Case 1:20-cv-00393-LO-TCB Document 952-1 Filed 02/11/22 Page 1 of 6 PageID# 26407
`Case 1:20-cv-00393-LO-TCB Document 952-1 Filed 02/11/22 Page 1 of 6 PagelD# 26407
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`EXHIBIT 1
`EXHIBIT 1
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`Case 1:20-cv-00393-LO-TCB Document 952-1 Filed 02/11/22 Page 2 of 6 PageID# 26408
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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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`
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`Plaintiffs and Counterclaim
`Defendants,
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`
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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.
`
`Civil Action No. 1:20-cv-393
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`SUPPLEMENTAL OPENING EXPERT REPORT OF HAROLD J. WALBRINK
`RELATING TO INFRINGEMENT
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`CONTAINS CONFIDENTIAL BUSINESS INFORMATION
`SUBJECT TO PROTECTIVE ORDER
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`Case 1:20-cv-00393-LO-TCB Document 952-1 Filed 02/11/22 Page 3 of 6 PageID# 26409
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`62.
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`The low chromium nickel-iron alloy resistive heating element is in the shape of a
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`sinuous line having two ends as shown below. The S-shaped region of the low chromium nickel-
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`iron alloy resistive heating element is a sinuous line because the plain meaning of “sinuous” is a
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`“wavy form” or “winding.” See “sinuous,” 2001 Merriam-Webster’s Dictionary at 1093. An S-
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`shape structure is a wavy form and winding.
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`63.
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`The S-shaped thermal resistor has two ends as shown and discussed above (at either
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`end of the “S”).
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`5.
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`“dimensions substantially the same as a cross-section of a cigarette or
`a cigar, wherein interspaces of the shape are configured to allow a
`flow of fluid therethrough”
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`64.
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`The S-shaped “low chromium nickel-iron alloy resistive heating element” in the
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`Alto has dimensions substantially the same as a cross-section of a cigarette or a cigar. The S-shape
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`resistive heater has a horizontal dimension of 6.2 mm and a diagonal dimension of 6.6 mm, which
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`are substantially the same as a cross-section of a cigarette. I annotated this in the photograph
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`below, which I took of a VUSE Alto that I dissembled.
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`Dimensions
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`Overall 6.2 mm
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`Diagonal 6.6 mm
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`Such dimensions enable a conventional smoking experience, where a user holds the
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`65.
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`cigarette/cigar between their fingers and lips when smoking. Reynolds touts that the Alto’s
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`“Compact design” (RJREDVA_001286318 at RJREDVA_001286341) and states that it is
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`CONTAINS CONFIDENTIAL BUSINESS INFORMATION
`SUBJECT TO PROTECTIVE ORDER
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`Case 1:20-cv-00393-LO-TCB Document 952-1 Filed 02/11/22 Page 4 of 6 PageID# 26410
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`“Engineered to mimic the cigarette experience in satisfaction and taste.” RJREDVA_001286318
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`at RJREDVA_001286341. This is enabled by sizing the Heater with dimensions that are
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`substantially the same as a cross-section of a cigarette or a cigar.
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`• Ett~i'tH)\tm)G t6 H)irriic Utfr. cH¥&rnt!t1
`ti~;;+,m:rii!!~i:i;e ln :!Mllthd.!:l:tt1◊(1 ;$ iliSttf
`, VlHit: td~n Hi:::,i',::i1i'li < ' ~1!l!hr@rifi ogfr
`m41!;t !;M/i:!:ityu¼}: 1,~rr trn.t urni.h i!\1.i-ary
`t.iffrffi
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`• 3Xrrn:irri" nieotkt!?. {[t:gi'p!iff:~ &
`,;,iB:ff;ls&O! diefiVffJ t!lilm .JU\it.
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`The sources that Reynolds cited during claim construction briefing confirm the Alto
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`66.
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`meets this limitation. For example, U.S. Patent No. 8,733,346 (the “’346 patent”) issued to Philip
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`Morris Products S.A. and names Arno Rinker as the inventor (the same inventor named on the
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`’265 patent). The ’346 patent defines dimensions of a cigarette or cigar as between 6 and 14 mm.
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`See ’346 patent at 3:33-37; see also U.S. Patent Pub. No. 2010/0126505 ¶ 0029. Similarly, other
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`patents being asserted in this case against RJR’s VUSE Products—specifically the ’911 and ’556
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`patents—describe cigarettes and cigars with diameters between 5 and 30 mm. ’911 patent at 11:5-
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`7; ’556 patent at 6:66-67, 7:1-3.
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`67.
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`Similarly, an article titled “Influence of cigarette circumference on smoke
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`chemistry, biological activity, and smoking behavior,” authored by researchers at Reynolds’
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`parent, British American Tobacco (“BAT”), refers to cigarettes known as “super slim” that have a
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`Case 1:20-cv-00393-LO-TCB Document 952-1 Filed 02/11/22 Page 5 of 6 PageID# 26411
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`circumference of between 14-19 mm, or dimensions of between 4.46 and 6 mm. See McAdam et
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`al., “Influence of Cigarette Circumference on Smoke Chemistry, Biological Activity and Smoking
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`Behaviur” (2016) at 112. I understand that after I submitted my report, Reynolds produced for the
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`first time a video (RJREDVA_001650063) and photograph of the heater purportedly supporting
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`Dr. Suhling’s opinion that the “actual resistive heater” does not include the outer “electrode”
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`portions. I have seen no evidence that either the video or photograph describes the actual heater
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`in any Accused Product. Nor have I seen adequate information about the testing parameters and
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`conditions that would allow Dr. Suhling to reach his conclusions. Regardless, the thermal resistor
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`meets this limitation because, under the new theory advanced by Dr. Suhling (Suhling Rbt. Rpt. ¶
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`82), it fits within an electronic cigarette that is largely the same size as a cigarette or cigar and
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`evenly distributes heat on the surface of the ceramic to vaporize the e-liquid in the ceramic. The
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`thermal resistor, however, need not be “essentially circular,” because I understand that the Court
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`has already declined to impose such a limitation during claim construction and certain cigars, such
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`as box-pressed cigars, are non-circular.
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`68.
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`To the extent Reynolds argues that the claimed “dimensions” must result in a
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`cylindrical or circular shape or some other “dimensions,” I disagree. I understand that Reynolds’
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`proposed construction of this limitation sought to limit the shape of the claimed “thermal resistor”
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`to “an essentially circular shape.” I understand that the Court rejected this proposed construction
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`and construed the term to have its plain and ordinary meaning, which is not limited to a circular
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`shape.
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`69.
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`The interspaces of the S-shaped resistive heating element are configured to allow a
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`flow of fluid therethrough because there is nothing in the interspaces of the printed S-shaped low
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`chromium nickel-iron alloy that would obstruct or otherwise impede the flow of fluid. The E-
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`Case 1:20-cv-00393-LO-TCB Document 952-1 Filed 02/11/22 Page 6 of 6 PageID# 26412
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`I declare under penalty of perjury that the foregoing is true and correct.
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`Date: April 26, 2021
`Hal Walbrink
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`43
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`CONTAINS CONFIDENTIAL BUSINESS INFORMATION
`SUBJECT TO PROTECTIVE ORDER
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