A method of at least partially combusting a combustible material for inhalation, comprising: providing an electronic pipe comprising a battery, an electronic module, a combustible material reservoir, and a heating element fixed in the combustible material reservoir Case: 22-1268 4 Document: 47 Page: 4 Filed: HEALTHIER CHOICES MANAGEMENT CORP. An electronic pipe, comprising: a battery, an electronic module, a combustible material reservoir, and a heating element fixed in the combustible material reservoir combustible material loaded into the combustible material reservoir wherein the pipe is structured to transmit an electric current from the battery to the heating element, the heating element initiating a combustion reaction in the combustible material reservoir. Two independent claims of the ’170 patent are relevant to this appeal: claim 1 and claim 5. The ’170 patent is directed to an electronic nicotine-delivery device. (collectively, “Philip Morris”) in the United States District Court for the Northern District of Georgia for allegedly infringing at least one claim of U.S. 3 BACKGROUND Healthier Choices Management Corp. Case: 22-1268 Document: 47 Page: 3 HEALTHIER CHOICES MANAGEMENT CORP. We remand for further proceedings consistent with this opinion. Accordingly, we vacate the award of attorneys’ fees. For the reasons below, we reverse the district court’s dismissal of the original complaint and denial of leave to amend. challenges the district court’s (1) dismissal of its original complaint, (2) denial of its motion for leave to amend its complaint, and (3) grant of attorneys’ fees. In these combined appeals, Healthier Choices Management Corp. _ Before TARANTO, STOLL, and CUNNINGHAM, Circuit Judges. Also represented by ELIZABETH WEISWASSER WILLIAM SUTTON ANSLEY, Washington, DC MARK PINKERT, Miami, FL. ADAM BANKS, Weil, Gotshal & Manges LLP, New York, NY, for defendant-appellee Philip Morris USA, Inc. BELL, DAVID ZUCKER RICHARD GREGORY FRENKEL, Menlo Park, CA. Defendant-appellee Philip Morris Products S.A. GRANT, Latham & Watkins LLP, Washington, DC, argued for all defendants-appellees. GOLOB, Cozen O'Connor P.C., Washington, DC, argued for plaintiff-appellant. Appeal from the United States District Court for the Northern District of Georgia in No. PHILIP MORRIS USA, INC., PHILIP MORRIS PRODUCTS S.A., Defendants-Appellees _ 2022-1563 _ Case: 22-1268 2 Document: 47 Page: 2 Filed: HEALTHIER CHOICES MANAGEMENT CORP. HEALTHIER CHOICES MANAGEMENT CORP., Plaintiff-Appellant v. PHILIP MORRIS USA, INC., PHILIP MORRIS PRODUCTS S.A., Defendants-Appellees _ 2022-1268 _ Appeal from the United States District Court for the Northern District of Georgia in No. HCM’s original and amended complaints recite sufficient allegations to raise a facially plausible case of patent infringement and specifically rejected the notion that IQOS does not initiate a combustion reaction.Ĭase: 22-1268 Document: 47 Page: 1 Filed: United States Court of Appeals for the Federal Circuit _ HEALTHIER CHOICES MANAGEMENT CORP., Plaintiff-Appellant v. The court granted Philip Morris attorneys’ fees under 35 U.S.C. The district court agreed that a Modified Risk Tobacco Product Application that Philip Morris submitted to the FDA when it sought a modified risk order to sell IQOS established that IQOS did not initiate a combustion reaction and thus did not infringe the asserted claims. Philip Morris argued that an exhibit HCM attached to its original complaint conclusively demonstrated that IQOS does not initiate a combustion reaction as required by the asserted claims. Philip Morris manufactures the IQOS electronic nicotine-delivery system, which “heats tobacco-filled sticks wrapped in paper to generate a nicotine-containing aerosol.” Philip Morris markets IQOS as a “heat-not-burn” system the tobacco is heated at a low enough temperature that the tobacco does not burn, therefore, in Philip Morris’s view, preventing combustion. HCM sued Philip Morris for allegedly infringing at least one claim of HCM’s patent, which is directed to an electronic nicotine-delivery device.
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