`
`Exhibit 23
`
`
`
`Case 1:20-cv-00393-LMB-WEF Document 1462-23 Filed 04/05/23 Page 2 of 4 PageID# 39787
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY
`
`
`Plaintiffs and Counterclaim
`Defendants,
`
`v.
`
`
`
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
`
`Defendants and Counterclaim
`Plaintiffs.
`
`Case No. 1:20-cv-00393-LO-TCB
`
`
`PHILIP MORRIS PRODUCTS S.A.’S THIRD SUPPLEMENTAL OBJECTIONS AND
`RESPONSES TO PLAINTIFFS’ SECOND SET OF INTERROGATORIES (NO. 14)
`
`
`
`CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER
`
`
`
`Case 1:20-cv-00393-LMB-WEF Document 1462-23 Filed 04/05/23 Page 3 of 4 PageID# 39788
`
`
`
`1350, 1368 (Fed. Cir. 2017) (“[A]n alleged infringer who challenges the patentee’s compliance
`
`with § 287 bears an initial burden of production to articulate the products it believes are unmarked
`
`‘patented articles’ subject to § 287.”). Nevertheless, Philip Morris is not presently aware of any
`
`Product made by Philip Morris that practices or embodies any purported invention described or
`
`claimed in the PMP Asserted Patents and subject to the marking requirements of 35 U.S.C. § 287.
`
`Philip Morris’s investigation is ongoing, and Philip Morris’s response is based on
`
`information reasonably available to Philip Morris at this time, and may require subsequent
`
`amendment, modification, or supplementation. Fed. R. Civ. P. 26(e). Philip Morris reserves the
`
`right to supplement and/or amend this response as further information becomes available, and/or
`
`after responsive, non-privileged documents are otherwise produced.
`
`SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 14 (Oct. 23, 2020):
`
`Philip Morris incorporates its prior objections and response to Interrogatory No. 14, and
`
`further states as follows:
`
`Reynolds has not articulated the products that it believes are unmarked and therefore this
`
`interrogatory is premature. Arctic Cat Inc. v. Bombardier Recreational Products Inc., 876 F.3d
`
`1350, 1368 (Fed. Cir. 2017) (“[A]n alleged infringer who challenges the patentee’s compliance
`
`with § 287 bears an initial burden of production to articulate the products it believes are unmarked
`
`‘patented articles’ subject to § 287.”). Nevertheless, Philip Morris is not presently aware of any
`
`product made by Philip Morris, or any former or current owners and/or licensees of the PMP
`
`Asserted Patents (’265, ’556, and ’911 patents), that practices or embodies any purported invention
`
`described or claimed in the PMP Asserted Patents and subject to the marking requirements of 35
`
`U.S.C. § 287.
`
`7
`CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER
`
`
`
`Case 1:20-cv-00393-LMB-WEF Document 1462-23 Filed 04/05/23 Page 4 of 4 PageID# 39789
`
`
`
`Dated: April 6, 2021
`
`
`
`
`
`
`
`By /s/ Maximilian A. Grant
`
`
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`Matthew J. Moore (pro hac vice)
`matthew.moore@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
`
`Clement J. Naples (pro hac vice)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022-4834
`Tel: (212) 906-1200; Fax: (212) 751-4864
`
`Gregory K. Sobolski (pro hac vice)
`Greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (415) 395-8095
`
`Brenda L. Danek (pro hac vice)
`brenda.danek@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Tel: (312) 876-7700; Fax: (312) 993-9767
`
`Counsel for Defendant and Counterclaim
`Plaintiff Philip Morris Products S.A.
`
`10
`CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER
`
`
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