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`ee
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON,D.C.
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`Before the Honorable Monica Bhattacharyya
`Administrative Law Judge
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`In the Matter of
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`CERTAIN DISPOSABLE VAPORIZER
`DEVICES
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`Inv. No. 337-TA-1410
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`COMPLAINANTS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF
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`INTRODUCTION00000... ccccccccecccescceccesceeseeseceseessesecsecsaeeseceaecsaceseeeseceaceseceaeeeaeceteeeeseeseseaeeess 1
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`REYNOLDS’S PROPOSED CONSTRUCTIONS SHOULD BE ADOPTED................... 1
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`A.
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`B.
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`Cc.
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`D.
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`E.
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`F.
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`“storage compartment [being configured for storage of a liquid aerosol-
`forming material]” (claims 1, 3-5, 8-9) ..........ccecceececeeecesceesecceseeeeeeesceeseceeeeesseeesees 1
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`“heater” (claims 1, 9-12, 14, 18, 25-26)... occccccccccccecccescceeeseceesseceesseceessecessseeesseees4
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`“air passagewaythrough atleast a portion of the outer housing”(claims 1,
`V8) coc ceeececcesceeseesceeseeseeseeesecsaeeseesaecsseeseceaeesseesscesecsaeesseeaecsaeeseeeaeeeseeeceaeeeseeseeeaeesees 10
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`“smoking article” (all claims) -...........0.cecceececesceeeceeeeceeeceeeseeeseeeeeeeeeeeeseeeeeesseeeeeeens 12
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`“controller” (claims 1, 14)........0.ccccccecccccceessceeesecceeseceesseeeesseceesscceesseeeessceeesseeesaes 12
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`“ends” (Claims 1, 15) .......cccceeeccceccescceesceesceeeecesecessecescceseeceseceeeceseceseeceseeesseeseeesetens 14
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`CONCLUSIONo.oo ceccccccecccecceeceeseeseceseeseessesecsaecsaceseceaecsacesecesecaeesaceseceaeeeeeseeeaeeeseeneeeaeeeees 18
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`TABLE OF AUTHORITIES
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`Page
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`CASES
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`Baranv. Med. Device Techs., Inc.,
`616 F.3d 1309 (Fed. Cir. 2010)..0.....cccccecccceccceccescceescceseeeseeeeseeescecesceesceceseeeseeceaeeeseeseeeesseeesees 18
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`Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc.,
`326 F.3d 1215 (Fed. Cir. 2003)... .occecececcccesccescceeseceseceeseceseeeecceseeessecesecesecesecesseeeseeesseeeeeeees4
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`ChefAm., Inc. v. Lamb-Weston, Inc.,
`358 F.3d 1371 (Fed. Cir. 2004) oo... cccccccccccesceescceesecesseesecesseeesecessecesceesseeesscessceeseeesseeesees 10
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`Intamin Ltd. v. Magnetar Techs., Corp.,
`483 F.3d 1328 (Fed. Cir. 2007).........ccccccccceccceeceesccceseeeseeceseeeseeceseceseeceaceeeeeeseeeseeceseeesseseeeeees 18
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`Kopvkake Enterprises, Inc. v. Lucks Co.,
`264 F.3d 1377 (Fed. Cir. 2001). ........ccccececccccceecccesceeseceeseceseeeeseceseeceseceseceeseeesseceseeesseeeseeeees 5,16
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`Liebel-Flarsheim Co. v. Medrad, Inc.,
`358 F.3d 898 (Fed. Cir. 2004)... ...cccccccccesccescceseceesecesseeesecesseceseceseeesecesseseseeesseesseenseees 1,2, 12
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`Littelfuse, Inc. v. Mersen USA EP Corp.,
`29 F.Ath 1376 (Fed. Cir. 2022) o0....ccccccccccccccccscceesscceesseceesecceeseeceeseecesseccesecceseceesaeceesseeessseeeeses2
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`Merck & Co., Inc. v. Teva Pharms. USA, Inc.,
`395 F.3d 1364 (Fed. Cir. 2005)........ ccc cececccccceccccecceccesseceseecesecesaeceseeesecesseeeseeeeseeeseeees 15, 16, 17
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`Philip Morris Prod. S.A. v. RAI Strategic Holdings, Inc.,
`No. 2022-1846, 2023 WL 5970786 (Fed. Cir. Sept. 14, 2023) .0.....oceeeececceeeeceeseeeseeeeeeeeeeeees 8
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`SST Techs., LLC v. Dongguan Zhengyang Elec. Mech. LTD..,
`59 F4th 1328 (Fed. Cir. 2023) o0....cccccceccccccccecceesccesscesseeessceesecesscessecesseeesecessecssscesseeesseesseeesaes 16
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`Tate Access Floors, Inc. v. Maxcess Techs., Inc.,
`222 F.3d 958 (Fed. Cir. 2000)... ....ccecccceccceccesccessceesceeseeeesecessecaeeeseeceseceseeceaceeseeseseeesseeeaeeeseeees4
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`TIP Sys., LLC v. Phillips & Brooks/Gladwin, Inc.,
`529 F.3d 1364 (Fed. Cir. 2008)........ ccc cecccccecccecceesccesceeeseeeseeeseceseecaeceseeceaeeeeeceaeeeseeeeseeesseeesees 18
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`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996).........cccccccccccceccesccessccesccessecesecessccesecessecesecesseesseeeseceseeesseeeseeesseees6
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`Wilson Sporting Goods Co. v. Hillerich & BradsbyCo.,
`442 F.3d 1322 (Fed. Cir. 2006).........cececcecceccesceceseeseeseeseeseeeceseceaeeaceaeeseeaeeseesecseseceseesteaeesseaees 13
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`TABLE OF EXHIBITS AND ABBREVIATIONS
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`Exhibit Name or Abbreviation
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`Definition
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`Domestic Indus
`The Reynolds’s products that practice the inventions
`claimed in the ’202 Patent: VUSE Solo, VUSE Vibe, VUSE
`Ciro and VUSEAlto
`
`IPR2020-01602 Final Written Decision (attached as Ex. 1
`’202 Patent (attached as Ex. 2
`Person of ordinary
`skill in theart
`Respondents’ Final Invalidity Contentions (attached as Ex.
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`3 R
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`espondents’ Initial Invalidity Contentions (attached as Ex.
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`4 R
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`espondents’ Opening Claim Construction Brief (EDIS
`Doc. ID No. 836283
`Collectively, Complainants RAI Strategic HoldingsInc.,
`R.J. Reynolds Vapor Company, RAI Services Company, and
`R.J. Reynolds Tobacco Compan
`Staff’s Opening Claim Construction Brief (EDIS Doc. ID
`No. 836980
`United States Patent No. 11,925,202
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`DI
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`DI Products
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`IPR2020-01602 FWD
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`JX-0001
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`POSA
`Resp.Final Inv. Conts.
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`Resp.In. Inv. Conts.
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`Resp. Op. Cl. Constr. Br.
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`Reynolds
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`Staff's Op. Cl. Constr. Br.
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`The ’202 Patent
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`INTRODUCTION
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`Reynolds’s proposed constructions stay true to the plain and ordinary meaning of each
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`disputed claim term, in view ofthe intrinsic record. Respondents’ proposed constructionsdo not.
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`The non-technical language used in the claims of the ’202 Patent are not unusually defined in the
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`specification, and thus should be given their plain and ordinary meaningasset forth in Reynolds’s
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`opening brief. Neither Respondents nor Staff set forth a legal or factual basis for adopting their
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`outcome-driven constructions which seek to rewrite the claims in violation of long-established
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`claim construction principles. Reynolds’s plain and ordinary meaning constructions should be
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`adopted—Respondents’ constructions should be rejected.
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`Il.
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`REYNOLDS’S PROPOSED CONSTRUCTIONS SHOULD BE ADOPTED
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`A.
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`“storage compartment [being configured for storage of a liquid aerosol-
`forming material]” (claims 1, 3-5, 8-9)
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`Staff's Proposed
`Respondents’ Proposed
`Complainants’ Proposed
`Construction
`Construction
`Construction
`Plain and ordinary meaning,|Plain and ordinary meaning,|Plain and ordinary meaning,
`which is an area where
`which is an enclosure where
`whichis an enclosure area
`something is stored!
`something is stored
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`where something is stored
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`AsReynolds anticipated, Respondents’ refusal to accept Reynolds’s proposed construction
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`of the “storage compartment” limitation as the plain and ordinary meaning—whichis an area
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`where something is stored—waspremised on Respondents’ intention to attempt to improperly read
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`in a limitation from the specification. Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 904
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`(Fed. Cir. 2004) (“[I]t is improper to read a limitation from the specification into the claims.”).
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`Forthe first time in its opening claim construction brief, Respondents proposedthat the plain and
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`1 Reynolds notes that in the TEO ID, the ALJ construed “storage compartment” “according to
`its plain and ordinary meaning, whichis not limited to ‘containers’ that are ‘configured to permit
`replenishment of the liquid in the smokingarticle.”” TEO ID at 34-37. Reynolds agrees with the
`ALJ’s analysis and conclusion therein, and submits that Respondents have not provided any
`additional or different arguments that should alter that conclusion.
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`ordinary meaning of “storage compartment”is “an enclosure where somethingis stored.” Resp.
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`Op. Cl. Constr. Br. at 8. And while Staff has now seemingly shifted positions with regard to this
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`claim term, such a proposed construction is nothing more than a renewal of Respondents’ previous
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`“container”limitation proposed during the TEO phase of the Investigation. For all of the reasons
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`set forth during the TEO phaseand in Reynolds’s opening brief, such a limitation (whether referred
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`to as a “container” or an “enclosure”) should be rejected.
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`During the TEO phase, Respondents sought to import a “container” requirement into the
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`“storage compartment” limitation. As Reynolds explained then, apart from being inconsistent
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`with the plain language of the claim, such a requirement would also violate the principle of claim
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`differentiation. Here, dependent claim 8 expressly recites configuring the “storage
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`compartment”as a “container,” which makesclear that the term “storage compartment”byitself
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`is not so limited. Therefore, a “container” limitation should not be imported into claim 1 under
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`the guise of construing “storage compartment.” Liebel-Flarsheim, 358 F.3d at 910 (“In such a
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`setting, where the limitation that is sought to be ‘read into’ an independentclaim already appears
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`in a dependentclaim, the doctrine of claim differentiation is at its strongest”). Worse,
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`configuring the storage compartmentas a containeris the on/y limitation that claim 8 adds to
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`claim 1, so Respondents’ proposed construction would renderclaim 8 entirely superfluous. See
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`Littelfuse, Inc. v. Mersen USA EP Corp., 29 F4th 1376, 1380 (Fed. Cir. 2022) (““Mersen’s
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`construction would not merely render the dependent claims superfluous, but would mean that
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`those claims would have no scopeatall, a result that should be avoided whenpossible.”)
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`Now,in an apparent end-around ofthese principles, Respondents have replaced their
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`proposed “container” requirement with an “enclosure” requirement. But this change in words
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`does not reflect a change in meaningorstrategy, as evidenced by Respondents’ reliance on
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`exactly the sameportions of the specification discussing a “cartridge” and a “liquid storage
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`container.” Resp. Op. Cl. Constr. Br. at 9. Respondents’ attempted sleight-of-hand in replacing
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`their proposed “container” requirement with an “enclosure” requirement should be rejected for
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`the same reasons.
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`Respondents’ characterization of Reynolds’s plain-and-ordinary-meaning construction as
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`““mbounded” further misses the mark. Resp. Op. Cl. Constr. Br. at 9. The term “storage
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`compartment”is clear and meaningful—the word“storage”indicates that the compartmentis for
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`storing something, while the word “compartment”indicatesthatit is a “part,” an area, that provides
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`the meansfor that storage. Those storage areas need not be containers or enclosures, though in
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`some cases they may be. As Reynolds showed in its opening brief, the specification of the ’202
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`Patent sets forth several specific examples of “storage compartments” which expressly do not
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`require any “container” or “enclosure.” For example, the aerosol-forming material can be soaked
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`within absorbentfibrous materials or sponge-like materials. JX-0001 at 14:39-43. Such fibers or
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`spongesare not “enclosures,” yet they are “storage compartments” within the meaning ofthe claim
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`language. The specification further states that, alternatively, “the aerosol-forming material can be
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`incorporated within, or carried by, a material that acts as a substrate.” Jd. at 14:45-47. Here, too,
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`such substrates would not fairly be categorized as “enclosures,” yet substrates are expressly
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`described as “storage compartments”in the specification. These specific examples demonstrate
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`that “storage compartment” is not
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`limited to the bounds of any particular “container” or
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`“enclosure.”
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`In sum:
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`Respondents seek to improperly narrow the construction of “storage
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`compartment”to only the container-type embodimentsin the specification. Reynolds, by contrast,
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`offers a construction that comports with the term’s plain and ordinary meaning,that is consistent
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`with dependent claim 8, and that is true to the specification by embracing all—notjust some—of
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`the various embodiments expressly disclosed in the specification. Tate Access Floors, Inc. v.
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`Maxcess Techs., Inc., 222 F.3d 958, 966 (Fed. Cir. 2000) (“[A]lthough the specification may well
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`indicate that certain embodiments are preferred, particular embodiments appearing in the
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`specification will not be read into the claims when the claim language is broader than such
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`embodiments.”). Reynolds’s construction is correct and should be adopted.
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`B.
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`“heater” (claims 1, 9-12, 14, 18, 25-26)
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`Staff's Proposed
`Respondents’ Proposed
`Complainants’ Proposed
`Construction
`Construction
`Construction
`Plain and ordinary meaning,|Plain and ordinary meaning,|Plain and ordinary meaning,
`whichis a heating element
`which is an assembly
`which is an assembly
`configured to heat
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`configured to heat
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`Reynolds set forth in its opening brief why the claims should not be rewritten—as
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`Respondents urge—such that the “electrical resistance heater” is construed as some larger
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`“assembly” of components.” There is simply vo support in the intrinsic record for Respondents’
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`proposed construction. The claims do notrecite or require an “assembly.” The specification does
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`not define the “electrical resistance heater” as any sort of an “assembly.” And nowhere in the
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`specification is the term “heater” ever used to define (or even connote) somelarger collective
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`device or “assembly.” In fact, the ’202 Patent actually demonstrates that the exact opposite is true.
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`As Reynolds previously showed, the specification refers to element 72 as a heater. JX-0001 at
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`? Although Respondentsstrategically proposed that only the term “heater” be construed, the
`term must be construed in the context of the surrounding language. Brookhill-Wilk 1, LLC v.
`Intuitive Surgical, Inc., 326 F.3d 1215, 1220 (Fed. Cir. 2003) (“While certain terms may beat the
`center of the claim construction debate, the context of the surrounding words of the claim also
`must be considered in determining the ordinary and customary meaning of those terms”). Here,
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`that
`language—“electrical
`resistance’”—provides
`additional
`evidence
`that Respondents’
`construction is wrong. None of the other “components” of Respondents’ proposed “assembly,”
`whatever those might be, are “electrical resistance” components.
`It thus makes no sense to say
`that they are an “electrical resistance heater.”
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`22:40 (“the resistance heater 72”). The specification then repeatedly refers to element 72 as
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`“electrical resistance heating element,”
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`39 <<.
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`“resistance heating element,” and/or “resistance element.”
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`E.g., Id. at 21:29-39, 22:5-6, 24:38-39, 24:52, 26:2-3, 27:34, 28:2-3, 28:44-45, 29:18-19, 32:15-
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`28. And the patent expressly states that “[l]ike numbersrefer to like elements throughout.” Jd. at
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`8:62. Therefore, the ’202 Patent demonstrates that the use of the term “heater” was intended to
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`refer to the “electrical resistance heating element.” Nothing more.’
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`Neither Respondents nor Staff cite to anything in the intrinsic record demonstrating that
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`“heater” as used in the ’202 Patent means something more than the heating elementitself, and
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`includes some broader “assembly.”
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`Instead, they seek to rely on a hodgepodge ofextrinsic
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`evidence. But where no ambiguity exists, extrinsic evidence has no purpose in the claim
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`construction process. Kopyvkake Enterprises, Inc. v. Lucks Co., 264 F.3d 1377, 1381 (Fed. Cu.
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`2001) (noting that extrinsic evidence is only to be reviewed where “ambiguity remains after
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`consideration of the intrinsic evidence’).
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`Evenif such extrinsic evidence were to be considered, however,it is not persuasive here.
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`Respondents’ two dictionary definitions, for example, never use the term “assembly”; they simply
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`refer to devices that “produce” or “impart” heat. Neither definition even alludes to the presence
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`of additional components—components that do not impart heat—which would be necessary to
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`construe the “electrical resistance heater” as somesort of undefined, larger “assembly.” Similarly,
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`Respondents’ reference to a conventional “space heater” has no relevance to the claim term
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`“electrical resistance heater,” as used in the context of these claims. Adding the modifier “space”
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`3 While ultimately unclear, Staff appears to assign some significance to the patent’s use of
`the phrase “heating device.” See Staff's Op. Cl. Constr. Br. at 7. To the extent relevant,
`however, this only supports Reynolds’s proposed construction, as the patent expressly correlates
`the “heating device” to a “heating element.” JX-0001 at Abstract (“and a heating device(e.g., at
`least one electrical resistance heating element’) (emphasis added).
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`to “heater” creates an entirely new term, and one that denotes a specific commercial product that
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`has all kinds of components beyond the heating elementitself (in the same waythat “gas heater,”
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`“homeheater,” and the like reflect entirely different structures). The “electrical resistance heater”
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`disclosed in the context of the claims shares no commonality with such a device. Indeed, taking
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`Respondents’ analogy to its logical extent would mean that the entire smoking article could be a
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`“heater.” This is not what the inventors intended.
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`Respondents then focus the majority of their argument on extrinsic testimony from one of
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`Reynolds’s expert witnesses in an unrelated PTAB proceeding involving a different patent
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`addressing different claims. Resp. Op. Cl. Constr. Br. at 11-13. But the testimony that
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`Respondents rely on was not addressing the claim term—‘electrical resistance heater”—at issue
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`here, or any other claim term. Andeven in the unrelated context of another patent, with no relation
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`to the claim term at issue in this Investigation, Mr. Clemens never identified anything in the
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`specification describing a “heater assembly”as urged by Respondents. See, e.g., Respondents’ Ex.
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`3 at 76:21-77:3 (“I don’t have anything specific [in Robinson discussing a larger heater]”). Mr.
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`Clemens further confirmed that he had done no analysis to determine whetherthe heating elements
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`described in the ’320 Patent were instead elements of the smoking device. Jd. at 72:11-17 (“I don’t
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`really know. ... I haven’t done a specific analysis of that particular question.”). Finally, even if
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`Mr. Clemens hadoffered testimony suggesting that a heater is some undefined “assembly,” such
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`testimony would be at odds with the intrinsic evidence disclosed in the specification (as described
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`above) and should be ignored. E.g., Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1584
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`(Fed. Cir. 1996) (finding that “expert testimony, which was inconsistent with the specification and
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`file history, should have been accorded no weight’).
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`Reynolds further showed in its opening brief that Respondents’ proposed construction
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`would inject unnecessary and indeterminable ambiguity into the claims. A brief review of
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`Respondents’ invalidity contentions in this Investigation demonstrates that fact, as well as the
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`outcome-driven nature of Respondents’ proposed construction.
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`Some context, however,
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`is
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`necessary: U.S. Patent No. 9,901,123 (“the 123 Patent’’), one of the parents of the ’202 Patent,
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`includes the following limitation: “the aerosol-forming material can be wicked into contact with
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`the electrical resistance heater.” The ’202 Patent includes the same limitation. In priorlitigation
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`involving the ’123 Patent—including the 1199 Investigation and IPR2020-01602—Philip Morris
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`argued that a prior art device called Ruyan, as well as a patent to Hon Lik describing a similar
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`device, anticipated the claims of the ’123 Patent. The device described in the Hon patent includes
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`a resistance heating element that is located inside the cavity of a cylindrical component, and the
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`cylindrical componentis surroundedonits outside by a porous body. In operation, liquid is wicked
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`to the porous body, and thenit is delivered to the heating element via airflow, when a user draws
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`on the device. This arrangement is depicted below, where the yellow arrows depict the airflow
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`that carries liquid to the heating elementlocated inside the cavity.
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`heating element
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`porous body 27
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`36 bulge
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`25 cavity wall
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`cavity 0
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`ejection holes
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`FIG. 6
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`piezoelectric
`23 element
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`IPR2020-01602 FWD at 21.
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`In the 1602 IPR, the PTAB foundthat the Hon patent did not anticipate the claims because
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`it does not disclose the “wicked into contact” limitation:
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`Hon, therefore, discloses wicking the liquid mixture in porous body 27 to an area
`that is separated from Hon’s heating element 26 by atomization cavity wall 25, and
`that the liquid mixture is exposed to heat produced by heating element 26 only after
`it is driven through ejection hole 24 by the airflow generated by the user’s draw. In
`light of these express disclosures in Hon, Petitioner does not establish that Hon’s
`liquid mixture is wicked to an area in “close proximity” to Hon’s heater, as the
`second part of our claim construction requires. .
`.
`. On the contrary, the evidence
`showsthat high speed airflow created by the user’s draw is necessary to propel the
`liquid mixture through Hon’s ejection hole 24 and that atomization cavity wall 25
`creates a physical separation between the liquid mixture in porous body 27 and
`heating element 26 that precludesthe liquid mixture from being wickedinto contact
`with an area in close proximity to, and exposed to the heat produced by, heating
`element26.
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`Id. at 23-25. The Federal Circuit affirmed. Philip Morris Prod. S.A. v. RAI Strategic Holdings,
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`Inc., No. 2022-1846, 2023 WL 5970786 (Fed. Cir. Sept. 14, 2023). The Ruyan device (which is
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`not actually prior art) operates in a similar manner, where the “porous body” is a metal mesh
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`material; and in the 1199 Investigation, Staff came to the same conclusion that Ruyan did not
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`disclose the “wicked into contact”limitation.
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`Now, in a transparent effort to avoid these previous conclusions, Respondents contend that
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`everyone in both the 1199 Investigation and the 1602 IPR, including the Federal Circuit, was
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`wrong because nobody considered that the “electrical resistance heater” limitation should be
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`interpreted as an “assembly” of random and undefined components that includes more than just
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`the componentthat heats. There is a reason, of course, that nobody from those prior cases proposed
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`or considered this interpretation—it makes no sense. But what is worse, as Respondents’ own
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`contentions demonstrate, is that this interpretation is impossible to apply.
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`In their Initial Contentions in this Investigation, Respondents contendedthat the “electrical
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`resistance heater” of the Ruyan device includes the metallic cloth that surrounds the cylindrical
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`component of the device. Resp. In. Inv. Conts. at 56 (“Staff’s conclusion on the wicking feature,
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`however, was based on a flawed application of the Ruyan E-Cigar, which failed to recognize that
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`the claim’s “electrical resistance heater” encompasses an assembly that contains a metallic cloth
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`material to store and wick an aerosol forming material.”). But in their Final Contentions,
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`Respondents now contend that the “electrical resistance heater” of the Ruyan device does not
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`include the metallic cloth (the metallic cloth is what wicks the liquid into contact with the cavity
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`wall). Resp. Final Inv. Conts. at 57 (“Staff’s conclusion on the wicking feature, however, was
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`based on a flawed application of the Ruyan E-Cigar, which failed to recognize that the claim’s
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`‘electrical resistance heater’ encompasses an assembly (including at least a cavity wall and a
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`resistance heating element) and that a metallic cloth material stores and wicks an aerosol-forming
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`material into contact [with] the cavity wall”). And yet, with respect to the Hon patent, Respondents
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`contend that the “electrical resistance heater” should include the “porous body” surrounding the
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`cylindrical wall. Jd. at 61-62. As is readily apparent, Respondents seek a construction that is so
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`malleable they can alter its application as they see fit in order to try to read various prior-art
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`references onto the claims however they want. This is not the purpose of claim construction.
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`Indeed, even Respondents cannot keep their own interpretation straight.
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`In sum: The ’202 Patent claims an “electrical resistance heater,” not some vague and
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`undefined “heater assembly” which, under Respondents’ reasoning, could be the entire claimed
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`device. The specification reinforces that “heater” refers to a heating element used to aerosolize
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`the e-liquid in the device. Such a meaning is consistent with how a POSA would understand the
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`term “heater” in view ofthe intrinsic record—the componentthat heats. Respondents point only
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`to extrinsic evidence in support of their “assembly” construction, and they have readily
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`demonstrated the unworkability of their own construction. The claimed “electrical resistance
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`heater” is a heating element, and the term should be construed such that no further extraneous
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`components are required. The claim construction processis not to be used as a tool for rewriting
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`claims. ChefAm., Inc. v. Lamb-Weston, Inc., 358 F.3d 1371, 1374 (Fed. Cir. 2004).
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`Cc.
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`“air passagewaythroughatleast a portion of the outer housing”(claims1, 18)
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`Staff's Proposed
`Respondents’ Proposed
`Complainants’ Proposed
`Construction
`Construction
`Construction
`Plain and ordinary meaning,|Plain and ordinary meaning,|Plain and ordinary meaning,
`whichis not limited to an
`whichis an opening in the
`whichis an opening in the
`opening in the outer housing|outer housing through which|outer housing through which
`air can flow
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`air can flow
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`Respondents acknowledgethat the specification ofthe ’202 Patent describes different types
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`of “air passageways.” Resp. Op. Cl. Constr. Br. at 14 n.2. Yet Respondents maintain that their
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`proposed narrowing construction—whichlimits the “air passageway” term to only one particular
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`embodimentdisclosed in the specification, absent any such narrowing language actually appearing
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`in the claims—should be adopted based upon the other disclosed “air passageways” in the
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`specification not passing through the outer housing. Respondents’ proposed construction thus
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`seeks to limit the “air passageway”limitation to only an opening that physically passes through
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`the outer boundaries of the outer housing. Neither the claims nor the specification support such a
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`nairow construction.
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`Claims 1 and 18 of the ’202 Patent recite an “air passageway through atleast a portion of
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`the outer housing, the air passageway being arranged so that air drawn into the outer housing
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`combineswith volatilized liquid aerosol-forming material to produce an aerosol that can be drawn
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`into the mouth of a user” of the device. JX-0001 at 33:7-13. The claims do notrestrict the “air
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`passageway”to only an “opening” in the outer housing. And the specification similarly does not
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`provide any such restrictions. As Reynolds showed in its opening brief,
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`the specification
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`specifically sets forth numerous embodiments where the “air passageway”is distinctly not an
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`“opening in the outer housing.” See, e.g., id. at 20:28-30, 24:34-41, 27:29-36, 29:14-20. The
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`claims do not place anyrestriction on the location of the claimed“air passageway.”
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`Nothing restricts the “air passageway” from being entirely internal to the outer housing.
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`Both the specification and the term’s plainly understood meaning confirm this understanding.
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`First, the specification discloses “air passageways” that are located at the edges of the outer
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`housing (what Respondents refer to as an “opening” in the outer housing), but also “air
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`passageways”that run entirely within the outer housing, with no terminal point at an “opening.”
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`JX-0001 at 20:28-30, 24:34-41, 27:29-36, 29:14-20. Second, internal passageways are commonly
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`understood to run “through”the target object: A “passageway” may run through the interior of a
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`building but not have terminal points entering or exiting the building; indeed, the Oxford English
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`Dictionary defines “passageway”as “A wayor path by whicha person or thing may pass through,
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`in, or out; spec. a corridor or enclosed path giving access between buildingsor to different rooms
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`
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`within a_building.” Oxford English Dictionary, passageway, available at
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`https://www.oed.com/dictionary/passageway_n?tab=meaning and use#31658452
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`(emphasis
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`added). Thus, while a “passageway” may have external openings, such external openings are not
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`required, and the plain and ordinary meaning of the term includes completely internal
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`passageways.
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`Staff seemingly agrees with Respondents, but Staff fails to explain why such an opening-
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`in-the-outer-housing limitation should be imported from the specification. Staff simply refers to
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`the “context of the claim languageitself and the broader specification,” while failing to identify
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`how that “context” mandates that the air passageway must include an “opening” in the outer
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`housing. As Reynolds showed in its opening brief, the claims should not berestricted to any
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`>
`particular type of “air passageway”—fornoneofthe intrinsic evidence supports such a narrowing
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`construction.
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`-ll-
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`Insum: The claims do notrestrict the particular type of air passageway, and a POSA would
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`understand that either, or both, of the “air passageways” disclosed in the specification (the
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`completely internal ones and the external-opening ones) could satisfy the claim term. All that is
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`required is that the passageway run through “at least a portion” of the outer housing. Liebel-
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`Flarsheim, 358 F.3d at 904.
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`D.
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`“smokingarticle” (all claims)
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`presence of tobacco
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`Respondents’ Proposed
`Construction
`A smoking device that
`possesses tobacco
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`Staff's Proposed
`Construction
`Plain and ordinary meaning,
`which does not require
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`Complainants’ Proposed
`Construction (Amended
`Devices incorporating
`tobacco, including tobacco-
`derived components
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`The TEO ID tentatively construed the term “smoking article” to “mean devices
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`incorporating tobacco,
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`including tobacco-derived components.” Without stating a position
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`regarding the TEO ID’s disavowalanalysis, and without prejudice to Reynolds’s right to argue for
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`a different construction in other proceedings, Reynolds accepts the TEO ID’s tentative
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`construction for purposes of the permanentphaseofthis Investigation. To the extent Respondents
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`or Staff contend that “smokingarticle” should be limited to solid tobacco, Reynolds disagrees with
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`such a construction for all of the reasons Reynolds has previously stated in its TEO pre- and post-
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`hearing briefing and its opening claim construction brief, as well as the reasons stated in the TEO
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`ID (includingatleast at pp. 148-153).
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`E.
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`“controller” (claims1, 14)
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`4 exclusionary
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`Complainants’ Proposed
`Construction
`Plain and ordinary meaning
`and does not require further
`narrowing by importing any
`lang
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`Respondents’ Proposed
`Construction
`Controller, distinct and
`separate from a sensor
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`Staff's Proposed
`Construction
`Plain and ordinary meaning
`and does not require further
`natrowing by importing any
`exclusionary
`lang
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`4 Reynolds notes that in the TEO ID, the ALJ construed “controller” accordingto its plain
`and ordinary meaning, which does not impose any particular narrowing of the claimed controller.
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`Once again,
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`the Parties presented detailed arguments during the TEO phase of the
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`Investigation regarding whether the “controller” limitation of the independent claims should be
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`construed as a separate structural component from the “sensor” limitation recited in subsequent
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`dependent claims. Respondents’ opening brief did not present any further arguments or evidence
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`not previously introduced during the TEO phaseofthe Investigation. Resp. Op. Cl. Constr. Br. at
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`21-23. With all of the evidence already introduced and extensive briefing presented from each
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`side, the Staff adopted Reynolds’s position that the plain and ordinary meaning of “controller”
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`“does not require further narrowing by importing any exclusionary language into the claim as
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`Respondents propose.” Staff's Op. Cl. Constr. Br. at 12.
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`Yet again, Respondentsfailed to rebut critical evidence presented at the TEO hearing that
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`is fatal to their proposed construction. As an initial matter, Respondents fail to address why their
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`evaluation of the Accused Products should influence the proper construction of the term
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`“controller,” in violation of longstanding claim construction principles. Wilson Sporting Goods
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`Co. v. Hillerich & Bradsby Co., 442 F.3d 1322, 1330-31 (Fed. Cir. 2006). This principle is best
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`illustrated when considering the “controller” limitation of claim 1 and the “sensor” limitation of
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`claim 13, which have different recited functions within the language of the claims themselv