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`EXHIBIT C
`EXHIBIT C
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`

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`Trials@uspto.gov
`Paper 29
`571-272-7822
`Date: January 11, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`PHILIP MORRIS PRODUCTS, S.A.,
`Petitioner,
`v.
`RAI STRATEGIC HOLDINGS, INC.,
`Patent Owner.
`
`IPR2020-01094
`Patent 9,930,915 B2
`
`
`
`
`
`
`
`
`
`Before JEFFREY W. ABRAHAM, ELIZABETH M. ROESEL, and
`MICHELLE N. ANKENBRAND, Administrative Patent Judges.
`ROESEL, Administrative Patent Judge.
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`

`

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`IPR2020-01094
`Patent 9,930,915 B2
`
`INTRODUCTION
`I.
`A. Background and Summary
`Philip Morris Products, S.A. (“Petitioner”) filed a Petition (Paper 2,
`“Pet.”) seeking an inter partes review of claims 1–5 (the “challenged
`claims”) of U.S. Patent No. 9,930,915 B2 (Ex. 1001, “the ’915 Patent”).
`RAI Strategic Holdings, Inc. (“Patent Owner”) filed a Preliminary Response.
`Paper 6 (“Prelim. Resp.”). We instituted an inter partes review as to all
`claims challenged in the Petition. Paper 9 (“Inst. Dec.”).
`After institution, Patent Owner filed a Patent Owner Response
`(Paper 12, “PO Resp.”), Petitioner filed a Reply (Paper 16, “Pet. Reply”),
`and Patent Owner filed a Sur-reply (Paper 20, “PO Sur-reply”). An oral
`hearing was held on October 27, 2021, and a transcript of the hearing is
`included in the record. Paper 28.
`We have jurisdiction under 35 U.S.C. § 6. This Final Written
`Decision is issued pursuant to 35 U.S.C. § 318(a). For the reasons that
`follow, we determine that Petitioner has shown by a preponderance of the
`evidence that all of the challenged claims of the ’915 Patent are
`unpatentable.
`
`B. Related Matters
`The parties identify the following as related matters involving the
`’915 Patent and the same parties as this proceeding:
`RAI Strategic Holdings, Inc. v. Altria Client Services LLC,
`No. 1:20-cv-00393-LO-TCB (E.D. Va.); and
`Certain Tobacco Heating Articles and Components
`Thereof, Investigation No. 337-TA-1199 (Int’l Trade Comm’n)
`(“ITC investigation”).
`Pet. 3; Paper 4, 2 (Patent Owner’s mandatory notices).
`
`2
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`IPR2020-01094
`Patent 9,930,915 B2
`We note that co-pending PGR2020-00071 involves a patent related to
`the ’915 Patent.
`
`C. The ’915 Patent (Ex. 1001)
`The ’915 Patent relates to smoking articles that employ an electrical
`heating element and an electrical power source to provide an inhalable
`substance in a vapor or aerosol form, without substantially burning or
`completely burning tobacco or other substances. Ex. 1001, 2:14–22. The
`’915 Patent discloses a reusable control unit that can be used with a
`disposable smoking article. Id. at 6:49–50.
`Figure 1 of the ’915 Patent is reproduced below.
`
`
`Figure 1 depicts electronic smoking article 10 including reusable control
`housing 200 and disposable cartridge 300, which engage one another in a
`sliding manner. Ex. 1001, 7:44–47, 10:20–24, 11:43–47, 11:55–60. Control
`housing 200 includes control segment 205 and receiving chamber 210 into
`which cartridge 300 is inserted. Id. at 11:60–63.
`
`3
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`Figure 4 of the ’915 Patent is reproduced below.
`
`
`
`Figure 4 is a partial cut away view of electronic smoking article 10 with
`cartridge 300 disengaged from control housing 200. Ex. 1001, 7:54–62,
`12:20–24.
`As shown in Figure 4, cartridge 300 comprises cartridge body 305
`having engaging end 310 that engages receiving chamber 210 of control
`housing 200 and mouth end 315 that allows passage of an inhalable
`substance to a consumer. Ex. 1001, 12:24–31. Cartridge body 305 is
`tubular in shape and retains inhalable substance medium 350, e.g., a
`tobacco-derived material, which is also tubular in shape and releases an
`inhalable substance when heated by heating member 400. Id. at 12:38–41,
`13:4–15, 16:20–22, 16:45–54.
`Control housing 200 includes electrical energy source 220 having
`projection 225 extending therefrom. Ex. 1001, 23:13–18. Electrical energy
`
`4
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`source 220 is connected via contacts 410 to electrical heating member 400,
`which is configured as coil 405 positioned near the terminal end of
`projection 225. Id. at 23:35–40, 24:17–20. Projection 225 is dimensioned to
`slide inside the interior space defined by inhalable substance medium 350
`such that electrical heating member 400 is in proximity to inhalable
`substance medium 350 to heat the medium and release the inhalable
`substance. Id. at 23:23–29.
`Figure 9 of the ’915 Patent is reproduced below.
`
`
`Figure 9 is a partial cut away view of electronic smoking article 10 with
`cartridge 300 partially engaged with control housing 200. Ex. 1001,
`8:53–62. In the Figure 9 embodiment, the electrical heating member is
`heating coil 406, which is positioned in the interior space of tubular
`inhalable substance medium 350 and is a component of cartridge 300, rather
`than control housing 200. Id. at 36:27–36. When the consumer inserts
`cartridge 300 into control housing 200, electrical leads 222 on projection
`
`5
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`225 make an electrical connection with heating coil 406 so as to heat
`inhalable substance medium 350. Id. at 23:48–55, 36:44–56, 37:25–34.
`The ’915 Patent discloses that “[t]he control unit also can include
`further components, including an electrical power source (such as a battery),
`components for actuating current flow into a heating member, and
`components for regulating such current flow.” Ex. 1001, 41:14–21; see also
`id. at 31:41–34:62 (discussing pushbutton and puff-actuated switching,
`current flow regulation, and electrical power source).
`
`D. Illustrative Claim
`The ’915 Patent includes claims 1–5, all of which are challenged in
`the Petition. Claim 1 is the sole challenged independent claim and is
`reproduced below.
`1. A reusable control unit for use with a disposable
`smoking article, the reusable control unit comprising a control
`housing including:
`a receiving end for receiving an engaging end of the
`disposable smoking article and having an electrical energy
`source that includes a projection extending outwardly therefrom
`and that includes a component that forms an electrical connection
`with electrical contacts on a separate electrical heating member;
`and
`
`a control unit section that houses a power source, a
`switching component that actuates flow of electrical current from
`the electrical energy source to the electrical heating member, and
`a flow regulating component that regulates a previously initiated
`current flow from the electrical energy source to the electrical
`heating member, wherein the component that forms an electrical
`connection with the electrical contacts is located on the
`projection.
`Ex. 1001, 42:22–39.
`
`6
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`IPR2020-01094
`Patent 9,930,915 B2
`E. Asserted Prior Art and Grounds
`Petitioner asserts the following grounds of unpatentability:
` Claims Challenged
`35 U.S.C. § Basis
`1 1–5
`103(a)1
`Deevi,2 Brooks3
`2 1–5
`103(a)
`Collins,4 Brooks
`
`
`
`F. Testimonial Evidence
`Petitioner filed a declaration and reply declaration of Dr. Seetharama
`C. Deevi. Exs. 1003, 1043. Patent Owner cross-examined Dr. Deevi twice
`and submitted transcripts of the depositions as Exhibits 2016 and 2021.
`Patent Owner filed a declaration of Charles E. Clemens. Ex. 2015.
`Petitioner cross-examined Mr. Clemens and filed a transcript of the
`deposition as Exhibit 1047.
`
`II. ANALYSIS
`
`A. Legal Standards
`“In an [inter partes review], the petitioner has the burden from the
`onset to show with particularity why the patent it challenges is
`unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed.
`Cir. 2016) (citing 35 U.S.C. § 312(a)(3) (requiring inter partes review
`petitions to identify “with particularity . . . the evidence that supports the
`
`
`1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
`Stat. 284, 287–88 (2011), amended 35 U.S.C. § 103, effective March 16,
`2013. Because the ’915 Patent has an effective filing date before this date,
`the pre-AIA version of § 103 applies. Ex. 1001, code (62).
`2 Ex. 1005, US 5,498,855, issued March 12, 1996 (“Deevi”).
`3 Ex. 1006, US 4,947,874, issued August 14, 1990 (“Brooks”).
`4 Ex. 1007, US 5,505,214, issued April 9, 1996 (“Collins”).
`
`7
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`grounds for the challenge to each claim”)); see also 37 C.F.R. § 42.104(b)
`(2021) (requiring a petition for inter partes review to identify how the
`challenged claim is to be construed and where each element of the claim is
`found in the prior art patents or printed publications relied upon).
`A patent claim is unpatentable under 35 U.S.C. § 103 “if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved based on underlying factual
`determinations including: (1) the scope and content of the prior art; (2) any
`differences between the claimed subject matter and the prior art; (3) the level
`of ordinary skill in the art; and (4) when presented, objective evidence of
`nonobviousness, i.e., secondary considerations. Graham v. John Deere Co.,
`383 U.S. 1, 17–18 (1966).5
`Additionally, the obviousness inquiry typically requires an analysis of
`“whether there was an apparent reason to combine the known elements in
`the fashion claimed by the patent at issue.” KSR, 550 U.S. at 418 (citing In
`re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2016) (requiring “articulated
`reasoning with some rational underpinning to support the legal conclusion of
`obviousness”)). Petitioner cannot satisfy its burden of proving obviousness
`by employing “mere conclusory statements,” but “must instead articulate
`specific reasoning, based on evidence of record, to support the legal
`conclusion of obviousness.” In re Magnum Oil Tools Int’l, Ltd., 829 F.3d
`1364, 1380 (Fed. Cir. 2016).
`
`
`5 Neither party submits evidence of secondary considerations in this case.
`
`8
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`Patent 9,930,915 B2
`B. Level of Ordinary Skill in the Art
`Petitioner provides the following contention regarding a person of
`ordinary skill in the art (“POSA”):
`A POSA at the time of the purported invention (the August
`2011 timeframe) would have had a Bachelor’s degree in
`mechanical engineering, electrical engineering, chemistry, or
`physics, or a related field, and three to four years of industry
`experience, or a Master’s degree in mechanical engineering,
`electrical engineering, chemistry, or physics, or a related field,
`and one to two years of industry experience. Such a POSA
`would have been familiar with electrically powered smoking
`articles and/or the components and underlying technology used
`therein.
`Pet. 11 (citing Ex. 1003 ¶¶ 26–30). Patent Owner accepts Petitioner’s
`description of a POSA for purposes of the trial in this proceeding. PO
`Resp. 16. For purposes of determining patentability of the challenged
`claims, we apply Petitioner’s description of a POSA, which is supported by
`the testimony of both parties’ experts (Ex. 1003 ¶ 28; Ex. 2015 ¶ 61) and is
`consistent with the scope and content of the ’915 Patent and the asserted
`prior art.
`
`C. Claim Construction
`In an inter partes review, we apply the same claim construction
`standard as would be used by a district court to construe a claim in a civil
`action involving the validity or infringement of a patent. 37 C.F.R.
`§ 42.100(b). Under that standard, claim terms are given their ordinary and
`customary meaning, as would have been understood by a person of ordinary
`skill in the art at the time of the invention, in light of the language of the
`claims, the specification, and the prosecution history of record. Id.; Phillips
`
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`v. AWH Corp., 415 F.3d 1303, 1312–19 (Fed. Cir. 2005) (en banc); Thorner
`v. Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365–66 (Fed. Cir. 2012).
`The parties dispute the meaning of the term “electrical energy
`source,” which we discuss below. We determine that no other claim term
`requires express construction for purposes of resolving the controversy.
`Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir.
`1999) (“[O]nly those terms need be construed that are in controversy, and
`only to the extent necessary to resolve the controversy.”); see also Nidec
`Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017
`(Fed. Cir. 2017) (applying Vivid Techs. in the context of inter partes
`review).
`
`Electrical energy source
`Patent Owner argues that the term “electrical energy source” is
`expressly defined in the ’915 Patent as a “receptacle that provides for
`transmission of electrical current from the power source to the heating
`member” and urges us to adopt that construction. PO Resp. 8, 11 (citing
`Ex. 1001, 4:5–7); PO Sur-reply 1. Patent Owner’s proposed construction is
`the same as the one the Administrative Law Judge (“ALJ”) adopted in the
`ITC investigation. Ex. 2008, 18 (claim construction order); Ex. 1049, 41
`(incorporating claim construction order into the ALJ’s initial determination
`on infringement, technical prong of domestic industry, and validity).
`Petitioner argues the ’915 Patent “does not define electrical energy
`source to be (or to require) a receptacle, and even if it did, it would not
`change the claim scope.” Pet. Reply 3. Petitioner contends that Collins and
`Deevi each disclose an “electrical energy source,” even if that term is
`construed as requiring a receptacle. Id. at 8, 27.
`
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`After the completion of briefing in this proceeding, the International
`Trade Commission (“ITC” or “Commission”) issued an opinion modifying
`the ALJ’s claim construction for “electrical energy source.” Ex. 2022, 21
`(“Commission Opinion”). According to the Commission, the term means a
`“receptacle that provides for transmission of electrical current from the
`power source to the heating member, where the receptacle is not limited to a
`structure that requires wiring or insertion.” Id. at 21, 29.6
`Patent Owner relies on the Commission Opinion as support for Patent
`Owner’s proposed claim construction. Tr. 26:12–28:5. Petitioner, on the
`other hand, argues that the claim term does not need to be construed, but if
`we adopt the ITC’s claim construction, it “really has no practical effect
`because the result is the same.” Tr. 11:19–12:2.
`We do not agree with Patent Owner that that the Specification
`expressly defines “electrical energy source” as a receptacle. The standard
`for finding patentee lexicography is “exacting.” GE Lighting Solutions, LLC
`v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014). “To act as its own
`lexicographer, a patentee must ‘clearly set forth a definition of the disputed
`claim term,’ and ‘clearly express an intent to define the term.’” Id. (citing
`Thorner, 669 F.3d at 1365).
`Patent Owner argues that the ’915 Patent expressly defines “electrical
`energy source” in the following passage from the Summary of the Invention:
`“[t]he electrical energy source can essentially be a receptacle that provides
`for transmission of electrical current from the power source to the heating
`
`
`6 Based on the modified construction, the Commission affirmed the ALJ’s
`findings in favor of Patent Owner on infringement, invalidity, and the
`technical prong of domestic industry with respect to the ’915 Patent.
`Ex. 2022, 27, 29.
`
`11
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`member.” PO Resp. 8 (quoting Ex. 1001, 4:5–7). Patent Owner argues that
`the ’915 Patent “reiterates and elaborates on this definition” in the following
`passage from the Detailed Description:
`The electrical energy source 220 can be characterized as
`being an electrical receptacle that is in electrical connection with
`a power source 275 (shown in FIG. 6) and that provides for
`switch-operated delivery of electrical energy to the heating
`member 400, such as via the contacts 410, as illustrated in FIG. 4.
`Id. at 8–9 (quoting Ex. 1001, 23:35–40).
`The statement in the ’915 Patent that “[t]he electrical energy source
`can essentially be a receptacle . . .” (Ex. 1001, 4:5–7) does not purport to be
`definitional. Medicines Co. v. Mylan, Inc., 853 F.3d 1296, 1306 (Fed. Cir.
`2017) (determining that statement from the specification “does not purport
`to be definitional because it does not accord with the linguistic formula used
`by the patentee to signal the designation of other defined terms”).
`When the ’915 Patent provides a definition, it does so unambiguously.
`For example, the ’915 Patent includes the following passage that defines the
`term “smoking article.”
`As used herein, the term [smoking article] is intended to mean an
`article that provides the taste and/or the sensation (e.g., hand-feel
`or mouth-feel) of smoking a cigarette, cigar, or pipe without the
`actual combustion of any component of the article. The term
`smoking article does not necessarily indicate that, in operation,
`the article produces smoke in the sense of the by-product of
`combustion or pyrolysis. Rather, smoking relates to the physical
`action of an individual in using the article--e.g., holding the
`article in a hand, drawing on one end of the article, and inhaling
`from the article.
`Ex. 1001, 9:42–51.
`As illustrated by the foregoing passage, when defining terms, the
`’915 Patent uses language that clearly signals that a definition is being
`
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`provided, including the introductory phrase, “as used herein,” followed by
`the words “the term” and “intended to mean.” Id. In contrast, the passages
`Patent Owner relies upon are not consistent with the linguistic format the
`patentee used when defining terms. These passages use the non-limiting
`language, “can essentially be” or “can be characterized as” (Ex. 1001, 4:5–7,
`23:35–40), and they lack any of the semantic conventions used in the ’915
`Patent when defining terms.7 For these reasons, we find that the
`Specification passages Patent Owner relies upon do not meet the exacting
`standard necessary to find patentee lexicography. GE Lighting, 750 F.3d at
`1309.
`
`Patent Owner additionally argues that the Specification “consistently
`uses the ‘receptacle’ language when describing or discussing the ‘electrical
`energy source 220,’ and at times uses the terms interchangeably.” PO
`Resp. 9 (citing Ex. 1001, 4:14–19, 4:63–66, 5:8–12, 7:14–16, 9:12–22,
`23:40–48, 37:58–63, 39:23–27, 39:65–40:3). To illustrate this point, Patent
`Owner relies on the following passage from the Specification: “[e]lectrical
`contacts present on the heating member permanently engage the receptacle
`
`
`7 See Medicines, 853 F.3d at 1306 (finding that because the statement patent
`owner relied on departs from the format used in the patent in defining terms,
`including the defined term in quotation marks, followed by the words “refers
`to” or “as defined herein,” the statement “lacks the clear expression of intent
`necessary for a patentee to act as its own lexicographer”); see also Abbott
`Labs. v. Andrx Pharms., Inc., 473 F.3d 1196, 1210 (Fed. Cir. 2007) (finding
`that although “[t]he word ‘is’ may signify that a patentee is serving as its
`own lexicographer,” “there is significant evidence . . . that the patentee . . .
`was not providing a definition,” including that the patent “unambiguously
`provides definitions of other claim terms” by setting them off by quotation
`marks followed by the words, “as used herein, means.”).
`
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`(i.e., the electrical energy source) so that electrical current can be delivered
`to the heating member.” Id. at 9–10 (citing Ex. 1001, 4:63–66).
`We disagree that the Specification of the ’915 Patent uses the terms
`“electrical energy source” and “receptacle” interchangeably. When the
`’915 Patent uses terms interchangeably, it does so expressly and
`unambiguously. For example, the ’915 Patent states that the inventive
`articles can be characterized as “smoking articles,” “vapor-producing
`articles, aerosolization articles, or pharmaceutical delivery articles” and that
`these terms “are understood to be interchangeable unless stated otherwise.”
`Ex. 1001, 9:40–42, 9:51–54, 9:67–10:2. Similarly, the patent states that
`“[i]n some embodiments, the terms [vapor state or aerosol state] may be
`interchangeable.” Id. at 9:62–67. In yet another example, the ’915 Patent
`explains:
`When the heating member heats the inhalable substance medium,
`an inhalable substance is formed from, released from, or
`generated from the inhalable substance medium in a physical
`form suitable for inhalation by a consumer. It should be noted
`that the foregoing terms are meant to be interchangeable such
`that reference to release, releasing, releases, or released includes
`form or generate, forming or generating, forms or generates, and
`formed or generated.
`Id. at 10:10–18 (emphasis added).
`In contrast, the passage relied on by Patent Owner does not show that
`the terms “electrical energy source” and “receptacle” are used
`interchangeably in the ’915 Patent. The phrase, “the receptacle (i.e., the
`electrical energy source),” merely explains that, in the embodiment being
`described, the receptacle is the electrical energy source. Ex. 1001, 4:63–66.
`The ’915 Patent includes numerous instances in which a parenthetical
`phrase is introduced by the Latin abbreviation “i.e.” to signal that the phrase
`
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`is an explanation or definition of the term that precedes it. Id. at 9:58–59
`(“a vapor (i.e., a substance that is in the gas phase at a temperature lower
`than its critical point)”); id. at 9:60–62 (“an aerosol (i.e., a suspension of fine
`solid particles or liquid droplets in a gas)”); id. at 10:38–39 (“a car charger
`(i.e., cigarette lighter receptacle)”); id. at 13:12–15 (“a tobacco-derived
`material (i.e., a material that is found naturally in tobacco that may be
`isolated directly from the tobacco or synthetically prepared); id. at 13:22–25
`(“tobacco condensates or fractions thereof (i.e., condensed components of
`the smoke produced by the combustion of tobacco, leaving flavors and,
`possibly, nicotine)”). Consistent with these usages in the ’915 Patent, the
`Latin abbreviation “i.e.” in the phrase, “the receptacle (i.e., the electrical
`energy source)” is used to signal that “the electrical energy source” is an
`explanation or definition of “receptacle,” not the other way around. TF3
`Ltd. v. Tre Milano, LLC, 894 F.3d 1366, 1372 (Fed. Cir. 2018) (“The usage
`‘i.e.’ (‘id est’ or ‘that is’), ‘signals an intent to define the word to which it
`refers’” (quoting Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322,
`1334 (Fed. Cir. 2009)).
`Still further, Patent Owner argues that the ’915 Patent reinforces its
`disclosure that the “electrical energy source” is a receptacle by describing
`different types of receptacles, including a receptacle into which electrical
`“contacts may be permanently inserted” and a receptacle into which
`electrical “contacts are not permanently inserted.” PO Resp. 10 (citing
`Ex. 1001, 23:40–48); PO Sur-reply 2–3. In our view, however, the cited
`disclosures describe various embodiments that include a receptacle as the
`electrical energy source, but do not support Patent Owner’s contention that
`the term “electrical energy source” is expressly defined as a “receptacle.”
`
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`For these reasons, we are not persuaded that the Specification of the
`’915 Patent expressly defines “electrical energy source” as a “receptacle,” as
`Patent Owner argues. Patent Owner does not assert that there is any
`disavowal of claim scope either in the Specification or during prosecution of
`the ’915 Patent. In the absence of patentee lexicography or disavowal, the
`term “electrical energy source” must be given its “ordinary and customary
`meaning as understood by a person of ordinary skill in the art when read in
`the context of the specification and prosecution history,” which does not
`require a “receptacle.” Thorner, 669 F.3d at 1365.
`For these reasons, we are not persuaded to adopt Patent Owner’s
`narrow construction for “electrical energy source.” As discussed below,
`however, Petitioner shows persuasively that the challenged claims are
`unpatentable even under Patent Owner’s narrow construction, and our claim
`construction analysis provides an alternative basis for our determination.
`
`D. Petitioner’s Collins-led Ground
`Petitioner challenges claims 1–5 based on Collins alone or in
`combination with Brooks. Pet. 6, 46–75. Patent Owner disputes that
`challenge. Prelim. Resp. 45–71. We provide an overview of the asserted
`references before turning to the parties’ contentions and our analysis.
`
`1. Collins (Ex. 1007)
`Collins discloses an electrically heated smoking article. Ex. 1007,
`1:16–19.
`
`16
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`Figures 1 and 2 of Collins are reproduced below.
`
`
`
`Collins Figures 1 and 2 show electrical smoking article 10, including
`reusable portion 20 and disposable tobacco flavor unit 21, which is received
`in cavity 30 at the mouth end of portion 20. Ex. 1007, 3:30–33, 7:32–37.
`Reusable portion 20 includes power source 22 and heating elements 23,
`which are energized under the control of control circuit 24, which is in turn
`actuated by puff-actuated sensor 24A or by pushbutton 25. Id. at 7:38–49.
`
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`Figure 10 of Collins is reproduced below.
`
`
`
`Collins Figure 10 shows heater unit 150 for an electrical smoking article.
`Ex. 1007, 4:1–3, 11:46–47. Heater unit 150 includes heater base 151
`(mislabeled “15” in Figure 10),8 heater support 155, and a plurality of
`circumferentially-spaced heater support arms 161, all made from thermally-
`stable electrically insulating material. Id. at 11:48–51; see also id. at
`Figs. 11A, 11B (showing circumferentially-spaced heater support arms 161).
`A plurality of heaters 162 are mounted on heater support arms 161 and have
`opposite ends 162A and 162B. Id. at 11:51–55. Heater ends 162A are all
`electrically connected to common terminal 164 via conducting fingers 164A
`and conducting plate 164B. Id. at 11:53–60. Heater ends 162B are
`individually connected to terminals 167 via conducting fingers 165, thereby
`allowing for individual activation of each heater 162. Id. at 11:63–12:1.
`
`
`8 See Pet. 55 n.7; Prelim. Resp. 46.
`
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`2. Brooks (Ex. 1006)
`Brooks “relates to cigarettes and other smoking articles such as cigars,
`pipes, and the like, which employ an electrical resistance heating element
`and an electrical power source to produce a tobacco flavored smoke or
`aerosol.” Ex. 1006, 1:6–10. Brooks is incorporated by reference in the
`’915 Patent, which states that Brooks discloses suitable puff-actuated and
`timer-based controllers, including associated sensors and circuitry.
`Ex. 1001, 33:35–39, 34:21–25.9
`
`3. Claim 1
`We begin by addressing the disputed elements of claim 1 before
`turning to the undisputed elements.
`
`a) Receiving end
`Claim 1 recites a “reusable control unit for use with a disposable
`smoking article, the reusable control unit comprising a control housing
`including: a receiving end for receiving an engaging end of the disposable
`smoking article and having an electrical energy source.” Ex. 1001,
`42:22–27.
`Petitioner contends that “Collins’ control housing (tube or wall 31 of
`portion 20) includes a receiving end (the end with cavity 30) for receiving an
`engaging end of the disposable smoking article (the end of disposable
`tobacco unit 21 inserted into Collins’ portion 20).” Pet. 51. To illustrate
`
`
`9 Petitioner contends that, in the event the claim terms “switching
`component” and “flow regulating component” are construed under
`35 U.S.C. § 112(6), then Brooks discloses these limitations. Pet. 12–14,
`38–43, 68–72. Patent Owner does not dispute Petitioner’s contentions about
`Brooks, the “switching component,” or the “flow regulating component.”
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`that contention, Petitioner provides the following colored version of Collins
`Figure 2:
`
`
`Id. (citing Ex. 1007, 4:27–33). Collins Figure 2 shows a smoking article,
`and in Petitioner’s colored version, tobacco flavor unit 21 is aqua, and
`cavity 30 is pink. Petitioner contends that the receiving end of Collins’
`housing receives the engaging end of the smoking article such that the
`heaters surround the portion that contains tobacco. Id. at 52–53 (citing
`Ex. 1007, 7:32–37, 8:20–32). Petitioner illustrates that contention with the
`following modified and colored versions of Collins Figure 4.
`
`20
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`
`Pet. 53. Petitioner’s modification of Collins Figure 4 shows stepwise how
`tobacco flavor unit 21 (aqua) is inserted into cavity 30 (pink) of reusable
`portion 20.
`Petitioner contends that components of Collins’ heater assembly are
`an “electrical energy source,” as claimed (Pet. 55), and that the heater
`assembly is placed inside Collins’ control housing, as illustrated by the
`following annotation of Collins Figures 2 and 10.
`
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`
`
`Pet. 56. Collins Figure 2 shows a smoking article, and Collins Figure 10
`shows a heater unit of the smoking article. Petitioner’s annotations indicate
`where the heater unit (green) is located within the smoking article, which
`includes tobacco flavor unit 21 (aqua), cavity 30 (pink), and heaters 23 (red).
`Patent Owner argues that “the Petition makes no attempt to identify
`the boundaries of Collins’ alleged ‘receiving end,’ nor to show that any
`portion of the alleged ‘electrical energy source’ (much less all of it) is
`present in the receiving end.” PO Resp. 45–46. Similarly, Patent Owner
`argues that “the Petiti