Case 1:20-cv-00393-LO-TCB Document 1108 Filed 02/25/22 Page 1 of 17 PageID# 30367
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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
`
`
`
`
`
`
`
`
`PMI/ALTRIA’S REPLY IN SUPPORT OF MOTION TO EXCLUDE OPINIONS OF
`RJR’S EXPERTS BASED ON REJECTED CLAIM CONSTRUCTIONS
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`
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`

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`Case 1:20-cv-00393-LO-TCB Document 1108 Filed 02/25/22 Page 2 of 17 PageID# 30368
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`
`
`I.
`
`II.
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`TABLE OF CONTENTS
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`
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`INTRODUCTION ...............................................................................................................1
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`ARGUMENT .......................................................................................................................2
`
`A.
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`B.
`
`C.
`
`D.
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`The Court Rejected RJR’s Proposed Constructions and Construed the
`Disputed Terms to Have Their Plain and Ordinary Meaning ..................................2
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`RJR’s Experts Do Not Apply the Plain Meaning ....................................................5
`
`RJR’s Experts Reliance on the Prosecution History to Contradict the
`Court’s Claim Construction Order Is Improper .......................................................8
`
`The Court Should Deny RJR’s Request to Re-litigate the Court’s
`Construction for the “Blind Hole” Limitation of the ’911 Patent ............................9
`
`III.
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`CONCLUSION ..................................................................................................................11
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`
`
`
`
`i
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`

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`
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`TABLE OF AUTHORITIES
`
`CASES
`
`ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012) ................................................................................................. 10
`
`Apple, Inc. v. Samsung Elecs. Co., Ltd.,
`No. 12-cv-00630, 2014 WL 660857 (N.D. Cal. Feb. 20, 2014) .......................................... 4, 5, 6
`
`Arason Enterprises, Inc. v. CabinetBed Inc.,
`No. 16-cv-03001, 2019 WL 4597863 (D. Colo. Sept. 23, 2019) ................................................ 5
`
`Avid Tech., Inc. v. Harmonic Inc.,
`No. 11-cv-1040, 2014 WL 7206301 (D. Del. Dec. 17, 2014) ..................................................... 5
`
`Cave Consulting Group, LLC v. OptumInsight, Inc.,
`No. 11-cv-00469, 2015 WL 740379 (N.D. Cal. Feb. 20, 2015) .................................................. 5
`
`DNT, LLC v. Sprint Spectrum, LP,
`No. 09-cv-00021, 2010 WL 582164 (E.D. Va. Feb. 12, 2020) ................................................... 5
`
`Exergen Corp. v. Wal-Mart Stores, Inc.,
`575 F.3d 1312 (Fed. Cir. 2009) ................................................................................................... 1
`
`Fujifilm Corp. v. Motorola Mobility Inc.,
`No. 12-cv-3587, 2015 WL 1265009 (N.D. Cal. Mar. 19, 2015) ................................................. 5
`
`GPNE Corp. v. Apple, Inc.,
`108 F. Supp. 3d 839 (N.D. Cal. 2015) ......................................................................................... 9
`
`Level 3 Commc’ns, LLC v. Limelight Networks,
`No. 07-cv-589, 2009 WL 10689350 (E.D. Va. June 23, 2009) ................................................... 9
`
`Markman v. Westview Instruments, Inc.,
`52 F.3d 967 (Fed. Cir. 1995) ....................................................................................................... 4
`
`Metaswitch Networks Ltd. v. Genband US LLC,
`No. 14-cv-00744, 2017 WL 3704760 (E.D. Tex. Aug. 28, 2017)............................................... 5
`
`TEK Glob., S.R.L. v. Sealant Sys. Int’l, Inc.,
`920 F.3d 777 (Fed. Cir. 2019) ..................................................................................................... 6
`
`Teva Pharms. USA, Inc. v. Sandoz, Inc.,
`574 U.S. 318 (2015) .................................................................................................................... 4
`
`Toshiba Corp. v. Imation Corp.,
`681 F.3d 1358 (Fed. Cir. 2012) ............................................................................................... 3, 8
`
`ii
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`
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`Vita-Mix Corp. v. Basic Holding, Inc.,
`581 F.3d 1317 (Fed. Cir. 2009) ................................................................................................. 10
`
`YETI Coolers, LLC v. RTIC Coolers, LLC,
`No. 15-cv-597, 2017 WL 404519 (W.D. Tex. Jan. 27, 2017) ................................................. 6, 7
`
`iii
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`L
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`INTRODUCTION
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`RJR doesnot dispute that its technical experts intend to apply the sameclaim constructions
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`and advance the same arguments that RJR proposed at Markmanand that the Court expressly
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`rejected. This is dispositive as a matter of law because “[n]o party may contradict the court’s
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`construction to a jury.” Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1321 (Fed. Cir.
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`2009). RJR devotes 25 pages—in response to PMI/Altria’s nine-page motion—to justifying why
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`its experts should be permitted to revive those rejected claim constructions. That fails for three
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`fundamental reasons.
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`First, RJR’s argument hinges on the incorrect premise that the Court’s rejection of the
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`restrictions RJR sought to import into the claims during Markman somehowauthorizes its experts
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`to tell the jury at trial that the claims contain those same rejected limitations. That pretext for a
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`secondbite at the claim construction apple is legal error and would make the parties’ and Court’s
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`efforts at Markman meaningless. Second, RJR’s assertion that its experts are applying the plain
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`meaning when they rely on the very same purported limitations and disclaimers that the Court
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`rejected at Markmanis plainly wrong.
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`Importing limitations and applying prosecution history
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`disclaimer is the opposite of applying the plain meaning. Third, RJR’s assertion that its experts
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`are merely considering the file history is a red herring. As the cases RJR cites confirm, experts
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`maynot rely on the file history to opine on disclaimerto the jury. That is especially true here
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`because RJR’s experts simply repeat the same arguments citing the same portionsofthefile history
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`that RJR already advanced at Markman and the Court rejected. PO
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`Dkt. 904-6 (Kodama Dep.) at 326:18-24.
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`.
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`The parties and the Court engaged in a fulsome claim construction process—including 150
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`pages of briefing and a thorough hearing. The Court’s ensuing order expressly declined to import
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`any of the narrowing limitations that RJR proposed, whether based on purported limitations from
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`the specification or alleged disclaimers during prosecution. RJR’s attempt to contradict the
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`Court’s Markman order is improper as a matter of law and should be rejected.
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`II.
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`ARGUMENT
`A.
`
`The Court Rejected RJR’s Proposed Constructions and Construed the
`Disputed Terms to Have Their Plain and Ordinary Meaning
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`RJR concedes that “[e]xpert witnesses may not offer testimony that contradicts a court’s
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`claim-construction rulings.” Opp. at 11. But RJR asserts that the “principle is not at issue here”
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`because the Court “declined to construe any claims.”1 Id. RJR is wrong. The Court, after
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`“review[ing] the parties’ submissions, including the patents, prosecution histories, and other
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`pertinent materials and consider[ing] the oral arguments of the parties,” ruled that the disputed
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`claim terms should be construed to have “their common meaning.” Dkt. 360 at 1. In adopting the
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`plain and ordinary meaning, the Court declined to import the limitations RJR proposed, finding
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`that “[n]one of the terms were modified by a clear disclaimer in the prosecution” and that RJR’s
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`
`1 RJR’s suggestion that the Court rejected “the parties’ proposed constructions” misrepresents the
`record and is irrelevant. Opp. at 1. During claim construction, the Court rejected PMI/Altria’s
`proposed constructions only for the claims of RJR’s asserted patents, which are stayed and will
`not be at issue at the June trial. The Court adopted—and did not reject any of—PMI/Altria’s
`proposed constructions as to the PMI/Altria asserted patents at issue in this motion and the
`upcoming June trial. Dkt. 360.
`
`2
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`

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`
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`proposed limitations were made to advance “non-infringement [] arguments downstream in the
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`litigation.” Dkt. 360 at 2.2
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`RJR asserts that “[t]he Court did not reject any argument made by Reynolds as inconsistent
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`with the plain and ordinary meaning.” Opp. at 12; id. at 3. This is, at best, disingenuous. During
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`claim construction, RJR relied heavily on prosecution history disclaimer to support the limitations
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`it sought to import. Dkt. 223 at 29-31 (arguing disclaimer for ’911 patent claim term “recessed in
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`the wall of the aerosol-forming chamber”); id. at 33-38 (arguing disclaimer for ’374 patent claim
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`term “capacitor”). A disclaimer-based construction, by definition, is not the plain meaning.
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`Toshiba Corp. v. Imation Corp., 681 F.3d 1358, 1369 (Fed. Cir. 2012) (“Absent disclaimer or
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`lexicography, the plain meaning of the claim controls.”).3 And as to other limitations RJR
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`proposed, the Court found they improperly sought to advance “non-infringement [] arguments
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`downstream in the litigation” and, rather than adopting RJR’s proposals, gave the claims their plain
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`meaning as PMI/Altria proposed.
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`As purported support for its position that its proposed rejected constructions “were also the
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`plain meaning,” RJR cites the Court’s statement that “[e]ach side asks the Court to give the fifteen
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`terms in dispute their ordinary and customary meaning.” Opp. 2-3. That is also disingenuous.
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`RJR only proposed plain and ordinary meaning for disputed claim terms of the RJR asserted
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`patents. Dkt. 223 at 3-6. As RJR knows, the Court stayed its claims on those patents shortly after
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`claim construction and they will not be presented at the June trial. RJR did not propose construing
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`2 RJR contends that the “detect a blowing action” limitation of the ’374 patent was not “rejected”
`but “resolved by agreement.” Opp. at 12. That is wrong. RJR affirmatively withdrew its proposed
`construction at the Markman hearing and represented to the Court that it was “fine with the plain
`and ordinary meaning,” as explained in PMI/Altria’s opening brief. See Mot. at 4. That is
`equivalent to a rejected claim construction and in no way permits RJR to resurrect its withdrawn
`construction.
`3 All emphases added unless noted otherwise.
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`3
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`

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`
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`the claim terms of PMI/Altria’s asserted patents as plain and ordinary meaning. In contrast, for
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`each disputed term of the PMI/Altria patents, PMI/Altria argued that they should be given their
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`plain and ordinary meaning. RJR disagreed, proposing limiting constructions for each term, none
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`of which were adopted by the Court. See generally Dkt. 223; Dkt. 360 at 1.
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`RJR next asserts that the Court’s rejection of its proposed limitations as “advanced [] to
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`support infringement/non-infringement or invalidity arguments” somehow means the Court
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`blessed its experts to present the already-rejected limitations to the jury. Opp. at 13. RJR is wrong.
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`The Court’s Markman order merely recognized that, consistent with black-letter law, “[a] claim
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`must be construed before determining its validity just as it is first construed before deciding
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`infringement.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 996 n.7 (Fed. Cir. 1995).
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`Contrary to RJR’s assertion, the Court did not suggest (much less state) that RJR’s experts may
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`re-litigate resolved claim construction issues at trial under the guise of “opinions.”
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`Finally, the litany of cases RJR cites for the proposition that “parties may introduce
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`evidence as to the plain and ordinary meaning of terms not construed by the Court to one skilled
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`in the art” are inapposite. Opp. at 1, 14. None of those cases permit a party to re-litigate at trial
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`constructions and limitations rejected at the Markman stage whenever the Court rules that a term
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`should be given its plain meaning. That is unsurprising because claim construction is exclusively
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`for the Court to decide, not the jury. See Teva Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. 318,
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`321 (2015) (“[C]onstruction of a patent, including terms of art within its claim, is not for a jury
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`but exclusively for the court to determine”) (internal quotations omitted). Indeed, RJR’s cited
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`cases involve situations where the parties did not seek construction of the terms at issue. See
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`Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 12-cv-00630, 2014 WL 660857, at *3 (N.D. Cal. Feb.
`
`20, 2014) (“Where, as here, parties ‘did not seek construction’ of the terms at issue, courts give
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`4
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`those terms their ‘ordinary and customary meaning []’ . . . [a]t trial, parties may ‘introduc[e]
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`evidence as to the plain and ordinary meaning of the terms not construed by the Court to one skilled
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`in the art[.]”) (citation omitted); Arason Enterprises, Inc. v. CabinetBed Inc., No. 16-cv-03001,
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`2019 WL 4597863, at *5 (D. Colo. Sept. 23, 2019) (involving claim term not raised as a disputed
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`term at Markman); Metaswitch Networks Ltd. v. Genband US LLC, No. 14-cv-00744, 2017 WL
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`3704760, at *4 (E.D. Tex. Aug. 28, 2017) (same); Fujifilm Corp. v. Motorola Mobility Inc., No.
`
`12-cv-3587, 2015 WL 1265009, at *5 (N.D. Cal. Mar. 19, 2015) (same); Avid Tech., Inc. v.
`
`Harmonic Inc., No. 11-cv-1040, 2014 WL 7206301, at *4 (D. Del. Dec. 17, 2014) (same).4 By
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`contrast, here, the disputed terms were hotly contested, the Court expressly rejected RJR’s
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`proposed limitations in favor of a plain meaning construction, and RJR now seeks to improperly
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`re-raise its rejected constructions to the jury.
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`B.
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`RJR’s Experts Do Not Apply the Plain Meaning
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`RJR wrongly asserts that its experts can base their opinions on constructions rejected by
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`the Court because “parties may introduc[e] evidence as to the plain and ordinary meaning of terms
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`not construed by the Court to one skilled in the art.” Opp. at 14 (quoting Apple, Inc. v. Samsung
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`Elecs. Co., Case No. 12–cv–00630, 2014 WL 660857, at *3 (N.D. Cal. Feb. 20, 2014)). As
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`discussed, the Court here has construed the disputed terms by rejecting the extraneous limitations
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`RJR tried to import. See TEK Glob., S.R.L. v. Sealant Sys. Int’l, Inc., 920 F.3d 777, 787 (Fed. Cir.
`
`
`4 Although the claim term at issue in Cave Consulting Group, LLC v. OptumInsight, Inc. was
`construed by the court to have its plain and ordinary meaning, no party sought to reargue rejected
`claim constructions to the jury, as RJR does here. No. 11-cv-00469, 2015 WL 740379, at *15
`(N.D. Cal. Feb. 20, 2015). Further, DNT, LLC v. Sprint Spectrum, LP is a three-sentence ruling
`that merely stated that defendants were not precluded “from introducing evidence as to the plain
`and ordinary meaning of terms not construed by the Court[.]” No. 09-cv-00021, 2010 WL 582164,
`at *4 (E.D. Va. Feb. 12, 2020). It in no way supports re-litigating rejected constructions whenever
`a court rules that a term should be given its plain meaning.
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`5
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`

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`2019) (“Because the district court expressly rejected SSI’s interpretation when it determined that
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`the term should have its plain and ordinary meaning . . . and SSI does not appeal the district
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`court’s claim construction order rejecting its interpretation of the plain and ordinary meaning, our
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`inquiry is limited to whether substantial evidence supports the jury’s infringement verdict under
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`the issued claim construction.”). This renders RJR’s reliance on Apple, Inc. v. Samsung (and its
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`other cited cases) inapposite. Where, as here, the Court has already considered and rejected
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`proposed claim constructions, courts have found it “wholly inappropriate” for experts to “back
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`door” those rejected constructions into trial under the guise of “explain[ing]” the plain and ordinary
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`meaning—precisely what RJR’s experts seek to do. YETI Coolers, LLC v. RTIC Coolers, LLC,
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`No. 15-cv-597, 2017 WL 404519, at *2 (W.D. Tex. Jan. 27, 2017).
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`RJR’s arguments confirm that its experts are improperly attempting to “back door” its
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`rejected constructions at trial. First, for the ’265 Patent, RJR concedes that its expert intends to
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`tell the jury that “dimensions substantially the same as a cross-section of a cigarette or a cigar”
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`requires “an essentially circular shape.” Opp. at 16. This is the exact same limitation RJR sought
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`to add during claim construction. See Dkt. 223 at 19 (RJR’s Markman brief proposing construction
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`of “outer boundaries of an essentially circular shape”). And it is the same limitation the Court
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`declined to import in adopting PMI/Altria’s proposed construction of plain and ordinary meaning,
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`without any limitations on shape. Dkt. 360 at 2; see also Dkt. 224 at 6 (PMI’s Markman brief
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`asserting that “[t]here is no support for RJR’s proposal to import a shape limitation into the
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`disputed term.”).
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`Second, for the ’556 patent, RJR does not dispute that its expert’s opinions are based on
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`adding limitations to the terms “opening” and “spaced apart.” Nor does RJR dispute that it sought
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`to import these very limitations during claim construction and the Court declined to do so. Mot.
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`6
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`at 3; Opp. at 17. The Court instead adopted PMI/Altria’s proposal to give both terms (i.e.,
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`“construe”) their plain and ordinary meaning without the limitations RJR sought to import at
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`Markmanandthat its expert now hopesto import forthe jury.
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`Third, RJR attempts to re-litigate two claim terms in the ’374 Patent: (1) “detect” and (2)
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`“capacitor.” RJR concedesthat its expert intends to opineha
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`I ©217-15. This claim construction
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`“opinion” plainly narrows the term “detect.” During claim construction, the parties’ disputed
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`whether“detect” should be narrowed to require something more than detection. See e.g., Dkt. 310
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`at 22 (“RJR’s insistence that ‘detect’ be replaced with ‘determine’ suggests that RJR intends to
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`argue that something morethan ‘detection’ is required.”). RJR withdrew its proposed construction
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`of “detect” as “determine,” confirming its agreement with PMI/Altria’s position that only
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`“detection” is required. See Dkt. 904-3 MarkmanH’rg Tr. at 95-97. RJR’s expert now attempts
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`to backtrack and imposes various requirements to the term “detect” that effectively revert RJR’s
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`position back to its withdrawn position of construing “detect” as “determine.” As to the term
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`“capacitor,” RJR’s expert intends to rely on the same passagesfrom thefile history to advance the
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`samedisclaimer that the Court rejected, Dkt. 360, which is “wholly inappropriate.” YETT, 2017
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`WL 404519, at *2.°
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`> RJR argues that Dr. Blalock proper!
` Opp. at 22. That is false. Dr. Blalock relies on the exact portions of
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`the prosecution history cited by RJR during claim construction to make the same argument that
`the claims do not allow for any other layer or material between the membraneand the plate.
`Compare Dkt. 904-4 (Blalock Rpt.) §§ 110-13 with Dkt. 223 at 35-37. That is a disclaimer
`argument. No amount of wordplay by RJR’s lawyers change thosefacts.
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`

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`Fourth, for the ’911 patent, RJR’s expert does not even pretend to apply the Court’s
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`construction.
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`. These opinions directly contradict
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`the Court’s holding that “[n]one of the terms were modified by a clear disclaimer in the
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`prosecution.” Dkt. 360 at 1. RJR attempts to justify these facially improper opinions by resorting
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`to its tired refrain that its expert is merely “applying the common meaning of the term.” Opp. at
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`2-4, 9-11, 13, 16, 18. But it is a fundamental tenet of patent law that a term narrowed by a clear
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`and unmistakable disclaimer, by definition, does not carry its plain meaning. See, e.g., Toshiba,
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`681 F.3d at 1369 (“Absent disclaimer or lexicography, the plain meaning of the claim controls.”).
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`That should be dispositive. RJR and its experts should be barred from flouting this Court’s
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`Markman order and controlling law by advancing rejected claim construction arguments at trial.
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`C.
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`RJR’s Experts Reliance on the Prosecution History to Contradict the Court’s
`Claim Construction Order Is Improper
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`RJR devotes nearly five pages to the undisputed point that “[t]here is not a per se rule
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`against the use of prosecution history at trial.” Opp. at 19. Of course there is no such rule; this is
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`more misdirection. RJR’s experts’ opinions are not improper merely because they cite the
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`prosecution history. They are improper because they cite the prosecution history to revive
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`previously raised and failed claim construction arguments based on prosecution history disclaimer,
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`even though the Court already held that “[n]one of the terms were modified by a clear disclaimer
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`in the prosecution.” Dkt. 360 at 1.
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`The cases on which RJR heavily relies support PMI/Altria’s position. Opp. at 20-21. In
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`both cases (which addressed post-verdict requests for new trial), it was undisputed that it would
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`be improper for experts to argue prosecution history disclaimer to the jury; both Courts ultimately
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`8
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`found that at “no point did [a party] argue disclaimer, either in word or in substance.” Level 3
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`Commc’ns, LLC v. Limelight Networks, No. 07-cv-589, 2009 WL 10689350, at *6 (E.D. Va. June
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`23, 2009); GPNE Corp. v. Apple, Inc., 108 F. Supp. 3d 839, 856 (N.D. Cal. 2015) (“The Court
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`does not agree that the record citations to which GPNE points show that Apple argued prosecution
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`history disclaimer to the jury.”).
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`Here, as discussed above and in PMI/Altria’s motion, RJR’s experts cite the same passages
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`from the prosecution history to make the same arguments that it advanced (and lost) to support
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`various disclaimers at claim construction. Compare Dkt. 904-2 (Kodama ’556 Rpt.) ¶ 92
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`
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` with Dkt.
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`223 at 14 (same); compare Dkt. 904-5 (Kodama ’911 5/14 Rpt.) ¶¶ 47-56, 65-79
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`
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` with Dkts. 223 at 26-
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`27, 30; 309 at 29, 34 (same); compare Dkt. 904-4 (Blalock Rpt.) ¶¶ 110-13
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`
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` with Dkt. 223 at 35-37 (same).
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`Regardless of how RJR’s lawyers now characterize its experts’ opinions, RJR’s experts are
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`advancing impermissible disclaimer arguments; they freely admit this. Dkt. 904-5 (Kodama ’911
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`5/14 Rpt.) ¶¶ 65-79
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` And the Court has already expressly
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`
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`held that “[n]one of the terms were modified by a clear disclaimer in the prosecution,” further
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`confirming the improper nature of RJR’s experts’ disclaimer arguments. Dkt. 360 at 1.
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`D.
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`The Court Should Deny RJR’s Request to Re-litigate the Court’s Construction
`for the “Blind Hole” Limitation of the ’911 Patent
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`In a final, “hail Mary” effort to salvage its experts’ improper opinions, RJR asks the Court
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`for supplemental briefing to further construe the phrase “at least one cavity is a blind hole recessed
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`in the wall of the aerosol-forming chamber.” Opp. at 24. The Court should reject this belated and
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`9
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`baseless request for reconsideration of the Claim Construction Order. First, the parties previously
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`briefed this phrase fully and extensively. See Dkts. 223 at 23-31, 224 at 15-19, 309 at 28-34, 310
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`at 24-27. Second, the Court held oral argument on this same dispute and found that there was no
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`disclaimer and, instead, the term should be given its plain meaning. See Dkt. 360 at 1.
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`RJR nevertheless argues that further claim construction is necessary because the term must
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`be construed “as relevant to the Alto product” (one of accused products). This is legal error. It is
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`black letter law that “[c]laims are properly construed without the objective of capturing or
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`excluding the accused device.” Vita-Mix Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1324 (Fed.
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`Cir. 2009); see also ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc., 694 F.3d 1312, 1326
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`(Fed. Cir. 2012). RJR seeks, yet again, to improperly propose limitations solely to advance “non-
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`infringement [] arguments downstream in the litigation,” a tactic this Court already rejected. Dkt.
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`360 at 1. At Markman, the Court had the relevant intrinsic and extrinsic evidence for the ’911
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`Patent when it ruled that the Applicant did not deviate from—let alone clearly and unmistakably
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`disclaim—the plain and ordinary meaning of the “blind hole” limitation. Dkt. 360 at 1. Whether
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`the Alto was accused at Markman hearing is irrelevant as a matter of law. Vita-Mix, 581 F.3d at
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`1324.
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`Finally, RJR’s request for additional claim construction is moot because, in addition to its
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`claim construction order, the Court already rejected RJR’s disclaimer arguments (a second time)
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`when denying RJR’s summary judgment motion. Dkts. 750 at 9-10, 803 at 2. RJR contention that
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`the Court’s order “resolved the motion only as to ‘three products,’” not the Alto, is wrong. Opp.
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`at 24. The Court considered the arguments made by the parties with respect to all products,
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`including the Alto, and denied RJR’s motion in full. See Dkts. 690 at 20-22; 733 at 18-20, 23-24;
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`750 at 8-12, 16-17; Dkt. 803 at 2. RJR’s only support is speculation that “the Court may have
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`Case 1:20-cv-00393-LO-TCB Document 1108 Filed 02/25/22 Page 15 of 17 PageID# 30381
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`been misled” in reaching its conclusions on summary judgment. Opp. at 24. Of course not. RJR
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`cites no evidence to support its conjecture. RJR’s dissatisfaction with the Court’s summary
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`judgment ruling—for which it did not seek reconsideration—is no basis for reconsidering it on the
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`eve of trial. This does not warrant further claim construction of issues fully briefed and argued by
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`the parties, then resolved by the Court.
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`III. CONCLUSION
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`PMI/Altria respectfully request (1) that the Court exclude the portions of the reports and
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`testimony of Dr. Suhling, Mr. Kodama, and Dr. Blalock that are inconsistent with the Court’s
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`constructions and (2) deny RJR’s request for additional briefing in relation to the “blind hole”
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`limitation of the ’911 Patent.
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`Dated: February 25, 2022
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`Respectfully submitted,
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`By: /s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`(max.grant@lw.com)
`Matthew J. Moore (pro hac vice)
`matthew.moore@lw.com
`Latham & Watkins LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`
`Clement J. Naples (pro hac vice)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022-4834
`Tel: (212) 906-1200; Fax: (212) 751-4864
`
`Gregory J. Sobolski (pro hac vice)
`greg.sobolski@lw.com
`Latham & Watkins LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Telephone: (415) 391-0600
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`Case 1:20-cv-00393-LO-TCB Document 1108 Filed 02/25/22 Page 16 of 17 PageID# 30382
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`Facsimile: (415) 395-8095
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`Brenda L. Danek (pro hac vice)
`brenda.danek@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Tel: (312) 876-7700; Fax: (312) 993-9767
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`Counsel for Plaintiffs Altria Client Services LLC,
`Philip Morris USA Inc., and Philip Morris Products
`S.A.
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`Case 1:20-cv-00393-LO-TCB Document 1108 Filed 02/25/22 Page 17 of 17 PageID# 30383
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 25th day of February, 2022, a true and correct copy of the
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`foregoing was served using the Court’s CM/ECF system, with electronic notification of such
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`filing to all counsel of record:
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`/s/ Maximilian A. Grant
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`Maximilian A. Grant (VSB No. 91792)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`Email: max.grant@lw.com
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`Counsel for Plaintiffs Altria Client Services
`LLC, Philip Morris USA Inc., and Philip
`Morris Products S.A.
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`13
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