`
`May 1, 2023
`
`VIA ECF/CM
`
`The Honorable Joshua D. Wolson
`12613 U.S. Courthouse
`601 Market Street
`Philadelphia, Pennsylvania 19106
`
`Re: Wirtgen America, Inc. v. Caterpillar Inc., C.A. No. 17-770-JDW
`
`Dear Judge Wolson:
`
`Pursuant to the Court’s April 21, 2023 Order (D.I. No. 191), the parties write to provide an
`update regarding Caterpillar’s Motion to Exclude (D.I. No. 188).
`
`The parties have met and conferred regarding Wirtgen America’s identification of Günter
`Hähn and Christian Berning as individuals whom Wirtgen America may use to support its claims
`or defenses. On May 1, 2023, Wirtgen America served its most recent amended Initial Disclosures,
`which removes Mr. Berning and narrows Dr. Hähn’s “Connection to Case and Subject Matter of
`Discoverable Information,” as follows:
`
`Third Amended Initial Disclosures
`
`Current Amended Initial Disclosures
`
`Named inventor with knowledge of the U.S.
`Patent Nos. 7,946,788; 8,511,932; 8,690,474;
`as well as Wirtgen America’s technologies
`incorporating the foregoing
`
`Managing director at Wirtgen GmbH with
`knowledge of Wirtgen GmbH’s patent
`protection policies as well as written
`communications with Caterpillar regarding
`Wirtgen America’s patents.
`
`The parties have agreed that in connection with Dr. Hähn’s potential testimony, Wirtgen
`America will not be relying on any documents produced after the close of fact discovery on March
`31, 2023.
`
`The parties have further agreed that Wirtgen America will not rely on Dr. Hähn in support
`of any of the following topics:
`
`The conception and/or the reduction to practice of any Asserted Patent;
`The infringement of any Asserted Patent;
`
`1.
`2.
`
`
`
`Case 1:17-cv-00770-JDW-MPT Document 196 Filed 05/01/23 Page 2 of 2 PageID #: 15631
`
`
`The Honorable Joshua D. Wolson
`May 1, 2023
`Page 2
`
`
`3.
`4.
`5.
`
`6.
`
`7.
`
`The validity of any Asserted Patent;
`Any alleged prior art Wirtgen-branded products;
`Any alleged copying of any Asserted Patent and/or Wirtgen-branded product by
`Caterpillar;
`Any competition between any Wirtgen Entity, Caterpillar, and/or other companies,
`such as Roadtec or BOMAG;
`Any sales, profits, losses, damages, and/or competitive harm relating to any claim
`by Wirtgen America against Caterpillar;
`Patent licensing, royalty rates, and/or any intellectual property agreements;
`The economic value of any individual features found in products that Wirtgen
`America asserts practice the claimed inventions of the Asserted Patents; and
`10. Manufacturing capacity and/or supply chain issues.
`
`8.
`9.
`
`In consideration of the above, the parties have agreed that no additional ESI search needs
`to be undertaken by Wirtgen America as a result of the Court’s April 21, 2023 Order.
`
`Finally, the parties are working to find a mutually agreeable date for a deposition of Dr.
`Hähn in Delaware.
`
`The parties are available if the Court has any additional questions or concerns regarding
`the above matters.
`
`
`
`
`
`
`
`
`30343264.1
`
`Respectfully submitted,
`
`Adam W. Poff (No. 3990)
`
`Counsel for Plaintiff
`
`Andrew L. Brown (No. 6766)
`
`Counsel for Defendant
`
`
`
`
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