Case 1:20-cv-00393-LO-TCB Document 789 Filed 07/15/21 Page 1 of 6 PageID# 21084
`Case 1:20-cv-00393-LO-TCB Document 789 Filed 07/15/21 Page 1 of 6 Page|D# 21084
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`UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF VIRGINIA
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`ALEXANDRIA DIVISION
`
`RAI STRATEGIC HOLDINGS, INC. and
`RI. REYNOLDS VAPOR COMPANY,
`
`Plaintiffs and Counterclaim
`
`Defendants,
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`
`MORRIS USA INC .; and PHILIP MORRIS
`PRODUCTS S.A.
`
`Defendants and Counterclaim
`
`Plaintiffs.
`
`
`
`Civil Action No. 1:20-cv-393
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`MEMORANDUM IN SUPPORT OF PMP/ALTRIA’S MOTION FOR LEAVE TO FILE
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`SUPPLEMENTAL MATERIALS IN SUPPORT OF THEIR OPPOSITION TO
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`REYNOLDS’ MOTION FOR PARTIAL SUMlVIARY JUDGMENT
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`In advance of tomorrow’s summary judgment hearing, Counterclaim Plaintiffs Altiia
`
`Client Services LLC, Philip Monis USA Inc., and Philip Morris Products S.A. (“PMP/Altria”)
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`respectfully submit this motion for leave to file supplemental discovery obtained after briefing was
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`complete (Exs. A and B) in support of their Opposition to Counterclaim Defendants RAI Strategic
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`Holdings, Inc., and R]. Reynolds Vapor Company’s (“Reynolds”) pending motion for partial
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`summary judgment on willful infringement (Dkt. 686).
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`I.
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`FACTUAL BACKGROUND
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`PMP/Altlia pled factual allegations to support its claim that Reynolds’ willfully infringes
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`each of the five asserted patents and pursued willfulness discovery. Dkt. 39 at 1111 17-47, p. 42 at
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`D; Dkt. 40 M111] 17-48, p. 44 at E; Dkt. 733-8. In its September 2020 response to PlVIP/Altria’s
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`messsssssses.seyss1ssssesesss—
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`Case 1:20-cv-00393-LO-TCB Document 789 Filed 07/15/21 Page 1 of 6 Page|D# 21084
`
`UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`ALEXANDRIA DIVISION
`
`RAI STRATEGIC HOLDINGS, INC. and
`RI. REYNOLDS VAPOR COMPANY,
`
`Plaintiffs and Counterclaim
`
`Defendants,
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`
`MORRIS USA INC .; and PHILIP MORRIS
`PRODUCTS S.A.
`
`Defendants and Counterclaim
`
`Plaintiffs.
`
`
`
`Civil Action No. 1:20-cv-393
`
`MEMORANDUM IN SUPPORT OF PMP/ALTRIA’S MOTION FOR LEAVE TO FILE
`
`SUPPLEMENTAL MATERIALS IN SUPPORT OF THEIR OPPOSITION TO
`
`REYNOLDS’ MOTION FOR PARTIAL SUMlVIARY JUDGMENT
`
`In advance of tomorrow’s summary judgment hearing, Counterclaim Plaintiffs Altiia
`
`Client Services LLC, Philip Monis USA Inc., and Philip Morris Products S.A. (“PMP/Altria”)
`
`respectfully submit this motion for leave to file supplemental discovery obtained after briefing was
`
`complete (Exs. A and B) in support of their Opposition to Counterclaim Defendants RAI Strategic
`
`Holdings, Inc., and R]. Reynolds Vapor Company’s (“Reynolds”) pending motion for partial
`
`summary judgment on willful infringement (Dkt. 686).
`
`I.
`
`FACTUAL BACKGROUND
`
`PMP/Altlia pled factual allegations to support its claim that Reynolds’ willfully infringes
`
`each of the five asserted patents and pursued willfulness discovery. Dkt. 39 at 1111 17-47, p. 42 at
`
`D; Dkt. 40 M111] 17-48, p. 44 at E; Dkt. 733-8. In its September 2020 response to PlVIP/Altria’s
`
`messsssssses.seyss1ssssesesss—
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 789 Filed 07/15/21 Page 2 of 6 PageID# 21085
`Case 1:20-cv-OO393-LO-TCB Document 789 Filed 07/15/21 Page 2 of 6 Page|D# 21085
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`Reynolds subsequently moved for summaiy judgment of no willfulness on all five of
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`PMP/Altria’s asserted patents. Dkt. 686. In response, PMP/Altria stated they would not pursue
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`willfuhless claims on the ’374 and ’556 patents, relying on Reynolds’ discovery representation
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`that—. Dkt. 733 at 25; Dkt. 751-1.
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`After PMP/Altria filed their opposition brief, PMP/Altria took the Court-ordered
`
`deposition of Reynolds’ Dr. Figlar.
`
`In that deposition. Dr. Figlar’s swom testimony refuted
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`1
`
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`Ex. A (6/24/21 Figlar Tr.) at 133211—22 (objections omitted) (emphasis added). In addition. Dr.
`
`Fa... testified—
`
`] Dr. Figlar is Reynolds’ fonner executive vice president of R&D and scientific and regulat01y
`affairs. He was the corporate representative on multiple topics that were the subject of three
`separate motions to delay or avoid this 300))(6) deposition. Dkts. 547. 620. 713.
`
`2
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`
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`Case 1:20-cv-00393-LO-TCB Document 789 Filed 07/15/21 Page 3 of 6 PageID# 21086
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`
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`Dr. Figlar also testified
`
`
`
`
`
`. Id. at 134:1-140:17. Based on his testimony, PMP/Altria requested that Reynolds
`
`produce the underlying documents and supplement its interrogatory response to reflect the new
`
`information regarding Reynolds’ knowledge of PMP/Altria’s asserted patents. Ex. A at 140:18-
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`142:12; Ex. C (6/30/2021 J. Koh Ltr. to J. Michalik). Reynolds finally did so on Friday, July 9.
`
`Ex. B (Reynolds’ Resp. to Interr. No. 3, 7/9/2021) at 3-4. Reynolds now admits for the first time
`
`that
`
`
`
`. Id.
`
`Although PMP/Altria previously indicated in response to Reynolds’ motion for summary
`
`judgment that it would not pursue willfulness with regard to the ’374 and ’556 patents, the newly
`
`adduced Figlar testimony and Reynolds’ newly produced documents and supplemental
`
`interrogatory response now raise a genuine fact dispute regarding willfulness of all five asserted
`
`patents. Accordingly, PMP/Altria respectfully seek leave to supplement the summary judgment
`
`record to include Dr. Figlar’s testimony and Reynolds’ supplemental interrogatory response (Exs.
`
`A and B) for the Court’s consideration in connection with Reynolds’ willfulness summary
`
`judgment motion set to be heard tomorrow morning, July 16.2
`
`II.
`
`ARGUMENT
`
`PMP/Altria seek leave to file supplemental discovery materials—excerpts of Dr. Figlar’s
`
`deposition transcript and Reynolds’ July 9 supplemental interrogatory response—all produced
`
`after briefing on Reynolds’ summary judgment motion had been completed. Exs. A and B.
`
`
`2 PMP/Altria submit that, as officers of the Court, Reynolds should have moved to correct its
`flawed summary judgment pleadings. In the absence of Reynolds doing so, PMP/Altria files this
`motion.
`
`
`
`3
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`
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`Case 1:20-cv-00393-LO-TCB Document 789 Filed 07/15/21 Page 4 of 6 PageID# 21087
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`
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`These materials are directly relevant and highly probative both to PMP/Altria’s
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`counterclaims for willful infringement and Reynolds’ motion for summary judgment of no willful
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`infringement. See WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1341 (Fed. Cir. 2016) (knowledge
`
`of patents is a “prerequisite to enhanced damages” and pre-suit knowledge supports a finding of
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`willful infringement). These supplemental materials reflect new admissions by Reynolds and its
`
`corporate witness that
`
`. Ex. B (7/9/21 Reynolds’ Supp. Resp.
`
`
`
`to Interr. No. 3) at 3-4; Ex. A (6/24/21 Figlar Tr.) at 133:11-22.
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`These supplemental materials establish that Reynolds’ motion for summary judgment of
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`no willful infringement is based on incorrect facts. Dkt. 686 at 28-29; Dkt. 748 at 17. The newly-
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`admitted facts refute Reynolds’s summary judgment motion of no willfulness and make false
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`Reynolds’ argument that PMP/Altria’s “evidence of purported pre-suit awareness of the asserted
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`patents … cannot support their claim for enhanced damages.” See Dkt. 686 at 28-29. Reynolds
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`now admits
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`
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` Ex. B (Reynolds’ Resp. to Interr. No. 3, 7/9/2021) at 3-4; Ex. A (6/24/21 Figlar Tr.)
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`at 133:11-22.
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`In light of this recent discovery made available to PMP/Altria just a few days ago,
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`PMP/Altria contend that summary judgment of no willful infringement is improper as to all five
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`of the asserted patents. Dkt. 733. PMP/Altria will be prepared to address the issue at the July 16
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`summary judgment hearing.
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`III. CONCLUSION
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`WHEREFORE PMP/Altria respectfully request that the Court grant this Motion and
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`consider PMP/Altria’s supplemental materials (Exhibits A and B), so that it may rule on Reynolds’
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`Motion for Partial Summary Judgment (Dkt. 686) on a complete record.
`4
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`Case 1:20-cv-00393-LO-TCB Document 789 Filed 07/15/21 Page 5 of 6 PageID# 21088
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`
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`Dated: July 15, 2021
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`Respectfully submitted,
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`
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`
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`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`Lawrence J. Gotts (VSB No. 25337)
`lawrence.gotts@lw.com
`Matthew J. Moore (pro hac vice)
`matthew.moore@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
`
`Clement J. Naples (pro hac vice)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`1271 Avenue of the Americas
`New York, NY 10020
`Tel: (212) 906-1200; Fax: (212) 751-4864
`
`Gregory K. Sobolski (pro hac vice)
`Greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (415) 395-8095
`
`Brenda L. Danek (pro hac vice)
`brenda.danek@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Tel: (312) 876-7700; Fax: (312) 993-9767
`
`Counsel for Defendants Altria Client
`Services LLC, Philip Morris USA Inc., and
`Philip Morris Products S.A.
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`
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`5
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`Case 1:20-cv-00393-LO-TCB Document 789 Filed 07/15/21 Page 6 of 6 PageID# 21089
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 15th day of July, 2021, a true and correct copy of the
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`foregoing was served using the Court’s CM/ECF system, with electronic notification of such
`filing to all counsel of record:
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`
`
`
`
`
`
`
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`/s/ Maximilian A. Grant
`
`
`
`
`
`Maximilian A. Grant (VSB No. 91792)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`Email: max.grant@lw.com
`
`
`Counsel for Defendants Altria Client
`Services LLC, Philip Morris USA Inc., and
`Philip Morris Products S.A.
`
`6
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