Case 1:20-cv-00393-LO-TCB Document 1275 Filed 06/07/22 Page 1 of 6 PageID# 32854
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY
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`Plaintiffs and
`Counterclaim Defendants,
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`v.
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
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`Defendants and
`Counterclaim Plaintiffs.
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`Case No. 1:20-cv-00393-LO-TCB
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`MEMORANDUM IN SUPPORT OF PHILIP MORRIS’ MOTION TO INCLUDE A
`SUMMARY OF CLAIM CONSTRUCTIONS IN THE JUROR NOTEBOOKS
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`Case 1:20-cv-00393-LO-TCB Document 1275 Filed 06/07/22 Page 2 of 6 PageID# 32855
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`Philip Morris respectfully requests that the juror notebooks include a one-page chart
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`summarizing the Court’s claim construction rulings for relevant terms from the Asserted Patents
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`in this case.
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`Following the Court’s instruction at the June 3, 2022 hearing, Plaintiff Philip Morris
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`conferred with Defendant Reynolds about the content of the juror notebooks. 6/3/2022 Hearing
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`Tr. at 15:5-18. The parties agree that they should include the Asserted Patents. As is typical in
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`patent cases in which the court has issued a claim construction ruling, Philip Morris also requested
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`including a single page chart indicating the Court’s ruling that seven disputed claim terms from
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`the Asserted Patents should be given their plain and ordinary meaning. Ex. A (P. Weinand
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`6/5/2022 Email). The jurors should be able to use that chart (attached as Exhibit B) as a reference
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`as they evaluate the infringement and validity issues at trial.1 Reynolds refused to include it.
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`There is no basis for Reynolds’ refusal. On the meet and confer, Reynolds argued that the
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`chart is unnecessary because it would allegedly confuse the jury. The opposite is true. These
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`terms were part of a fulsome claim construction process before Judge O’Grady, including 150
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`pages of briefing and a hearing. In each instance, the key dispute was whether the terms should
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`be given their plain and ordinary meaning, as Philip Morris argued, or whether the terms should
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`have more restrictive constructions based on importing purported limitations and disclaimers from
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`the specification and file histories, as Defendants argued.
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`Judge O’Grady “reviewed the parties’ submissions, including the patents, prosecution
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`histories, and other pertinent materials and considered the oral arguments of the parties.” Dkt. 360
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`at 1. The Court ruled that none of the terms “should be modified” because “[t]hey are all well
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`1 For the term from the ’374 patent, it was originally construed in the context of claim 1. Claim
`16 was subsequently added to the case and contains the identical claim language.
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`1
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`Case 1:20-cv-00393-LO-TCB Document 1275 Filed 06/07/22 Page 3 of 6 PageID# 32856
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`known common English words given their common meaning.” Dkt. 360 at 1. The Court also
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`found that “[n]one of the terms were modified by a clear disclaimer in the prosecution, although
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`there were debates with the examiner.” Id. As this Court instructed the parties at the June 2, 2022
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`hearing, Judge O’Grady’s prior ruling is the law of the case. 6/2/2022 Hearing Tr. at 10:20-23.
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`Defendants’ refusal to include this uncontroversial summary chart suggests that they intend
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`to have their experts improperly testify on claim construction, including in connection with
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`infringement and validity, in a manner that contradicts the Court’s Order. That is contrary to law.
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`Indeed, the Federal Circuit has explained that “[t]he risk of confusing the jury is high when experts
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`opine on claim construction before the jury.” CytoLogix Corp. v. Ventana Med. Sys., Inc., 424
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`F.3d 1168, 1172 (Fed. Cir. 2005); see also TEK Glob., S.R.L. v. Sealant Sys. Int’l, Inc., 920 F.3d
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`777, 787 (Fed. Cir. 2019) (“Because the district court expressly rejected SSI’s interpretation when
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`it determined that the term should have its plain and ordinary meaning . . . and SSI does not appeal
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`the district court’s claim construction order rejecting its interpretation of the plain and ordinary
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`meaning, our inquiry is limited to whether substantial evidence supports the jury’s infringement
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`verdict under the issued claim construction.”).
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`To ensure that the jury has a reference about how the Court construed these claims terms,
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`Plaintiffs respectfully request that the Court include Exhibit B in the juror notebooks.
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`Dated: June 7, 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
`Lawrence J. Gotts (VSB No. 25337)
`lawrence.gotts@lw.com
`Matthew J. Moore (pro hac vice)
`matthew.moore@lw.com
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`2
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`Case 1:20-cv-00393-LO-TCB Document 1275 Filed 06/07/22 Page 4 of 6 PageID# 32857
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`Jamie Underwood (pro hac vice)
`jamie.underwood@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
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`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
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`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
`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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`By: /s/ Elizabeth Stotland Weiswasser
`W. Sutton Ansley (VSB No. 80085)
`sutton.ansley@weil.com
`Robert T. Vlasis III (pro hac vice)
`robert.vlasis@weil.com
`Stephanie Adamakos (pro hac vice)
`stephanie.adamakos@weil.com
`WEIL, GOTSHAL & MANGES LLP
`2001 M Street, NW, Suite 600
`Washington, DC 20036
`Tel: (202) 682-7000; Fax: 202-857-0940
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`3
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`Case 1:20-cv-00393-LO-TCB Document 1275 Filed 06/07/22 Page 5 of 6 PageID# 32858
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`Elizabeth Stotland Weiswasser (pro hac vice)
`elizabeth.weiswasser@weil.com
`Anish R. Desai (pro hac vice)
`anish.desai@weil.com
`WEIL, GOTSHAL & MANGES LLP
`767 5th Avenue
`New York, NY 10153
`Tel: (212) 310-8000; Fax: 212-310-8007
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`Adrian C. Percer (pro hac vice)
`adrian.percer@weil.com
`WEIL, GOTSHAL & MANGES LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`Tel: (650) 802-3000; Fax: 850-802-3100
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`Counsel for Plaintiffs Altria Client Services
`LLC and Philip Morris USA Inc.
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`4
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`Case 1:20-cv-00393-LO-TCB Document 1275 Filed 06/07/22 Page 6 of 6 PageID# 32859
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 7th day of June, 2022, a true and correct copy of the foregoing
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`was served using the Court’s CM/ECF system, with electronic notification of such filing to all
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`counsel of record.
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`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
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`5
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