Case 1:20-cv-00393-LMB-WEF Document 1469-5 Filed 04/05/23 Page 1 of 5 PageID# 41163
`Case 1:20-cv-00393-LMB-WEF Document 1469-5 Filed 04/05/23 Page 1 of 5 PagelD# 41163
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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:
`
`Proceedings reported by machine shorthand, transcript produced
`by computer-aided transcription.
`
`Scott L. Wallace, RDR, CRR
`Official Court Reporter
`
`154
`
` C O N T E N T S
`
`
`
`EXAMINATIONS Page
`
`CONTINUED DIRECT EXAMINATION OF MOIRA GILCHRIST 159
`BY MR. GRANT
`CROSS-EXAMINATION OF MOIRA GILCHRIST
`BY MS. PARKER
`REDIRECT EXAMINATION OF MOIRA GILCHRIST
`BY MR. GRANT
`
`169
`
`163
`
`DIRECT EXAMINATION OF JOHN ABRAHAM
`BY MR. SOBOLSKI
`CROSS-EXAMINATION OF JOHN ABRAHAM
`BY MR. MAIORANA
`REDIRECT EXAMINATION OF JOHN ABRAHAM
`BY MR. SOBOLSKI
`
`DIRECT EXAMINATION OF HAROLD WALBRINK
`BY MR. YEH
`
`
` EXHIBITS
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`174
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`242
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`278
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`285
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`DESCRIPTION Page
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`Plaintiff's Exhibit PX 749 admitted
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`16
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`Civil Action
`No. 1:20-cv-00393-LMB/TCB
`
`June 8, 2022
`1:55 p.m.
`
`)))))))))))))
`
`PHILIP MORRIS PRODCUTS S.A.,
`
`
` Counterclaim Plaintiff,
`
` v.
`
`R.J. REYNOLDS VAPOR COMPANY,
`
` Counterclaim Defendant.
`
` VOLUME 1 - AFTERNOON SESSION
`TRANSCRIPT OF JURY TRIAL PROCEEDINGS
`BEFORE THE HONORABLE LEONIE M. BRINKEMA,
`UNITED STATES DISTRICT COURT JUDGE
`
`APPEARANCES:
`
`For the Plaintiffs:
`
`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
`
`152
`
`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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`the left-hand side, that would be the heater. It's a coil of
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`wire that electricity is passed through, and it's wrapped around
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`a bundle of fibers which go through it. That's the white part.
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`And then those fibers extend down into longitudinally along the
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`length of this yellow area on the top and area -- or top and
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`bottom, and that area contains the e-liquid which is transported
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`up to the heater, and when electricity is applied to the heater,
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`it gets hot, and it actually vaporizes the e-liquid, and then of
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`course as you draw on the device on the left-hand side, put it
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`And, Mr. Walbrink, did the '265 Patent describe some
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`Yes. It described in particular that after repeated
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`heating of these fibers, the heater and the fibers would become
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`carbonized, which means they would get soot on them or carbon on
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`up to your mouth, that vapor is sucked into your mouth.
`05:36PM 11 Q.
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`problems with devices like the one you just described?
`05:36PM 13 A.
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`them, and it would affect the taste delivered to the user.
`05:36PM 17 Q.
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`were unable to solve the problems you just described?
`05:37PM 22 A.
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`Now I'm going to put up Slide Number 7 and, this has an
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`excerpt from PX 002, again the '256 Patent in the section called
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`"Prior Art."
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`So Mr. Walbrink, does the '265 Patent tell us why folks
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`Yes. In the prior art, they talk about -- well, first of
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`all, it takes a lot of energy to create a hot fluid stream and
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`adequately vaporize the fluid, and at the time of the invention
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`or at the prior art, the heaters -- the heat exchangers that
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`Now, Mr. Walbrink, to step back for a second, what is a
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`A vaporizer membrane is basically a barrier that allows
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`And would fluids be liquids or gases or both?
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`Yes. They could be.
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`And I think you referred to the thermal resistor as well.
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`05:39PM 1
`thermal resistor -- permeable thermal resistor coil.
`05:39PM 2 Q.
`05:39PM 3
`vaporizer membrane?
`05:39PM 4 A.
`05:39PM 5
`selective passage of fluids.
`05:39PM 6 Q.
`05:39PM 7 A.
`05:39PM 8 Q.
`05:39PM 9
`Can you tell us what a thermal resistor is?
`05:39PM 10 A.
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`as it does, it heats up.
`05:40PM 14 Q.
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`talking about with the older systems?
`05:40PM 17 A.
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`vaporization of the e-liquid.
`05:40PM 21 Q.
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`thermal resistor that you were describing?
`05:40PM 24 A.
`05:41PM 25
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`A thermal resistor is an element, typically metal, that
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`conducts electricity, and when current passes through it, it
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`gets very hot, so it resists the flow of current through it, but
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`And, Mr. Walbrink, how does the vaporizer membrane and
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`thermal resistor of the '265 patents solve the problems we were
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`Well, with this configuration, the fluid is held in the
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`membrane against the heater element, the resistive thermal
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`resistor, and it results in very efficient and complete
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`And I'm going to put up Slide Number 9 now.
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`What details does the '265 Patent provide about the
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`Well, it describes two of them, and they're shown from
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`Figure 1 on the left-hand side of this illustration, and at the
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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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`were available or the means to generate this large amount of
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`heat just were not practical to make a cigarette e-cig that
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`would mimic the experience of holding it in your hands and
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`Now, Mr. Walbrink, you mentioned the term "fluid." Can
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`Oh. Well, a fluid -- fluids are anything that is able to
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`flow. I mean, that's an obvious characteristic. They're
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`typically air flow you talk about, or gas flow, and you also
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`have liquids. Water flows. Other liquids flow. So it can be
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`either gas or it can be a liquid like the e-liquid that we have
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`And did the '265 Patent solve these problems with the
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`Yes. It overcame these problems.
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`Let's take a look at how it did that. So I'm putting up
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`Slide Number 8 now, and this is a annotated figure of Figure 2
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`smoking it like a cigarette.
`05:37PM 5 Q.
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`you tell us what that means?
`05:37PM 7 A.
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`in the e-cigarettes.
`05:38PM 13 Q.
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`older devices that you had described?
`05:38PM 15 A.
`05:38PM 16 Q.
`05:38PM 17
`05:38PM 18
`from the '265 Patent. Can you tell us what this is showing?
`05:38PM 19 A.
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`Yes, this, as you mentioned, is Figure 2 from within the
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`patent. And on the left-hand side you'll see a couple of
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`elements highlighted in colors. First of all, in green you'll
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`see what is called a vaporizer membrane, and the table within
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`the patent calls this a vaporizer membrane. It says it's
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`permeable vaporizer membrane, and then highlighted in red is a
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`thermal resistor, and again in the table it's identified as a
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`top in red you'll see what is called a dual coil as a thermal
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`resistor, and then moving further down towards the bottom of the
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`illustration, you'll see what is highlighted in orange, and the
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`description calls it a sinuous line as a thermal resistor.
`05:41PM 5 Q.
`05:41PM 6
`What is a sinuous line?
`05:41PM 7 A.
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`BY MR. YEH:
`05:41PM 12 Q.
`05:42PM 13
`looked at in forming your opinions for this case?
`05:42PM 14 A.
`05:42PM 15 Q.
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`BY MR. YEH:
`05:42PM 22 Q.
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`your hands?
`05:42PM 24 A.
`05:42PM 25
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`Now, Mr. Walbrink, I think you mentioned a sinuous line.
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`A sinuous line is nothing more than a wavy-type line,
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`curvy line.
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`MR. YEH: And so at this point, I'll change gears a
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`little, so let's take down the slides for a minute.
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`Mr. Walbrink, which of R.J. Reynolds's products have you
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`Yes. In particular, I looked at the Vuse Alto system.
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`And at this point, with Your Honor's permission, I would
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`like to ask the courtroom deputy to hand Mr. Walbrink what was
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`previously admitted as PPX 8 and PPX 9.
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`THE COURT: All right.
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`MR. YEH: Thank you very much.
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`THE WITNESS: Thank you, sir.
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`So, Mr. Walbrink, can you tell us what you have there in
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`Yes, this is the Vuse Alto system. I think you saw it
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`before. And it's comprised of a power unit, and it's comprised
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`And can you tell us what the accused products of '265
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`Well, the accused product is this part of the device.
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`It's the disposable cartridge of the Vuse system.
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`THE COURT: I'm sorry. So that cartridge has both the
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`liquid in it and the element that makes the liquid hot?
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`THE WITNESS: Yes, Your Honor.
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`THE COURT: All right.
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`MR. YEH: And let's take a closer look at that element.
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`If we can pull up Slide PDX 3.010, please.
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`05:42PM 1
`of a cartridge which has a mouthpiece and a heater in it.
`05:42PM 2 Q.
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`Patent is?
`05:42PM 4 A.
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`BY MR. YEH:
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`And so, Mr. Walbrink, I think what we have up here is a
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`demonstrative that has PX 315 shown on there. Can you please
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`explain to the jury what this is showing?
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`THE WITNESS: Yes, this is a promotional piece put out by
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`R.J. Reynolds, and it's talking about the Vuse Alto, and if you
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`look in the upper right-hand corner, it shows that it's a Vuse
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`vapor system and they call it a revolutionary system, but in
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`particular on this right-hand image, pay attention to the top
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`narrated area which is exploded on the left-hand side of this
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`slide, and there are three different elements identified here.
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`First of all, in green is a vaporizer membrane, and that's
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`part of the heater, and that's identified with a green arrow. In
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`red is a sinuous thermal resistor, that's that S or wavy line on
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`this device, and it's my opinion that Claims 1 and 4 of the '265
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`So let's jump right in to Claim 1.
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`MR. YEH: We'll put up Slide Number 12.
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`Mr. Walbrink, what does the first requirement of Claim 1
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`It says, "a vaporizer device for vaporizing a substance
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`And using I think what you have up there with you, the
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`vaporizer -- the Vuse Alto device, can you explain your opinions
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`Yes. Even going back to the previous slide for the
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`promotional, they call it vaporizing system, and it's -- after
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`examining this system with a -- when it's powered by this power
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`system, this cartridge is a vaporizer. It takes the e-liquid,
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`puts it against the heater, and when you draw through the outlet
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`here, it -- the vaporized e-liquid is drawn into your mouth, so
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`Patent are infringed by this device.
`05:46PM 3 Q.
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`BY MR. YEH:
`05:46PM 6 Q.
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`say?
`05:46PM 8 A.
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`containing at least one active and/or aroma material."
`05:47PM 10 Q.
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`with respect to this requirement?
`05:47PM 13 A.
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`it's definitely a vaporizer.
`05:47PM 20 Q.
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`vaporizing device?
`05:48PM 22 A.
`05:48PM 23 Q.
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`material that you've identified?
`05:48PM 25 A.
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`And to be clear, the cartridges are what you call the
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`Yes, this is the vaporizer device.
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`And, Mr. Walbrink, what is the one active and/or aroma
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`Yes, it would be this yellow-amber e-liquid that's
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
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`the back of the membrane. And then up above identified in yellow
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`is the e-liquid that we've talked about.
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`Now, Mr. Walbrink, can you explain in the Vuse Alto how
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`the e-liquid is heated by what you've annotated as a vaporizer
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`Yes, the e-liquid -- as I mentioned, a membrane, is a
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`barrier that transports fluid, so the e-liquid is in contact
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`with that membrane and is transported through it to the back of
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`the membrane where the resistive heating element is positioned,
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`and when the element heats up, current's passed through it, it
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`vaporizes, and if you remember back in the diagram of Figure 2,
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`BY MR. YEH:
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`membrane and sinuous thermal resistor?
`05:45PM 7 A.
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`these are all the elements that are in the '265 Patent.
`05:45PM 14 Q.
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`BY MR. YEH:
`05:45PM 17 Q.
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`the '265 patent did you look at?
`05:46PM 20 A.
`05:46PM 21 Q.
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`Claims 1 and 4 of the '265 Patent?
`05:46PM 23 A.
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`Great.
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`MR. YEH: And let's turn to the next slide.
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`So at this point, let's turn to the claims of the '265
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`Patent. This is Slide 11. First, Mr. Walbrink, which claims of
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`Yes, I looked at Claims 1 and 4 of the 265.
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`And can you summarize your conclusions with respect to
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`Yes. As I examined all the materials in the case and
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`also conducted my own teardown of this cartridge, I found that
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`all the claims of Claim 1 and Claim 4 were actually found in
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`So, Mr. Walbrink, in your opinion, do the Vuse Alto
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`Yes, I find the first limitation met.
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`What does the second requirement of Claim 1 recite?
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`It requires a mouthpiece having at least one fluid inlet
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`and at least one fluid outlet.
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`MR. YEH: Now let's put up Slide Number 13.
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`This has PX 079 shown on it. First, Mr. Walbrink, what
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`This is a photograph of the teardown I did when I took
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`the Vuse cartridge apart, and it's -- basically, the components
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`are separated out, and no e-liquid in it at this point, and it
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`shows the black tip here of the mouthpiece. It's where you
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`actually inhale the vapor, and that is the fluid outlet, and
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`And so going to Slide 14, in your opinion, Mr. Walbrink,
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`did the Vuse Alto accused products meet the limitation or
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`05:48PM 1
`contained within the cartridge.
`05:48PM 2 Q.
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`accused products infringe the first requirement of Claim 1?
`05:48PM 4 A.
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`05:48PM 6 A.
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`BY MR. YEH:
`05:48PM 10 Q.
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`is PX 079 showing?
`05:48PM 12 A.
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`there's a fluid inlet on the left-hand side of this photograph.
`05:49PM 18 Q.
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`requirement beginning "a mouthpiece"?
`05:49PM 21 A.
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`05:49PM 24
`to the mouthpiece.
`05:50PM 25 Q.
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`Yes, I find that limitation is met as well.
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`What does the next requirement of the '265 Patent recite?
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`It requires a heating device configured to be connected
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`So let's take a look at the next slide. This shows
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` C E R T I F I C A T E
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` I, Scott L. Wallace, RDR-CRR, certify that
`the foregoing is a correct transcript from the record of
`proceedings in the above-entitled matter.
`
`
` /s/ Scott L. Wallace 6/9/22
` ---------------------------- ----------------
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