Case 1:20-cv-00393-LMB-TCB Document 1394-2 Filed 07/19/22 Page 1 of 6 PageID# 34762
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`Exhibit 11
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`Exhibit 11
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`Case 1:20-cv-00393-LMB-TCB Document 1394-2 Filed 07/19/22 Page 2 of 6 PageID# 34763
`762
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`Civil Action
`No. 1:20-cv-00393-LMB/TCB
`June 13, 2022
`9:23 a.m.
`
`)))))))))))))
`
`PHILIP MORRIS PRODCUTS S.A.,
`
`Counterclaim Plaintiff,
`v.
`R.J. REYNOLDS VAPOR COMPANY,
`
`Counterclaim Defendant.
`
` VOLUME 4 - MORNING SESSION
`TRANSCRIPT OF JURY TRIAL PROCEEDINGS
`BEFORE THE HONORABLE LEONIE M. BRINKEMA,
`UNITED STATES DISTRICT COURT JUDGE
`
`APPEARANCES:
`For the Plaintiffs:
`
`Maximilian Antony Grant, Esq.
`Latham & Watkins LLP (DC)
`555 11th Street, NW
`Suite 1000
`Washington, DC 20004-1304
`202-637-2200
`Email: Max.grant@lw.com
`Clement Joseph Naples, Esq.
`Latham & Watkins, LLP
`885 Third Avenue 25th Floor
`New York, NY 10022
`212-906-1200
`Email: Dement.naples@lw.com
`Gregory K. Sobolski, Esq.
`Latham & Watkins, LLP
`505 Montgomery Street
`Suite 2000
`San Francisco, CA 94111-6538
`202-637-2267
`Email: Max.grant@lw.com
`
`Scott L. Wallace, RDR, CRR
`Official Court Reporter
`
`
`
`Case 1:20-cv-00393-LMB-TCB Document 1394-2 Filed 07/19/22 Page 3 of 6 PageID# 34764
`861
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`That was not an opposed jury instruction. That was an
`agreed instruction, but for the record, is either side objecting
`to that being the way in which claim construction is handled in
`this case?
`MR. GRANT: Your Honor, the only objection I want to
`ensure that's preserved for the record is one that's in our
`written motion, and that's in a proposed jury instruction, which
`is the two findings that Judge O'Grady made, which is, of course,
`experts get to talk about plain meaning. However, he found twice
`that plain meaning of "blind hole" does not exclude and includes
`structures that have open sides, and so we filed a motion on
`that.
`They shouldn't be entitled to argue contrary to that
`finding. We've included a jury instruction, and I do believe
`that if they argue that in closing, we will have preserved the
`issue. That's the only claim construction issue that I see as
`requiring preservation.
`THE COURT: All right. Let me hear from Reynolds on that.
`MR. MAIORANA: Thank you, Your Honor. So this issue about
`the disclaimer is what we talked about on Friday, that the file
`history has been put before all these witnesses with no objection
`from anyone. And then you'll recall Mr. Grant came up after
`Mr. Kodama's direct, and said he had an evidentiary issue and
`started arguing an objection that wasn't made, and I raised Local
`Rule 83.1(j) saying he needs to do the cross.
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
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`Case 1:20-cv-00393-LMB-TCB Document 1394-2 Filed 07/19/22 Page 4 of 6 PageID# 34765
`862
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`It's the same exact issue we've already presented to Your
`Honor, and Your Honor has already denied it. So this -- now they
`filed a motion -- I understand they want to preserve the
`objection, but now we have to respond to a motion on an argument
`that we already won, and I think it's not a good use of the
`Court's time.
`With respect to the plain and ordinary meaning, certainly,
`as you know, Your Honor, we presented claim construction
`arguments to Judge O'Grady in the Markman proceeding, so we would
`like to preserve that we have made those claim constructions and
`that Judge O'Grady found that the claim terms all have their
`plain and ordinary meaning. For purposes of appeal, we want to
`preserve that objection, but we don't have an objection to
`proceeding under Judge O'Grady's Markman order, as you've said.
`THE COURT: All right. Well, I've expressed my
`discomfort, but, again, I feel that has been the law of the case
`for some time, and both sides have an objection to the case going
`in the jury in the format that it's going to go.
`Both sides should think about what that means down the
`road because one of you, I'm assuming -- well, it's possible you
`could both lose, that's actually maybe more than just possible.
`But anyway, I mean, you could have the jury find in either side's
`favor, but of course, that opens up still the right to appeal,
`and this is a wide-open issue in the appellate record, all right?
`And so I just think both sides should be thinking about that.
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
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`Case 1:20-cv-00393-LMB-TCB Document 1394-2 Filed 07/19/22 Page 5 of 6 PageID# 34766
`863
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`If there were a way of cleaning up that record, I would be
`willing to entertain that. Otherwise, that's how it goes to the
`jury, all right?
`MR. MAIORANA: And given that all the evidence is in, Your
`Honor, I don't see a practical way to clean that issue up. I
`completely concur with Your Honor's concern, and given that claim
`construction is de novo, it's going to be considered by the Court
`of Appeals at the Federal Circuit de novo, but we have the order
`from Judge O'Grady that we had to present the evidence based on
`that. Certainly we want to preserve our objections to that, and
`we certainly don't concede or acquiesce to what Mr. Grant just
`said, that Judge O'Grady said a blind hole can never have open
`sides. That's for the jury to decide. That's a question of
`infringement, which is what Judge O'Grady said, and I just want
`to make sure I'm not acquiescing to Mr. Grant's statement.
`THE COURT: I'll look at the papers. Obviously, I want to
`give it careful attention, so the plan is to reconvene at 2:00,
`and again, that should give again, especially my court reporter,
`an opportunity so the transcript issue will not be a problem in
`terms of what was raised earlier, all right? All right. We'll
`see you back at 2:00.
`(Thereupon, a luncheon recess was had beginning at
`12:09 p.m.)
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
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`Case 1:20-cv-00393-LMB-TCB Document 1394-2 Filed 07/19/22 Page 6 of 6 PageID# 34767
`864
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` C E R T I F I C A T E
`
` I, Scott L. Wallace, RDR-CRR, certify that
`the foregoing is a correct transcript from the record of
`proceedings in the above-entitled matter.
`
`6/13/22
` /s/ Scott L. Wallace
` ---------------------------- ----------------
` Scott L. Wallace, RDR, CRR
` Date
` Official Court Reporter
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
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