Case 1:20-cv-00393-LMB-TCB Document 1387-2 Filed 07/13/22 Page 1 of 10 PageID# 34577
`Case 1:20-cv-00393-LMB-TCB Document 1387-2 Filed 07/13/22 Page 1 of 10 PagelD# 34577
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`EXHIBIT 2
`EXHIBIT 2
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`APPEARANCES: (Cont.)
`
`For the Defendants:
`
`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:
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`Proceedings reported by machine shorthand, transcript produced
`by computer-aided transcription.
`
`Scott L. Wallace, RDR, CRR
`Official Court Reporter
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`315
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` C O N T E N T S
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`EXAMINATIONS Page
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`CONTINUED DIRECT EXAMINATION OF HAROLD WALBRINK 317
`BY MR. YEH
`CROSS-EXAMINATION OF HAROLD WALBRINK
`BY MR. DEVITT
`REDIRECT EXAMINATION OF HAROLD WALBRINK
`BY MR. YEH
`
`339
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`367
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`DIRECT EXAMINATION OF JOE MCALEXANDER
`BY MR
`CROSS-EXAMINATION OF JOE McALEXANDER
`BY MS. BAKER
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`DIRECT EXAMINATION OF PAUL MEYER
`BY MR. SANDFORD
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` EXHIBITS
`
`DESCRIPTION Page
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`372
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`394
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`407
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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,
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` 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:
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`APPEARANCES: (Cont.)
`
`For the Plaintiffs:
`
`For the Defendants:
`
`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
`
`313
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`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
`
`Scott L. Wallace, RDR, CRR
`Official Court Reporter
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`MORNING SESSION, JUNE 9, 2022
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`(9:20 a.m.)
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`THE COURTROOM CLERK: Civil Action 20-393, Philip Morris
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`Products, S.A. versus R.J. Reynolds Vapor Company.
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`Would counsel please note their appearances for the
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`record.
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`MR. GRANT: Good morning, Your Honor. Your prediction
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`about the traffic turned out to be a little bit correct.
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`THE COURT: Yeah.
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`MR. GRANT: Max Grant, Thomas Yeh, Matt Moore, and Brett
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`Sandford will be the attorneys speaking in court today.
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`THE COURT: Very good. Good morning.
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`MS. PARKER: Good morning, Your Honor. Stephanie Parker;
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`Bill Devitt; Dr. Figlar, our client representative; Ms. Emily
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`Baker. She'll be handling one of the witnesses today. You
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`remember Dave Maiorana from yesterday, and Ron McCrum is going to
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`be handling a witness today also.
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`THE COURT: All right. Good morning. The jury is now
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`here. There are really no preliminary matters we need to
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`address. We need to have Mr. Walbrink, who is back on the stand
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`and still under oath.
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`We'll bring the jury in, all right?
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`THE COURT SECURITY OFFICER: Yes, Judge.
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`THE COURT: Good morning, ladies and gentlemen. Thank you
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`for being here. I note traffic is rough and at least one of you
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`we had just finished talking about the heating device configured
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`Yes.
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`And what were your opinions with respect to that opinion?
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`I found that this plain limitation was also met.
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`Now, turning to the next limitation, this one's a bit
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`to be connected limitation, right?
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`longer, so we'll break it up.
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`up.
`09:22AM 16 Q.
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`resistor is made of?
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`or a thin sheet.
`09:23AM 21 Q.
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`of?
`09:23AM 25 A.
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`What is the first requirement of this limitation?
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`Well, first of all, it requires a thermal resistor, which
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`is basically a heater. And so I looked at the Reynolds
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`document, the PMTA, which we talked about yesterday, and it
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`describes the heater as having a resistive heating element,
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`which is a thermal resistor. If you recall, when you pass
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`electricity across it, a current runs through it and it heats
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`And turning to the next part of this limitation, what are
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`the requirements with respect to the materials that the thermal
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`Yes. It requires the resistor to be of a metallic foil
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`And if we look at the bottom half of this slide, the
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`excerpt from PX O28, the PMTA, what does that tell us about the
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`materials that the resistive heating element of the Alto is made
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`Well, the Reynolds' document describes the heater as
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
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`BY MR. YEH:
`09:21AM 19 Q.
`09:21AM 20 A.
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`BY MR. YEH:
`09:21AM 25 Q.
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`comes from Leesburg, which is a really long trip out from here,
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`so we really do appreciate you being here, and we're going to be
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`able to get started with the continued testimony of Mr. Walbrink.
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`I just want to make sure. I'm assuming none of you bumped
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`into any problems last night. You followed my instructions, and
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`you didn't do any investigation, correct? Everybody is still
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`nice and healthy, and hopefully your families are as well. Very
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`good.
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`You should have plenty of water with you. If you start to
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`run out, we'll make sure you get some, so raise your hand if you
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`need anything, all right?
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`(Brief pause in proceedings.)
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`THE COURT: All right. We can now continue.
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`MR. YEH: Good morning. May I proceed?
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`THE COURT: Yes, sir.
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`MR. YEH: Thank you.
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`CONTINUED DIRECT EXAMINATION OF HAROLD WALBRINK
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`Welcome back, Mr. Walbrink.
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`Good morning, Mr. Yeh.
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`So let's pick up where we left off and just keep on
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`trucking.
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`MR. YEH: Can we please turn to Slide 16?
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`And I believe when we left off yesterday, Mr. Walbrink,
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`being made of low chromium nickel iron alloy, which are all
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`And what significance is that to have the claim materials
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`Well, it says that the thermal resistor is, in fact, a
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`And I'm pulling up Slide Number 19. Can you explain to
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`Yes. This is -- as I mentioned the other day, I took
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`metals.
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`of a metallic foil or thin sheet?
`09:23AM 5 A.
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`metallic foil.
`09:23AM 7 Q.
`09:23AM 8
`the jury what this picture, PX 082, is showing?
`09:23AM 9 A.
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`some photographs when I tore the Alto device apart. On the
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`thickness of a sheet of paper. It's very thin.
`09:24AM 18 Q.
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`we've been looking at of that structure from the PMTA?
`09:24AM 21 A.
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`sectioned and measured the thickness of the thermal resistor.
`09:25AM 24 Q.
`09:25AM 25
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`left-hand side is an exploded view of the heater assembly. You
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`can see the heater S-shape, sinuous shape, and then I cut that
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`heater assembly in half, turned it on its side in the upper
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`right-hand illustration of that particular slide or diagram, and
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`I measured the thickness of the resistor heating element. And I
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`measured it to be about .14 millimeters, which is about the
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`And just to orient ourselves, is this image that you took
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`showing the pictures we had -- the same thing as the pictures
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`Yes, in the PMTA, the diagram on the right is -- there
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`are two views in three dimensions. This is the assembly that I
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`And so have you reached an opinion as to whether the
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`resistive heating element in the Vuse Alto is made of the
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`Yes, I find that limitation is met.
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`What does the next part of this claim require?
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`It requires that the thermal resistor is in a particular
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`shape, the shape of a dual coil or a sinuous line having two
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`ends. And so sinuous line is, as I explained yesterday, wavy,
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`And can you tell us on the bottom half of this slide,
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`which shows PX 028 at 34, what does that tell us about the Vuse
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`Alto and the requirement -- the shape requirement of this
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`Yes. From the rental -- Reynolds documents, the PMTA,
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`they describe the resistive heating element as being an S-shape
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`materials, a metal foil or a thin sheet?
`09:25AM 2 A.
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`curvy figure.
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`limitation?
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`trace or a sinuous line.
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`require?
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`cross-section of a cigarette or a cigar.
`09:26AM 20 Q.
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`thermal resistor size?
`09:26AM 24 A.
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`And what does the final part -- so we just talked about
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`shape. Now, what does the final part of this limitation
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`Well, it requires dimensions substantially, the same
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`And, Mr. Walbrink, on the bottom half of this slide, you
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`have an excerpt from PX 002, the patent. What does that tell us
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`about the goals of this patent and how that relates to the
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`Well, it tells us the goal, again, is to come up with an
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`e-cigarette that's a substitute for a conventional cigarette
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`MR. YEH: And, Mr. Smith, if you could put up PDX 3.O43,
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`and place the PPX 019 sort of above, under where it says 10.
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`Now -- thank you, Mr. Smith.
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`Now, Mr. Walbrink, can you explain to the jury what we're
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`BY MR. YEH:
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`seeing on this screen?
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`BY MR. YEH:
`09:30AM 24 Q.
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`Yes. So as I mentioned, cigarettes come in various
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`sizes. These are cross-section views. In other words, if you
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`take the cigarette and you turn it on its end, and you're
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`looking at the end of the cigarette, this is a range of sizes of
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`cigarettes that are in the marketplace. And you'll notice that
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`the resistive heating element, that sinuous line on the back of
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`the heater, it is sized about the size of these cigarettes. It
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`would enable making a cigarette that you can hold in your hand
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`and smoke it like a conventional tobacco cigarette.
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`MR. YEH: Now, at this time, I'm going to ask with Your
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`Honor's permission, that the courtroom security officer hand up
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`PPX 019 to the witness. And I have another physical
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`demonstrative that I understand Reynolds has not objected to, but
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`with Your Honor's permission to also hand up.
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`THE COURT: All right. All right.
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`MR. YEH: All right. Thank you.
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`So using those demonstratives, Mr. Walbrink, can you
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`explain your analysis of this size requirement, the dimensions
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
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`that you can hold between your fingers and smoke it like a
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`cigar, and in order to retain the consumer experience, you know,
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`And did you prepare some demonstratives to show us your
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`Yes, I did.
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`MR. YEH: At this time, can I please switch to the ELMO
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`and, Mr. Smith if you could put up PPX O19, which I understand is
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`not objected to.
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`And while we're switching to the ELMO, Mr. Walbrink, do
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`of handling a cigarette, smoking a cigarette.
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`analysis of this limitation?
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`BY MR. YEH:
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`the claims require any specific dimensions?
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`it like a conventional combustible cigarette.
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`again, it's PPX 019.
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`No, they require no dimensions, specifically numerically,
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`and this -- you know, cigarettes come in various shapes -- or
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`various sizes, and the -- all that's required is that the
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`thermal resistor is about the size of a cigarette to enable a
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`device to be made that you can handle like a cigarette and smoke
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`All right. So now we're looking at what Mr. Smith has
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`placed on the ELMO. Can you tell us what this is showing? And,
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`Yes. This is the actual heater assembly from the -- out
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`of the Alto that I took out, and you can see the S-shaped
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`resistive element there, thermal resistor on the back of it
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`between two gold contact tabs.
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`Yes. Well, as I mentioned, there's no numbers given in
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`the patent specifically. And so what is important, that the
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`heater is about the size of a cigarette dimension, the
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`cross-section, so that you could have -- you'd end up making a
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`cigarette that you could smoke between your fingers, put it up
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`Now, Mr. Walbrink, to be clear, are you comparing the
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`size of the entire cigarette, looking at its length, to the
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`resistive heating element, or what is the correct comparison
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`requirement to the jury?
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`to your lips, and it would provide the vapor in an e-cig.
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`here?
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`BY MR. YEH:
`09:33AM 24 Q.
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`Well, as I showed in the diagram, it's the end, the
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`cross-section. In other words, the heater would go in -- into
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`the device like this, and so we look at the cross-section and we
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`look at the resistive element on the heater assembly. And it
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`would enable -- it's about the size of the cross-section, this
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`cigarette. This is a Reynolds cigarette, by the way.
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`MR. YEH: And with Your Honor's permission, we'd like to
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`have Mr. Walbrink put the exhibit and demonstrative in the tray
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`so the jury can inspect it. It's quite small.
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`THE COURT: All right. All right.
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`(Brief pause in proceedings.)
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`And so, Mr. Walbrink, after conducting your analysis,
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`have you reached -- what is your opinion on whether the
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`resistive heating element of the Alto meets the limitation
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`dimension, substantially the same as a cross-section of a
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`I find this limitation is met as well.
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`And have you reached any opinions as to the entire longer
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`limitation we've just been talking about that starts a thermal
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`cigarette or cigar?
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`resistor?
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`well.
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`require?
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`configured to allow fluid -- the flow of fluid throughout.
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`limitation says "the shape"?
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`line, that shape.
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`which is PX 084?
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`S-shaped curve that allow the fluid to flow through.
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`Yes, I find all the elements of this limitation met as
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`What does the next limitation of the '265 Patent Claim 1
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`It requires wherein in the inner spaces of the shape are
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`And, Mr. Walbrink, what shape is it referring to when the
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`It's referring to the thermal resistor, that sinuous
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`And I'm going to pull up the next slide, 23. Can you
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`explain what we're seeing on the bottom half of this slide,
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`Yes. This is a photograph of the teardown that I did,
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`and on the left-hand side is a magnified view of the heater you
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`just looked at. And clearly there are inner spaces within the
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`And so have you reached any opinions on whether the
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`It requires that the first contact tab and the second
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`And can you explain how -- what is shown in the Alto PMTA
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`Again, referring to the same diagram with the blue
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`contact tabs highlighted in blue, you can see they clearly do
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`And so have you reached any opinions with respect to the
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`Yes. I find all of the elements of this limitation met
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`And the next limitation is fairly long as well, so we'll
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`All right.
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`What does the first part of the next limitation require?
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`It requires at least one vaporizer membrane.
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`And can you explain to the jury what a vaporizer membrane
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`Yes. Essentially it's a barrier that controls the flow
`
`And what is shown on the bottom half of the slide, the
`
`09:37AM 1
`limitation requires?
`09:37AM 2 A.
`09:37AM 3
`contact tab not being in direct contact with each other.
`09:37AM 4 Q.
`09:37AM 5
`PX 028 at the bottom half?
`09:37AM 6 A.
`09:37AM 7
`09:37AM 8
`not come in contact with one another.
`09:37AM 9 Q.
`09:37AM 10
`limitation that starts "a contact tab"?
`09:37AM 11 A.
`09:37AM 12
`as well.
`09:37AM 13 Q.
`09:37AM 14
`go step-by-step through that one.
`09:37AM 15 A.
`09:37AM 16 Q.
`09:37AM 17 A.
`09:38AM 18 Q.
`09:38AM 19
`is?
`09:38AM 20 A.
`09:38AM 21
`of fluid through it.
`09:38AM 22 Q.
`09:38AM 23
`excerpt from PX 028?
`09:38AM 24 A.
`09:38AM 25
`
`Yes. This is, again, a three-dimensional view of the
`
`heater assembly, and the vaporizer membrane has been highlighted
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`325
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`327
`
`limitation wherein inter spaces of the shape are configured to
`
`Yes, I find this limitation is met as well.
`
`So the next limitation is fairly long as well, and so
`
`we'll break it down.
`
`And can you tell us what the first part of this
`
`09:35AM 1
`09:35AM 2
`allow a flow of fluid there through is met?
`09:35AM 3 A.
`09:35AM 4 Q.
`09:35AM 5
`09:35AM 6
`09:35AM 7
`limitation requires?
`09:35AM 8 A.
`09:35AM 9 Q.
`09:35AM 10
`you show us where the contact tabs are?
`09:35AM 11 A.
`09:35AM 12 Q.
`09:36AM 13 A.
`09:36AM 14
`thermal resistor.
`09:36AM 15 Q.
`09:36AM 16 A.
`09:36AM 17
`09:36AM 18
`or sinuous line of the thermal resistor.
`09:36AM 19 Q.
`09:36AM 20
`slide, the excerpt from PX O28 shows us about that requirement?
`09:36AM 21 A.
`09:36AM 22
`09:36AM 23
`09:36AM 24
`or opposed ends of that thermal resistor.
`09:37AM 25 Q.
`
`Yes. It requires at least one contact tab.
`
`And on the bottom of this slide, you have PX 028. Can
`
`Yes. The contact tabs are highlighted in blue.
`
`And just to back up, what is a contact tab, Mr. Walbrink?
`
`A contact tab is where the electricity is supplied to the
`
`And what does the next part of this limitation require?
`
`It requires the first contact tab and a second contact
`
`tab being connected to respective opposed ends of the dual coil
`
`And can you explain to us what the bottom half of the
`
`Yes. This shows highlighted in blue that, in fact,
`
`they -- there are two contact tabs. They are at the end of that
`
`sinuous line, and of the resistor, and they're at opposing ends
`
`And can you tell us what the final part of this
`
`And I'm going to put up Slide Number 28. First, on the
`
`bottom half is another image, Figure H-13 from PX 028. Can you
`
`tell us what this is showing with respect to the vaporizer
`
`Sure. So this is a cross-section of this device, the
`
`cartridge, so it's sliced lengthways, like this, and it's an
`
`exploded view on the right-hand side, and it shows the pink is
`
`the solution, the e-liquid, and the green, again, is the
`
`vaporizer membrane, and the dark pink arrows show the flow of
`
`the e-liquid through the membrane, and there's an arrow here on
`
`the bottom of the membrane. That's pointing to the resistive
`
`09:38AM 1
`in green.
`09:38AM 2 Q.
`09:38AM 3
`09:38AM 4
`09:38AM 5
`membrane?
`09:38AM 6 A.
`09:38AM 7
`09:39AM 8
`09:39AM 9
`09:39AM 10
`09:39AM 11
`09:39AM 12
`09:39AM 13
`heater, the thermal resistor.
`09:39AM 14 Q.
`09:39AM 15
`09:39AM 16
`membrane as claimed?
`09:39AM 17 A.
`09:39AM 18
`09:39AM 19
`09:39AM 20
`doctrine of equivalents.
`09:39AM 21 Q.
`09:40AM 22
`09:40AM 23
`shown in green is not a vaporizer membrane?
`09:40AM 24 A.
`09:40AM 25 Q.
`
`And how is this significant to your opinions as to
`
`whether the Vuse Alto accused devices include a vaporizer
`
`I find it does include a vaporizer membrane. And even if
`
`you weren't to find it literally included in there, it also
`
`meets the requirements underneath an analysis called the
`
`So before jumping into the doctrine of equivalents, do
`
`you understand that Reynolds is claiming or arguing that what's
`
`Yes.
`
`And so how do you respond to that?
`
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`Case 1:20-cv-00393-LMB-TCB Document 1387-2 Filed 07/13/22 Page 6 of 10 PageID# 34582
`348
`350
`
`And I want you to remember that because we're going to
`
`MR. DEVITT: Can you back up a little bit again, if you
`
`would, again.
`
`10:06AM 1 Q.
`10:06AM 2
`come back to that, okay.
`10:06AM 3
`10:06AM 4
`10:06AM 5
`BY MR. DEVITT:
`10:06AM 6 Q.
`10:06AM 7
`it?
`10:06AM 8 A.
`10:06AM 9 Q.
`10:06AM 10
`mouth, right?
`10:06AM 11 A.
`10:06AM 12 Q.
`10:06AM 13
`10:06AM 14
`BY MR. DEVITT:
`10:06AM 15 Q.
`10:06AM 16
`in the PMTA, but this is another one that you didn't show to the
`10:07AM 17
`jury earlier, and this is Table H-6, right? Do you see that?
`10:07AM 18 A.
`10:07AM 19 Q.
`10:07AM 20
`Figure 1 is, which is a cartomizer holder tap, right?
`10:07AM 21 A.
`10:07AM 22 Q.
`10:07AM 23
`black mouthpiece, right?
`10:07AM 24 A.
`10:07AM 25
`
`And you see it's pointing to the black mouthpiece, isn't
`
`It's pointing to the tip, yes.
`
`That's the mouthpiece; it's the part that you put in your
`
`It is the part you put in your mouth.
`
`Okay. If you --
`
`MR. DEVITT: Can you go to the next slide for me, please.
`
`Now, there's another document -- or another table that's
`
`Yes.
`
`And this is now pointing back to more detail of what
`
`That's what it's called, yes.
`
`And the picture on the right is the mouthpieces, the
`
`It's the cartomizer holder tap, yes.
`
`MR. DEVITT: Well, can you highlight the language in the
`
`the mouthpiece being 1, 2, 3, and 4, right? Those four
`
`10:08AM 1
`10:08AM 2
`components from that figure; isn't that right?
`10:08AM 3 A.
`10:08AM 4 Q.
`10:08AM 5
`You're calling that the mouthpiece, right?
`10:09AM 6 A.
`10:09AM 7 Q.
`10:09AM 8
`there?
`10:09AM 9 A.
`10:09AM 10 Q.
`10:09AM 11 A.
`10:09AM 12 Q.
`10:09AM 13
`device?
`10:09AM 14 A.
`10:09AM 15 Q.
`10:09AM 16
`the black part. I'm sorry, let me back up. I wasn't clear.
`10:09AM 17 A.
`10:09AM 18 Q.
`10:09AM 19 A.
`10:09AM 20 Q.
`10:09AM 21
`the power supply.
`10:09AM 22 A.
`10:09AM 23 Q.
`10:09AM 24 A.
`10:09AM 25 Q.
`
`Yes.
`
`And it includes the yellow portion that holds the liquid.
`
`Yes.
`
`You showed the example of -- do you have the Vuse device
`
`Yes, I do.
`
`Can you hold it up for me?
`
`Sure.
`
`Okay. Do you have the power supply as well, the power
`
`I do.
`
`Okay. Can you take -- you hold up the mouthpiece -- no,
`
`Okay. We'll start over.
`
`All right. Hold up the cartridge.
`
`(Indicating.)
`
`Right. And it has the mouthpiece on the end, and hold up
`
`(Complied.)
`
`Now put it in.
`
`(Complied.)
`
`So I don't see that yellow clear part anymore. It's
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`349
`
`351
`
`text right there?
`
`Can you read that -- can you read that highlighting for
`
`Yes. "The cartomizer holder tap component is a
`
`So Reynolds, when they applied for this, filed the PMTA.
`
`Reynolds to what they said in this, and they called that black
`
`10:07AM 1
`10:07AM 2
`BY MR. DEVITT:
`10:07AM 3 Q.
`10:07AM 4
`me?
`10:07AM 5 A.
`10:07AM 6
`mouthpiece."
`10:07AM 7 Q.
`10:07AM 8
`It's a document you've been relying on, and you're holding
`10:07AM 9
`10:07AM 10
`mouthpiece "the mouthpiece," didn't they?
`10:07AM 11 A.
`10:07AM 12 Q.
`10:08AM 13
`10:08AM 14
`BY MR. DEVITT:
`10:08AM 15 Q.
`10:08AM 16
`is item 1, right?
`10:08AM 17 A.
`10:08AM 18 Q.
`10:08AM 19 A.
`10:08AM 20 Q.
`10:08AM 21
`FDA, but that's not what your position is, correct?
`10:08AM 22 A.
`10:08AM 23
`10:08AM 24
`BY MR. DEVITT:
`10:08AM 25 Q.
`
`They did.
`
`Now, you agree -- your opinion is --
`
`MR. DEVITT: Can you go back to the next slide, please.
`
`So Reynolds says, and you understand that, the mouthpiece
`
`Yes.
`
`You understand that's Reynolds' position, correct?
`
`Yes.
`
`Is that's what our expert says, that's what we told the
`
`Yes.
`
`MR. DEVITT: Let's go to the next slide.
`
`Your position is -- your infringement opinion is based on
`
`The yellow is still there.
`
`I know, but when a user is using it, no one would think
`
`I don't agree.
`
`MR. DEVITT: Can you go to the next slide?
`
`This is -- I'm just showing the same thing that you just
`
`MR. DEVITT: Can you play it?
`
`And you're still saying that clear tube is the
`
`It's part of the mouthpiece.
`
`And you're not -- your infringement opinion depends on
`
`It is in my opinion, yes.
`
`Okay. Let's talk about the heating device. You agree
`
`MR. DEVITT: Can you -- yeah, thank you.
`
`You agree that the heating device is Heater 7, don't you,
`
`10:09AM 1
`gone, right? When I use it, that's not the mouthpiece, is it?
`10:09AM 2 A.
`10:09AM 3 Q.
`10:09AM 4
`that's the mouthpiece, would they?
`10:09AM 5 A.
`10:10AM 6
`10:10AM 7
`BY MR. DEVITT:
`10:10AM 8 Q.
`10:10AM 9
`did.
`10:10AM 10
`10:10AM 11
`BY MR. DEVITT:
`10:10AM 12 Q.
`10:10AM 13
`mouthpiece; is that right?
`10:10AM 14 A.
`10:10AM 15 Q.
`10:10AM 16
`that construction, doesn't it?
`10:10AM 17 A.
`10:10AM 18 Q.
`10:10AM 19
`that the heat --
`10:10AM 20
`10:10AM 21
`BY MR. DEVITT:
`10:10AM 22 Q.
`10:10AM 23
`item 7? You agree --
`10:10AM 24 A.
`10:10AM 25 Q.
`
`Yes.
`
`-- that's the heater, right?
`
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`Case 1:20-cv-00393-LMB-TCB Document 1387-2 Filed 07/13/22 Page 7 of 10 PageID# 34583
`352
`354
`
`Yes.
`
`But in your opinion you say that the heater also includes
`
`Not exactly.
`
`Can you play -- well, when you were -- maybe I'm not
`
`Your position is -- well, let me try it this way: You
`
`10:10AM 1 A.
`10:10AM 2 Q.
`10:10AM 3
`items 5, 6, 7, and 8, right?
`10:11AM 4 A.
`10:11AM 5 Q.
`10:11AM 6
`clear.
`10:11AM 7
`10:11AM 8
`agree that the heater is 7, right?
`10:11AM 9 A.
`10:11AM 10 Q.
`10:11AM 11 A.
`10:11AM 12 Q.
`10:11AM 13 A.
`10:11AM 14 Q.
`10:11AM 15 A.
`10:11AM 16 Q.
`10:11AM 17 A.
`10:11AM 18 Q.
`10:11AM 19 A.
`10:12AM 20 Q.
`10:12AM 21 A.
`10:12AM 22 Q.
`10:12AM 23 A.
`10:12AM 24 Q.
`10:12AM 25
`opinion, correct?
`
`Yes.
`
`Is that the entirety of the heater?
`
`I'm sorry?
`
`Is that the entirety of the heater?
`
`Of the heater element, yes.
`
`That's it? No other portion is part of the heater?
`
`Well, they all come together in the assembly.
`
`What else comes together in the heater assembly?
`
`The other components.
`
`What other components are part of the heater assembly?
`
`The ones that you have highlighted or put a box around.
`
`Which is 5, 6, 7, and 8, right?
`
`Yes.
`
`You're calling that the heater assembly, correct?
`
`Yes.
`
`And that's what you point to for your infringement
`
`it's just 1 and 7, do you? You don't have an opinion -- you
`
`I'm sorry, would you repeat that?
`
`Sure. Your infringement opinion to say that the Vuse
`
`10:13AM 1
`10:13AM 2
`haven't offered an opinion on that, have you?
`10:13AM 3 A.
`10:13AM 4 Q.
`10:13AM 5
`Alto infringes Claim 1, you -- your opinion is that the
`10:13AM 6
`mouthpiece is elements 1, 2, 3, and 4, right?
`10:14AM 7 A.
`10:14AM 8 Q.
`10:14AM 9
`just element 1, right? You haven't offered that opinion,
`10:14AM 10
`correct?
`10:14AM 11 A.
`10:14AM 12 Q.
`10:14AM 13
`claim. Let's talk about the thermal resistor requirement.
`10:14AM 14
`10:14AM 15
`BY MR. DEVITT:
`10:14AM 16 Q.
`10:14AM 17
`thermal resistor requirement, right?
`10:14AM 18 A.
`10:14AM 19 Q.
`10:14AM 20
`shape of a dual coil and sinuous line, dimensions substantially
`10:14AM 21
`the same as a cross-section of a cigarette or cigar," correct?
`10:14AM 22 A.
`10:14AM 23 Q.
`10:14AM 24
`same as a cross-section of a cigarette or cigar" limitation.
`10:14AM 25
`
`Yes.
`
`You've never offered an opinion, if the mouthpiece is
`
`No.
`
`I would like to talk to you about another element in the
`
`MR. DEVITT: Next slide.
`
`You identified that the claim also has this specific
`
`Yes.
`
`It's got to be "a metallic foil or thin sheet in the
`
`Yes.
`
`I want to focus on that "dimensions substantially the
`
`The Court has said all the claim terms have their plain
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`353
`
`355
`
`No.
`
`You don't?
`
`No.
`
`MR. DEVITT: Can you go to the next slide.
`
`Your opinion, Mr. Walbrink, is that the mouthpiece is in
`
`The heater is 7.
`
`So even -- so -- but if I just put a box around 7, you
`
`No.
`
`You think the heater is connected to the mouthpiece even
`
`They are connected.
`
`MR. DEVITT: Can we go to the next slide.
`
`The heater is 7, the mouthpiece is 1, and it's your
`
`Yes.
`
`MR. DEVITT: Next slide, please.
`
`10:12AM 1 A.
`10:12AM 2 Q.
`10:12AM 3 A.
`10:12AM 4
`10:12AM 5
`BY MR. DEVITT:
`10:12AM 6 Q.
`10:12AM 7
`the red box, which is item 1, 2, 3, and 4, and then the heater
`10:12AM 8
`is just 7? Or is it 5, 6, 7, and 8?
`10:12AM 9 A.
`10:12AM 10 Q.
`10:12AM 11
`would agree the mouthpiece isn't connected to the heater, right?
`10:12AM 12 A.
`10:12AM 13 Q.
`10:13AM 14
`though there they're not connected; is that right?
`10:13AM 15 A.
`10:13AM 16
`10:13AM 17
`BY MR. YEH:
`10:13AM 18 Q.
`10:13AM 19
`testimony that they're connected, correct?
`10:13AM 20 A.
`10:13AM 21
`10:13AM 22
`BY MR. DEVITT:
`10:13AM 23 Q.
`10:13AM 24
`body, includes the mouthpiece, the cartomizer chamber. If
`10:13AM 25
`
`Your opinion needs to point to that entire cartridge
`
`you're wrong, right, if it's that, you don't offer an opinion if
`
`Yes.
`
`And you had to look at this patent from the perspective
`
`Yes.
`
`Now, I want to make sure we're clear on this. There's