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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
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`Civil Action
`No. 1:20-cv-00393-LMB/TCB
`June 8, 2022
`1:55 p.m.
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`)))))))))))))
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`PHILIP MORRIS PRODCUTS S.A.,
`
`Counterclaim Plaintiff,
`v.
`R.J. REYNOLDS VAPOR COMPANY,
`
`Counterclaim Defendant.
`
`VOLUME 1 - AFTERNOON 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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`Q.
`Is there any other additional information in the '911
`Patent record that confirms that Figures 4 and 6 each have blind
`holes?
`A.
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`Yes, there is.
`MR. SOBOLSKI: Let's turn to the next demonstrative,
`please, Number 16.
`BY MR. SOBOLSKI:
`Q.
`And what have you shown here, Dr. Abraham?
`A.
`Well, what I'm showing on the bottom -- the two images
`are Figures 4 and Figure 6 of the patent, and on the bottom is
`part of an interview summary with the patent examiner. It's PX
`8A at 16296, and this is an interview summary, so this is what
`the patent examiner said after having an interview with the
`applicants.
`And I've got to tell you -- I have 16 patents; I've gone
`through these interviews before -- they're very thorough -- and
`the patent examiner wrote a summary, and here's what the patent
`examiner said:
`"The two blind holes of Figures 3 and 4 and/or the blind
`hole being toroid of Figures 5 and 6," so the patent examiner
`agrees that both of these figures show a blind hole, and I want
`to take a moment to explain what a toroid is. I mean, that's
`not a word we commonly hear. That just means doughnut. It's a
`doughnut-shaped hole, but the technical term for it is a toroid.
`So one of the reasons I know that these two figures have blind
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`holes is because the personality examiner said so, and I agree
`with the patent examiner.
`Q.
`Thank you, Dr. Abraham. The '911 leakage preventer
`patent teaches still further ways to design these cavities that
`are blind holes?
`A.
`Yes, it does.
`Q.
`Let's look at that. Let's go to Demonstrative 17,
`please, and please explain to the jury these additional ways.
`A.
`On your screen you see Figures 4 and 6 of the patent, and
`these are figures we're familiar with. Underneath the figures
`you see text that explains the figures, and the text is from
`PX 3 at column 11, lines 28 through 33, and column 12, line 40
`through 50.
`And what the -- the other engineering aspect that the
`'911 Patent has is their size. The patent tells us how big they
`should be, and it even tells us how to make the measurement. As
`you'll notice in those images, the patent is showing us how to
`make the measurements, and it's telling us to make the
`measurements from one wall to another across the cavity.
`Q.
`Why do those dimensions and the way they're measured
`matter?
`A.
`Well, because the distance between the walls -- that's
`the cross-section of dimension -- that's the dimension that
`tells you or that holds the liquid. There's something called
`capillary action, and capillary action is generated at walls, so
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`Q.
`Please go ahead, explain what you've shown here.
`A.
`On this -- on the screen, which is page 37 of my
`demonstrative, you see PX 262A -- that's that CAD file you've
`seen a gazillion times -- and we also see PX 36 at 19758, and
`I'm showing the measurement.
`And I measured the cross-sectional dimension of the
`cavity, and I found that it was between .5 and 1 millimeters,
`and, therefore, it's in the claimed range of the patent, and I
`also made my measurement perpendicular to the longitudinal
`direction, so the yellow and the white arrows are perpendicular.
`Q.
`Now, this part of Claim 1 that you're talking about here
`on Slide 37, Dr. Abraham, this largest cross-sectional
`dimension, is that a sort of size? Can you explain to the jury
`what that refers to?
`A.
`Yeah, that is the wall-to-wall size of the cavity, so
`we've been talking about these cavities that trap and hold
`liquid, and the relevant and critical dimension is the size from
`one wall to another, and that's how I made the measurement.
`Q.
`And is there a dispute in this case by Reynolds about
`what the largest cross-sectional dimension is, what the size of
`that cavity is in the Solo G2?
`A.
`Yes, there is a dispute.
`Q.
`Let's turn to the next demonstrative, sir, and explain
`for the jury what that dispute is about the size of the cavity
`in the Solo G2?
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`A.
`Yeah, sure. So on this slide you see PX 262A, which is
`the CAD file, and you see Figure 6 from the patent. Now, the
`Solo G2 is a lot like one of the figures from the patent. The
`Solo G2 is a lot like Figure 6, and the patent tells us how to
`make the measurement, and I have used two horizontal yellow
`lines to show you the measurement, as instructed by the patent.
`Now, Reynolds's expert, Mr. Kodama, made a different
`measurement where he measured all the way across the inner
`diameter, but his measurement is not in the cavity, and that's
`why I disagree with his measurement.
`Q.
`That's a measurement on Slide 38 that you've shown there.
`Did Reynolds's expert measure it in any other way in addition?
`A.
`Yes. Reynolds's expert, Mr. Kodama, made a second
`measurement, and I can explain that measurement as well in this
`slide.
`Q.
`Sure, this is Slide 39. Please go ahead, Dr. Abraham.
`A.
`And these are Exhibits PX 262A, and Figure 6 from the
`patent, and remember, the Solo G2 is the one that has that
`toroidal shape that's very similar to Figure 6.
`Now, in his second dimension, Mr. Kodama measured the
`wall-to-wall distance two times -- his measurements are in red,
`by the way. He measured it twice and then added them together,
`and I disagree with that, and that's not how the patent teaches
`us to make the measurement.
`Q.
`And just to make it clear, Dr. Abraham, on Slide 39 on
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`the right hand you have an annotated form of Figure 6 from the
`patent, right?
`A.
`That's correct.
`Q.
`And can you explain again what it is you highlighted in
`yellow on that figure?
`A.
`I'm highlighting in yellow how the patent tells us to
`make the measurement.
`Q.
`How does that compare to the measurement you're showing
`in red that Reynolds's expert made?
`A.
`Well, he made the measurement twice and then added them,
`and that's contrary to what the patent instructs us.
`Q.
`Thank you, sir. Let's move on to Demonstrative Number
`40.
`So in summary, what did you find on that last sixth part of
`Claim 1 of the '911 leakage preventer patent for the Solo G2?
`A.
`I found that the Solo G2 has the last part of Claim 1.
`Q.
`So that takes us to Claim 11, that dependent claim that
`you were talking about, sir. Explain to the jury your
`conclusion about that Claim 11.
`A.
`Through my investigation I found that the Solo G2 has an
`aerosol-generating system according to Claim 1 wherein the
`aerosol-generating system is electrically operated and, further,
`comprises an electric heater for heating the liquid
`aerosol-forming substrate.
`Q.
`How do you know that?
`A.
`Well, I know it from Reynolds's own documentation where
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`they describe the heater in their submission to the FDA.
`Q.
`Okay. Let's see if we can look at that.
`MR. SOBOLSKI: Go to Slide 41, please.
`BY MR. SOBOLSKI:
`Q.
`Is this the Reynolds document that you're referencing?
`A.
`Yes, this is the so-called PMTA that we've heard about
`already. This is Reynolds's own documentation about their
`product, and they identify the heater -- I've highlighted the
`word "heater" in yellow -- and they say that the heater
`aerosolizes the e-liquid, and that's why I know they meet Claim
`11 as well.
`Q.
`Thank you, sir. Then let's see if we can go to Slide
`43 -- I'm sorry, Slide 42. In summary, what did you find in
`Claim 11 of the '911 Patent for the Solo G2.
`A.
`I found that the Solo G2 practices Claim 11 of the
`patent.
`Q.
`Okay. Dr. Abraham, that takes us to the last claim here
`for the Solo G2, 13. Tell the jury what you found on Claim 13.
`A.
`Well, I found that the Solo G2 has an aerosol-generating
`system according to Claim 1 wherein the leakage prevention means
`comprising the at least one cavity in the wall of the
`aerosol-forming chamber has a toroidal shape, and remember that
`just means a doughnut.
`Q.
`Is there a dispute in this case, sir, about whether the
`Solo G2 device that you've been testifying about, whether it has
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`that toroidal blind cavity?
`A.
`Yes, there is a dispute. There's a dispute about the
`shape of the blind hole cavity.
`Q.
`And does the language of the claims of the '911 Patent
`inform that dispute?
`A.
`It absolutely does.
`Q.
`How so?
`A.
`Well, I can highlight the relevant parts of the text, and
`I want you to notice that in Claim 13 you see reference to a
`toroidal shape. But Claim 13 references back to Claim 1, and
`Claim 1 says at least 1 cavity is a blind hole.
`So Reynolds's expert does not agree with me that a
`toroid -- a toroidal shape can be a blind hole, but the language
`of the patent contradicts that opinion, and I agree with the
`language of the patent, or I follow the language of the patent.
`Q.
`Let's turn to Slide 44 and see if you can talk a little
`bit more about this toroidal or doughnut-shaped blind hole. How
`do you know that the Solo G2 meets all of the elements of
`Claim 13 of the leakage preventer '911 Patent?
`A.
`On the left-hand side you see Figure 6 of the patent. On
`the right-hand side is a photograph that I took. I cut the
`device open and I looked to see what is the shape of its cavity,
`and for both Figure 6 and the Solo, I found a toroid, which I'm
`going to highlight now, and that's how I know it meets this part
`of the claim as well.
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`Q.
`You can only sue someone for infringing a patent claim,
`correct?
`A.
`That's my understanding.
`Q.
`Would you agree that the patent claims are the most
`important part of the patent?
`A.
`Yes, I would.
`Q.
`Now, the claims in a particular patent may not cover all
`of the embodiments that are disclosed in the specification,
`correct?
`A.
`That is correct.
`Q.
`And if an embodiment is not covered by a claim, that
`embodiment is not protected by the patent rights, correct?
`A.
`Correct.
`Q.
`Let's talk about the Vuse Alto product. We heard a lot
`about that today, and I wanted to make sure the jury
`understands. Your opinions about the infringement of the '911
`Patent, you're pointing to the mouthpiece of the Alto, correct?
`A.
`I was referring to the cartridge part that comes out of
`the device.
`Q.
`Right, but when you're pointing to what you contend is a
`blind hole, you're pointing to the mouthpiece, correct?
`A.
`Yes.
`Q.
`And the mouthpiece is this black cap that's on the top of
`the cartridge, correct?
`A.
`It -- yes, that's correct.
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`between the accused products and the patent figures?
`A.
`Well, on this slide I'm showing the measurement method.
`Q.
`Now, the blind hole 305 is a circle, right?
`A.
`That's correct.
`Q.
`A circle has the same cross-sectional dimension no matter
`what direction you measure in, correct?
`A.
`Correct.
`Q.
`And what you contend is a cavity in the Vuse's Alto
`mouthpiece does not have the same cross-sectional dimension in
`all directions, correct?
`A.
`That is correct.
`Q.
`Now, you talked about the patent examiner. You had some
`language on a slide saying the patent examiner said a blind hole
`could be toroidal, right?
`A.
`Yes.
`Q.
`That's not what the patent specification says, right?
`A.
`I know the patent specification talks about multiple
`shapes. I don't believe it mentioned toroidal explicitly in the
`specification.
`Q.
`In fact, the Figure 6 refers to the annular groove as
`Item Number 505. Do you remember that?
`A.
`Yes.
`Q.
`And the patent specification refers to 505 as a blind
`cavity, right?
`A.
`It does.
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`What I said was the smaller the space, the larger the
`
`Q.
`It doesn't refer to 505 as a blind hole, right?
`A.
`That's correct.
`Q.
`Now, I believe Your Honor asked you a question about
`capillary forces, and I think you said, if my notes are right,
`for capillary forces you need a small space. Do you remember
`that?
`A.
`force.
`Q.
`And so the forces that are at issue in the '911 Patent
`blind hole are capillary forces, right?
`A.
`Correct.
`Q.
`So one of the reasons that Philip Morris stressed to the
`Patent Office that the size range was so critical was in order
`to maximize the capillary force acting in that space, right?
`A.
`I don't -- that's not entirely correct. Could you --
`Q.
`You showed some pictures of the Vuse products that you
`took, right?
`A.
`Yes.
`Q.
`And you said that you actually vaped on them and then you
`took them apart and took some pictures of the inside, right?
`A.
`That's correct.
`Q.
`So you used the device, you used some kind of tool to cut
`them in half; is that right?
`A.
`That's correct.
`Q.
`You but didn't take any pictures of the Vuse products
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`contained within the cartridge.
`Q.
`So, Mr. Walbrink, in your opinion, do the Vuse Alto
`accused products infringe the first requirement of Claim 1?
`A.
`Yes, I find the first limitation met.
`Q.
`What does the second requirement of Claim 1 recite?
`A.
`It requires a mouthpiece having at least one fluid inlet
`and at least one fluid outlet.
`MR. YEH: Now let's put up Slide Number 13.
`BY MR. YEH:
`Q.
`This has PX 079 shown on it. First, Mr. Walbrink, what
`is PX 079 showing?
`A.
`This is a photograph of the teardown I did when I took
`the Vuse cartridge apart, and it's -- basically, the components
`are separated out, and no e-liquid in it at this point, and it
`shows the black tip here of the mouthpiece. It's where you
`actually inhale the vapor, and that is the fluid outlet, and
`there's a fluid inlet on the left-hand side of this photograph.
`Q.
`And so going to Slide 14, in your opinion, Mr. Walbrink,
`did the Vuse Alto accused products meet the limitation or
`requirement beginning "a mouthpiece"?
`A.
`Yes, I find that limitation is met as well.
`Q.
`What does the next requirement of the '265 Patent recite?
`A.
`It requires a heating device configured to be connected
`to the mouthpiece.
`Q.
`So let's take a look at the next slide. This shows
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`PX 080. What is PX 080 showing, Mr. Walbrink?
`A.
`This is a more complete, exploded view of taking apart
`the actual cartridge when I disassembled it. This is my
`photograph, and on the right-hand side it shows, in purple, it's
`pointing to the mouthpiece, and on the left-hand side it's
`pointing to the heater, which is right down here in the bottom
`of this cartridge.
`Q.
`And, Mr. Walbrink, in your opinion, is the heater that's
`shown in PX 080 and that you just pointed out in the Vuse Alto
`device, is that configured to be connected to the mouthpiece?
`A.
`Yes, it's definitely connected. As a matter of fact, I
`think I have an illustration that shows how they come together.
`Q.
`And can you explain what we just saw there?
`A.
`What you saw is the exploded view being reassembled into
`the cartridge configuration like this.
`Q.
`And so in your opinion is the mouthpiece and the black
`tip of the mouthpiece configured to be connected to the heater?
`A.
`Yes. I find that it is.
`Q.
`By the way, will the -- would the device work if the
`mouthpiece wasn't connected to the heater?
`A.
`No.
`Q.
`Let's take a look at Slide 16. In your opinion do the
`Vuse Alto accused products infringe the requirement beginning "a
`heating device configured to be connected"?
`A.
`Yes, I find this limitation is met as well.
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`Civil Action
`No. 1:20-cv-00393-LMB/TCB
`June 9, 2022
`9:20 a.m.
`
`)))))))))))))
`
`PHILIP MORRIS PRODCUTS S.A.,
`
`Counterclaim Plaintiff,
`v.
`R.J. REYNOLDS VAPOR COMPANY,
`
`Counterclaim Defendant.
`
`VOLUME 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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`
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`we had just finished talking about the heating device configured
`to be connected limitation, right?
`A.
`Yes.
`Q.
`And what were your opinions with respect to that opinion?
`A.
`I found that this plain limitation was also met.
`Q.
`Now, turning to the next limitation, this one's a bit
`longer, so we'll break it up.
`What is the first requirement of this limitation?
`A.
`Well, first of all, it requires a thermal resistor, which
`is basically a heater. And so I looked at the Reynolds
`document, the PMTA, which we talked about yesterday, and it
`describes the heater as having a resistive heating element,
`which is a thermal resistor. If you recall, when you pass
`electricity across it, a current runs through it and it heats
`up.
`Q.
`And turning to the next part of this limitation, what are
`the requirements with respect to the materials that the thermal
`resistor is made of?
`A.
`Yes. It requires the resistor to be of a metallic foil
`or a thin sheet.
`Q.
`And if we look at the bottom half of this slide, the
`excerpt from PX O28, the PMTA, what does that tell us about the
`materials that the resistive heating element of the Alto is made
`of?
`A.
`
`Well, the Reynolds' document describes the heater as
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`being made of low chromium nickel iron alloy, which are all
`metals.
`Q.
`And what significance is that to have the claim materials
`of a metallic foil or thin sheet?
`A.
`Well, it says that the thermal resistor is, in fact, a
`metallic foil.
`Q.
`And I'm pulling up Slide Number 19. Can you explain to
`the jury what this picture, PX 082, is showing?
`A.
`Yes. This is -- as I mentioned the other day, I took
`some photographs when I tore the Alto device apart. On the
`left-hand side is an exploded view of the heater assembly. You
`can see the heater S-shape, sinuous shape, and then I cut that
`heater assembly in half, turned it on its side in the upper
`right-hand illustration of that particular slide or diagram, and
`I measured the thickness of the resistor heating element. And I
`measured it to be about .14 millimeters, which is about the
`thickness of a sheet of paper. It's very thin.
`Q.
`And just to orient ourselves, is this image that you took
`showing the pictures we had -- the same thing as the pictures
`we've been looking at of that structure from the PMTA?
`A.
`Yes, in the PMTA, the diagram on the right is -- there
`are two views in three dimensions. This is the assembly that I
`sectioned and measured the thickness of the thermal resistor.
`Q.
`And so have you reached an opinion as to whether the
`resistive heating element in the Vuse Alto is made of the
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`materials, a metal foil or a thin sheet?
`A.
`Yes, I find that limitation is met.
`Q.
`What does the next part of this claim require?
`A.
`It requires that the thermal resistor is in a particular
`shape, the shape of a dual coil or a sinuous line having two
`ends.
`And so sinuous line is, as I explained yesterday, wavy,
`curvy figure.
`Q.
`And can you tell us on the bottom half of this slide,
`which shows PX 028 at 34, what does that tell us about the Vuse
`Alto and the requirement -- the shape requirement of this
`limitation?
`A.
`Yes. From the rental -- Reynolds documents, the PMTA,
`they describe the resistive heating element as being an S-shape
`trace or a sinuous line.
`Q.
`And what does the final part -- so we just talked about
`shape. Now, what does the final part of this limitation
`require?
`A.
`Well, it requires dimensions substantially, the same
`cross-section of a cigarette or a cigar.
`Q.
`And, Mr. Walbrink, on the bottom half of this slide, you
`have an excerpt from PX 002, the patent. What does that tell us
`about the goals of this patent and how that relates to the
`thermal resistor size?
`A.
`Well, it tells us the goal, again, is to come up with an
`e-cigarette that's a substitute for a conventional cigarette
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`that you can hold between your fingers and smoke it like a
`cigar, and in order to retain the consumer experience, you know,
`of handling a cigarette, smoking a cigarette.
`Q.
`And did you prepare some demonstratives to show us your
`analysis of this limitation?
`A.
`Yes, I did.
`MR. YEH: At this time, can I please switch to the ELMO
`and, Mr. Smith if you could put up PPX O19, which I understand is
`not objected to.
`BY MR. YEH:
`Q.
`And while we're switching to the ELMO, Mr. Walbrink, do
`the claims require any specific dimensions?
`A.
`No, they require no dimensions, specifically numerically,
`and this -- you know, cigarettes come in various shapes -- or
`various sizes, and the -- all that's required is that the
`thermal resistor is about the size of a cigarette to enable a
`device to be made that you can handle like a cigarette and smoke
`it like a conventional combustible cigarette.
`Q.
`All right. So now we're looking at what Mr. Smith has
`placed on the ELMO. Can you tell us what this is showing? And,
`again, it's PPX 019.
`A.
`Yes. This is the actual heater assembly from the -- out
`of the Alto that I took out, and you can see the S-shaped
`resistive element there, thermal resistor on the back of it
`between two gold contact tabs.
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`MR. YEH: And, Mr. Smith, if you could put up PDX 3.O43,
`and place the PPX 019 sort of above, under where it says 10.
`Now -- thank you, Mr. Smith.
`BY MR. YEH:
`Q.
`Now, Mr. Walbrink, can you explain to the jury what we're
`seeing on this screen?
`A.
`Yes. So as I mentioned, cigarettes come in various
`sizes. These are cross-section views. In other words, if you
`take the cigarette and you turn it on its end, and you're
`looking at the end of the cigarette, this is a range of sizes of
`cigarettes that are in the marketplace. And you'll notice that
`the resistive heating element, that sinuous line on the back of
`the heater, it is sized about the size of these cigarettes. It
`would enable making a cigarette that you can hold in your hand
`and smoke it like a conventional tobacco cigarette.
`MR. YEH: Now, at this time, I'm going to ask with Your
`Honor's permission, that the courtroom security officer hand up
`PPX 019 to the witness. And I have another physical
`demonstrative that I understand Reynolds has not objected to, but
`with Your Honor's permission to also hand up.
`THE COURT: All right. All right.
`MR. YEH: All right. Thank you.
`BY MR. YEH:
`Q.
`So using those demonstratives, Mr. Walbrink, can you
`explain your analysis of this size requirement, the dimensions
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`requirement to the jury?
`A.
`Yes. Well, as I mentioned, there's no numbers given in
`the patent specifically. And so what is important, that the
`heater is about the size of a cigarette dimension, the
`cross-section, so that you could have -- you'd end up making a
`cigarette that you could smoke between your fingers, put it up
`to your lips, and it would provide the vapor in an e-cig.
`Q.
`Now, Mr. Walbrink, to be clear, are you comparing the
`size of the entire cigarette, looking at its length, to the
`resistive heating element, or what is the correct comparison
`here?
`A.
`Well, as I showed in the diagram, it's the end, the
`cross-section. In other words, the heater would go in -- into
`the device like this, and so we look at the cross-section and we
`look at the resistive element on the heater assembly. And it
`would enable -- it's about the size of the cross-section, this
`cigarette. This is a Reynolds cigarette, by the way.
`MR. YEH: And with Your Honor's permission, we'd like to
`have Mr. Walbrink put the exhibit and demonstrative in the tray
`so the jury can inspect it. It's quite small.
`THE COURT: All right. All right.
`(Brief pause in proceedings.)
`BY MR. YEH:
`Q.
`And so, Mr. Walbrink, after conducting your analysis,
`have you reached -- what is your opinion on whether the
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`resistive heating element of the Alto meets the limitation
`dimension, substantially the same as a cross-section of a
`cigarette or cigar?
`A.
`I find this limitation is met as well.
`Q.
`And have you reached any opinions as to the entire longer
`limitation we've just been talking about that starts a thermal
`resistor?
`A.
`Yes, I find all the elements of this limitation met as
`well.
`Q.
`What does the next limitation of the '265 Patent Claim 1
`require?
`A.
`It requires wherein in the inner spaces of the shape are
`configured to allow fluid -- the flow of fluid throughout.
`Q.
`And, Mr. Walbrink, what shape is it referring to when the
`limitation says "the shape"?
`A.
`It's referring to the thermal resistor, that sinuous
`line, that shape.
`Q.
`And I'm going to pull up the next slide, 23. Can you
`explain what we're seeing on the bottom half of this slide,
`which is PX 084?
`A.
`Yes. This is a photograph of the teardown that I did,
`and on the left-hand side is a magnified view of the heater you
`just looked at. And clearly there are inner spaces within the
`S-shaped curve that allow the fluid to flow through.
`Q.
`And so have you reached any opinions on whether the
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`Q.
`And I want you to remember that because we're going to
`come back to that, okay.
`MR. DEVITT: Can you back up a little bit again, if you
`would, again.
`BY MR. DEVITT:
`Q.
`And you see it's pointing to the black mouthpiece, isn't
`it?
`A.
`It's pointing to the tip, yes.
`Q.
`That's the mouthpiece; it's the part that you put in your
`mouth, right?
`A.
`It is the part you put in your mouth.
`Q.
`Okay. If you --
`MR. DEVITT: Can you go to the next slide for me, please.
`BY MR. DEVITT:
`Q.
`Now, there's another document -- or another table that's
`in the PMTA, but this is another one that you didn't show to the
`jury earlier, and this is Table H-6, right? Do you see that?
`A.
`Yes.
`Q.
`And this is now pointing back to more detail of what
`Figure 1 is, which is a cartomizer holder tap, right?
`A.
`That's what it's called, yes.
`Q.
`And the picture on the right is the mouthpieces, the
`black mouthpiece, right?
`A.
`It's the cartomizer holder tap, yes.
`MR. DEVITT: Well, can you highlight the language in the
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`text right there?
`BY MR. DEVITT:
`Q.
`Can you read that -- can you read that highlighting for
`me?
`A.
`Yes. "The cartomizer holder tap component is a
`mouthpiece."
`Q.
`So Reynolds, when they applied for this, filed the PMTA.
`It's a document you've been relying on, and you're holding
`Reynolds to what they said in this, and they called that black
`mouthpiece "the mouthpiece," didn't they?
`A.
`They did.
`Q.
`Now, you agree -- your opinion is --
`MR. DEVITT: Can you go back to the next slide, please.
`BY MR. DEVITT:
`Q.
`So Reynolds says, and you understand that, the mouthpiece
`is item 1, right?
`A.
`Yes.
`Q.
`You understand that's Reynolds' position, correct?
`A.
`Yes.
`Q.
`Is that's what our expert says, that's what we told the
`FDA, but that's not what your position is, correct?
`A.
`Yes.
`MR. DEVITT: Let's go to the next slide.
`BY MR. DEVITT:
`Q.
`Your position is -- your infringement opinion is based on
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`it's just 1 and 7, do you? You don't have an opinion -- you
`haven't offered an opinion on that, have you?
`A.
`I'm sorry, would you repeat that?
`
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