Case 1:20-cv-00393-LMB-WEF Document 1488 Filed 04/28/23 Page 1 of 15 PageID# 41644
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
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`PHILIP MORRIS PRODUCTS S.A.,
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`Plaintiff,
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`v.
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`
`
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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-WEF
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`
`R.J. REYNOLDS VAPOR COMPANY’S REPLY TO MOTION
`FOR ENTRY OF JUDGMENT UNDER RULE 54(b) AND
`OPPOSITION TO PHILIP MORRIS PRODUCTS S.A.’S CROSS-MOTION
`TO LIFT THE STAY AS TO U.S. PATENT NO. 9,901,123
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`

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`Case 1:20-cv-00393-LMB-WEF Document 1488 Filed 04/28/23 Page 2 of 15 PageID# 41645
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ......................................................................................................................... 1
`ARGUMENT ................................................................................................................................. 2
`I.
`JUDGMENT UNDER RULE 54(b) ON PMP’s PATENTS SHOULD BE
`GRANTED ............................................................................................................ 2
`A.
`PMP Does Not Contest That The Requirements For Rule 54(b) Are
`Met ............................................................................................................. 2
`PMP’s “Equitable” Arguments Are Misplaced ......................................... 3
`B.
`PMP’s REQUEST TO LIFT THE STAY AS TO ONE OF THREE
`REMAINING PATENTS SHOULD BE DENIED ............................................... 4
`A.
`Keeping The Stay In Place Until The Federal Circuit Completes Its
`Review Of The PTAB Decisions Avoids Inefficient, Piecemeal
`Litigation .................................................................................................... 4
`PMP’s Claims Of Prejudice Are Exaggerated And Are The
`Consequences Of Its Own Strategic Decisions .......................................... 7
`CONCLUSION ............................................................................................................................ 10
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`B.
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`II.
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`Case 1:20-cv-00393-LMB-WEF Document 1488 Filed 04/28/23 Page 3 of 15 PageID# 41646
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`CASES
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`TABLE OF AUTHORITIES
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`Page
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`In re Certain Tobacco Heating Articles & Components Thereof,
`Inv. No. 337-TA-1199, 2021 WL 4947427 (U.S.I.T.C. Oct. 19, 2021)
`(Comm’n Op.) ............................................................................................................................8
`
`Mayborn Grp., Ltd. v. U.S.I.T.C.,
`965 F.3d 1350 (Fed. Cir. 2020)..................................................................................................9
`
`MCI Constructors, LLC v. City of Greensboro,
`610 F.3d 849 (4th Cir. 2010) .....................................................................................................3
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`Philip Morris Prods. S.A. v. U.S.I.T.C.,
`63 F.4th 1328 (Fed. Cir. 2023) ..................................................................................................7
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`STATUTES
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`28 U.S.C. § 1292(c)(1) .....................................................................................................................4
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`28 U.S.C. § 1659(a) .........................................................................................................................5
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`OTHER AUTHORITIES
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`Fed. R. Civ. P. 54(b) .............................................................................................................. passim
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`Case 1:20-cv-00393-LMB-WEF Document 1488 Filed 04/28/23 Page 4 of 15 PageID# 41647
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`INTRODUCTION
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`R.J. Reynolds Vapor Company (“RJRV”) respectfully requests that this Court enter
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`judgment under Rule 54(b) on the claims relating to Philip Morris Products S.A.’s (“PMP’s”)
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`asserted patents. PMP does not actually dispute that the requirements for a Rule 54(b) judgment
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`are met. All claims regarding PMP’s asserted patents have been fully resolved by way of the
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`judgments at Dkts. 1415 and 1457, and there is no just reason to delay appeal of all issues
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`pertaining to those patents. PMP cites no reason as to why this Court should defer entry of
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`judgment.
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`Instead, PMP raises a separate issue: PMP seeks to partially lift the stay to litigate one of
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`three remaining Reynolds asserted patents (U.S. Patent No. 9,901,123 (“the ’123 patent”)). But
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`that has no bearing on the Rule 54(b) motion. Even if the stay were partially lifted tomorrow
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`(which it should not be), Rule 54(b) judgment is appropriate now because all issues pertaining to
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`PMP’s patents have been adjudicated and should be appealed together. Thus, Reynolds’s motion
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`should be granted.
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`On the question of PMP’s cross-motion to partially lift the stay, PMP’s requested relief
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`would create piecemeal litigation and may result in multiple additional trials. As a result, that
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`cross-motion should be denied. It is entirely inefficient to lift the stay as to one of three remaining
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`RJRV and RAI Strategic Holdings, LLC (collectively “Reynolds”) patents that are all asserted
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`against the same defendants (PMP, Altria Client Services LLC and Philip Morris USA, Inc.1),
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`asserted against the same products (IQOS), and concern the same activity (importing, selling,
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`offering for sale, and/or distributing the IQOS system in the United States). See Dkt. 52 (Counts
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`1 Altria Client Services LLC and Philip Morris USA, Inc. (collectively “Altria”), did not
`join in PMP’s motion, and Reynolds does not know Altria’s current position as to whether there
`should be a partial lifting of the stay.
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`Three, Four, and Five). This Court stayed the claims as to the ’123 patent (and U.S. Patent No.
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`9,930,915 (“the ’915 patent”) asserted in the ITC and this action) and then subsequently stayed the
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`“entire action, including all claims and counterclaims” to allow challenges to Reynolds’s patents
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`at the Patent Trial and Appeal Board (“PTAB”). Dkt. 432. All three of Reynolds’s remaining
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`asserted patents were the subject of PTAB proceedings, and all three are the subject of pending
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`appeals assigned to the same panel in designated “companion cases” before the Federal Circuit
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`(meaning that they will be argued before the same panel and likely decided at or around the same
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`time).
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`PMP’s equitable arguments do not justify lifting of the stay. It made its own strategic
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`decisions as to what grounds of invalidity to assert and in what forum. Moreover, both the ’123
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`and ’915 patents are bases for the current ITC exclusion order, so even if PMP were successful in
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`invalidating the ’123 patent, it would not affect the exclusion order, contrary to what PMP
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`contends. Thus, the circumstances justifying the stay in December 2020 remain true today. The
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`stay should remain in place pending resolution of the appeals on all three remaining Reynolds
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`patents so that all remaining claims can be litigated and, if needed, tried together.2
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`ARGUMENT
`I. JUDGMENT UNDER RULE 54(b) ON PMP’S PATENTS SHOULD BE GRANTED
`A. PMP Does Not Contest That The Requirements For Rule 54(b) Are Met
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`As explained in RJRV’s opening memorandum (Dkt. 1480), judgment under Rule 54(b)
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`regarding PMP’s asserted patents is appropriate now because both of that Rule’s requirements are
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`undisputedly met: (1) all issues pertaining to PMP’s asserted patents were resolved in judgments
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`that are effectively final as to those claims, and (2) there is no just reason to delay appeal of all
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`2 Reynolds anticipates that the appeals will be decided by Q3 or Q4 of this year, but there
`is no way to predict that timing with certainty.
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`-2-
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`issues pertaining to those patents. See Dkt. 1480 at 5 (citing MCI Constructors, LLC v. City of
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`Greensboro, 610 F.3d 849, 855 (4th Cir. 2010), regarding the two-step inquiry to determine
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`whether Rule 54(b) certification is appropriate).
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`PMP’s opposition does not contest the finality of the judgments regarding its patents. Nor
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`does PMP address any of the five factors that courts in the Fourth Circuit consider in determining
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`whether there is “just reason” for delay of entry of judgment. See Dkt. 1480 at 7-8 (listing the five
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`factors). On the first factor, it is undisputed that the claims pertaining to PMP’s patents and
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`RJRV’s VUSE products are separate and severable from the claims pertaining to Reynolds’s
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`asserted patents and PMP’s accused IQOS products. PMP provides no meaningful dispute on the
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`other four factors. There will be no future developments regarding the PMP patents that will moot
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`the need for appellate review; entry of judgment as to PMP’s patents that are unrelated to RJRV’s
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`patents would not cause duplicative review by the Federal Circuit (indeed, it may avoid duplicative
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`review by the Federal Circuit if PMP appeals this Court’s denial of the injunction); any potential
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`set-off is not going to occur for some time and execution of the current judgment is stayed pending
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`appeal in any event; and PMP provides no discussion of economic and solvency considerations,
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`length of trial, expense, or other miscellaneous factors considered by the courts that would provide
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`a reason for delay.
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`B. PMP’s “Equitable” Arguments Are Misplaced
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`Instead of contesting the merits of the Rule 54(b) motion, PMP diverts. PMP claims it
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`would not be “equitable” for the Court to exercise discretion to enter a Rule 54(b) judgment on
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`PMP’s asserted claims unless it also permits piecemeal litigation as to Reynolds’s own asserted
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`patents. The two are not related. RJRV sought this 54(b) motion for two main reasons. First,
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`RJRV needed clarity as to RJRV’s deadline to appeal what the Court described as an “Order
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`constitut[ing] the Final Judgment in this civil action for appellate purposes” and directed the Clerk
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`-3-
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`to “close this civil action.” Dkt. 1456 at 2. Second, RJRV seeks to clearly ensure that all issues
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`with respect to PMP’s patents can be appealed simultaneously given PMP’s ability to immediately
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`appeal the Court’s denial of PMP’s requested injunction. See Dkt. 1480 at 1 n.1; see also 28 U.S.C.
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`§ 1292(c)(1). Both of these bases remain, regardless of whether the Court grants PMP’s requested
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`partial lift of the stay.
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`PMP’s argument rests on an alleged “windfall” to RJRV in “avoid[ing] royalty payments
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`for its infringing sales by obtaining a partial judgment.” Dkt. 1485 at 1, 6. This argument makes
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`no sense. The timing of RJRV’s appeal on the PMP patents does not impact its ultimate liability
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`for any past or future royalties—it is Reynolds’s success or failure of its appeal as to the PMP
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`patents that will impact what royalties, if any, Reynolds ultimately would need to pay. Whether
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`the appeal on PMP’s patents begins now or sometime in the future, royalties are accruing and will
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`continue to accrue, while Reynolds’s actual payment of royalties is stayed pending appeals3 and
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`unchanged. Simply put, an earlier appeal does not permit Reynolds to “avoid royalty payments.”
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`Accordingly, PMP has not articulated any plausible reason to deny entry of a Rule 54(b) judgment.
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`II. PMP’S REQUEST TO LIFT THE STAY AS TO ONE OF THREE REMAINING
`PATENTS SHOULD BE DENIED
`A. Keeping The Stay In Place Until The Federal Circuit Completes Its Review Of The
`PTAB Decisions Avoids Inefficient, Piecemeal Litigation
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`This Court should deny PMP’s request to partially lift the stay with respect to the ’123
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`patent because it would be inefficient to piecemeal litigate the claims and counterclaims pertaining
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`3 Execution of the judgment on PMP’s claims, including the ongoing royalties, is stayed
`pending appeal in accordance with the parties’ joint stipulation for a stay of execution as approved
`by the Court. See Dkt. 1384 at 2 (providing that “Reynolds shall not be required to provide a
`supersedeas bond or other security as a condition of staying execution on the Judgment or
`proceedings to enforce it pending the Court’s resolution of all post-Judgment motions filed and
`any appeal taken by either party” and that “Philip Morris shall not make any attempt or effort to
`execute on or enforce the Judgment—or payment of any ongoing royalties . . . before 14 days after
`the final termination of all appeals in this case”).
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`-4-
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`to Reynolds’s remaining three asserted patents (the ’123 patent, the ’915 patent, and U.S. Patent
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`No. 10,492,542 (“the ’542 patent”)) while PTAB appeals involving those very three patents remain
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`pending. All three of those patents are asserted against the same defendants (PMP and Altria),
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`asserted against the same products (IQOS), and concern the same activity (importing, selling,
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`offering for sale, and/or distributing the IQOS system in the United States). See Dkt. 52 (Counts
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`Three, Four, and Five). The Federal Circuit has designated the three appeals “companion cases
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`and assigned [the appeals] to the same merits panel.” Ex. 1 (Federal Circuit Order). Briefing on
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`the appeals is complete, and this Court should wait for the Federal Circuit to complete its review
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`of the three remaining Reynolds patents, so that all remaining claims can be litigated and tried
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`together, preserving the Court’s and the parties’ resources.
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`The Court’s reasoning in staying the claims relating to Reynolds’s patents as part of a stay
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`of the entire action in December 2020 remains true today. PMP ignores the second of the two
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`stays entered by Judge O’Grady in this case. Judge O’Grady first entered a stay as to the ’123 and
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`’915 patents per 28 U.S.C. § 1659(a) due to the ITC litigation. Dkt. 27. But the Court subsequently
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`stayed the “entire action, including all claims and counterclaims,” due to collateral PTAB
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`litigation. Dkt. 432. PMP does not address this second stay Order, and essentially ignores the
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`reasoning and arguments it made to obtain that stay. Instead, PMP invites multiple additional trials
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`by splitting up the three remaining Reynolds patents. But allowing the Federal Circuit to resolve
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`issues as to all three remaining patents asserted against the same defendants, same products, and
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`same activity would be most efficient.
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`PMP’s arguments that the pending appeals related to the ’915 and ’542 patents should not
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`factor into preserving the stay are without merit. First, PMP’s argument that “the ’542 patent was
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`not at issue in the ITC and thus has no bearing on lifting the ’123 patent stay,” Dkt. 1485 at 10
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`-5-
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`(PMP’s emphasis), ignores that Reynolds asserts the claims of all three patents against PMP’s
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`same products and same infringing activity. Reynolds seeks damages for this infringement and
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`splitting the litigation onto two tracks resulting in two potential trials—one for the ’123 patent,
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`and another for the ’915 and ’542 patents—would needlessly complicate the litigation for
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`everyone, while impairing Reynolds’s ability to present a unified case on infringement based on
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`all of its asserted patents.
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`Second, PMP speculates, without basis, that the PTAB “appeals are highly unlikely to
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`succeed.” Dkt. 1485 at 10. As this Court has already stated, it “cannot base a finding . . . on
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`speculation about the Federal Circuit’s decision[s] and will not weigh in on the strength of
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`[pending] appeal[s].” Dkt. 1455 at 7 (discussing irreparable harm). PMP’s preferred outcome of
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`the pending appeals should not factor into whether the Court lifts the previously ordered stay.
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`Finally, despite PMP’s claim that “discovery on the ’123 patent is largely complete,” there
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`is significant work and resources to be expended ahead in litigating the ’123 patent as well as the
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`’915 and ’542 patents, and those resources would be most efficiently used in litigating the patents
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`together. Discovery relating to the ’123 patent in the ITC action is not co-extensive with the
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`discovery needed on that patent in this action. For instance, the ITC action did not include
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`comprehensive damages-related fact or expert discovery. And PMP admits that it plans to present
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`new invalidity grounds, which would require new fact and expert discovery and expert reports.
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`The parties, of course, would then need time to engage in summary judgment motions, pre-trial
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`preparations, and trial itself. As PMP argued in its request for a stay, “‘a substantial portion of
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`the work—expert discovery, summary judgment, pre-trial preparation, and trial itself’—remains
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`ahead.” Dkt. 375 at 9.
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`-6-
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`B. PMP’s Claims Of Prejudice Are Exaggerated And Are The Consequences Of Its
`Own Strategic Decisions
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`PMP exaggerates the source and extent of any prejudice it faces. The “prejudice” PMP
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`points to is caused by its own strategic decisions throughout the parties’ litigation and ignores the
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`various opportunities it has had to be heard on invalidity in numerous fora. And even if PMP were
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`right about its assertions of prejudice, it would not overcome the important interests of the Court
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`and the parties in avoiding piecemeal litigation.
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`PMP is the source of any prejudice it faces. Throughout the parties’ multivenue
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`litigations, PMP has made strategic decisions on where and how to challenge the validity of
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`Reynolds’s asserted patents, including the ’123 patent. To be clear, PMP did in fact substantively
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`challenge the validity of the ’123 patent in the ITC proceedings, and PMP attempted to do so in
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`the PTAB. At the ITC, the Administrative Law Judge rejected PMP’s challenges and upheld the
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`validity of the ’123 patent, as did the full Commission, as did the Federal Circuit on PMP’s appeal.
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`Philip Morris Prods. S.A. v. U.S.I.T.C., 63 F.4th 1328, 1342-48 (Fed. Cir. 2023). At the PTAB,
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`the Board denied institution. PMP now claims that it did not present its “strong” theories of
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`invalidity in those ITC proceedings. But, PMP could have done so. It was PMP alone who chose
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`to drop its purportedly “strong” grounds of invalidity in the ITC action to pursue a patentability
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`challenge at the PTAB in an attempt to receive the benefits that a patent challenger receives there.
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`See Dkt. 1485-3 at 4 (“Petitioner, however, has chosen to litigate the IPR grounds at the PTAB:
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`its final ITC contentions . . . do not raise the same grounds as the IPR.”) (first emphasis added).
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`That PMP’s strategy failed to pay off, resulting in a self-inflicted supposedly conscribed review of
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`these theories at the ITC and no institution at the PTAB, is not prejudice caused by the stay.
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`PMP exaggerates the extent of any prejudice. As discussed above, PMP has already
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`challenged and had the opportunity to challenge the validity of the ’123 patent—first at the ITC
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`-7-
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`(and on appeal to the Federal Circuit) and then at the PTAB. Failing to prove its invalidity case
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`twice, PMP now wants to accelerate its third bite at the apple, regardless of the inefficiencies in
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`doing so. But PMP’s rush to litigate the validity of the claims again here does not justify the Court
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`and Reynolds wasting their resources on two-track litigation resulting in potential multiple trials
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`when there could be a single litigation with (at most) a single trial following the Federal Circuit’s
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`decisions.
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`To begin, invalidation of the asserted claims of the ’123 patent in this action would not
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`result in an immediate lifting of the current exclusion order as PMP contends. PMP argues that it
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`“should be allowed to prove the invalidity of the ’123 patent . . . and, once proven, reintroduce its
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`IQOS HNB Products.” Dkt. 1485 at 1. But this wholly ignores that the ITC found that PMP failed
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`to prove invalidity of the ’915 patent, and that IQOS infringes the ’915 patent, providing an
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`alternative and independent basis for the current ITC exclusion order. See In re Certain Tobacco
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`Heating Articles & Components Thereof, Inv. No. 337-TA-1199, 2021 WL 4947427, at *3
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`(U.S.I.T.C. Oct. 19, 2021) (Comm’n Op.). In fact, the ITC has already denied PMP’s attempt to
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`stay its remedial order one patent at a time based exclusively on the PTAB’s decision concerning
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`the ’915 patent. The ITC noted that “PTAB decisions that occur[] after the issuance of the
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`Commission’s remedial orders fail[] to demonstrate a changed circumstance warranting
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`suspension of the Commission’s orders.” Ex. 2 (Comm’n Op. denying motion to stay) at 13 n.5.
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`(The Federal Circuit did not disturb that decision. See Ex. 3, Philip Morris Prods. S.A. v.
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`U.S.I.T.C., No. 22-1227, Dkt. 28 at 2 (Fed. Cir. Jan. 25, 2022).) Given that the ITC refused to stay
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`its exclusion order in light of an adverse PTAB decision on the ’915 patent, which is currently on
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`review to the Federal Circuit on the same track as the ’123 patent and will similarly resolve issues
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`-8-
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`pending in this case, there is no reason for this Court to the rush ahead on the ’123 patent on even
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`weaker grounds—PMP’s self-proclaimed “strong” invalidity theories.
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`In any event, the ITC would only consider an invalidity judgment of this Court—if PMP
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`in fact proves invalidity. Contrary to PMP’s assertions, this is by no means a guarantee. As PMP
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`admits, it plans to advance untested invalidity theories whenever the stay is lifted in this case. See
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`Dkt. 1485 at 8-9. And these untested theories face a high hurdle because, prior to any judgment
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`issuing, PMP must survive summary judgment (and any other pretrial motions) and prove
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`invalidity by clear and convincing evidence for each and every claim of the ’123 patent
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`underpinning the ITC’s exclusion order to a jury. Only then would the ITC consider whether the
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`district court’s invalidity judgment created changed circumstances justifying a change to its
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`exclusion order.4
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`Finally, the posture of the cross-motion underscores the lack of urgency in PMP’s request.
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`PMP conditions its request on whether Reynolds’s motion is granted. Id. at 11 (“[I]f the Court
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`grants RJRV’s Motion, PMP respectfully requests that the Court should also grant PMP’s Cross-
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`Motion . . . .”). If PMP believed lifting stay was warranted, it could have moved after it received
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`the March 31, 2023 Federal Circuit decision affirming the ITC decision, regardless of any Rule
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`54(b) motion by Reynolds. PMP’s motion to lift the stay is unrelated to Reynolds’s Rule 54(b)
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`and should be denied.
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`4 PMP claims that district court decisions are “binding as collateral estoppel on the ITC.”
`Dkt. 1485 at 9. Not so. The ITC permits “a person to petition for recission or modification of an
`exclusion order when the person ‘believes that changed conditions of fact or law, or the public
`interest, require that an exclusion order . . . be modified or set aside.’” Mayborn Grp., Ltd. v.
`U.S.I.T.C., 965 F.3d 1350, 1356 (Fed. Cir. 2020). Recission of an exclusion order is not automatic.
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`-9-
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`CONCLUSION
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`For the foregoing reasons, RJRV respectfully requests that this Court enter judgment under
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`Rule 54(b) with respect to PMP’s asserted patents and deny PMP’s cross-motion to lift the stay as
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`to the ’123 patent.
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`-10-
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`Case 1:20-cv-00393-LMB-WEF Document 1488 Filed 04/28/23 Page 14 of 15 PageID# 41657
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`Dated: April 28, 2023
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`
`
`Stephanie E. Parker
`Jason T. Burnette
`JONES DAY
`1221 Peachtree Street, N.E.
`Suite 400
`Atlanta, GA 30361
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
`Email: jtburnette@jonesday.com
`
`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`Email: aminsogna@jonesday.com
`
`William E. Devitt
`JONES DAY
`110 N. Wacker Drive
`Suite 4800
`Chicago, IL 60606
`Telephone: (312) 269-4240
`Facsimile: (312) 782-8585
`Email: wdevitt@jonesday.com
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`/s/ David M. Maiorana
`
`David M. Maiorana (VA Bar No. 42334)
`Ryan B. McCrum
`JONES DAY
`901 Lakeside Avenue
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`Email: rbmccrum@jonesday.com
`
`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
`
`Alexis A. Smith
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`Telephone: (213) 243-2653
`Facsimile: (213) 243-2539
`Email: asmith@jonesday.com
`
`Charles B. Molster, III
`THE LAW OFFICES OF
`CHARLES B. MOLSTER, III PLLC
`2141 Wisconsin Avenue, N.W. Suite M
`Washington, DC 20007
`Telephone: (703) 346-1505
`Email: cmolster@molsterlaw.com
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`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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`-11-
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`Case 1:20-cv-00393-LMB-WEF Document 1488 Filed 04/28/23 Page 15 of 15 PageID# 41658
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 28th day of April, 2023, 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/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
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`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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`-12-
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