`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before The Honorable Clark S. Cheney
`Administrative Law Judge
`
`
`In the Matter of
`
`
`
`CERTAIN TOBACCO HEATING
`ARTICLES AND COMPONENTS
`THEREOF
`
`RESPONSE OF RESPONDENTS ALTRIA CLIENT SERVICES LLC, ALTRIA GROUP,
`INC., AND PHILIP MORRIS USA, INC. TO THE COMPLAINT AND NOTICE OF
`INVESTIGATION
`
`Investigation No. 337-TA-1199
`
`
`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 Altria Client
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`Services LLC, Altria Group, Inc., and Philip Morris USA, Inc. hereby respond to the Complaint
`
`filed on April 9, 2020 by Complainants RAI Strategic Holdings, Inc., R.J. Reynolds Vapor
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`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
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`specifically referred to separately, Altria Client Services LLC, Altria Group, Inc., and Philip
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`Morris USA, Inc. shall be collectively referred to herein as “Respondents” for purposes of
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`convenience.
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`Respondents deny that they have directly or through their affiliates or third parties engaged
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`in acts of unfair competition in violation of Section 337 by importing, selling for importation,
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`and/or selling within the United States after importation any product that infringes literally and/or
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`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
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`that asserted claims of the Asserted Patents are valid and/or enforceable. Except as expressly
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`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
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`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
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`information, Respondents lack sufficient information on which to admit or deny such allegations
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`and, on that basis, deny such allegations. Moreover, Respondents reserve the right to take further
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`1
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`positions and raise additional defenses as may become apparent as a result of additional
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`information that may be discovered subsequent to the filing of this response.
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`ADMISSIONS AND DENIALS OF SPECIFIC ALLEGATIONS
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`The numbered Paragraphs herein correspond with and respond to the numbered Paragraphs
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`set forth in the Complaint.
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`I.
`
`INTRODUCTION1
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`1.
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`Respondents admit that RAI Holdings, Inc. (“RAI”), R.J. Reynolds Vapor
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`Company
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`(“RJRV”), and R.J. Reynolds Tobacco Company
`
`(“RJRT”)
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`(collectively,
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`“Complainants”) filed its Complaint under Section 337 of the Tariff Act of 1930, as amended, 19
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`C.F.R. § 1337. Respondents deny the remaining allegations of paragraph 1.
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`2.
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`Respondents admit that documents purporting to be copies of the Asserted Patents
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`(as defined in paragraph 2 of the Complaint) are attached to the Complaint as Exhibits 1, 2, and 3.
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`Respondents admit that the table in paragraph 2 lists the claims asserted in the Complaint.
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`Respondents deny the remaining allegations of paragraph 2.
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`3.
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`Respondents deny that the Asserted Patents are valid and enforceable. Respondents
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`lack sufficient information upon which to admit or deny the remaining allegations of paragraph 3
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`and, on that basis, deny the remaining allegations of paragraph 3.
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`4.
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`5.
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`Respondents deny the allegations of paragraph 4.
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`The allegations of paragraph 5 contain legal conclusions as to which no response is
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`required. To the extent a response is required, Respondents deny the allegations of paragraph 5.
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`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.
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`2
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`
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`6.
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`The allegations of paragraph 6 contain legal conclusions as to which no response is
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`required. To the extent a response is required, Respondents deny the allegations of paragraph 6.
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`Respondents further deny that Complainants are entitled to any relief under 19 U.S.C. § 1337.
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`II.
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`THE PARTIES
`
`A.
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`7.
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`Complainants
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`Respondents lack sufficient information upon which to admit or deny the
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`allegations of paragraph 7, on that basis, deny the allegations of paragraph 7.
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`8.
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`Respondents lack sufficient information upon which to admit or deny the
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`allegations of paragraph 8, on that basis, deny the allegations of paragraph 8.
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`9.
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`Respondents lack sufficient information upon which to admit or deny the
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`allegations of paragraph 9, on that basis, deny the allegations of paragraph 9.
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`B.
`
`Respondents
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`1.
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`Altria Client Services LLC
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`10.
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`Respondents admit that Altria Client Services LLC is a Virginia corporation with
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`offices at 6601 West Broad Street, Richmond, Virginia 23230. Respondents admit that a document
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`purporting to a PMTA Coversheet: Technical Project Lead Review is attached to the Complaint as
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`Exhibit 8. Respondents admit that the face of Exhibit 8 states that “PMP S.A.’s parent company,
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`Philip Morris International Management S.A. (PMI) has entered into a distribution agreement with
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`Altria Client Services LLC (ALCS) by which ALCS and an ALCS affiliate, Philip Morris USA
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`Inc. (PM USA), will be licensed to distribute and sell the IQOS system and the Marlboro Heatsticks
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`in the U.S. upon receipt of a marketing authorization.” Respondents admit that Altria Client
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`Services LLC and Philip Morris USA, Inc. are licensed to distribute and sell IQOS® products and
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`disposable tobacco sticks in the United States. Respondents deny that any tobacco heating articles
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`3
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`and components thereof, including disposable tobacco sticks infringe the Asserted Patents.
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`Respondents deny the remaining allegations of paragraph 10.
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`2.
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`Altria Group, Inc.
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`11.
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`Respondents admit that Altria Group, Inc. is a Virginia corporation with offices at
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`6601 West Broad Street, Richmond, Virginia 23230. Respondents admit that Altria Group, Inc. is
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`the ultimate parent of Altria Client Services LLC and Philip Morris USA, Inc. Altria Group, Inc.
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`is a holding company that does not engage in the sale for importation or sales within the United
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`States after importation of tobacco heating articles and components thereof, including disposable
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`tobacco sticks. Respondents deny the remaining allegations of paragraph 11.
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`3.
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`Philip Morris USA, Inc.
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`12.
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`Respondents admit that Philip Morris USA, Inc. is a Virginia corporation with
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`offices at 6601 West Broad Street, Richmond, Virginia 23230. Respondents admit that the face
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`of Exhibit 8 states that “PMP S.A.’s parent company, Philip Morris International Management
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`S.A. (PMI) has entered into a distribution agreement with Altria Client Services LLC (ALCS) by
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`which ALCS and an ALCS affiliate, Philip Morris USA Inc. (PM USA), will be licensed to
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`distribute and sell the IQOS system and the Marlboro Heatsticks in the U.S. upon receipt of a
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`marketing authorization.” Respondents admit that Altria Client Services, LLC and Philip Morris
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`USA, Inc. are licensed to distribute, offer for sale, and sell in the United States IQOS® systems
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`and disposable tobacco sticks. Respondents admit that Philip Morris USA, Inc. imports and sells
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`after importation certain IQOS® systems and disposable tobacco sticks into the United States.
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`Respondents deny that any tobacco heating articles and components thereof, including disposable
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`tobacco sticks, infringe any of the Asserted Patents. Respondents admit that IQOS® systems and
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`4
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`
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`disposable tobacco sticks are manufactured outside of the United States. Respondents deny the
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`remaining allegations of paragraph 12.
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`4.
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`Philip Morris International Inc.
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`13.
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`Respondents deny that they operate in conjunction with Philip Morris International,
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`Inc. with regard to the importation into the United States, sale for importation into the United
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`States, and/or sale within the United States after importation, any tobacco heating articles and
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`components thereof, including disposable tobacco sticks. Respondents deny that any tobacco
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`heating articles and components thereof, including disposable tobacco sticks infringe any Asserted
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`Patent. Respondents lack sufficient information upon which to admit or deny the allegations of
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`paragraph 13 and, on that basis, deny the allegations of paragraph 13.
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`5.
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`Philip Morris Products S.A.
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`14.
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`Respondents admit that Philip Morris USA, Inc. and Altria Client Services LLC
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`consulted with Philip Morris Products S.A. in preparing and submitting certain aspects of PMTA
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`and MRTP applications to the FDA. Respondents admit that Philip Morris USA, Inc. purchases
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`certain IQOS® systems and disposable tobacco sticks from Philip Morris Products S.A. for
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`importation into the United States. Respondents deny that an IQOS® system or disposable tobacco
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`sticks infringe any of the Asserted Patents. Respondents deny that any tobacco heating articles
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`and components thereof, including disposable tobacco sticks infringe any Asserted Patent.
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`Respondents lack sufficient information upon which to admit or deny the remaining allegations of
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`paragraph 14 and, on that basis, deny the allegations of paragraph 14.
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`5
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`
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`III. THE TECHNOLOGY AND PRODUCTS AT ISSUE
`
`A.
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`15.
`
`The Technology
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`Respondents admit that the Complaint accuses tobacco heating articles and
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`components thereof. Respondents lack sufficient information upon which to admit or deny the
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`remaining allegations of paragraph 15 and, on that basis, deny the remaining allegations of
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`paragraph 15.
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`16.
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`Respondents admit
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`that
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`traditional combustible cigarettes yield smoke.
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`Respondents lack sufficient information upon which to admit or deny the remaining allegations of
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`paragraph 16 and, on that basis, deny the remaining allegations of paragraph 16.
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`17.
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`Respondents lack sufficient information upon which to admit or deny the
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`allegations of paragraph 17 and, on that basis, deny the allegations of paragraph 17.
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`18.
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`Respondents lack sufficient information upon which to admit or deny the
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`allegations of paragraph 18 and, on that basis, deny the allegations of paragraph 18.
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`B.
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`19.
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`The Accused Products
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`Respondents admit that the Complaint alleges infringement by certain tobacco
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`heating articles and components thereof, including disposable tobacco sticks. Respondents deny
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`the allegations of paragraph 19.
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`20.
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`Respondents admit that as part of the PMTA and MRTP applications submitted to
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`the FDA, certain IQOS® systems were tested in clinical studies within the U.S. Respondents
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`admit that Philip Morris USA, Inc. has imported into the United States certain IQOS® systems for
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`commercial sale, distribution, and marketing. Respondents admit that Altria Client Services, LLC
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`and Philip Morris USA , Inc. have consulted with Philip Morris Products S.A. to facilitate
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`obtaining regulatory approval for certain IQOS® systems. Altria Group, Inc. does not import, sell
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`6
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`for importation, or sell within the United States after importation any Accused Product.
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`Respondents deny the remaining allegations of paragraph 20.
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`1.
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`FDA Authorization
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`21.
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`Respondents admit that a document purporting to be a PMTA Coversheet:
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`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
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`the face of Exhibit 8 lists Philip Morris Products S.A. as the Applicant. Respondents admit that
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`the face of Exhibit 8 lists May 15, 2017 as the submission date. Respondents admit that a document
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`purporting to be an FDA marketing order is attached to the Complaint as Exhibit 16. Respondents
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`admit that the face of Exhibit 16 lists Philip Morris Products S.A. as the addressee. Respondents
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`admit that Altria Client Services LLC and Philip Morris USA, Inc. consulted with Philip Morris
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`Products S.A. in the preparation of certain aspects of a PMTA. Respondents lack sufficient
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`information upon which to admit or deny the remaining allegations of paragraph 21 and, on that
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`basis, deny the remaining allegations of paragraph 21.
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`22.
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`Respondents admit that on or about April 30, 2019, FDA issued its marketing order
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`regarding IQOS® systems. Respondents admit that certain IQOS® systems can be sold within the
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`United States. Respondents deny the remaining allegations of paragraph 22.
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`23.
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`Respondents admit that Philip Morris Products S.A. submitted Modified Risk
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`Tobacco Product Applications (“MRTPA”) for certain IQOS® systems on or about November 18,
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`2016 and that such applications are still under review by the FDA. Respondents admit that Altria
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`Client Services LLC and Philip Morris USA, Inc. consulted with Philip Morris Products S.A. in
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`the preparation of certain aspects of a MRTPA. Respondents admit that the MRTPA includes
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`claims that IQOS® system results in reduced exposure or reduced risk. Respondents deny the
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`remaining allegations of paragraph 23.
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`7
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`24.
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`Respondents admit that Philip Morris Products S.A. prosecuted PMTA and MRTP
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`applications, including amendments and responses to FDA requests. Respondents admit that
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`Altria Client Services LLC and Philip Morris USA, Inc. consulted on the preparation of PMTA
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`and MRTP applications. Respondents deny the remaining allegations of paragraph 24.
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`25.
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`Respondents admit that FDA has authorized IQOS® 2.4 for commercial sale and
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`marketing within the United States. Respondents admit that an IQOS® system includes a holder
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`and a charger. Respondents admit that disposable tobacco sticks are used with an IQOS® system.
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`Respondents deny the remaining allegations of paragraph 25.
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`2.
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`Actual Sales for Importation, Sales After Importation into the United
`States
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`26.
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`Respondents admit that Philip Morris USA, Inc. has submitted purchase orders to
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`Philip Morris Products S.A. for certain IQOS® systems since at least October 2019. Respondents
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`admits that Philip Morris USA, Inc. imports and sells certain IQOS® systems in the United States.
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`Respondents admit that Philip Morris USA, Inc. oversees retail locations in Atlanta, Georgia and
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`Richmond, Virginia that offer to sell and sell certain IQOS® system and disposable tobacco sticks.
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`Altria Group, Inc. does not import, sell for importation, or sell within the United States after
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`importation any Accused Product. Respondents deny the remaining allegations of paragraph 26.
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`3.
`
`The IQOS® Holder
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`27.
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`Respondents admit that a document purporting to be a PMTA Coversheet:
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`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
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`the Exhibit 8, submitted on May 15, 2017, states that an IQOS Holder is “an electrically powered
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`and rechargeable unit designed to hold and heat the Heatsticks during consumer use to generate
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`the nicotine-containing aerosol.” Respondents admit that Exhibit 8 states that an IQOS Holder
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`includes a battery and a heating blade. Paragraph 27 purports to characterize the contents of
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`8
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`
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`documents that speak for themselves and no response is required. Respondents deny the remaining
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`allegations of paragraph 27.
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`28.
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`Respondents admit that a document purporting to be a PMTA Coversheet:
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`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
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`the Exhibit 8 states that “[t]he Holder heats the tobacco using a . . . ceramic blade, which is pushed
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`into the tobacco plug by the act of inserting the HeatStick into the Holder.”
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`4.
`
`The IQOS® Disposable Tobacco Sticks
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`29.
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`Respondents admit that disposable tobacco sticks for use with an IQOS® system
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`are available as Marlboro Heatsticks, Smooth Menthol Heatsticks, and Fresh Menthol Heatsticks.
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`Respondents admit that the disposable tobacco sticks are designed for use with an IQOS Holder.
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`Paragraph 29 purports to characterize the contents of documents that speak for themselves and no
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`response is required. Paragraph 29 contains legal conclusions for which no response is required.
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`Respondents deny the remaining allegations of paragraph 29.
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`30.
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`Respondents admit that a document purporting to be a PMTA Coversheet:
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`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
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`the disposable tobacco sticks are designed for use an IQOS Holder. Respondents admit that
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`Exhibit 8 states: “The IQOS Heatstick: a tobacco plug consisting of crimped cast reconstituted
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`tobacco sheet made from ground tobacco powder.” Respondents admit that Exhibit 8 states that
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`“the tobacco is ground and reconstituted into sheets (termed cast-leaf) following the addition of
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`water, glycerin, guar gum and cellulose fibers.” Paragraph 30 purports to characterize the contents
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`of documents that speak for themselves and no response is required. Paragraph 30 contains legal
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`conclusions for which no response is required. Respondents deny the remaining allegations of
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`paragraph 30.
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`9
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`31.
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`Respondents admit that the disposable tobacco sticks for use with an IQOS®
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`system are available as Marlboro Heatsticks, Smooth Menthol Heatsticks, and Fresh Menthol
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`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
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`response is required. Respondents deny the remaining allegations of paragraph 31.
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`5.
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`The IQOS® Charger
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`32.
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`Respondents admit that a document purporting to be a PMTA Coversheet:
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`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
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`Exhibit 8 states an IQOS Charger is “used to recharge the Holder after each use.” Respondents
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`admit that Exhibit 8 states that “The Charger battery holds sufficient charge to recharge the Holder
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`20 times. The Charger is recharged using an AC adaptor.” Paragraph 32 purports to characterize
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`the contents of documents that speak for themselves and no response is required. Respondents
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`deny the remaining allegations of paragraph 32.
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`33.
`
`Respondents admit that an IQOS® system sometimes includes a cleaning tool for
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`cleaning an IQOS holder. Respondents deny the remaining allegations of paragraph 33.
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`6.
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`Operation and Manufacture of the IQOS® System
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`34.
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`Respondents admit that a document purporting to be a PMTA Coversheet:
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`Technical Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that
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`Exhibit 8 states that the “heating blade is inserted into a Heatstick to heat the tobacco. The user
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`activates the Holder by pressing the activation button for a set period until the light begins to blink,
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`signaling that the product may be used.” Respondents admit that Exhibit 8 states that “Heatsticks
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`are designed to be electrically heated to release nicotine-containing aerosol and are not intended
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`to be combusted.” Respondents admit that Exhibit 8 states that “[t]he temperature of the heating
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`10
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`
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`blade is controlled and the energy supply to the blade is cut off if its operating temperature exceeds
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`350°C.” Paragraph 34 purports to characterize the contents of documents that speak for themselves
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`and no response is required. Paragraph 34 contains legal conclusions for which no response is
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`required. Respondents deny the remaining allegations of paragraph 34.
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`35.
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`Respondents admit that IQOS® systems are manufactured by third parties outside
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`of the United States. Respondents admit that Philip Morris USA, Inc. imports certain IQOS®
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`systems into the United States for sale in the United States. Altria Group, Inc. does not import,
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`sell for importation, or sell within the United States after importation any Accused Product.
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`Respondents admit that IQOS® systems and disposable tobacco sticks are manufactured outside
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`the United States. Respondents admit that paragraph 35 purports to quote from selections of
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`Exhibits 22-25 and 34-36 of the Complaint. Paragraph 35 contains legal conclusions for which no
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`response is required. Respondents deny the remaining allegations of paragraph 35.
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`7.
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`Respondents’ Instructions for Use of the IQOS® System
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`36.
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`Respondents admit a document purporting to be a PMTA Coversheet: Technical
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`Project Lead Review is attached to the Complaint as Exhibit 8. Respondents admit that the face
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`of Exhibit 8 states that “[t]he submission included a copy of the IQOS Tobacco Heating System
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`User Guide and the IQOS Quick Start Guide.” Respondents admit that Exhibit 8 includes the
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`words “comprehensive instructions for use.” Respondents admit that exhibit 8 includes the words
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`“The Quick Start Guide provides the basic information needed to use the IQOS system.”
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`Respondents lack sufficient information upon which to admit or deny the remaining allegations of
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`paragraph 36 and, on that basis, deny the remaining allegations of paragraph 36.
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`37.
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`Paragraph 37 purports to characterize the contents of documents that speak for
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`themselves and no response is required. Respondents lack sufficient information upon which to
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`11
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`admit or deny the allegations of paragraph 37 and, on that basis, deny the allegations of paragraph
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`37.
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`38.
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`The allegations of paragraph 38 contain legal conclusions as to which no response
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`is required. To the extent that a response is required, Respondents lack sufficient information upon
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`which to admit or deny the allegations of paragraph 38 and, on that basis, deny the remaining
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`allegations of paragraph 38.
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`39.
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`Respondents admit that an IQOS® system is sold with the guides and instructions
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`required for compliance with applicable laws. Respondents admit that a document purporting to
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`be an “IQOS® User Guide” is attached as Exhibit 37. Respondents admit that a document
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`purporting to be an “IQOS® Quick Start Guide” is attached as Exhibit 38. Respondents lack
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`sufficient information upon which to admit or deny the remaining allegations of paragraph 39 and,
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`on that basis, deny the remaining allegations of paragraph 39.
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`40.
`
`41.
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`Respondents deny the allegations of paragraph 40.
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`Respondents deny the allegations of paragraph 41.
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`IV.
`
`THE PATENTS AT ISSUE
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`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
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`allegations of paragraph 42.
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`43.
`
`Respondents admit that the face of the ’238 patent purports to include 2 independent
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`claims and 19 dependent claims. Respondents lack sufficient information upon which to admit or
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`deny the remaining allegations of paragraph 43 and, on that basis, deny the remaining allegations
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`of paragraph 43.
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`12
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`44.
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`45.
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`Respondents deny the allegations of paragraph 44.
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`The allegations of paragraph 45 contain legal conclusions as to which no response
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`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
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`allegations of paragraph 45.
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`46.
`
`Respondents admit that the face of the ’123 patent purports to include 3 independent
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`claims and 27 dependent claims. Respondents lack sufficient information upon which to admit or
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`deny the remaining allegations of paragraph 46 and, on that basis, deny the remaining allegations
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`of paragraph 46.
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`47.
`
`48.
`
`Respondents deny the allegations of paragraph 47.
`
`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.
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`49.
`
`Respondents admit that the face of the ’915 patent purports to include 1 independent
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`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.
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`13
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`
`
`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.
`
`53.
`
` Respondents admit that the face of the ’238 patent states that it issued from Appl.
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`No. 14/193,961, purportedly filed on February 28, 2014. The remaining allegations of paragraph
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`53 contain legal conclusions as to which no response is required. To the extent a response is
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`required, Respondents lack sufficient information upon which to admit or deny the allegations of
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`paragraph 53 and, on that basis, deny the remaining allegations of paragraph 53.
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`54.
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`Respondents admit that the face of the ’238 patent states that the named inventors
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`are Steven L. Worm, Michael Ryan Galloway, Frederic Philippe Ampolini, Randy Lee McKnight,
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`and David Glen Christopherson. Respondents admit a document that purports to be each recorded
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`assignment of the ’238 patent is attached to the Complaint as Exhibit 4. Respondents lack
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`sufficient information upon which to admit or deny the remaining allegations of paragraph 54 and,
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`on that basis, deny the remaining allegations of paragraph 54.
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`55.
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`The allegations of paragraph 55 contain legal conclusions as to which no response
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`is required. To the extent a response is required, Respondents lack sufficient information upon
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`which to admit or deny the allegations of paragraph 55 and, on that basis, deny the remaining
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`allegations of paragraph 55.
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`56.
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`The allegations of paragraph 56 contain legal conclusions as to which no response
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`is required. To the extent a response is required, Respondents lack sufficient information upon
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`which to admit or deny the allegations of paragraph 56 and, on that basis, deny the remaining
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`allegations of paragraph 56.
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`57.
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`Respondents admit that documents purporting to be a certified copy of the
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`prosecution history of the ’238 patent, as well as each patent and applicable pages of each technical
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`reference mentioned in the prosecution history are attached to the Complaint as Appendixes A and
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`B. Respondents lack sufficient information upon which to admit or deny the remaining allegations
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`of paragraph 57 and, on that basis, deny the remaining allegations of paragraph 57.
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`2.
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`Non-Technical Description of the ’238 Patent
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`58.
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`Respondents lack sufficient information upon which to admit or deny the
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`allegations of paragraph 58 and, on that basis, deny the allegations of paragraph 58.
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`3.
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`Foreign Counterparts to the ’238 Patent
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`59.
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`Respondents admit that a document that purports to be an identification of each
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`foreign patent, each foreign patent application, and each foreign application that has been denied,
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`abandoned or withdrawn corresponding to the ’238 patent is attached to the Complaint as Exhibit
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`45. Respondents lack sufficient information upon which to admit or deny the remaining
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`allegations of paragraph 59 and, on that basis, deny the remaining allegations of paragraph 59.
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`B.
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`U.S. Patent No. 9,901,123
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`1.
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`Identification of the Patent and Ownership by Complainant
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`60.
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`Respondents admit that a document that purports to be a certified copy of the ’123
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`patent is attached to the complaint as Exhibit 2. Respondents admit that the face of the ’123 patent
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`bears the title “Tobacco-Containing Smoking Article” and the date February 27, 2018. The
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`remaining allegations of paragraph 60 contain legal conclusions as to which no response is
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`required. To the extent a response is required, Respondents lack sufficient information upon which
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`to admit or deny the allegations of paragraph 60 and, on that basis, deny the remaining allegations
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`of paragraph 60.
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`61.
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`Respondents admit that the face of the ’123 patent states that it issued from Appl.
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`No. 15/286,087, purportedly filed on October 5, 2016. The remaining allegations of paragraph 61
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`contain legal conclusions as to which no response is required. To the extent a response is required,
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`Respondents lack sufficient information upon which to admit or deny the allegations of paragraph
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`61 and, on that basis, deny the remaining allegations of paragraph 61.
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`62.
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`Respondents admit that the face of the ’123 patent states that the named inventors
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`are John Howard Robinson, David William Griffith, Jr., Billy Tyrone Conner, Evon Llewellyn
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`Crooks, and Dempsey Bailey Brewer, Jr. Respondents admit that a document that purports to be
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`each recorded assignment of the ’123 patent is attached to the Complaint as Exhibit 5.
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`Respondents lack sufficient information upon which to admit or deny the remaining allegations of
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`paragraph 62 and, on that basis, deny the remaining allegations of paragraph 62.
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`63.
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`The allegations of paragraph 63 contain legal conclusions as to which no response
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`is required. To the extent a response is required, Respondents lack sufficient information upon
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`16
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`which to admit or deny the allegations of paragraph 63 and, on that basis, deny the remaining
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`allegations of paragraph 63.
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`64.
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`The allegations of paragraph 64 contain legal conclusions as to which no response
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`is required. To the extent a response is required, Respondents lack sufficient information upon
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`which to admit or deny the allegations of paragraph 64 and, on that basis, deny the remaining
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`allegations of paragraph 64.
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`65.
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`Respondents admit that documents purporting to be a certified copy of the
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`prosecution history of the ’238 patent, as well as each patent and applicable pages of each technical
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`reference mentioned in the prosecution history are attached to the Complaint as Appendixes C and
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`D. Respondents lack sufficient information upon which to admit or deny the remaining allegations
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`of paragraph 65 and, on that basis, deny the remaining allegations of paragraph 65.
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`2.
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`Non-Technical Description of the ’123 Patent
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`66.
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`Respondents lack sufficient information upon which to admit or deny the
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`allegations of paragraph 66 and, on that basis, deny the remaining allegations of paragraph