Case 1:20-cv-00393-LO-TCB Document 1065-1 Filed 02/25/22 Page 1 of 17 PageID# 29506
`Case 1:20-cv-00393-LO-TCB Document 1065-1 Filed 02/25/22 Page 1 of 17 PagelD# 29506
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`EXHIBIT 1
`EXHIBIT 1
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`Case 1:20-cv-00393-LO-TCB Document 1065-1 Filed 02/25/22 Page 1 of 17 PagelD# 29506
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`EXHIBIT 1
`EXHIBIT 1
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`Case 1:20-cv-00393-LO-TCB Document 1065-1 Filed 02/25/22 Page 2 of 17 PageID# 29507
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
`
`Plaintiffs and Counterclaim Defendants,
`
`v.
`
`ALTRIA CLIENT SERVICES LLC;
`PHILIP MORRIS USA, INC.; and PHILIP
`MORRIS PRODUCTS S.A.,
`Defendants and Counterclaim Plaintiffs.
`
`
`
`
`Case No.: 1:20-cv-00393-LO-TCB
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`
`
`PLAINTIFFS RAI STRATEGIC HOLDINGS, INC. AND R.J. REYNOLDS
`VAPOR COMPANY’S SECOND SET OF INTERROGATORIES TO
`DEFENDANTS ALTRIA CLIENT SERVICES LLC, PHILIP MORRIS USA, INC.,
`AND PHILIP MORRIS PRODUCTS S.A. (NOS. 8–16)
`
`
`
`Pursuant to Federal Rules of Civil Procedure 26 and 33, Plaintiffs RAI Strategic
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`Holdings, Inc. (“RAI”) and R.J. Reynolds Vapor Company (“RJRV”) (collectively,
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`“Plaintiffs”), by their undersigned attorneys, hereby request Defendants Altria Client
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`Services LLC (“ACS”), Philip Morris USA, Inc. (“PM USA”), and Philip Morris Products
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`S.A. (“PMP”) (collectively, “Defendants”) separately answer each interrogatory set forth
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`below, in writing, under oath, and signed by an officer in accordance with the Definitions
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`and Instructions contained herein, and serve such answers on Plaintiffs’ counsel, Jones
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`Day, 901 Lakeside Avenue, Cleveland, Ohio 44114, within the time prescribed by the
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`Federal Rules of Civil Procedure.
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`1
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`DEFINITIONS
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`1.
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`“ACS” shall each mean and refer to Altria Client Services LLC, including
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`without limitation all of its corporate locations, and all predecessors, predecessors-in-
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`interest, and all past or present directors, officers, agents, representatives, employees,
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`consultants, attorneys, entities acting in joint venture, licensing agreements, or partnership
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`relationships with ACS, and others acting on behalf of ACS.
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`2.
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`“Allegedly Practicing Altria Product” means any Product or method of
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`Defendants, its licensees, or any other party that Defendants allege is covered by one or
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`more claims of the Altria Asserted Patents.
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`3.
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`“Altria Accused Product” or “Altria Accused Products” shall mean any and
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`all electric tobacco heating device systems and the associated tobacco sticks sold for use
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`with the device systems. The tobacco heating device systems and components thereof shall
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`include Defendants’ IQOS® System Holder and Charger (“IQOS® system”). For avoidance
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`of doubt, the holder, charger and all compatible tobacco sticks (such as, but not limited to,
`
`IQOS® HEETS, MarlboroTM HeatSticks, MarlboroTM Fresh Menthol HeatSticks, or
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`MarlboroTM Smooth Menthol HeatSticks) should be considered components of the
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`respective tobacco heating device systems, and thus are included in the meaning of “Altria
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`Accused Product” or “Altria Accused Products.” Components further shall include any
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`smaller breakdown of parts, if applicable, to the IQOS® system and associated tobacco
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`sticks.
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`2
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`4.
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`“Altria Asserted Claims” means any patent claims for which Defendants
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`allege Infringement in this case and any claims subsequently identified by Defendants.
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`5.
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`“Altria Asserted Patents” or means each and any of the ’265 ’556, ’911, ’545,
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`or ’374 patents.
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`6.
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`“Altria Named Inventors” means each and any of the inventors identified on
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`the face of the Altria Asserted Patents.
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`7.
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`“Altria Prior Art” shall mean all Documents, activities, and things that
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`constitute, describe, or refer to part or all of the subject matter claimed in the Altria
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`Asserted Patents that existed prior to the filing dates of the Altria Asserted Patents,
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`including any Products containing the same. By way of example, and without limitation,
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`the term “Altria Prior Art” includes the items described in 35 U.S.C. §§ 102 and 103,
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`including publications, patents, physical devices, prototypes, knowledge, uses, sales, and
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`offers for sale, and any Document or thing evidencing any of the foregoing, whether before
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`or after any alleged reduction to practice dates of the alleged invention of the Altria
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`Asserted Patents, and whether the Documents, activities, and Products relate to the United
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`States or other countries.
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`8.
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`“Communication” or “Communications” means every manner or method of
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`disclosure or transfer or exchange of information, whether orally or by Document, and
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`whether face-to-face, by telephone, mail, electronic mail, personal delivery, facsimile, or
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`otherwise.
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`3
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`9.
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`“Defendants,” “Counterclaim Plaintiffs,” “You,” or “Your” shall mean and
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`refer to ACS, PM USA, and PMP.
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`10.
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`“Describe,” when used in relation to an act, event, instance, occasion,
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`transaction, conversation, or Communication, shall mean (1) to state the date and place
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`thereof; (2) to Identify the individual participants; (3) to summarize separately for each
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`individual participant what was said and/or done; and (4) to Identify each Document used
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`or prepared in connection therewith or making any reference thereto.
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`11.
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`“Document” or “Documents” has the broadest meaning consistent with
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`Federal Rule of Civil Procedure 34 and applicable case law, and includes electronically
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`stored information as specified in Federal Rule of Civil Procedure 34. Any draft or non-
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`identical copy is a separate Document within the meaning of this term.
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`12.
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`“Identify,” “Identifying,” “Identity,” or “Identification,” when used with
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`respect to any natural Person, shall mean that the following information shall be provided:
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`the Person’s full name; last known home address; last known business address and
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`telephone number; last known title or occupation; and last known employer.
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`13.
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`“Identify,” “Identifying,” “Identity,” or “Identification,” when used with
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`respect to any legal entity, such as a corporation, company, or Person other than a natural
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`person, shall mean that the following information shall be provided: the entity’s name; the
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`place of incorporation or organization; the principal place of business; and the nature of
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`the business conducted by that legal entity.
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`4
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`14.
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`“Identify,” “Identifying,” “Identity,” or “Identification,” when used with
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`respect to a Document, subject to the option to produce records under Federal Rule of Civil
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`Procedure 33(d), shall mean to provide information sufficient to locate that Document,
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`including but not limited to the following: the Bates range, the date appearing on such
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`Document or, if no date appears thereon, the approximate date the Document was prepared;
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`the identifying code number, file number, title, or label of such Document; a general
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`description of such Document (e.g., letter, memorandum, drawing); the title or heading;
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`the number of pages of which such Document consists; the name of each Person who
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`signed or authorized the Document; the name of each addressee; the name of each Person
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`having possession, custody, or control of such Document; if the Document existed at one
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`time but does not presently exist, the reason(s) why it no longer exists and the Identity of
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`the last Person having custody of it; and, if the Document is in a foreign language, whether
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`an English translation of the Document exists, whether partial or complete.
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`15.
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`“Infringe,” “Infringing,” “Infringed,” or “Infringement” are broadly defined
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`to include direct infringement, indirect infringement, contributory infringement, induced
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`infringement, literal infringement and/or infringement under the doctrine of equivalents.
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`16.
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`“Person” or “Persons” shall mean any natural person, legal entity or any
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`business entity, including but not limited to any proprietorship, firm, partnership,
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`corporation, association, organization, or other legal entity. The acts of a Person shall
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`include the acts of directors, officers, owners, members, employees, agents, attorneys, or
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`other representatives acting on the Person’s behalf.
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`5
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`17.
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`18.
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`“Plaintiffs” shall mean and refer to RAI and RJRV.
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`“PM USA” shall each mean and refer to Philip Morris USA, Inc., including
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`without limitation all of its corporate locations, and all past or present directors, officers,
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`agents, representatives, employees, consultants, attorneys, entities acting in joint venture,
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`licensing agreements, or partnership relationships with PM USA, and others acting on
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`behalf of PM USA.
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`19.
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`“PMP” shall each mean and refer to Philip Morris Products S.A., including
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`without limitation all of its corporate locations, and all past or present directors, officers,
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`agents, representatives, employees, consultants, attorneys, entities acting in joint venture,
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`licensing agreements, or partnership relationships with PMP, and others acting on behalf
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`of PMP.
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`20.
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`“Product” or “Products” shall mean a machine, manufacture, apparatus,
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`device, instrument, mechanism, appliance, composition of matter, assemblage of
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`components/parts (either individually or collectively), process, or method which are
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`designed to function together electrically, mechanically, chemically, or otherwise, to
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`achieve a particular function or purpose, including those offered for sale, sold, or under
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`development. “Product” or “Products” shall further include all “Altria Accused Products”
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`or “Reynolds Accused Products” as defined in this section.
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`21.
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`“Relate to,” “Related to,” “Relating to,” or “Concerning” shall mean in any
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`way concerning, constituting, comprising, containing, setting forth, summarizing,
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`reflecting, stating, describing, recording, noting, embodying, mentioning, studying,
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`analyzing, evaluating, discussing, contemplating, or referencing a specified subject either
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`directly or indirectly.
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`22.
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`“Reynolds Accused Product” or “Reynolds Accused Products” shall mean
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`(i) the VUSE VibeTM power unit and associated flavor packs; (ii) the VUSE Alto® power
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`unit and associated flavor packs; (iii) the VUSE Ciro® power unit and associated flavor
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`packs, and/or (iv) VUSE Solo® power unit and associated flavor packs.
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`23.
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`24.
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`25.
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`26.
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`27.
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`“The ’265 patent” means United States Patent No. 9,814,265.
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`“The ’556 patent” means United States Patent No. 10,555,556.
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`“The ’911 patent” means United States Patent No. 10,104,911.
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`“The ’545 patent” means United States Patent No. 6,803,545.
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`“The ’374 patent” means United States Patent No. 10,420,374.
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`INSTRUCTIONS
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`1.
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`The singular form of a word should be interpreted in the plural as well. Any
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`pronoun shall be construed to refer to the masculine, feminine, or neuter gender as in each
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`case is most appropriate. The words “and” and “or” shall be construed conjunctively or
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`disjunctively, whichever makes the request most inclusive. The word “including” shall be
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`without limitation. The terms “each” and “any” shall mean any and all.
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`2.
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`These interrogatories call for information (including any information
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`contained in or on any Document or thing) that is known or available to You, or in Your
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`possession, custody or control, including all information known or available to Your
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`attorneys, agents, representatives, or any other Person acting or purporting to act on Your
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`behalf or under the direction or control of You or Your attorneys, agents, representatives,
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`or investigators.
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`3.
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`If You withhold any information or decline to fully Identify any Person,
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`Document, or Communication, or portion thereof, in response to any of the interrogatories
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`set forth below on grounds of privilege or any other claim of immunity from discovery,
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`then for each Identification, Document, Communication, or portion thereof withheld, state
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`the following:
`
`a.
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`b.
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`c.
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`d.
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`e.
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`f.
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`g.
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`the type of Document (e.g., letter, memorandum, contract, etc.);
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`its title;
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`its date;
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`its subject matter;
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`the name, address, and employer at the time of preparation of the
`individual(s) who authored, drafted, or prepared it;
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`the name, address, and employer at the time of dissemination of the
`individual(s) to whom it was directed, circulated, or copied, or who
`had access thereto; and
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`the grounds on which the Document is being withheld (e.g., “attorney-
`client privilege,” “work product immunity,” etc.).
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`4.
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`In the event that You object to any interrogatory on the ground that it is
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`overbroad and/or unduly burdensome for any reason, respond to that interrogatory as
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`narrowed to the least extent necessary, in Your judgment, to render it not overbroad/unduly
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`burdensome and state specifically the extent to which You have narrowed that
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`interrogatory for purposes of Your response.
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`8
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`5.
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`In the event that You object to any interrogatory on the ground that it is vague
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`and/or ambiguous, identify the particular words, terms or phrases that are asserted to make
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`such interrogatory vague and/or ambiguous and specify the meaning actually attributed to
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`You by such words for purposes of Your response thereto.
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`6. Whenever You are asked to Identify or Describe an event, You shall at a
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`minimum: (a) summarize all facts relating to the event; (b) state the date and location of
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`each occurrence relating to the event; (c) Identify the Persons most knowledgeable about
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`the event; and (d) Identify all Documents and Communications relating to the event.
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`7. Whenever You are asked to “State the Basis” of or for a particular claim,
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`counterclaim, assertion, allegation, or contention, You shall at a minimum: (a) Describe all
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`facts, information, conclusions, theories, and arguments that relate to or form the basis of
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`Your response; (b) Identify all Documents (and where pertinent, the section, article, or
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`subparagraph thereof) that relate to or form any part of the basis of Your response; (c)
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`Identify all Communications that relate to or form any part of the basis of Your response;
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`and (d) Identify separately the acts or omissions to act on the part of any Person (by stating
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`their nature, time and place and Identifying the Persons involved) that relate to or form any
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`part of the basis of Your response.
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`8.
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`Because these discovery requests are continuing under Federal Rule of Civil
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`Procedure 26(e), You remain under a duty to supplement or amend any response herein.
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`INTERROGATORY NO. 8:
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`INTERROGATORIES
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`Separately for each Altria Asserted Claim, explain in detail on an element-by-
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`element basis Your contentions regarding Infringement by each Reynolds Accused Product
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`and Describe in detail and Identify the specific factual and legal bases that support Your
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`contentions including, but not limited to: Identification of each claim of the Altria Asserted
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`Patents that is allegedly Infringed by Plaintiffs; Identification of where each limitation of
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`each asserted claim is found in each Reynolds Accused Product; and Identification of
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`whether You contend each element and claim is Infringed literally or by the doctrine of
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`equivalents, is Infringed directly or indirectly, and if indirectly, whether by inducement
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`and/or contributorily.
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`INTERROGATORY NO. 9:
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`
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`Separately for each Altria Asserted Claim, fully Describe, on an element-by-
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`element basis, the circumstances surrounding the conception and reduction to practice of
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`the claimed invention(s), including without limitation, the earliest date(s) by which the
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`claimed subject matter was conceived and reduced to practice, whether the reduction to
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`practice was actual or constructive, and the date(s) associated with any diligence exercised
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`in reducing to practice the claimed subject matter; the facts supporting conception and
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`reduction to practice of the claimed subject matter and any acts of diligence in reducing to
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`practice the claimed subject matter; the Identity of all Persons (including Altria Named
`
`Inventors) who were/are involved in, knowledgeable about, and/or corroborated in each
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`alleged conception, reduction to practice, and act of diligence as well as their role in, or
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`contribution to, such events; all Communications that such Person(s) had with others
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`regarding the claimed subject matter prior to the filing date of the respective Altria Asserted
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`Patents; and all Documents and things concerning the conception, reduction to practice, or
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`diligence.
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`INTERROGATORY NO. 10:
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`Describe and Identify all Altria Prior Art known by, or identified to, Defendants
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`related to the subject matter claimed in each of the Altria Asserted Patents, including but
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`not limited to Altria Prior Art identified in connection with any other litigation, action,
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`proceeding, arbitration, evaluation, opinion, analyses, and Altria Prior Art searches,
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`regardless of whether Defendants believe such references were relevant or material to the
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`subject matter claimed, and Identify the Persons most knowledgeable about each piece of
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`Altria Prior Art.
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`INTERROGATORY NO. 11:
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`Separately for each Altria Asserted Patent, Describe with particularity the first
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`making, use, sale, offer for sale, or public disclosure of any Product or process within the
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`scope of a claim of the Altria Asserted Patents, including without limitation, the
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`identification of each claim of the Altria Asserted Patent covering such Product or process,
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`the date and location of such making, use, sale, offer for sale, or public disclosure; the
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`Product (or process) that was the subject of the making, use, sale, offer for sale, or public
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`disclosure; the Person who made or used, or to whom the sale, offer for sale, or public
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`11
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`disclosure was made; and Identify the Documents and things related to, and witnesses most
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`knowledgeable about such activities.
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`INTERROGATORY NO. 12:
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`Separately for each Altria Asserted Patent, Identify and Describe each fact,
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`Document, thing, and other evidence that supports Defendants’ contention, if any, that
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`Plaintiffs’ alleged Infringement is or was deliberate or willful, that the case is exceptional
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`under 35 U.S.C. § 285, and/or that the Defendants are entitled to any form of increased
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`damages or attorneys’ fees, including but not limited to any and all facts reflecting
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`Plaintiffs’ alleged knowledge of the Altria Asserted Patents and/or Plaintiffs’ alleged
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`knowledge that the Reynolds Accused Products allegedly Infringed.
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`INTERROGATORY NO. 13:
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`For each Reynolds Accused Product and each Altria Asserted Claim, Describe and
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`explain the bases for Your claim for and computation of damages to which You contend
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`You are entitled as a result of Plaintiffs’ alleged Infringement, including without limitation:
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`(a) the total dollar amount of damages claimed; (b) the time period for such damages; (c)
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`whether those damages are based upon lost profits, a reasonable royalty, and/or some other
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`theory; (d) Your basis for any claim of damages based upon lost profits, a reasonable
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`royalty, and/or some other theory; (e) Your Products (including any Allegedly Practicing
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`Altria Products) that You contend compete with the Reynolds Accused Products, if any;
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`(f) all facts upon which You rely or will rely for proof of the amount of damages; (g) the
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`method by which the amount of damages has been or will be calculated; (h) the Identity of
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`each Person with information related to Your computation of damages; and (i) the Identity
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`of all Documents upon which You rely in support of Your computation. If Your
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`computation of damages for alleged Infringement of the Altria Asserted Patents is based
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`on a “reasonable royalty” under 35 U.S.C. § 284, explain in detail what the royalty rate is,
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`or will be, how it was calculated, and the royalty base(s) to which the royalty rate would
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`be applied, including whether the royalty base is based on the value of the entire Product
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`or a portion thereof (if so, Identify such portion).
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`INTERROGATORY NO. 14:
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`Identify all factual bases that support Defendants’ contention that it and all former
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`and current owners and/or licensees of the Altria Asserted Patents have complied with the
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`notice requirements of 35 U.S.C. § 287 including without limitation, for each Product
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`made, offered for sale, sold, or imported into the United States, that embodies the alleged
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`inventions of the Altria Asserted Patents (including each Allegedly Practicing Altria
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`Product), Identify (i) the manner by which notice was provided, (ii) the patent numbers
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`included on the notice, (iii) the timeframe over which notice was provided, and (iv) all
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`Documents and things supporting, refuting, embodying, or relating to said notice.
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`INTERROGATORY NO. 15:
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`Separately for each Altria Asserted Claim, Identify and Describe Your contentions
`
`relating to the purported validity of such claim including Identification of Your contentions
`
`relating to all secondary considerations and objective evidence of nonobviousness of the
`
`purported inventions claimed in the Altria Asserted Patents, including, but not limited to,
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`the presence or absence of any commercial success, long-felt need, commercial
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`acquiescence, expressions of skepticism, copying, teaching away, successful or failed
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`attempts by others, or simultaneous development; Identify all Documents and things
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`supporting, contradicting, or otherwise relating to Your contentions; and Identify three (3)
`
`most knowledgeable Persons about the facts described in Your contentions.
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`INTERROGATORY NO. 16:
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`For each Altria Asserted Claim, state Defendants’ contentions, and the factual basis
`
`for such contentions, regarding the priority date to which Defendants contend each such
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`Altria Asserted Claim is entitled.
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`14
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`Dated: August 31, 2020
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`Respectfully submitted,
`
`Stephanie E. Parker
`JONES DAY
`1420 Peachtree Street, N.E.
`Suite 800
`Atlanta, GA 30309
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
`
`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`Email: aminsogna@jonesday.com
`
`William E. Devitt
`JONES DAY
`77 West Wacker
`Suite 3500
`Chicago, IL 60601
`Telephone: (312) 269-4240
`Facsimile: (312) 782-8585
`Email: wdevitt@jonesday.com
`
`Sanjiv P. Laud
`JONES DAY
`90 South Seventh Street
`Suite 4950
`Minneapolis, MN 55402
`Telephone: (612) 217-8800
`Facsimile: (844) 345-3178
`Email: slaud@jonesday.com
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`
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`
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`
`
`/s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`Ryan B. McCrum
`JONES DAY
`901 Lakeside Avenue
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`Email: rbmccrum@jonesday.com
`
`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Tel: (212) 326-3939
`Fax: (212) 755-7306
`Email: jjnormile@jonesday.com
`
`Alexis A. Smith
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`Telephone: (213) 243-2653
`Facsimile: (213) 243-2539
`Email: asmith@jonesday.com
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`Counsel for Plaintiffs RAI Strategic Holdings,
`Inc. and R.J. Reynolds Vapor Company
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`Case 1:20-cv-00393-LO-TCB Document 1065-1 Filed 02/25/22 Page 17 of 17 PageID# 29522
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`CERTIFICATE OF SERVICE
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`I hereby certify that on August 31, 2020, the foregoing was served on the following
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`by hand delivery and email:
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`Gregory K. Sobolski
`Gregory.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
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`And the following were served by email:
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`Matthew J. Moore
`matthew.moore@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW, Suite 1000
`Washington, DC 20004
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`Clement J. Naples (pro hac vice pending)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022-4834
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`Maximilian A. Grant
`max.grant@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW, Suite 1000
`Washington, DC 20004
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`Brenda L. Danek
`brenda.danek@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
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`Dated: August 31, 2020
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`/s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`JONES DAY
`901 Lakeside Avenue
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
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