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`EXHIBIT DD
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`Case 1:17-cv-00770-JDW-MPT Document 120-17 Filed 11/17/22 Page 2 of 36 PageID #:
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`Case No. IPR2018-01202
`Patent No. 7,140,693
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
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`WIRTGEN AMERICA, INC. and WIRTGEN GMBH
`Petitioners,
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`v.
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`CATERPILLAR PAVING PRODUCTS INC.
`
`Patent Owner
`______________________
`
`IPR2018-01202
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`U.S. Patent No. 7,140,693
`______________________
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`PATENT OWNER’S SUR-REPLY
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`Case 1:17-cv-00770-JDW-MPT Document 120-17 Filed 11/17/22 Page 3 of 36 PageID #:
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`Case No. IPR2018-01202
`Patent No. 7,140,693
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`TABLE OF CONTENTS
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`I.
`II.
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`Introduction ...................................................................................................... 1
`Claim Construction .......................................................................................... 1
`A.
`The ordinary claim language supports Caterpillar’s construction ........ 2
`B.
`The specification supports Caterpillar’s construction. .......................... 6
`C.
`The prosecution history supports Caterpillar’s construction. ............... 8
`D.
`Extrinsic evidence supports Caterpillar’s construction. ...................... 10
`III. The Combination of Gutman and Bitelli Does Not Render the Claims
`Obvious .......................................................................................................... 12
`A. Gutman and Bitelli do not render obvious “a retracted position
`relative to said frame.” (Claims 1, 17, 36, and 38) ............................. 12
`Gutman and Bitelli do not render obvious “the projecting and
`retracted position forming an arc of at least 90º.” (Claim 17) ............ 17
`1.
`Gutman does not disclose the claimed 90º arc ......................... 17
`2.
`A POSITA would not have been motivated to modify
`Gutman to move its tracks through an arc of at least 90º ......... 18
`Gutman and Bitelli do not render obvious the claimed “drive
`mechanism” (Claim 1) ........................................................................ 24
`D. Gutman and Bitelli do not render obvious “said support arm
`includes an actuator adapted to lock said support arm in its
`projecting position and retracted position, respectively.”
`(Claims 15, 16, 26, 27, and 36) ........................................................... 24
`Gutman and Bitelli do not render obvious “positioning said
`wheel or track in said rotational direction is controlled
`dependent on pivoting of said wheel or track relative to said
`frame.” (Claims 24 and 25) ................................................................. 27
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`B.
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`C.
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`E.
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`F.
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`Gutman and Bitelli do not render obvious “positioning said
`wheel or track in said rotational direction about the vertical axis
`is coordinated with the steering of at least one of the other of
`the plurality of wheels or tracks.” (Claim 28) ..................................... 27
`IV. Wirtgen Cannot Cure the Deficiencies of the Combination of Gutman,
`Bitelli, and Skotnikov .................................................................................... 28
`V. Wirtgen’s Proposed Combination of Gutman, Bitelli, and Busley
`Should Be Rejected........................................................................................ 29
`VI. Conclusion ..................................................................................................... 30
`VII. CERTIFICATION UNDER 37 C.F.R. § 42.24(d) ........................................ 30
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`TABLE OF AUTHORITIES
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` Page(s)
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`Federal Cases
`Saffran v. Johnson & Johnson,
`712 F.3d 549 (Fed. Cir. 2013) .............................................................................. 9
`State Contracting & Engineering Corp. v. Condotte America, Inc.,
`346 F.3d 1057 (Fed. Cir. 2003) .......................................................................... 28
`Regulations
`37 C.F.R. § 42.24 ............................................................................................... 22, 30
`Other Authorities
`Certain Road Construction Machines and Components Thereof,
`Inv. No. 337-TA-1088, Comm’n Op. (June 27, 2019),
`https://edis.usitc.gov/external/attachment/681394-1456832.pdf .................passim
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`I.
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`
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`Introduction
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`Wirtgen failed to meet its burden to show the unpatentability of any claim of
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`the ’693 patent. Wirtgen’s Reply only underscores the fundamental deficiencies of
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`its Petition. Rather than respond to the substance of Caterpillar’s arguments, Wirtgen
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`makes new arguments in violation of the Board’s rules or ignores Caterpillar’s
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`arguments altogether. But many of Wirtgen’s arguments—including those belatedly
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`added to its Reply—were recently rejected by the International Trade Commission.
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`Additionally, as explained throughout, Wirtgen has repeatedly attempted to
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`circumvent the Board’s type-volume limitations by improperly incorporating large
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`portions of its expert’s declaration into its reply. In the face of Wirtgen’s new
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`arguments and attempt to circumvent rules, the Board would be justified in simply
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`disregarding the Reply in its entirety. Even if the Board considers the substance of
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`Wirtgen’s reply, however, the Board should adopt Caterpillar’s proposed claim
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`construction and should reject Wirtgen’s arguments.
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`II. Claim Construction
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`The proper construction of “a retracted position relative to said frame”
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`requires that the wheel or track be “within the outline of the frame.” Patent Owner
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`Response at 8. Wirtgen’s reply fails to rebut Caterpillar’s arguments and relies on
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`an initial decision that the ITC overturned. Wirtgen argues that “[t]he ITC rejected”
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`Caterpillar’s construction,” but Wirtgen fails to explain that the decision it relied on
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`was a non-final ALJ determination. Since then, the Commission vacated the ALJ’s
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`construction and rejected Wirtgen’s claim construction arguments, finding that the
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`term “a retracted position relative to said frame” means “a position within or inside
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`the frame.”1 Commission Opinion2 at 25-26. When properly considered, the
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`evidence supports Caterpillar’s construction.
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`A. The ordinary claim language supports Caterpillar’s
`construction
`Caterpillar’s Patent Owner Response explained that the claims set forth a
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`dichotomy between positions that project from the frame (a projecting position) and
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`those that are retracted within the frame (a retracted position). Patent Owner
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`Response at 8-9. Wirtgen ignores this relationship, proposing an explanation that
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`gives no meaning to the “projecting” position. Instead, Wirtgen simply argues that a
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`retracted position is “closer to the frame than the projecting position,” and does not
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`even attempt to define the projecting position. Petitioner Reply at 1.
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`1 Although the Commission’s construction differs slightly from Caterpillar’s
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`proposal, Caterpillar does not believe that the scope of the constructions differ.
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`2 The public version of
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`the Commission Opinion
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`is available at
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`https://edis.usitc.gov/external/attachment/681394-1456832.pdf, which can be
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`accessed by registering for a free EDIS login.
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`Wirtgen’s untenable construction is illustrated by the example below, where
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`the track is currently outside the machine’s frame in position 1.
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`Wirtgen’s construction makes it impossible to determine whether the track in the
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`figure above is in the retracted or projecting position. Since Wirtgen defines the
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`“retracted” position only based on the track’s previous position (i.e., whether it was
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`previously further from the frame), one cannot determine whether this track meets
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`the claim limitation.
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`Further adding to the uncertainty, Wirtgen’s construction permits a position
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`to be both projecting and retracted. If the track could extend further from the frame
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`to position 2, as shown below, position 1 would be a retracted position under
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`Wirtgen’s construction, since it is closer to the frame than the position 2.
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`That same position, however, could also be a projecting position under Wirtgen’s
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`construction. If the track could be drawn closer to frame, to position 3, the same
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`position 1 would be “projecting” since it was further away from the frame than this
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`new position.
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`This uncertainty in Wirtgen’s argument eliminates the distinction between the two
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`positions and renders them meaningless.
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`The Commission also identified this flaw in Wirtgen’s construction. When
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`reversing the ALJ’s claim construction decision, the Commission found that, “In
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`effect, the [ALJ] construes the retracted position to be relative to the projecting
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`position whereas the claim language requires ‘a projecting position and a retracted
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`position relative to said frame.’ In other words, the point of reference in claim 1 for
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`the two positions in which the wheels or tracks may pivot is the ‘frame’ whereas the
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`[ALJ]’s point of reference is the projecting position.” Commission Opinion at 20-
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`21. The Board should reject Wirtgen’s construction for improperly shifting the
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`claim’s point of reference.
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`
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`In contrast, Caterpillar’s construction consistently uses the correct point of
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`reference: the frame. A projecting position relative to the frame is a position that
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`projects from the frame. In contrast, positions that do not project from the frame are
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`retracted positions (those retracted within the frame). This construction is consistent
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`with the claim language and should be adopted.
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`The specification supports Caterpillar’s construction.
`B.
`The specification also supports Caterpillar’s construction. The patent’s
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`discussion of the prior art, its equating of “retracted” with “interior,” and the patent’s
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`figures all demonstrate that “retracted” means within the outline of the frame.
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`Wirtgen’s reply ignores this evidence and instead sets up a strawman to
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`support its construction. Wirtgen argues that the specification never equates the term
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`“relative to” with “within” or “inside” the frame. Petitioner Reply at 3. But
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`Caterpillar never suggested that the patent equates these terms.3 Instead, the patent
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`clearly equates “exterior” with “projecting” and “interior” with “retracted,” stating
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`3 Wirtgen similarly relies on other references to the term “relative” in the patent, but
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`Wirtgen ignores the patent’s discussion of the retracted and projecting positions. See
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`Petitioner Reply at 3-5.
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`that “a rear support wheel [] can be pivoted between an interior or retracted position
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`and an exterior or projecting position.” Ex. 1001 at 1:57-60 (emphasis added); see
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`also Patent Owner Response at 9. While Wirtgen attempts to dismiss these terms as
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`“alternatives,” the patent clearly gives these terms the same meaning by
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`acknowledging that they are synonymous. The Commission agreed with Caterpillar,
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`noting that “portions of the specification . . . equate ‘retracted’ with ‘interior’ or
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`‘inside’ the frame.” Commission Opinion at 21. Furthermore, the Commission found
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`that, “it appears that the patentee is equating ‘interior’ with ‘retracted’ and ‘exterior’
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`with ‘projecting.’” Id. 22.
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`The patent figures and discussion consistently depict the retracted position as
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`within the frame. The patent further supports supporting Caterpillar’s position by
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`expressly acknowledging that the “retracted position allows the work machine to
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`operate flush to a wall or curb.” Ex. 1001 at 1:48-52. While Wirtgen argues that
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`“flush milling” is not a claim limitation, the discussion still provides context to the
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`meaning of the term retracted position. The Commission explained that this
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`discussion showed that, “the wheels or tracks in a retracted position cannot project
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`away from the frame, . . . because such position does not allow the machine to
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`operate flush to a wall or curb.” Commission Opinion at 21.
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`Wirtgen failed to provide a single citation from the patent specification
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`indicating that a retracted position can be outside the frame. It is little surprise, then,
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`that the Commission found that Wirtgen “identified no instance in the record where
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`‘a retracted position relative to said frame’ refers to a position that is not inside or
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`within the frame.” Id. at 25.
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`C. The prosecution history supports Caterpillar’s
`construction.
`The prosecution history also supports Caterpillar’s construction. During
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`prosecution the applicant distinguished prior art by arguing that a reference did not
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`have a retracted position because its wheel did not retract “within the chassis.” Ex.
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`1002 at 100. In full, the applicant argued:
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`Kaiser does not disclose the ability to retract any of the wheels or tracks
`relative to the chassis. At best, Kaiser discloses moving the wheel to a position
`where they are roughly parallel with the side of the chassis and always far in
`front of or behind the chassis, but never retracted relative to the chassis, as
`claimed by the applicant (“a retracted position relative to said frame”). This
`feature of retracting a wheel or track to a position within the chassis is
`desirable in the case of a road mill, but would not be used or considered for
`use in a machine of the store described by Kaiser.
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`Id.
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`Wirtgen argues that the “applicant’s argument regarding Kaiser [was] distinct
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`from Caterpillar’s argument here”—that the wheel was kept “about the same
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`distance away from the chassis.” Petitioner Reply at 5. While the applicant explained
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`that Kaiser lacks a retracted position because the wheel is “roughly parallel,” it
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`further explained what was required to have a retracted position—that the wheel
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`move “within the chassis.” Ex. 1002 at 100 (emphasis). Though Wirtgen ignores this
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`statement, the Commission found it persuasive, noting that “the patentee expressly
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`stated that an embodiment having the support arm and wheel at a position roughly
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`parallel with the side of the frame is not ‘a retracted position relative to said frame,’
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`and that a feature of the invention is to retract the wheel or track to a position within
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`the frame.” Commission Opinion at 24. This showed that “the patentee understood,
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`and the Examiner agreed,4 that the term . . . means a position where the wheel or
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`track is within or inside the frame.” Id. The applicant’s statements during
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`prosecution show that it understood the retracted position in a manner squarely
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`consistent with Caterpillar’s construction.
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`Wirtgen next argues that the applicant’s argument “do[es] not support
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`Caterpillar’s construction” because the applicant also presented “other arguments
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`relating to Kaiser,” but this is contrary to law. The Federal Circuit has repeatedly
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`“made clear [that] an applicant’s argument that a prior art reference is
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`distinguishable on a particular ground can serve as a disclaimer of claim scope even
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`if the applicant distinguishes the reference on other grounds as well.” Saffran v.
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`4 The Commission noted that in the subsequent Office Actions, the Examiner did not
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`restate the rejection based on Kaiser. Commission Opinion at 24.
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`Johnson & Johnson, 712 F.3d 549, 559 (Fed. Cir. 2013). Thus, simply because the
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`applicant made other arguments against Kaiser does not diminish the fact that the
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`patentee clearly set forth its understanding of the retracted limitation.
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`Finally, Wirtgen argues Caterpillar’s construction should be rejected because,
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`during prosecution, the applicant did not argue that the Gutman reference lacked a
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`retracted position. As the Commission rightly found, this is a specious argument:
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`[Wirtgen’s] argument makes little sense because Gutman was not used by the
`Examiner to establish that it discloses “a retracted position relative to said
`frame” so the patentee would not be expected to respond that Gutman does
`not disclose that element. . . . It would be immaterial for the patentee to argue
`that Gutman does not disclose “a retracted position relative to said frame”
`when the Examiner made no such assertion . . . .
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`Commission Opinion at 25-26. Indeed, Wirtgen argued that this IPR should be
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`instituted in part because, “the Examiner considered only whether a POSITA would
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`combine Gutman’s teaching of a second actuator for rotating a wheel with Simons.”
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`Paper No. 9 at 9 (emphasis added). Thus, Wirtgen acknowledged that the Examiner
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`did not rely on Gutman for the retracted position limitation. Like the claim language
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`and the specification, the prosecution supports only Caterpillar’s construction.
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`D. Extrinsic evidence supports Caterpillar’s construction.
`The extrinsic evidence also supports Caterpillar’s position. For example the
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`Bitelli ’037 and Busley references use the term “retracted” to refer to a position
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`within the frame. See, e.g., Ex. 1011 at ¶¶ 7-9; Ex. 1017 at Fig. 1, 7. As with the
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`’693 patent, Wirtgen does not identify even one instance where any reference refers
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`to a position outside the frame as a “retracted” position. Thus, like the ’693 patent,
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`the extrinsic evidence shows that the industry uniformly refers to a retracted position
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`as one inside the frame.
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`Second, Wirtgen attempts to rebut Caterpillar’s use of dictionary definitions,
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`arguing that to “‘[d]raw or pull (a thing) back in’ . . . does not require the ‘thing’ to
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`be drawn in beyond some arbitrary boundary.” Petitioner Reply at 7. But the
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`definition itself states that retract means to draw or pull something “back in.” Ex.
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`2006 at 4-5. Wirtgen’s argument stems from its disregard for the ’693 patent’s
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`distinction between projecting and retracted positions with reference to the frame.
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`Notably, Wirtgen again ignores the evidence showing the distinction between
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`“retracted” and “projecting.” Caterpillar showed “project” is defined as “protruding”
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`or to “cause to jut or stand out.” Id. at 3. Wirtgen ignores this evidence, failing to
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`even attempt to reconcile its construction with the dictionary. Wirtgen ignores all
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`evidence demonstrating that, unlike the retracted position, a projecting position must
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`“jut or stand out” from the frame. Id.
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`The evidence uniformly supports Caterpillar’s construction that the retracted
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`position is within the frame. Unlike Wirtgen’s construction, Caterpillar’s position is
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`consistent with the record and should be adopted.
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`III. The Combination of Gutman and Bitelli Does Not Render the
`Claims Obvious
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`Wirtgen’s proposed combination of Gutman and Bitelli fails to render obvious
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`any challenged claim. Despite relying on never-before-presented arguments,
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`Wirtgen’s Reply fails to remedy the significant deficiencies in this combination.
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`Indeed, the Commission recently rejected many of these same arguments. The Board
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`should similarly find the challenged claims valid here.
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`A. Gutman and Bitelli do not render obvious “a retracted
`position relative to said frame.” (Claims 1, 17, 36, and 38)
`Gutman does not disclose a retracted position relative to said frame. While,
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`Wirtgen presents new arguments in an attempt to salvage its Petition, none of them
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`has merit.
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`While Gutman can vary its tracks’ distance from its frame, its tracks always
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`project relative to the frame, as shown in the below annotated figure. Patent Owner
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`Response at 23.
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`Id. at 24 (displaying an annotated version of Ex. 1005, Fig. 3). Indeed, both
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`Wirtgen’s petition and Mr. Arnold’s expert declaration, Wirtgen relies on only
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`“frame assembly 12” as satisfying the “frame” limitation. Petition at 26; Ex. 1003,
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`¶77. In fact, Wirtgen’s Petition annotated an image of Gutman’s machine showing
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`that it relied on the frame 12—the same component that Gutman identifies as the
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`frame:
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`Now, however, Wirtgen attempts to expand the frame to include at least the
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`“storage tank 52” and the side portion of “cutter 30.” Petitioner’s Reply at 9-10.
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`Wirtgen never identified these features as satisfying the “frame” limitation and for
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`that reason alone its reply is improper. See Trial Practice Guide (August 2018
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`update) at 14 (“Petitioner may not submit new evidence or argument in reply that it
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`could have presented earlier”).
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`But even under Wirtgen’s new argument, Gutman fails to meet the retracted
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`position limitation. Regarding the side portion of the rotary cutter, other figures
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`clearly identify it as part of rotary cutter 30, not the frame:
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`Ex. 1005 at Fig. 3 (annotated).
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`Id. at Fig. 4 (annotated). Moreover, simply because Gutman states that the cutter is
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`fixed to the frame does not mean that the side of the cutter is part of the frame.
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`Indeed, the image Wirtgen previously relied on shows the cutter’s connection to the
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`frame 12—the very same frame that Wirtgen previously relied on:
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`Id. at Fig. 1 (annotated). There is no support for Wirtgen’s new argument that the
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`cutter should be considered part of the frame.
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`Finally, Wirtgen also argues that the “storage tank” should be considered part
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`of the frame, but Wirtgen provides no reasoning or explanation for this new
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`argument. Wirtgen has simply identified the widest portions of Gutman’s machine
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`and argued, without support, that they should be considered part of the frame. Not
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`only is this an improper, new argument in its Reply, but it is also meritless. Indeed,
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`in response to the same arguments by Wirtgen, the Commission agreed with
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`Caterpillar that Gutman does not contain a “retracted position relative to said frame.”
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`Commission Opinion at 44-46. The Commission found that “Gutman, like Kaiser,
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`discloses a machine wherein the wheel or track is parallel to the frame rather than at
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`a position within or inside the frame.” Id. at 45. The Board should reject Wirtgen’s
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`argument here as well.
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`B. Gutman and Bitelli do not render obvious “the projecting
`and retracted position forming an arc of at least 90º.” (Claim
`17)
`The combination of Gutman and Bitelli does not render obvious “the
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`projecting and retracted position forming an arc of at least 90º.” It is undisputed that
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`Gutman does not mention such a feature. Additionally, a primary goal of Gutman’s
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`design is to increase the machine’s stability. As Caterpillar explained, moving
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`Gutman’s track through an arc of at least 90 degrees would undermine this goal.
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`Wirtgen does not dispute this. Instead, Wirtgen proposes brand-new modifications
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`to the prior art while ignoring Caterpillar’s stability analysis. Wirtgen’s
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`unpatentability arguments ignore Gutman’s fundamental goal, and the Board should
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`reject them.
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`1. Gutman does not disclose the claimed 90º arc
`Wirtgen argues the Gutman “teaches or suggests” the claimed 90-degree arc,
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`but Wirtgen fails to provide any support for Gutman achieving such an arc. See
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`Petitioner Reply at 11-14. Instead, Wirtgen argues that Gutman “does not limit its
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`teachings” to the embodiment disclosed in the reference. Id. at 11. But nothing in
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`the reference indicates that Gutman’s arms were intended to move through such an
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`arc. On the contrary, Gutman states that it intends its tracks to move to increase
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`stability by “increas[ing] the distance between the tracks.” Ex. 1005 at 3:35-54.
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`Caterpillar’s expert demonstrated that moving Gutman’s track through an arc of at
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`least 90 degrees would decrease the distance between Gutman’s tracks, lowering its
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`stability. Ex. 2008 at ¶ 129. Wirtgen has not disputed this and has identified no
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`reason why Gutman “teaches or suggests” a feature that would work against the very
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`stability principle it discloses.
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`2.
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`A POSITA would not have been motivated to modify
`Gutman to move its tracks through an arc of at least
`90º
`Recognizing that Gutman does not support its argument, Wirtgen next argues
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`
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`that a POSITA would have instead been motivated to modify the reference so that
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`its support arm pivots more than 90 degrees. See Petitioner Reply at 12. In support
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`of this argument, Wirtgen 1) relies on additional references without considering
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`them in light of Gutman’s disclosure, 2) identifies a different actuator not mentioned
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`in any reference, and 3) provides conclusory arguments regarding stability without
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`even evaluating the analysis of Caterpillar’s expert. Each of these arguments is
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`meritless.
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`
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`First, Wirtgen identifies Bitelli and Hudis as examples of references that
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`would provide “reasons for pivoting the support arms over 90 degrees.” PR, 12. But,
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`Wirtgen does not explain how they would inform a POSITA regarding Gutman’s
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`machine and Wirtgen provides no motivation to combine the teachings of these
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`references with Gutman.
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`
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`Wirtgen fails to address the fact that Gutman states that its tracks are movable
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`to increase the distance between the tracks, but it is undisputed that the Wirtgen’s
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`proposed modification would decrease those distances and the machine’s stability.
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`See Ex. 2008 at ¶ 129 (constituting the only testimony on this issue). Wirtgen
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`presented no reason why a POSITA would use Hudis and Bitelli to modify Gutman
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`in a manner contrary to Gutman’s own disclosure. The ALJ and Commission agreed
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`with Caterpillar that a POSITA would not have undertaken this modification, relying
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`on testimony that “extending Gutman’s legs beyond 90 degrees would not improve
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`the machine because it would actually begin to reduce track width and decrease
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`stability.” Ex. 2005 at 57.5
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`
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`Second, Wirtgen introduces a new reference to argue that a POSITA knew of
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`telescoping cylinders. Petitioner Reply at 12. Initially, the Board need not even
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`consider Wirtgen’s improper effort to introduce new references to backfill gaps in
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`5 This portion of the Final Initial Determination was adopted by the Commission.
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`Commission Opinion at 1 (affirming the unreviewed portions of the final initial
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`determination).
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`the prior art. See Trial Practice Guide at 15 (noting the impropriety of relying on
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`“newly cited prior art references intended to ‘gap-fill’ by teaching a claim element
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`that was not present in the prior art presented with the petition.”). But putting aside
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`the impropriety of the argument, Wirtgen fails to explain this reference’s relevance.
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`Gutman does not mention telescoping cylinders. Wirtgen does not even argue that a
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`POSITA would have used that type of cylinder in Gutman or explain why one would
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`have been motivated to use such a cylinder. In short, this new reference does not
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`support Wirtgen’s argument.
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`Finally, Wirtgen argues that Caterpillar’s expert’s analysis should be
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`disregarded because the ground incline may not be level, but Wirtgen based its
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`argument on the incorrect assumption that Dr. Singhose’s analysis only applies to
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`relatively level ground. Dr. Singhose presented calculations analyzing the conditions
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`under which Gutman would be prone to tip over. Ex. 2008, ¶¶109-123. During his
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`deposition, he explained that his calculations would apply not only to flat surfaces
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`but also to a range of angles due to the effect of “cosineθ.” Ex. 1024, 67:22-69:13.
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`
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`As Dr. Singhose explained, to convert the results of his calculations to apply
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`to any angle of incline, one would simply adjust his results by taking cosineθ into
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`account. Ex. 1024, 68:7-16, 69:6-13. He explained that the cosineθ remains near 1
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`for relatively small angles. Id. (“But cosine theta . . . stay[s] pretty constant for low
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`angles.”; “Cosine of the slope angle theta . . . stays near one for quite a while as the
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`angle changes.”). The following chart shows that cosineθ stays constant for a range
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`0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
`Angle of Slope in Degrees
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`
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`of degrees:
`
`1.000
`0.995
`0.990
`0.985
`0.980
`0.975
`0.970
`0.965
`0.960
`0.955
`0.950
`0.945
`0.940
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`Value of the Cosineθ
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`Dr. Singhose’s calculations would, therefore, remain constant for a range of degrees.
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`For example, at 8 degrees the cosineθ equals 0.990. To account for this angle, one
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`would simply need to multiply Dr. Singhose’s final moment calculation by the
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`cosineθ value, in this case 0.990. Doing so would yield a result nearly identical to
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`the “large value that indicates the machine is very stable.” Ex. 2008, ¶123. Therefore,
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`Dr. Singhose’s conclusion—that the Gutman machine is very stable—applies to a
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`large range of angle measurements.
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`Wirtgen attempts to circumvent the type-volume limit by relying on
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`
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`documents from the Ohio Department of Transportation (ODOT) explained solely
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`in Mr. Arnold’s declaration.6 Wirtgen incorporates four paragraphs of