UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before The Honorable Clark S. Cheney
`Administrative Law Judge
`
`
`In the Matter of
`
`
`
`Investigation No. 337-TA-1199
`
`RESPONSE OF RESPONDENTS PHILIP MORRIS INTERNATIONAL INC. AND
`PHILIP MORRIS PRODUCTS S.A. TO THE COMPLAINT AND NOTICE OF
`INVESTIGATION
`
`CERTAIN TOBACCO HEATING
`ARTICLES AND COMPONENTS
`THEREOF
`
`
`
`RESPONDENTS:
`Altria Client Services LLC
`6601 W. Broad Street
`Richmond, VA 23230
`Tel: (804) 274-2200
`
`Altria Group, Inc.
`6601 W. Broad Street
`Richmond, VA 23230
`Tel: (804) 274-2200
`
`Philip Morris USA, Inc.
`6601 W. Broad Street
`Richmond, VA 23230
`Tel: (804) 274-2000
`
`Philip Morris International Inc.
`120 Park Avenue
`New York, NY 10017
`Tel: (917) 663-2000
`
`Philip Morris Products S.A.
`Quai Jeanrenaud 3
`2000 Neuchâtel
`Switzerland
`Tel: 41-58-242-00-00
`
`
`
`
`

`

`COUNSEL FOR RESPONDENTS:
`
`
`Maximilian A. Grant
`Bert C. Reiser
`Matthew J. Moore
`Jamie D. Underwood
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W.
`Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`
`Brenda L. Danek
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Telephone: (312) 876-7700
`Facsimile: (312) 993-9767
`
`
`
`

`

`
`
`RESPONSE TO COMPLAINT
`
`Pursuant to Commission Rule 210.13 (19 C.F.R. § 210.13), Respondents Philip Morris
`
`International Inc. and Philip Morris Products S.A. hereby respond to the Complaint filed on April
`
`9, 2020 by Complainants RAI Strategic Holdings, Inc., R.J. Reynolds Vapor Company, and R.J.
`
`Reynolds Tobacco Company (collectively “Complainants”) under Section 337 of the Tariff Act of
`
`1930, as amended, and to the Commission’s Notice of Investigation. Unless specifically referred
`
`to separately, Philip Morris International Inc. and Philip Morris Products S.A. shall be collectively
`
`referred to herein as “Respondents” for purposes of convenience.
`
`Respondents deny that they have directly or through their affiliates or third parties engaged
`
`in acts of unfair competition in violation of Section 337 by importing, selling for importation,
`
`and/or selling within the United States after importation any product that infringes literally and/or
`
`under the doctrine of equivalents, contributorily, and/or by inducement, any valid and enforceable
`
`asserted claim of U.S. Patent Nos. 9,839,238 (“the ’238 patent”), 9,901,123 (“the ’123 patent”)
`
`and 9,930,915 (“the ’915 patent”) (collectively, “the Asserted Patents”). Respondents also deny
`
`that asserted claims of the Asserted Patents are valid and/or enforceable. Except as expressly
`
`admitted herein, Respondents deny each and every allegations of the Complaint.
`
`Respondents have not had sufficient time and opportunity to collect and review all of the
`
`information that may be relevant and necessary to respond to the allegations raised in the
`
`Complaint. To the extent that any allegations of the Complaint refer to and/or rely upon such
`
`information, Respondents lack sufficient information on which to admit or deny such allegations
`
`and, on that basis, deny such allegations. Moreover, Respondents reserve the right to take further
`
`positions and raise additional defenses as may become apparent as a result of additional
`
`information that may be discovered subsequent to the filing of this response.
`
`1
`
`

`

`
`
`ADMISSIONS AND DENIALS OF SPECIFIC ALLEGATIONS
`
`The numbered Paragraphs herein correspond with and respond to the numbered Paragraphs
`
`set forth in the Complaint.
`
`I.
`
`INTRODUCTION1
`
`1.
`
`Respondents admit that RAI Holdings, Inc. (“RAI”), R.J. Reynolds Vapor
`
`Company
`
`(“RJRV”), and R.J. Reynolds Tobacco Company
`
`(“RJRT”)
`
`(collectively,
`
`“Complainants”) filed its Complaint under Section 337 of the Tariff Act of 1930, as amended, 19
`
`C.F.R. § 1337. Respondents deny the remaining allegations of paragraph 1.
`
`2.
`
`Respondents admit that documents purporting to be copies of the Asserted Patents
`
`(as defined in paragraph 2 of the Complaint) are attached to the Complaint as Exhibits 1, 2, and 3.
`
`Respondents admit that the table in paragraph 2 lists the claims asserted in the Complaint.
`
`Respondents deny the remaining allegations of paragraph 2.
`
`3.
`
`Respondents deny that the Asserted Patents are valid and enforceable. Respondents
`
`lack sufficient information upon which to admit or deny the remaining allegations of paragraph 3
`
`and, on that basis, deny the remaining allegations of paragraph 3.
`
`4.
`
`5.
`
`Respondents deny the allegations of paragraph 4.
`
`The allegations of paragraph 5 contain legal conclusions as to which no response is
`
`required. To the extent a response is required, Respondents deny the allegations of paragraph 5.
`
`6.
`
`The allegations of paragraph 6 contain legal conclusions as to which no response is
`
`required. To the extent a response is required, Respondents deny the allegations of paragraph 6.
`
`
`1 For ease of reference, Respondents respond to the Complaint using the same headings used by
`Complainants. Use of these headings, however, does not constitute and should not be
`interpreted as admissions by Respondents as to any facts and/or allegations contained within
`the Complaint.
`
`2
`
`

`

`
`
`Respondents further deny that Complainants are entitled to any relief under 19 U.S.C. § 1337.
`
`II.
`
`THE PARTIES
`
`A.
`
`7.
`
`Complainants
`
`Respondents lack sufficient information upon which to admit or deny the
`
`allegations of paragraph 7, on that basis, deny the allegations of paragraph 7.
`
`8.
`
`Respondents lack sufficient information upon which to admit or deny the
`
`allegations of paragraph 8, on that basis, deny the allegations of paragraph 8.
`
`9.
`
`Respondents lack sufficient information upon which to admit or deny the
`
`allegations of paragraph 9, on that basis, deny the allegations of paragraph 9.
`
`B.
`
`Respondents
`
`1.
`
`Altria Client Services LLC
`
`10.
`
`Respondents admit that a document purporting to be a PMTA Coversheet:
`
`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
`
`Exhibit 8 states that “PMP S.A.’s parent company, Philip Morris International Management S.A.
`
`(PMI) has entered into a distribution agreement with Altria Client Services LLC (ALCS) by which
`
`ALCS and an ALCS affiliate, Philip Morris USA Inc. (PM USA), will be licensed to distribute
`
`and sell the IQOS® system and the Marlboro Heatsticks in the U.S. upon receipt of a marketing
`
`authorization.” Respondents admit that Altria Client Services LLC and Philip Morris USA, Inc.
`
`are licensed to distribute and sell IQOS® systems and disposable tobacco sticks in the United
`
`States. Respondents deny that any tobacco heating articles and components thereof, including
`
`disposable tobacco sticks infringe the Asserted Patents. Respondents lack sufficient information
`
`upon which to admit or deny the remaining allegations of paragraph 10, on that basis, deny the
`
`remaining allegations of paragraph 10.
`
`3
`
`

`

`
`
`2.
`
`Altria Group, Inc.
`
`11.
`
`Respondents deny that they operate in conjunction with Altria Group, Inc. with
`
`regard to the importation into the United States, sale for importation into the United States, and/or
`
`sale within the United States after importation, of tobacco heating articles and components thereof,
`
`including disposable tobacco sticks. Respondents deny that any tobacco heating articles and
`
`components thereof, including disposable tobacco sticks infringe the Asserted Patents.
`
`Respondents lack sufficient information upon which to admit or deny the allegations of paragraph
`
`11, on that basis, deny the allegations of paragraph 11.
`
`3.
`
`Philip Morris USA, Inc.
`
`12.
`
`Respondents admit that Philip Morris USA, Inc. and Altria Client Services, LLC
`
`are licensed to distribute, offer for sale, and sell in the United States IQOS® systems and
`
`disposable tobacco sticks. Respondents admit that IQOS® systems and disposable tobacco sticks
`
`are manufactured outside the United States. Respondents deny that any tobacco heating articles
`
`and components thereof, including disposable tobacco sticks infringe the Asserted Patents.
`
`Respondents lack sufficient information upon which to admit or deny the allegations of paragraph
`
`12, on that basis, deny the allegations of paragraph 12.
`
`4.
`
`Philip Morris International Inc.
`
`13.
`
`Respondents admit that Philip Morris International Inc. is a Virginia corporation
`
`with offices at 120 Park Avenue, New York, New York 10017. Respondents admit that Philip
`
`Morris International, Inc. is the ultimate parent of Philip Morris Products S.A. Philip Morris
`
`International Inc. is a holding company that does not import into the United States, sell for
`
`importation into the United States, or sell within the United States any tobacco heating articles and
`
`components thereof, including disposable tobacco sticks. Respondents deny the remaining
`
`4
`
`

`

`
`
`allegations of paragraph 13.
`
`5.
`
`Philip Morris Products S.A.
`
`14.
`
`Respondents admit that Philip Morris Products S.A. is organized under the laws of
`
`Switzerland with an address of Quai Jeanrenaud 3, 2000 Neuchâtel, Switzerland. Respondents
`
`admit that Philip Morris Products S.A. has imported into the United States and sold for importation
`
`into the United States certain IQOS® system products and disposable tobacco sticks. Respondents
`
`deny that Philip Morris Products S.A. has imported or imports into the United States certain
`
`IQOS® system products or disposable tobacco sticks for commercial sale. Respondents admit that
`
`Philip Morris Products S.A. is a premarket tobacco applicant with United States Food and Drug
`
`Administration (“FDA”) for the IQOS® systems and disposable tobacco sticks. Respondents
`
`admit that Philip Morris Products S.A. consulted with Altria Client Services LLC. and Philip
`
`Morris USA Inc. to obtain FDA authorization in the United States. Respondents deny the
`
`remaining allegations of paragraph 14.
`
`III. THE TECHNOLOGY AND PRODUCTS AT ISSUE
`
`A.
`
`15.
`
`The Technology
`
`Respondents admit that the Complaint accuses tobacco heating articles and
`
`components thereof. Respondents lack sufficient information upon which to admit or deny the
`
`remaining allegations of paragraph 15 and, on that basis, deny the remaining allegations of
`
`paragraph 15.
`
`16.
`
`Respondents admit
`
`that
`
`traditional combustible cigarettes yield smoke.
`
`Respondents lack sufficient information upon which to admit or deny the remaining allegations of
`
`paragraph 16 and, on that basis, deny the remaining allegations of paragraph 16.
`
`5
`
`

`

`
`
`17.
`
`Respondents lack sufficient information upon which to admit or deny the
`
`allegations of paragraph 17 and, on that basis, deny the allegations of paragraph 17.
`
`18.
`
`Respondents lack sufficient information upon which to admit or deny the
`
`allegations of paragraph 18 and, on that basis, deny the allegations of paragraph 18.
`
`B.
`
`19.
`
`The Accused Products
`
`Respondents admit that the Complaint alleges infringement by certain tobacco
`
`heating articles and components thereof, including disposable tobacco sticks. Respondents deny
`
`the allegations of paragraph 19.
`
`20.
`
`Respondents admit Philip Morris Products S.A. imported certain IQOS® devices
`
`into the United States to support clinical trials and for regulatory compliance needs. Philip Morris
`
`International, Inc. does not import, sell for importation, or sell within the United States any
`
`Accused Product. Respondents admit that as part of a PMTA submitted to the FDA, Philip Morris
`
`Products S.A. supplied certain IQOS® devices to a FDA testing laboratory. Respondents deny the
`
`remaining allegations of paragraph 20.
`
`1.
`
`FDA Authorization
`
`21.
`
`Respondents admit that a document purporting to be a PMTA Coversheet:
`
`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
`
`Exhibit 8 lists Philip Morris Products S.A. as the “Applicant.” Respondents admit that Exhibit 8
`
`lists May 15, 2017 as the “Submission Date.” Respondents admit that a document purporting to
`
`be an FDA marketing order is attached to the Complaint as Exhibit 16. Respondents admit that
`
`Exhibit 16 lists Philip Morris Products S.A. as the addressee. Respondents admit that Philip Morris
`
`Products S.A. submitted a PMTA seeking authorization for certain IQOS® systems, including
`
`disposable tobacco sticks. Respondents admit that Philip Morris Products S.A. consulted with
`
`6
`
`

`

`
`
`Altria Client Services LLC and Philip Morris USA, Inc. in preparing a PMTA. Respondents deny
`
`the remaining allegations of paragraph 21.
`
`22.
`
`Respondents admit that on or about April 30, 2019, FDA issued its marketing order
`
`regarding the IQOS® systems. Respondents admit that certain versions of the IQOS® system can
`
`be sold within the United States. Respondents deny the remaining allegations of paragraph 22.
`
`23.
`
`Respondents admit that Philip Morris Products S.A. submitted Modified Risk
`
`Tobacco Product Applications (“MRTPA”) for the IQOS® systems on or about November 18,
`
`2016 and that such applications are still under review by the FDA. Respondents admit that the
`
`MRTPA includes claims that IQOS® system results in reduced exposure or reduced risk.
`
`Respondents deny the remaining allegations of paragraph 23.
`
`24.
`
`Respondents admit that Philip Morris Products S.A. prosecuted PMTA and MRTP
`
`applications, including amendments and responses to FDA requests. Respondents admit that
`
`Altria Client Services LLC and Philip Morris USA, Inc. consulted on the preparation of PMTA
`
`and MRTP applications. Respondents deny the remaining allegations of paragraph 24.
`
`25.
`
`Respondents admit that FDA has authorized IQOS® 2.4, which is, or has been, sold
`
`in other countries in the same or similar configurations, for commercial sale and marketing within
`
`the U.S. Respondents admit that IQOS® systems include a holder and charger. Respondents
`
`admit that disposable tobacco sticks are used with an IQOS® system. Respondents deny the
`
`remaining allegations of paragraph 25.
`
`2.
`
`Actual Sales for Importation, Sales After Importation into the United
`States
`
`26.
`
`Respondents admit that Philip Morris USA, Inc. has submitted purchase orders to
`
`Philip Morris Products S.A. for IQOS® systems since at least October 2019. Respondents admit
`
`that Philip Morris Products S.A. has contracted with third-parties to manufacture and ship certain
`
`7
`
`

`

`
`
`IQOS® systems since at least October 2019. Philip Morris International, Inc. does not import, sell
`
`for importation, or sell within the United States any Accused Product. Respondents deny the
`
`remaining allegations of paragraph 26.
`
`3.
`
`The IQOS® Holder
`
`27.
`
`Respondents admit that a document purporting to be a PMTA Coversheet:
`
`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
`
`the Exhibit 8, states that the IQOS® Holder is “an electrically powered and rechargeable unit
`
`designed to hold and heat the Heatsticks during consumer use to generate the nicotine-containing
`
`aerosol.” Respondents admit that Exhibit 8 states that the IQOS® Holder includes a battery and a
`
`heating blade. Paragraph 27 purports to characterize the contents of documents that speak for
`
`themselves and no response is required. Respondents deny the remaining allegations of paragraph
`
`27.
`
`28.
`
`Respondents admit that a document purporting to be a PMTA Coversheet:
`
`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
`
`the Exhibit 8 states that “[t]he Holder heats the tobacco using a . . . ceramic blade, which is pushed
`
`into the tobacco plug by the act of inserting the HeatStick into the Holder.” Respondents deny the
`
`remaining allegations of paragraph 28.
`
`4.
`
`The IQOS® Disposable Tobacco Sticks
`
`29.
`
`Respondents admit that disposable tobacco sticks for use with an IQOS® system
`
`are available as Marlboro Heatsticks, Smooth Menthol Heatsticks, and Fresh Menthol Heatsticks.
`
`Respondents admit that the disposable tobacco sticks are designed for use with an IQOS® Holder.
`
`Paragraph 29 purports to characterize the contents of documents that speak for themselves and no
`
`8
`
`

`

`
`
`response is required. Paragraph 29 contains legal conclusions for which no response is required.
`
`Respondents deny the remaining allegations of paragraph 29.
`
`30.
`
`Respondents admit that a document purporting to be a PMTA Coversheet:
`
`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
`
`disposable tobacco sticks are designed for use with an IQOS® Holder. Respondents admit that
`
`Exhibit 8 states: “The IQOS Heatstick: a tobacco plug consisting of crimped cast reconstituted
`
`tobacco sheet made from ground tobacco powder.” Respondents admit that Exhibit 8 states that
`
`“the tobacco is ground and reconstituted into sheets (termed cast-leaf) following the addition of
`
`water, glycerin, guar gum and cellulose fibers.” Paragraph 30 purports to characterize the contents
`
`of documents that speak for themselves and no response is required. Paragraph 30 contains legal
`
`conclusions for which no response is required. Respondents deny the remaining allegations of
`
`paragraph 30.
`
`31.
`
`Respondents admit that disposable tobacco sticks for use with an IQOS® system
`
`are available as Marlboro Heatsticks, Smooth Menthol Heatsticks, and Fresh Menthol Heatsticks.
`
`Paragraph 31 purports to characterize the contents of documents that speak for themselves and no
`
`response is required. Paragraph 31 contains legal conclusions for which no response is required.
`
`Respondents deny the remaining allegations of paragraph 31.
`
`5.
`
`The IQOS® Charger
`
`32.
`
`Respondents admit that a document purporting to be a PMTA Coversheet:
`
`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
`
`Exhibit 8 states the IQOS® Charger is “used to recharge the Holder after each use.” Respondents
`
`admit that Exhibit 8 states that “The Charger battery holds sufficient charge to recharge the Holder
`
`20 times. The Charger is recharged using an AC adaptor.” Paragraph 32 purports to characterize
`
`9
`
`

`

`
`
`the contents of documents that speak for themselves and no response is required. Respondents
`
`deny the remaining allegations of paragraph 32.
`
`33.
`
`Respondents admit that an IQOS® system sometimes includes a cleaning tool for
`
`cleaning an IQOS® holder. Respondents deny the remaining allegations of paragraph 33.
`
`6.
`
`Operation and Manufacture of the IQOS® System
`
`34.
`
`Respondents admit that a document purporting to be a PMTA Coversheet:
`
`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
`
`Exhibit 8 states that the “heating blade is inserted into a Heatstick to heat the tobacco. The user
`
`activates the Holder by pressing the activation button for a set period until the light begins to blink,
`
`signaling that the product may be used.” Respondents admit that Exhibit 8 states that “Heatsticks
`
`are designed to be electrically heated to release nicotine-containing aerosol and are not intended
`
`to be combusted.” Respondents admit that Exhibit 8 states that “[t]he temperature of the heating
`
`blade is controlled and the energy supply to the blade is cut off if its operating temperature exceeds
`
`350°C.” Paragraph 34 purports to characterize the contents of documents that speak for themselves
`
`and no response is required. Paragraph 34 contains legal conclusions for which no response is
`
`required. Respondents deny the remaining allegations of paragraph 34.
`
`35.
`
`Respondents admit that IQOS® systems are manufactured by third parties outside
`
`of the United States. Respondents admit that Philip Morris Products S.A. sells certain IQOS®
`
`systems for importation into the United States. Respondents deny that Philip Morris Products S.A.
`
`has imported or imports into the United States certain IQOS® system products for commercial
`
`sale. Philip Morris International, Inc. does not import, sell for importation, or sell within the
`
`United States any Accused Product. Respondents admit that IQOS® systems and disposable
`
`tobacco sticks are manufactured outside the United States. Respondents admit that paragraph 35
`
`10
`
`

`

`
`
`purports to quote from selections of Exhibits 22-25 and 34-36 of the Complaint. Paragraph 35
`
`contains legal conclusions for which no response is required. Respondents deny the remaining
`
`allegations of paragraph 35.
`
`7.
`
`Respondents’ Instructions for Use of the IQOS® System
`
`36.
`
`Respondents admit a document purporting to be a PMTA Coversheet: Technical
`
`Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that Exhibit 8
`
`states that “[t]he submission included a copy of the IQOS Tobacco Heating System User Guide
`
`and the IQOS Quick Start Guide.” Respondents admit that Exhibit 8 includes the words
`
`“comprehensive instructions for use.” Respondents admit that exhibit 8 states that “[t]he Quick
`
`Start Guide provides the basic information needed to use the IQOS system.” Respondents deny
`
`the remaining allegations of paragraph 36.
`
`37.
`
`Paragraph 37 purports to characterize the contents of documents that speak for
`
`themselves and no response is required. Respondents lack sufficient information upon which to
`
`admit or deny the allegations of paragraph 37 and, on that basis, deny the allegations of paragraph
`
`37.
`
`38.
`
`The allegations of paragraph 38 contain legal conclusions as to which no response
`
`is required. To the extent that a response is required, Respondents lack sufficient information upon
`
`which to admit or deny the allegations of paragraph 38 and, on that basis, deny the remaining
`
`allegations of paragraph 38.
`
`39.
`
`Respondents admit that an IQOS® system is packaged with the guides and
`
`instructions required for compliance with applicable laws. Respondents admit that a document
`
`purporting to be an “IQOS® User Guide” is attached as Exhibit 37. Respondents admit that a
`
`document purporting to be an “IQOS® Quick Start Guide” is attached as Exhibit 38. Respondents
`
`11
`
`

`

`
`
`lack sufficient information upon which to admit or deny the remaining allegations of paragraph 39
`
`and, on that basis, deny the remaining allegations of paragraph 39.
`
`40.
`
`41.
`
`Respondents deny the allegations of paragraph 40.
`
`Respondents deny the allegations of paragraph 41.
`
`IV.
`
`THE PATENTS AT ISSUE
`
`42.
`
`The allegations of paragraph 42 contain legal conclusions as to which no response
`
`is required. To the extent a response is required, Respondents lack sufficient information upon
`
`which to admit or deny the allegations of paragraph 42 and, on that basis, deny the remaining
`
`allegations of paragraph 42.
`
`43.
`
`Respondents admit that the face of the ’238 patent purports to include 2 independent
`
`claims and 19 dependent claims. Respondents lack sufficient information upon which to admit or
`
`deny the remaining allegations of paragraph 43 and, on that basis, deny the remaining allegations
`
`of paragraph 43.
`
`44.
`
`45.
`
`Respondents deny the allegations of paragraph 44.
`
`The allegations of paragraph 45 contain legal conclusions as to which no response
`
`is required. To the extent a response is required, Respondents lack sufficient information upon
`
`which to admit or deny the allegations of paragraph 45 and, on that basis, deny the remaining
`
`allegations of paragraph 45.
`
`46.
`
`Respondents admit that the face of the ’123 patent purports to include 3 independent
`
`claims and 27 dependent claims. Respondents lack sufficient information upon which to admit or
`
`deny the remaining allegations of paragraph 46 and, on that basis, deny the remaining allegations
`
`of paragraph 46.
`
`47.
`
`Respondents deny the allegations of paragraph 47.
`
`12
`
`

`

`
`
`48.
`
`The allegations of paragraph 48 contain legal conclusions as to which no response
`
`is required. To the extent a response is required, Respondents lack sufficient information upon
`
`which to admit or deny the allegations of paragraph 48 and, on that basis, deny the remaining
`
`allegations of paragraph 48.
`
`49.
`
`Respondents admit that the face of the ’915 patent purports to include 1 independent
`
`claim and 4 dependent claims. Respondents lack sufficient information upon which to admit or
`
`deny the remaining allegations of paragraph 49 and, on that basis, deny the remaining allegations
`
`of paragraph 49.
`
`50.
`
`51.
`
`Respondents deny the allegations of paragraph 50.
`
`The allegations of paragraph 51 contain legal conclusions as to which no response
`
`is required. To the extent a response is required, Respondents lack sufficient information upon
`
`which to admit or deny the allegations of paragraph 51 and, on that basis, deny the remaining
`
`allegations of paragraph 51.
`
`A.
`
`U.S. Patent No. 9,839,238
`
`1.
`
`Identification of the Patent and Ownership by Complainant
`
`52.
`
`Respondents admit that a document that purports to be a certified copy of the ’238
`
`patent is attached to the Complaint as Exhibit 1. Respondents admit that the face of the ’238 patent
`
`bears the title “Control Body For An Electronic Smoking Article” and the date December 12, 2017.
`
`The remaining allegations of paragraph 52 contain legal conclusions as to which no response is
`
`required. To the extent a response is required, Respondents lack sufficient information upon which
`
`to admit or deny the allegations of paragraph 52 and, on that basis, deny the remaining allegations
`
`of paragraph 52.
`
`13
`
`

`

`
`
`53.
`
` Respondents admit that the face of the ’238 patent states that it issued from Appl.
`
`No. 14/193,961, purportedly filed on February 28, 2014. The remaining allegations of paragraph
`
`53 contain legal conclusions as to which no response is required. To the extent a response is
`
`required, Respondents lack sufficient information upon which to admit or deny the allegations of
`
`paragraph 53 and, on that basis, deny the remaining allegations of paragraph 53.
`
`54.
`
`Respondents admit that the face of the ’238 patent states that the named inventors
`
`are Steven L. Worm, Michael Ryan Galloway, Frederic Philippe Ampolini, Randy Lee McKnight,
`
`and David Glen Christopherson. Respondents admit a document that purports to be each recorded
`
`assignment of the ’238 patent is attached to the Complaint as Exhibit 4. Respondents lack
`
`sufficient information upon which to admit or deny the remaining allegations of paragraph 54 and,
`
`on that basis, deny the remaining allegations of paragraph 54.
`
`55.
`
`The allegations of paragraph 55 contain legal conclusions as to which no response
`
`is required. To the extent a response is required, Respondents lack sufficient information upon
`
`which to admit or deny the allegations of paragraph 55 and, on that basis, deny the remaining
`
`allegations of paragraph 55.
`
`56.
`
`The allegations of paragraph 56 contain legal conclusions as to which no response
`
`is required. To the extent a response is required, Respondents lack sufficient information upon
`
`which to admit or deny the allegations of paragraph 56 and, on that basis, deny the remaining
`
`allegations of paragraph 56.
`
`57.
`
`Respondents admit that documents purporting to be a certified copy of the
`
`prosecution history of the ’238 patent, as well as each patent and applicable pages of each technical
`
`reference mentioned in the prosecution history are attached to the Complaint as Appendixes A and
`
`14
`
`

`

`
`
`B. Respondents lack sufficient information upon which to admit or deny the remaining allegations
`
`of paragraph 57 and, on that basis, deny the remaining allegations of paragraph 57.
`
`2.
`
`Non-Technical Description of the ’238 Patent
`
`58.
`
`Respondents lack sufficient information upon which to admit or deny the
`
`allegations of paragraph 58 and, on that basis, deny the allegations of paragraph 58.
`
`3.
`
`Foreign Counterparts to the ’238 Patent
`
`59.
`
`Respondents admit that a document that purports to be an identification of each
`
`foreign patent, each foreign patent application, and each foreign application that has been denied,
`
`abandoned or withdrawn corresponding to the ’238 patent is attached to the Complaint as Exhibit
`
`45. Respondents lack sufficient information upon which to admit or deny the remaining
`
`allegations of paragraph 59 and, on that basis, deny the remaining allegations of paragraph 59.
`
`B.
`
`U.S. Patent No. 9,901,123
`
`1.
`
`Identification of the Patent and Ownership by Complainant
`
`60.
`
`Respondents admit that a document that purports to be a certified copy of the ’123
`
`patent is attached to the complaint as Exhibit 2. Respondents admit that the face of the ’123 patent
`
`bears the title “Tobacco-Containing Smoking Article” and the date February 27, 2018. The
`
`remaining allegations of paragraph 60 contain legal conclusions as to which no response is
`
`required. To the extent a response is required, Respondents lack sufficient information upon which
`
`to admit or deny the allegations of paragraph 60 and, on that basis, deny the remaining allegations
`
`of paragraph 60.
`
`61.
`
`Respondents admit that the face of the ’123 patent states that it issued from Appl.
`
`No. 15/286,087, purportedly filed on October 5, 2016. The remaining allegations of paragraph 61
`
`contain legal conclusions as to which no response is required. To the extent a response is required,
`
`15
`
`

`

`
`
`Respondents lack sufficient information upon which to admit or deny the allegations of paragraph
`
`61 and, on that basis, deny the remaining allegations of paragraph 61.
`
`62.
`
`Respondents admit that the face of the ’123 patent states that the named inventors
`
`are John Howard Robinson, David William Griffith, Jr., Billy Tyrone Conner, Evon Llewellyn
`
`Crooks, and Dempsey Bailey Brewer, Jr. Respondents admit that a document that purports to be
`
`each recorded assignment of the ’123 patent is attached to the Complaint as Exhibit 5.
`
`Respondents lack sufficient information upon which to admit or deny the remaining allegations of
`
`paragraph 62 and, on that basis, deny the remaining allegations of paragraph 62.
`
`63.
`
`The allegations of paragraph 63 contain legal conclusions as to which no response
`
`is required. To the extent a response is required, Respondents lack sufficient information upon
`
`which to admit or deny the allegations of paragraph 63 and, on that basis, deny the remaining
`
`allegations of paragraph 63.
`
`64.
`
`The allegations of paragraph 64 contain legal conclusions as to which no response
`
`is required. To the extent a response is required, Respondents lack sufficient information upon
`
`which to admit or deny the allegations of paragraph 64 and, on that basis, deny the remaining
`
`allegations of paragraph 64.
`
`65.
`
`Respondents admit that documents purporting to be a certified copy of the
`
`prosecution history of the ’238 patent, as well as each patent and applicable pages of each technical
`
`reference mentioned in the prosecution history are attached to the Complaint as Appendixes C and
`
`D. Respondents lack sufficient information upon which to admit or deny the remaining allegations
`
`of paragraph 65 and, on that basis, deny the remaining allegations of paragraph 65.
`
`2.
`
`Non-Technical Description of the ’123 Patent
`
`66.
`
`Respondents lack sufficient information upon which to admit or deny the
`
`16
`
`

`

`
`
`allegations of paragraph 66 and, on that basis, deny the allegations of paragraph 66.
`
`3.
`
`Foreign Counterparts to the ’123 Patent
`
`67.
`
`Respondents admit that a document that purports to be an identification of each
`
`foreign patent, each foreign patent application, and each foreign application that has been denied,
`
`abandoned or withdrawn corresponding to the ’123 patent is attached to the Complaint as Exhibit
`
`46. Respondents lack sufficient information upon which to admit or deny the remaining
`
`allegations of paragraph 67 and, on that basis, deny the remaining allegations of paragraph 67.
`
`C.
`
`U.S. Patent No. 9,930,915
`
`1.
`
`Identification of the Patent and Ownership by Complainant
`
`68.
`
`Respondents admit that a document that purports to be a certified copy of the ’915
`
`patent is attached to the Complaint as Exhibit 3. Respondents admit that the face of the ’915 patent
`
`bears the title “Smoking Articles and Use Thereof for Yielding Inhalation Materials” and the date
`
`April 3, 2018. The remaining allegations of paragraph 68 contain legal con