Case 1:20-cv-00393-LO-TCB Document 696-12 Filed 06/02/21 Page 1 of 12 PageID# 17085
`Case 1:20-cv-00393-LO-TCB Document 696-12 Filed 06/02/21 Page 1 of 12 Page|D# 17085
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`EXHIBIT 20
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`EXHIBIT 20
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`Case 1:20-cv-00393-LO-TCB Document 696-12 Filed 06/02/21 Page 2 of 12 PageID# 17086
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
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`Plaintiffs and Counterclaim
`Defendants,
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`v.
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
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`Defendants and Counterclaim
`Plaintiffs.
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`Case No. 1:20-cv-00393-LO-TCB
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`ALTRIA CLIENT SERVICES LLC, PHILIP MORRIS USA, INC., AND
`PHILIP MORRIS PRODUCTS S.A.’S SECOND SET OF
`INTERROGATORIES (NOS. 19-21)
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`Pursuant to Federal Rules of Civil Procedure 26 and 33, Altria Client Services LLC, Philip
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`Morris USA Inc., and Philip Morris Products S.A. request that RAI Strategic Holdings, Inc. and
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`R.J. Reynolds Vapor Company answer each interrogatory set forth below separately and fully, in
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`writing and under oath, in accordance with the definitions and instructions contained herein, within
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`thirty (30) days after service of the interrogatories. Altria Client Services LLC, Philip Morris USA
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`Inc., and Philip Morris Products S.A. request that RAI Strategic Holdings, Inc. and R.J. Reynolds
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`Vapor Company make any production of documents in connection with answers to these
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`interrogatories at the office of Latham & Watkins LLP, 555 Eleventh Street NW, Suite 1000,
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`Washington, DC 20004.
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`Case 1:20-cv-00393-LO-TCB Document 696-12 Filed 06/02/21 Page 3 of 12 PageID# 17087
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`DEFINITIONS
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`As used herein and all further interrogatories, unless specified otherwise, the following
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`definitions apply:
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`1.
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`The terms “You,” “Plaintiffs,” “Counterclaim Defendants,” and “RJR” refer
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`collectively to RAI Strategic Holdings, Inc. (“RAI”) and R.J. Reynolds Vapor Company
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`(“RJRV”), their predecessors-in-interest, subsidiaries, joint ventures, affiliates, and other legal
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`entities that are wholly or partially owned or controlled by RAI, RJRV, and/or R.J. Reynolds
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`Tobacco Company, either directly or indirectly, and the principals, directors, officers, owners,
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`members, representatives, employees, agents, consultants, accountants, and attorneys of these
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`same entities.
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`2.
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`The terms “Defendants” and “Counterclaim Plaintiffs” refer collectively to Altria
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`Client Services LLC (“ACS”), Philip Morris USA Inc. (“PM USA”), and Philip Morris Products
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`S.A. (“PMP”).
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`3.
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`4.
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`5.
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`6.
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`7.
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`8.
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`9.
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`References to this “lawsuit,” “case,” or “action” mean the above-captioned action.
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`The “’265 patent” means U.S. Patent No. 9,814,265.
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`The “’556 patent” means U.S. Patent No. 10,555,556.
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`The “’911 patent” means U.S. Patent No. 10,104,911.
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`The “’545 patent” means U.S. Patent No. 6,803,545.
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`The “’374 patent” means U.S. Patent No. 10,420,374.
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`The “Counterclaim Asserted Patent(s)” means the ’265 patent, the ’556 patent, the
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`’911 patent, the ’545 patent, and the ’374 patent, collectively, any other patent that may be added
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`to this litigation by Counterclaim Plaintiffs, and the applications that led to the issuance of any of
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`the foregoing patents.
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`2
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`10.
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`“Counterclaim Asserted Claim(s)” means each asserted claim of each Counterclaim
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`Asserted Patent.
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`11.
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`12.
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`13.
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`The “’268 patent” means U.S. Patent No. 9,814,268.
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`The “’542 patent” means U.S. Patent No. 10,492,542.
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`The “RJR Asserted Patent(s)” means the ’268 patent, and the ’542 patent
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`collectively, any other patent that may be added to this litigation by Plaintiffs in amended
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`pleadings, and the applications that led to any of the foregoing patents.1
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`14.
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`“RJR Asserted Claim(s)” mean each claim of each RJR Asserted Patent that
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`Plaintiffs allege Defendants infringe, either directly or indirectly, literally or by the doctrine of
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`equivalents.
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`15.
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`“Infringe,” “infringing,” “infringed,” or “infringement” means direct infringement,
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`indirect infringement, contributory infringement, induced infringement, literal infringement and/or
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`infringement under the doctrine of equivalents.
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`16.
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`“Prior Art” is used in these Interrogatories in the same sense that it is used in 35
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`U.S.C. §§ 102 or 103 and includes without limitation, any patent, publication, physical device,
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`prototype, knowledge, use, sale, offer for sale, any documents or other items evidencing any of the
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`foregoing, and/or any other act or event defined in 35 U.S.C. § 102, taken singly or in combination,
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`and having or occurring at a date such as to be potentially relevant under any subsection of 35
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`U.S.C. §§ 102 or 103.
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`1 RJR has additionally asserted U.S. Patent Nos. 9,839,238 (“the ’238 patent”); 9,901,123 (“the
`’123 patent”); and 9,930,915 (“the ’915 patent”). These patents have been stayed until the
`determination of the International Trade Commission in In the Matter of Certain Tobacco Heating
`Articles and Components Thereof (Inv. No. 337-TA-1199) becomes final. Once the stay is lifted,
`the term “RJR Asserted Patent(s),” as used in this document, will further encompass the ’238
`patent, ’123 patent, and ’915 patent.
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`3
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`17.
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`“RJR Accused Product(s)” refers to any RJR Product Counterclaim Plaintiffs
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`contend infringe any Counterclaim Asserted Claim(s), including but not limited to the VUSE
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`VIBE, VUSE SOLO, VUSE CIRO, and VUSE ALTO devices, as well as Flavor Packs and power
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`units associated with those products.
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`18.
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`“Accused Product(s)” means any of Counterclaim Plaintiffs’ products that
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`Counterclaim Defendants contend infringe any RJR Asserted Claims, including but not limited to
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`the IQOS System and associated tobacco sticks identified in ¶¶ 20-33 of the Amended Complaint.
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`19.
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`“RJR Covered Product(s)” refers to any Product that Plaintiffs contend practices or
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`embodies any purported invention described or claimed in the RJR Asserted Patents, including
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`any Products made by Plaintiffs or third parties.
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`20.
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`“Product” means any machine, manufacture, apparatus, device, system, process,
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`service, method, or instrumentality which is designed to function together electrically,
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`mechanically, chemically, or otherwise, to achieve a particular function or purpose, including
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`those offered for sale, sold, imported, or under development.
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`21.
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`22.
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`“Person” or “individual” means any natural person.
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`“Document” is synonymous in meaning and equal in scope to the usage of the term
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`“documents or electronically stored information” in Rule 34(a)(l)(A) of the Federal Rules of Civil
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`Procedure. A draft or non-identical copy is a separate document within the meaning of this term.
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`By way of illustration, and without limitation, documents include at least the following: originals,
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`drafts, and all non-identical copies of memoranda, reports, notes, graphs, laboratory notebooks,
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`correspondence, interoffice communications, letters, diaries, calendars, photographs, motion
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`pictures, sketches, drawings, promotional material, technical papers, printed publications, patents,
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`records, reports, and all other writings, as well as all non-paper information storage means such as
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`4
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`sound reproductions, computer inputs and outputs, tape, film and computer memory devices, as
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`well as tangible things such as models, modules, prototypes, and commercially saleable products.
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`23.
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`“Thing” shall mean any tangible item, including without limitation, models,
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`prototypes and samples of any device or apparatus or product.
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`24.
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`The term “Communication” means every manner or method of the disclosure,
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`transfer, or exchange of information, whether orally, electronically, or by Document, and whether
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`face to face or by telephone, mail, facsimile, E-mail, video, instant message, internet
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`Communication, or otherwise.
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`INSTRUCTIONS
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`1.
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`The following shall apply to all Interrogatories:
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`a.
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`The singular of any word includes its plural, and vice versa, to bring within
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`the scope of these Interrogatories any information that might otherwise be
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`deemed outside their scope;
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`b.
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`The terms “and” and “or” shall be construed either conjunctively or
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`disjunctively, to bring within the scope of these Interrogatories any
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`information that might otherwise be deemed outside their scope;
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`c.
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`The terms “all,” “any,” and “each” shall be construed as encompassing any
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`and all to bring within the scope of these Interrogatories any information
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`that might otherwise be deemed outside their scope;
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`d.
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`“Including” shall not be used to limit any general category or description
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`that precedes it and shall mean “including without limitation” so as to be
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`inclusive; and
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`e.
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`The present tense shall be construed to include the past tense and vice versa.
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`5
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`2.
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`Each Interrogatory shall operate and be responded to independently and, unless
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`otherwise indicated, no Interrogatory limits the scope of any other Interrogatory.
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`3.
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`All Interrogatories are to be understood as requesting information in Your
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`possession, custody, or control, and the request extends to knowledge or information in the
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`possession of your predecessors-in-interest and/or successors.
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`4.
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`In answering the following Interrogatories, You shall furnish all available
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`information, including information in the possession, custody, or control of any of Your attorneys,
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`directors, officers, agents, employees, representatives, associates, investigators or division
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`affiliates, partnerships, parents or subsidiaries, and persons under Your control, who have the best
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`knowledge, not merely information known to You based on Your own personal knowledge. If
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`You cannot fully respond to the following Interrogatories after exercising due diligence to secure
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`the information requested thereby, so state, and specify the portion of each Interrogatories that
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`cannot be responded to fully and completely. In the latter event, state what efforts were made to
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`obtain the requested information and the Facts relied upon that support any contention that the
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`Interrogatories cannot be answered fully and completely, and state what knowledge, information
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`or belief You have concerning the unanswered portion of any such Interrogatories.
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`5.
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`If any information requested is claimed to be privileged or otherwise immune from
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`discovery, please provide all information falling within the scope of the Interrogatory which is not
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`privileged, and for each item of information contained in a document or communication to which
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`a claim of privilege is made, identify such document or communication with sufficient particularity
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`for purposes of a motion to compel in accordance with Federal Rule of Civil Procedure 26(b)(5).
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`6
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`Case 1:20-cv-00393-LO-TCB Document 696-12 Filed 06/02/21 Page 8 of 12 PageID# 17092
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`6.
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`If any Interrogatory is ambiguous or unclear to You, please contact undersigned
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`counsel as soon as possible so that the Interrogatory can be clarified to avoid unnecessary delays
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`in discovery.
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`7.
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`Your obligation to respond to these Interrogatories is continuing and Your
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`responses are to be supplemented to include subsequently acquired information in accordance with
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`the requirements of Rule 26(e) of the Federal Rules of Civil Procedure.
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`8.
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`To the extent You contend that any Interrogatory consists of multiple discrete
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`subparts, You are to state in Your objections to that Interrogatory Your contention as to the number
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`of subparts for that Interrogatory and the basis for Your contention.
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`9.
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`If You elect to specify and produce business records in answer to any Interrogatory,
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`the specification shall be in sufficient detail to permit Defendants/Counterclaim Plaintiffs to locate
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`and identify, as readily as You can enable, the business records from which the answer may be
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`ascertained.
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`10.
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`If in answering any Interrogatory, You seek to invoke the procedures of Rule 33(d)
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`of the Federal Rules of Civil Procedure, state fully all facts which support your contention that the
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`burden of ascertaining the answer to the Interrogatory is substantially the same for
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`Defendants/Counterclaim Plaintiffs as it is for you, and specify those business records from which
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`You contend Defendants/Counterclaim Plaintiffs may ascertain or derive the answer.
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`11.
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`If any objection is made to any Interrogatory herein, the objection shall state with
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`particularity the basis therefore, and the Interrogatory shall be answered to the extent not objected
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`to.
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`7
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`Case 1:20-cv-00393-LO-TCB Document 696-12 Filed 06/02/21 Page 9 of 12 PageID# 17093
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`12.
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`If You do not agree with any definition of the terms provided herein, You are
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`instructed to provide a reasonable, alternative definition for that term, consistent with industry
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`custom and usage.
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`13.
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`Each of the definitions and instructions contained herein shall be fully applicable
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`to each Interrogatory notwithstanding that a definition or instruction above may, in whole or in
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`part, be reiterated in a particular Interrogatory and notwithstanding that a particular Interrogatory
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`may incorporate supplemental instructions or definitions. If, however, You provided any alternate
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`definitions in accordance with these instructions, indicate whether and how, any answer to any
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`Interrogatory would differ if You relied on Your alternate definition in responding to that
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`Interrogatory instead of the definitions provided.
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`INTERROGATORIES
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`INTERROGATORY NO. 19:
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`Identify each license, covenant not to sue, and release of rights granted; each offer or
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`attempt to license, covenant, or release of rights (whether or not the offer or attempt has resulted
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`in a license, covenant, or release); and each other agreement (including, but not limited to,
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`settlement agreements or joint development or undertakings), relating to any RJR Asserted Patent
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`or any subject matter that Plaintiffs contend is comparable to the RJR Asserted Patent. For each
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`such agreement, grant, and offer, please identify the consideration paid or proposed to be paid; any
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`proposed or actual royalty rate or payment; any actual or projected revenues or profits; any
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`proposed or actual discount or other offer to deviate from any standard royalty rates; the Person
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`involved in the negotiation; the Bates number(s) for each such agreement, grant, and offer; and
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`each Document and thing concerning each such agreement, grant, offer, or attempt to license,
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`covenant, or release.
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`8
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`Case 1:20-cv-00393-LO-TCB Document 696-12 Filed 06/02/21 Page 10 of 12 PageID# 17094
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`INTERROGATORY NO. 20:
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`Describe and identify any puff sensor assembly (as identified in Dkt. No. 66 ¶¶ 28-47) in
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`each of the RJR Accused Products, including, but not limited to, the manufacturer, designer,
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`components, properties, dimensions, operation, and materials comprising the puff sensor (as
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`identified in Dkt. No. 66 ¶¶ 28-47); any semiconductor device of the puff sensor assembly used
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`for detecting an inhale or an exhale and how such device detects an inhale or an exhale, including,
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`but not limited to, any specifications describing voltage changes resulting from an inhale from the
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`mouthpiece, voltage changes resulting from an exhale from the mouthpiece, capacitance changes
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`resulting from an inhale into the mouthpiece, capacitance changes resulting from an exhale into
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`the mouthpiece, physical changes in the puff sensor resulting from an inhale, and physical changes
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`in the puff sensor resulting from an exhale; the manufacturer, designer, programmer, structure,
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`databases, and logic tables of the semiconductor devices and source code involved in each of the
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`RJR Accused Product; and an identification of the three (3) Persons most knowledgeable
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`concerning these technologies.
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`INTERROGATORY NO. 21
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`Separately for each of the Counterclaim Asserted Patents, state all affirmative defenses in
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`response to the allegations in Counterclaim Plaintiffs’ counterclaims, identify all factual bases for
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`those affirmative defenses, and identify all Documents You may rely upon as evidence in support
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`of Your affirmative defenses.
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`Dated: September 29, 2020
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`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`Matthew J. Moore (pro hac vice pending)
`matthew.moore@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
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`9
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`Case 1:20-cv-00393-LO-TCB Document 696-12 Filed 06/02/21 Page 11 of 12 PageID# 17095
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`Tel: (202) 637-2200; Fax: (202) 637-2201
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`Clement J. Naples (pro hac vice pending)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022-4834
`Tel: (212) 906-1200; Fax: (212) 751-4864
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`Gregory K. Sobolski (pro hac vice pending)
`Gregory.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (415) 395-8095
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`Brenda L. Danek (pro hac vice pending)
`brenda.danek@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Tel: (312) 876-7700; Fax: (312) 993-9767
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`Counsel for Defendants-Counterclaim
`Plaintiffs Altria Client Services LLC, Philip
`Morris USA Inc., and Philip Morris
`Products S.A.
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`10
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`Case 1:20-cv-00393-LO-TCB Document 696-12 Filed 06/02/21 Page 12 of 12 PageID# 17096
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 29th day of September, 2020, I caused the foregoing to be
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`served on the following Plaintiffs/Counterclaim Defendants using the designated email address:
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`RJREDVA@jonesday.com.
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`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
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`11
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