DRAFT — NOT YET FILED — SUBJECT TO TEAM REVIEW AND DECISION ON LEAVE TO AMEND
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
PLAINTIFF OPTIWAVE SEMICONDUCTOR CORP.'S FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
Plaintiff Optiwave Semiconductor Corp. ("OWS" or "Plaintiff"), by and through its undersigned attorneys, Calderwood & Harkness LLP and Whitmore & Callahan LLP, hereby files this First Amended Complaint against Defendant Lumicore Technologies, Inc. ("Lumicore" or "Defendant") for patent infringement, and alleges as follows:
I. NATURE OF THE ACTION
1. This is a patent infringement action brought by Optiwave Semiconductor Corp. against Lumicore Technologies, Inc. for infringement of four United States utility patents: U.S. Patent Nos. 10,234,847 (the "'847 Patent"), 10,891,193 (the "'193 Patent"), 9,678,562 (the "'562 Patent"), and 11,402,015 (the "'015 Patent") (collectively, the "Asserted Patents" or the "Patents-in-Suit").
2. The Asserted Patents cover fundamental innovations in silicon-photonics transceiver technology used in hyperscale data-center interconnects. Specifically, the Asserted Patents relate to: (a) multi-channel waveguide multiplexing enabling the combination of multiple optical signals at different wavelengths onto a single waveguide with low insertion loss; (b) coherent optical transceiver integration on silicon substrates for high-performance optical data transmission using semiconductor fabrication processes; (c) thermal management of photonic integrated circuits through embedded micro-channel heat sinks that address critical thermal dissipation challenges in high-density photonic ICs; and (d) polarization-diverse grating couplers that enable efficient coupling of light of two orthogonal polarization states for polarization-multiplexed optical communications in next-generation transceiver modules.
3. These innovations are at the heart of modern hyperscale data-center interconnect technology, a rapidly growing market driven by escalating demand for cloud computing, artificial intelligence workloads, and high-bandwidth networking. OWS pioneered these technologies through years of dedicated research and development, substantial capital investment, and the contributions of its world-class engineering team.
4. Plaintiff seeks compensatory damages of approximately $210 million, comprising lost profits and reasonable royalties. Plaintiff further seeks enhanced damages for willful infringement pursuant to 35 U.S.C. § 284, a permanent injunction pursuant to 35 U.S.C. § 283, attorneys' fees and costs pursuant to 35 U.S.C. § 285, and prejudgment and post-judgment interest.
5. This First Amended Complaint supersedes the Original Complaint filed April 22, 2024 (D.E. 1) in its entirety. This First Amended Complaint adds expanded allegations regarding Lumicore's LumiEdge 1600G-LR product line, which was launched in Q4 2023, and provides further detail on infringement under the doctrine of equivalents as to the '015 Patent. This First Amended Complaint also incorporates updated willfulness allegations based on deposition testimony obtained during fact discovery.
II. THE PARTIES
A. Plaintiff Optiwave Semiconductor Corp.
6. Plaintiff Optiwave Semiconductor Corp. is a corporation organized and existing under the laws of the State of Delaware. OWS's registered agent in Delaware is Capitol Statutory Services, Inc., located at 1209 Orange Street, Wilmington, Delaware 19801. OWS's principal place of business and corporate headquarters is located at 4810 Bayside Technology Parkway, Suite 300, Santa Clara, California 95054. OWS's Employer Identification Number is 46-3921087.
7. OWS was founded in 2011 and is a fabless semiconductor company specializing in silicon photonics chipsets for data-center interconnects. OWS's Chief Executive Officer is Dr. Priya Ramaswamy. OWS's Chief Technology Officer is Dr. Jian-Wei Huang. OWS's General Counsel is Rebecca Tanaka. OWS's Vice President of Engineering, Photonics Division, is Dr. Nikolai Petrov. OWS's Chief Financial Officer is David Leitner.
8. OWS currently employs approximately 1,250 employees. For its fiscal year ended December 31, 2023 ("FY 2023"), OWS reported revenue of $487.3 million (as audited by Gresham & Whitfield LLP) and net income of $61.4 million.
9. OWS is the third-largest U.S. supplier of silicon-photonics transceiver modules for hyperscale data centers. OWS holds 142 issued U.S. patents and 58 pending patent applications. OWS's key product families include the OWS-400ZR, OWS-800XR, and OWS-1600DR transceiver module families, which practice the inventions claimed in the Asserted Patents.
10. OWS's majority owner is Ridgeline Capital Partners, LP, a private equity sponsor that acquired a 55% ownership stake in OWS in 2019 for approximately $780 million. OWS's Board Chair is Franklin Osei, a designee of Ridgeline Capital Partners.
B. Defendant Lumicore Technologies, Inc.
11. Defendant Lumicore Technologies, Inc. is a corporation organized and existing under the laws of the State of Delaware. Lumicore's registered agent in Delaware is National Agent Services Corp., located at 850 New Burton Road, Suite 201, Dover, Delaware 19904. Lumicore's principal place of business and corporate headquarters is located at 9200 Spectrum Boulevard, Building C, Austin, Texas 78759. Lumicore's Employer Identification Number is 81-2547639.
12. Lumicore was founded in 2015. Lumicore's Chief Executive Officer is Thomas "Tom" Kessler. Lumicore's Chief Technology Officer is Dr. Sandra Michaud. Lumicore's General Counsel is Raymond Bautista. Lumicore's Vice President of Product Development is Dr. Eric Dalmqvist. Lumicore's Chief Financial Officer is Janet Moreno.
13. Lumicore currently employs approximately 870 employees. For FY 2023, Lumicore reported estimated revenue of approximately $312.6 million.
14. Lumicore completed an initial public offering on the Nasdaq Stock Market in March 2022 at a price of $24.00 per share. As of the date of filing the Original Complaint in this action, Lumicore's common stock was trading at approximately $37.00 per share, with approximately 91.8 million shares outstanding, resulting in a market capitalization of approximately $3.4 billion.
15. The accused product lines in this action are Lumicore's LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR transceiver modules, each of which is described in detail below.
16. Lumicore maintains a sales office and technical support center at 2700 Earl Campbell Parkway, Suite 150, Tyler, Texas 75701, within this judicial district.
III. JURISDICTION
A. Subject Matter Jurisdiction
17. This Court has original subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338(a). This action arises under the patent laws of the United States, Title 35 of the United States Code, including 35 U.S.C. §§ 271, 281, 283, 284, and 285.
B. Personal Jurisdiction
18. This Court has personal jurisdiction over Lumicore. Lumicore is registered to do business in the State of Texas. Lumicore maintains a permanent sales office and technical support center at 2700 Earl Campbell Parkway, Suite 150, Tyler, Texas 75701, located within the Eastern District of Texas.
19. Lumicore has committed and continues to commit acts of infringement in this judicial district, including making, using, selling, offering to sell, and/or importing into the United States accused products that are thereafter distributed and used in this district.
20. Lumicore has sold accused products to customers with facilities in the Eastern District of Texas, including but not limited to: (a) Pinnacle Data Systems, LLC, which operates a data-center facility in Longview, Texas; (b) Frontier Cloud Services, Inc., which operates a data-center facility in marshall, Texas; and (c) CrossPoint Networking Corp., which maintains offices in Plano, Texas (transferred to the Tyler Division for case management purposes).
21. Lumicore has purposefully availed itself of the privileges and protections of the laws of the State of Texas by, among other things, establishing and maintaining a regular and established place of business in this district, employing personnel in this district, conducting commercial activities in this district, and deriving substantial revenue from the sale of products to customers in this district. The exercise of jurisdiction over Lumicore comports with due process.
IV. VENUE
22. Venue is proper in this District under 28 U.S.C. § 1400(b). Lumicore has committed acts of infringement in this judicial district, as set forth herein. Additionally, Lumicore has a regular and established place of business in this district, specifically its sales and technical support office at 2700 Earl Campbell Parkway, Suite 150, Tyler, Texas 75701. Lumicore employs multiple full-time employees at this location, including sales representatives and technical support engineers who regularly interact with Lumicore's customers in the Eastern District of Texas and provide installation support, training, and ongoing technical assistance relating to Lumicore's products, including the accused products.
23. On August 5, 2024, this Court denied Lumicore's Motion to Transfer Venue to the Western District of Texas (Austin Division) pursuant to 28 U.S.C. § 1404(a) (D.E. 25, Order by the Honorable James R. Gilstrap), confirming the propriety of venue in this District. In denying the motion, the Court found, among other things, that Lumicore's Tyler office constituted a regular and established place of business in this district and that the relevant convenience factors did not clearly favor transfer.
V. THE PATENTS-IN-SUIT
A. U.S. Patent No. 10,234,847 — The '847 Patent
24. On March 19, 2019, the United States Patent and Trademark Office ("USPTO") duly and legally issued U.S. Patent No. 10,234,847, entitled "Multi-Channel Silicon Photonic Waveguide Multiplexer with Low Insertion Loss" (the "'847 Patent"). The '847 Patent issued from an application filed on September 14, 2016. The '847 Patent is a utility patent.
25. The '847 Patent was originally assigned to Optiwave Semiconductor Corp. OWS remains the current owner by assignment of all right, title, and interest in and to the '847 Patent. The named inventors of the '847 Patent include Dr. Jian-Wei Huang and Dr. Nikolai Petrov, among others.
26. The '847 Patent and the '562 Patent (described below) are in the same patent family and share a continuation relationship.
27. All maintenance fees required to maintain the '847 Patent have been paid, and the '847 Patent is currently in full force and effect.
28. The '847 Patent claims cover multi-channel silicon photonic waveguide multiplexer technology that enables combining multiple optical signals of different wavelengths onto a single waveguide with low insertion loss. This capability is critical for high-bandwidth data-center interconnects, where the ability to multiplex multiple wavelengths onto a single silicon waveguide with minimal signal degradation represents a significant advance over the prior art. The inventions claimed in the '847 Patent address the long-standing challenge of achieving low-loss wavelength-division multiplexing in silicon photonic platforms, which prior approaches—including those attempted by at least three competitors—failed to solve with comparable efficiency and scalability.
29. A true and correct copy of the '847 Patent is attached hereto as Exhibit A and is incorporated by reference as if fully set forth herein.
B. U.S. Patent No. 10,891,193 — The '193 Patent
30. On January 12, 2021, the USPTO duly and legally issued U.S. Patent No. 10,891,193, entitled "High-Bandwidth Coherent Optical Transceiver Integrated on Silicon Substrate" (the "'193 Patent"). The '193 Patent issued from an application filed on April 7, 2017. The '193 Patent claims priority to Provisional Application No. 62/499,117, filed April 7, 2017.
31. The '193 Patent was originally assigned to Optiwave Semiconductor Corp. OWS remains the current owner by assignment of all right, title, and interest in and to the '193 Patent.
32. The '193 Patent and the '015 Patent (described below) share a common provisional application, Provisional Application No. 62/499,117, filed April 7, 2017.
33. All maintenance fees required to maintain the '193 Patent have been paid, and the '193 Patent is currently in full force and effect.
34. The '193 Patent claims cover a high-bandwidth coherent optical transceiver integrated on a silicon substrate. The inventions claimed in the '193 Patent enable high-performance optical data transmission—including the recovery of both amplitude and phase information from coherent optical signals—using standard semiconductor fabrication processes. Prior to OWS's innovations, coherent optical transceivers required costly and complex assemblies of discrete optical components, including separate modulators, photodetectors, and local oscillator sources, that were not amenable to monolithic integration on a silicon platform. The '193 Patent represents a breakthrough in bringing coherent optical transceiver functionality onto a single silicon substrate, thereby dramatically reducing cost, size, and power consumption while increasing bandwidth.
35. A true and correct copy of the '193 Patent is attached hereto as Exhibit B and is incorporated by reference as if fully set forth herein.
C. U.S. Patent No. 9,678,562 — The '562 Patent
36. On June 13, 2017, the USPTO duly and legally issued U.S. Patent No. 9,678,562, entitled "Method for Thermal Management of Photonic Integrated Circuits Using Embedded Micro-Channel Heat Sinks" (the "'562 Patent"). The '562 Patent issued from an application filed on November 22, 2014. The '562 Patent is a utility patent.
37. The '562 Patent was originally assigned to Solara Optics, Inc. On June 15, 2018, OWS acquired all right, title, and interest in and to the '562 Patent, along with eleven additional patents, from Solara Optics, Inc. pursuant to an Asset Purchase Agreement dated June 15, 2018 (the "Solara APA"). The total consideration paid by OWS under the Solara APA for the portfolio of twelve patents was $34.5 million. The assignment from Solara Optics, Inc. to Optiwave Semiconductor Corp. was duly recorded with the USPTO.
38. OWS is the current owner by assignment of all right, title, and interest in and to the '562 Patent.
39. All maintenance fees required to maintain the '562 Patent have been paid, and the '562 Patent is currently in full force and effect.
40. The '562 Patent claims cover a method for thermal management of photonic integrated circuits using embedded micro-channel heat sinks. The inventions claimed in the '562 Patent address critical thermal dissipation challenges inherent in high-density photonic integrated circuits ("PICs"). As data rates increase and photonic components are packed more densely onto a single chip, managing heat generation becomes a limiting factor for device performance, reliability, and lifespan. The '562 Patent discloses and claims an innovative approach to embedding micro-channel heat-sink structures directly within the photonic integrated circuit, enabling efficient thermal dissipation without the bulk and complexity of external cooling solutions.
41. A true and correct copy of the '562 Patent is attached hereto as Exhibit C and is incorporated by reference as if fully set forth herein.
42. Assignment records for the '562 Patent, reflecting the assignment from Solara Optics, Inc. to Optiwave Semiconductor Corp. dated June 15, 2018, are attached hereto as Exhibit E and are incorporated by reference as if fully set forth herein.
D. U.S. Patent No. 11,402,015 — The '015 Patent
43. On August 2, 2022, the USPTO duly and legally issued U.S. Patent No. 11,402,015, entitled "Polarization-Diverse Grating Coupler for Silicon Photonic Transceivers" (the "'015 Patent"). The '015 Patent issued from an application filed on August 30, 2019. The '015 Patent claims priority to Provisional Application No. 62/499,117, filed April 7, 2017, which is the same provisional application from which the '193 Patent claims priority.
44. The '015 Patent was originally assigned to Optiwave Semiconductor Corp. OWS remains the current owner by assignment of all right, title, and interest in and to the '015 Patent.
45. All maintenance fees required to maintain the '015 Patent have been paid, and the '015 Patent is currently in full force and effect.
46. The '015 Patent claims cover a polarization-diverse grating coupler for silicon photonic transceivers. The inventions claimed in the '015 Patent enable efficient coupling of light of two orthogonal polarization states—transverse electric ("TE") and transverse magnetic ("TM") polarization modes—from an optical fiber into the silicon photonic waveguide. This capability represents a key advance enabling polarization-multiplexed optical communications in next-generation transceiver modules. By efficiently handling both polarization states simultaneously through a single grating coupler structure, the '015 Patent's innovations effectively double the information-carrying capacity of each optical channel, a critical requirement for high-bandwidth data-center interconnects operating at 800G and above.
47. No inter partes review ("IPR") petitions have been filed against any of the Asserted Patents as of the date of this First Amended Complaint, although counsel for Lumicore has reserved the right to petition for IPR in correspondence and at the parties' Rule 26(f) conference.
48. A true and correct copy of the '015 Patent is attached hereto as Exhibit D and is incorporated by reference as if fully set forth herein.
VI. OPTIWAVE'S INNOVATIONS AND MARKET POSITION
49. OWS is a fabless semiconductor company specializing in silicon photonics chipsets for data-center interconnects. Since its founding in 2011, OWS has been at the forefront of silicon-photonics innovation, developing and commercializing breakthrough technologies that have become essential to modern hyperscale data-center infrastructure.
50. OWS has invested hundreds of millions of dollars in research and development of silicon-photonics transceiver technology. OWS's R&D investments have been directed toward solving some of the most challenging problems in photonic integrated circuit design, including waveguide multiplexing, coherent optical detection on silicon substrates, thermal management of high-density photonic ICs, and polarization-diverse light coupling. These investments have yielded a substantial and valuable patent portfolio.
51. OWS currently holds 142 issued U.S. patents and 58 pending patent applications, reflecting the breadth and depth of its innovation in the silicon-photonics space. The Asserted Patents represent some of OWS's most important and commercially significant intellectual property.
52. OWS is the third-largest U.S. supplier of silicon-photonics transceiver modules for hyperscale data centers, competing with both larger, diversified semiconductor companies and specialized photonics firms. OWS's key product families—the OWS-400ZR, OWS-800XR, and OWS-1600DR transceiver module families—practice the inventions claimed in the Asserted Patents and are designed and marketed to meet the demanding requirements of hyperscale data-center operators.
53. OWS's FY 2023 revenue was $487.3 million. Approximately $310 million of OWS's FY 2023 revenue was attributable to products that practice one or more of the Asserted Patents. OWS's gross margin on its products that compete directly with Lumicore's accused products is 47.3%.
54. OWS's innovations, as embodied in the Asserted Patents, represent significant advances over the prior art. These innovations have achieved commercial success, as demonstrated by OWS's substantial and growing revenue from products practicing the Asserted Patents. OWS's innovations have also met long-felt but unsolved needs in the silicon-photonics industry, including the need for low-loss multi-channel waveguide multiplexing, monolithic coherent transceiver integration, effective thermal management of high-density PICs, and efficient polarization-diverse light coupling. At least three competitors attempted and failed to develop comparable solutions using similar technical approaches before the innovations disclosed and claimed in the Asserted Patents.
VII. LUMICORE'S ACCUSED PRODUCTS
55. Lumicore manufactures, uses, sells, offers to sell, and imports into the United States three product lines that infringe one or more of the Asserted Patents: the LumiLink 400G-ZR+, the LumiLink 800G-DR8, and the LumiEdge 1600G-LR (collectively, the "Accused Products").
A. LumiLink 400G-ZR+
56. The LumiLink 400G-ZR+ is a 400-gigabit coherent optical transceiver module designed for data-center interconnects. Lumicore launched the LumiLink 400G-ZR+ in Q3 2022.
57. Based on Lumicore's publicly available segment disclosures and securities filings, OWS estimates that the LumiLink 400G-ZR+ generated approximately $94.8 million in revenue for Lumicore in FY 2023.
58. As detailed in Counts I, II, and III below, the LumiLink 400G-ZR+ is accused of infringing the '847 Patent, the '193 Patent, and the '562 Patent.
B. LumiLink 800G-DR8
59. The LumiLink 800G-DR8 is an 800-gigabit optical transceiver module designed for hyperscale data-center applications. Lumicore launched the LumiLink 800G-DR8 in Q1 2023.
60. Based on Lumicore's publicly available segment disclosures and securities filings, OWS estimates that the LumiLink 800G-DR8 generated approximately $128.4 million in revenue for Lumicore in FY 2023.
61. As detailed in Counts I, II, III, and IV below, the LumiLink 800G-DR8 is accused of infringing all four of the Asserted Patents: the '847 Patent, the '193 Patent, the '562 Patent, and the '015 Patent.
C. LumiEdge 1600G-LR (New/Expanded Allegations in Amended Complaint)
62. The LumiEdge 1600G-LR is a 1600-gigabit long-reach optical transceiver module targeting hyperscale data-center and telecommunications markets. Lumicore launched the LumiEdge 1600G-LR in Q4 2023.
63. Critically, the LumiEdge 1600G-LR was launched after Lumicore had already received actual notice of OWS's patent rights through both FairPoint Licensing Group, LLC's written licensing correspondence (January 15, 2023 and May 15, 2023) and the in-person licensing meeting held in Austin, Texas on April 20, 2023, as described in detail in Section VIII below.
64. Based on Lumicore's publicly available segment disclosures and securities filings, OWS estimates that the LumiEdge 1600G-LR generated approximately $41.7 million in revenue for Lumicore in FY 2023 (reflecting partial-year revenue from its Q4 2023 launch).
65. As detailed in Counts II and IV below, the LumiEdge 1600G-LR is accused of infringing the '193 Patent and the '015 Patent. This First Amended Complaint provides expanded allegations regarding infringement by the LumiEdge 1600G-LR, including additional detail on infringement under the doctrine of equivalents as to the '015 Patent.
66. The launch of the LumiEdge 1600G-LR with knowledge of OWS's patent rights further supports OWS's allegations of willful infringement, as set forth in Sections IX and XVI below.
D. Accused Product Revenue Summary
67. Total estimated revenue from the Accused Products for FY 2023 is $264.9 million ($94.8 million for the LumiLink 400G-ZR+ plus $128.4 million for the LumiLink 800G-DR8 plus $41.7 million for the LumiEdge 1600G-LR).
68. Total estimated revenue from the Accused Products for the infringement period from Q3 2022 (the launch of the LumiLink 400G-ZR+) through Q1 2024 (the filing of the Original Complaint) is approximately $378.2 million.
69. Projected total revenue from the Accused Products for the period from Q3 2022 through Q4 2025 (the anticipated trial date) is approximately $714.6 million.
VIII. PRE-SUIT NOTICE AND LICENSING HISTORY
70. In or about October 2022, OWS's internal engineering team, led by Dr. Nikolai Petrov, Vice President of Engineering, Photonics Division, identified potential infringement of OWS's patents by Lumicore's LumiLink 400G-ZR+ transceiver module. Upon identifying potential infringement, Dr. Petrov referred the matter to Rebecca Tanaka, OWS's General Counsel, for further investigation and action.
71. In November 2022, OWS retained Benchmark Semiconductor Analysis, LLC ("Benchmark"), located at 2244 Mission College Boulevard, Santa Clara, California 95054, to perform a teardown and reverse engineering analysis of the LumiLink 400G-ZR+ product. The teardown analysis was led by Benchmark's Lead Engineer, Kevin Ng.
72. On December 12, 2022, Benchmark delivered its teardown report on the LumiLink 400G-ZR+. The Benchmark report confirmed the presence and use of accused waveguide multiplexer structures and thermal management micro-channel structures in the LumiLink 400G-ZR+ that correspond to the inventions claimed in the Asserted Patents.
73. On January 15, 2023, FairPoint Licensing Group, LLC ("FairPoint"), located at 500 Sansome Street, Suite 1400, San Francisco, California 94111, acting as OWS's authorized licensing agent under the direction of Managing Director Angela Reeves, sent a detailed licensing and notice letter to Raymond Bautista, General Counsel of Lumicore Technologies, Inc. The January 15, 2023 letter identified the '847 Patent, the '193 Patent, and the '562 Patent by number and title, provided claim charts illustrating how the LumiLink 400G-ZR+ infringed the identified patents, and put Lumicore on actual notice of OWS's patent rights. The letter invited Lumicore to enter into licensing discussions regarding the identified patents.
74. On February 28, 2023, Lumicore responded to FairPoint's January 15, 2023 letter through its outside counsel, Catherine "Kate" Rourke of Hawthorne Vega & Cruz LLP. In its response, Lumicore disputed infringement of the identified patents and questioned the validity of the asserted claims. Lumicore did not agree to enter into licensing negotiations.
75. On April 20, 2023, an in-person licensing meeting was held in Austin, Texas. Attending on behalf of OWS and FairPoint were Angela Reeves (FairPoint) and Rebecca Tanaka (OWS General Counsel). Attending on behalf of Lumicore were Raymond Bautista (Lumicore General Counsel) and Kate Rourke (Hawthorne Vega & Cruz LLP). During the meeting, the parties discussed the identified patents and the accused LumiLink 400G-ZR+ product. According to Angela Reeves, Lumicore's representatives showed no interest in negotiating a license and the meeting concluded without resolution.
76. On May 15, 2023, FairPoint sent a second licensing letter to Lumicore, supplementing the prior correspondence. The May 15, 2023 letter added the '015 Patent (which had issued on August 2, 2022) to the portfolio of patents identified as infringed by Lumicore's products. The May 15, 2023 letter also expanded the scope of accused products to include the LumiLink 800G-DR8, which Lumicore had launched in Q1 2023. The letter again invited Lumicore to enter into licensing negotiations.
77. On July 10, 2023, Lumicore formally declined to take a license to OWS's patents. In its declination letter, Lumicore stated that it had obtained "competent legal opinions" concluding that its products do not infringe the identified patents. However, Lumicore has refused to produce those legal opinions, asserting attorney-client privilege. OWS's Motion to Compel production of the referenced opinion letters is currently pending before this Court, having been filed on October 21, 2024.
78. In Q4 2023, notwithstanding the extensive notice and licensing history set forth above, Lumicore launched its LumiEdge 1600G-LR transceiver module. OWS promptly identified additional infringement by this new product, as described herein.
79. On March 18, 2024, OWS formally engaged Calderwood & Harkness LLP to represent OWS in this patent infringement action.
80. On April 22, 2024, OWS filed the Original Complaint in this action (D.E. 1).
IX. LUMICORE'S KNOWLEDGE OF OWS'S PATENTS AND WILLFUL CONDUCT
81. OWS sets forth in this Section the consolidated and expanded allegations regarding Lumicore's pre-suit and post-suit knowledge of OWS's patents and Lumicore's willful disregard of OWS's patent rights, supporting OWS's claims for willful infringement and enhanced damages under 35 U.S.C. § 284.
82. FairPoint's January 15, 2023 notice letter put Lumicore on actual notice of the '847 Patent, the '193 Patent, and the '562 Patent. FairPoint's May 15, 2023 supplemental letter put Lumicore on actual notice of the '015 Patent. Thus, no later than May 15, 2023, Lumicore had actual notice of all four Asserted Patents.
83. At the April 20, 2023 in-person meeting in Austin, Texas, Lumicore's representatives—Raymond Bautista (General Counsel) and Kate Rourke (outside counsel, Hawthorne Vega & Cruz LLP)—acknowledged receipt of the FairPoint licensing letters and reviewed the patents identified therein. Lumicore's representatives were thus fully aware of OWS's patent rights and the basis for OWS's infringement allegations.
84. Despite this actual notice and full awareness, Lumicore continued to make, use, sell, offer to sell, and import all of the Accused Products, including the LumiLink 400G-ZR+ and LumiLink 800G-DR8, without taking a license to OWS's patents.
85. Moreover, after receiving actual notice of OWS's patent rights, Lumicore launched a new Accused Product—the LumiEdge 1600G-LR—in Q4 2023, without taking a license and without conducting a formal design-around analysis. The absence of any design-around effort prior to the LumiEdge 1600G-LR launch was confirmed by the deposition testimony of Raymond Bautista, Lumicore's General Counsel, taken on December 3, 2024.
86. Evidence obtained during discovery indicates that Lumicore's engineering team had knowledge of OWS's patent portfolio well before the FairPoint licensing letters. Specifically, evidence from former Lumicore engineer Melissa Chen—who departed Lumicore in mid-2023 and is now employed by Veridian Photonics, Inc.—indicates that Lumicore's LumiLink 400G-ZR+ design team accessed and reviewed OWS's published patent application (Published Application No. 2018/0123456, which corresponds to the '193 Patent) during the product design phase in 2021 and 2022.
87. Dr. Sandra Michaud, Lumicore's Chief Technology Officer, admitted during her deposition taken on November 19, 2024, that she personally reviewed OWS Published Application No. 2018/0123456 during the LumiLink design phase. This testimony confirms that Lumicore's most senior technical officer was aware of OWS's innovations and patent applications during the development of the very products now accused of infringement.
88. Lumicore has refused to produce the "competent legal opinions" referenced in its July 10, 2023 declination letter, despite asserting an advice-of-counsel defense to OWS's willful infringement allegations. Lumicore's refusal to produce these opinion letters—while simultaneously relying on the existence of such opinions as a defense—gives rise to an adverse inference that the opinions, if they exist, are unfavorable to Lumicore's position.
89. Lumicore's continued manufacture, use, sale, offer for sale, and importation of all three Accused Product lines after receiving actual notice of OWS's patent rights constitutes willful infringement entitling OWS to enhanced damages under 35 U.S.C. § 284. The totality of Lumicore's conduct—including its awareness of OWS's patents during product development, its receipt of detailed licensing correspondence identifying specific patent claims and providing claim charts, its participation in an in-person licensing meeting, its subsequent launch of the LumiEdge 1600G-LR without a license or design-around, and its refusal to produce the opinion letters it claims to have obtained—demonstrates a deliberate and knowing disregard of OWS's patent rights.
X. COUNT I — INFRINGEMENT OF U.S. PATENT NO. 10,234,847 (THE '847 PATENT)
90. OWS repeats and realleges each and every allegation set forth in paragraphs 1 through 89 above as if fully set forth herein.
91. OWS is the owner by assignment of all right, title, and interest in and to the '847 Patent.
92. The '847 Patent is valid, enforceable, and was duly issued by the USPTO in compliance with all applicable requirements of Title 35 of the United States Code.
93. Lumicore has infringed and continues to infringe one or more claims of the '847 Patent, including at least Claims 1, 3, 5, 9, and 14, in violation of 35 U.S.C. § 271(a), by making, using, selling, offering to sell, and/or importing into the United States, without the authority or license of OWS, the LumiLink 400G-ZR+ and LumiLink 800G-DR8 products.
94. Lumicore's infringement of the asserted claims of the '847 Patent is literal. Each Accused Product identified in the preceding paragraph contains a multi-channel silicon photonic waveguide multiplexer with low insertion loss that meets every element and limitation of the asserted claims of the '847 Patent.
95. Detailed claim-by-claim, limitation-by-limitation analyses of Lumicore's infringement of the '847 Patent are set forth in OWS's infringement contentions served on September 16, 2024 (D.E. 32), which are incorporated herein by reference. Those infringement contentions are supported by the Benchmark Semiconductor Analysis, LLC teardown reports, which confirm the presence and use of accused waveguide multiplexer structures in the LumiLink 400G-ZR+ (December 12, 2022 report) and the LumiLink 800G-DR8 (June 2023 report) that correspond to each element and limitation of the asserted claims.
96. By way of example and without limitation, Claim 1 of the '847 Patent recites a multi-channel silicon photonic waveguide multiplexer comprising a plurality of input waveguides each configured to carry an optical signal at a distinct wavelength, a multiplexing region configured to combine the optical signals from the plurality of input waveguides onto a single output waveguide, and a low-insertion-loss coupling structure. Each of the LumiLink 400G-ZR+ and LumiLink 800G-DR8 products incorporates a multi-channel silicon photonic waveguide multiplexer that includes each of these claim elements, as confirmed by the Benchmark teardown analyses.
97. OWS has been damaged by Lumicore's infringement of the '847 Patent and is entitled to compensatory damages in an amount adequate to compensate for the infringement, but in no event less than a reasonable royalty, together with interest and costs, pursuant to 35 U.S.C. § 284.
98. OWS is further entitled to a permanent injunction pursuant to 35 U.S.C. § 283 restraining Lumicore from further infringement of the '847 Patent.
XI. COUNT II — INFRINGEMENT OF U.S. PATENT NO. 10,891,193 (THE '193 PATENT)
99. OWS repeats and realleges each and every allegation set forth in paragraphs 1 through 98 above as if fully set forth herein.
100. OWS is the owner by assignment of all right, title, and interest in and to the '193 Patent.
101. The '193 Patent is valid, enforceable, and was duly issued by the USPTO in compliance with all applicable requirements of Title 35 of the United States Code.
102. Lumicore has infringed and continues to infringe one or more claims of the '193 Patent, including at least Claims 1, 3, 7, 10, 15, and 18, in violation of 35 U.S.C. § 271(a), by making, using, selling, offering to sell, and/or importing into the United States, without the authority or license of OWS, the LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR products.
103. Lumicore's infringement of Claims 1, 10, 15, and 18 of the '193 Patent is literal. Each of the LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR products incorporates a high-bandwidth coherent optical transceiver integrated on a silicon substrate that meets every element and limitation of Claims 1, 10, 15, and 18 of the '193 Patent.
104. With respect to Claims 3 and 7 of the '193 Patent, to the extent Lumicore's accused designs are found not to literally satisfy the "coherent detection module" limitation recited in those claims, Lumicore infringes Claims 3 and 7 under the doctrine of equivalents. The accused elements in the LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR perform substantially the same function, in substantially the same way, to achieve substantially the same result as the "coherent detection module" recited in Claims 3 and 7 of the '193 Patent.
105. Specifically, the function-way-result analysis for OWS's doctrine of equivalents contentions as to Claims 3 and 7 is as follows:
(a) Function: The accused elements in each Accused Product perform the function of detecting coherent optical signals by mixing the received signals with a local oscillator, which is the same function performed by the "coherent detection module" limitation of Claims 3 and 7.
(b) Way: The accused elements perform this function by using integrated photodetectors and mixing elements on the silicon substrate that process coherent optical signals through homodyne or intradyne detection, which is substantially the same way in which the "coherent detection module" of Claims 3 and 7 operates.
(c) Result: The accused elements achieve the result of recovering phase and amplitude information from the coherent optical signal for high-bandwidth data transmission, which is substantially the same result achieved by the "coherent detection module" of Claims 3 and 7.
106. OWS's doctrine of equivalents contentions as to Claims 3 and 7 of the '193 Patent are not barred by prosecution history estoppel. During prosecution, the applicant narrowed the "coherent detection module" limitation in response to a rejection under 35 U.S.C. § 102 over Takahashi et al. However, the narrowing amendment was directed to a different aspect of the claim limitation than the equivalent at issue in this action. Specifically, the amendment addressed the structural integration of the detection module on the silicon substrate, whereas the equivalence asserted here relates to the specific configuration and arrangement of the photodetectors and mixing elements within the detection module. Accordingly, the Festo tangential-relation exception applies, and the narrowing amendment does not surrender the particular equivalent relied upon. See Festo Corp. v. Fenmore & Co., 535 U.S. 722 (2002).
107. OWS has been damaged by Lumicore's infringement of the '193 Patent and is entitled to compensatory damages in an amount adequate to compensate for the infringement, but in no event less than a reasonable royalty, together with interest and costs, pursuant to 35 U.S.C. § 284.
108. OWS is further entitled to a permanent injunction pursuant to 35 U.S.C. § 283 restraining Lumicore from further infringement of the '193 Patent.
XII. COUNT III — INFRINGEMENT OF U.S. PATENT NO. 9,678,562 (THE '562 PATENT)
109. OWS repeats and realleges each and every allegation set forth in paragraphs 1 through 108 above as if fully set forth herein.
110. OWS is the owner by assignment of all right, title, and interest in and to the '562 Patent, having acquired the '562 Patent from Solara Optics, Inc. pursuant to the Asset Purchase Agreement dated June 15, 2018. Under the Solara APA, OWS acquired a portfolio of twelve patents, including the '562 Patent, for total consideration of $34.5 million. The assignment was duly recorded with the USPTO.
111. The '562 Patent is valid, enforceable, and was duly issued by the USPTO in compliance with all applicable requirements of Title 35 of the United States Code.
112. Lumicore has infringed and continues to infringe one or more claims of the '562 Patent, including at least Claims 1, 4, 6, and 11, in violation of 35 U.S.C. § 271(a), by making, using, selling, offering to sell, and/or importing into the United States, without the authority or license of OWS, the LumiLink 400G-ZR+ and LumiLink 800G-DR8 products.
113. Lumicore's infringement of the asserted claims of the '562 Patent is literal. Each of the LumiLink 400G-ZR+ and LumiLink 800G-DR8 products incorporates embedded micro-channel heat-sink structures for thermal management of photonic integrated circuits that meet every element and limitation of the asserted claims of the '562 Patent.
114. Benchmark Semiconductor Analysis, LLC's teardown reports confirm the presence of embedded micro-channel heat-sink structures in the LumiLink 400G-ZR+ (December 12, 2022 report) and the LumiLink 800G-DR8 (June 2023 report). The Benchmark reports identify specific structural features of the micro-channel heat sinks in each Accused Product and map those features to each element and limitation of the asserted claims of the '562 Patent. The Benchmark analyses demonstrate that the thermal management structures in each Accused Product are designed and fabricated in accordance with the method claimed in the '562 Patent, including the formation of micro-channels with specific dimensional and geometric characteristics recited in the asserted claims.
115. OWS has been damaged by Lumicore's infringement of the '562 Patent and is entitled to compensatory damages in an amount adequate to compensate for the infringement, but in no event less than a reasonable royalty, together with interest and costs, pursuant to 35 U.S.C. § 284.
116. OWS is further entitled to a permanent injunction pursuant to 35 U.S.C. § 283 restraining Lumicore from further infringement of the '562 Patent.
XIII. COUNT IV — INFRINGEMENT OF U.S. PATENT NO. 11,402,015 (THE '015 PATENT)
(Expanded Allegations — Amended Complaint)
117. OWS repeats and realleges each and every allegation set forth in paragraphs 1 through 116 above as if fully set forth herein.
118. OWS is the owner by assignment of all right, title, and interest in and to the '015 Patent.
119. The '015 Patent is valid, enforceable, and was duly issued by the USPTO in compliance with all applicable requirements of Title 35 of the United States Code.
120. Lumicore has infringed and continues to infringe one or more claims of the '015 Patent, including at least Claims 1, 5, 8, 12, and 16, in violation of 35 U.S.C. § 271(a), by making, using, selling, offering to sell, and/or importing into the United States, without the authority or license of OWS, the LumiLink 800G-DR8 and LumiEdge 1600G-LR products.
121. Lumicore's infringement of Claims 1, 5, 8, and 16 of the '015 Patent is literal. Each of the LumiLink 800G-DR8 and LumiEdge 1600G-LR products incorporates a polarization-diverse grating coupler for silicon photonic transceivers that meets every element and limitation of Claims 1, 5, 8, and 16 of the '015 Patent.
Expanded Doctrine of Equivalents Allegations — Claim 12 of the '015 Patent
122. With respect to Claim 12 of the '015 Patent, to the extent Lumicore's accused designs are found not to literally satisfy the "two-dimensional sub-wavelength grating" limitation recited in that claim, Lumicore infringes Claim 12 under the doctrine of equivalents.
123. The accused elements in the LumiLink 800G-DR8 and the LumiEdge 1600G-LR perform substantially the same function, in substantially the same way, to achieve substantially the same result as the "two-dimensional sub-wavelength grating" recited in Claim 12 of the '015 Patent. Specifically:
(a) Function: The accused elements perform the function of coupling light from an optical fiber into the silicon photonic waveguide while simultaneously handling two orthogonal polarization states (TE and TM modes), which is the same function performed by the "two-dimensional sub-wavelength grating" of Claim 12.
(b) Way: The accused elements perform this function by using a periodic diffractive structure fabricated on the silicon substrate with sub-wavelength features arranged to split and redirect both TE and TM polarization modes into separate waveguide channels, which is substantially the same way in which the "two-dimensional sub-wavelength grating" of Claim 12 operates.
(c) Result: The accused elements achieve the result of polarization-diverse coupling of light into the transceiver with high efficiency and low polarization-dependent loss, which is substantially the same result achieved by the "two-dimensional sub-wavelength grating" of Claim 12.
124. The expanded allegations in this First Amended Complaint provide additional detail regarding infringement of the '015 Patent by the LumiEdge 1600G-LR, which was launched in Q4 2023. The LumiEdge 1600G-LR employs a grating coupler architecture that, upon information and belief confirmed by a Benchmark Semiconductor Analysis, LLC teardown performed in February 2024, utilizes a modified sub-wavelength diffractive structure that is insubstantially different from the "two-dimensional sub-wavelength grating" of Claim 12.
125. Benchmark's February 2024 teardown of the LumiEdge 1600G-LR identified polarization-diverse grating coupler structures within the LumiEdge module that map to each element of the asserted claims of the '015 Patent. The Benchmark analysis revealed that the LumiEdge 1600G-LR's grating coupler incorporates a periodic diffractive structure with sub-wavelength features that are functionally and structurally equivalent to the "two-dimensional sub-wavelength grating" recited in Claim 12.
126. Despite minor design variations in the grating pitch and fill-factor parameters as compared to the specific structure described in the '015 Patent specification and claims, the LumiEdge 1600G-LR's grating coupler performs the identical function of polarization-diverse light coupling, operates in substantially the same way using periodic sub-wavelength diffractive elements arranged to split and redirect both TE and TM polarization modes, and achieves substantially the same result of efficient polarization-multiplexed signal coupling with high efficiency and low polarization-dependent loss. The variations in grating pitch and fill-factor do not alter the fundamental mode of operation, the underlying physical principles employed, or the optical performance achieved by the grating coupler structure.
127. OWS's doctrine of equivalents contentions for Claim 12 of the '015 Patent are not barred by prosecution history estoppel. During prosecution, the applicant made a narrowing amendment to Claim 12 to overcome a rejection under 35 U.S.C. § 103 based on a combination of Bergmann (U.S. Patent No. 8,412,007) with Simonsen (PCT/EP2015/071234). However, the narrowing amendment was tangential to the equivalent at issue in this action, and the Festo tangential-relation exception applies.
128. Specifically, the amendment made during prosecution was directed to a specific structural feature of the sub-wavelength grating—namely, a requirement for a particular angular orientation of the grating elements relative to the waveguide axis—that is distinct from the equivalence asserted herein. The equivalence asserted by OWS relates to variations in grating pitch and fill-factor parameters, not to the angular orientation of the grating elements. The reason for the amendment—distinguishing over the specific angular-orientation teachings of Bergmann and Simonsen—does not surrender the particular equivalent relied upon by OWS, which concerns different structural parameters (pitch and fill-factor) that were not at issue during prosecution. Accordingly, prosecution history estoppel does not bar OWS's assertion of infringement under the doctrine of equivalents as to Claim 12. See Festo Corp. v. Fenmore & Co., 535 U.S. 722 (2002).
129. OWS has been damaged by Lumicore's infringement of the '015 Patent and is entitled to compensatory damages in an amount adequate to compensate for the infringement, but in no event less than a reasonable royalty, together with interest and costs, pursuant to 35 U.S.C. § 284.
130. OWS is further entitled to a permanent injunction pursuant to 35 U.S.C. § 283 restraining Lumicore from further infringement of the '015 Patent.
XIV. COUNT V — INDUCED INFRINGEMENT (ALL FOUR PATENTS)
131. OWS repeats and realleges each and every allegation set forth in paragraphs 1 through 130 above as if fully set forth herein.
132. In addition to directly infringing the Asserted Patents, Lumicore has actively induced infringement of the Asserted Patents by others, including its customers and end users, in violation of 35 U.S.C. § 271(b).
133. Lumicore has had knowledge of the Asserted Patents sufficient to establish the requisite intent for induced infringement. Specifically, Lumicore has had knowledge of the '847 Patent, the '193 Patent, and the '562 Patent at least since January 15, 2023, the date of FairPoint's first licensing and notice letter. Lumicore has had knowledge of the '015 Patent at least since May 15, 2023, the date of FairPoint's second licensing letter.
134. Despite its knowledge of OWS's patent rights, Lumicore has specifically intended to induce and has in fact induced infringement of the Asserted Patents by third parties. Lumicore has induced infringement by, among other acts:
(a) Selling the Accused Products to customers in the United States, including customers located in the Eastern District of Texas, specifically including Pinnacle Data Systems, LLC (Longview, Texas), Frontier Cloud Services, Inc. (Marshall, Texas), and CrossPoint Networking Corp. (Plano, Texas), with the knowledge and intent that those customers would use the Accused Products in a manner that infringes the Asserted Patents;
(b) Providing detailed technical documentation, installation guides, configuration manuals, marketing materials, white papers, application notes, and technical support to its customers encouraging and facilitating the customers' use of the Accused Products in an infringing manner;
(c) Promoting the infringing features of the Accused Products—including the multi-channel waveguide multiplexing capabilities, coherent optical transceiver functionality, thermal management features, and polarization-diverse grating coupler performance—as key selling points and competitive advantages of the Accused Products in marketing materials, datasheets, trade-show presentations, and customer-facing technical documentation; and
(d) Providing on-site installation support, training, and ongoing technical assistance to customers through its sales and technical support personnel, including personnel located at Lumicore's Tyler, Texas office, to ensure that customers deploy and operate the Accused Products in the manner intended by Lumicore—a manner that infringes the Asserted Patents.
135. Lumicore knew or should have known that its actions in selling, promoting, and supporting the Accused Products would induce direct infringement of the Asserted Patents by its customers and end users. Lumicore's inducement was knowing and intentional.
136. OWS has been damaged by Lumicore's induced infringement of the Asserted Patents and is entitled to compensatory damages in an amount adequate to compensate for such induced infringement, together with interest and costs, pursuant to 35 U.S.C. § 284.
XV. COUNT VI — CONTRIBUTORY INFRINGEMENT (ALL FOUR PATENTS)
137. OWS repeats and realleges each and every allegation set forth in paragraphs 1 through 136 above as if fully set forth herein.
138. Lumicore has contributed to and continues to contribute to infringement of the Asserted Patents by others in violation of 35 U.S.C. § 271(c).
139. The Accused Products—the LumiLink 400G-ZR+, the LumiLink 800G-DR8, and the LumiEdge 1600G-LR transceiver modules—constitute a material part of the inventions claimed in the Asserted Patents, are especially made or especially adapted for use in an infringing manner, and are not staple articles of commerce suitable for substantial non-infringing use.
140. Specifically, the infringing components within the Accused Products—including the multi-channel waveguide multiplexer structures, the embedded micro-channel heat-sink architectures, the coherent transceiver elements integrated on silicon substrates, and the polarization-diverse grating coupler components—have no substantial non-infringing use other than as components of systems that practice the claims of the Asserted Patents. These components are specifically designed and manufactured for incorporation into optical transceiver modules that operate in the manner claimed in the Asserted Patents, and they are not commoditized, general-purpose components that could be used in a substantial number of non-infringing applications.
141. Lumicore has had knowledge of the Asserted Patents since at least January 15, 2023, as set forth in detail above. Lumicore knew or should have known that the Accused Products are especially made or especially adapted for use in a manner that infringes the Asserted Patents and that the infringing components of the Accused Products lack substantial non-infringing uses.
142. OWS has been damaged by Lumicore's contributory infringement of the Asserted Patents and is entitled to compensatory damages in an amount adequate to compensate for such contributory infringement, together with interest and costs, pursuant to 35 U.S.C. § 284.
XVI. COUNT VII — WILLFUL INFRINGEMENT AND REQUEST FOR ENHANCED DAMAGES
143. OWS repeats and realleges each and every allegation set forth in paragraphs 1 through 142 above as if fully set forth herein.
144. Lumicore's infringement of the Asserted Patents has been and continues to be willful.
145. The following facts, among others, demonstrate that Lumicore's infringement has been willful and egregious:
(a) FairPoint's January 15, 2023 notice letter put Lumicore on actual notice of the '847 Patent, the '193 Patent, and the '562 Patent, including specific claim charts illustrating how Lumicore's products infringe those patents.
(b) FairPoint's May 15, 2023 supplemental letter put Lumicore on actual notice of the '015 Patent and expanded the scope of accused products to include the LumiLink 800G-DR8.
(c) Despite receiving actual, detailed notice of OWS's patent rights, Lumicore continued to make, use, sell, offer to sell, and import the Accused Products without taking a license or making any effort to design around OWS's patents.
(d) After receiving actual notice of OWS's patent rights, Lumicore launched a new Accused Product—the LumiEdge 1600G-LR—in Q4 2023, without obtaining a license, without conducting any formal design-around analysis, and with full knowledge that the product would likely infringe OWS's patents.
(e) No formal design-around analysis was commissioned by Lumicore before the launch of the LumiEdge 1600G-LR, as confirmed by the deposition testimony of Raymond Bautista, Lumicore's General Counsel, taken on December 3, 2024.
(f) Lumicore's engineering team, including Dr. Sandra Michaud, Lumicore's Chief Technology Officer, reviewed OWS's published patent applications during the LumiLink 400G-ZR+ design phase in 2021–2022. Dr. Michaud admitted during her deposition on November 19, 2024, that she personally reviewed OWS Published Application No. 2018/0123456, which corresponds to the '193 Patent. Former Lumicore engineer Melissa Chen, now employed by Veridian Photonics, Inc., is expected to provide testimony confirming that Lumicore's design team accessed and reviewed OWS's published patent applications during the product design phase.
(g) Lumicore has refused to produce the "competent legal opinions" referenced in its July 10, 2023 declination letter, despite asserting an advice-of-counsel defense to OWS's willful infringement allegations. Lumicore's assertion of privilege over those opinions, while simultaneously relying on the existence of those opinions as a defense, warrants an adverse inference.
(h) The in-person licensing meeting on April 20, 2023, further confirms Lumicore's awareness of OWS's patent rights and Lumicore's deliberate decision to continue infringing conduct rather than negotiate a license in good faith.
146. Under Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93 (2016), Lumicore's conduct represents the type of egregious infringement behavior that warrants enhanced damages. Lumicore had actual knowledge of OWS's patent rights, had access to OWS's published patent applications during the design of the accused products, received detailed claim charts demonstrating infringement, participated in an in-person licensing meeting, and nonetheless continued its infringing conduct and launched a new infringing product—all without taking a license, conducting a meaningful design-around analysis, or making a good-faith effort to avoid infringement.
147. OWS is entitled to enhanced damages up to three times the amount of damages found or assessed, pursuant to 35 U.S.C. § 284.
148. Post-notice lost profits—calculated from January 15, 2023 (the date of FairPoint's first licensing letter) through the projected trial date—are approximately $109.2 million. OWS seeks enhancement on the post-notice damages component in an amount to be determined by the jury and the Court.