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`Filed on behalf of: Philip Morris Products, S.A.
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`Entered: February 9, 2021
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________________
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`PHILIP MORRIS PRODUCTS, S.A.,
`Petitioner,
`
`v.
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`RAI STRATEGIC HOLDINGS, Inc.,
`Patent Owner.
`_______________________
`Case IPR2020-01602
`Patent 9,901,123
`______________________
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`
`PETITIONER’S REPLY TO THE
`PATENT OWNER PRELIMINARY RESPONSE
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`IPR2020-01602 (USP 9,901,123)
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`Petitioner’s Reply to POPR
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`TABLE OF AUTHORITIES
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`CASES
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` Page(s)
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`3Shape A/S v. Align Tech., Inc.,
`IPR2020-00223, Paper 12 (May 26, 2020) ........................................................... 2
`Allied Erecting & Dismantling Co. v. Genesis Attachments, LLC,
`825 F.3d 1373 (Fed. Cir. 2016) ............................................................................ 7
`Apple Inc. v. Fintiv, Inc.,
`IPR2020-00019, Paper 11 (Mar. 20, 2020) .............................................. 2, 3, 4, 5
`Cuozzo Speed Techs. v. Lee,
`136 S. Ct. 2131 (2016) .......................................................................................... 1
`Emerson Elec. Co. v. SIPCO, LLC,
`IPR2019-00547, Paper 15 (Aug. 30, 2019) .......................................................... 2
`Par Pharm, Inc.. v. TWi Pharms., Inc.,
`773 F.3d 1186 (Fed. Cir. 2014) ............................................................................ 7
`PharmaStem Therapeutics, Inc. v. ViaCell, Inc.,
`491 F.3d 1342 (Fed. Cir. 2007) ............................................................................ 7
`Philip Morris Products, S.A. v. RAI Strategic Holdings, Inc.,
`IPR2020-01094, Paper 9 (Jan. 25, 2021) .............................................................. 5
`Samsung Elecs. Co. v. Dynamics, Inc.,
`IPR2020-00499, Paper 41 (Aug. 12, 2020) .......................................................... 4
`SAS Inst., Inc. v. Iancu,
`138 S. Ct. 1348 (2018) .......................................................................................... 1
`Thryv, Inc. v. Click-to-Call Techs., LP,
`140 S. Ct. 1367 (2020) .......................................................................................... 2
`Yeda Research v. Mylan Pharms. Inc.,
`906 F.3d 1031 (Fed. Cir. 2018) ............................................................................ 6
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`Petitioner’s Reply to POPR
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`STATUTES
`35 U.S.C. § 315 ...................................................................................................... 1, 2
`OTHER AUTHORITIES
`157 Cong. Rec. S1326 (daily ed. Mar. 7, 2011) ........................................................ 2
`157 Cong. Rec. S5429 (daily ed. Sept. 8, 2011) ........................................................ 2
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`Petitioner’s Reply to POPR
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`Ex. Description
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`Exhibit List
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`1001 U.S. Patent No. 9,901,123 (“the ’123 patent”)
`
`1002 File History for U.S. Patent No. 9,901,123
`
`1003 Declaration of Stewart Fox in Support of Petition for Inter Partes
`Review of ’123 Patent (“Fox Decl.”)
`
`1004 Curriculum Vitae of Stewart Fox
`
`1005 Chinese Patent No. CN 2719043 (“Hon”) (including certified English
`translation and original Chinese version of the patent document)
`
`1006 U.S. Patent No. 4,947,874 (“Brooks”)
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`1007 U.S. Patent No. 2,057,353 (“Whittemore”)
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`1008 European Patent Publication No. EP 0845220 (“Susa”)
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`1009 U.S. Patent No. 4,284,089 (“Ray”)
`
`1010 Chemical and Biological Studies on New Cigarette Prototypes that
`Heat Instead of Burn Tobacco, R. J. Reynolds Tobacco Company
`Monograph (1988) (“RJR monograph”) (excerpts) (markings on
`exhibit appeared in the used copy purchased by counsel)
`
`1011 U.S. Patent No. 4,793,365 (“Sensabaugh”)
`
`1012 Letter from Robert B. Swierupski, Director, National Commodity
`Specialist Division, to Mark Weiss, Weiss & Moy, P.C. regarding tariff
`classification ruling (Aug. 22, 2006), https://rulings.cbp.gov/ruling/
`M85579
`
`1013 Webpages from Beijing SBT Ruyan Technology & Development
`Corp., Sbtry.cn (archived at web.archive.org, 2005-2006, with
`affidavit)
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`iii
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`Ex. Description
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`1014
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`International Patent Publication No. WO 98/57556 (“Biggs”)
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`1015 Webpages from E-cig.com (archived at web.archive.org, 2006-2007,
`with affidavit)
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`1016 Complainants RAI Strategic Holdings, Inc., R.J. Reynolds Vapor
`Company, and R.J. Reynolds Tobacco Company’s Revised
`Infringement Claim Chart for U.S. Patent No. 9,901,123 from ITC Inv.
`No. 337-TA-1199 (Ex. 42)
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`1017 RESERVED
`
`1018 Barbara Demick, A High-Tech Approach to Getting a Nicotine Fix,
`L.A. Times (Apr. 25, 2009), https://www.latimes.com/archives/la-xpm-
`2009-apr-25-fg-china-cigarettes25-story.html
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`1019 Philip Morris U.S.A. interoffice correspondence from R.H. Mofitt to K.
`Torrence regarding operational analysis of SBT Ruyan Atomizing
`Nicotine Inhaler (Sept. 27, 2004),
`https://www.industrydocuments.ucsf.edu/docs/fnpb0219
`
`1020 Philip Morris U.S.A. interoffice correspondence from R.H. Moffitt to
`K. Torrence regarding operational analysis of SBT Ruyan Atomizing
`Nicotine Inhaler (Sept. 27, 2004) (original)
`
`1021 Petition for Inter Partes Review of U.S. Patent No. 8,365,742 Pursuant
`to 35 U.S.C. §§ 311-319 and 37 C.F.R. § 42, R.J. Reynolds Vapor Co.
`v. Fontem Holdings 1 B.V., IPR2016-01268 (July 2, 2016)
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`1022 Final Written Decision, R.J. Reynolds Vapor Co. v. Fontem Holdings 1
`B.V., IPR2016-01268, Paper 63 (Dec. 19, 2017) (“RJRV FWD”)
`
`1023 Kevin Hatch, et al., Preliminary Evaluation of a Commercially
`Available Electric Aerosol Inhaler from China (Sept. 14, 2006) (“RJR
`Teardown”), available at https://www.industrydocuments.ucsf.edu/
`docs/nyvy0228
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`Ex. Description
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`1024 Email exchange among Carolyn Carpenter, John Robinson et al.
`regarding electric cigarette, available at
`https:/www.industrydocuments.ucsf.edu/docs/nsxy0228
`
`1025 Hon Lik, I Was Sure That the Electronic Cigarette Would be
`Welcomed with Open Arms, Sciences et Avenir (Oct. 7, 2013)
`https://www.sciencesetavenir.fr/sante/i-was-sure-that-the-electronic-
`cigarette-would-be-welcomed-with-open-arms_26020 (updated Oct.
`18, 2013)
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`1026 U.S. Patent No. 7,117,867 (“Cox”)
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`1027 U.S. Patent No. 4,735,217 (“Gerth”)
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`1028 European Patent Publication No. EP 1,618,803 (“Hon-803”)
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`1029 U.S. Patent No. 5,388,574 (“Ingebrethsen”)
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`1030 U.S. Patent No. 6,095,153 (“Kessler”)
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`1031 U.S. Patent No. 4,449,541 (“Mays”)
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`1032 U.S. Patent No. 8,950,587 (“Thomson”)
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`1033 George Wypych, Handbook of Polymers (2d ed. 2016)
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`1034 Written Opinion of the International Searching Authority in
`International Application No. PCT/US2007/081461
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`1035 U.S. Patent No. 1,968,509 (“Tiffany”)
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`1036 U.S. Patent No. 5,692,525 (“Counts”)
`
`1037 Order Granting Defendants’ Unopposed Motion to Invoke the
`Statutory Stay of Plaintiffs’ Claims Relating to U.S. Patent Nos.
`9,839,238, 9,901,123, and 9,930,915 Pursuant to 28 U.S.C. § 1659,
`RAI Strategic Holdings, Inc. v. Altria Client Services LLC, No. 1:20-
`cv-00393-LO-TCB (E.D. Va. June 19, 2020), ECF No. 27
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`Ex. Description
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`1038 Order No. 8, Certain Laser-driven Light Sources, Subsystems
`Containing Laser-driven Light Sources, and Products Containing
`Same, Inv. No. 337-TA-983 (U.S.I.T.C., Mar. 3, 2016)
`
`1039 Email from counsel for Altria Client Services LLC et al. to counsel for
`RAI Strategic Holdings, Inc. et al. and U.S.I.T.C. regarding Inv. No.
`337-TA-1199 (Jan. 29, 2021)
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`Petitioner’s Reply to POPR
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`I.
`
`Introduction
`The Board should institute review. As a preliminary matter, an ITC
`investigation does not justify denial of an IPR under the AIA or even under Fintiv.
`And here, Patent Owner misapplied the Fintiv factors and did not take into
`account the latest facts—most importantly, that there is zero overlap between this
`IPR and any other proceeding.
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`II. An ITC Investigation by Itself Does Not Justify Denial of IPR
`Congress did not create the PTAB and IPRs to incentivize patent owners to
`assert bad patents in the ITC, where they cannot be invalidated. To the contrary,
`Congress created the PTAB and IPRs to rid the system of “bad patents” that
`“sometimes” “slip through.” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1353 (2018).
`Article III courts applying the clear and convincing standard were not doing
`enough to eliminate those bad patents from the system, so Congress designed IPRs
`to “protect the public’s ‘paramount interest in seeing that patent monopolies … are
`kept within their legitimate scope.’” Cuozzo Speed Techs. v. Lee, 136 S. Ct. 2131,
`2135 (2016). Congress also set forth a detailed framework balancing the competing
`concerns raised by parallel proceedings. For example, Congress expressly granted
`the Director wide discretion to address concurrent USPTO proceedings. 35 U.S.C.
`§ 315(d) (“[T]he Director may determine the manner in which the inter partes
`review or other proceeding or matter may proceed, including providing for stay,
`transfer, consolidation, or termination of any such matter or proceeding.”).
`For district courts, which can invalidate patents albeit only under the strict
`clear-and-convincing standard, Congress carefully balanced competing concerns of
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`efficiency, patent system integrity, and patent quality with § 315(b)’s one-year bar.
`Thryv, Inc. v. Click-to-Call Techs., LP, 140 S. Ct. 1367, 1374-75 (2020) (“The
`purpose of § 315(b), all agree, is to minimize burdensome overlap between [IPR]
`and patent-infringement litigation.”). The existence—and even the length—of the
`one-year bar was carefully negotiated in Congress to achieve the desired balance.
`E.g., 157 Cong. Rec. S5429 (daily ed. Sept. 8, 2011); 157 Cong. Rec. S1326 (daily
`ed. Mar. 7, 2011 (together explaining the balance between “protections that were
`long sought by inventors and patent owners” and defendants’ need for “a
`reasonable opportunity to identify and understand the patent claims that are
`relevant to the [district court] litigation” before filing an IPR petition).
`In contrast, Congress placed no limit on concurrent ITC proceedings
`because, unlike the USPTO and the courts, “the ITC does not have the power to
`cancel a patent claim, even if that claim is demonstrated to be invalid.” 3Shape A/S
`v. Align Tech., Inc., IPR2020-00223, Paper 12 at 33-34 (May 26, 2020); Apple Inc.
`v. Fintiv, Inc., IPR2020-00019, Paper 11 at 5-9 (Mar. 20, 2020) (precedential)
`(“Fintiv”) (“ITC final invalidity determinations do not have preclusive effect.”).
`Thus, “an ITC decision … may inform [the Board’s] decision, [but] it does not
`render [the] proceeding duplicative or … a waste of the Board’s resources.”
`Emerson Elec. Co. v. SIPCO, LLC, IPR2019-00547, Paper 15 at 9 (Aug. 30, 2019).
`Fintiv offers no justification, no framework, and no basis for denying
`institution of an IPR based solely on a parallel ITC case. It cannot, as the law
`does not provide for one. Rather than cast aside Congressional intent regarding
`parallel ITC proceedings, Fintiv emphasizes the importance of patent quality,
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`focusing on district court proceedings and carefully circumscribing the treatment
`of co-pending ITC proceedings. Fintiv at 5-9. Fintiv recognizes in particular that
`“district court litigation is often stayed … pending the resolution of the ITC
`investigation,” and directs the parties to address (i) whether the district court
`litigation is stayed, and (ii) “whether the patentability disputes before the ITC will
`resolve all or substantially all of the patentability disputes between the parties,
`regardless of the [district court] stay.” Fintiv at 8-9. That is it for ITC cases.
`This panel is bound by Fintiv. It should reject Patent Owner’s invitation to
`ignore Congressional intent and extend Fintiv to these facts. Should the Board
`deny institution, the challenged claims will continue to plague the public unless the
`Board finds them unpatentable, as Congress intended.
`
`III. The Fintiv Factors Overwhelmingly Favor Institution
`Even if one attempts to force the facts of this case into Fintiv, the Fintiv
`factors overwhelmingly favor review because the validity of the challenged claims
`is not at issue in either the ITC or the Court, and as such will not be adjudicated by
`any tribunal except the Board.
`
`A.
`Factor 1 (stay) strongly favors institution
`Fintiv directs the Board to consider whether there is a parallel district court
`case that stayed pending an ITC proceeding. Fintiv at 8-9. Fintiv does not direct
`the parties to address whether the ITC case is stayed. As the Director certainly
`recognized when designating Fintiv precedential, the ITC will not stay pending
`IPR. E.g., Certain Laser-driven Light Sources, Subsystems Containing Laser-
`driven Light Sources, and Products Containing Same, Inv. No. 337-TA-983, Order
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`No. 8 at 4, 8 (Mar. 3, 2016) (“The Commission has reversed a stay granted by an
`[ALJ] when there was no final judgment in the parallel proceeding.”) (Ex. 1038).
`Factor 1 strongly favors institution because the parallel district court case is
`stayed. Ex. 1037 (stay order). This “stay of the [district court] proceeding allays
`concerns about inefficiency and duplication of efforts as it relates to [an IPR],”
`despite a co-pending ITC case. Samsung Elecs. Co. v. Dynamics, Inc., IPR2020-
`00499, Paper 41 at 11-16 (Aug. 12, 2020) (following Fintiv).
`In any event, neither the ITC nor the Court will decide validity of the
`challenged claims, stay or no stay. See Factor 4 below.
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`B.
`Factor 2 (trial date proximity) strongly favors institution
`Fintiv directs the Board to look at “the court’s trial date,” not any ITC date.
`Fintiv at 9 (emphasis added). The court case is stayed pending the ITC proceeding
`including all appeals; no trial will be held until far after the Board’s final written
`decision issues—and that trial will not involve the challenged claims.
`Departing from Fintiv on this point is nonsensical. As the Director certainly
`realized, ITC proceedings will invariably reach Initial Determination before the
`Board’s deadline for a final written decision absent extraordinary circumstances,
`even if the petition is filed the same day as the ITC complaint. E.g., Ex. 2002
`(Initial Determination due just one year after the ITC instituted its investigation).
`Regardless, the ITC will not adjudicate the validity of the challenged claims.
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`C.
`Factor 3 (investment) strongly favors institution
`Fintiv directs the Board to consider investment “by the court and the
`parties,” and repeatedly addresses the “district court” rather than the ITC. Fintiv at
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`9-12 (emphasis added). There is no relevant district court investment here. The
`case was stayed as to the ’123 patent. Regardless, any investment is irrelevant as
`the court (and the ITC) will not adjudicate validity of the challenged claims.
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`D.
`Factor 4 (overlap) strongly favors institution
`When discussing IPRs with parallel court and ITC proceedings, Fintiv
`directs the Board to consider “whether the patentability disputes before the ITC
`will resolve all or substantially all of the patentability disputes between the parties,
`regardless of the [district court] stay.” Fintiv at 9 & n.14 (pointing to this factor).
`The ITC will not even consider the validity of the challenged claims because
`Petitioner dropped that issue from the ITC case. Ex. 1039. The challenged claims
`are not at issue at all in the district court. Pet. 72-73. As a result, this factor weighs
`even more heavily in favor of institution than a Sotera-style stipulation because,
`outside of this IPR, the validity of the challenged claims will not be adjudicated at
`all. Philip Morris Products, S.A. v. RAI Strategic Holdings, Inc., IPR2020-01094,
`Paper 9 at 21-23 (Jan. 25, 2021) (strongly favoring institution even though the ITC
`is adjudicating invalidity over product prior art).
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`E.
`Factor 5 (same parties) favors institution
`Fintiv directs the Board to consider whether Petitioner and the defendant “in
`an earlier court proceeding” are the same or related. Fintiv at 13-14 (emphasis
`added). Here, Petitioner is not a defendant in any other proceeding adjudicating the
`validity of the challenged claims. This factor therefore favors institution.
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`F.
`Factor 6 (other considerations) is strongly positive
`The petition’s strong merits also favor institution. Patent Owner repeatedly
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`Petitioner’s Reply to POPR
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`complains that Petitioner relied on contemporary evidence of the admitted prior art
`Ruyan device, which Patent Owner relied upon to describe the claimed subject
`matter. E.g., POPR 11-12, 31, 37. It is well-established, however, that evidence of
`a POSA’s knowledge in an IPR need not be printed-publication prior art. Yeda
`Research v. Mylan Pharms. Inc., 906 F.3d 1031, 1041-42 (Fed. Cir. 2018).
`Patent Owner’s repeated complaints regarding the Ruyan device ring
`hollow, as the evidence is Patent Owner’s own teardown report that pre-dates the
`patent. The first two named inventors purchased Ruyan devices, tested and
`disassembled them, and authored a detailed report before filing their first patent
`application in this family—and never shared the details device’s construction with
`the Examiner despite relying on it to describe the claimed subject matter. Pet. 6-9.
`Patent Owner also contends that the art does not teach “wick[ing] into
`contact with the electrical resistance heater,” but Patent Owner never addresses the
`fact that the claims do not require direct contact between the wick and the heater.
`POPR 28-30. Dependent claim 25 recites “wherein the absorbent wicking material
`is positioned in proximity to” the heater, and dependent claims 14 and 24 recite
`that the material “is in contact with the … heater.” ’123 patent claims 14, 24, 25
`(emphasis added). Therefore, the wick itself may be in contact with the heater, or
`in proximity to it, as in Hon. Pet. 46-49.
`For that reason, the independent claims do not require any combination with
`Whittemore. Even so, and for the sake of dependent claims 14 and 24, the Petition
`explains how and why a POSA would have replaced Hon’s complicated atomizer
`with a simple wick/heater design as taught by Whittemore. The parties agree that
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`Petitioner’s Reply to POPR
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`the Board previously rejected a different and complicated combination proposed in
`IPR2016-01268 (Ex. 1022). But the combination proposed here is the one the
`Board “credit[ed]” in that case, namely a “simple substitution … to remove the
`entire atomizer in [Hon] and replace it with” Whittemore’s simple heater/wick
`design. Ex. 1022 at 17; Pet. 50 & n.9.
`Petitioner provides no evidence supporting its attorney arguments to the
`contrary. And as a legal matter, Patent Owner ignores black-letter Federal Circuit
`law that “does not require that the motivation be the best option, only that it be a
`suitable option from which the prior art did not teach away.” Par Pharm, Inc.. v.
`TWi Pharms., Inc., 773 F.3d 1186, 1197-98 (Fed. Cir. 2014); see also Allied
`Erecting & Dismantling Co. v. Genesis Attachments, LLC, 825 F.3d 1373, 1381
`(Fed. Cir. 2016) (“A given course of action often has simultaneous advantages and
`disadvantages, and this does not necessarily obviate motivation to combine.”).
`Patent Owner also argues that a POSA would not have combined Brooks
`with Hon. Doing so is not necessary under Petitioner’s primary argument. Even so,
`the ’123 patent admitted that Brooks, which pre-dated the ’123 patent by almost 20
`years, provides a suitable controller. Pet. 22-25; ’123 patent 20:43-21:14. Patent
`Owner cannot now argue that as a matter of fact, Brooks’s controller design was
`unsuitable. See PharmaStem Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342,
`1362 (Fed. Cir. 2007) (“Admissions in the specification regarding the prior art are
`binding on the patentee for purposes of a later inquiry into obviousness.”). Further,
`Patent Owner provides no evidence countering the detailed motivation to combine
`argument and evidence presented in the Petition. Pet. 25-29.
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`Petitioner’s Reply to POPR
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`Dated: February 9, 2021
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`Respectfully submitted,
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`By: / Jonathan M. Strang /
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`Jonathan M. Strang (Reg. No. 61,724)
`jonathan.strang@lw.com
`Matthew J. Moore (Reg. No. 42,012)
`matthew.moore@lw.com
`Latham & Watkins LLP
`555 Eleventh Street, NW, Ste. 1000
`Washington, D.C. 20004-1304
`Telephone: 202.637.2200
`Fax: 202.637.2201
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`Christopher W. Henry (Reg. No. 60,907)
`christopher.henry@lw.com
`Latham & Watkins LLP
`200 Clarendon Street
`Boston, MA 02116
`Telephone: 617.948.6000
`Fax: 617.948.6001
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`Counsel for Petitioner
`Philip Morris Products, S.A.
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), I certify that on this 9th day of February,
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`2021, a true and correct copy of the foregoing Petitioner’s Reply to the Patent
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`Owner Preliminary Response and all Exhibits were served by electronic mail on
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`Patent Owner’s lead and backup counsel at the following email addresses:
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`David M. Maiorana (Reg. No. 41,449)
`Kenneth S. Luchesi (Reg. No. 58,673)
`David B. Cochran (Reg. No. 39,142)
`Jones Day
`901 Lakeside Avenue
`Cleveland, OH 44114
`Tel: 216.586.3939
`Fax: 216.579.0212
`Email: dmaiorana@jonesday.com
`Email: kluchesi@jonesday.com
`Email: dcochran@jonesday.com
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`Anthony M. Insogna (Reg. No. 35,203)
`Jones Day
`4655 Executive Drive, Suite 1500
`San Diego, CA 92121-3134
`Tel: 858.314.1200
`Fax: 844.345.3178
`Email: aminsogna@jonesday.com
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`Geoffrey K. Gavin (Reg. No. 47,591)
`Jones Day
`1420 Peachtree Street, N.E., Suite 800
`Atlanta, GA 30309-3053
`Tel: 404.521.3939
`Fax: 404.581.8330
`Email: ggavin@jonesday.com
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`Joshua R. Nightingale (Reg. No. 67,865)
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`Petitioner’s Reply to POPR
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`Jones Day
`500 Grant Street, Suite 4500
`Pittsburgh, PA 15219-2514
`Tel: 412.391.3939
`Fax: 412.394.7959
`Email: jrnightingale@jonesday.com
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`George N. Phillips (Reg. No. 68,001)
`Jones Day
`250 Vesey Street
`New York, NY 10281-1047
`Tel: 212.326.3939
`Fax: 212.755.7306
`Email: gphillips@jonesday.com
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`By: / Jonathan M. Strang /
`
`Jonathan M. Strang (Reg. No. 61,724)
`jonathan.strang@lw.com
`Latham & Watkins LLP
`555 Eleventh Street, NW, Ste. 1000
`Washington, D.C. 20004-1304
`Telephone: 202.637.2200
`Fax: 202.637.2201
`
`Counsel for Petitioner
`Philip Morris Products, S.A.
`
`
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