Case 1:20-cv-00393-LO-TCB Document 1344-1 Filed 06/13/22 Page 1 of 5 PageID# 33739
`Case 1:20-cv-00393-LO-TCB Document 1344-1 Filed 06/13/22 Page 1 of 5 PagelD# 33739
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`EXHIBIT 1
`EXHIBIT 1
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`Case 1:20-cv-00393-LO-TCB Document 1344-1 Filed 06/13/22 Page 1 of 5 PagelD# 33739
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`EXHIBIT 1
`EXHIBIT 1
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`Case 1:20-cv-00393-LO-TCB Document 1344-1 Filed 06/13/22 Page 2 of 5 PageID# 33740
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`Civil Action
`No. 1:20-cv-00393-LO-TCB
`June 10, 2022
`9:13 a.m.
`
`)))))))))))))
`
`ALTRIA CLIENT SERVICES, LLC,
`et al.,
`Plaintiffs,
`v.
`RAI STRATEGIC HOLDINGS, INC.,
`et al.,
`Defendants.
`
` DAY 2 - MORNING SESSION
`TRANSCRIPT OF JURY TRIAL PROCEEDINGS
`BEFORE THE HONORABLE LEONIE M. BRINKEMA,
`UNITED STATES DISTRICT COURT JUDGE
`
`APPEARANCES:
`For the Plaintiffs:
`
`Maximilian Antony Grant, Esq.
`Latham & Watkins LLP (DC)
`555 11th Street, NW
`Suite 1000
`Washington, DC 20004-1304
`202-637-2200
`Email: Max.grant@lw.com
`Clement Joseph Naples, Esq.
`Latham & Watkins, LLP
`885 Third Avenue 25th Floor
`New York, NY 10022
`212-906-1200
`Email: Dement.naples@lw.com
`Gregory K. Sobolski, Esq.
`Latham & Watkins, LLP
`505 Montgomery Street
`Suite 2000
`San Francisco, CA 94111-6538
`202-637-2267
`Email: Max.grant@lw.com
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`
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`Case 1:20-cv-00393-LO-TCB Document 1344-1 Filed 06/13/22 Page 3 of 5 PageID# 33741
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`it's just a more clear description what have we mean by "blind"
`versus "through."
`Q.
`During your work designing e-cigarettes have you
`encountered blind holes?
`A.
`Oh, yes. Yeah, we use all kinds of geometric features to
`design all of our products, so blind holes, protrusions, ribs,
`all of those things are commonly used in the industry.
`Q.
`And you mentioned the prosecution history, and the jury's
`heard a lot about that. Would you remind them what a
`prosecution history is?
`A.
`Right, so the patent file prosecution history, again, is
`the back-and-forth between the applicant, in this case Philip
`Morris, and the Patent Office, right, so they're discussing
`language and terminology and things that need to be defined more
`precisely in order to get the patent approved.
`Q.
`Did Philip Morris discuss the blind hole requirement
`during the '911 Patent prosecution history?
`A.
`Yes, and actually by looking at some prior art, they
`defined what a blind hole means.
`Q.
`Tell the jury about the history of the blind hole
`requirement in the '911 claims.
`A.
`So originally in the patent application, the words "blind
`hole" were not in there, but if you can see on the screen, what
`I've added is some discussion of a prior art called Rose. I
`think you saw an image of the Rose patent before.
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
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`
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`Case 1:20-cv-00393-LO-TCB Document 1344-1 Filed 06/13/22 Page 4 of 5 PageID# 33742
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`So what happened is the patent examiner objected saying
`that Rose disclosed cavity, and in Philip Morris's argument to
`the Patent Office they defined what defines "non-blind." In
`this case they're saying that the spaces are open or on the
`sides, which means these features are non-blind. So basically
`they're defining what "blind" means, which means a space that
`has -- that is not open around the side.
`Furthermore, they followed saying basically what the
`patent examiner wrote is the opposite of what is claimed, so, in
`other words, they defined in their own words during the patent
`application process what "blind" what "blind hole" represents.
`Q.
`Did the patent examiner point to something in the Rose
`patent that he contended was a cavity?
`A.
`He did, yes. If you remember the picture from Rose it's
`got sort of these fingers that are inside the cavity, and,
`again, they argued that because it had open sides, it was
`non-blind.
`Q.
`Did Philip Morris make those arguments about spaces with
`open sides being non-blind more than once to the Patent Office?
`A.
`They did, yes, multiple times.
`Q.
`How are Philip Morris's arguments to the Patent Office
`about blind holes relevant to your opinion here?
`A.
`Well, again, Claim 1 of the claim language has the term
`"blind hole," so it limits itself to the geometric features of
`the patent to a blind hole.
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
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`Case 1:20-cv-00393-LO-TCB Document 1344-1 Filed 06/13/22 Page 5 of 5 PageID# 33743
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`does not infringe Claim 1 of the '911 Patent.
`THE COURT REPORTER: (Reporter requests clarification.)
`BY MR. MAIORANA:
`Q.
`Please summarize for the jury your opinion regarding why
`the Vuse Alto does not infringe Claim 1 of the '911 Patent.
`A.
`So the Vuse Alto does not infringe Claim 1 of the '911
`Patent because it doesn't meet two key requirements. One is it
`does not have a blind hole. As I've shown you that rib, which
`is designed purely to hold the gasket in place, has open sides
`so it cannot form a cavity or a blind hole.
`In addition, even if one were to assume it were a cavity
`or a blind hole and took proper cross-sectional dimensions, the
`largest dimension would not fall within the range of 0.5 or
`1 millimeter. It's actually almost three times larger than what
`would be in the claim limitation.
`Q.
`Did you consider whether the Vuse Alto infringes
`dependent claims 2, 11, and 12?
`A.
`I did, yes.
`Q.
`What opinions did you reach as to those claims?
`A.
`So it had a little bit of a discussion about sort of
`independent claims rather than dependent claims. In this
`patent, Claim 1 is the independent claim, right, and then these
`other asserted patents [sic], 2, 11 and 12 are dependent claims,
`meaning they rely upon every requirement of Claim 1 and then
`they add in some other additional feature or technology, right,
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
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