Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 1 of 13 PageID #: 17362
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`Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 2 of 13 PageID #: 17363
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`8/17/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
`
`Richard W. Klopp
`
`Page 1
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` IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
`___________________________________
`IN RE MATTER OF: )
`WIRTGEN AMERICA, INC., )
`Plaintiff/Counterclaim-Defendant, ) C.A. No.:
` vs. ) 1:17-cv-00770-JDW-MPT
`CATERPILLAR, INC., )
`Defendant/Counterclaim-Plaintiff. )
`___________________________________)
`
` VIDEOTAPED DEPOSITION OF RICHARD W. KLOPP
` PALO ALTO, CALIFORNIA
` Thursday, August 17, 2023
`
`Stenographically Reported by:
`HEATHER J. BAUTISTA, CSR, CRR, RPR, CLR
`Realtime Systems Administrator
`California CSR License #11600
`Oregon CSR License #21-0005
`Washington License #21009491
`Nevada CCR License #980
`Texas CSR License #10725
`______________________________________________________
` DIGITAL EVIDENCE GROUP
` 1730 M Street, NW, Suite 812
` Washington, D.C. 20036
` (202) 232-0646
`
`www.DigitalEvidenceGroup.com Digital Evidence Group C'rt 2023
`
`202-232-0646
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`
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`Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 3 of 13 PageID #: 17364
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`8/17/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
`
`Richard W. Klopp
`
`Page 54
`heads-up as to when I would ask for a break so you
`can manage your question whatever way you want.
` MR. AINSWORTH: Thank you for that, Jim.
` And let me give some paper clips in case
`that's helpful to keep track of the '641 patent.
` MR. YOON: Thank you.
` Q. (By Mr. Ainsworth) So you have a copy of
`Exhibit 2 in front of you, Dr. Klopp?
` A. Yes.
` Q. And that's the '641 patent?
` A. Correct.
` Q. You studied it pretty carefully in this
`case, I assume?
` A. Yes.
` Q. Read it many times?
` A. Yes.
` Q. All right.
` So I was -- we were talking about Elements
`11.5 of Claim 11 and my question was: For -- before
`you even get to that step, the milling machine has
`to be in the raised position and it has to -- the
`rotor has to be running and the machine has to be
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`Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 4 of 13 PageID #: 17365
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`8/17/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
`
`Richard W. Klopp
`
`Page 55
`going in the reverse direction; is that -- is that
`correct?
` A. That's not quite correct. For the machines
`that we're dealing with, it has to be going in
`reverse. It's dependent on which direction is the
`rotor turning. So is it basically an up-milling
`machine or a down-milling machine?
` Q. And in the -- in Claim 11, what does the
`claim require as to the direction of the rotor?
` A. That -- well, I guess, it's -- it's --
`yeah, the rotor has to be rolling in the same
`direction as essentially the wheels or the tracks.
` Q. So in the machine in Claim 11, if the
`machine is traveling in a forward direction, the
`rotor is rotating in the opposite direction from the
`direction of travel; correct?
` A. In an up-milling type machine, yes.
` Q. And when it's traveling in reverse, the
`machine -- the rotor is rotating in the direction of
`travel; correct?
` A. For that kind of machine, yes. So the way
`this is written is I think they want to cover both
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`Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 5 of 13 PageID #: 17366
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`8/17/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
`
`Richard W. Klopp
`
`Page 56
`
`types of machines.
` Q. And the PM-465 and 565 are up-milling
`machines?
` A. Correct.
` Q. And the PM-600, PM-800 and PM-300, they're
`all up-milling machines?
` A. Correct.
` Q. Okay.
` So going back to my questions related to
`Paragraph 436 of your report, in the -- the two
`scenarios -- I asked you whether there were any
`other scenarios where Limitation 11.5 would be
`performed by the 465 that you've identified in your
`report and so I'm going to ask again, is there any
`other scenario that you've identified.
` A. I don't think expressly.
` Q. Okay.
` I want to start with the second scenario
`there that you identify as with the numeral or
`letter B. It says, "Descending the drum prematurely
`while backing up the machine to take another pass."
` Do you see that?
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`Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 6 of 13 PageID #: 17367
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`8/17/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
`
`Richard W. Klopp
`
`Page 176
`would have to understand better is -- I -- it's a
`rotor exposure basis. So if the moldboard or side
`plates get above the bottom of -- bottom tangent
`plane of the rotor, then the rotor should shut off
`in reverse.
` But in forward, I guess what it's -- it may
`recognize that, for example, the side plates are
`above the bottom of the rotor because the rotor is
`down in the cut, but it doesn't shut off and it must
`be because the logic says, well, you're not
`traveling in reverse. But that's just kind of like
`my working through it.
` Q. I'll ask the question a different way.
` When Caterpillar customers are operating
`the accused machines in reverse, the software
`feature is operating; correct?
` A. I believe that's the case.
` Q. Okay.
` And you -- you would agree that certainly
`Caterpillar's customers have operated the accused
`machines in reverse?
` A. Yes.
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`Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 7 of 13 PageID #: 17368
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`8/17/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`
`Richard W. Klopp
`
`Page 177
` Q. Now, and you would agree that Caterpillar's
`customers have used the accused machines in reverse
`with the rotor running. That would be standard
`practice; right?
` A. I believe so, yes.
` Q. Okay.
` Now, it's your opinion that the -- well,
`let's -- let's talk about what your understanding is
`of how the logic works on the -- well, there's
`slight differences between how the logic works on
`the PM-600 versus the PM-300; correct?
` A. I understand that's the case.
` Q. It really has to do with the sensor is
`different between what's used on the 300 versus the
`600; right?
` A. I think that -- I'd have to refresh on
`that, but I'll -- I'll accept that.
` Q. Because 600 uses proximity switches to
`detect when to shut off the rotor. Whereas, the 300
`uses a position-sensing cylinder located on the
`moldboard. Does that sound right?
` A. I can't disagree. That's -- that's as good
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`202-232-0646
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`Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 8 of 13 PageID #: 17369
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`8/17/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
`
`Richard W. Klopp
`
`Page 178
`
`as I can do without referring to some paper.
` Q. Okay.
` So my question is: Do you understand for
`the accused machines operating under the original
`software logic, under what circumstances the logic
`would cause the rotor to automatically disengage?
` A. So my understanding is that we don't get
`anywhere if the side plates or moldboard/scraper
`blade are above the bottom tangent plane of the
`rotor. My understanding is anything at any
`elevation that causes the rotor bottom to be
`exposed, in other words, anything that pushes either
`side plate up or the moldboard up, such that the
`bottom edge of those is above the tangent plane and
`you're in reverse, that triggers a shutoff and
`that's independent of -- of elevation above the
`ground.
` Q. Okay.
` So, and let's see if I can -- if your
`report refresh your recollection on the sensors used
`on the PM-600 and 800 machine. Just give me a
`moment here. I'm trying to find the reference here
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`Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 9 of 13 PageID #: 17370
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`8/17/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
`
`Richard W. Klopp
`
`Page 181
`
` A. So let's see.
` So, yeah, if you're in reverse, you're in
`the air, and something pushes up the moldboard to
`get it off the proximity switch, it's -- well, for
`one, it's not monitoring the distance. It -- it is,
`I guess, in effect, detecting it after the event.
` Q. If the moldboard -- so if the vehicle is in
`the raised position traveling in reverse and the
`rotor is running and an obstacle causes the
`moldboard to be sufficiently raised to trigger the
`proximity sensor, you agree that that is -- would
`cause the rotor to disengage; correct?
` A. I believe that would cause the rotor to
`disengage, yes.
` Q. And why, in your opinion, is the moldboard
`in that situation not monitoring a distance between
`the rotor and the ground?
` A. Well, for one, as you're going along before
`you get to your obstacle, there's nowhere to look on
`the machine, on the display, on anything to know
`what the distance is, so it's -- it's not being
`monitored.
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`202-232-0646
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`Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 10 of 13 PageID #: 17371
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`8/17/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
`
`Richard W. Klopp
`
`Page 213
`
`there's clarity on it. Now --
` MR. AINSWORTH: I hope so, but I'm just --
`I'm just trying to be sure there's nothing --
` MR. YOON: And to avoid a problem, I can
`just say for the record the positions we have are
`the ones identified -- identified with respect to
`11.4 and 11.5. There's not a new non-infringement
`position that is not identified in the report --
`that's not identified in his report as to Claim 11.
`We're not trying to offer anything else, if that
`helps you.
` MR. AINSWORTH: Thank you.
` Q. (By Mr. Ainsworth) Turning to Paragraph
`224 of your rebuttal report, Exhibit 7.
` Are you with me?
` A. Yes.
` Q. Are you aware in -- in Paragraph 24 and the
`few paragraphs before that, you provide opinions
`under a section titled Non-infringing Alternatives.
` Do you see that?
` A. Yes.
` Q. Have you done any assessment of whether the
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`202-232-0646
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`Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 11 of 13 PageID #: 17372
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`8/17/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
`
`Richard W. Klopp
`
`Page 285
`
`I don't think I called that a broadening.
` Q. Now turning back up to Paragraph 44, you
`state in Paragraph 44 that the phrase "prior to
`operation," quote, "was not evident from a figure of
`prior specification language." You then state,
`"This phrase also did not exist in the claims as
`originally issued in the predecessor of the '659
`patent." In the next sentence you state, "The
`phrase was added to a certain" -- "to asserted
`Claims 1 and 14 and as a result reflect a broadening
`of these claims, include both aligned and misaligned
`conditions, when a person of ordinary skill in the
`art would understand that only a misaligned
`condition for the originally contemplated."
` Do you see that?
` A. Yes.
` Q. Is it still your opinion that including the
`language "prior to operation" in Claims 1 and 14
`resulted in a broadening of the claim language?
` A. Yeah, but I -- because I think it --
`it otherwise was only talking about effectively
`during operations, so it's broadened the scope to be
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`202-232-0646
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`Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 12 of 13 PageID #: 17373
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`8/17/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
`
`Richard W. Klopp
`
`Page 286
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`prior to operations.
` Q. So under the prior claim language, before
`that prior operation was introduct -- was -- was
`introduced, would the claim read on a machine that
`regardless of whether it was aligned or misaligned
`prior to operation?
` A. I think it might.
` Q. So by limiting Claim 1 and Claim 14 of the
`'268 patent to only those machines that were aligned
`prior to operation, that, in fact, narrowed from
`what was claimed in the '659 patent; correct?
` A. Sounds like it could have, yes.
` MR. AINSWORTH: All right.
` Let's take a break?
` THE VIDEOGRAPHER: Okay.
` We are off the record at 5:54.
` (Recess from 5:54 p.m. to 6:20 p.m.)
` THE VIDEOGRAPHER: We are now on the record
`at 6:20.
` Q. (By Mr. Ainsworth) Dr. Klopp, on any of
`our breaks today, have you discussed the substance
`of your testimony with anyone?
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`202-232-0646
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`Case 1:17-cv-00770-JDW Document 221-29 Filed 10/05/23 Page 13 of 13 PageID #: 17374
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`8/17/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
`
`Richard W. Klopp
`
`Page 298
` I, HEATHER J. BAUTISTA, CSR No. 11600, Certified
`Shorthand Reporter, certify:
` That the foregoing proceedings were taken before
`me at the time and place therein set forth, at which
`time the witness declared under penalty of perjury; that
`the testimony of the witness and all objections made at
`the time of the examination were recorded
`stenographically by me and were thereafter transcribed
`under my direction and supervision;
` That the foregoing is a full, true, and correct
`transcript of my shorthand notes so taken and of the
`testimony so given;
` ( ) Reading and signing was requested/offered.
` (XX) Reading and signing was not requested/offered.
` ( ) Reading and signing was waived.
` I further certify that I am not financially
`interested in the action, and I am not a relative or
`employee of any attorney of the parties, nor of any of
`the parties.
` I declare under penalty of perjury under the laws
`of California that the foregoing is true and correct.
`
`
` Dated: August 25, 2023
`
` _______________________________________
` HEATHER J. BAUTISTA, CSR, CRR, RPR, CLR
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`202-232-0646
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`
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