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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

STIPULATED PROTECTIVE ORDER

WHEREAS, Plaintiff Optiwave Semiconductor Corp. ("OWS"), by and through its counsel of record, Calderwood & Harkness LLP, and its local counsel, Whitmore & Callahan LLP, and Defendant Lumicore Technologies, Inc. ("Lumicore"), by and through its counsel of record, Hawthorne Vega & Cruz LLP, and its local counsel, Trask Eddington LLP (collectively, the "Parties"), have conferred and jointly submit this Stipulated Protective Order (the "Order") pursuant to Rule 26(c) of the Federal Rules of Civil Procedure;

WHEREAS, this is a patent infringement action in which OWS alleges that Lumicore infringes United States Patent Nos. 10,234,847; 10,891,193; 9,678,562; and 11,402,015, each of which relates to silicon photonics transceiver and waveguide multiplexing technologies, including but not limited to optical transceiver module architectures, multi-channel waveguide multiplexer designs, thermal management structures for photonic integrated circuits, and polarization-diverse grating coupler configurations;

WHEREAS, the Parties anticipate that discovery in this Action will involve the production and exchange of confidential, proprietary, and trade-secret information, including but not limited to: (a) technical design documents, engineering specifications, CAD and layout files (including GDS-II, OASIS, and mask-design files), simulation data, and source code for semiconductor photonic integrated circuits and transceiver modules; (b) financial information, including product-level revenue, cost of goods sold, gross and operating margin data, and pricing information; (c) customer lists, customer-specific revenue data, supply-chain information, vendor agreements, and licensing agreements; (d) research and development strategies, technology roadmaps, next-generation product plans, and internal assessments of competitive positioning; and (e) other commercially sensitive business information, the unauthorized disclosure of which could result in competitive harm to either Party;

WHEREAS, good cause exists under Federal Rule of Civil Procedure 26(c)(1)(G) for the entry of a protective order to protect such information from public disclosure and to limit the use of such information to this litigation, as the Parties have demonstrated that the information at issue includes trade secrets, highly proprietary business data, and competitively sensitive technical materials the public disclosure of which would cause significant and irreparable competitive harm;

WHEREAS, the Parties have agreed to a three-tier confidentiality framework — "CONFIDENTIAL," "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY," and "HIGHLY CONFIDENTIAL — SOURCE CODE" — designed to balance the need for open litigation discovery and meaningful access to relevant evidence against the legitimate interests of both Parties in protecting proprietary information from unnecessary dissemination; and

WHEREAS, the Court has reviewed the Parties' stipulation and the supporting materials filed herewith and finds that good cause has been shown for entry of this Order;

NOW, THEREFORE, the Court hereby ORDERS as follows:

1. PURPOSES AND LIMITATIONS

1.1. This Order governs the handling, disclosure, and use of all "Protected Material" (as defined in Section 2.6 below) produced, disclosed, designated, or filed in connection with this Action, Optiwave Semiconductor Corp. v. Lumicore Technologies, Inc., Case No. 2:24-cv-00319-JRG, pending before the United States District Court for the Eastern District of Texas, marshall Division.

1.2. This Order does not confer blanket protections on all disclosures or productions made in this Action. The Designating Party must make an individualized, good-faith determination that the material qualifies for protection under the applicable tier before designating it as Protected Material. Overdesignation or bad-faith designation of materials that do not warrant confidentiality protection is prohibited and may, upon motion, result in the imposition of sanctions or other appropriate relief.

1.3. This Order is without prejudice to the right of any Party or affected non-party to seek modification of this Order, to challenge the designation of any particular document or category of information, or to seek additional protections beyond those set forth herein. Nothing in this Order shall be construed to limit the Court's inherent authority to modify, amend, or vacate this Order at any time.

1.4. This Order shall not prevent any Party from using its own documents, information, or materials without restriction, regardless of any confidentiality designation placed thereon by the opposing Party. A Party's own confidential information remains that Party's property, and no confidentiality designation by another Party shall restrict the producing Party's use of its own materials for any purpose whatsoever. For the avoidance of doubt, nothing in this Order shall prevent a Party from disclosing its own confidential business information to its own employees, officers, directors, investors, or other agents in the ordinary course of its business.

2. DEFINITIONS

As used in this Order, the following terms shall have the meanings set forth below:

2.1. "Action" means this patent infringement action, Optiwave Semiconductor Corp. v. Lumicore Technologies, Inc., Case No. 2:24-cv-00319-JRG, pending before the United States District Court for the Eastern District of Texas, marshall Division, including all proceedings, motions, hearings, trials, appeals, and any remand proceedings arising therefrom.

2.2. "Party" or "Parties" means Plaintiff Optiwave Semiconductor Corp. and Defendant Lumicore Technologies, Inc., and their respective counsel of record, successors, and assigns. The term "Party" shall also include any entity that may hereafter be joined, added, or substituted as a party to this Action, upon execution of an Agreement to Be Bound (Exhibit A hereto) or entry of an order by the Court extending the terms of this Order to such entity.

2.3. "Producing Party" means the Party or non-party that produces, discloses, or provides discovery material in this Action, whether through formal discovery (including responses to interrogatories, requests for production, requests for admission, and depositions), informal exchanges, or other means.

2.4. "Receiving Party" means the Party that receives Protected Material produced, disclosed, or provided in this Action. Where context requires, the term may also encompass any person who receives Protected Material on behalf of a Party in accordance with this Order.

2.5. "Designating Party" means the Party or non-party that designates material as Protected Material under one of the three tiers of protection established by this Order. The Designating Party need not be the original author or creator of the material; a Party may designate information it has received from a third party or non-party if that Party has a good-faith basis for believing such material warrants confidentiality protection.

2.6. "Protected Material" means any document, testimony, information, tangible thing, or intangible data designated under one of the three tiers of protection established by this Order: (i) "CONFIDENTIAL" (Tier 1); (ii) "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" (Tier 2); or (iii) "HIGHLY CONFIDENTIAL — SOURCE CODE" (Tier 3). The term includes all copies, excerpts, summaries, compilations, abstracts, notes, and derivative works that disclose, reflect, or are derived from the substance of Protected Material.

2.7. "Document" has the meaning set forth in Federal Rule of Civil Procedure 34(a) and includes all writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — including electronically stored information ("ESI") — from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. The term further includes all originals, copies, drafts, non-identical copies, versions, revisions, and associated metadata.

2.8. "Counsel of Record" means the following attorneys admitted or authorized to practice in this Action:

For Plaintiff Optiwave Semiconductor Corp.:

• Calderwood & Harkness LLP: Alan Ngo, Marcus Delgado, Wendy Schultz, and Omar Siddiqui; and

• Whitmore & Callahan LLP: James Callahan (local counsel).

For Defendant Lumicore Technologies, Inc.:

• Hawthorne Vega & Cruz LLP: Catherine Rourke, Darren Cho, Samantha Briggs, and Rohan Iyer; and

• Trask Eddington LLP: Maria Garza (local counsel).

The term "Counsel of Record" shall be deemed to include any attorney who enters an appearance in this Action on behalf of either Party subsequent to the date of this Order.

2.9. "In-House Counsel" means the following individuals:

• For Plaintiff Optiwave Semiconductor Corp.: Rebecca Tanaka, General Counsel of Optiwave Semiconductor Corp.

• For Defendant Lumicore Technologies, Inc.: Raymond Bautista, General Counsel of Lumicore Technologies, Inc.

The term "In-House Counsel" may be expanded by written stipulation of the Parties to include additional in-house legal personnel, subject to the requirements and restrictions set forth in this Order, including execution of an Agreement to Be Bound (Exhibit A).

2.10. "Expert" means any person retained or specially employed to provide expert testimony in this Action pursuant to Federal Rules of Civil Procedure 26(a)(2) or 26(b)(4), or any person whose duties as a party's employee regularly involve giving expert testimony, provided that such person has executed the Agreement to Be Bound attached hereto as Exhibit A. The term "Expert" includes both testifying experts and consulting experts, unless the context requires otherwise.

2.11. "Non-Party" means any individual or entity that is not a named party to this Action but who produces documents, provides information, or gives testimony in this Action pursuant to subpoena, court order, or voluntary agreement. Non-parties include, without limitation, third-party document custodians, fact witnesses, and entities from whom records are subpoenaed.

2.12. "Prosecution Bar" means the restrictions on patent prosecution activities set forth in Section 12 of this Order, applicable to persons who receive access to Tier 2 (AEO) or Tier 3 (Source Code) material of the opposing Party.

3. TIERS OF PROTECTION

This Order establishes three tiers of confidentiality protection. Each tier corresponds to the sensitivity of the Protected Material and carries distinct restrictions on access and use. The Designating Party shall select the tier that is appropriate for the material based on a good-faith assessment of the nature and sensitivity of the information. The three tiers are as follows:

3.1. Tier 1: CONFIDENTIAL

3.1.1. Definition. Material designated as "CONFIDENTIAL" is information that the Designating Party, in good faith, believes constitutes confidential business, technical, or financial information, the disclosure of which to unauthorized persons is reasonably likely to cause competitive harm to the Designating Party. This tier is intended for information that warrants protection from public disclosure and general dissemination but that may be shared with certain authorized representatives of the opposing Party who have a need to access the material in connection with this Action. Material qualifying for Tier 1 designation includes, without limitation: general business and financial information; aggregate revenue data; marketing strategies and plans; customer identities and general customer information; general product specifications and data sheets; non-public organizational charts and business structures; general supply-chain information; and other information that would not typically be disclosed to the public or to competitors in the ordinary course of business.

3.1.2. Authorized Persons. Material designated as CONFIDENTIAL may be disclosed to, and accessed by, only the following categories of persons:

(a) Counsel of Record for each Party and their partners, associates, paralegals, legal assistants, secretarial staff, and other personnel employed by or affiliated with Counsel of Record who are working on this Action and have a need to access the material in connection with their duties;

(b) In-House Counsel for each Party — specifically, Rebecca Tanaka (General Counsel of Optiwave Semiconductor Corp.) and Raymond Bautista (General Counsel of Lumicore Technologies, Inc.) — provided that each such In-House Counsel has executed the Agreement to Be Bound attached hereto as Exhibit A and provided further that such In-House Counsel is not directly involved in competitive decision-making for the specific product lines at issue in this Action (i.e., the silicon photonics transceiver and waveguide multiplexer product lines); provided, however, that this restriction shall not prevent In-House Counsel from performing his or her ordinary supervisory legal functions, including overseeing the conduct of this litigation, evaluating settlement positions, and advising senior management on legal strategy related to this Action;

(c) Designated Employees. Up to three (3) designated employees of each Party who have been identified by name in writing to opposing counsel and who have executed the Agreement to Be Bound (Exhibit A); such employees may include engineers, technical personnel, financial analysts, or other individuals whose assistance is reasonably necessary for counsel to understand, evaluate, or present the designated material in this Action. The Designating Party shall have the right to object to a particular designated employee within seven (7) calendar days of receiving notice of the designation, and any unresolved objection shall be submitted to the Court;

(d) Experts retained by either Party who have executed the Agreement to Be Bound (Exhibit A);

(e) The Court and its personnel, including the presiding judge, magistrate judges assigned to this Action, law clerks, courtroom deputies, and court reporters acting in their official capacity;

(f) Court-appointed mediators or special masters, if any are appointed in this Action, provided that any such mediator or special master has acknowledged the terms of this Order;

(g) Witnesses during depositions or at trial, but only to the extent reasonably necessary for examination, impeachment, or presentation purposes and subject to the procedures set forth in Sections 8 and 9 of this Order;

(h) Third-party litigation support vendors, including but not limited to document-copying services, ESI hosting and processing providers, electronic discovery vendors, graphic and demonstrative exhibit consultants, translators, and interpreters, who have executed the Agreement to Be Bound (Exhibit A); and

(i) Jury members, but only at trial and under conditions directed by the Court.

3.2. Tier 2: HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY ("AEO")

3.2.1. Definition. Material designated as "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" is information that the Designating Party, in good faith, believes constitutes highly sensitive confidential business, technical, or financial information, the disclosure of which to any employee of the opposing Party (beyond In-House Counsel under the limited circumstances described below) or to any other unauthorized person would create a substantial risk of serious competitive harm. This tier is reserved for information of such sensitivity that disclosure even to business personnel of the opposing Party (other than In-House Counsel acting in a legal capacity) could result in competitive advantage being gained or could otherwise cause material commercial injury. Material qualifying for Tier 2 designation includes, without limitation: product-level revenue, cost of goods sold, and margin data broken down by product line and by customer; detailed pricing information, including price lists, volume discount schedules, and negotiated customer-specific pricing; technology and product roadmaps; detailed design specifications for current and next-generation products; customer-by-customer revenue breakdowns; the terms and conditions of licensing agreements, joint development agreements, and strategic partnerships; internal competitive analyses; strategic business plans; and any other business or technical information of comparable sensitivity.

The Parties have specifically agreed that Lumicore's product-level financial data — including gross margins, unit costs, and customer-by-customer revenue breakdowns for the LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR product lines — will be designated at a minimum as HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY. Similarly, OWS has represented that its detailed product-level margin data and customer-specific pricing for the OWS-400ZR, OWS-800XR, and OWS-1600DR product lines will likewise be designated at a minimum as AEO. Nothing in this paragraph shall prevent either Party from designating such material at Tier 3 if it also constitutes source code or design-level material qualifying for that tier.

3.2.2. Authorized Persons. Material designated as HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY may be disclosed to, and accessed by, only the following categories of persons (which are more restrictive than the categories authorized for Tier 1 material):

(a) Outside Counsel of Record for each Party and their partners, associates, paralegals, legal assistants, and staff working on this Action, excluding summer associates, temporary attorneys, and temporary staff unless specifically authorized in writing by the Designating Party on a case-by-case basis;

(b) In-House Counsel for each Party — specifically, Rebecca Tanaka (General Counsel of Optiwave Semiconductor Corp.) and Raymond Bautista (General Counsel of Lumicore Technologies, Inc.) — but solely for the purpose of evaluating and providing legal advice and strategic direction concerning this Action, and provided that each such In-House Counsel has executed the Agreement to Be Bound (Exhibit A). In-House Counsel may not share, disclose, or otherwise communicate AEO material to any other employee, officer, director, or agent of the Party unless such person is an Expert who has signed the Agreement to Be Bound or is otherwise specifically authorized under this Order. In-House Counsel shall take reasonable precautions to ensure that AEO material is not inadvertently disclosed to unauthorized persons within the organization;

(d) The Court and its personnel, including the presiding judge, magistrate judges assigned to this Action, law clerks, courtroom deputies, and court reporters acting in their official capacity;

(e) Court-appointed mediators or special masters, if any are appointed in this Action;

(f) Third-party litigation support vendors, including but not limited to document-copying services, ESI hosting and processing providers, electronic discovery vendors, graphic and demonstrative exhibit consultants, translators, and interpreters, who have executed the Agreement to Be Bound (Exhibit A); and

(g) Witnesses during depositions, but only to the extent reasonably necessary for examination and subject to the procedures set forth in Section 8 of this Order.

3.2.3. Exclusion of Business Employees. For the avoidance of doubt, ordinary business employees of a Party (other than In-House Counsel acting solely in a legal capacity as described above and designated Experts) may not access, view, or receive disclosure of AEO material of the opposing Party. This restriction is intended to prevent competitive use of the opposing Party's most sensitive business and technical information and shall be strictly enforced.

3.3. Tier 3: HIGHLY CONFIDENTIAL — SOURCE CODE

3.3.1. Definition. Material designated as "HIGHLY CONFIDENTIAL — SOURCE CODE" includes source code, firmware code, register-transfer level ("RTL") schematics, photonic-IC layout files (including, without limitation, GDS-II files, OASIS files, and mask-design files), hardware description language ("HDL") files (including Verilog, SystemVerilog, and VHDL), netlists, synthesis scripts, design-rule check ("DRC") results, layout-versus-schematic ("LVS") verification data, process design kit ("PDK") configuration files, fabrication run data, optical simulation models, and other code-level or design-level materials that constitute trade secrets or highly proprietary technical information of the Designating Party. This tier is reserved for the most competitively sensitive technical design information and represents the highest level of protection available under this Order.

This tier applies specifically, but not exclusively, to the source-code repositories, photonic-IC mask files, fabrication run data, and associated design files for the accused Lumicore product families (LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR) and for OWS's competing products (OWS-400ZR, OWS-800XR, and OWS-1600DR). The Parties acknowledge that such materials represent years of significant investment in research and development, are closely guarded within each organization, and would provide an extraordinary competitive advantage to a competitor if improperly disclosed.

3.3.2. Authorized Persons. Material designated as HIGHLY CONFIDENTIAL — SOURCE CODE may be disclosed to, and accessed by, only the following categories of persons (which represent the most restrictive access controls under this Order):

(a) Outside Counsel of Record for each Party, limited to a maximum of four (4) designated attorneys per side, who shall be identified by name in writing to the Designating Party prior to any review of Source Code material. The initial designations are set forth in Exhibit C hereto;

(b) Up to two (2) Experts per side who have executed both the Agreement to Be Bound (Exhibit A) and the Source Code Addendum (Exhibit B hereto). The initial designations are set forth in Exhibit C;

(d) Up to two (2) litigation support staff per outside counsel firm who have executed both the Agreement to Be Bound (Exhibit A) and the Source Code Addendum (Exhibit B), and who are identified by name to the Designating Party;

(e) In-House Counsel is expressly EXCLUDED from access to the opposing Party's Tier 3 Source Code material. Neither Rebecca Tanaka (General Counsel of OWS) nor Raymond Bautista (General Counsel of Lumicore) shall have access to, view, or receive disclosure of the opposing Party's Source Code material under any circumstances; and

(f) No employee of either Party (other than designated Experts who satisfy the requirements of subsection (b) above) may access the opposing Party's Tier 3 Source Code material. This restriction applies without exception to all officers, directors, engineers, scientists, product managers, and other personnel of each Party.

3.3.3. Source Code Review Procedures. The following procedures shall govern all reviews of material designated as HIGHLY CONFIDENTIAL — SOURCE CODE:

(a) Review Facility. Source code and other Tier 3 material shall be made available for inspection only at a secure review facility designated by the Producing Party, or, by written agreement of the Parties, at an alternative secure facility such as the offices of the Producing Party's outside counsel. Unless otherwise agreed:

• For review of Lumicore source code: Reviews shall take place at the offices of Hawthorne Vega & Cruz LLP, located at 600 Congress Avenue, Suite 2400, Austin, Texas 78701, in a designated secure review room.

• For review of OWS source code: Reviews shall take place at the offices of Calderwood & Harkness LLP, located at 350 South Grand Avenue, 48th Floor, Los Angeles, California 90071, in a designated secure review room, or at such other facility within the Eastern District of Texas as the Parties may agree.

(b) Standalone Terminal. Source code shall be made available on a standalone, non-networked computer terminal. Such terminal shall have no active USB ports, no external drives (including CD/DVD drives or portable storage devices), no wireless networking capability, no Bluetooth connectivity, and no internet access. The Producing Party shall configure the review terminal with such development environment tools and search functionality as are reasonably necessary for the reviewing Expert or attorney to navigate and analyze the source code.

(c) Copying Restrictions. No copying, downloading, or reproduction of source code in its entirety or in substantial part is permitted under any circumstances. However, the reviewing party's authorized personnel may make handwritten or typed notes of limited excerpts not to exceed one hundred fifty (150) lines of code per review session. Such notes are necessary to enable preparation of claim charts, infringement contentions, validity contentions, expert reports, or other litigation documents, and all such notes shall be maintained in a secure manner and shall themselves be treated as Tier 3 material subject to all restrictions of this Order.

(d) Use in Litigation Documents. Printed excerpts of source code may be included in expert reports, claim charts, responsive and reply claim construction briefs, dispositive motion papers, and other court filings, provided that any such filing containing source code excerpts is clearly marked "HIGHLY CONFIDENTIAL — SOURCE CODE" on every page and is filed under seal in accordance with Section 7 of this Order.

(e) Scheduling of Review Sessions. Source code review sessions shall be scheduled upon at least five (5) business days' written notice to the Producing Party's outside counsel, specifying the identity of each person who will attend the session, the approximate subject matter or code modules to be reviewed, and the anticipated duration of the session.

(f) Minimum Availability. The Producing Party shall make source code available for review during a minimum of three (3) review sessions per calendar quarter. Each session shall be of at least eight (8) hours in duration, to be conducted during normal business hours (8:00 a.m. to 6:00 p.m. local time) or at such other times as the Parties agree. The Producing Party shall use commercially reasonable efforts to accommodate reasonable requests for additional sessions when necessitated by deadlines for submission of expert reports, claim construction briefs, or other litigation obligations.

(g) Expert Obligations. Expert witnesses who review source code must sign the Source Code Addendum (Exhibit B) prior to their first review session and may not disclose the substance, structure, logic, or content of source code to any person not authorized to access Tier 3 material under this Section. Experts shall not retain source code excerpts or notes at their personal residences, university offices, or other locations; all such materials shall be maintained at the offices of the retaining Party's outside counsel.

4. DESIGNATING PROTECTED MATERIAL

4.1. Designation of Documents. A Designating Party shall designate a document as Protected Material by marking each page of the produced document (or, for documents produced in native format, the first page of a multi-page document in the native production) with the applicable confidentiality legend, as follows:

• For Tier 1: "CONFIDENTIAL"

• For Tier 2: "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY"

• For Tier 3: "HIGHLY CONFIDENTIAL — SOURCE CODE"

The legend shall be placed in a conspicuous location on the document, such as a header, footer, or stamp, and shall be clearly legible. For documents produced as TIFF images, the legend shall appear as a text overlay or stamp on each page image.

4.2. Designation of Electronically Stored Information (ESI). For ESI produced in accordance with the Parties' ESI Protocol dated July 29, 2024, the Designating Party shall designate Protected Material by inclusion of the appropriate designation in the load-file metadata field labeled "Confidentiality" and on the face of TIFF images (for TIFF-format productions). For ESI produced in native format, the designation shall be reflected in the file-name suffix — for example, "[Filename]CONFIDENTIAL.xlsx," "[Filename]AEO.xlsx," or "[Filename]SOURCECODE.xlsx" — and in the corresponding entry in the accompanying load file. The Designating Party shall ensure that the confidentiality designation is consistently applied across all components of a produced document, including extracted text, metadata, and image files.

4.3. Designation of Deposition Testimony. A Designating Party may designate deposition testimony as Protected Material by one of two methods: (a) by instruction to the witness or by a statement on the record during the deposition that the testimony being elicited or about to be elicited is designated at a particular tier; or (b) by written notice to all Parties within twenty-one (21) calendar days after receipt of the final deposition transcript, identifying the specific pages and lines designated and the applicable tier for each such designation. If the Designating Party does not provide a written designation within the twenty-one (21) day period, the testimony shall be deemed non-confidential unless it was designated on the record during the deposition. During the twenty-one (21) day designation period, the entire transcript shall be treated as HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY to preserve the Designating Party's opportunity to assign appropriate designations.

4.4. Designation of Written discovery Responses. Interrogatory answers, responses to requests for admission, and other written discovery responses may be designated as Protected Material by marking the response document with the applicable confidentiality legend on each page or on the cover page of the response, together with a clear indication that the document contains information designated at the specified tier.

4.5. Designation of Information Provided by Non-Parties. Non-parties who produce documents or information in this Action pursuant to subpoena, court order, or voluntary agreement may designate their materials as Protected Material under any of the three tiers by applying the appropriate markings described in this Section 4. The Parties shall provide a copy of this Order to any non-party from whom discovery is sought, either prior to or contemporaneously with service of any subpoena or written request for documents. Non-parties from whom discovery may be sought include, but are not limited to: Cascade IP Advisors, LLC; FairPoint Licensing Group, LLC; Benchmark Semiconductor Analysis, LLC; Marlowe Asset Management Patent Analytics, Inc.; Solara Optics, Inc. (records custodian Gregory Falk); Veridian Photonics, Inc. (concerning documents related to Melissa Chen); and any other subpoenaed entity. Each non-party shall be afforded twenty-one (21) calendar days from the date of production to designate its materials as Protected Material under this Order.

4.6. Mass Designations Prohibited. The Designating Party shall not designate entire document productions at a single tier in bulk without an individualized, good-faith assessment. Each document shall be assessed individually or, where appropriate, by defined document category (e.g., all documents from a particular custodian concerning a specific subject matter), with a good-faith basis for the designation applied to each document or category. The Parties acknowledge that OWS has produced approximately 182,000 documents (comprising approximately 1.4 million pages) and that Lumicore has produced approximately 147,000 documents (comprising approximately 980,000 pages) in this Action, and that not all of these documents warrant confidentiality designations. The Parties further acknowledge their obligation to refrain from overdesignation and to apply confidentiality markings only where genuinely warranted.

4.7. Timeliness of Designations. Confidentiality designations may be applied at the time of production or within thirty (30) calendar days after the date of production. Material produced without a confidentiality designation shall be treated as non-confidential unless the Producing Party or Designating Party redesignates such material within this thirty (30) day period by written notice to the Receiving Party. Upon receipt of a redesignation notice, the Receiving Party shall promptly treat the material in accordance with the newly assigned designation. The Designating Party shall use reasonable efforts to apply designations at the time of production to minimize the administrative burden associated with post-production redesignation.

5. CHALLENGING CONFIDENTIALITY DESIGNATIONS

5.1. Right to Challenge. Any Receiving Party may challenge the confidentiality designation of any document, testimony, or other information at any time during the pendency of this Action. A challenge shall be made by providing written notice (which may be sent by email) to the Designating Party, specifically identifying: (a) the document(s) or information at issue (by Bates number, deposition transcript page and line, or other reasonably specific identifier); and (b) the basis for the Receiving Party's belief that the designation is not warranted or that a lower tier designation is appropriate.

5.2. Meet-and-Confer Requirement. Within fourteen (14) calendar days of receiving a challenge notice, the Designating Party and the Challenging Party shall meet and confer in good faith to attempt to resolve the dispute. The meet-and-confer may be conducted by telephone, video conference, or in person, and the Parties shall make every reasonable effort to resolve the dispute without involving the Court. During the meet-and-confer, the Designating Party shall provide a reasonable explanation for the challenged designation, and the Challenging Party shall explain the basis for its objection. The Parties may agree to resolve the dispute by redesignating the material at a different tier or by removing the designation entirely.

5.3. Motion to the Court. If the dispute is not resolved within fourteen (14) calendar days following the initial meet-and-confer (or such longer period as the Parties may agree in writing), the Challenging Party may file a motion with the Court to modify or remove the designation. The Designating Party bears the burden of establishing that the challenged designation is proper and that good cause exists under Federal Rule of Civil Procedure 26(c) for the level of protection assigned to the material. The motion shall be filed in accordance with the Court's Local Rules and the Individual Practices of Judge Gilstrap.

5.4. Treatment Pending Resolution. Pending resolution of any challenge — whether by agreement of the Parties or by order of the Court — the material that is the subject of the challenge shall continue to be treated under the designation assigned by the Designating Party. No Party shall be required to alter its treatment of challenged material unless and until the challenge is resolved by agreement or court order.

5.5. Redesignation. The Designating Party may, at any time, upgrade or downgrade the confidentiality designation of any material upon written notice to the Receiving Party. In the case of an upgrade (e.g., from Tier 1 to Tier 2), the Receiving Party shall promptly comply with the restrictions applicable to the new, higher tier designation and shall take reasonable steps to retrieve or restrict access to copies previously disseminated under the lower tier designation. In the case of a downgrade (e.g., from Tier 2 to Tier 1), the Receiving Party shall be entitled to treat the material under the new, lower tier designation as of the date of receipt of the redesignation notice.

6. USE OF PROTECTED MATERIAL

6.1. Use Limitation. Protected Material shall be used solely for the prosecution, defense, and resolution of this Action, including trial, any appeal, any remand proceedings, and any related settlement or mediation discussions. Protected Material shall not be used for any business, commercial, competitive, personal, or other purpose unrelated to this Action.

6.2. Prohibited Uses. Without limiting the generality of Section 6.1, Protected Material shall not be used for any of the following purposes: (a) patent prosecution, whether before the United States Patent and Trademark Office or any foreign patent office, except as provided in Section 12; (b) patent licensing or enforcement outside the scope of this Action; (c) business development, strategic planning, or competitive intelligence; (d) product design, product development, or engineering activities; (e) marketing, sales, or pricing decisions; (f) recruitment of employees, consultants, or other personnel; or (g) any other purpose unrelated to the prosecution, defense, or resolution of this Action.

6.3. Restriction on Disclosure. Protected Material may not be disclosed, disseminated, communicated, or made available, in whole or in part, to any person who is not authorized to access such material under the applicable tier as set forth in Section 3 of this Order. Each person who receives access to Protected Material shall be made aware of the confidentiality designation and the restrictions applicable to the material before receiving access.

6.4. Responsibility for Compliance. Each Party is responsible for ensuring that all persons to whom it provides access to Protected Material are informed of and comply with the terms of this Order. Counsel of Record for each Party shall take reasonable precautions to prevent unauthorized access to, or disclosure of, Protected Material, including implementing appropriate physical and electronic security measures for the storage and handling of Protected Material in their offices and on their electronic systems.

7. FILING PROTECTED MATERIAL WITH THE COURT

7.1. General Rule. Protected Material shall not be filed on the public record. Any Party that seeks to file a document containing Protected Material with the Court shall file it under seal in accordance with the Court's Local Rules, the individual practices of the presiding judge, and the procedures set forth in this Section. The Parties recognize the strong presumption of public access to judicial records and shall endeavor to minimize the volume of material filed under seal, including by using targeted redactions rather than wholesale sealing where practicable.

7.2. Procedure for Filing Under Seal. The following procedures shall govern any filing that contains Protected Material:

(a) The filing Party shall file a redacted (public) version of the document on the public docket, with all Protected Material redacted in a manner that is clearly indicated (e.g., by use of black redaction bars or bracketed placeholders indicating the nature of the redacted information). Simultaneously, the filing Party shall file a sealed (unredacted) version of the document on the Court's CM/ECF system using the "sealed" filing designation, in compliance with the Court's technical requirements.

(b) The filing Party shall accompany the sealed filing with a motion to seal that identifies: (i) the specific Protected Material proposed to be sealed (by page, paragraph, or exhibit reference); (ii) the applicable tier designation under this Order; (iii) the identity of the Designating Party; and (iv) an explanation of why continued sealing is warranted, including a description of the competitive or other harm that would result from public disclosure.

(c) The opposing Party shall have seven (7) calendar days from the date of filing of the motion to seal to file any objection to the motion to seal or to the specific material proposed for sealing. If no objection is filed, the motion to seal may be considered by the Court without further briefing.

7.3. Court's Authority. The Court retains full authority to unseal any material filed under seal if the Court determines that the interest in public access to judicial records outweighs the interest in confidentiality, or that the party seeking to maintain the seal has not established good cause for continued sealing. Nothing in this Order shall be construed to limit the Court's discretion in this regard.

7.4. Claim Construction Briefs and Trial Exhibits. To the extent that claim construction briefs, Markman hearing presentations, expert reports, pretrial memoranda, trial exhibits, or other substantive filings contain Protected Material, the Parties shall confer in advance regarding appropriate redactions for the public versions of such filings. The Parties shall endeavor to maximize public access to the substance of the proceedings consistent with the legitimate protection of genuinely confidential information, and shall consider whether targeted redactions of specific data points, figures, or source-code excerpts can adequately protect the Designating Party's interests without requiring wholesale sealing of entire briefs or exhibits.

8. PROTECTED MATERIAL IN DEPOSITIONS

8.1. Designation of Deposition Testimony. Any Party may designate a deposition, or any portion thereof, as containing Protected Material at any tier, in accordance with the procedures set forth in Section 4.3 of this Order. The designation may be made on the record during the deposition or by written notice within twenty-one (21) calendar days after receipt of the final transcript, or both.

8.2. Persons Present During Confidential Testimony. During any portion of a deposition at which Tier 2 (HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY) or Tier 3 (HIGHLY CONFIDENTIAL — SOURCE CODE) material is discussed, elicited, or presented as an exhibit:

(a) The Designating Party may request that all persons not authorized to access the relevant tier be excluded from the deposition room (or, for depositions conducted by video conference, from the video conference session) during such testimony. Upon such request, the examining Party shall make reasonable accommodations to excuse unauthorized persons from the room, including by taking a brief recess to allow such persons to depart before confidential testimony resumes.

(b) The court reporter and videographer, if any, retained for the deposition shall be treated as litigation support vendors for purposes of this Order and must execute the Agreement to Be Bound (Exhibit A) before the deposition commences. Counsel for the Party noticing the deposition shall be responsible for ensuring that the court reporter and videographer have executed Exhibit A.

8.3. Treatment of Transcripts. Deposition transcripts shall be treated at the highest tier of designation assigned to any portion of the transcript until the Designating Party provides a final, page-and-line designation within twenty-one (21) calendar days after receipt of the final transcript. Once the final designation is provided, only those portions of the transcript specifically designated shall be treated as Protected Material; the remainder of the transcript shall be treated as non-confidential. If the Designating Party fails to provide a final designation within the twenty-one (21) day period, the transcript shall be treated as non-confidential, except for any portions designated on the record during the deposition.

8.4. Confidential Deposition Exhibits. Exhibits shown, used, or referenced during a deposition shall retain their existing confidentiality designation. Any document designated at Tier 2 or Tier 3 that is to be shown to a witness during a deposition shall be shown only if the witness is an authorized person under the applicable tier or if the Designating Party consents in advance (or on the record) to the display of the exhibit to the witness. If the Designating Party objects to a Tier 2 or Tier 3 exhibit being shown to an unauthorized witness, the examining party may seek a ruling from the Court.

8.5. Deponents Who Are Not Authorized Persons. If a deponent (whether a party witness or a non-party witness) is not an authorized person under the applicable tier of designation, the examining Party may show the deponent Protected Material solely for the purposes of questioning at the deposition. In such circumstances: (a) the deponent may not retain copies of the Protected Material shown; (b) the Designating Party may instruct the deponent, on the record, not to disclose the substance of such material to any person outside the deposition; and (c) the examining Party shall retrieve all copies of the Protected Material from the deponent's possession at the conclusion of the examination on the relevant topic. This provision does not apply to a Party's own Protected Material shown to its own witness.

9. PROTECTED MATERIAL AT TRIAL

9.1. Pre-Trial Conference on Confidentiality Procedures. The Parties shall confer at least thirty (30) days before the commencement of the jury trial currently set for February 2, 2026, regarding the procedures for handling Protected Material at trial. The Parties shall use their best efforts to reach agreement on trial confidentiality procedures in advance of the pre-trial conference.

9.2. Proposed Trial Procedures. The Parties shall jointly propose procedures to the Court at the pre-trial conference, currently scheduled for January 5, 2026, for protecting confidential information during trial testimony, the presentation of exhibits to the jury, and any other trial proceedings at which Protected Material may be disclosed. Proposed procedures may include, without limitation:

(a) Presentation of designated material only to the jury on individual monitors or binders not visible to the public gallery, rather than on publicly accessible courtroom screens or projection systems;

(b) Limited closures of the courtroom during testimony that necessarily involves the discussion of Tier 2 or Tier 3 material, with such closures to be as narrow and brief as reasonably practicable;

(c) Use of pseudonyms, coded references, or anonymized identifiers for customer names, supplier names, or specific financial data points during testimony and in trial exhibits, to avoid unnecessary public disclosure of commercially sensitive identities and figures; and

(d) Preparation and use of redacted versions of trial exhibits for inclusion in the public record, with unredacted versions maintained under seal.

9.3. Court Determination. The Court will determine the appropriate procedures for handling Protected Material at trial after hearing from the Parties and considering the specific nature of the Protected Material at issue, the interests of the public in access to trial proceedings, and the legitimate confidentiality interests of the Parties and non-parties. The Parties acknowledge that the Court has broad discretion in fashioning trial confidentiality procedures and that the Court may adopt, modify, or reject the Parties' proposed procedures.

10. INADVERTENT PRODUCTION OF PRIVILEGED MATERIAL

10.1. Clawback Provision. In accordance with Federal Rule of Evidence 502(d) and the Parties' Joint discovery Plan and Report filed on July 29, 2024 (Dkt. No. 28), the inadvertent production of any document, communication, or information protected by the attorney-client privilege, the work-product doctrine, or any other applicable privilege or protection shall not constitute a waiver of such privilege or protection in this Action or in any other federal or state proceeding. This provision shall be given the broadest effect permitted under Federal Rule of Evidence 502(d) and shall be enforceable in all proceedings in this or any other court.

10.2. Procedure Upon Notification. Upon notification by the Producing Party (or any non-party) that privileged or protected material has been inadvertently produced, the Receiving Party shall take the following steps:

(a) Return, Sequester, or Destroy. The Receiving Party shall, within five (5) business days of receiving the notification, promptly return all copies of the identified material (in whatever form, including paper, electronic, and imaged copies) to the Producing Party, or sequester all copies of the identified material in a manner that prevents access by any person, or destroy all copies of the identified material — in each case, at the election of the Receiving Party, with confirmation of the action taken provided to the Producing Party.

(b) No Use. The Receiving Party shall not use, reference, or rely upon the inadvertently produced material for any purpose in this Action or in any other proceeding, unless and until the claim of privilege or protection is resolved by agreement of the Parties or by order of the Court. This prohibition applies to all derivative use, including the preparation of deposition outlines, motion papers, or expert reports based on information obtained from the inadvertently produced material.

(c) Notification to Third Parties. If the Receiving Party has already disclosed or provided the inadvertently produced material to any other person (including experts, consultants, or litigation support vendors), the Receiving Party shall promptly notify each such person of the Producing Party's privilege claim and shall request the immediate return, sequestration, or destruction of all copies in such person's possession, custody, or control.

10.3. Privilege Logging. The Producing Party shall log the inadvertently produced material on its privilege log within a reasonable time after the clawback notification. The Parties acknowledge that OWS currently maintains a privilege log with 1,247 initial entries and 318 supplemental entries, and that Lumicore maintains its privilege log separately. The inadvertently produced material shall be added to the applicable log with sufficient detail to enable the Receiving Party to assess the privilege claim, including the date, author, recipient(s), general subject matter, and basis for the privilege asserted.

10.4. Dispute Resolution. Disputes regarding the validity of privilege designations for clawed-back material shall be resolved by the Court upon motion by either Party, following a good-faith meet-and-confer as required by Local Rule CV-7(h) and the Individual Practices of Judge Gilstrap.

11. NON-PARTY OBLIGATIONS

11.1. Non-Party Designations. Non-parties who produce documents, provide information, or give testimony in this Action may designate their materials as Protected Material under this Order by applying the appropriate tier designation in accordance with the procedures set forth in Section 4 of this Order. The protections of this Order shall extend to materials produced by non-parties to the same extent as materials produced by the Parties.

11.2. Notice to Non-Parties. The Parties shall provide a copy of this Order to all non-parties from whom discovery is sought, either prior to or contemporaneously with service of any subpoena, deposition notice, or written request for documents. Non-parties to whom this Order shall be provided include, but are not limited to:

• Cascade IP Advisors, LLC (Dr. Martin Chu);

• FairPoint Licensing Group, LLC (Angela Reeves);

• Benchmark Semiconductor Analysis, LLC (Kevin Ng);

• Marlowe Asset Management Patent Analytics, Inc.;

• Veridian Photonics, Inc. (concerning documents related to Melissa Chen);

• Gregory Falk, records custodian of Solara Optics, Inc.;

• Gresham & Whitfield LLP (auditors), if subpoenaed; and

• Brennan Kellogg & Associates LLP (auditors), if subpoenaed.

The Parties shall also provide a copy of this Order to any other non-party from whom discovery is sought during the pendency of this Action.

11.3. Non-Party Protections. Any non-party that produces Protected Material pursuant to this Order shall be entitled to the same protections as a party Designating Party, including the right to challenge the treatment or disclosure of its materials and the right to seek enforcement of this Order through the Court.

11.4. Prohibition on Circumvention. The Parties shall not subpoena, informally request, or otherwise seek to compel production from non-parties in a manner that is designed to, or has the effect of, circumventing the protections afforded by this Order. Any Party that obtains from a non-party materials that it knows or reasonably should know were designated as Protected Material by another Party or non-party shall treat such materials in accordance with the applicable tier designation.

12. PROSECUTION BAR

12.1. Scope of Prosecution Bar. Any person who receives access to Tier 2 (HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY) or Tier 3 (HIGHLY CONFIDENTIAL — SOURCE CODE) material of the opposing Party shall not, for a period of one (1) year after the final conclusion of this Action (including exhaustion or expiration of all rights of appeal and any remand proceedings), participate in the prosecution of patents or patent applications before the United States Patent and Trademark Office relating to any of the following technology areas:

(a) Silicon photonics transceiver technology, including optical transceiver module design, modulation, and signal processing;

(b) Waveguide multiplexer technology, including arrayed waveguide gratings and echelle gratings for wavelength-division multiplexing;

(d) Polarization-diverse grating coupler technology, including fiber-to-chip coupling and polarization-splitting architectures.

For purposes of this Section, "prosecution" includes original patent prosecution, continuation and divisional applications, reissue proceedings, ex parte reexamination, inter partes review, post-grant review, covered business method review, and any other post-issuance proceeding before the United States Patent and Trademark Office. The term "participate" includes personally drafting or revising patent claims, directing the preparation of patent applications, providing substantive input on claim scope or prosecution strategy, and conducting prior-art searches in connection with patent prosecution.

12.2. Exceptions. The following exceptions apply to the prosecution bar set forth in Section 12.1:

(a) Counsel of Record. The prosecution bar does not apply to Counsel of Record who merely review AEO or Source Code material in the ordinary course of this litigation, provided that such counsel does not personally draft, revise, or substantively direct the drafting of patent claims, claim amendments, or arguments in prosecution proceedings relating to the technology areas identified in Section 12.1 during the restricted period. This exception recognizes that Counsel of Record's primary function in this Action is trial and appellate litigation, and that incidental exposure to AEO or Source Code material in that capacity does not create the type of risk that the prosecution bar is designed to address.

(b) Experts. The prosecution bar does not apply to Experts who review AEO or Source Code material, provided that such Experts do not serve as patent prosecution consultants for either Party during the restricted period. For the avoidance of doubt, an Expert may continue to serve as a technical consultant or expert witness in other litigation matters during the restricted period, provided that the Expert does not engage in patent prosecution activities in the specified technology areas.

(c) Cascade IP Advisors, LLC. Patent prosecution counsel at Cascade IP Advisors, LLC, and specifically Dr. Martin Chu, shall not receive access to any of Lumicore's AEO or Source Code material under any circumstances. This restriction is intended to preserve the separation between prosecution and litigation functions and to ensure that OWS's ongoing patent prosecution activities are not tainted by exposure to Lumicore's competitively sensitive confidential information.

12.3. Disputes. Disputes regarding the scope, applicability, or enforcement of the prosecution bar may be raised with the Court by motion at any time. Any person subject to the prosecution bar who believes that a particular prosecution activity falls outside the scope of the bar may seek a declaratory ruling from the Court prior to engaging in the activity.

13. OBLIGATIONS UPON CONCLUSION OF LITIGATION

13.1. Return or Destruction of Protected Material. Within ninety (90) days after the final resolution of this Action — including exhaustion of all rights of appeal, expiration of all applicable appeal deadlines, or final settlement — each Receiving Party shall, at the election of the Producing Party (communicated in writing):

(a) Return all Protected Material (and all copies, reproductions, notes, summaries, abstracts, compilations, and derivative works derived therefrom) to the Producing Party, together with a written certification by counsel that all such material has been returned and that no copies have been retained except as permitted by Section 13.2; or

(b) Destroy all Protected Material (and all copies, reproductions, notes, summaries, abstracts, compilations, and derivative works derived therefrom) and certify such destruction in writing to the Producing Party, signed by counsel for the Receiving Party. The certification shall confirm the method of destruction employed and shall state that, to the best of counsel's knowledge, information, and belief, all copies of the Protected Material have been destroyed except as permitted by Section 13.2.

If the Producing Party does not communicate an election within thirty (30) days after the final resolution of this Action, the Receiving Party may elect either return or destruction at its option.

13.2. Exception for Litigation Files. Notwithstanding Section 13.1, outside counsel for each Party may retain one (1) archival copy of all pleadings, motion papers, expert reports, deposition transcripts, hearing transcripts, trial transcripts, correspondence, and work-product materials containing or referencing Protected Material. Such archival copies shall be maintained in secure counsel files (whether in physical or electronic form) and shall be used solely for the following purposes:

(a) Establishing compliance with professional responsibility and ethical obligations;

(b) Defending against claims of legal malpractice or other proceedings challenging counsel's conduct in this Action;

(c) Resolving any post-judgment dispute arising from this Action, including disputes regarding compliance with this Order, enforcement of judgments, or calculation of damages; and

(d) Complying with applicable document-retention requirements imposed by law, regulation, or professional obligation.

Such archival copies shall remain subject to the confidentiality obligations of this Order in perpetuity and shall not be disclosed to any person not authorized under this Order without prior written consent of the Designating Party or an order of the Court.

13.3. Expert Obligations. Each Expert who has received access to Protected Material shall return or destroy all Protected Material in his or her possession, custody, or control within sixty (60) days after the conclusion of this Action. Each Expert shall certify such return or destruction in writing to the retaining Party's outside counsel. The retaining Party's counsel shall provide a copy of such certification to the opposing Party's counsel upon request.

13.4. Survival of Obligations. The confidentiality obligations imposed by this Order shall survive the conclusion of this Action, including any settlement, dismissal, entry of final judgment, appeal, or remand, and shall remain in full force and effect indefinitely, unless modified or vacated by the Court or by written agreement of the Parties approved by the Court.

14. MODIFICATION

14.1. Modification by Stipulation or Order. This Order may be modified, amended, or supplemented at any time by (a) written stipulation of the Parties, fi

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
STIPULATED PROTECTIVE ORDER
WHEREAS, Plaintiff Optiwave Semiconductor Corp. ("OWS"), by and through its counsel of record, Calderwood & Harkness LLP, and its local counsel, Whitmore & Callahan LLP, and Defendant Lumicore Technologies, Inc. ("Lumicore"), by and through its counsel of record, Hawthorne Vega & Cruz LLP, and its local counsel, Trask Eddington LLP (collectively, the "Parties"), have conferred and jointly submit this Stipulated Protective Order (the "Order") pursuant to Rule 26(c) of the Federal Rules of Civil Procedure;
WHEREAS, this is a patent infringement action in which OWS alleges that Lumicore infringes United States Patent Nos. 10,234,847; 10,891,193; 9,678,562; and 11,402,015, each of which relates to silicon photonics transceiver and waveguide multiplexing technologies, including but not limited to optical transceiver module architectures, multi-channel waveguide multiplexer designs, thermal management structures for photonic integrated circuits, and polarization-diverse grating coupler configurations;
WHEREAS, the Parties anticipate that discovery in this Action will involve the production and exchange of confidential, proprietary, and trade-secret information, including but not limited to: (a) technical design documents, engineering specifications, CAD and layout files (including GDS-II, OASIS, and mask-design files), simulation data, and source code for semiconductor photonic integrated circuits and transceiver modules; (b) financial information, including product-level revenue, cost of goods sold, gross and operating margin data, and pricing information; (c) customer lists, customer-specific revenue data, supply-chain information, vendor agreements, and licensing agreements; (d) research and development strategies, technology roadmaps, next-generation product plans, and internal assessments of competitive positioning; and (e) other commercially sensitive business information, the unauthorized disclosure of which could result in competitive harm to either Party;
WHEREAS, good cause exists under Federal Rule of Civil Procedure 26(c)(1)(G) for the entry of a protective order to protect such information from public disclosure and to limit the use of such information to this litigation, as the Parties have demonstrated that the information at issue includes trade secrets, highly proprietary business data, and competitively sensitive technical materials the public disclosure of which would cause significant and irreparable competitive harm;
WHEREAS, the Parties have agreed to a three-tier confidentiality framework — "CONFIDENTIAL," "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY," and "HIGHLY CONFIDENTIAL — SOURCE CODE" — designed to balance the need for open litigation discovery and meaningful access to relevant evidence against the legitimate interests of both Parties in protecting proprietary information from unnecessary dissemination; and
WHEREAS, the Court has reviewed the Parties' stipulation and the supporting materials filed herewith and finds that good cause has been shown for entry of this Order;
NOW, THEREFORE, the Court hereby ORDERS as follows:
1. PURPOSES AND LIMITATIONS
1.1. This Order governs the handling, disclosure, and use of all "Protected Material" (as defined in Section 2.6 below) produced, disclosed, designated, or filed in connection with this Action, Optiwave Semiconductor Corp. v. Lumicore Technologies, Inc., Case No. 2:24-cv-00319-JRG, pending before the United States District Court for the Eastern District of Texas, marshall Division.
1.2. This Order does not confer blanket protections on all disclosures or productions made in this Action. The Designating Party must make an individualized, good-faith determination that the material qualifies for protection under the applicable tier before designating it as Protected Material. Overdesignation or bad-faith designation of materials that do not warrant confidentiality protection is prohibited and may, upon motion, result in the imposition of sanctions or other appropriate relief.
1.3. This Order is without prejudice to the right of any Party or affected non-party to seek modification of this Order, to challenge the designation of any particular document or category of information, or to seek additional protections beyond those set forth herein. Nothing in this Order shall be construed to limit the Court's inherent authority to modify, amend, or vacate this Order at any time.
1.4. This Order shall not prevent any Party from using its own documents, information, or materials without restriction, regardless of any confidentiality designation placed thereon by the opposing Party. A Party's own confidential information remains that Party's property, and no confidentiality designation by another Party shall restrict the producing Party's use of its own materials for any purpose whatsoever. For the avoidance of doubt, nothing in this Order shall prevent a Party from disclosing its own confidential business information to its own employees, officers, directors, investors, or other agents in the ordinary course of its business.
2. DEFINITIONS
As used in this Order, the following terms shall have the meanings set forth below:
2.1. "Action" means this patent infringement action, Optiwave Semiconductor Corp. v. Lumicore Technologies, Inc., Case No. 2:24-cv-00319-JRG, pending before the United States District Court for the Eastern District of Texas, marshall Division, including all proceedings, motions, hearings, trials, appeals, and any remand proceedings arising therefrom.
2.2. "Party" or "Parties" means Plaintiff Optiwave Semiconductor Corp. and Defendant Lumicore Technologies, Inc., and their respective counsel of record, successors, and assigns. The term "Party" shall also include any entity that may hereafter be joined, added, or substituted as a party to this Action, upon execution of an Agreement to Be Bound (Exhibit A hereto) or entry of an order by the Court extending the terms of this Order to such entity.
2.3. "Producing Party" means the Party or non-party that produces, discloses, or provides discovery material in this Action, whether through formal discovery (including responses to interrogatories, requests for production, requests for admission, and depositions), informal exchanges, or other means.
2.4. "Receiving Party" means the Party that receives Protected Material produced, disclosed, or provided in this Action. Where context requires, the term may also encompass any person who receives Protected Material on behalf of a Party in accordance with this Order.
2.5. "Designating Party" means the Party or non-party that designates material as Protected Material under one of the three tiers of protection established by this Order. The Designating Party need not be the original author or creator of the material; a Party may designate information it has received from a third party or non-party if that Party has a good-faith basis for believing such material warrants confidentiality protection.
2.6. "Protected Material" means any document, testimony, information, tangible thing, or intangible data designated under one of the three tiers of protection established by this Order: (i) "CONFIDENTIAL" (Tier 1); (ii) "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" (Tier 2); or (iii) "HIGHLY CONFIDENTIAL — SOURCE CODE" (Tier 3). The term includes all copies, excerpts, summaries, compilations, abstracts, notes, and derivative works that disclose, reflect, or are derived from the substance of Protected Material.
2.7. "Document" has the meaning set forth in Federal Rule of Civil Procedure 34(a) and includes all writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — including electronically stored information ("ESI") — from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. The term further includes all originals, copies, drafts, non-identical copies, versions, revisions, and associated metadata.
2.8. "Counsel of Record" means the following attorneys admitted or authorized to practice in this Action:
For Plaintiff Optiwave Semiconductor Corp.:
• Calderwood & Harkness LLP: Alan Ngo, Marcus Delgado, Wendy Schultz, and Omar Siddiqui; and
• Whitmore & Callahan LLP: James Callahan (local counsel).
For Defendant Lumicore Technologies, Inc.:
• Hawthorne Vega & Cruz LLP: Catherine Rourke, Darren Cho, Samantha Briggs, and Rohan Iyer; and
• Trask Eddington LLP: Maria Garza (local counsel).
The term "Counsel of Record" shall be deemed to include any attorney who enters an appearance in this Action on behalf of either Party subsequent to the date of this Order.
2.9. "In-House Counsel" means the following individuals:
• For Plaintiff Optiwave Semiconductor Corp.: Rebecca Tanaka, General Counsel of Optiwave Semiconductor Corp.
• For Defendant Lumicore Technologies, Inc.: Raymond Bautista, General Counsel of Lumicore Technologies, Inc.
The term "In-House Counsel" may be expanded by written stipulation of the Parties to include additional in-house legal personnel, subject to the requirements and restrictions set forth in this Order, including execution of an Agreement to Be Bound (Exhibit A).
2.10. "Expert" means any person retained or specially employed to provide expert testimony in this Action pursuant to Federal Rules of Civil Procedure 26(a)(2) or 26(b)(4), or any person whose duties as a party's employee regularly involve giving expert testimony, provided that such person has executed the Agreement to Be Bound attached hereto as Exhibit A. The term "Expert" includes both testifying experts and consulting experts, unless the context requires otherwise.
2.11. "Non-Party" means any individual or entity that is not a named party to this Action but who produces documents, provides information, or gives testimony in this Action pursuant to subpoena, court order, or voluntary agreement. Non-parties include, without limitation, third-party document custodians, fact witnesses, and entities from whom records are subpoenaed.
2.12. "Prosecution Bar" means the restrictions on patent prosecution activities set forth in Section 12 of this Order, applicable to persons who receive access to Tier 2 (AEO) or Tier 3 (Source Code) material of the opposing Party.
3. TIERS OF PROTECTION
This Order establishes three tiers of confidentiality protection. Each tier corresponds to the sensitivity of the Protected Material and carries distinct restrictions on access and use. The Designating Party shall select the tier that is appropriate for the material based on a good-faith assessment of the nature and sensitivity of the information. The three tiers are as follows:
3.1. Tier 1: CONFIDENTIAL
3.1.1. Definition. Material designated as "CONFIDENTIAL" is information that the Designating Party, in good faith, believes constitutes confidential business, technical, or financial information, the disclosure of which to unauthorized persons is reasonably likely to cause competitive harm to the Designating Party. This tier is intended for information that warrants protection from public disclosure and general dissemination but that may be shared with certain authorized representatives of the opposing Party who have a need to access the material in connection with this Action. Material qualifying for Tier 1 designation includes, without limitation: general business and financial information; aggregate revenue data; marketing strategies and plans; customer identities and general customer information; general product specifications and data sheets; non-public organizational charts and business structures; general supply-chain information; and other information that would not typically be disclosed to the public or to competitors in the ordinary course of business.
3.1.2. Authorized Persons. Material designated as CONFIDENTIAL may be disclosed to, and accessed by, only the following categories of persons:
(a) Counsel of Record for each Party and their partners, associates, paralegals, legal assistants, secretarial staff, and other personnel employed by or affiliated with Counsel of Record who are working on this Action and have a need to access the material in connection with their duties;
(b) In-House Counsel for each Party — specifically, Rebecca Tanaka (General Counsel of Optiwave Semiconductor Corp.) and Raymond Bautista (General Counsel of Lumicore Technologies, Inc.) — provided that each such In-House Counsel has executed the Agreement to Be Bound attached hereto as Exhibit A and provided further that such In-House Counsel is not directly involved in competitive decision-making for the specific product lines at issue in this Action (i.e., the silicon photonics transceiver and waveguide multiplexer product lines); provided, however, that this restriction shall not prevent In-House Counsel from performing his or her ordinary supervisory legal functions, including overseeing the conduct of this litigation, evaluating settlement positions, and advising senior management on legal strategy related to this Action;
(c) Designated Employees. Up to three (3) designated employees of each Party who have been identified by name in writing to opposing counsel and who have executed the Agreement to Be Bound (Exhibit A); such employees may include engineers, technical personnel, financial analysts, or other individuals whose assistance is reasonably necessary for counsel to understand, evaluate, or present the designated material in this Action. The Designating Party shall have the right to object to a particular designated employee within seven (7) calendar days of receiving notice of the designation, and any unresolved objection shall be submitted to the Court;
(d) Experts retained by either Party who have executed the Agreement to Be Bound (Exhibit A);
(e) The Court and its personnel, including the presiding judge, magistrate judges assigned to this Action, law clerks, courtroom deputies, and court reporters acting in their official capacity;
(f) Court-appointed mediators or special masters, if any are appointed in this Action, provided that any such mediator or special master has acknowledged the terms of this Order;
(g) Witnesses during depositions or at trial, but only to the extent reasonably necessary for examination, impeachment, or presentation purposes and subject to the procedures set forth in Sections 8 and 9 of this Order;
(h) Third-party litigation support vendors, including but not limited to document-copying services, ESI hosting and processing providers, electronic discovery vendors, graphic and demonstrative exhibit consultants, translators, and interpreters, who have executed the Agreement to Be Bound (Exhibit A); and
(i) Jury members, but only at trial and under conditions directed by the Court.
3.2. Tier 2: HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY ("AEO")
3.2.1. Definition. Material designated as "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" is information that the Designating Party, in good faith, believes constitutes highly sensitive confidential business, technical, or financial information, the disclosure of which to any employee of the opposing Party (beyond In-House Counsel under the limited circumstances described below) or to any other unauthorized person would create a substantial risk of serious competitive harm. This tier is reserved for information of such sensitivity that disclosure even to business personnel of the opposing Party (other than In-House Counsel acting in a legal capacity) could result in competitive advantage being gained or could otherwise cause material commercial injury. Material qualifying for Tier 2 designation includes, without limitation: product-level revenue, cost of goods sold, and margin data broken down by product line and by customer; detailed pricing information, including price lists, volume discount schedules, and negotiated customer-specific pricing; technology and product roadmaps; detailed design specifications for current and next-generation products; customer-by-customer revenue breakdowns; the terms and conditions of licensing agreements, joint development agreements, and strategic partnerships; internal competitive analyses; strategic business plans; and any other business or technical information of comparable sensitivity.
The Parties have specifically agreed that Lumicore's product-level financial data — including gross margins, unit costs, and customer-by-customer revenue breakdowns for the LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR product lines — will be designated at a minimum as HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY. Similarly, OWS has represented that its detailed product-level margin data and customer-specific pricing for the OWS-400ZR, OWS-800XR, and OWS-1600DR product lines will likewise be designated at a minimum as AEO. Nothing in this paragraph shall prevent either Party from designating such material at Tier 3 if it also constitutes source code or design-level material qualifying for that tier.
3.2.2. Authorized Persons. Material designated as HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY may be disclosed to, and accessed by, only the following categories of persons (which are more restrictive than the categories authorized for Tier 1 material):
(a) Outside Counsel of Record for each Party and their partners, associates, paralegals, legal assistants, and staff working on this Action, excluding summer associates, temporary attorneys, and temporary staff unless specifically authorized in writing by the Designating Party on a case-by-case basis;
(b) In-House Counsel for each Party — specifically, Rebecca Tanaka (General Counsel of Optiwave Semiconductor Corp.) and Raymond Bautista (General Counsel of Lumicore Technologies, Inc.) — but solely for the purpose of evaluating and providing legal advice and strategic direction concerning this Action, and provided that each such In-House Counsel has executed the Agreement to Be Bound (Exhibit A). In-House Counsel may not share, disclose, or otherwise communicate AEO material to any other employee, officer, director, or agent of the Party unless such person is an Expert who has signed the Agreement to Be Bound or is otherwise specifically authorized under this Order. In-House Counsel shall take reasonable precautions to ensure that AEO material is not inadvertently disclosed to unauthorized persons within the organization;
(c) Experts retained by either Party who have executed the Agreement to Be Bound (Exhibit A);
(d) The Court and its personnel, including the presiding judge, magistrate judges assigned to this Action, law clerks, courtroom deputies, and court reporters acting in their official capacity;
(e) Court-appointed mediators or special masters, if any are appointed in this Action;
(f) Third-party litigation support vendors, including but not limited to document-copying services, ESI hosting and processing providers, electronic discovery vendors, graphic and demonstrative exhibit consultants, translators, and interpreters, who have executed the Agreement to Be Bound (Exhibit A); and
(g) Witnesses during depositions, but only to the extent reasonably necessary for examination and subject to the procedures set forth in Section 8 of this Order.
3.2.3. Exclusion of Business Employees. For the avoidance of doubt, ordinary business employees of a Party (other than In-House Counsel acting solely in a legal capacity as described above and designated Experts) may not access, view, or receive disclosure of AEO material of the opposing Party. This restriction is intended to prevent competitive use of the opposing Party's most sensitive business and technical information and shall be strictly enforced.
3.3. Tier 3: HIGHLY CONFIDENTIAL — SOURCE CODE
3.3.1. Definition. Material designated as "HIGHLY CONFIDENTIAL — SOURCE CODE" includes source code, firmware code, register-transfer level ("RTL") schematics, photonic-IC layout files (including, without limitation, GDS-II files, OASIS files, and mask-design files), hardware description language ("HDL") files (including Verilog, SystemVerilog, and VHDL), netlists, synthesis scripts, design-rule check ("DRC") results, layout-versus-schematic ("LVS") verification data, process design kit ("PDK") configuration files, fabrication run data, optical simulation models, and other code-level or design-level materials that constitute trade secrets or highly proprietary technical information of the Designating Party. This tier is reserved for the most competitively sensitive technical design information and represents the highest level of protection available under this Order.
This tier applies specifically, but not exclusively, to the source-code repositories, photonic-IC mask files, fabrication run data, and associated design files for the accused Lumicore product families (LumiLink 400G-ZR+, LumiLink 800G-DR8, and LumiEdge 1600G-LR) and for OWS's competing products (OWS-400ZR, OWS-800XR, and OWS-1600DR). The Parties acknowledge that such materials represent years of significant investment in research and development, are closely guarded within each organization, and would provide an extraordinary competitive advantage to a competitor if improperly disclosed.
3.3.2. Authorized Persons. Material designated as HIGHLY CONFIDENTIAL — SOURCE CODE may be disclosed to, and accessed by, only the following categories of persons (which represent the most restrictive access controls under this Order):
(a) Outside Counsel of Record for each Party, limited to a maximum of four (4) designated attorneys per side, who shall be identified by name in writing to the Designating Party prior to any review of Source Code material. The initial designations are set forth in Exhibit C hereto;
(b) Up to two (2) Experts per side who have executed both the Agreement to Be Bound (Exhibit A) and the Source Code Addendum (Exhibit B hereto). The initial designations are set forth in Exhibit C;
(c) The Court and its personnel (with Source Code material filed only under seal in accordance with Section 7);
(d) Up to two (2) litigation support staff per outside counsel firm who have executed both the Agreement to Be Bound (Exhibit A) and the Source Code Addendum (Exhibit B), and who are identified by name to the Designating Party;
(e) In-House Counsel is expressly EXCLUDED from access to the opposing Party's Tier 3 Source Code material. Neither Rebecca Tanaka (General Counsel of OWS) nor Raymond Bautista (General Counsel of Lumicore) shall have access to, view, or receive disclosure of the opposing Party's Source Code material under any circumstances; and
(f) No employee of either Party (other than designated Experts who satisfy the requirements of subsection (b) above) may access the opposing Party's Tier 3 Source Code material. This restriction applies without exception to all officers, directors, engineers, scientists, product managers, and other personnel of each Party.
3.3.3. Source Code Review Procedures. The following procedures shall govern all reviews of material designated as HIGHLY CONFIDENTIAL — SOURCE CODE:
(a) Review Facility. Source code and other Tier 3 material shall be made available for inspection only at a secure review facility designated by the Producing Party, or, by written agreement of the Parties, at an alternative secure facility such as the offices of the Producing Party's outside counsel. Unless otherwise agreed:
• For review of Lumicore source code: Reviews shall take place at the offices of Hawthorne Vega & Cruz LLP, located at 600 Congress Avenue, Suite 2400, Austin, Texas 78701, in a designated secure review room.
• For review of OWS source code: Reviews shall take place at the offices of Calderwood & Harkness LLP, located at 350 South Grand Avenue, 48th Floor, Los Angeles, California 90071, in a designated secure review room, or at such other facility within the Eastern District of Texas as the Parties may agree.
(b) Standalone Terminal. Source code shall be made available on a standalone, non-networked computer terminal. Such terminal shall have no active USB ports, no external drives (including CD/DVD drives or portable storage devices), no wireless networking capability, no Bluetooth connectivity, and no internet access. The Producing Party shall configure the review terminal with such development environment tools and search functionality as are reasonably necessary for the reviewing Expert or attorney to navigate and analyze the source code.
(c) Copying Restrictions. No copying, downloading, or reproduction of source code in its entirety or in substantial part is permitted under any circumstances. However, the reviewing party's authorized personnel may make handwritten or typed notes of limited excerpts not to exceed one hundred fifty (150) lines of code per review session. Such notes are necessary to enable preparation of claim charts, infringement contentions, validity contentions, expert reports, or other litigation documents, and all such notes shall be maintained in a secure manner and shall themselves be treated as Tier 3 material subject to all restrictions of this Order.
(d) Use in Litigation Documents. Printed excerpts of source code may be included in expert reports, claim charts, responsive and reply claim construction briefs, dispositive motion papers, and other court filings, provided that any such filing containing source code excerpts is clearly marked "HIGHLY CONFIDENTIAL — SOURCE CODE" on every page and is filed under seal in accordance with Section 7 of this Order.
(e) Scheduling of Review Sessions. Source code review sessions shall be scheduled upon at least five (5) business days' written notice to the Producing Party's outside counsel, specifying the identity of each person who will attend the session, the approximate subject matter or code modules to be reviewed, and the anticipated duration of the session.
(f) Minimum Availability. The Producing Party shall make source code available for review during a minimum of three (3) review sessions per calendar quarter. Each session shall be of at least eight (8) hours in duration, to be conducted during normal business hours (8:00 a.m. to 6:00 p.m. local time) or at such other times as the Parties agree. The Producing Party shall use commercially reasonable efforts to accommodate reasonable requests for additional sessions when necessitated by deadlines for submission of expert reports, claim construction briefs, or other litigation obligations.
(g) Expert Obligations. Expert witnesses who review source code must sign the Source Code Addendum (Exhibit B) prior to their first review session and may not disclose the substance, structure, logic, or content of source code to any person not authorized to access Tier 3 material under this Section. Experts shall not retain source code excerpts or notes at their personal residences, university offices, or other locations; all such materials shall be maintained at the offices of the retaining Party's outside counsel.
4. DESIGNATING PROTECTED MATERIAL
4.1. Designation of Documents. A Designating Party shall designate a document as Protected Material by marking each page of the produced document (or, for documents produced in native format, the first page of a multi-page document in the native production) with the applicable confidentiality legend, as follows:
• For Tier 1: "CONFIDENTIAL"
• For Tier 2: "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY"
• For Tier 3: "HIGHLY CONFIDENTIAL — SOURCE CODE"
The legend shall be placed in a conspicuous location on the document, such as a header, footer, or stamp, and shall be clearly legible. For documents produced as TIFF images, the legend shall appear as a text overlay or stamp on each page image.
4.2. Designation of Electronically Stored Information (ESI). For ESI produced in accordance with the Parties' ESI Protocol dated July 29, 2024, the Designating Party shall designate Protected Material by inclusion of the appropriate designation in the load-file metadata field labeled "Confidentiality" and on the face of TIFF images (for TIFF-format productions). For ESI produced in native format, the designation shall be reflected in the file-name suffix — for example, "[Filename]CONFIDENTIAL.xlsx," "[Filename]AEO.xlsx," or "[Filename]SOURCECODE.xlsx" — and in the corresponding entry in the accompanying load file. The Designating Party shall ensure that the confidentiality designation is consistently applied across all components of a produced document, including extracted text, metadata, and image files.
4.3. Designation of Deposition Testimony. A Designating Party may designate deposition testimony as Protected Material by one of two methods: (a) by instruction to the witness or by a statement on the record during the deposition that the testimony being elicited or about to be elicited is designated at a particular tier; or (b) by written notice to all Parties within twenty-one (21) calendar days after receipt of the final deposition transcript, identifying the specific pages and lines designated and the applicable tier for each such designation. If the Designating Party does not provide a written designation within the twenty-one (21) day period, the testimony shall be deemed non-confidential unless it was designated on the record during the deposition. During the twenty-one (21) day designation period, the entire transcript shall be treated as HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY to preserve the Designating Party's opportunity to assign appropriate designations.
4.4. Designation of Written discovery Responses. Interrogatory answers, responses to requests for admission, and other written discovery responses may be designated as Protected Material by marking the response document with the applicable confidentiality legend on each page or on the cover page of the response, together with a clear indication that the document contains information designated at the specified tier.
4.5. Designation of Information Provided by Non-Parties. Non-parties who produce documents or information in this Action pursuant to subpoena, court order, or voluntary agreement may designate their materials as Protected Material under any of the three tiers by applying the appropriate markings described in this Section 4. The Parties shall provide a copy of this Order to any non-party from whom discovery is sought, either prior to or contemporaneously with service of any subpoena or written request for documents. Non-parties from whom discovery may be sought include, but are not limited to: Cascade IP Advisors, LLC; FairPoint Licensing Group, LLC; Benchmark Semiconductor Analysis, LLC; Marlowe Asset Management Patent Analytics, Inc.; Solara Optics, Inc. (records custodian Gregory Falk); Veridian Photonics, Inc. (concerning documents related to Melissa Chen); and any other subpoenaed entity. Each non-party shall be afforded twenty-one (21) calendar days from the date of production to designate its materials as Protected Material under this Order.
4.6. Mass Designations Prohibited. The Designating Party shall not designate entire document productions at a single tier in bulk without an individualized, good-faith assessment. Each document shall be assessed individually or, where appropriate, by defined document category (e.g., all documents from a particular custodian concerning a specific subject matter), with a good-faith basis for the designation applied to each document or category. The Parties acknowledge that OWS has produced approximately 182,000 documents (comprising approximately 1.4 million pages) and that Lumicore has produced approximately 147,000 documents (comprising approximately 980,000 pages) in this Action, and that not all of these documents warrant confidentiality designations. The Parties further acknowledge their obligation to refrain from overdesignation and to apply confidentiality markings only where genuinely warranted.
4.7. Timeliness of Designations. Confidentiality designations may be applied at the time of production or within thirty (30) calendar days after the date of production. Material produced without a confidentiality designation shall be treated as non-confidential unless the Producing Party or Designating Party redesignates such material within this thirty (30) day period by written notice to the Receiving Party. Upon receipt of a redesignation notice, the Receiving Party shall promptly treat the material in accordance with the newly assigned designation. The Designating Party shall use reasonable efforts to apply designations at the time of production to minimize the administrative burden associated with post-production redesignation.
5. CHALLENGING CONFIDENTIALITY DESIGNATIONS
5.1. Right to Challenge. Any Receiving Party may challenge the confidentiality designation of any document, testimony, or other information at any time during the pendency of this Action. A challenge shall be made by providing written notice (which may be sent by email) to the Designating Party, specifically identifying: (a) the document(s) or information at issue (by Bates number, deposition transcript page and line, or other reasonably specific identifier); and (b) the basis for the Receiving Party's belief that the designation is not warranted or that a lower tier designation is appropriate.
5.2. Meet-and-Confer Requirement. Within fourteen (14) calendar days of receiving a challenge notice, the Designating Party and the Challenging Party shall meet and confer in good faith to attempt to resolve the dispute. The meet-and-confer may be conducted by telephone, video conference, or in person, and the Parties shall make every reasonable effort to resolve the dispute without involving the Court. During the meet-and-confer, the Designating Party shall provide a reasonable explanation for the challenged designation, and the Challenging Party shall explain the basis for its objection. The Parties may agree to resolve the dispute by redesignating the material at a different tier or by removing the designation entirely.
5.3. Motion to the Court. If the dispute is not resolved within fourteen (14) calendar days following the initial meet-and-confer (or such longer period as the Parties may agree in writing), the Challenging Party may file a motion with the Court to modify or remove the designation. The Designating Party bears the burden of establishing that the challenged designation is proper and that good cause exists under Federal Rule of Civil Procedure 26(c) for the level of protection assigned to the material. The motion shall be filed in accordance with the Court's Local Rules and the Individual Practices of Judge Gilstrap.
5.4. Treatment Pending Resolution. Pending resolution of any challenge — whether by agreement of the Parties or by order of the Court — the material that is the subject of the challenge shall continue to be treated under the designation assigned by the Designating Party. No Party shall be required to alter its treatment of challenged material unless and until the challenge is resolved by agreement or court order.
5.5. Redesignation. The Designating Party may, at any time, upgrade or downgrade the confidentiality designation of any material upon written notice to the Receiving Party. In the case of an upgrade (e.g., from Tier 1 to Tier 2), the Receiving Party shall promptly comply with the restrictions applicable to the new, higher tier designation and shall take reasonable steps to retrieve or restrict access to copies previously disseminated under the lower tier designation. In the case of a downgrade (e.g., from Tier 2 to Tier 1), the Receiving Party shall be entitled to treat the material under the new, lower tier designation as of the date of receipt of the redesignation notice.
6. USE OF PROTECTED MATERIAL
6.1. Use Limitation. Protected Material shall be used solely for the prosecution, defense, and resolution of this Action, including trial, any appeal, any remand proceedings, and any related settlement or mediation discussions. Protected Material shall not be used for any business, commercial, competitive, personal, or other purpose unrelated to this Action.
6.2. Prohibited Uses. Without limiting the generality of Section 6.1, Protected Material shall not be used for any of the following purposes: (a) patent prosecution, whether before the United States Patent and Trademark Office or any foreign patent office, except as provided in Section 12; (b) patent licensing or enforcement outside the scope of this Action; (c) business development, strategic planning, or competitive intelligence; (d) product design, product development, or engineering activities; (e) marketing, sales, or pricing decisions; (f) recruitment of employees, consultants, or other personnel; or (g) any other purpose unrelated to the prosecution, defense, or resolution of this Action.
6.3. Restriction on Disclosure. Protected Material may not be disclosed, disseminated, communicated, or made available, in whole or in part, to any person who is not authorized to access such material under the applicable tier as set forth in Section 3 of this Order. Each person who receives access to Protected Material shall be made aware of the confidentiality designation and the restrictions applicable to the material before receiving access.
6.4. Responsibility for Compliance. Each Party is responsible for ensuring that all persons to whom it provides access to Protected Material are informed of and comply with the terms of this Order. Counsel of Record for each Party shall take reasonable precautions to prevent unauthorized access to, or disclosure of, Protected Material, including implementing appropriate physical and electronic security measures for the storage and handling of Protected Material in their offices and on their electronic systems.
7. FILING PROTECTED MATERIAL WITH THE COURT
7.1. General Rule. Protected Material shall not be filed on the public record. Any Party that seeks to file a document containing Protected Material with the Court shall file it under seal in accordance with the Court's Local Rules, the individual practices of the presiding judge, and the procedures set forth in this Section. The Parties recognize the strong presumption of public access to judicial records and shall endeavor to minimize the volume of material filed under seal, including by using targeted redactions rather than wholesale sealing where practicable.
7.2. Procedure for Filing Under Seal. The following procedures shall govern any filing that contains Protected Material:
(a) The filing Party shall file a redacted (public) version of the document on the public docket, with all Protected Material redacted in a manner that is clearly indicated (e.g., by use of black redaction bars or bracketed placeholders indicating the nature of the redacted information). Simultaneously, the filing Party shall file a sealed (unredacted) version of the document on the Court's CM/ECF system using the "sealed" filing designation, in compliance with the Court's technical requirements.
(b) The filing Party shall accompany the sealed filing with a motion to seal that identifies: (i) the specific Protected Material proposed to be sealed (by page, paragraph, or exhibit reference); (ii) the applicable tier designation under this Order; (iii) the identity of the Designating Party; and (iv) an explanation of why continued sealing is warranted, including a description of the competitive or other harm that would result from public disclosure.
(c) The opposing Party shall have seven (7) calendar days from the date of filing of the motion to seal to file any objection to the motion to seal or to the specific material proposed for sealing. If no objection is filed, the motion to seal may be considered by the Court without further briefing.
7.3. Court's Authority. The Court retains full authority to unseal any material filed under seal if the Court determines that the interest in public access to judicial records outweighs the interest in confidentiality, or that the party seeking to maintain the seal has not established good cause for continued sealing. Nothing in this Order shall be construed to limit the Court's discretion in this regard.
7.4. Claim Construction Briefs and Trial Exhibits. To the extent that claim construction briefs, Markman hearing presentations, expert reports, pretrial memoranda, trial exhibits, or other substantive filings contain Protected Material, the Parties shall confer in advance regarding appropriate redactions for the public versions of such filings. The Parties shall endeavor to maximize public access to the substance of the proceedings consistent with the legitimate protection of genuinely confidential information, and shall consider whether targeted redactions of specific data points, figures, or source-code excerpts can adequately protect the Designating Party's interests without requiring wholesale sealing of entire briefs or exhibits.
8. PROTECTED MATERIAL IN DEPOSITIONS
8.1. Designation of Deposition Testimony. Any Party may designate a deposition, or any portion thereof, as containing Protected Material at any tier, in accordance with the procedures set forth in Section 4.3 of this Order. The designation may be made on the record during the deposition or by written notice within twenty-one (21) calendar days after receipt of the final transcript, or both.
8.2. Persons Present During Confidential Testimony. During any portion of a deposition at which Tier 2 (HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY) or Tier 3 (HIGHLY CONFIDENTIAL — SOURCE CODE) material is discussed, elicited, or presented as an exhibit:
(a) The Designating Party may request that all persons not authorized to access the relevant tier be excluded from the deposition room (or, for depositions conducted by video conference, from the video conference session) during such testimony. Upon such request, the examining Party shall make reasonable accommodations to excuse unauthorized persons from the room, including by taking a brief recess to allow such persons to depart before confidential testimony resumes.
(b) The court reporter and videographer, if any, retained for the deposition shall be treated as litigation support vendors for purposes of this Order and must execute the Agreement to Be Bound (Exhibit A) before the deposition commences. Counsel for the Party noticing the deposition shall be responsible for ensuring that the court reporter and videographer have executed Exhibit A.
8.3. Treatment of Transcripts. Deposition transcripts shall be treated at the highest tier of designation assigned to any portion of the transcript until the Designating Party provides a final, page-and-line designation within twenty-one (21) calendar days after receipt of the final transcript. Once the final designation is provided, only those portions of the transcript specifically designated shall be treated as Protected Material; the remainder of the transcript shall be treated as non-confidential. If the Designating Party fails to provide a final designation within the twenty-one (21) day period, the transcript shall be treated as non-confidential, except for any portions designated on the record during the deposition.
8.4. Confidential Deposition Exhibits. Exhibits shown, used, or referenced during a deposition shall retain their existing confidentiality designation. Any document designated at Tier 2 or Tier 3 that is to be shown to a witness during a deposition shall be shown only if the witness is an authorized person under the applicable tier or if the Designating Party consents in advance (or on the record) to the display of the exhibit to the witness. If the Designating Party objects to a Tier 2 or Tier 3 exhibit being shown to an unauthorized witness, the examining party may seek a ruling from the Court.
8.5. Deponents Who Are Not Authorized Persons. If a deponent (whether a party witness or a non-party witness) is not an authorized person under the applicable tier of designation, the examining Party may show the deponent Protected Material solely for the purposes of questioning at the deposition. In such circumstances: (a) the deponent may not retain copies of the Protected Material shown; (b) the Designating Party may instruct the deponent, on the record, not to disclose the substance of such material to any person outside the deposition; and (c) the examining Party shall retrieve all copies of the Protected Material from the deponent's possession at the conclusion of the examination on the relevant topic. This provision does not apply to a Party's own Protected Material shown to its own witness.
9. PROTECTED MATERIAL AT TRIAL
9.1. Pre-Trial Conference on Confidentiality Procedures. The Parties shall confer at least thirty (30) days before the commencement of the jury trial currently set for February 2, 2026, regarding the procedures for handling Protected Material at trial. The Parties shall use their best efforts to reach agreement on trial confidentiality procedures in advance of the pre-trial conference.
9.2. Proposed Trial Procedures. The Parties shall jointly propose procedures to the Court at the pre-trial conference, currently scheduled for January 5, 2026, for protecting confidential information during trial testimony, the presentation of exhibits to the jury, and any other trial proceedings at which Protected Material may be disclosed. Proposed procedures may include, without limitation:
(a) Presentation of designated material only to the jury on individual monitors or binders not visible to the public gallery, rather than on publicly accessible courtroom screens or projection systems;
(b) Limited closures of the courtroom during testimony that necessarily involves the discussion of Tier 2 or Tier 3 material, with such closures to be as narrow and brief as reasonably practicable;
(c) Use of pseudonyms, coded references, or anonymized identifiers for customer names, supplier names, or specific financial data points during testimony and in trial exhibits, to avoid unnecessary public disclosure of commercially sensitive identities and figures; and
(d) Preparation and use of redacted versions of trial exhibits for inclusion in the public record, with unredacted versions maintained under seal.
9.3. Court Determination. The Court will determine the appropriate procedures for handling Protected Material at trial after hearing from the Parties and considering the specific nature of the Protected Material at issue, the interests of the public in access to trial proceedings, and the legitimate confidentiality interests of the Parties and non-parties. The Parties acknowledge that the Court has broad discretion in fashioning trial confidentiality procedures and that the Court may adopt, modify, or reject the Parties' proposed procedures.
10. INADVERTENT PRODUCTION OF PRIVILEGED MATERIAL
10.1. Clawback Provision. In accordance with Federal Rule of Evidence 502(d) and the Parties' Joint discovery Plan and Report filed on July 29, 2024 (Dkt. No. 28), the inadvertent production of any document, communication, or information protected by the attorney-client privilege, the work-product doctrine, or any other applicable privilege or protection shall not constitute a waiver of such privilege or protection in this Action or in any other federal or state proceeding. This provision shall be given the broadest effect permitted under Federal Rule of Evidence 502(d) and shall be enforceable in all proceedings in this or any other court.
10.2. Procedure Upon Notification. Upon notification by the Producing Party (or any non-party) that privileged or protected material has been inadvertently produced, the Receiving Party shall take the following steps:
(a) Return, Sequester, or Destroy. The Receiving Party shall, within five (5) business days of receiving the notification, promptly return all copies of the identified material (in whatever form, including paper, electronic, and imaged copies) to the Producing Party, or sequester all copies of the identified material in a manner that prevents access by any person, or destroy all copies of the identified material — in each case, at the election of the Receiving Party, with confirmation of the action taken provided to the Producing Party.
(b) No Use. The Receiving Party shall not use, reference, or rely upon the inadvertently produced material for any purpose in this Action or in any other proceeding, unless and until the claim of privilege or protection is resolved by agreement of the Parties or by order of the Court. This prohibition applies to all derivative use, including the preparation of deposition outlines, motion papers, or expert reports based on information obtained from the inadvertently produced material.
(c) Notification to Third Parties. If the Receiving Party has already disclosed or provided the inadvertently produced material to any other person (including experts, consultants, or litigation support vendors), the Receiving Party shall promptly notify each such person of the Producing Party's privilege claim and shall request the immediate return, sequestration, or destruction of all copies in such person's possession, custody, or control.
10.3. Privilege Logging. The Producing Party shall log the inadvertently produced material on its privilege log within a reasonable time after the clawback notification. The Parties acknowledge that OWS currently maintains a privilege log with 1,247 initial entries and 318 supplemental entries, and that Lumicore maintains its privilege log separately. The inadvertently produced material shall be added to the applicable log with sufficient detail to enable the Receiving Party to assess the privilege claim, including the date, author, recipient(s), general subject matter, and basis for the privilege asserted.
10.4. Dispute Resolution. Disputes regarding the validity of privilege designations for clawed-back material shall be resolved by the Court upon motion by either Party, following a good-faith meet-and-confer as required by Local Rule CV-7(h) and the Individual Practices of Judge Gilstrap.
11. NON-PARTY OBLIGATIONS
11.1. Non-Party Designations. Non-parties who produce documents, provide information, or give testimony in this Action may designate their materials as Protected Material under this Order by applying the appropriate tier designation in accordance with the procedures set forth in Section 4 of this Order. The protections of this Order shall extend to materials produced by non-parties to the same extent as materials produced by the Parties.
11.2. Notice to Non-Parties. The Parties shall provide a copy of this Order to all non-parties from whom discovery is sought, either prior to or contemporaneously with service of any subpoena, deposition notice, or written request for documents. Non-parties to whom this Order shall be provided include, but are not limited to:
• Cascade IP Advisors, LLC (Dr. Martin Chu);
• FairPoint Licensing Group, LLC (Angela Reeves);
• Benchmark Semiconductor Analysis, LLC (Kevin Ng);
• Marlowe Asset Management Patent Analytics, Inc.;
• Veridian Photonics, Inc. (concerning documents related to Melissa Chen);
• Gregory Falk, records custodian of Solara Optics, Inc.;
• Gresham & Whitfield LLP (auditors), if subpoenaed; and
• Brennan Kellogg & Associates LLP (auditors), if subpoenaed.
The Parties shall also provide a copy of this Order to any other non-party from whom discovery is sought during the pendency of this Action.
11.3. Non-Party Protections. Any non-party that produces Protected Material pursuant to this Order shall be entitled to the same protections as a party Designating Party, including the right to challenge the treatment or disclosure of its materials and the right to seek enforcement of this Order through the Court.
11.4. Prohibition on Circumvention. The Parties shall not subpoena, informally request, or otherwise seek to compel production from non-parties in a manner that is designed to, or has the effect of, circumventing the protections afforded by this Order. Any Party that obtains from a non-party materials that it knows or reasonably should know were designated as Protected Material by another Party or non-party shall treat such materials in accordance with the applicable tier designation.
12. PROSECUTION BAR
12.1. Scope of Prosecution Bar. Any person who receives access to Tier 2 (HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY) or Tier 3 (HIGHLY CONFIDENTIAL — SOURCE CODE) material of the opposing Party shall not, for a period of one (1) year after the final conclusion of this Action (including exhaustion or expiration of all rights of appeal and any remand proceedings), participate in the prosecution of patents or patent applications before the United States Patent and Trademark Office relating to any of the following technology areas:
(a) Silicon photonics transceiver technology, including optical transceiver module design, modulation, and signal processing;
(b) Waveguide multiplexer technology, including arrayed waveguide gratings and echelle gratings for wavelength-division multiplexing;
(c) Photonic integrated circuit thermal management, including thermo-optic tuning and heat-dissipation structures; and
(d) Polarization-diverse grating coupler technology, including fiber-to-chip coupling and polarization-splitting architectures.
For purposes of this Section, "prosecution" includes original patent prosecution, continuation and divisional applications, reissue proceedings, ex parte reexamination, inter partes review, post-grant review, covered business method review, and any other post-issuance proceeding before the United States Patent and Trademark Office. The term "participate" includes personally drafting or revising patent claims, directing the preparation of patent applications, providing substantive input on claim scope or prosecution strategy, and conducting prior-art searches in connection with patent prosecution.
12.2. Exceptions. The following exceptions apply to the prosecution bar set forth in Section 12.1:
(a) Counsel of Record. The prosecution bar does not apply to Counsel of Record who merely review AEO or Source Code material in the ordinary course of this litigation, provided that such counsel does not personally draft, revise, or substantively direct the drafting of patent claims, claim amendments, or arguments in prosecution proceedings relating to the technology areas identified in Section 12.1 during the restricted period. This exception recognizes that Counsel of Record's primary function in this Action is trial and appellate litigation, and that incidental exposure to AEO or Source Code material in that capacity does not create the type of risk that the prosecution bar is designed to address.
(b) Experts. The prosecution bar does not apply to Experts who review AEO or Source Code material, provided that such Experts do not serve as patent prosecution consultants for either Party during the restricted period. For the avoidance of doubt, an Expert may continue to serve as a technical consultant or expert witness in other litigation matters during the restricted period, provided that the Expert does not engage in patent prosecution activities in the specified technology areas.
(c) Cascade IP Advisors, LLC. Patent prosecution counsel at Cascade IP Advisors, LLC, and specifically Dr. Martin Chu, shall not receive access to any of Lumicore's AEO or Source Code material under any circumstances. This restriction is intended to preserve the separation between prosecution and litigation functions and to ensure that OWS's ongoing patent prosecution activities are not tainted by exposure to Lumicore's competitively sensitive confidential information.
12.3. Disputes. Disputes regarding the scope, applicability, or enforcement of the prosecution bar may be raised with the Court by motion at any time. Any person subject to the prosecution bar who believes that a particular prosecution activity falls outside the scope of the bar may seek a declaratory ruling from the Court prior to engaging in the activity.
13. OBLIGATIONS UPON CONCLUSION OF LITIGATION
13.1. Return or Destruction of Protected Material. Within ninety (90) days after the final resolution of this Action — including exhaustion of all rights of appeal, expiration of all applicable appeal deadlines, or final settlement — each Receiving Party shall, at the election of the Producing Party (communicated in writing):
(a) Return all Protected Material (and all copies, reproductions, notes, summaries, abstracts, compilations, and derivative works derived therefrom) to the Producing Party, together with a written certification by counsel that all such material has been returned and that no copies have been retained except as permitted by Section 13.2; or
(b) Destroy all Protected Material (and all copies, reproductions, notes, summaries, abstracts, compilations, and derivative works derived therefrom) and certify such destruction in writing to the Producing Party, signed by counsel for the Receiving Party. The certification shall confirm the method of destruction employed and shall state that, to the best of counsel's knowledge, information, and belief, all copies of the Protected Material have been destroyed except as permitted by Section 13.2.
If the Producing Party does not communicate an election within thirty (30) days after the final resolution of this Action, the Receiving Party may elect either return or destruction at its option.
13.2. Exception for Litigation Files. Notwithstanding Section 13.1, outside counsel for each Party may retain one (1) archival copy of all pleadings, motion papers, expert reports, deposition transcripts, hearing transcripts, trial transcripts, correspondence, and work-product materials containing or referencing Protected Material. Such archival copies shall be maintained in secure counsel files (whether in physical or electronic form) and shall be used solely for the following purposes:
(a) Establishing compliance with professional responsibility and ethical obligations;
(b) Defending against claims of legal malpractice or other proceedings challenging counsel's conduct in this Action;
(c) Resolving any post-judgment dispute arising from this Action, including disputes regarding compliance with this Order, enforcement of judgments, or calculation of damages; and
(d) Complying with applicable document-retention requirements imposed by law, regulation, or professional obligation.
Such archival copies shall remain subject to the confidentiality obligations of this Order in perpetuity and shall not be disclosed to any person not authorized under this Order without prior written consent of the Designating Party or an order of the Court.
13.3. Expert Obligations. Each Expert who has received access to Protected Material shall return or destroy all Protected Material in his or her possession, custody, or control within sixty (60) days after the conclusion of this Action. Each Expert shall certify such return or destruction in writing to the retaining Party's outside counsel. The retaining Party's counsel shall provide a copy of such certification to the opposing Party's counsel upon request.
13.4. Survival of Obligations. The confidentiality obligations imposed by this Order shall survive the conclusion of this Action, including any settlement, dismissal, entry of final judgment, appeal, or remand, and shall remain in full force and effect indefinitely, unless modified or vacated by the Court or by written agreement of the Parties approved by the Court.
14. MODIFICATION
14.1. Modification by Stipulation or Order. This Order may be modified, amended, or supplemented at any time by (a) written stipulation of the Parties, fi

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

STIPULATED PROTECTIVE ORDER

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