]
C. Impact on OWS's Overall Pricing Strategy
75.  The competitive pricing pressure from Lumicore's accused products has not been limited to the specific customer accounts where Lumicore directly competed against OWS. Based on my personal experience and observations, Lumicore's aggressive pricing has forced OWS to adopt lower pricing across its broader customer base. Customers who are aware of Lumicore's pricing — whether or not they are actively evaluating Lumicore's products — have used Lumicore's market pricing as leverage in negotiations with OWS, demanding comparable price reductions as a condition of continued procurement.
76.  This broad-based pricing pressure has had a material impact on OWS's gross margin on competing products. OWS's gross margin on the OWS-400ZR, OWS-800XR, and OWS-1600DR product lines was approximately 47.3% at the time of Lumicore's market entry. Based on my personal knowledge of pricing trends and the concessions that have been made across OWS's customer base, I am aware that this margin has been compressed, and I anticipate that continued competition from Lumicore's accused products — which are enabled by OWS's patented technology — will cause further margin erosion if Lumicore is not enjoined from the infringing activity.
VI. ONGOING AND FUTURE HARM
A. Pending Customer Evaluations
77.  The harm caused by Lumicore's infringing products is not merely historical; it is ongoing and will continue into the future absent injunctive relief. Based on my personal knowledge, there are currently [INSERT NUMBER] active or upcoming design-in evaluations and procurement competitions in which Lumicore's accused products are competing against OWS's products. These pending opportunities involve [INSERT DESCRIPTION OF PENDING OPPORTUNITIES, including, to the extent known, customer names or coded identifiers, products under evaluation, and the approximate value of the pending procurement].
78.  Each of these pending evaluations represents a significant opportunity at risk for OWS. If Lumicore is permitted to continue offering its accused products — products that incorporate OWS's patented technology — in these competitive engagements, OWS faces the prospect of additional customer diversion, additional lost design-ins, and further price erosion, compounding the harm already suffered.
B. Reputational and Market-Position Harm
79.  Beyond the quantifiable revenue losses described above, Lumicore's use of OWS's patented technology in competing products has caused significant damage to OWS's market position and reputation as an innovator in the silicon-photonics transceiver market. OWS has invested hundreds of millions of dollars in research and development to create the patented innovations at issue in this case. These innovations are the foundation of OWS's competitive differentiation and are the reason that OWS has historically been recognized by customers as a technology leader in this space.
80.  When a competitor such as Lumicore is able to offer products incorporating the same core innovations — without having made the substantial R&D investment required to develop those innovations — the value of OWS's technological differentiation is diminished in the eyes of customers. Customers who might otherwise recognize and reward OWS's innovation through premium pricing and design-in wins instead perceive OWS's technology as a commodity available from multiple sources, undermining OWS's ability to command the pricing and market position to which its innovation entitles it.
81.  This reputational and market-position harm is exceedingly difficult to quantify through monetary damages. The erosion of a company's reputation as an innovator and technology leader operates over time and across a broad range of customer relationships and market perceptions in ways that cannot be captured by a simple calculation of lost sales or reduced margins.
C. Irreparability of Harm
82.  Based on my personal knowledge and experience in the silicon-photonics transceiver market, I believe that the customer diversion, lost design-in opportunities, and price erosion described in this declaration represent harms that cannot be fully remedied by an award of monetary damages. Specifically:
(a) Multi-Year Customer Lock-In. As I explained above, lost design-ins result in multi-year customer lock-in with the winning vendor. Once a customer has qualified Lumicore's product and integrated it into its network infrastructure, the customer is committed to that vendor for the duration of the product lifecycle — typically three to five years. Even if this Court were to award OWS full monetary compensation for the initial lost design-in, the ongoing revenue from the locked-in customer relationship would continue to flow to Lumicore rather than OWS.
(b) Customer Switching Costs. Customers who have switched to Lumicore's products may not return to OWS even if infringement is established and damages are awarded. The substantial qualification and integration costs that customers incur when adopting a new transceiver platform create powerful inertia against switching back. In my experience, a customer that has switched to a competing vendor's product rarely reverses that decision, even when the original vendor offers a technologically superior product.
(c) Irreversible Price Erosion. Price erosion, once established in the market, is extremely difficult or impossible to reverse. Once customers have experienced lower pricing — even if that lower pricing was enabled by infringing technology — their expectations are permanently reset. Attempting to raise prices back to pre-competitive levels after a period of Lumicore-driven erosion would result in customer resistance, further competitive disadvantage, and potential loss of additional accounts.
(d) Cascading Effects on R&D Investment. Loss of market share and competitive position has cascading effects on OWS's ability to invest in future research and development. OWS funds its R&D activities in substantial part from the revenue and profits generated by the very product lines that Lumicore's infringement is targeting. As Lumicore captures OWS's customers and erodes OWS's margins, OWS's ability to invest in the next generation of silicon-photonics innovations is correspondingly diminished, creating a compounding cycle of competitive harm.
VII. SUMMARY OF HARM
83.  In summary, the customer diversions, lost design-in opportunities, and pricing concessions described in this declaration have caused, and continue to cause, substantial and irreparable harm to Optiwave Semiconductor Corp.
84.  Aggregate Revenue Impact. Across all instances described in this declaration, the total estimated revenue impact to OWS is approximately $[INSERT AGGREGATE FIGURE], consisting of approximately $[INSERT] in direct customer diversions (Section III), approximately $[INSERT] in lost design-in lifecycle revenue (Section IV), and approximately $[INSERT] in price erosion losses (Section V).
85.  Total Customer Accounts Affected. The instances described in this declaration involve a total of [INSERT NUMBER] customer accounts.
86.  Representative, Not Exhaustive. The instances described in this declaration are representative of the harm caused by Lumicore's infringing products and are not intended to be exhaustive. Based on my position within OWS's sales organization and my knowledge of other OWS sales personnel's customer accounts, I am aware of additional instances of customer diversion, lost design-ins, and price erosion attributable to Lumicore's accused products that may be attested to by other members of OWS's sales team. These additional instances further demonstrate the breadth and severity of the competitive harm caused by Lumicore's infringement.
87.  Relationship to Expert Damages Analysis. I understand that OWS's damages expert, Dr. Lawrence Keating of Meridian Economic Consulting Group, LLC, has separately quantified OWS's damages in this action, including lost profits of approximately $128.9 million and a reasonable royalty of approximately $37.5 million. The factual testimony set forth in this declaration is offered to support the factual foundation of Dr. Keating's calculations and to provide the Court with first-hand evidence of the commercial impact of Lumicore's infringement from the perspective of an OWS sales professional with direct knowledge of the affected customer relationships.
VIII. VERIFICATION AND OATH
88.  I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
89.  Executed on [INSERT DATE] at [INSERT CITY, STATE].
IX. SIGNATURE BLOCK
________________________________________
[INSERT DECLARANT FULL NAME] [INSERT TITLE] Optiwave Semiconductor Corp.
Date: ________
X. ATTORNEY CERTIFICATION AND FILING INFORMATION
This declaration was prepared by counsel for Plaintiff Optiwave Semiconductor Corp.:
Calderwood & Harkness LLP
Alan Ngo, Partner Wendy Schultz, Lead Associate 350 South Grand Avenue, 48th Floor Los Angeles, California 90071 Telephone: (213) 555-8400 Facsimile: (213) 555-8401
Case Reference: Optiwave Semiconductor Corp. v. Lumicore Technologies, Inc., Case No. 2:24-cv-00319-JRG, United States District Court for the Eastern District of Texas, marshall Division.
Filing Purpose: This declaration is to be filed as an exhibit in support of OWS's request for permanent injunctive relief and, where applicable, in support of the irreparable harm element under the four-factor framework established by the Supreme Court in Northgate Group v. MercExchange, L.L.C., 547 U.S. 388 (2006). This declaration may also be offered in support of the factual foundation for OWS's damages claims, including the lost-profits analysis prepared by Dr. Lawrence Keating of Meridian Economic Consulting Group, LLC.
Confidentiality Designations: Counsel and the declarant are advised that if any customer-specific information contained in this declaration or its attached exhibits is subject to the Stipulated Protective Order entered in this action, the declaration (or the portions thereof containing such information) should be filed under seal in accordance with the three-tier confidentiality framework established by the Court's order:
•  Confidential: Information that the producing party has designated as confidential business information.
•  Highly Confidential — Attorneys' Eyes Only: Information designated as requiring heightened protection, disclosed only to outside counsel, experts, and designated court personnel.
•  Highly Confidential — Source Code: Information relating to proprietary source code or equivalent highly sensitive technical information.
Any motion to file under seal must comply with the Court's standing orders and the requirements of Local Rule CV-5(a)(7).
APPENDIX A — SUPPORTING DOCUMENTS
[INSTRUCTION TO DECLARANT: Attach as exhibits to this declaration any documentary evidence supporting the instances described herein. Supporting documents should include, but are not limited to, the following categories:]
1.  Customer Correspondence. Emails, letters, and RFQ responses from customers referencing their selection of Lumicore's products over OWS's products, including any communications identifying the technical features or pricing advantages of Lumicore's products as factors in the customer's decision.
2.  Internal OWS CRM Records. Customer relationship management ("CRM") records, sales pipeline reports, and opportunity tracking records reflecting lost opportunities attributable to competition from Lumicore's accused products.
3.  Pricing Proposals and discount Approvals. Internal pricing proposals, discount authorization forms, and pricing exception requests that were submitted in response to competitive pressure from Lumicore's accused products.
4.  Design-In Evaluation Materials. Design-in evaluation scorecards, customer feedback documents, qualification test reports, and related materials reflecting OWS's participation in and the outcome of design-in competitions where Lumicore's accused products were selected.
5.  Market and Competitive intelligence. Internal OWS reports, competitive intelligence analyses, and market assessments documenting the impact of Lumicore's market entry and the competitive dynamics described in this declaration.
Each exhibit should be labeled sequentially as follows: Exhibit 1 to Declaration of [INSERT DECLARANT FULL NAME], Exhibit 2 to Declaration of [INSERT DECLARANT FULL NAME], and so forth.
[INSTRUCTION REGARDING CONFIDENTIALITY: All exhibits must be reviewed for confidentiality designations before filing. Customer-confidential materials, Lumicore-designated materials, and any documents bearing confidentiality designations under the Stipulated Protective Order must be treated in accordance with the applicable tier of the protective order. Exhibits containing Highly Confidential — Attorneys' Eyes Only or Highly Confidential — Source Code materials must be filed under seal with appropriate redactions in any publicly filed version.]
APPENDIX B — LIST OF AFFECTED CUSTOMER ACCOUNTS
The following table summarizes all instances of customer harm described in Sections III, IV, and V of this declaration:
[INSTRUCTION: This table should aggregate all instances described in Sections III (Customer Diversion), IV (Lost Design-In Opportunities), and V (Price Erosion and Competitive Pressure) of the declaration for ease of reference by the Court and counsel. Each row should correspond to a single instance described in the body of the declaration. Additional rows should be added as necessary to capture all instances. The "Type of Harm" column should identify whether the entry represents a customer diversion, a lost design-in, or a price erosion event (or a combination thereof). Customer names that are subject to the Stipulated Protective Order should be replaced with coded identifiers in any publicly filed version of this appendix.]
END OF DECLARATION TEMPLATE
Internal Note: This template is attorney work product prepared by Calderwood & Harkness LLP for Optiwave Semiconductor Corp. Each declarant — Karen Whitfield (VP of Sales) and three regional sales directors — should work with Wendy Schultz or Omar Siddiqui to customize this template with their specific factual knowledge before execution. All draft declarations should be reviewed and approved by Alan Ngo before finalization and execution by the declarant. The completed declarations are intended for use in support of OWS's permanent injunction request and irreparable harm showing under the Cascade Holdings framework, as well as to provide factual support for the lost-profits component of Dr. Lawrence Keating's damages analysis. All bracketed fields must be completed with specific factual information, and all instruction notes (in italics) must be removed before the declaration is finalized for execution and filing.
OPTIWAVE SEMICONDUCTOR CORP.,
<!-- indent:2 -->Plaintiff,<!-- /indent -->
Civil Action No. 2:24-cv-00319-JRG
v.
Hon. James R. Gilstrap
LUMICORE TECHNOLOGIES, INC.,
<!-- indent:2 -->Defendant.<!-- /indent -->
No. | Customer Name | Location | OWS Product | Lumicore Product | Type of Harm | Approximate Date | Est. Revenue Impact
1 | [Insert] | [Insert] | [Insert] | [Insert] | [Insert: Diversion / Lost Design-In / Price Erosion] | [Insert] | $[Insert]
2 | [Insert] | [Insert] | [Insert] | [Insert] | [Insert: Diversion / Lost Design-In / Price Erosion] | [Insert] | $[Insert]
3 | [Insert] | [Insert] | [Insert] | [Insert] | [Insert: Diversion / Lost Design-In / Price Erosion] | [Insert] | $[Insert]
4 | [Insert] | [Insert] | [Insert] | [Insert] | [Insert: Diversion / Lost Design-In / Price Erosion] | [Insert] | $[Insert]
5 | [Insert] | [Insert] | [Insert] | [Insert] | [Insert: Diversion / Lost Design-In / Price Erosion] | [Insert] | $[Insert]
6 | [Insert] | [Insert] | [Insert] | [Insert] | [Insert: Diversion / Lost Design-In / Price Erosion] | [Insert] | $[Insert]
7 | [Insert] | [Insert] | [Insert] | [Insert] | [Insert: Diversion / Lost Design-In / Price Erosion] | [Insert] | $[Insert]
8 | [Insert] | [Insert] | [Insert] | [Insert] | [Insert: Diversion / Lost Design-In / Price Erosion] | [Insert] | $[Insert]
9 | [Insert] | [Insert] | [Insert] | [Insert] | [Insert: Diversion / Lost Design-In / Price Erosion] | [Insert] | $[Insert]
10 | [Insert] | [Insert] | [Insert] | [Insert] | [Insert: Diversion / Lost Design-In / Price Erosion] | [Insert] | $[Insert]
TOTAL | $[Insert Aggregate]