Case 1:20-cv-00393-LMB-TCB Document 1387-1 Filed 07/13/22 Page 1 of 16 PageID# 34561
`Case 1:20-cv-00393-LMB-TCB Document 1387-1 Filed 07/13/22 Page 1 of 16 PagelD# 34561
`
`
`
`
`
`
`EXHIBIT 1
`EXHIBIT 1
`
`
`

`

`Case 1:20-cv-00393-LMB-TCB Document 1387-1 Filed 07/13/22 Page 2 of 16 PageID# 34562
`
`764
`
`M ic h a e l S h a m u s Q u in la n , E s q .
`J o n e s D a y ( O H - N A )
`9 0 1 L a k e s id e A v e n u e
`C le v e la n d , O H 4 4 1 1 4 - 1 1 9 0
`2 1 6 - 5 8 6 - 3 9 3 9
`F a x : 2 1 6 - 5 7 9 - 0 2 1 2
`E m a il: M s q u in la n @ jo n e s d a y .c o m
`
`J a s o n T o d d B u r n e t t e , E s q .
`J o n e s D a y ( G A )
`1 4 2 0 P e a c h tr e e S tre e t , N E
`S u ite 8 0 0
`A tla n t a , G A 3 0 3 0 9
`4 0 4 - 5 2 1 - 3 9 3 9
`E m a il: J b u rn e tt e @ jo n e s d a y . c o m
`
`D a v i d M i c h a e l M a io r a n a , E s q .
`J o n e s D a y ( O H )
`9 0 1 L a k e s id e A v e
`C le v e la n d , O H 4 4 1 1 4
`2 1 6 - 5 8 6 - 3 9 3 9
`E m a il: D m a io ra n a @ jo n e s d a y . c o m
`
`W illia m E d w a r d D e v it t , E s q .
`J o n e s D a y ( I L )
`7 7 W e s t W a c k e r
`S u ite 3 5 0 0
`C h ic a g o , IL 6 0 6 0 1
`3 1 2 - 2 6 9 - 4 2 4 0
`E m a il: W d e v itt @ jo n e s d a y .c o m
`
`S c o t t L . W a lla c e , R D R , R M R , C R R
`O ffic ia l C o u r t R e p o r t e r
`U n ite d S ta te s D is t ric t C o u r t
`4 0 1 C o u r th o u s e S q u a r e
`A le x a n d r ia , V A 2 2 3 1 - 5 7 9 8
`2 0 2 - 2 7 7 - 3 7 3 9
`s c o t tw a lla c e .e d v a @ g m a il.c o m
`
`762
`
`A P P E A R A N C E S : ( C o n t .)
`
`F o r t h e D e fe n d a n t s :
`
`C o u r t R e p o r t e r :
`
` UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`Civil Action
`No. 1:20-cv-00393-LMB/TCB
`
`June 13, 2022
`9:23 a.m.
`
`)))))))))))))
`
`PHILIP MORRIS PRODCUTS S.A.,
`
`
` Counterclaim Plaintiff,
`
` v.
`
`R.J. REYNOLDS VAPOR COMPANY,
`
` Counterclaim Defendant.
`
` VOLUME 4 - 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
`
`A P P E A R A N C E S : (C o n t.)
`
`F o r t h e P la in t iffs :
`
`F o r t h e D e fe n d a n ts :
`
`Scott L. Wallace, RDR, CRR
`Official Court Reporter
`
`T h o m a s W . Y e h , E s q .
`L a th a m & W a t k in s L L P ( C A )
`3 5 5 S o u t h G ra n d A v e n u e
`S u ite 1 0 0
`L o s A n g e le s , C A 9 0 0 7 1 - 1 5 6 0
`2 1 3 - 8 9 1 - 8 0 5 0
`E m a il: T h o m a s .y e h @ lw .c o m
`
`M a t t h e w J o h n M o o r e , E s q .
`L a th a m & W a t k in s L L P ( D C )
`5 5 5 1 1 t h S tre e t, N W
`S u ite 1 0 0 0
`W a s h in g t o n , D C 2 0 0 0 4 - 1 3 0 4
`2 0 2 - 6 3 7 - 2 2 0 0
`E m a il: M a tth e w .m o o r e @ lw .c o m
`
`D a le C h a n g , E s q .
`L a th a m & W a t k in s L L P ( C A )
`3 5 5 S o u t h G ra n d A v e n u e
`S u ite 1 0 0
`L o s A n g e le s , C A 9 0 0 7 1 - 1 5 6 0
`2 1 3 - 8 9 1 - 8 0 5 0
`E m a il: D a le .c h a n g @ lw .c o m
`
`L a w r e n c e J a y G o t t s , E s q .
`L a th a m & W a t k in s L L P ( D C )
`5 5 5 1 1 t h S t N W
`S u ite 1 0 0 0
`W a s h in g t o n , D C 2 0 0 0 4 - 1 3 0 4
`2 0 2 - 6 3 7 - 2 2 0 0
`E m a il: L a w r e n c e .g o tts @ lw .c o m
`
`C h a r l e s B e n n e t t M o ls t e r , I I I , E s q .
`T h e L a w O ffic e s o f C h a rle s B . M o ls te r
`I I I , P L L C
`2 1 4 1 W is c o n s in A v e n u e N W , S u ite M
`W a s h in g to n , D C 2 0 0 0 7
`7 0 3 - 3 4 6 - 1 5 0 5
`E m a il: C m o ls te r@ m o ls te r la w .c o m
`
`S t e p h a n ie E t h e l P a r k e r , E s q .
`J o n e s D a y ( G A )
`1 4 2 0 P e a c h t r e e S tre e t , N E
`S u it e 8 0 0
`A tla n ta , G A 3 0 3 0 9
`4 0 4 - 5 2 1 - 3 9 3 9
`E m a il: S p a r k e r @ jo n e s d a y . c o m
`
`Scott L. Wallace, RDR, CRR
`Official Court Reporter
`
`P r o c e e d in g s re p o r t e d b y m a c h in e s h o rt h a n d , tr a n s c r ip t p r o d u c e d
`b y c o m p u te r- a id e d tr a n s c r ip tio n .
`
`763
`
` C O N T E N T S
`
`Scott L. Wallace, RDR, CRR
`Official Court Reporter
`
`E X A M I N A T I O N S P a g e
`
`D I R E C T E X A M I N A T IO N O F J E F F R E Y S U H L I N G
`B Y M R . D E V I T T
`C R O S S - E X A M I N A T I O N O F J E F F R E Y S U H L IN G
`B Y M R . N A P L E S
`R E D I R E C T E X A M I N A T I O N O F J E F F R E Y S U H L I N G
`B Y M R . D E V I T T
`
`765
`
`7 7 1
`
`8 0 5
`
`8 2 4
`
`R E B U T T A L D IR E C T E X A M IN A T I O N O F J O H N A B R A H A M
`B Y M R . S O B O L S K I
`R E B U T T A L C R O S S - E X A M I N A T IO N O F J O H N A B R A H A M
`B Y M R . M A IO R A N A
`R E B U T T A L R E D I R E C T E X A M I N A T I O N O F J O H N A B R A H A M 8 5 3
`B Y M R . S O B O L S K I
`R E B U T T A L R E C R O S S - E X A M I N A T I O N O F J O H N A B R A H A M 8 5 5
`B Y M R . M A IO R A N A
`
`8 3 3
`
`8 4 3
`
` E X H I B I T S
`
`D e fe n d a n t 's E x h ib it R X 1 9 2 3 a d m itte d
`
`D e fe n d a n t 's E x h ib it R X 1 4 1 8 a d m itte d
`
`
`7 7 4
`
`8 0 0
`
`Scott L. Wallace, RDR, CRR
`Official Court Reporter
`
`1 of 26 sheets
`
`Page 762 to 765 of 864
`
`06/21/2022 08:47:07 AM
`
`

`

`Case 1:20-cv-00393-LMB-TCB Document 1387-1 Filed 07/13/22 Page 3 of 16 PageID# 34563
`774
`776
`
`And do you have any experience with product design and
`
`thermal heaters that would be relevant to the '265 Patent in
`
`09:46AM 1 Q.
`09:46AM 2
`09:46AM 3
`this case?
`09:46AM 4 A.
`09:46AM 5
`09:46AM 6
`09:46AM 7
`09:46AM 8
`09:46AM 9
`09:46AM 10
`09:46AM 11
`09:46AM 12
`09:46AM 13
`worked on in my career here at Auburn.
`09:46AM 14 Q.
`09:46AM 15
`09:46AM 16
`09:46AM 17
`09:47AM 18 A.
`09:47AM 19
`09:47AM 20
`09:47AM 21
`09:47AM 22
`09:47AM 23
`09:47AM 24
`09:47AM 25
`
`Certainly. Every electronic product has heat generated,
`
`and I think we all know about when we use our cell phone too
`
`much, we feel it getting hot, and so heaters are an integral,
`
`and devices that heat up are integral in every electronic
`
`product.
`
`In fact, we look at the picture on the cover of this book
`
`here, it shows a inside of an electronic product, a black item
`
`there that is the chip, and it has literally hundreds of little
`
`heater elements on it. That's part of some of the things we've
`
`Thank you, Doctor.
`
`I handed you a binder of exhibits, and there's an exhibit
`
`in there, RX 1923. Would you take a look at that?
`
`Is that a copy of your CV, your curriculum vitae?
`
`It is. That's a list of my résumé and accomplishments in
`
`my career.
`
`MR. DEVITT: Your Honor, we request Exhibit RX 1923, the
`
`curriculum vitae of Dr. Jeffrey Suhling, into evidence.
`
`THE COURT: It's in.
`
`(Defendant's Exhibit RX 1923 admitted into the record.)
`
`MR. DEVITT: We offer Dr. Suhling as an expert in the
`
`field of electronic technology and design, including thermal and
`
`of drawings that was submitted to the FDA called a PMTA, the
`
`premarket tobacco application.
`
`And also had access to both photographs and videos
`
`provided by the manufacturer of the heating device inside of the
`
`Vuse Alto product.
`
`And finally, the deposition and trial transcripts from
`
`Now, Dr. Suhling, when you're analyzing these materials
`
`in a patent case, do you understand that you have to look at
`
`09:48AM 1
`09:48AM 2
`09:48AM 3
`09:48AM 4
`09:48AM 5
`09:48AM 6
`09:49AM 7
`these proceedings.
`09:49AM 8 Q.
`09:49AM 9
`09:49AM 10
`them from a certain perspective?
`09:49AM 11 A.
`09:49AM 12 Q.
`09:49AM 13
`in the art, right?
`09:49AM 14 A.
`09:49AM 15 Q.
`09:49AM 16
`ordinary skill in the art would be in this case?
`09:49AM 17 A.
`09:49AM 18
`09:49AM 19
`09:49AM 20
`09:49AM 21
`09:49AM 22
`09:49AM 23
`09:49AM 24
`09:49AM 25
`
`Yes.
`
`And that's the perspective of a person of ordinary skill
`
`Correct.
`
`Do you have an opinion as far as what a person of
`
`I do. And I've listed it here in the slide. I believe a
`
`person of skill in the art for this particular patent would have
`
`a college degree at the bachelor's level most likely in
`
`mechanical or electrical engineering or it could also be in a
`
`related field like physics or a similar technical program. And
`
`one should also have some experience working with electronic
`
`products, in particular ones that involve heaters, and I
`
`suggested one or two years of experience in that area.
`
`Now, if one has gone on and got a higher degree beyond
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`775
`
`777
`
`mechanical analysis of electronic products and heater design.
`
`THE COURT: Any objection?
`
`MR. NAPLES: No objection, Your Honor.
`
`THE COURT: All right. He's so qualified.
`
`All right. Now Dr. Suhling, I would like to turn to some
`
`of the work you did in forming your opinions in this case, but
`
`before we do, what is your opinion in this case that you're
`
`09:47AM 1
`09:47AM 2
`09:47AM 3
`09:47AM 4
`09:47AM 5
`BY MR. DEVITT:
`09:47AM 6 Q.
`09:47AM 7
`09:47AM 8
`09:47AM 9
`offering?
`09:47AM 10 A.
`09:47AM 11
`09:47AM 12
`09:47AM 13
`two claims.
`09:47AM 14 Q.
`09:47AM 15
`09:48AM 16
`analyzed?
`09:48AM 17 A.
`09:48AM 18
`and with a thorough reading of that and an understanding, as a
`09:48AM 19
`09:48AM 20
`09:48AM 21
`09:48AM 22
`09:48AM 23
`09:48AM 24
`09:48AM 25
`
`My opinion, as shown here in the demonstrative, is that
`
`the Vuse Alto product that has been accused of infringing Claims
`
`1 and 4 of the '265 patent absolutely does not infringe on those
`
`Okay. And in informing that opinion, can you tell us
`
`about some of the work that you did and the materials that you
`
`Sure. Of course, I started with the '265 patent itself,
`
`person of skill in the art, what the claims of the patent are
`
`discussing.
`
`And then I obtained physical samples of the Vuse Alto
`
`product purchased from a store and did a careful teardown of
`
`those to understand what was inside.
`
`Besides that, I also reviewed technical drawings that
`
`were provided by Reynolds corporation and, in particular, a set
`
`the bachelor's degree, that could offset for some of the
`
`And do you consider yourself to be at least a person of
`
`I do.
`
`Okay. Dr. Suhling, let's talk about your opinions with
`
`the '265 Patent. I think you said already, but you're saying
`
`Claims 1 and 4 of the '265 Patent, that's what your opinions are
`
`Yes.
`
`And did you compare Claims 1 and 4 of the '265 Patent to
`
`I did.
`
`And in your opinion, does the Vuse Alto product infringe
`
`It does not.
`
`MR. DEVITT: I'd like to pull up the next slide.
`
`Why does the Vuse Alto not infringe Claim 1 of the '265
`
`09:49AM 1
`09:50AM 2
`experience one would get in the industry.
`09:50AM 3 Q.
`09:50AM 4
`ordinary skill in the art?
`09:50AM 5 A.
`09:50AM 6 Q.
`09:50AM 7
`09:50AM 8
`09:50AM 9
`with respect to?
`09:50AM 10 A.
`09:50AM 11 Q.
`09:50AM 12
`the Vuse Alto product?
`09:50AM 13 A.
`09:50AM 14 Q.
`09:50AM 15
`either Claims 1 or 4?
`09:50AM 16 A.
`09:50AM 17
`09:50AM 18
`BY MR. DEVITT:
`09:50AM 19 Q.
`09:50AM 20
`Patent?
`09:50AM 21 A.
`09:50AM 22
`09:51AM 23
`09:51AM 24
`09:51AM 25
`
`Well, Claim 1, which is listed here on the slide, is the
`
`primary independent claim of the patent. And I analyze, in
`
`particular, three sections of Claim 1 which all have to be
`
`followed if a product is to infringe, and they are listed here
`
`and highlighted in yellow on the left, but then I have blown
`
`06/21/2022 08:47:07 AM
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`Page 774 to 777 of 864
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`4 of 26 sheets
`
`

`

`Case 1:20-cv-00393-LMB-TCB Document 1387-1 Filed 07/13/22 Page 4 of 16 PageID# 34564
`778
`780
`
`them up on the right.
`
`And the first one, part, relates to the heating device in
`
`the product and how it is positioned with respect to the
`
`mouthpiece and requires that the heating device be configured to
`
`be connected to the mouthpiece.
`
`The second and third parts that I analyzed were regarding
`
`a thermal resistor.
`
`The second one talks about how the thermal resistor is
`
`made and what kind of material it's made from. And it says
`
`that, "The thermal resistor must be comprised of a metal foil or
`
`thin sheet."
`
`And the third part talks about the thermal resistor and
`
`its relative size in the system, and it specifically says it
`
`has to have -- "having dimensions substantially the same as a
`
`Thank you. Let's talk about that first -- let's start
`
`with the first element, "a heating device configured to be
`
`connected to the mouthpiece." How did you determine whether the
`
`09:51AM 1
`09:51AM 2
`09:51AM 3
`09:51AM 4
`09:51AM 5
`09:51AM 6
`09:51AM 7
`09:51AM 8
`09:51AM 9
`09:51AM 10
`09:51AM 11
`09:51AM 12
`09:51AM 13
`09:51AM 14
`09:52AM 15
`cross-section of a cigarette or cigar."
`09:52AM 16 Q.
`09:52AM 17
`09:52AM 18
`09:52AM 19
`Vuse Alto had a mouthpiece?
`09:52AM 20 A.
`09:52AM 21
`product itself.
`09:52AM 22 Q.
`09:52AM 23
`behind you. Do you recognize that?
`09:52AM 24 A.
`09:52AM 25 Q.
`
`Well, I started, of course, by looking at the actual
`
`Dr. Suhling, there's a sample there of a Vuse Alto there
`
`I certainly do.
`
`I believe that's already been admitted into evidence as
`
`Do you recognize that document?
`
`Yes. This is the PMTA document that Reynolds has
`
`And you relied on this document in forming your opinion;
`
`I did. It contains a set of highly technical drawings on
`
`Were there any particular figures that you found
`
`There were.
`
`I direct your attention to page 30 of PX 028.
`
`Do you see it on the screen?
`
`09:53AM 1 Q.
`09:53AM 2 A.
`09:53AM 3
`submitted to the FDA.
`09:54AM 4 Q.
`09:54AM 5
`is that correct?
`09:54AM 6 A.
`09:54AM 7
`the device.
`09:54AM 8 Q.
`09:54AM 9
`instructive, in your opinion, with respect to a mouthpiece?
`09:54AM 10 A.
`09:54AM 11 Q.
`09:54AM 12
`09:54AM 13 A.
`09:54AM 14
`09:54AM 15
`09:54AM 16
`assembled into the system.
`09:54AM 17 Q.
`09:54AM 18
`what each of the component's parts are, right?
`09:54AM 19 A.
`09:54AM 20 Q.
`09:54AM 21
`what they do?
`09:54AM 22 A.
`09:54AM 23
`09:55AM 24
`09:55AM 25
`
`I do. And I have it here in the binder with that page.
`
`This is what I call a cutaway view and splits up all the
`
`different components and shows you how they are put together and
`
`And in this figure, they have some numbers identifying
`
`They do.
`
`Does the PMTA also identify the names of those pieces and
`
`Yes, it has a separate table that lists each part by
`
`number, and you can see they're numbered from top to bottom, 1,
`
`2, 3 through 11. And it gives a specific technical name to
`
`that, and what -- lists what type of material it is made from.
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`779
`
`781
`
`PPX 8 and 9, the complete device and the cartridge. Are you
`
`Very familiar.
`
`So you've -- from that device, can you identify the
`
`Certainly. And I think you can see it on -- the same one
`
`on the screen, but the device separates into a battery
`
`compartment and what we call a cartridge or a pod, and they
`
`slide together. And when you use the product, the black tip
`
`here at the end is the part that touches your lips and,
`
`certainly, just in a common sense way, we would view that as the
`
`The black tip at the end, that's what you're considering
`
`That is correct.
`
`Other than looking at the device, did you do anything
`
`09:52AM 1
`09:52AM 2
`familiar with that device?
`09:52AM 3 A.
`09:52AM 4 Q.
`09:52AM 5
`mouthpiece?
`09:52AM 6 A.
`09:52AM 7
`09:52AM 8
`09:52AM 9
`09:53AM 10
`09:53AM 11
`09:53AM 12
`mouthpiece that we place in our mouth.
`09:53AM 13 Q.
`09:53AM 14
`the mouthpiece; is that correct?
`09:53AM 15 A.
`09:53AM 16 Q.
`09:53AM 17
`else to confirm your opinion that that's the mouthpiece?
`09:53AM 18 A.
`09:53AM 19
`09:53AM 20
`09:53AM 21
`product.
`09:53AM 22 Q.
`09:53AM 23
`09:53AM 24
`PX 028.
`09:53AM 25 A.
`
`Yes. I also examined, of course, the technical drawings
`
`and documents provided by Reynolds corporation that specifically
`
`identify all the various components that go together into this
`
`Dr. Suhling, I would like to direct your attention to
`
`your exhibit binder again, and in particular, I believe it's
`
`Yes, I have it here.
`
`So is this -- is this the table of the parts that you're
`
`It is. And as you can see there are 11 of them listed
`
`there. The first one is what is the mouthpiece, and the
`
`Now, I want to talk a little bit about that. So did
`
`you -- you prepared a demonstrative and put these two things
`
`I did.
`
`MR. DEVITT: Can you put that up, please?
`
`THE COURT: While you're doing that, the word
`
`"cartomizer," what do you understand that word to mean?
`
`THE WITNESS: I believe a cartomizer is a -- is talking
`
`about the vaporized fluid, but, you know, that's not a word that
`
`I use in my normal life very often, to be honest.
`
`THE COURT: It's not a word out of the mechanical
`
`engineering field?
`
`THE WITNESS: I would believe it's a field out of the
`
`cigarette field.
`
`THE COURT: Cigarette field. All right. Thank you.
`
`09:55AM 1 Q.
`09:55AM 2
`referring to in the PMTA on page 31?
`09:55AM 3 A.
`09:55AM 4
`09:55AM 5
`technical name is the cartomizer holder tap.
`09:55AM 6 Q.
`09:55AM 7
`09:55AM 8
`together, didn't you?
`09:55AM 9 A.
`09:55AM 10
`09:55AM 11
`09:55AM 12
`09:55AM 13
`09:55AM 14
`09:56AM 15
`09:56AM 16
`09:56AM 17
`09:56AM 18
`09:56AM 19
`09:56AM 20
`09:56AM 21
`BY MR. DEVITT:
`09:56AM 22 Q.
`09:56AM 23
`Figure H-10 from the PMTA and Table H-5; is that right?
`09:56AM 24 A.
`09:56AM 25 Q.
`
`So on Slide 8 up here is a demonstrative, and it shows
`
`Yes.
`
`Can you tell us what we're seeing on this figure?
`
`5 of 26 sheets
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`Page 778 to 781 of 864
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`06/21/2022 08:47:07 AM
`
`

`

`Case 1:20-cv-00393-LMB-TCB Document 1387-1 Filed 07/13/22 Page 5 of 16 PageID# 34565
`786
`788
`
`that you have these items as separate components, and that's
`
`what we have when we first start assembling an Alto pod in the
`
`manufacturing facility. You have all these different parts, the
`
`mouthpiece, the tank, the heater, and you're going to assemble
`
`them together.
`
`That claim is talking about how they're going to be
`
`assembled. They're configured to be assembled together, and so
`
`And do you have an opinion as far as what the mouthpiece
`
`I do. In my mind, you see the mouthpiece, it's shaped a
`
`certain way. It's contoured. It's shaped to fit precisely over
`
`the top of the reservoir or the tank of e-liquid and fit very
`
`nicely and slide right over that, and as a matter of fact, I
`
`think we've heard in this trial that it is actually designed,
`
`when you slide it over, to snap into place, and that's mainly to
`
`prevent the mouthpiece from falling off and having the product
`
`You said you've handled some of these. Have you ever
`
`I have.
`
`It takes a little bit of work, but it's something you can
`
`10:03AM 1
`10:03AM 2
`10:03AM 3
`10:03AM 4
`10:03AM 5
`10:03AM 6
`10:03AM 7
`10:03AM 8
`they're configured to be connected.
`10:03AM 9 Q.
`10:03AM 10
`is configured to be connected to?
`10:03AM 11 A.
`10:04AM 12
`10:04AM 13
`10:04AM 14
`10:04AM 15
`10:04AM 16
`10:04AM 17
`10:04AM 18
`fall apart when you are using it.
`10:04AM 19 Q.
`10:04AM 20
`taken the mouthpiece off the tank?
`10:04AM 21 A.
`10:04AM 22 Q.
`10:04AM 23
`do?
`10:04AM 24 A.
`10:04AM 25
`
`It's something you can do. The manufacturer would prefer
`
`you not do it. They would not want the liquid to leak all over
`
`Can you explain?
`
`Sure. As a user, we want to buy a system that's fully
`
`assembled. We don't want to buy 11 little parts in a box and
`
`have to put together this pod every time we want to use it. And
`
`so that assembly is done by the manufacturer, and again, Claim 1
`
`is talking about making sure that the mouthpiece is configured
`
`to be assembled right to the -- to -- well, in the case of the
`
`Alto, to the tank, but in Claim 1 they say it has to be
`
`10:06AM 1 Q.
`10:06AM 2 A.
`10:06AM 3
`10:06AM 4
`10:06AM 5
`10:06AM 6
`10:06AM 7
`10:06AM 8
`10:06AM 9
`configured to be connected to the heater, and which it's not.
`10:06AM 10 Q.
`10:06AM 11
`10:06AM 12
`positioned in a manner prescribed by the claims?
`10:06AM 13 A.
`10:07AM 14 Q.
`10:07AM 15
`10:07AM 16
`10:07AM 17
`10:07AM 18 A.
`10:07AM 19 Q.
`10:07AM 20 A.
`10:07AM 21
`10:07AM 22
`10:07AM 23
`10:07AM 24
`10:07AM 25
`
`And that's, I guess, my next question. So in your
`
`opinion, Dr. Suhling, are the mouthpiece and the heater
`
`They are not.
`
`I would like to turn to the next limitation that you
`
`identified and it's up on the slide. It's "a thermal resistor
`
`comprising a metallic foil or thin sheet."
`
`Do you see that?
`
`I do.
`
`What's a metallic foil or thin sheet?
`
`Well, I believe probably everyone in the courtroom is
`
`familiar with at least one type of metallic foil, and that I've
`
`shown with a picture here on the left of the slide. That's an
`
`aluminum foil that we would use in our kitchen for cooking or
`
`other sealing purposes. Aluminum foil is a very thin metal
`
`sheet, and as you probably remember, you can damage it and bend
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`787
`
`789
`
`Now, you know Mr. Walbrink, Philip Morris's expert, has
`
`I do.
`
`Now, Mr. Walbrink's mouthpiece includes the black
`
`endpiece the cartomizer tap, the silicone gasket and the
`
`cartomizer tube, as well as I think that last item is 4; is that
`
`It does.
`
`Do you agree with his construction or opinion of
`
`10:04AM 1
`the place.
`10:04AM 2 Q.
`10:04AM 3
`offered a different opinion of the mouthpiece; is that right?
`10:04AM 4 A.
`10:04AM 5 Q.
`10:05AM 6
`10:05AM 7
`10:05AM 8
`right?
`10:05AM 9 A.
`10:05AM 10 Q.
`10:05AM 11
`mouthpiece?
`10:05AM 12 A.
`10:05AM 13 Q.
`10:05AM 14 A.
`10:05AM 15
`10:05AM 16
`10:05AM 17
`10:05AM 18
`10:05AM 19
`number 1 there at the top.
`10:05AM 20 Q.
`10:05AM 21
`10:05AM 22
`10:06AM 23
`10:06AM 24
`heater?
`10:06AM 25 A.
`
`I do not.
`
`Why not?
`
`Well, as it's labeled here, Mr. Walbrink has decided to
`
`combine several of the components in the system and arbitrarily,
`
`I think, redefine and say that this is the mouthpiece, and where
`
`clearly those components all together were not designed to be a
`
`mouthpiece. The part to be put in your mouth is only part
`
`Dr. Suhling, does the fact that Reynolds sells the
`
`cartridge as a completed, fully assembled assembly, does that
`
`affect your opinion as to what is the mouthpiece and whether the
`
`mouthpiece in the Alto is configured to be connected to the
`
`Absolutely not.
`
`it very easily.
`
`In the industry we will also use thicker metal sheets,
`
`but thin, that can be rolled, and there's an example of one of
`
`those shown on the right. They are -- both of these type of
`
`products come in a uniform thickness. They can typically be
`
`rolled, and they're of thin enough nature that they can be cut
`
`And in your opinion, does the Vuse Alto product have a
`
`metallic -- is the thermal resistor in the Vuse Alto product a
`
`It is not.
`
`Okay. So your interpretation or the meeting of metallic
`
`foil or thin film -- or strike that. That metallic foil or thin
`
`sheet, what's your view of -- understanding of that term based
`
`10:07AM 1
`10:07AM 2
`10:07AM 3
`10:07AM 4
`10:08AM 5
`10:08AM 6
`10:08AM 7
`and patterned and bent.
`10:08AM 8 Q.
`10:08AM 9
`10:08AM 10
`metallic foil or thin sheet?
`10:08AM 11 A.
`10:08AM 12 Q.
`10:08AM 13
`10:08AM 14
`10:08AM 15
`on?
`10:08AM 16 A.
`10:08AM 17
`10:08AM 18
`sheets are used in a variety of different industries.
`10:09AM 19 Q.
`10:09AM 20
`metallic foils and thin sheets, these are well known?
`10:09AM 21 A.
`10:09AM 22 Q.
`10:09AM 23
`10:09AM 24
`terms?
`10:09AM 25 A.
`
`Mainly based on my career as a scientist and working with
`
`industry, and these type of metal, rolled metal sheets, thin
`
`These terms and the ideas of using metallic sheets or
`
`They're well-known, very common terms in the industry.
`
`Did you find anything in the patent that helped confirm
`
`your understanding of what was meant in the patent on these
`
`Yes, I did. The patent actually in its preferred
`
`7 of 26 sheets
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`Page 786 to 789 of 864
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`06/21/2022 08:47:07 AM
`
`

`

`Case 1:20-cv-00393-LMB-TCB Document 1387-1 Filed 07/13/22 Page 6 of 16 PageID# 34566
`790
`792
`
`embodiments of the heating device uses a thin sheet of metal to
`
`show that, and this is illustrated here on the next slide.
`
`What we have here on the right-hand side are two
`
`preferred embodiments that were suggested in the patent, and, in
`
`particular, they are related to forming the thermal resistor out
`
`of a metallic, thin sheet, and you can see the yellow
`
`highlighted regions are regions of the sheet that have been cut
`
`into a very complicated pattern, but then also the sheet has
`
`been bent to have flanges, and so -- but the entire product was
`
`constructed out of a thin sheet of metal.
`
`MR. DEVITT: Thank you. Your Honor, are those -- I'm
`
`noticing there's some red on the screen. Are those on the
`
`monitor?
`
`THE COURT: Take your hand, if you could, on the monitor
`
`and just try to erase them.
`
`MR. DEVITT: Okay. I wasn't sure if they were on the TV
`
`or on his screen. Thank you.
`
`THE COURT: Okay.
`
`10:09AM 1
`10:09AM 2
`10:09AM 3
`10:09AM 4
`10:09AM 5
`10:09AM 6
`10:09AM 7
`10:09AM 8
`10:10AM 9
`10:10AM 10
`10:10AM 11
`10:10AM 12
`10:10AM 13
`10:10AM 14
`10:10AM 15
`10:10AM 16
`10:10AM 17
`10:10AM 18
`10:10AM 19
`BY MR. DEVITT:
`10:10AM 20 Q.
`10:10AM 21
`10:10AM 22
`with what's in the patent?
`10:10AM 23 A.
`10:10AM 24 Q.
`10:10AM 25
`
`And so is your interpretation and your understanding of
`
`metallic sheet -- "metallic foil" and "thin sheet" consistent
`
`Yes, they are.
`
`Okay. So that's your understanding of the term. Let's
`
`turn to the thermal resistor in the Alto.
`
`you have toothpaste with a bunch of little tiny metal particles
`
`in it, and then through a very controlled process you dispense
`
`And is that how the resistor in the Vuse Alto is formed?
`
`It is. The paste is dispensed, and typically, you know,
`
`you might think of doing that if you were in the kitchen and you
`
`wanted to put a letter S on a cake, you might take your frosting
`
`tube and draw the S, but that's not how we can do it here
`
`because it's so tiny they actually have to use something called
`
`a screen printing process where they use a stencil, and the
`
`stencil is a flat sheet that has a very -- it has the shape of
`
`the S cut out in a hole, and then they take this tube of the
`
`paste with the metal particles and they squirt it on top of the
`
`stencil and they squeegee it across, like cleaning off a
`
`windshield, and the paste will fall on top of the ceramic in the
`
`shape of an S.
`
`At that point it's still very soft, and what they have to
`
`do then is stick it in a high-temperature oven to bake off and
`
`get rid of all of the binders that hold the metal particles
`
`together, and the metal particles will then melt together to
`
`10:12AM 1
`10:12AM 2
`10:12AM 3
`that paste in the shape of an S on top of that piece of ceramic.
`10:12AM 4 Q.
`10:12AM 5 A.
`10:13AM 6
`10:13AM 7
`10:13AM 8
`10:13AM 9
`10:13AM 10
`10:13AM 11
`10:13AM 12
`10:13AM 13
`10:13AM 14
`10:13AM 15
`10:13AM 16
`10:13AM 17
`10:13AM 18
`10:13AM 19
`10:13AM 20
`10:14AM 21
`form this S shape.
`10:14AM 22 Q.
`10:14AM 23
`testing on it? Did you cut it?
`10:14AM 24 A.
`10:14AM 25
`
`Now, you took this resistor and then did you do any
`
`Yes. I wanted to make sure that what we have here --
`
`what its consistency was, and so I actually took this product
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`791
`
`793
`
`MR. DEVITT: Can we turn to Slide 19.
`
`Can you explain what we're seeing up on this slide,
`
`Certainly. On the left side on the slide is the
`
`engineering drawing of the heating assembly in the Alto that
`
`came from the PMTA document. The right side is actually a photo
`
`that I made in a special microscope, called a scanning
`
`electronic microscope, of the heating unit that I extracted from
`
`10:10AM 1
`10:10AM 2
`BY MR. DEVITT:
`10:11AM 3 Q.
`10:11AM 4
`Dr. Suhling?
`10:11AM 5 A.
`10:11AM 6
`10:11AM 7
`10:11AM 8
`10:11AM 9
`10:11AM 10
`a Vuse Alto product.
`10:11AM 11 Q.
`10:11AM 12 A.
`10:11AM 13 Q.
`10:11AM 14
`the thermal resistor you're referring to?
`10:11AM 15 A.
`10:11AM 16 Q.
`10:11AM 17 A.
`10:12AM 18
`screen printing process.
`10:12AM 19 Q.
`10:12AM 20
`printing process to the Court?
`10:12AM 21 A.
`10:12AM 22
`10:12AM 23
`10:12AM 24
`10:12AM 25
`
`And you took that picture yourself?
`
`I did.
`
`How is that -- and I'm seeing -- is that S shape, is that
`
`It is. We are looking at the unit from the bottom.
`
`And how is that resistor formed on that heater block?
`
`Well, it is formed using a special process called a micro
`
`Can you explain what screen printing is or that screen
`
`Sure. In screen printing you do not start with the metal
`
`as a thin sheet or foil, you instead start with metal particles,
`
`very fine particles that are, I would say, like sawdust or sand,
`
`but very fine, and you mix them together in a paste, and it's
`
`actually a -- it looks and feels like toothpaste, so it's like
`
`And I think you have a picture of that cross-section in
`
`I do.
`
`MR. DEVITT: Can you put the cross-sectional image from
`
`Dr. Suhling's report up on the screen. Can you blow that up a
`
`little bit.
`
`Can you explain to the jury what they're seeing in this
`
`10:14AM 1
`and did what's called a cross-section by cutting it in half.
`10:14AM 2 Q.
`10:14AM 3
`your report, right?
`10:14AM 4 A.
`10:14AM 5
`10:14AM 6
`10:14AM 7
`10:14AM 8
`BY MR. DEVITT:
`10:14AM 9 Q.
`10:14AM 10
`image?
`10:14AM 11 A.
`10:14AM 12
`10:14AM 13
`10:15AM 14
`10:15AM 15
`10:15AM 16
`10:15AM 17
`10:15AM 18
`parts of the S, but from the side.
`10:15AM 19 Q.
`10:15AM 20
`10:15AM 21
`those three little humps?
`10:15AM 22 A.
`10:15AM 23
`10:15AM 24
`10:15AM 25
`
`I can. On the top right-hand picture is the original
`
`photo from the top view of the S, and so what I did is I took a
`
`saw and cut through that perpendicular along the dashed line,
`
`and then turned it -- the left side of it on its side and looked
`
`at it along the yellow arrow that's shown there and looked at it
`
`under the microscope again. And when you do that, you're going
`
`to see the three parts of the S, the top, middle, and bottom
`
`So I think your screen allows you -- there we go. So I'm
`
`seeing three humps on the cross-section. Is that the S shape,
`
`Yes.
`
`MR. DEVITT: And do those humps -- can you number those,
`
`1, 2, and 3, from left to right, those humps on the cross-section
`
`for me? Does the witness have the ability to do it on the
`
`06/21/2022 08:47:07 AM
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`Page 790 to 793 of 864
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`8 of 26 sheets
`
`

`

`Case 1:20-cv-00393-LMB-TCB Document 1387-1 Filed 07/13/22 Page 7 of 16 PageID# 34567
`794
`796
`
`screen?
`
`THE COURT: With his finger on the screen he can, but it's
`
`always difficult. There you go.
`
`So that's 1, that's 2, and the far right one is 3 over
`
`there. And how does that translate to what we're seeing up in
`
`Number 1 is at the bottom of the dashed line right there
`
`(indicating), and Number 2 is right where the orange arrow is
`
`pointing (indicating), and Number 3 is the one above,
`
`So that image, that cross-section, is just cutting it and
`
`That is correct.
`
`And why are those humps labeled 1, 2, and 3, why are they
`
`10:15AM 1
`10:15AM 2
`10:15AM 3
`10:15AM 4
`BY MR. DEVITT:
`10:15AM 5 Q.
`10:16AM 6
`10:16AM 7
`the right-hand corner, the cross-section?
`10:16AM 8 A.
`10:16AM 9
`10:16AM 10
`10:16AM 11
`(indicating).
`10:16AM 12 Q.
`10:16AM 13
`turning it so everybody can see the face of it; is that right?
`10:16AM 14 A.
`10:16AM 15 Q.
`10:16AM 16
`rounded?
`10:16AM 17 A.
`10:16AM 18
`10:16AM 19
`10:16AM 20
`10:16AM 21
`S-shaped mound or hill that is patterned on top of this ceramic.
`10:17AM 22 Q.
`10:17AM 23
`10:17AM 24
`film or thin sheet?
`10:17AM 25 A.
`
`That's the natural result of this screen printing
`
`process. When you dispense the metal particles in this paste,
`
`they will settle a bit and sag, and so when they finally get
`
`bound together, they hav