Case 1:20-cv-00393-LO-TCB Document 476-6 Filed 03/10/21 Page 1 of 4 PageID# 10656
`Case 1:20-cv-00393-LO-TCB Document 476-6 Filed 03/10/21 Page 1 of 4 Page|D# 10656
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`EXHIBIT 6
`EXHIBIT 6
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`Case 1:20-cv-00393-LO-TCB Document 476-6 Filed 03/10/21 Page 2 of 4 PageID# 10657
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
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`Before the Honorable Clark S. Cheney
`Administrative Law Judge
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`In the Matter of
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`CERTAIN TOBACCO HEATING
`ARTICLES AND COMPONENTS
`THEREOF
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`Investigation No. 337-TA-1199
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`RESPONDENTS’ POST-HEARING RESPONSIVE BRIEF
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`PUBLIC VERSION
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`Case 1:20-cv-00393-LO-TCB Document 476-6 Filed 03/10/21 Page 3 of 4 PageID# 10658
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`Neither Complainants nor the Staff grapple with the fact that oral tobacco, snus, patches,
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`and gums are all niche products with narrow appeal that are unattractive to many/most consumers
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`who enjoy the CC smoking experience. Complainants ignore the fact that the products they
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`champion as a substitute for IQOS—e-cigarettes—are illegal to sell in the U.S. They ignore that,
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`while many e-cigarettes manufacturers have filed for FDA authorization, e-cigarettes face a highly
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`uncertain regulatory future because their chemistry is variable and insufficiently understood and
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`youth-use remains a large problem. Perhaps most importantly, neither address a smoker’s
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`reality—none of the products they champion provide the CC-like sensory experience that IQOS
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`does. Thus, the evidentiary record demonstrates that none of the alleged IQOS substitutes will
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`appeal to millions of CC smokers, and exclusion of IQOS will leave them to confront the dire
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`health consequences of smoking without a meaningful alternative.
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`On remedy and bond issues, Complainants fail to meet their burden to justify the breadth
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`of their requested remedies. First, Complainants include the HeatStick accessory as an “Accused
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`Product” within the scope of an LEO. But this accessory is not claimed by any Asserted Claim of
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`the ’238 or ’915 patents and is outside the scope of any violation based on those patents. Nor
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`should Respondents be prevented from importing the HeatStick accessory for use in current IQOS
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`systems, in view of well-settled Commission precedent that remedial orders are intended to be
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`prospective and not to punish consumers who purchased products prior to entry of any orders.
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`Second, although Complainants request CDOs as to all Respondents, Complainants have
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`stipulated that ACS and PMP “do not keep, store, hold, warehouse, maintain, or control a
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`commercially significant inventory of the accused products in the United States.” JX-0011C ¶127.
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`Commission precedent confirms that a CDO to either of those Respondents is inappropriate and
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`unnecessary. Third, a price differential analysis confirms that IQOS is sold at higher prices than
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`Case 1:20-cv-00393-LO-TCB Document 476-6 Filed 03/10/21 Page 4 of 4 PageID# 10659
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`Dated: February 26, 2021
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`Respectfully submitted,
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`/s/ Bert C. Reiser
`Maximilian A. Grant
`Bert C. Reiser
`Jamie D. Underwood
`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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`Brenda L. Danek
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Telephone: (312) 876-7700
`Facsimile: (312) 993-9767
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`Counsel for Respondents
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`93
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