`Case 1:20-cv-00393-LO-TCB Document 904-3 Filed 01/21/22 Page 1 of 6 PagelD# 25506
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`EXHIBIT 3
`EXHIBIT 3
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`Case 1:20-cv-00393-LO-TCB Document 904-3 Filed 01/21/22 Page 2 of 6 PageID# 25507
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`RAI STRATEGIC HOLDINGS, INC.,
`et al.,
`Plaintiffs,
`v.
`ALTRIA CLIENT SERVICES, LLC,
`et al.,
`Defendants.
`TRANSCRIPT OF MARKMAN HEARING PROCEEDINGS
`BEFORE THE HONORABLE LIAM O'GRADY,
`UNITED STATES DISTRICT COURT JUDGE
`
`)))))))))))))
`
`Civil Action
`No. 1:20-cv-00393-LO-TCB
`November 18, 2020
`1:00 p.m.
`
`APPEARANCES:
`For the Plaintiffs:
`
`Charles Bennett Molster, III, Esq.
`The Law Offices of Charles B.
`Molster III, PLLC
`2141 Wisconsin Ave NW, Suite M
`Washington, DC 20007
`703-346-1505
`Email: Cmolster@molsterlaw.com
`William E. Devitt, Esq.
`Jones Day
`77 West Wacker, Suite 3500
`Chicago, Illinois 60601-1692
`312-269-4240
`Email: Wdevitt@jonesday.com
`John A. Marlott, Esq.
`Jones Day
`77 West Wacker, Suite 3500
`Chicago, Illinois 60601-1692
`312-269-4326
`Email: Jamarlott@jonesday.com
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`(703)549-4626 * scottwallace.edva@gmail.com
`
`
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`Case 1:20-cv-00393-LO-TCB Document 904-3 Filed 01/21/22 Page 3 of 6 PageID# 25508
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`And if you go to the next page now, bill, you see
`Allowable Subject Matter, Claim 26, allowed. That's why Claim 26
`was initially removed and then added back, Your Honor. There is
`no basis to exclude air, anything between the plate. Your Honor,
`there is absolutely no basis to exclude all electret layers from
`this claim. Thank you, Your Honor.
`THE COURT: All right. Thank you.
`MR. LAUD: Two more terms for this patent, Your Honor.
`THE COURT: Yes, sir.
`MR. LAUD: The next one, I'll be brief. Detect a Blowing
`Action. If Your Honor's read the briefs, you'll understand there
`isn't much of a dispute on this term between the parties at this
`point.
`Our construction, we believe -- if you go to the next
`slide, Matt -- we're not intending to alter the meaning of the
`phrase in the claim. We simply want what we believe is a plain
`and ordinary construction of that. But as we pointed out in our
`opening brief, Your Honor, the infringement contentions that we
`received from the other side lead us to believe or led us to
`believe that they were taking a very different view of that
`requirement.
`In their response brief, they say we are not trying to
`read that limitation out of the claims. Let me back up and
`explain. So, the claim requires sensing the rate and direction
`of airflow, detecting a drawing action, an inhale based on the
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
`(703)549-4626 * scottwallace.edva@gmail.com
`
`
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`rate and direction of air flow, detect a blowing action based on
`the same thing, and then actuate the heater for the drawing
`action but not the blowing action.
`So it's detect both conditions and only actuate for one.
`Now, our understanding from their infringement contentions
`was that you didn't actually need to detect the blowing action.
`If your device, like ours, simply didn't know that a blowing
`action was happening because it can't distinguish blowing from
`nothing happening at all, then we understood them to believe that
`that meant our device still infringed the patent because they
`were reading this out. If they're going to stand by the
`representations in their responsive claim construction brief that
`the device really does have to detect something, then we're fine
`with the plain and ordinary meaning of the claim term, but it's
`that understanding that's really important to us, Your Honor.
`THE COURT: Okay. Thank you.
`MR. NAPLES: I guess, Your Honor, I appreciate them trying
`to rewrite the claim to avoid infringement. If they're saying
`they agree with the plain and ordinary meaning, I'll just sit
`down.
`Is that what you agree with? Or I can continue to argue,
`Your Honor. But changing "detect" to "determine" is obviously
`not proper. The claims use the words differently, the
`specification repeatedly says you're going to detect this blowing
`action. We don't think any construction is necessary.
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
`(703)549-4626 * scottwallace.edva@gmail.com
`
`
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`THE COURT: They got the sense that you were trying to
`read out the word "detect".
`MR. NAPLES: We're not, Your Honor.
`THE COURT: All right. Does that bring us back to plain
`and ordinary meaning then?
`MR. LAUD: Yes, Your Honor, with the understanding that
`the device has to detect something and can't simply -- it's not
`the actuation that tells you whether it detected it, it has to
`detect something. There must be a requirement there. That's our
`purpose, and maybe it would help if I showed you what is in their
`infringement contentions. That might help to clarify the issue.
`I proposed something, and I think Mr. Naples proposed something
`slightly different, which is that --
`THE COURT: You wanted to define the term "detect" now.
`MR. LAUD: So, we proposed a construction that "detect"
`means determine the presence of something. So, for example, if I
`hear my wife say, Hey, honey, and I ignore her, that's detecting
`her saying that, and then not doing anything in response to that.
`If I can't hear her because I have headphones on, that's a
`different thing. I'm not detecting her telling me, Hey, honey.
`That's the point, Your Honor.
`THE COURT: Okay.
`MR. NAPLES: Your Honor, our -- their construction is
`"determine the presence of a blowing action at a mouthpiece."
`The claim requires "detecting a blowing action," okay. As long
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
`(703)549-4626 * scottwallace.edva@gmail.com
`
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`as everyone agrees that you can detect a blowing action through
`various means, including every single means described in the
`specification -- for instance, by the deformation of a capacitor,
`which is exactly what their product does, then there is
`absolutely no dispute about this term. But this construction
`they're proposing is narrower, as far as we can tell, otherwise
`-- just narrower than detect. If they're saying it's not
`narrower then detect, then we're fine with the plain and ordinary
`meaning, and I think, if I have sufficiently assuaged their
`concerns that we're not trying to read this limitation out of the
`claim, we can go to the next term.
`THE COURT: All right. Thank you. We'll go with plain
`and ordinary meaning. All right, next term.
`MR. LAUD: Okay. All right, Your Honor, the last term
`from the '374 patent. This one is Activate the Electronic Vaping
`Device. But you have to look at the whole claim. It's a little
`bit misleading to say that just that phrase is at issue.
`So, stick with this for a moment, if you would, Matt. So,
`Your Honor, we were just looking -- actually, skim to the next
`slide, Matt, and the next one after this.
`Your Honor, we were just looking at Claim 1, which is on
`the left there, and we were just discussing the condition -- what
`are the functional operations of the capacitor. So, you sense
`the rate and direction of airflow through the device, detect a
`draw action, detect a blowing action, and actuate a heater in
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
`(703)549-4626 * scottwallace.edva@gmail.com
`
`