throbber
UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`
`FONTEM VENTURES B.V., a Netherlands
`company; and FONTEM HOLDINGS 1
`B.V., a Netherlands company,
`
`
`Plaintiffs
`
`
`v.
`
`R.J. REYNOLDS VAPOR COMPANY, a
`North Carolina company,
`
`
`
`
`
`Defendant
`
`
`FONTEM VENTURES B.V., a Netherlands
`company; and FONTEM HOLDINGS 1
`B.V., a Netherlands company,
`
`
`Plaintiffs
`
`
`v.
`
`R.J. REYNOLDS VAPOR COMPANY, a
`North Carolina company,
`
`
`Defendant
`
`
`FONTEM VENTURES B.V., a Netherlands
`company; and FONTEM HOLDINGS 1
`B.V., a Netherlands company,
`
`
`Plaintiffs
`
`
`v.
`
`R.J. REYNOLDS VAPOR COMPANY, a
`North Carolina company,
`
`
`Defendant
`
`
`
`Civil Action No.: 1:16-cv-01255
`[Lead Case]
`
`
`Civil Action No.: 1:16-cv-01257
`
`Civil Action No.: 1:16-cv-01258
`
`Fontem Ex. 2046
`R.J. Reynolds Vapor Company v. Fontem Holdings 1 B.V. IPR2016-01692
`Page 1 of 11
`
`

`

`FONTEM VENTURES B.V., a Netherlands
`company; and FONTEM HOLDINGS 1
`B.V., a Netherlands company,
`
`
`Plaintiffs
`
`
`v.
`
`R.J. REYNOLDS VAPOR COMPANY, a
`North Carolina company,
`
`
`Defendant
`
`
`
`Civil Action No.: 1:17-cv-00175
`
`
`R.J. REYNOLDS VAPOR COMPANY’S FURTHER IDENTIFICATION OF
`CLAIM TERMS AND ELEMENTS TO BE CONSTRUED
`
`Pursuant to paragraph 9 of the Court’s Order [Dkt. 104], Defendant R.J. Reynolds
`
`Vapor Company (“Reynolds”) identifies in Exhibit A no more than 20 terms for
`
`construction for the consolidated cases. For purposes of determining the number of
`
`proposed terms for construction, Reynolds has identified those similar claim terms that it
`
`contends should receive the same construction and counted those terms as one term,
`
`pursuant to paragraph 11 of the Court’s Order. No changes have occurred in Reynolds’
`
`proposed constructions since Reynolds’ tentative preliminary constructions were served
`
`on September 18, 2017. The explanation of why construction of each term is important
`
`and necessary was provided on September 6, 2017, and that explanation remains
`
`unchanged.
`
`Reynolds makes this disclosure without prejudice to revising its constructions and
`
`the explanation of the term’s importance in the course of discussions with counsel for
`
`Plaintiffs, as required by the Court’s Local Patent Rules and the Court’s Order.
`
`Fontem Ex. 2046
`R.J. Reynolds Vapor Company v. Fontem Holdings 1 B.V. IPR2016-01692
`Page 2 of 11
`
`

`

`DATED: September 25, 2017
`
`
`
`/s/ Laura Beth Miller
`John F. Morrow, Jr.
`N.C. Bar. No. 23382
`WOMBLE CARLYLE SANDRIDGE & RICE, LLP
`One West Fourth Street
`Winston-Salem, NC 27101
`Telephone: (336) 721-3584
`Fax: (336) 733-8429
`jmorrow@wcsr.com
`
`David R. Boaz
`N.C. Bar No. 44229
`Womble Carlyle Sandridge & Rice, LLP
`555 Fayetteville St., Suite 1100
`Raleigh, NC 27601
`Telephone: (919) 755-8124
`Fax: (919) 755-6042
`dboaz@wcsr.com
`
`OF COUNSEL:
`Ralph J. Gabric
`IL Bar No. 6198485
`rgrabic@brinksgilson.com
`Robert S. Mallin
`IL Bar No. 6205051
`rmallin@brinksgilson.com
`Laura Beth Miller
`IL Bar No. 6191408
`lmiller@brinskgilson.com
`Brinks Gilson & Lione
`455 N. Cityfront Plaza Drive, Suite 3600
`Chicago, Illinois 60611
`Telephone: (312) 321-4200
`Fax: (312) 321-4299
`
`Attorneys for Defendant
`R.J. REYNOLDS VAPOR COMPANY
`
`
`Fontem Ex. 2046
`R.J. Reynolds Vapor Company v. Fontem Holdings 1 B.V. IPR2016-01692
`Page 3 of 11
`
`

`

`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that all counsel of record who are deemed to
`
`have consented to electronic service are being served with a copy of R.J. REYNOLDS
`
`VAPOR COMPANY’S FURTHER IDENTIFICATION OF CLAIM TERMS AND
`
`ELEMENTS TO BE CONSTRUED via E-mail on September 25, 2017. Any other
`
`counsel of record will be served by First Class U.S. mail on this same date.
`
`DATED: September 25, 2017
`
`/s/ James Donnelly
`
`
`
`
`
`
`
`Fontem Ex. 2046
`R.J. Reynolds Vapor Company v. Fontem Holdings 1 B.V. IPR2016-01692
`Page 4 of 11
`
`

`

`
`
`Proposed
`Claim Terms,
`Phrases and
`Clauses For
`Construction
`Atomization
`chamber
`
`Hollow
`cylindrical
`component
`
`Atomizer
`
`EXHIBIT A – Reynolds’ Further Identification of Terms For Constructions
`
`Asserted Claims in
`Which Terms, Phrases
`and Clauses Appear
`
`Tentative Preliminary Construction
`(unchanged)
`
`Explanation of why
`construction is important and
`necessary
`
`632: 14, 15, 16, 18
`
`A chamber or cavity formed in the
`liquid absorbing body of the atomizer
`assembly within which atomization
`occurs
`
`632: 18
`
`Indefinite
`
`For those claims identified by
`Reynolds: A liquid absorbing body
`with an internal atomizing element
`
`628: 1, 5, 7, 8
`726: 15, 16, 17
`549: 12, 13
`205: 1, 2, 9, 10, 11, 12,
`15, 16, 19, 20
`331: 1, 2
`957: 1, 9, 10, 17, 22
`752: 1, 4, 5, 10, 14, 15
`550: 1, 2, 3, 4, 10
`
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for all asserted
`claims of the 632 patent. To the
`extent the term is construed
`otherwise, it lacks a written
`description and is invalid under
`35 U.S.C. § 112.
`The claim term lacks an
`antecedent basis, rendering the
`claim limitation indefinite under
`35 U.S.C. § 112
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`containing this term, which
`includes all asserted claims of the
`628, 726, 205, 331, 957, 752, 550,
`551 and 062 patents. To the
`extent the term is construed
`
`Fontem Ex. 2046
`R.J. Reynolds Vapor Company v. Fontem Holdings 1 B.V. IPR2016-01692
`Page 5 of 11
`
`

`

`Proposed
`Claim Terms,
`Phrases and
`Clauses For
`Construction
`
`Asserted Claims in
`Which Terms, Phrases
`and Clauses Appear
`
`Tentative Preliminary Construction
`(unchanged)
`
`Explanation of why
`construction is important and
`necessary
`
`551: 1, 2, 3, 4, 11
`062: 1, 2, 3, 4, 5, 9, 12, 13
`
`Porous
`component
`
`549: 17, 18, 19, 21
`742: 2, 3
`548: 1, 3, 4, 8, 9, 10
`
`For those claims identified by
`Reynolds: A porous material
`configured for receiving an internal
`atomizing element
`
`Fiber member
`
`548: 11, 12, 14
`
`A fibrous material configured for
`receiving an internal atomizing
`element
`
`Atomizer
`assembly
`
`628: 1, 5
`742: 2, 3
`548: 1, 3, 4, 8, 9, 10, 11,
`12, 14
`
`An assembly that includes at least a
`liquid absorbing body with an internal
`atomizing element
`
`otherwise, it lacks a written
`description and is invalid under
`35 U.S.C. § 112.
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`containing this term, including all
`of the asserted claims of the 742
`patent. To the extent the term is
`construed otherwise, it lacks a
`written description and is invalid
`under 35 U.S.C. § 112.
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`containing this term. To the
`extent the term is construed
`otherwise, it lacks a written
`description and is invalid under
`35 U.S.C. § 112.
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`
`Fontem Ex. 2046
`R.J. Reynolds Vapor Company v. Fontem Holdings 1 B.V. IPR2016-01692
`Page 6 of 11
`
`

`

`Asserted Claims in
`Which Terms, Phrases
`and Clauses Appear
`
`Tentative Preliminary Construction
`(unchanged)
`
`Explanation of why
`construction is important and
`necessary
`
`Proposed
`Claim Terms,
`Phrases and
`Clauses For
`Construction
`
`Housing
`
`205: 1, 2, 9, 10, 11, 12, ,
`15, 16, 19, 20
`632: 14, 15, 16, 18
`957: 1, 9, 10, 17, 22
`550: 1, 2, 3, 4, 10
`062: 1, 2, 3, 4, 5, 9, 12, 13
`
`628: 1, 5, 7, 8
`726: 15, 16, 17
`549: 12, 13, 17, 18, 19, 21
`742: 2, 3
`548:1, 3, 4, 8, 9, 10, 11,
`12, 14
`632: 14, 15,16, 18
`331: 1, 2
`
`A one-piece shell
`
`containing this term, which
`includes all asserted claims of the
`742, 548, 205, 632, 957, 550 and
`062 patents. To the extent the
`term is construed otherwise, it
`lacks a written description and is
`invalid under 35 U.S.C. § 112.
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`containing this term, which
`includes all asserted claims of the
`628, 726, 549, 742, 548, 632 and
`331 patents. To the extent the
`term is construed otherwise, it
`lacks a written description and is
`invalid under 35 U.S.C. § 112.
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`containing this term, which
`includes all asserted claims of the
`742 and 548 patents. To the
`extent the term is construed
`
`Frame . . .
`having a run
`through hole
`
`742: 2, 3
`548: 1, 3, 4, 8, 9, 10, 11,
`12, 14
`
`In the identified phrase, “frame” means
`a structure that provides support via
`direct physical contact, and “run-
`through hole” means an enclosed
`passageway extending completely
`through the frame for airflow
`
`Fontem Ex. 2046
`R.J. Reynolds Vapor Company v. Fontem Holdings 1 B.V. IPR2016-01692
`Page 7 of 11
`
`

`

`Proposed
`Claim Terms,
`Phrases and
`Clauses For
`Construction
`
`Liquid supply/
`Liquid storage
`body/ Liquid
`storage
`component/
`Liquid storage
`
`Solution
`storage area
`
`Asserted Claims in
`Which Terms, Phrases
`and Clauses Appear
`
`Tentative Preliminary Construction
`(unchanged)
`
`Explanation of why
`construction is important and
`necessary
`
`628: 1, 5, 7, 8
`549: 12, 13, 17, 18, 19, 21
`742: 3
`205: 1, 2
`331: 1, 2
`550: 1, 2, 3, 4, 10
`551: 1, 2, 3, 4, 11
`062: 1, 2, 3, 4, 5, 9, 12, 13
`726: 15, 16, 17
`742: 2
`548: 1, 3, 4, 8, 9, 10, 11,
`12, 14
`632: 14, 15, 16, 18
`752: 1, 4, 5, 10, 14, 15
`957: 1, 9, 10, 17, 22
`
`A porous material for storing liquid
`within a cigarette liquid bottle
`
`The area in a cigarette liquid bottle
`occupied by a porous material for
`storing liquid
`
`otherwise, it lacks a written
`description and is invalid under
`35 U.S.C. § 112.
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`containing this term, which
`includes all asserted claims of the
`628, 726, 549, 742, 548, 331, 550,
`551, 632, 752 and 062 patents.
`To the extent the term is
`construed otherwise, it lacks a
`written description and is invalid
`under 35 U.S.C. § 112.
`
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`containing this term, which
`includes all asserted claims of the
`957 patent. To the extent the term
`is construed otherwise, it lacks a
`written description and is invalid
`
`Fontem Ex. 2046
`R.J. Reynolds Vapor Company v. Fontem Holdings 1 B.V. IPR2016-01692
`Page 8 of 11
`
`

`

`Proposed
`Claim Terms,
`Phrases and
`Clauses For
`Construction
`
`The term
`“contact”
`when used in
`the phrases,
`“in physical
`contact,” “in
`contact,” and
`“making
`contact”
`
`An . . .
`electrode at . .
`an [] end of the
`battery
`assembly
`housing/ A . . .
`screw thread
`electrode at . . .
`an [] end of the
`battery
`assembly
`housing
`An . . .
`electrode at . . .
`
`Asserted Claims in
`Which Terms, Phrases
`and Clauses Appear
`
`Tentative Preliminary Construction
`(unchanged)
`
`Explanation of why
`construction is important and
`necessary
`
`“Contact” as used in the phrases “in
`physical contact” and “in contact” and
`“making contact” means to be adjacent
`to and physically touching, without
`any intervening components
`
`726: 15, 16, 17
`549: 12, 13, 17, 18, 19, 21
`742: 3
`548: 1, 3, 4, 8, 9, 10, 11,
`12, 14
`205: 16, 19, 20
`331: 1, 2
`752: 1, 4, 5, 10
`551: 11
`062: 12, 13
`
`205: 1, 2, 9, 10, 11, 12,
`15, 16, 19, 20
`957: 1, 9, 10, 17, 22
`550: 1, 2, 3, 4, 10
`062: 1, 2, 3, 4, 5, 9, 12, 13
`
`The phrases “. . . electrode at an [] end
`of the battery assembly housing” and
`“. . . screw thread electrode at an [] end
`of the battery assembly housing” mean
`an external screw thread electrode
`
`under 35 U.S.C. § 112.
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`containing this term, which
`includes all asserted claims of the
`726, 549, 548 and 331 patents.
`To the extent the term is
`construed otherwise, it lacks a
`written description and is invalid
`under 35 U.S.C. § 112.
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`containing this term, which
`includes all asserted claims of the
`205, 957, 550, and 062 patents.
`To the extent the term is
`construed otherwise, it lacks a
`written description and is invalid
`under 35 U.S.C. § 112.
`
`205: 1, 2, 9, 10, 11, 12,
`15, 16, 19, 20
`
`The phrases “. . . electrode at an [] end
`of the atomizer assembly housing” and
`
`Defendant intends to propose a
`construction that would be case
`
`Fontem Ex. 2046
`R.J. Reynolds Vapor Company v. Fontem Holdings 1 B.V. IPR2016-01692
`Page 9 of 11
`
`

`

`Asserted Claims in
`Which Terms, Phrases
`and Clauses Appear
`
`Tentative Preliminary Construction
`(unchanged)
`
`Explanation of why
`construction is important and
`necessary
`
`957: 1, 9, 10, 17, 22
`752: 1, 4, 5, 10, 14, 15
`550: 1, 2, 3, 4, 10
`062: 1, 2, 3, 4, 5, 9, 12, 13
`
`“. . . screw thread electrode at an [] end
`of the atomizer assembly housing”
`mean an internal screw thread
`electrode
`
`205: 1, 2, 9, 10, 11, 12,
`15, 16, 19, 20
`062: 1, 2, 3, 4, 5, 9, 12, 13
`
`The phrase “electrically
`connected . . .” means electrically
`connected exclusively through the
`threaded connection of the claimed
`screw thread electrodes (i.e. without
`the incorporation of any other
`electrodes or other electrical
`connectors to complete an electrical
`circuit)
`
`dispositive on the ground of non-
`infringement for the claims
`containing this term, which
`includes all asserted claims of the
`205, 957, 752, 550, and 062
`patents. To the extent the term is
`construed otherwise, it lacks a
`written description and is invalid
`under 35 U.S.C. § 112.
`
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`containing this term, which
`includes all asserted claims of the
`205 and 062 patents. To the
`extent the term is construed
`otherwise, it lacks a written
`description and is invalid under
`35 U.S.C. § 112.
`
`Proposed
`Claim Terms,
`Phrases and
`Clauses For
`Construction
`an [] end of the
`atomizer
`assembly
`housing/ A . . .
`screw thread
`electrode at . . .
`an [] end of the
`atomizer
`assembly
`housing
`The phrase
`“electrically
`connected by
`engagement
`of . . . ” or
`“electrically
`connected
`via . . .” or
`“electrically
`connectable”
`when used in
`the context of
`the electrode
`connections
`between the
`battery
`
`Fontem Ex. 2046
`R.J. Reynolds Vapor Company v. Fontem Holdings 1 B.V. IPR2016-01692
`Page 10 of 11
`
`

`

`Proposed
`Claim Terms,
`Phrases and
`Clauses For
`Construction
`assembly and
`the atomizer
`assembly
`
`Wire coil in a
`tube
`
`The phrase “at
`a first end”
`when used in
`connection
`with an LED
`or light source
`
`
`
`Asserted Claims in
`Which Terms, Phrases
`and Clauses Appear
`
`Tentative Preliminary Construction
`(unchanged)
`
`Explanation of why
`construction is important and
`necessary
`
`027: 1, 12, 14
`
`A vaporization nozzle
`
`549: 12, 13, 17, 18, 19, 21
`239: 1, 13
`331: 1, 2
`027: 1, 12, 14
`
`The tip or the extreme end or last part
`lengthwise and does not include the
`extremes of the radius that form the
`side wall
`
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`containing this term, which
`includes all asserted claims of the
`027 patent. To the extent the term
`is construed otherwise, it lacks a
`written description and is invalid
`under 35 U.S.C. § 112.
`Defendant intends to propose a
`construction that would be case
`dispositive on the ground of non-
`infringement for the claims
`containing this term, which
`includes all asserted claims of the
`549, 239, 331 and 027 patents.
`To the extent the term is
`construed otherwise, it lacks a
`written description and is invalid
`under 35 U.S.C. § 112.
`
`Fontem Ex. 2046
`R.J. Reynolds Vapor Company v. Fontem Holdings 1 B.V. IPR2016-01692
`Page 11 of 11
`
`

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