Case 1:20-cv-00393-LO-TCB Document 1316-3 Filed 06/11/22 Page 1 of 7 PageID# 33408
`Case 1:20-cv-00393-LO-TCB Document 1316-3 Filed 06/11/22 Page 1 of 7 PagelD# 33408
`
`
`
`
`EXHIBIT 3
`EXHIBIT 3
`
`
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1316-3 Filed 06/11/22 Page 2 of 7 PageID# 33409
`CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER
`
`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. 1:20cv00393-LO-TCB
`
`RAI STRATEGIC HOLDINGS, INC. AND R.J. REYNOLDS VAPOR COMPANY’S
`TWENTY-THIRD SUPPLEMENTAL RESPONSES TO ALTRIA CLIENT
`SERVICES LLC, PHILIP MORRIS USA, INC., AND PHILIP MORRIS
`PRODUCTS S.A.’S FIRST SET OF INTERROGATORIES (NO. 3)
`
`Pursuant to Federal Rules of Civil Procedure 26 and 33, RAI Strategic Holdings, Inc. and
`
`R.J. Reynolds Vapor Company (collectively, “Reynolds”) hereby supplement their response to Altria
`
`Client Services LLC, Philip Morris USA, Inc., and Philip Morris Products S.A.’s (collectively,
`
`“Defendants” or “Counterclaim Plaintiffs”) First Set of Interrogatories (No. 3) as follows.
`
`PRELIMINARY STATEMENT AND
`OBJECTIONS TO DEFINITIONS AND INSTRUCTIONS
`
`Reynolds incorporates and reiterates its preliminary statement and objections to the
`
`Definitions and Instructions.
`
`INTERROGATORY NO. 3:
`
`Separately for each of the Counterclaim Asserted Patents, describe in detail Your
`awareness or knowledge of the patent and any applications relating to the patent, including the
`date You first became aware, how You became aware, the substance of what You knew, and any
`actions You took as a result of that knowledge, each Document that supports Your response or to
`which You referred in preparing Your response, and identify the three (3) Persons most
`knowledgeable about Your awareness or knowledge.
`
`1
`
`PTX-613
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1316-3 Filed 06/11/22 Page 3 of 7 PageID# 33410
`
`CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER
`
`OBJECTIONS:
`
`Reynolds objects to this interrogatory to the extent that it seeks information subject to the
`attorney-client privilege, attorney work product immunity, the common interest privilege, or any
`other applicable privilege or immunity against disclosure. In particular, this interrogatory seeks
`information that may implicate discussions with counsel for the purposes of rendering legal advice,
`which are not the proper subject of discovery. Reynolds objects to this interrogatory as overly
`broad, unduly burdensome, and seeking information that is not relevant to any claim or defense in
`this case to the extent it seeks information relating to “any” applications relating to the patent(s).
`The burden and expense of complying with the requested discovery far outweighs any likely
`benefit of obtaining that discovery, and therefore is not proportional to the needs of this case.
`Reynolds objects to this interrogatory as composed of multiple discrete subparts under Fed. R.
`Civ. P. 33, which causes this interrogatory to count as more than one interrogatory.
`
`RESPONSE:
`
`Subject to and without waiving its objections, Reynolds responds as follows:
`
`Based on its investigation to date, Reynolds states that it first became aware of the ’374
`Patent and ’556 Patent upon receiving notice of the filing of the counterclaims in this action, which
`were first filed on June 29, 2020.
`
`Based on its investigation to date, Reynolds states that its first awareness of the ’265 Patent
`or corresponding U.S. Patent Publication No. 2014/0305454 may have occurred when cited during
`prosecution of U.S. Patent No. 10,206,429; Reynolds states that persons knowledgeable about the
`prosecution citation(s) of the ’265 Patent or corresponding U.S. Patent Publication No.
`2014/0305454 may include the prosecuting attorney(s) of record for this patent.
`
`Based on its investigation to date, Reynolds states that its first awareness of the ’911 patent
`or corresponding U.S. Patent Publication No. 2013/0306064 may have occurred when cited during
`prosecution of one of the following applications or issued patents: U.S. Patent No. 9,095,175; U.S.
`Patent No. 9,259,035; U.S. Patent No. 9,352,288; U.S. Patent No. 9,427,711; U.S. Patent No.
`9,555,203; U.S. Patent No. 9,743,691; U.S. Patent No. 9,861,772; U.S. Patent No. 9,861,773; U.S.
`Patent No. 9,999,250; U.S. Patent No. 10,092,713; U.S. Patent No. 10,136,672; U.S. Patent No.
`10,159,278; U.S. Patent No. 10,274,539; U.S. Patent No. 10,362,809; U.S. Patent No. 10,426,200;
`U.S. Patent No. 10,492,542; U.S. Patent No. 10,531,691; U.S. Patent No. 10,753,974; Reynolds
`states that persons knowledgeable about the prosecution citation(s) of the ’911 Patent or
`corresponding U.S. Patent Publication No. 2013/0306064 may include the prosecuting attorney(s)
`of record for these applications or issued patents.
`
`
`Based on its investigation to date, Reynolds states that its first awareness of the ’545 Patent
`was at least as of August 13, 2012; Reynolds states that persons knowledgeable about its awareness
`of the ’545 Patent as of August 13, 2012, include August Borschke and Ryan Cagle, and was in
`connection with Reynolds’s efforts to protect the development of electronically-powered
`alternative smoking articles. Reynolds further states that its factual investigation is ongoing and
`it reserves the right to supplement its response to this interrogatory in light of further investigation
`or discovery, in accordance with the procedures and timetables established by the Court.
`
`
`2
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1316-3 Filed 06/11/22 Page 4 of 7 PageID# 33411
`
`CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER
`
`
`
`FIRST SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 3 (JULY 9, 2021):
`
`Subject to and without waiving its objections, Reynolds supplements its response as
`
`follows:
`
`Reynolds states that its first awareness of the ’265 patent was on November 21, 2017,
`
`when it received a report as described in the testimony of Dr. James Figlar identifying the
`
`publication of the ’265 patent. See RJREDVA_001621875. Reynolds further states that its first
`
`awareness of U.S. Patent Publication No. 2014/0305454, which led to the ’265 patent, was on
`
`October 30, 2014, when it received a report as described in the testimony of Dr. James Figlar
`
`identifying
`
`the publication of U.S. Patent Publication No. 2014/0305454.
`
` See
`
`RJREDVA_001678493.
`
`Reynolds states that its first awareness of the ’911 patent was on December 4, 2018, when
`
`it received a report as described in the testimony of Dr. James Figlar identifying the publication
`
`of the ’911 patent. See RJREDVA_001679169. Reynolds states that its first awareness of U.S.
`
`Patent Publication No. 2013/0306064, which led to the ’911 patent, was on December 3, 2013,
`
`when it received a report as described in the testimony of Dr. James Figlar identifying the
`
`publication of U.S. Patent Publication No. 2013/0306064. See RJREDVA_001619152.
`
`Reynolds states that it first became aware of the ’374 patent upon receiving notice of the
`
`filing of the counterclaims in this action, which were first filed on June 29, 2020. Reynolds states
`
`that its first awareness of U.S. Patent Publication No. 2015/0305410, which led to the ’374
`
`patent, was on November 10, 2015, when it received a report as described in the testimony of Dr.
`
`James Figlar identifying the publication of U.S. Patent Publication No. 2015/0305410. See
`
`RJREDVA_001678354.
`
`Reynolds states that its first awareness of the ’556 patent was on February 28, 2020, when
`
`it received a report as described in the testimony of Dr. James Figlar identifying the publication
`
`of the ’556 patent. See RJREDVA_001678552. Reynolds states that its first awareness of U.S.
`3
`
`
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1316-3 Filed 06/11/22 Page 5 of 7 PageID# 33412
`
`CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER
`
`Patent Publication No. 2016/0353802, which led to the ’556 patent, was on December 20, 2016,
`
`when it received a report as described in the testimony of Dr. James Figlar identifying the
`
`publication of U.S. Patent Publication No. 2016/0353802. See RJREDVA_001681223.
`
`Reynolds states that its first awareness of the ’545 Patent was at least as of August 13, 2012;
`
`Reynolds states that persons knowledgeable about its awareness of the ’545 Patent as of August
`
`13, 2012, include August Borschke and Ryan Cagle, and was in connection with Reynolds’s
`
`efforts to protect the development of electronically-powered alternative smoking articles.
`
`
`
`4
`
`
`
`
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1316-3 Filed 06/11/22 Page 6 of 7 PageID# 33413
`
`CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER
`
`Dated: July 9, 2021
`
`Respectfully submitted,
`
`Stephanie E. Parker
`JONES DAY
`1221 Peachtree Street, N.E.
`Suite 400
`Atlanta, GA 30361
`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
`
`
`
`/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
`
`Charles B. Molster, III (VA Bar No. 23613)
`The Law Offices of Charles B. Molster III PLLC
`2141 Wisconsin Ave., N.W., Suite M
`Washington, DC 20007
`Telephone: (703) 346-1505
`Email: cmolster@molsterlaw.com
`
`Counsel for Plaintiffs RAI Strategic Holdings, Inc.
`and R.J. Reynolds Vapor Company
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`5
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1316-3 Filed 06/11/22 Page 7 of 7 PageID# 33414
`
`CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER
`
`CERTIFICATE OF SERVICE
`
`
`
`I hereby certify that on July 9, 2021, the foregoing was served on counsel for Defendants using the
`
`following designated email address: pmiedva.lwteam@lw.com.
`
`
`
`Dated: July 9, 2021
`
`
`
`
`
`
`
`
`
`/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
`
`
`
`
`6
`
`