EXHIBIT A: PLAINTIFFS’ PRELIMINARY INFRINGEMENT CONTENTIONS FOR U.S. PATENT NO. 7,798,319
`
`Infringement of U.S. Patent No. 7,798,319 by R.J. Reynolds Vapor Company1, 2
`
`The Accused VELO Products are available in a variety of flavors, including Citrus and Mint, and nicotine strength, including 2mg and 4mg. These
`Accused VELO Products comprise a packaging and nicotine pouches. Aside from cosmetic differences, the packaging are designed and formed in
`the same way, which results in packaging having materially identical features. Thus, the evidence and descriptions below describing the packaging
`of the Accused VELO Products is applicable to any one of the flavor or nicotine strength varieties.
`
`As detailed below Defendant is infringing under at least 35 U.S.C. 271(a) through its use, sale, offer for sale, importation, and manufacture of the
`identified Accused VELO Products in the United States. The chart below identifies Defendant’s direct infringement of the asserted claims.
`Defendant further induces infringement of the 319 Patent by its customers under 35 U.S.C. 271(b) by encouraging those customers to use the
`Accused VELO Products, which Defendant knows infringes the 319 Patent. Defendant further contributes to infringement of the 319 Patent under 35
`U.S.C. 271(c). The Accused VELO Products have no substantial non-infringing uses, are not a staple article of commerce and are specifically made
`and adapted for use in an infringing manner.
`
`CLAIMS
`
`[17a] A tobacco product package
`device, comprising:
`
`DETAILS
`
`Claim 17
`To the extent the preamble is limiting, the Accused VELO Products comprise a tobacco product
`package device.
`
`See, e.g., https://www.velo.com/products/pouches.html.
`
`1 Many figures in this chart have been modified to include annotations to more clearly identify the individual claim elements.
`
`2 Plaintiffs note that as of the time of serving of the Preliminary Infringement Contentions, Defendant has not produced any documents. Plaintiffs
`reserve the right to update these Contentions as they receive more information.
`
`RJRV EX 1023
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`CLAIMS
`
`DETAILS
`BUY VELO NICOTINE POUCHES
`
`Velo Citrus 2mg
`VELO Noeoune Pouch°"
`Flavor-Citrus
`S2.99
`
`◄HIIM\►
`
`Velo Citrus 4mg
`VELO N,c,,1,,,. A,ucl'°"
`A.M>f.C1tn.1s
`$2.99
`
`Velo Mint 2mg
`VELO N1co1111P Pouche5'
`Fbvof-Mtnt
`$2 99
`
`Velo Mint 4mg
`VELO N,c,,""" Pouche<
`FlJvor: Mint
`S2.n
`
`BUY NOW
`
`BUY NOW
`
`BUYNOW
`
`2
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`CLAIMS
`
`DETAILS
`
`POP
`
`Pop open the VE LO tin.
`
`The nicotine pouches of the Accused VELO Products, which are packaged in a metal container, are a
`tobacco product.
`
`See, e.g., https://www.velo.com/footer-links/faq.html.
`
`3
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`CLAIMS
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`DETAILS
`<±> ARE VELO NICOTINE POUCHES CONSIDERED TOBACCO PRODUCTS?
`
`Yes. Velo Nicotine Pouches are tobacco products because they contain nicotine extracted from the tobacco plant. The
`Food and Drug Administration [FOAi has issued regu lations deeming products that contain nicotine extracted from the
`tobacco plant to be tobacco products.
`
`<±> DO VELO NICOTINE POUCHES CONTAIN NICOTINE?
`
`Yes. Velo Nicotine Pouches conta in nicotine extracted from the tobacco plant.
`
`<±> WHAT INGREDIENTS ARE IN VELO NICOTINE POUCHES?
`
`Velo Nicotine Pouches contain nicotine derived from the tobacco plant, microcrystalline cellulose, water, salt,
`sucralose, citric acid, and artificial flavor.
`
`[17b] a container defining an
`interior space and having a bottom
`wall, a generally cylindrical side
`wall that extends from the bottom
`wall toward a connection rim;
`
`The Accused VELO Products comprise a container defining an interior space and having a bottom
`wall, a generally cylindrical side wall that extends from the bottom wall toward a connection rim.
`
`For example, the Accused VELO Products comprise a container defining an interior space.
`
`( Container )11--1111•►
`
`4
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`CLAIMS
`
`DETAILS
`
`The container of the Accused VELO Products have a bottom wall.
`
`Bottom Wall
`
`5
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`CLAIMS
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`DETAILS
`
`Bottom Wall
`
`LIVE LARGE
`C .~t RY LITTLE
`
`
`The container of the Accused VELO Products have a generally cylindrical side wall that extends from
`the bottom wall toward a connection rim.
`
`
`
`
`Generally cylindrical
`side wall
`
`..........
`
`L,1/VE LARGE
`C _tz RY LITTLE
`
`
`
`6
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`CLAIMS
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`DETAILS
`
`
`
`( Connection rim )1i-.... i.►
`
`( Side wall
`
`)----••
`
`[17c] a tobacco product for oral
`consumption arranged in the
`interior space of the container;
`
`
`The Accused VELO Products comprise a tobacco product for oral consumption arranged in the
`interior space of the container.
`
`For example, the Accused VELO Products contain nicotine pouches, which are a tobacco product for
`oral consumption.
`
`See, e.g., https://www.velo.com/footer-links/faq.html.
`
`
`
`
`0 ARE VELO NICOTINE POUCHES CONSIDERED TOBACCO PRODUCTS?
`
`Yes . Velo Nicotine Pouches are tobacco products because they contain nicotine extracted from the tobacco plant. The
`Food and Drug Administration [FDA) has issued regulations deeming products that contain nicotine extracted from the
`tobacco plant to be tobacco products.
`
`
`
`0 HOW DO I USE VELO NICOTINE POUCHES?
`
`Place one Velo nicotine pouch in your mou·h at a 1me. Place the Ve lo nicotine pouch between your gum and lip.
`Let it moisten Velo nico ine pouches can take a few minutes o activate. After enjoyi ng a Velo nico ine pouch,
`properly discard the pouch. Velo Nicotine Pouches are not intended to be swallowed in w hole or in part during
`use.
`
`
`The nicotine pouches are arranged in the interior space of the container.
`
`
`
`
`
`
`
`
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`CLAIMS
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`DETAILS
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`Tobacco product arranged
`in the interior space
`
`[17d] a lid that encloses the tobacco
`product in the interior space of the
`container, the lid including a lid
`wall that is integral with a skirt,
`wherein the skirt is releasably
`engaged with the connection rim;
`and
`
`The Accused VELO Products comprise a lid that encloses the tobacco product in the interior space of
`the container, the lid including a lid wall that is integral with a skirt, wherein the skirt is releasably
`engaged with the connection rim.
`
`For example, the Accused VELO Products include a lid.
`
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`CLAIMS
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`DETAILS
`The lid of the Accused VELO Products encloses the tobacco product in the interior space of the
`container.
`
`
`CRlRVC, Winston-Salem, NC 27102 USA; 1-866-255-1780
`Net Wt. 0.12 oz (3.50g)
`
`
`The lid of the Accused VELO Products includes a lid wall that is integral with a skirt.
`
`
`
`
`
`
`9
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`"Sl3d ONV N3ij011H:J 30 H:JV3M :lO 100 d33)1
`·pa\1q140Jd a1es alle,apun
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`CLAIMS
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`DETAILS
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`The skirt of the Accused VELO Products is releasably engaged with the connection rim.
`
`
`Skirt
`
`( Connection rim )
`
`[17e] a resilient gasket in
`engagement with an interior surface
`of the lid wall to provide a moisture
`barrier and a non-hermetic seal
`between the lid and the container
`when the lid is secured to the
`container, the resilient gasket
`abutting with the connection rim of
`the container when the lid is
`secured to the container, wherein
`the moisture barrier inhibits the
`migration of moisture to and from
`the container when the lid is
`
`
`
`
`
`
`The Accused VELO Products comprise a resilient gasket in engagement with an interior surface of the
`lid wall to provide a moisture barrier and a non-hermetic seal between the lid and the container when
`the lid is secured to the container, the resilient gasket abutting with the connection rim of the
`container when the lid is secured to the container, wherein the moisture barrier inhibits the migration
`of moisture to and from the container when the lid is secured to the container, and wherein the non-
`hermetic seal permits gas exchange between ambient air and the interior space when the lid is secured
`to the container.
`
`For example, the Accused VELO Products comprise resilient gasket in engagement with an interior
`surface of the lid wall.
`
`
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`DETAILS
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`CLAIMS
`secured to the container, and
`wherein the non-hermetic seal
`permits gas exchange between
`ambient air and the interior space
`when the lid is secured to the
`container.
`
`A~LJ(Q
`~ SEALEDFOR
`C FRESHNESS ►
`
`
`The resilient gasket of the Accused VELO Products abuts with the connection rim of the container
`when the lid is secured to the container.
`
`
`
`
`
`
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`CLAIMS
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`DETAILS
`
`\..:: - ~
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`Connection rim
`
`The resilient gasket of the Accused VELO Products provides a moisture barrier and a non-hermetic
`seal between the lid and the container when the lid is secured to the container, wherein the moisture
`barrier inhibits the migration of moisture to and from the container when the lid is secured to the
`container, and wherein the non-hermetic seal permits gas exchange between ambient air and the
`interior space when the lid is secured to the container. The Accused VELO Products expressly state
`that they are “SEALED FOR FRESHNESS” and point to the resilient gasket.
`
`12
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`rn"l ~~
`~ La.. IA.I
`lb a:e
`Lu :z:
`-.I ta
`r1nn ~Q:
`~ "'~
`a 000.:> 1
`
`<€~
`
`► Put the pouch between
`
`your gum and lip .
`
`► Let it moisten, and give it
`time! VELO can take a few
`minutes to activate .
`
`► Enjoy, and dis card wh en
`
`you·re done.
`
`CLAIMS
`
`DETAILS
`
`
`
`
`See also U.S. Patent No. 8,910,781 (showing assignment to R.J. Reynolds Tobacco Company), Figs. 1-4
`(depicting tobacco product package resembling the Accused VELO Products), 5:53-55 (“… the seal or
`gasket can be useful for inhibiting ingress of moisture while also allowing for egress of gas.”).
`
`
`Claim 18
`The Accused VELO Products satisfy the limitations of claim 17 as explained above. Moreover, the
`container of the Accused VELO Products includes one or more vent structures formed proximate the
`connection rim, the vent structures providing a path for gas exchange between ambient air and the
`interface between the gasket and the container.
`
`For example, the Accused VELO Products include an opening proximate to the connection rim that
`provides a path for gas exchange between ambient air and the gasket-container interface.
`
`[18] The device of claim 17,
`wherein the container includes one
`or more vent structures formed
`proximate the connection rim, the
`vent structures providing a path for
`gas exchange between ambient air
`and the interface between the
`gasket and the container.
`
`
`
`13
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`CLAIMS
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`DETAILS
`
`Vent
`structure
`
`Vent
`structure
`
`; -
`©RJRVC, Wins on- a em,
`Net Wt. 0.12 oz (3.50g)
`
`- 5-1780
`
`[19] The device of claim 18,
`wherein the resilient gasket
`comprises a ring of polymer
`material deposited directly onto a
`perimeter channel of the interior
`surface of the lid wall.
`
`Claim 19
`The Accused VELO Products satisfy the limitations of claim 18 as explained above. Moreover, the
`resilient gasket of the Accused VELO Products comprises a ring of polymer material deposited
`directly onto a perimeter channel of the interior surface of the lid wall.
`
`14
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`CLAIMS
`
`DETAILS
`
`Lid wall
`
`Perimeter
`channel
`
`Polymer
`material
`
`To the extent the polymer material does not literally satisfy the “ring” limitation of claim 19, it
`satisfies the limitation under the doctrine of equivalents. The shape of the polymer material is
`insubstantially different from a ring. Moreover, the shape of the polymer material performs
`substantially the same function, in substantially the same way, to obtain the same result as a ring.
`
`Claim 20
`The Accused VELO Products satisfy the limitations of claim 19 as explained above. Moreover, the
`skirt of the lid of the Accused VELO Products comprise a continuous bead that mates with a
`discontinuous bead on the connection rim of the container to provide at least one of a snap-fit
`engagement and a slide-lock engagement.
`
`For example, the skirt of the Accused VELO Products has a continuous bead that mates with a
`discontinuous bead on the connection rim to provide a snap-fit engagement.
`
`[20] The device of claim 19,
`wherein the skirt of the lid
`comprises a continuous bead that
`mates with a discontinuous bead on
`the connection rim of the container
`to provide at least one of a snap-fit
`engagement and a slide-lock
`engagement.
`
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`CLAIMS
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`DETAILS
`
`Continuous
`bead
`
`Skirt
`
`SEALED FOR
`rERFSNNFSS
`
`·snd ONV N3ll011H:J .:10 H:JV3ll .:10 mo d33ll
`·pal!Q!40Jd a1es allei a pun
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`Discontinuous
`bead
`
`To the extent the features identified above as the continuous bead and discontinuous bead do not
`literally satisfy the limitations of claim 20, they satisfy the limitations under the doctrine of
`16
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`CLAIMS
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`[23] The device of claim 17, further
`comprising a side label attached to
`outer circumferential surfaces of
`the container and lid.
`
`DETAILS
`equivalents. These features are insubstantially different from a continuous bead and a discontinuous
`bead, respectively. Moreover, these features perform substantially the same function, in substantially
`the same way, to obtain the same result as a continuous bead and a discontinuous bead.
`
`Claim 23
`The Accused VELO Products satisfy the limitation of claim 17 as explained above. Moreover, the
`Accused VELO Products comprise a side label attached to outer circumferential surfaces of the
`container and lid.
`
`For example, the Accused VELO Products have a side label that reads “Artificially Flavored” and
`“Sale only allowed in the United States” attached to the outer circumferential surfaces of the container
`and lid.
`
`~rtiticially Flavored
`
`Sale on~ allowed in 1he United States
`
`To the extent the label reading “Artificially Flavored” and “Sale only allowed in the United States”
`does not literally satisfy the limitations of claim 23, it satisfies the limitations under the doctrine of
`equivalents. The label reading “Artificially Flavored” and “Sale only allowed in the United States” is
`insubstantially different from a side label attached to the outer circumferential surfaces of the
`container and lid. Moreover, the label reading “Artificially Flavored” and “Sale only allowed in the
`United States” performs substantially the same function, in substantially the same way, to obtain the
`same result as a side label attached to the outer circumferential surfaces of the container and lid.
`
`Claim 25
`The Accused VELO Products satisfy the limitation of claim 17 as explained above. Moreover, the non-
`hermetic seal of the Accused VELO Products permits venting of byproduct gases from the container
`while the lid is releasably engaged with the container.
`17
`
`[25] The device of claim 17,
`wherein the non-hermetic seal
`permits venting of byproduct gases
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`CLAIMS
`from the container while the lid is
`releasably engaged with the
`container.
`
`DETAILS
`
`For example, the Accused VELO Products expressly state that they are “SEALED FOR
`FRESHNESS” and point to the resilient gasket, which provides a non-hermetic seal.
`
`
`A~[r(Q
`~ SEALEDFOR
`0 FRESHNESS ►
`
`
`
`
`See also U.S. Patent No. 8,910,781 (showing assignment to R.J. Reynolds Tobacco Company), Figs. 1-4
`(depicting tobacco product package resembling the Accused VELO Products), 5:53-55 (“… the seal or
`gasket can be useful for inhibiting ingress of moisture while also allowing for egress of gas.”).
`
`
`Claim 26
`The Accused VELO Products satisfy the limitations of claim 17 as explained above. Moreover, the
`gasket of the Accused VELO Products includes a ring-shaped structure arranged on the interior
`surface of the lid wall so as to abut against the connection rim of the container.
`
`For example, the gasket of the Accused VELO Products include a polymer material formed as a ring-
`shaped structure on the interior surface of the lid wall.
`
`
`[26] The device of claim 17,
`wherein the gasket includes a ring-
`shaped structure arranged on the
`interior surface of the lid wall so as
`to abut against the connection rim
`of the container.
`
`
`
`18
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`CLAIMS
`
`DETAILS
`
`Lid wall
`
`Polymer
`material
`
`
`To the extent the polymer material does not literally satisfy the “ring-shaped structure” limitation of
`claim 26, it satisfies the limitation under the doctrine of equivalents. The structural shape of the
`polymer material is insubstantially different from ring-shaped structure. Moreover, the structural
`shape of the polymer material performs substantially the same function, in substantially the same way,
`to obtain the same result as a ring-shaped structure.
`
`The polymer material is arranged on the interior surface of the lid wall so as to abut against the
`connection rim of the container.
`
`
`
`
`
`
`19
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`CLAIMS
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`DETAILS
`
`\..:: - ~
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`Connection rim
`
`20
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