Case 1:20-cv-00393-LMB-TCB Document 1387-10 Filed 07/13/22 Page 1 of 7 PageID# 34633
`Case 1:20-cv-00393-LMB-TCB Document 1387-10 Filed 07/13/22 Page 1 of 7 PagelD# 34633
`
`EXHIBIT 10
`EXHIBIT 10
`
`

`

`Case 1:20-cv-00393-LMB-TCB Document 1387-10 Filed 07/13/22 Page 2 of 7 PageID# 34634
`
`944
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`942
`
`APPEARANCES: (Cont.)
`
`For the Defendants:
`
`Civil Action
`No. 1:20-cv-00393-LMB/TCB
`
`June 14, 2022
`9:21 a.m.
`
`)))))))))))))
`
`PHILIP MORRIS PRODCUTS S.A.,
`
` Counterclaim Plaintiff,
`
` v.
`
`R.J. REYNOLDS VAPOR COMPANY,
`
` Counterclaim Defendant.
`
` VOLUME 5 - MORNING and 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
`
`APPEARANCES: (Cont.)
`
`For the Plaintiffs:
`
`For the Defendants:
`
`Thomas W. Yeh, Esq.
`Latham & Watkins LLP (CA)
`355 South Grand Avenue
`Suite 100
`Los Angeles, CA 90071-1560
`213-891-8050
`Email: Thomas.yeh@lw.com
`
`Matthew John Moore, Esq.
`Latham & Watkins LLP (DC)
`555 11th Street, NW
`Suite 1000
`Washington, DC 20004-1304
`202-637-2200
`Email: Matthew.moore@lw.com
`
`Dale Chang, Esq.
`Latham & Watkins LLP (CA)
`355 South Grand Avenue
`Suite 100
`Los Angeles, CA 90071-1560
`213-891-8050
`Email: Dale.chang@lw.com
`
`Lawrence Jay Gotts, Esq.
`Latham & Watkins LLP (DC)
`555 11th St NW
`Suite 1000
`Washington, DC 20004-1304
`202-637-2200
`Email: Lawrence.gotts@lw.com
`
`Charles Bennett Molster, III, Esq.
`The Law Offices of Charles B.
`Molster III, PLLC
`2141 Wisconsin Avenue NW, Suite M
`Washington, DC 20007
`703-346-1505
`Email: Cmolster@molsterlaw.com
`
`Stephanie Ethel Parker, Esq.
`Jones Day (GA)
`1420 Peachtree Street, NE
`Suite 800
`Atlanta, GA 30309
`404-521-3939
`Email: Sparker@jonesday.com
`
`Michael Shamus Quinlan, Esq.
`Jones Day (OH-NA)
`901 Lakeside Avenue
`Cleveland, OH 44114-1190
`216-586-3939
`Fax: 216-579-0212
`Email: Msquinlan@jonesday.com
`
`Jason Todd Burnette, Esq.
`Jones Day (GA)
`1420 Peachtree Street, NE
`Suite 800
`Atlanta, GA 30309
`404-521-3939
`Email: Jburnette@jonesday.com
`
`David Michael Maiorana, Esq.
`Jones Day (OH)
`901 Lakeside Ave
`Cleveland, OH 44114
`216-586-3939
`Email: Dmaiorana@jonesday.com
`
`William Edward Devitt, Esq.
`Jones Day (IL)
`77 West Wacker
`Suite 3500
`Chicago, IL 60601
`312-269-4240
`Email: Wdevitt@jonesday.com
`
`Scott L. Wallace, RDR, RMR, CRR
`Official Court Reporter
`United States District Court
`401 Courthouse Square
`Alexandria, VA 2231-5798
`202-277-3739
`scottwallace.edva@gmail.com
`
`Court Reporter:
`
`Proceedings reported by machine shorthand, transcript produced
`by computer-aided transcription.
`
`943
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`945
`
` C O N T E N T S
`
`
`
`EXAMINATIONS Page
`
`CLOSING ARGUMENT ON BEHALF OF THE PLAINTIFF
`
`961
`
`CLOSING ARGUMENT ON BEHALF OF THE DEFENDANTS
`
`984
`
`FINAL CLOSING ARGUMENT ON BEHALF OF THE PLAINTIFF 1006
`
`CHARGE OF THE COURT
`
`1013
`
`
` EXHIBITS
`
`DESCRIPTION Page
`
`1 of 33 sheets
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`Page 942 to 945 of 1073
`
`06/21/2022 08:57:23 AM
`
`

`

`Case 1:20-cv-00393-LMB-TCB Document 1387-10 Filed 07/13/22 Page 3 of 7 PageID# 34635
`982
`984
`
`10:34AM 1
`10:34AM 2
`10:34AM 3
`10:35AM 4
`10:35AM 5
`10:35AM 6
`10:35AM 7
`10:35AM 8
`10:35AM 9
`10:35AM 10
`10:35AM 11
`10:35AM 12
`10:35AM 13
`10:35AM 14
`10:35AM 15
`10:35AM 16
`10:35AM 17
`10:35AM 18
`10:35AM 19
`10:35AM 20
`10:36AM 21
`10:36AM 22
`10:36AM 23
`10:36AM 24
`10:36AM 25
`
`testified, "There's no leakage, it's extremely important to
`
`customers, and the commercial success that Reynolds' has comes
`
`from this invention." That's further evidence that the patents
`
`are not obvious.
`
`Let's talk about damages. There are two agreements that
`
`are undisputedly comparable, technically and economically.
`
`What's that mean? It means we're trying to figure out what the
`
`fair rent is for the house that Reynolds has been squatting in
`
`that we own, and right next door, we have an identical house that
`
`rent is being paid on and so we can make an apples-to-apples
`
`comparison, and that's what Mr. Meyer did.
`
`Now, one question you may ask yourself, because Scott
`
`Pettycord testified about it and Mr. Gilley testified about the
`
`discussions these financial executives at Reynolds had with
`
`Dr. Ryan Sullivan, Reynolds' damages expert. Where was
`
`Dr. Sullivan? Dr. Sullivan didn't come here to rebut Mr. Meyer's
`
`testimony for good reason. Probably a similar reason to the one
`
`that Mr. Kodama didn't bother to turn on the device. He had
`
`nothing to say.
`
`There's no dispute that 5.25 is the right starting point.
`
`The Reynolds agreement shows it, the NuMark, which is an
`
`affiliate of Philip Morris USA, agreement shows it, and all nine
`
`other licenses show it. This is a neighborhood with 12 houses.
`
`We want to figure out what the rent is on ours, and all 11 that
`
`are identical rent for the same value, 5.25 percent is the right
`
`10:38AM 1
`10:38AM 2
`10:38AM 3
`10:38AM 4
`10:38AM 5
`10:38AM 6
`10:38AM 7
`10:38AM 8
`10:38AM 9
`10:38AM 10
`10:38AM 11
`10:38AM 12
`10:38AM 13
`10:39AM 14
`10:39AM 15
`10:39AM 16
`10:39AM 17
`10:39AM 18
`10:39AM 19
`10:39AM 20
`10:39AM 21
`10:39AM 22
`10:39AM 23
`10:40AM 24
`10:40AM 25
`
`infringe these patents, even if justice is done in this
`
`courtroom, would have been a profitable one. They sold
`
`1.4 billion and we're only asking for $37.2 million. I ask you
`
`to return a verdict of infringement, validity on the '911 Patent,
`
`infringement on the '265 Patent, infringement under the doctrine
`
`of equivalents on both patents, and to award a more than
`
`reasonable 37.2, which is based on utterly conservative
`
`estimates. Nobody rebutted that. And if you believe the
`
`evidence shows it, you're entitled to award more.
`
`One last thing. That's PX 133. That will be in the
`
`evidence that you'll have with you in the jury room.
`
`THE COURT: All right. Reynolds'.
`
`CLOSING ARGUMENT ON BEHALF OF THE DEFENDANTS
`
`MS. PARKER: May it please the Court and counsel. Good
`
`morning, ladies and gentlemen. So it's been about a week since
`
`the last time I got to talk to you, and remember, it was last
`
`Wednesday when you all came in for jury selection, and after you
`
`all were selected to be on the jury, we had a chance to talk to
`
`you then, and in that week, you all have seen a lot of very
`
`complicated and complex evidence because this is a patent case,
`
`but you guys have hung in there and we all appreciate that.
`
`Let me tell you what I'm going to do this morning. I'm
`
`going to go through the evidence in the case and I'm going to
`
`boil it down to what really matters, and then I'm going to go
`
`through the verdict form and I'm going to show you how the
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`985
`
`10:36AM 1
`10:36AM 2
`10:36AM 3
`10:36AM 4
`10:36AM 5
`10:36AM 6
`10:36AM 7
`10:36AM 8
`10:36AM 9
`10:36AM 10
`10:37AM 11
`10:37AM 12
`10:37AM 13
`10:37AM 14
`10:37AM 15
`10:37AM 16
`10:37AM 17
`10:37AM 18
`10:37AM 19
`10:37AM 20
`10:37AM 21
`10:37AM 22
`10:37AM 23
`10:37AM 24
`10:37AM 25
`
`983
`
`starting point. You heard Mr. McAlexander testify about
`
`apportionment. His testimony was unrebutted. You didn't hear
`
`from any witness from Reynolds challenging his apportionment.
`
`Those apportionments result in the correct baseline royalty rate
`
`of .53 and 1.84. And then you heard Mr. Meyer testify in detail
`
`how he took those 15 factors that the law requires him to apply
`
`and then he adjusted those to come up with the correct reasonable
`
`royalty rates.
`
`And go back, go back to the Reynolds agreement. This is
`
`an important point. Back. This Reynolds agreement, it's not
`
`just 5.25, but Reynolds agreed in the agreement that that was a
`
`reasonable amount. That's an admission by Reynolds that 5.25 is
`
`not just the right starting appointment, it's the reasonable
`
`starting point for a reasonable royalty.
`
`Let's go back to the last slide.
`
`Mr. Meyer testified that .6 percent of net sales is the
`
`right royalty rate for the '265 Patent and that 2 percent of net
`
`sales is the right royalty rate for the '911 Patent. His
`
`testimony is unrebutted. We never saw, heard from Dr. Sullivan
`
`other than the testimony of the financial executives that took
`
`the time to speak to him.
`
`If you multiply that by the approximately $1.4 billion of
`
`sales of the devices, you get the damages of 8 million and 29
`
`million adding up to 37.4 million.
`
`Respectfully, ladies and gentlemen, Reynolds' decision to
`
`10:40AM 1
`10:40AM 2
`10:40AM 3
`10:40AM 4
`10:40AM 5
`10:40AM 6
`10:40AM 7
`10:40AM 8
`10:40AM 9
`10:40AM 10
`10:40AM 11
`10:40AM 12
`10:40AM 13
`10:40AM 14
`10:41AM 15
`10:41AM 16
`10:41AM 17
`10:41AM 18
`10:41AM 19
`10:41AM 20
`10:41AM 21
`10:41AM 22
`10:41AM 23
`10:41AM 24
`10:41AM 25
`
`evidence in the case answers the questions on the verdict form
`
`that should be in favor of Reynolds, okay?
`
`So when I talked to you about a week ago, I told you then
`
`that this case is a business dispute, it's a business dispute
`
`between two competitors, and I think you all have seen that in
`
`the evidence over the last week.
`
`I also told you that the contrast between these two
`
`companies and the products, these e-cigarette products, could not
`
`be any greater, and I think you've seen that, too.
`
`Reynolds has a leading e-cigarette brand, the number one
`
`selling e-cigarette brand. They have no -- Philip Morris has no
`
`e-cigarette on sale in the United States at all. And I also told
`
`you when I talked to you about a week ago that we were going to
`
`bring you the most knowledgeable witnesses, and that's really
`
`important because the evidence in the case depends on who's
`
`telling you, and it's part of your job to decide who you believe,
`
`who's credible.
`
`So who did we bring you as witnesses? We brought you
`
`Dr. Jim Figlar and you heard him say he spent over 20 years
`
`working at Reynolds before he retired. He was head of over 300
`
`people that work in the R & D, the research and development
`
`department. He was also head of all the FDA work there. And he
`
`started working on developing new technology right after he came
`
`to the company. These products are his baby, and that's why he
`
`agreed to come back out of retirement to continue to help us with
`
`11 of 33 sheets
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`Page 982 to 985 of 1073
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`06/21/2022 08:57:23 AM
`
`

`

`Case 1:20-cv-00393-LMB-TCB Document 1387-10 Filed 07/13/22 Page 4 of 7 PageID# 34636
`986
`988
`
`10:41AM 1
`10:41AM 2
`10:41AM 3
`10:41AM 4
`10:42AM 5
`10:42AM 6
`10:42AM 7
`10:42AM 8
`10:42AM 9
`10:42AM 10
`10:42AM 11
`10:42AM 12
`10:42AM 13
`10:42AM 14
`10:42AM 15
`10:42AM 16
`10:42AM 17
`10:42AM 18
`10:42AM 19
`10:43AM 20
`10:43AM 21
`10:43AM 22
`10:43AM 23
`10:43AM 24
`10:43AM 25
`
`this case.
`
`We also brought you Eric Hunt, and for the people who are
`
`working at Reynolds today, Eric knows more than anybody else on
`
`the planet about these products, and I think you all know that
`
`from the testimony that he gave. That's his job. He's the
`
`person in charge of these products at Reynolds.
`
`We also brought you Kelly Kodama. Now, Mr. Kodama
`
`actually worked in the e-cigarette area. He actually -- he's not
`
`just somebody that came off the street with no experience about
`
`e-cigarettes. He actually developed and designed e-cigarettes
`
`for other companies, and that's why he didn't do some of the
`
`testing that you heard Mr. Grant talk about. You heard what he
`
`said. He said, "I already know that. I know that because I
`
`design e-cigarettes."
`
`So we brought you three, the most experienced witnesses,
`
`and the most knowledgeable witnesses. Who did they bring you?
`
`Well, their first witness was Dr. Gilchrist here. Remember,
`
`she's the first person who took the stand for them, and
`
`respectfully, she knows nothing about patents. She knows nothing
`
`about the patents at issue in this case. She's their PR
`
`spokesperson. Remember, she said she's the person who goes on TV
`
`and answers questions. She's the person who does their Twitter
`
`account. She tweets about all of this. She doesn't know about
`
`the products and the patents in this case.
`
`Who else did they bring you? Well, where are the
`
`10:45AM 1
`10:45AM 2
`10:45AM 3
`10:45AM 4
`10:45AM 5
`10:45AM 6
`10:45AM 7
`10:45AM 8
`10:45AM 9
`10:45AM 10
`10:45AM 11
`10:45AM 12
`10:46AM 13
`10:46AM 14
`10:46AM 15
`10:46AM 16
`10:46AM 17
`10:46AM 18
`10:46AM 19
`10:46AM 20
`10:46AM 21
`10:46AM 22
`10:46AM 23
`10:46AM 24
`10:46AM 25
`
`last week, a lot of complicated evidence about patents and all,
`
`so I'm going to try to boil all that down for you into five
`
`simple truths about what happened here.
`
`The first truth is Reynolds did its own work to develop
`
`these products. Now, I want to stop right now and address
`
`something. So Mr. Grant said, "Oh, they didn't develop all of
`
`this. They bought some of it." That's correct. That's exactly
`
`what you do when you innovate. You don't have to invent every
`
`single thing. You get the best products out there and you bring
`
`them in and you innovate and you use that as your platform to go
`
`forward.
`
`Elon Musk didn't invent every single thing that went on
`
`the Tesla. He went out and figured what they needed to buy to
`
`acquire to move forward, and he used that as a new platform, and
`
`now we have the Tesla car. It's the same thing.
`
`So we brought you the most knowledgeable people about what
`
`Reynolds actually did, and you heard Dr. Figlar tell you about
`
`all that work, starting in the 1980s and going through the 1990s,
`
`continuing on, that led to the development of these products.
`
`And you heard that from Mr. Hunt also, and you know he
`
`worked firsthand with these products.
`
`Reynolds was the first company to get authorization from
`
`the FDA. Reynolds is the true innovator. They're the first
`
`company to get authorization from the FDA to sell these products
`
`in the United States. That's very important, and that's proof of
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`989
`
`10:43AM 1
`10:43AM 2
`10:43AM 3
`10:43AM 4
`10:43AM 5
`10:43AM 6
`10:43AM 7
`10:44AM 8
`10:44AM 9
`10:44AM 10
`10:44AM 11
`10:44AM 12
`10:44AM 13
`10:44AM 14
`10:44AM 15
`10:44AM 16
`10:44AM 17
`10:44AM 18
`10:44AM 19
`10:44AM 20
`10:45AM 21
`10:45AM 22
`10:45AM 23
`10:45AM 24
`10:45AM 25
`
`987
`
`inventors? Why didn't they bring the inventors? You're going to
`
`have the patents at issue in the case. You're going to have them
`
`in evidence. They're going to be back there in the jury room
`
`with you, and on the first page of both of those patents it lists
`
`the inventors. Why didn't they bring them?
`
`We brought you people who actually worked on e-cigarettes.
`
`They brought you zero witnesses who actually have knowledge and
`
`actually worked on e-cigarettes. That's important because
`
`they're the ones who have the burden of proof here. We brought
`
`you the witnesses who do have that knowledge because we want you
`
`to know the truth about what happened here, so we brought you the
`
`people who actually know -- knew what happened. They could have
`
`brought anybody from Philip Morris.
`
`Now, another thing I told you when I talked to you last
`
`week is that you would see at trial that these patent
`
`requirements are narrow, and I think you've seen that during the
`
`evidence over the last week, and these narrow requirements, the
`
`shapes, the materials, the sizes, the positions, and the
`
`functions, they're going to show that the Vuse products do not
`
`match those requirements. That's the main thing at the end of
`
`the day when it comes to infringement.
`
`The Vuse products are different. They have to match
`
`exactly perfectly the requirements, and they don't. I'm going to
`
`talk about that.
`
`Now, as I said, y'all heard a lot of evidence over the
`
`10:47AM 1
`10:47AM 2
`10:47AM 3
`10:47AM 4
`10:47AM 5
`10:47AM 6
`10:47AM 7
`10:47AM 8
`10:47AM 9
`10:47AM 10
`10:47AM 11
`10:47AM 12
`10:48AM 13
`10:48AM 14
`10:48AM 15
`10:48AM 16
`10:48AM 17
`10:48AM 18
`10:48AM 19
`10:48AM 20
`10:48AM 21
`10:48AM 22
`10:48AM 23
`10:48AM 24
`10:48AM 25
`
`what we're saying here about Reynolds being the innovator.
`
`Remember you heard Dr. Figlar talk about all the work that
`
`went into getting that FDA authorization, and one of the things
`
`he told you was that the application itself was over 150,000
`
`pages. Well, if y'all can see -- I don't know if y'all can see
`
`over here. This stack of paper, this is 2,500 pages. Multiply
`
`this times 60 -- take up all this room here. Multiply this times
`
`60, and that gets the number of pages that Reynolds provided to
`
`the FDA to show all of the work they did as part of the
`
`innovation to get the authorization.
`
`And those applications that they filed have been
`
`successful, as you can see there on the screen.
`
`Philip Morris has not met its burden of proof. They're
`
`the ones who have the burden of proof here. They have not met
`
`it. Again, they haven't brought any witnesses who know about
`
`e-cigarettes. We brought you Dr. Figlar. We brought you
`
`Mr. Hunt, Kelly Kodama. All of them have massive amounts of
`
`experience in this product area. They brought you zero witnesses
`
`in this area.
`
`And that's why your verdict here is so important. When a
`
`company goes out and spends all the time and effort and money to
`
`try to develop new products and are successful like that, it's
`
`not right, it's not fair for a competitor to be able to come into
`
`court and to try to get money damage the way they have here.
`
`So that brings us to the second truth about what happened
`
`06/21/2022 08:57:23 AM
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`Page 986 to 989 of 1073
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`12 of 33 sheets
`
`

`

`Case 1:20-cv-00393-LMB-TCB Document 1387-10 Filed 07/13/22 Page 5 of 7 PageID# 34637
`1014
`1016
`
`11:49AM 1
`11:49AM 2
`11:49AM 3
`11:49AM 4
`11:49AM 5
`11:49AM 6
`11:49AM 7
`11:49AM 8
`11:49AM 9
`11:49AM 10
`11:50AM 11
`11:50AM 12
`11:50AM 13
`11:50AM 14
`11:50AM 15
`11:50AM 16
`11:50AM 17
`11:50AM 18
`11:50AM 19
`11:50AM 20
`11:50AM 21
`11:50AM 22
`11:50AM 23
`11:50AM 24
`11:50AM 25
`
`difference appears to you between the law as stated by counsel
`
`and that stated by the Court in these instructions, you are to be
`
`governed by the instructions. You are not to single out any one
`
`instruction alone as stating the law but must consider the
`
`instructions as a whole. Neither are you to be concerned about
`
`the wisdom of any rules of law stated by the Court. You must
`
`apply -- you must follow and apply the law, regardless of any
`
`opinion you may have as to what the law ought to be. It would be
`
`a violation of your sworn duty to base a verdict upon any view of
`
`the law, other than that given in the instructions of the Court,
`
`just as it would be a violation of your sworn duty as judges of
`
`the facts to base a verdict upon anything but the evidence in the
`
`case.
`
`Nothing I say in these instructions indicates that I have
`
`any opinion about the facts. You, not I, have the duty to
`
`determine the facts.
`
`Justice through trial by jury always depends on the
`
`willingness of each individual juror to seek the truth as to the
`
`facts from the same evidence presented to all the jurors and to
`
`arrive at a verdict by applying the same rules of law as are
`
`being given to you in the instructions of the Court.
`
`You must perform your duty as jurors without bias or
`
`prejudice as to any party. The law does not permit you to be
`
`controlled by sympathy, prejudice, or public opinion. All
`
`parties expect that you will carefully and impartially consider
`
`11:52AM 1
`11:52AM 2
`11:52AM 3
`11:53AM 4
`11:53AM 5
`11:53AM 6
`11:53AM 7
`11:53AM 8
`11:53AM 9
`11:53AM 10
`11:53AM 11
`11:53AM 12
`11:53AM 13
`11:53AM 14
`11:53AM 15
`11:53AM 16
`11:53AM 17
`11:54AM 18
`11:54AM 19
`11:54AM 20
`11:54AM 21
`11:54AM 22
`11:54AM 23
`11:54AM 24
`11:54AM 25
`
`equal worth, and holding the same or similar stations of life.
`
`A corporation is entitled to the same fair trial at your
`
`hands as a private individual, regardless of its size, wealth, or
`
`place of incorporation.
`
`All persons, including corporations, partnerships,
`
`unincorporated associations, and other organizations stand equal
`
`before the law and are to be dealt with as equals in the court of
`
`justice.
`
`Now, there is nothing particularly different in the way
`
`that a juror should consider the evidence in a trial from the way
`
`in which any reasonable and careful person would treat any very
`
`important question that must be resolved by examining facts,
`
`opinions, and evidence. You are expected to use your good sense
`
`in considering and evaluating the evidence in the case for only
`
`those purposes for which it has been received and to give such
`
`evidence a reasonable and fair consideration in the light of your
`
`common knowledge of the natural tendencies and inclinations of
`
`human beings.
`
`Now, it's the sworn duty of attorneys on each side of the
`
`case to object when the other side offers testimony or exhibits
`
`which that attorney believes is not properly admissible. Only by
`
`raising an objection can a lawyer request and obtain a ruling
`
`from the Court on the admissibility of the evidence being offered
`
`by the other side. You should not be influenced against an
`
`attorney or his or her client because an attorney has made
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`1017
`
`11:50AM 1
`11:51AM 2
`11:51AM 3
`11:51AM 4
`11:51AM 5
`11:51AM 6
`11:51AM 7
`11:51AM 8
`11:51AM 9
`11:51AM 10
`11:51AM 11
`11:51AM 12
`11:51AM 13
`11:51AM 14
`11:51AM 15
`11:52AM 16
`11:52AM 17
`11:52AM 18
`11:52AM 19
`11:52AM 20
`11:52AM 21
`11:52AM 22
`11:52AM 23
`11:52AM 24
`11:52AM 25
`
`1015
`
`all the evidence, follow the law as it is now being given to you,
`
`and reach a just verdict regardless of the consequences.
`
`Now, during this trial I permitted you to take notes.
`
`Many courts do not permit note-taking by jurors and a word of
`
`caution is in order. There's always a tendency to place undue
`
`importance to matters which one has written down. Some testimony
`
`which is considered unimportant at the time presented, and, thus,
`
`not written down, takes on greater importance later in the trial
`
`in light of all the evidence presented. Therefore, you are
`
`instructed that your notes are only a tool to aid in your own
`
`individual memory, and you should not compare your notes with
`
`other jurors in determining the content of any testimony or in
`
`evaluating the importance of any evidence. Your notes are not
`
`evidence and are by no means a complete outline of the
`
`proceedings or a list of the highlights of the trial.
`
`Above all, your memory should be your greatest asset when
`
`it comes time to deliberate and render a decision in this case.
`
`Moreover, you are coequal judges of the facts, and each juror's
`
`memory of and opinion about the evidence is worthy of
`
`consideration by all the other jurors. That a juror may have
`
`taken extensive notes does not mean that his or her memory or
`
`opinion is worthy of more consideration than the memory or the
`
`opinion of a juror who took few or no notes.
`
`This case should be considered and decided by you as an
`
`action between persons of equal standing in the community of
`
`11:54AM 1
`11:54AM 2
`11:54AM 3
`11:54AM 4
`11:54AM 5
`11:54AM 6
`11:54AM 7
`11:55AM 8
`11:55AM 9
`11:55AM 10
`11:55AM 11
`11:55AM 12
`11:55AM 13
`11:55AM 14
`11:55AM 15
`11:55AM 16
`11:55AM 17
`11:55AM 18
`11:55AM 19
`11:55AM 20
`11:55AM 21
`11:55AM 22
`11:55AM 23
`11:56AM 24
`11:56AM 25
`
`objections.
`
`Moreover, do not attempt to interpret my rulings on
`
`objections as somehow indicating to you what I believe the
`
`outcome of the case should be.
`
`Now, the evidence in the case consists of the sworn
`
`testimony of the witnesses, regardless of who may have called
`
`them, all exhibits received in evidence, regardless of who may
`
`have produced them, and all facts which have been admitted or
`
`stipulated.
`
`When the attorneys on both sides stipulate or agree to the
`
`existence of a fact, you must, unless otherwise instructed,
`
`accept the stipulation as evidence and regard the fact as proved.
`
`Statements, arguments, questions, and objections of
`
`counsel are not evidence in the case. Any evidence to which an
`
`objection was sustained by the Court and any evidence ordered
`
`stricken by the Court must be entirely disregarded. Anything you
`
`may have seen or heard outside the courtroom is not evidence and
`
`must be entirely disregarded. You are to consider only the
`
`evidence in the case, but in your consideration of the evidence,
`
`you are not limited to the literal statements of the witnesses.
`
`In other words, you're not limited solely to what you see and
`
`hear as the witnesses testify. Instead, you are permitted to
`
`draw from facts which you find have been proved, such reasonable
`
`inferences as you feel are justified in the light of your
`
`experience. Inferences or deductions or conclusions which reason
`
`19 of 33 sheets
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`Page 1014 to 1017 of 1073
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`06/21/2022 08:57:23 AM
`
`

`

`Case 1:20-cv-00393-LMB-TCB Document 1387-10 Filed 07/13/22 Page 6 of 7 PageID# 34638
`1042
`1044
`
`12:38PM 1
`12:38PM 2
`12:38PM 3
`12:38PM 4
`12:38PM 5
`12:38PM 6
`12:38PM 7
`12:38PM 8
`12:38PM 9
`12:38PM 10
`12:38PM 11
`12:38PM 12
`12:38PM 13
`12:39PM 14
`12:39PM 15
`12:39PM 16
`12:39PM 17
`12:39PM 18
`12:39PM 19
`12:39PM 20
`12:39PM 21
`12:39PM 22
`12:39PM 23
`12:39PM 24
`12:39PM 25
`
`Did others copy the claimed invention?
`
`Did the claimed invention achieve unexpectedly superior
`
`results over the closest prior art?
`
`Did others in the field or Reynolds praise the claimed
`
`invention or express surprise at the making of the claimed
`
`invention?
`
`Did others accept licenses under the asserted patents
`
`because of the merits of the claimed invention?
`
`And whether the inventor proceeded contrary to accepted
`
`wisdom in the field.
`
`Answering all or some of these questions "yes" may suggest
`
`that the claim was not obvious.
`
`These factors are relevant only if Philip Morris can prove
`
`that there is the connection or nexus between them and the
`
`inventive aspect of the patent claim. A secondary consideration
`
`is only relevant to nonobviousness if there is a nexus between
`
`the secondary consideration and the claimed invention. For
`
`example, commercial success matters only if Philip Morris has
`
`shown that the commercial success is due to the claimed invention
`
`and is not attributable to other factors such as, for example,
`
`advertising, marketing, or distribution, features that are not
`
`claimed or features previously known in the prior art. If you
`
`find that a nexus does not exist, then you must disregard that
`
`factor.
`
`Even if you conclude that some of the above factors have
`
`12:41PM 1
`12:41PM 2
`12:41PM 3
`12:41PM 4
`12:41PM 5
`12:41PM 6
`12:42PM 7
`12:42PM 8
`12:42PM 9
`12:42PM 10
`12:42PM 11
`12:42PM 12
`12:42PM 13
`12:42PM 14
`12:42PM 15
`12:42PM 16
`12:42PM 17
`12:42PM 18
`12:42PM 19
`12:42PM 20
`12:43PM 21
`12:43PM 22
`12:43PM 23
`12:43PM 24
`12:43PM 25
`
`then you should not consider damages in your deliberations.
`
`Philip Morris must prove each element of its damage claim,
`
`including the amount of the damages, by a preponderance of the
`
`evidence, which means more likely than not, that same
`
`preponderance of the evidence standard that I mentioned earlier.
`
`Damages must be in an amount adequate to compensate Philip
`
`Morris for the infringement. The purpose of a damage award is to
`
`put Philip Morris in about the same financial position that it
`
`would have been in if the infringement had not happened, but any
`
`damage award cannot be less than a reasonable royalty. You may
`
`not add any damages to the amount of damages to punish an accused
`
`infringer or to set an example. You also may not award damages
`
`for any future losses Philip Morris may incur.
`
`You also may not add any damages to the amount of damages
`
`for interest or for attorneys' fees. Philip Morris must prove
`
`the amount of damages with reasonable certainty, but need not
`
`prove the amount of damages with mathematical precision.
`
`However, Philip Morris is not entitled to damages that are remote
`
`or speculative.
`
`Philip Morris and Reynolds agree that the time period
`
`covering any damages for the '265 Patent would be from August 1,
`
`2018 through December 31st of 2021, and the time period covering
`
`any damages for the '911 Patent would run from October 23rd, 2018
`
`through December 31st of 2021.
`
`Now, Philip Morris is seeking damages in this case in the
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`1045
`
`12:39PM 1
`12:39PM 2
`12:40PM 3
`12:40PM 4
`12:40PM 5
`12:40PM 6
`12:40PM 7
`12:40PM 8
`12:40PM 9
`12:40PM 10
`12:40PM 11
`12:40PM 12
`12:40PM 13
`12:40PM 14
`12:40PM 15
`12:40PM 16
`12:41PM 17
`12:41PM 18
`12:41PM 19
`12:41PM 20
`12:41PM 21
`12:41PM 22
`12:41PM 23
`12:41PM 24
`12:41PM 25
`
`1043
`
`been established, those factors should be considered along with
`
`all the other evidence in the case in determining whether
`
`Reynolds has proven that the claimed invention would have been
`
`obvious.
`
`The next set of instructions go to damages. The fact that
`
`I am instructing you on damages does not mean that the Court
`
`believes that one party or the other should win in this case or
`
`on any issue.
`
`If you find that the asserted claims are not infringed or
`
`are invalid, then Philip Morris is not entitled to any damages.
`
`My instructions about damages are for your guidance only in the
`
`event you find in favor of Philip Morris. As to the '265 Patent,
`
`if you find that the Vuse Alto infringed any of the asserted
`
`claims of the '265 Patent, then you must determine the amount of
`
`damages to be awarded Philip Morris for the infringement. On the
`
`other hand, if you find that no asserted claim of the '265 Patent
`
`are infringed, then you should not consider damages in your
`
`deliberations.
`
`As to the '911 Patent, if you find that either the Vuse
`
`Alto or Vuse Solo G2 infringed any of the asserted claims of the
`
`'911 Patent and that the '911 Patent is not invalid, then you
`
`must determine the amount of damages to be awarded Philip Morris
`
`for the infringement.
`
`On the other hand, if you find that each of the asserted
`
`claims in the '911 Patent is either invalid or is not infringed,
`
`12:43PM 1
`12:43PM 2
`12:43PM 3
`12:43PM 4
`12:43PM 5
`12:43PM 6
`12:44PM 7
`12:44PM 8
`12:44PM 9
`12:44PM 10
`12:44PM 11
`12:44PM 12
`12:44PM 13
`12:44PM 14
`12:44PM 15
`12:44PM 16
`12:44PM 17
`12:44PM 18
`12:44PM 19
`12:45PM 20
`12:45PM 21
`12:45PM 22
`12:45PM 23
`12:45PM 24
`12:45PM 25
`
`form of a reasonable royalty. If you find that Reynolds
`
`infringed a valid claim of the asserted patents, you must
`
`consider the issue of a reasonable royalty. The amount of
`
`damages that Reynolds pays Philip Morris for infringing the '265
`
`and or the '911 patents must be enough to compensate for the
`
`infringement, but may not be less than a reasonable royalty for
`
`the use of Philip Morris's invention.
`
`A royalty is a payment made to a patent owner by someone
`
`else in exchange for the rights to make, use, sell, or import a
`
`patented product. A reasonable royalty is the amount of royalty
`
`payment that a patent holder and the alleged infringer would have
`
`agreed to in a hypothetical negotiation taking place at a time
`
`prior to when the infringement first began. Of course, we know
`
`that the parties did not, in fact, agree to a license and
`
`reasonable royalty payment, but in order to decide on the amount
`
`of a reasonable royalty damage, you should assume that the
`
`parties did negotiate a license just before the time of first
`
`alleged infringement began. This is why it is called a
`
`hypothetical license negotiation.
`
`In considering this hypothetical negotiation, you should
`
`f