Case 1:20-cv-00393-LMB-TCB Document 1394 Filed 07/19/22 Page 1 of 14 PageID# 34736
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`
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`PHILIP MORRIS PRODUCTS S.A.
`
`
`Plaintiff,
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`
`v.
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`R.J. REYNOLDS VAPOR COMPANY
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`
`Defendant.
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`Case No. 1:20-cv-00393-LMB-TCB
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`
`
`
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`
`
`
`
`REPLY IN SUPPORT OF PHILIP MORRIS’
`MOTION FOR JUDGMENT AS A MATTER OF LAW OF INFRINGEMENT OR,
`ALTERNATIVELY, A NEW TRIAL
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`
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`
`

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`Case 1:20-cv-00393-LMB-TCB Document 1394 Filed 07/19/22 Page 2 of 14 PageID# 34737
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`
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`I.
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`II.
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`TABLE OF CONTENTS
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`
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`Page
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`INTRODUCTION ...............................................................................................................1
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`THE COURT SHOULD ENTER JUDGMENT AS A MATTER OF LAW THAT
`THE ALTO INFRINGES CLAIMS 2, 11, AND 12 OF THE ’911 PATENT OR,
`ALTERNATIVELY, GRANT A NEW TRIAL ..................................................................2
`
`A.
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`B.
`
`C.
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`There Is No Legally Sufficient Evidence For A Reasonable Juror To Find
`That The Alto Does Not Meet The “cavity is a blind hole” Element ......................2
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`There Is No Legally Sufficient Evidence For A Reasonable Juror To Find
`That The Alto Does Not Meet The Cross-Sectional Dimension Element ...............5
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`There Is No Legally Sufficient Evidence For A Reasonable Juror To Find
`That The Alto Does Not Meet The “cavity contains capillary material”
`Element ....................................................................................................................7
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`III.
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`CONCLUSION ....................................................................................................................9
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`ii
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`Case 1:20-cv-00393-LMB-TCB Document 1394 Filed 07/19/22 Page 3 of 14 PageID# 34738
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`TABLE OF AUTHORITIES
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`CASES
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`DeMarini Sports, Inc. v. Worth, Inc.,
`239 F.3d 1314 (Fed. Cir. 2001) ................................................................................................... 3
`
`Erfindergemeinschaft UroPep GbR v. Eli Lilly & Co.,
`No. 2:15-CV-1202-WCB, 2017 WL 1050120 (E.D. Tex. Mar. 17, 2017) ................................. 5
`
`Fontem Ventures, B.V. v. NJOY, Inc.,
`No. CV 14-1645-GW(MRWx), 2015 WL 12743861 (C.D. Cal. Oct. 22, 2015) .................... 4, 5
`
`Jeneric/Pentron, Inc. v. Dillon Co., Inc.,
`205 F.3d 1377 (Fed. Cir. 2000) ................................................................................................... 5
`
`Level 3 Commc’ns, LLC v. Limelight Networks, Inc.,
`No. 2:07cv589, 2009 WL 10689350 (E.D. Va. June 23, 2009) .................................................. 4
`
`Nuance Commc’ns, Inc. v. Abbyy Software House, Inc.,
`No. 08-cv-2912, 2012 WL 1188903 (N.D. Cal. Apr. 9, 2012),
`aff’d sub nom., 813 F.3d 1368 (Fed. Cir. 2016) .......................................................................... 3
`
`Oatey Co. v. IPS Corp.,
`514 F.3d 1271 (Fed. Cir. 2008) ................................................................................................... 6
`
`Pulse Elecs., Inc. v. U.D. Elec. Corp.,
`860 F. App’x 735 (Fed. Cir. 2021) .............................................................................................. 3
`
`Summit 6, LLC v. Samsung Elecs. Co.,
`802 F.3d 1283 (Fed. Cir. 2015) ............................................................................................... 4, 5
`
`Unwired Planet, LLC v. Apple Inc.,
`829 F.3d 1353 (Fed. Cir. 2016) ................................................................................................... 4
`
`Wahpeton Canvas Co., Inc. v. Frontier, Inc.,
`870 F.2d 1546 (Fed. Cir. 1989) ............................................................................................... 3, 4
`
`Whitserve, LLC v. Comput. Packages, Inc.,
`694 F.3d 10 (Fed. Cir. 2012) ................................................................................................... 1, 8
`
`iii
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`Case 1:20-cv-00393-LMB-TCB Document 1394 Filed 07/19/22 Page 4 of 14 PageID# 34739
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`I.
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`INTRODUCTION
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`No reasonable juror could find that the accused VUSE Alto does not infringe claims 2, 11,
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`and 12 of the ’911 Patent. For each of the three disputed limitations, Reynolds’ only purported
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`evidence of non-infringement is its expert’s self-serving and uncorroborated testimony that
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`contradicts the law of the case—including Judge O’Grady’s claim construction and Daubert
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`orders—and is against the clear weight of the evidence—including the unrebutted functional
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`testing that Dr. Abraham performed.
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`For the first disputed element (“cavity is a blind hole”), Reynolds’ only argument is that
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`the claimed structure cannot have any open sides in view of the patentee’s alleged statements
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`during prosecution. That contradicts Judge O’Grady’s prior orders holding that all of the disputed
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`terms are “well known common English words given their common meaning” and “[n]one of the
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`terms were modified by a clear disclaimer in the prosecution[.]” Dkt. 360 at 1. For the second
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`disputed element (“largest cross-sectional dimension x”), Reynolds relies on Mr. Kodama’s
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`measurement that is undisputedly not wall-to-wall and thus improperly contradicts the
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`specification’s guidance and excludes disclosed embodiments. For the third disputed element
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`(“cavity contains capillary material”), Reynolds concedes the patent teaches a “capillary material”
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`is any material that “retain[s] the collected liquid” and does not challenge Dr. Abraham’s
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`functional testing showing that the silicone material in the Alto does exactly that. That should be
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`dispositive. Reynolds instead relies on Mr. Kodama’s conclusory testimony, which “is not enough
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`to be even substantial evidence in support of a verdict.” Whitserve, LLC v. Comput. Packages,
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`Inc., 694 F.3d 10, 24 (Fed. Cir. 2012).
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`The Court should grant Philip Morris’ motion for judgment as a matter of law that the Alto
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`infringes claims 2, 11, and 12 of the ’ 911 Patent or, alternatively, a new trial on the issue.
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`1
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`Case 1:20-cv-00393-LMB-TCB Document 1394 Filed 07/19/22 Page 5 of 14 PageID# 34740
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`
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`II.
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`THE COURT SHOULD ENTER JUDGMENT AS A MATTER OF LAW THAT
`THE ALTO INFRINGES CLAIMS 2, 11, AND 12 OF THE ’911 PATENT OR,
`ALTERNATIVELY, GRANT A NEW TRIAL
`A.
`
`There Is No Legally Sufficient Evidence For A Reasonable Juror To Find
`That The Alto Does Not Meet The “cavity is a blind hole” Element
`
`
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`Reynolds argues that “the space in the Alto mouthpiece is not a cavity or a blind hole
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`because it has open sides.” Dkt. 1386 (“Opp.”) at 2. Reynolds in turn relies on Mr. Kodama’s
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`testimony to the same effect and asserts it was proper because Judge O’Grady allowed Reynolds
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`to “introduc[e] evidence of the Rose patent and related prosecution history.” Opp. at 4. Reynolds
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`mischaracterizes Judge O’Grady’s statement and is wrong on the merits.
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`First, Mr. Kodama’s testimony contradicts Judge O’Grady’s claim construction and
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`Daubert orders.1 There is no dispute that Judge O’Grady’s claim construction order held all
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`disputed terms had their plain and ordinary meaning and “[n]one of the [disputed] terms were
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`modified by a clear disclaimer in the prosecution[.]” Dkt. 360 at 1. There is also no dispute that
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`Mr. Kodama testified that the Applicants’ statements to the Patent Office about Rose were
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`supposedly “defining what blind means, which means a space . . . that is not open around the side.”
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`Dkt. 1376 (“Mot.”), Ex. 1 (Trial Tr. 6/10 a.m.) at 605:1-11. That contradicts the law of the case,
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`as confirmed twice by Judge O’Grady. In particular, Mr. Kodama’s testimony contradicts Judge
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`O’Grady’s claim construction order, which gave each term its plain meaning and held there were
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`no disclaimers based on Rose or any other reference. Dkt. 360 at 1. The Court’s Daubert order
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`likewise held that “the discussion of the ’975 patent [Rose] during the prosecution history was
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`mere criticism and did not expressly disclaim the subject matter of any blind-hole that also
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`contained additional spaces or cavities.” Dkt. 1184 at 23 (emphasis added).
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`
`1 Even if Reynolds or Mr. Kodama did not “use the word ‘disclaim’” at trial, Mr. Kodama’s
`testimony was still improper and contradicts the law of the case. Opp. at 4.
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`2
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`Mr. Kodama’s testimony contradicts the intrinsic evidence. The plain language of claim 1
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`recites the requirements of the claimed “cavity” that is a “blind hole.” There is no mention
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`whatsoever of the number of open sides—let alone a requirement that there be no open sides.
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`Instead, claim 1 requires “at least one cavity in a wall” “for collecting liquid condensate” and the
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`“cavity is a blind hole recessed in the wall.” Dkt. 40-3 at cl. 1. The specification likewise does
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`not mention the number of open sides or a requirement that there be no open sides. Rather, it
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`teaches that a “blind hole” is a type of cavity that “does not extend to the outside of the aerosol
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`generating system.” Dkt. 40-3 at 10:50-56. There is no dispute that the Alto includes that feature.
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`Mot., Ex. 1 (Trial Tr. 6/10 a.m.) at 685:24-686:2.
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`
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`Reynolds asserts that the Alto cannot have a blind hole because Figures 3-4 of the ’911
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`Patent “are relevant to determining the plain and ordinary meaning of patent claims.” Opp. at 5.
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`But, absent disclaimer (Judge’ O’Grady held there is none on three different occasions), those
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`embodiments “cannot limit the scope of the claims” as a matter of law.2 Pulse Elecs., Inc. v. U.D.
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`Elec. Corp., 860 F. App’x 735, 737 (Fed. Cir. 2021). At bottom, Reynolds and Mr. Kodama ignore
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`the controlling law, which holds that “[n]egative limitations should not be accepted … absent
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`‘clear disavowal, disclaimer or estoppel.’” Nuance Commc’ns, Inc. v. Abbyy Software House, Inc.,
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`No. 08-cv-2912, 2012 WL 1188903, at *4 (N.D. Cal. Apr. 9, 2012), aff’d sub nom., 813 F.3d 1368
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`(Fed. Cir. 2016). Nothing in the intrinsic evidence restricts the claimed “blind hole” or “cavity”
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`to structures without open sides.
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`
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`Reynolds’ cited cases (Opp. at 3-4) are inapposite because, unlike here, the experts there
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`did not provide testimony based on a construction that the Court rejected. Wahpeton Canvas Co.,
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`2 Reynolds’ reliance on DeMarini Sports, Inc. v. Worth, Inc. is misplaced because, there, the court
`considered the prosecution file history to interpret the claims but did not limit the disputed claim
`term to any disclosed embodiment. 239 F.3d 1314, 1327 (Fed. Cir. 2001).
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`3
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`Case 1:20-cv-00393-LMB-TCB Document 1394 Filed 07/19/22 Page 7 of 14 PageID# 34742
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`
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`Inc. v. Frontier, Inc., 870 F.2d 1546, 1552 (Fed. Cir. 1989); Level 3 Commc’ns, LLC v. Limelight
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`Networks, Inc., No. 2:07cv589, 2009 WL 10689350, at *6 (E.D. Va. June 23, 2009); Unwired
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`Planet, LLC v. Apple Inc., 829 F.3d 1353, 1358 (Fed. Cir. 2016). Moreover, in Unwired Planet,
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`the court rejected defendant’s attempts to limit the relevant claim term—the Court should do the
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`same here. 829 F.3d at 1358.
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`
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`Second, Reynolds argues that it “presented . . . expert testimony from Mr. Kodama, fact
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`witness testimony from Mr. Hunt, documentary evidence in the form of the ’911 Patent, and the
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`Alto product itself” as evidence of how the Alto’s function does not meet the “cavity is a blind
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`hole” limitation. Opp. at 6. Reynolds is wrong In fact, Mr. Hunt’s testimony that “condensate
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`could form” in the “raised lip areas” of the Alto supports infringement. Mot., Ex. 1 (Trial Tr. 6/10
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`a.m.) at 721:19-23, 741:9-11. As Dr. Abraham explained, the “raised lip areas” in the Alto are the
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`blind hole cavities “for collecting liquid condensate,” as the claims require. Dkt. 40-3 at cl. 1.
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`Dr. Abraham confirmed Mr. Hunt’s testimony by functionally testing the Alto to show condensate
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`trapped and collected in the blind hole cavities of the Alto. Mot., Ex. 3 (Trial Tr. 6/8 p.m.) at
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`223:8-24, 224:8-225:22. And, because Mr. Hunt “was not aware of anyone at Reynolds ever
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`testing whether there was a capillary force in that space in the Alto,” he could not rebut Dr.
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`Abraham’s testing. Opp. at 6. Nor could Mr. Kodama, since he never performed any “functional
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`testing.” Mot., Ex. 1 (Trial Tr. 6/10 a.m.) at 669:18-21, 671:9-13, 690:24-691:1.3 At bottom, there
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`is no dispute that only Dr. Abraham even turned the Alto on to perform basic functional testing to
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`show infringement, which Reynolds’ own cases confirm is important.4 See Fontem Ventures, B.V.
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`3 Reynolds argues that Mr. Kodama “did not need to perform testing to reach his infringement
`opinion, due to his prior extensive experience[.]” Opp. at 7. His “prior experience” has no bearing
`on whether the Alto’s blind hole cavities function to collect liquid condensate, as claimed.
`4 Reynolds cites Summit 6 for the proposition that “disputes over the expert’s credibility or over
`the accuracy of the underlying facts are for the jury.” Opp. at 7 (quoting Summit 6, LLC v. Samsung
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`4
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`

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`Case 1:20-cv-00393-LMB-TCB Document 1394 Filed 07/19/22 Page 8 of 14 PageID# 34743
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`
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`v. NJOY, Inc., No. CV 14-1645-GW(MRWx), 2015 WL 12743861, at *11 (C.D. Cal. Oct. 22,
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`2015) (expert turned on and operated devices); Erfindergemeinschaft UroPep GbR v. Eli Lilly &
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`Co., No. 2:15-CV-1202-WCB, 2017 WL 1050120, at *8 (E.D. Tex. Mar. 17, 2017) (expert relied
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`on testing by others). In contrast, Mr. Kodama relied on no functional testing whatsoever,
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`including second-hand testing.
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`B.
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`There Is No Legally Sufficient Evidence For A Reasonable Juror To Find
`That The Alto Does Not Meet The Cross-Sectional Dimension Element
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`
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`Reynolds admits that Mr. Kodama did not measure the “largest cross-sectional dimension
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`x” from wall-to-wall. Opp. at 8-9. Instead, Reynolds argues “the ’911 Patent contains no
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`requirement that the cross-sectional dimension be measured from wall to wall”5 because a wall-
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`to-wall measurement “is impossible to square with [Philip Morris’] prior claim construction
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`positions” asking the Court to give the terms “wall” and recessed” their plain and ordinary
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`meaning. Opp. at 8-10. That is incorrect. Judge O’Grady rejected Reynolds’ attempt to narrow
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`the terms “wall” and “recessed,” and held instead that they should have their plain meaning. Dkt.
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`360 at 1. That is consistent with Philip Morris’s demonstration that Figures 4 and 6 show how the
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`“largest cross-sectional dimension” of the blind hole cavities are measured from wall-to-wall.
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`
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`Judge O’Grady’s rulings reflect the intrinsic evidence. The plain language of claim 1
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`recites “a cavity.” Dkt. 40-3 at cl. 1. That cavity is “in a wall of the aerosol-forming chamber”
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`and “is a blind hole recessed in the wall of the aerosol-forming chamber and has an open end, a
`
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`Elecs. Co., 802 F.3d 1283, 1299 (Fed. Cir. 2015)). But, here, the issue is that Mr. Kodama
`performed no functional testing—there is no dispute about the accuracy of Dr. Abraham’s testing.
`5 Reynolds cites Jeneric/Pentron for the proposition that “strict numerical boundaries in a patent
`limitation must be applied faithfully.” Opp. at 8 (citing Jeneric/Pentron, Inc. v. Dillon Co., Inc.,
`205 F.3d 1377, 1381 (Fed. Cir. 2000)). Philip Morris and Reynolds agree that claim 1 of the ’911
`Patent specifies a range of sizes for the “largest cross-sectional dimension” of the claimed cavity.
`Mr. Kodama, however, did not measure the cavity from wall-to-wall, as the patent requires.
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`5
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`

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`Case 1:20-cv-00393-LMB-TCB Document 1394 Filed 07/19/22 Page 9 of 14 PageID# 34744
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`closed end, and a longitudinal direction extending between the open end and the closed end.” Id.
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`And that blind hole cavity has “a largest cross-sectional dimension x taken along a cross-section
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`of the cavity in a direction perpendicular to the longitudinal direction of the cavity.” Id. As Dr.
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`Abraham explained, claim 1 repeatedly recites the cavity is in a wall, which “conveys the
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`importance of the wall” because “it’s the walls that help hold the liquid condensate.” Id. Mot.,
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`Ex. 5 (Abraham Demonstrative) at PDX-6.003; Ex. 6 (Trial Tr. 6/13 a.m.) at 836:3-837:6. Based
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`on this context and the claim language that “a largest cross-sectional dimension x” of the cavity is
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`“taken along a cross-section” of the cavity in the wall, the cross-sectional dimension x must be
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`“from one wall to another.” Mot., Ex. 6 (Trial Tr. 6/13 a.m.) at 836:3-837:6.
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`
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`Moreover, Reynolds’ argument and Mr. Kodama’s testimony require excluding the
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`embodiments shown in Figures 4 and 6.6 But it is legal error to “interpret claim terms in a way
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`that excludes embodiments disclosed in the specification.” Oatey Co. v. IPS Corp., 514 F.3d 1271,
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`1276 (Fed. Cir. 2008). In Figure 4, the “largest cross-sectional dimension” is shown from the top
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`to the bottom of the wall forming the shaded circles 305 and 307. Dkt. 40-3 at Figure 4; Dkt. 1376
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`at 11-12. In Figure 6, the “largest cross-sectional dimension” is shown as “the difference between
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`the radius of the outer circle forming the annulus and the radius of the inner circle forming the
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`annulus.” Dkt. 40-3 at 12:42-44, Figure 6; Dkt. 1376 at 12-13. At trial, Dr. Abraham confirmed
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`that the claims show the “largest cross-sectional dimension” must be measured from wall-to-wall
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`when read in light of those figures. Opp., Ex. 1 at 258:14-259:1. Indeed, if the measurement were
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`not made from wall-to-wall, the “largest cross-sectional dimension” shown in Figures 4, 6 (denoted
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`by the letters “x” and “y,” respectively) could be chosen in numerous other ways that would result
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`6 Reynolds cites cases (Opp. at 11-12) for the unremarkable proposition that claims define the
`scope of the patentee’s right. Those cases did not involve interpreting a claim term in a way that
`excludes examples from the patent, as Reynolds does.
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`6
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`

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`Case 1:20-cv-00393-LMB-TCB Document 1394 Filed 07/19/22 Page 10 of 14 PageID# 34745
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`in a larger number. But the ’911 Patent requires a wall-to-wall measurement because, as Dr.
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`Abraham explained, “it’s the walls that help hold the liquid condensate.” Mot., Ex. 5 (Abraham
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`Demonstrative) at PDX-6.003; Ex. 6 (Trial Tr. 6/13 a.m.) at 836:3-837:6. Mr. Kodama’s
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`measurement is incorrect as a matter of law and thus is not legally sufficient evidence to support a
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`non-infringement finding.
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`Reynolds argues that the “largest cross-sectional dimension” “need not be measured from
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`one wall to another” “[i]f such an area need not be bounded by walls on all sides to be a ‘cavity.’”
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`Opp. at 10. Reynolds conflates two different claim terms—(1) a “cavity” and (2) the “largest
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`cross-sectional dimension” for the cavity. Judge O’Grady’s claim construction order held that
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`none of the disputed terms, including “cavity,” “were modified by a clear disclaimer in the
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`prosecution[.]” Dkt. 360 at 1; Dkt. 1184 at 23. That is why a cavity “need not be bounded by
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`walls on all sides.” Opp. at 10. Furthermore, the patent explains that the “largest cross-sectional
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`dimension” must be measured from one wall of the cavity to another because the walls of the blind
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`hole cavities create the capillary forces for holding the liquid condensate. Mot., Ex. 6 (Trial Tr.
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`6/13 a.m.) at 836:3-837:6; Ex. 5 (Abraham Demonstrative) at PDX-6.003; Ex. 3 (Trial Tr. 6/8
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`p.m.) at 192:20-194:6. Because the claims require a “cavity in a wall” and the “cavity is a blind
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`hole recessed in the wall,” it is unsurprising that a feature of this cavity, i.e., its “largest cross-
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`sectional dimension,” requires a wall-to-wall measurement, as shown in Figures 4 and 6. Dkt. 40-
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`3 at Figures 4, 6; Dkt. 1376 at 9-14.
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`C.
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`There Is No Legally Sufficient Evidence For A Reasonable Juror To Find
`That The Alto Does Not Meet The “cavity contains capillary material”
`Element
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`
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`Reynolds argues that Philip Morris “improperly disregards Mr. Kodama’s testimony [that
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`the Alto does not include a capillary material] as ‘conclusory’ based on a lack of ‘functional
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`testing[,] . . . especially given his extensive prior experience in the e-cigarette industry.’” Opp. at
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`7
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`14. This is another strawman. Mr. Kodama’s “prior experience” has no bearing on the factual
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`question of whether the silicone material in the Alto meets the “cavity contains capillary material”
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`element. The evidence shows it does. Indeed, Reynolds admits the “’911 patent’s specification
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`teaches that the ‘capillary material may comprise any suitable material or combination of materials
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`which is able to retain the collected liquid’ in the claimed cavity.”7 Opp. at 13 (citing Dkt. 40-3 at
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`2:36-38). That should be dispositive because unrebutted evidence from Dr. Abraham’s functional
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`testing shows (1) the Alto cavities contain silicone material and (2) this silicone material “retain[s]
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`the collected liquid.” Mot., Ex. 3 (Trial Tr. 6/8 p.m.) at 223:12-24, 229:5-12; Ex. 9, PX-38 at -01.
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`Hence, the silicone in the Alto is a “capillary material,” and the Alto meets this element.
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`
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`Testimony from Reynolds’ own witness, Mr. Hunt, further demonstrates that the Alto
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`meets the “cavity contains capillary material” element. Mr. Hunt explained “condensate could
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`form” on the silicone gasket in the Alto (i.e., in the “raised lip areas” where the Alto’s blind hole
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`cavities are located). Mot., Ex. 1 (Trial Tr. 6/10 a.m.) at 721:19-23, 741:9-11. Reynolds’ own
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`technical documents further explain how the silicone inhibits leakage of condensate around the
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`Alto mouthpiece. Mot., Ex. 3 (Trial Tr. 6/8 p.m.) at 215:19-216:4, 220:11-221:1, 228:21-229:12;
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`Ex. 8, PX-28 at 32. Mr. Kodama’s conclusory testimony that the silicone in the Alto “resist[s]
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`liquid” “is not enough to be even substantial evidence in support of a verdict.” Whitserve, 694
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`F.3d at 24. See Opp., Ex. 1 at 617:23-24.
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`* * *
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`For the reasons above, Philip Morris respectfully submits the Court erred by allowing
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`7 Reynolds’ argument that “it is too late at the JMOL stage to argue for or adopt a new and more
`detailed interpretation of the claim language” (Opp. at 15) is a strawman because it is undisputed
`that the ’911 Patent describes a capillary material as any material that can “retain the collected
`liquid.” Id. at 13.
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`8
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`

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`Case 1:20-cv-00393-LMB-TCB Document 1394 Filed 07/19/22 Page 12 of 14 PageID# 34747
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`Reynolds to improperly argue claim construction to the jury. Philip Morris reserves the right to
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`appeal the Court’s rulings declining to preclude Reynolds and its technical expert from presenting
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`this improper argument and testimony, including (1) denying Philip Morris’ Daubert motion to
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`preclude Reynolds’ experts from presenting opinions that are inconsistent with the Court’s claim
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`construction order (Dkt. 1184 at 20-24), (2) overruling Philip Morris’s objection that Mr.
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`Kodama’s testimony contradicted the Court’s claim construction order, (3) denying Philip Morris’
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`Rule 50(a) motion for judgment as a matter of law that the Alto infringes the ’911 Patent, and
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`(4) denying Philip Morris’ proposed jury instruction that a “blind hole” does not exclude structures
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`with open sides. Opp., Ex. 1 at 658:11-663:6; Ex. 10 (Trial Tr. 6/13 p.m.) at 889:18-894:17;
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`906:10-13; Dkts. 1343-44, 1358. See also Ex. 11 (Trial Tr. 6/13 a.m.) at 861:5-863:21; Ex. 12
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`(Trial Tr. 6/14 a.m. and p.m.) at 1030:7-9, 1031:11-13.
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`III. CONCLUSION
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`Philip Morris requests that the Court grant judgment as a matter of law that the Alto
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`infringes claims 2, 11, and 12 of the ’911 Patent or, alternatively, a new trial on infringement.
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`Dated: July 19, 2022
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` Respectfully submitted,
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`
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`
`
`By: /s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`Lawrence J. Gotts (VSB No. 25337)
`lawrence.gotts@lw.com
`Jamie Underwood (pro hac vice)
`jamie.underwood@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
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`Clement J. Naples (pro hac vice)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
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`Case 1:20-cv-00393-LMB-TCB Document 1394 Filed 07/19/22 Page 13 of 14 PageID# 34748
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`1271 Avenue of the Americas
`New York, NY 10022-4834
`Tel: (212) 906-1200; Fax: (212) 751-4864
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`Gregory J. Sobolski (pro hac vice)
`greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Telephone: (415) 391-0600
`Facsimile: (415) 395-8095
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`Counsel for Plaintiff Philip Morris Products
`S.A.
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`Case 1:20-cv-00393-LMB-TCB Document 1394 Filed 07/19/22 Page 14 of 14 PageID# 34749
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 19th day of July, 2022, a true and correct copy of the foregoing
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`was served using the Court’s CM/ECF system, with electronic notification of such filing to all
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`counsel of record.
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`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
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