Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 1 of 16 PageID #: 23629
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`Exhibit 63
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`Exhibit 63
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 2 of 16 PageID #: 23630
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`WIRTGEN AMERICA, INC.
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`Plaintiff/Counterclaim-Defendant, )
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`) C.A. No. 1:17-cv-00770-JDW
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`Defendant/Counterclaim-Plaintiff. )
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`v.
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`CATERPILLAR INC.
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`REBUTTAL EXPERT REPORT OF DR. DURHAM K. GILES
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 3 of 16 PageID #: 23631
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`includes the following figure when listing available liner plates and showing
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`where they may be placed on the milling drum housing in red.
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`(CAT-770_023902 at 85)
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`This included structure is the top of the milling drum housing, to which the side
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`plates, belt shoe, and scraper blade all attach. These parts fit together to enclose
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`the milling drum and contain any milling debris.
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`88. Like the description in the ’618 Specification, both the Instruction
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`Manual and the Parts Manual consider the housing to be the structures
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`surrounding the sides, front, back, and top of the milling drum.
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`89. Also like many milling machines, the Accused Wirtgen America
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`62
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 4 of 16 PageID #: 23632
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Machines include a water spray system to spray water at the milling drum to
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`control dust and cool the milling drum. The water spray system on the Accused
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`Wirtgen America Machines uses a pump to pump water from a water reservoir
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`formed as an integral part of the machine frame to a spray bar mounted to the
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`top of the milling drum housing that extends along the milling drum width. The
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`figure below depicts this spray bar.
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`(WA-0025743 at 852)
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`As can be seen, the spray bar is mounted to the outside of the milling drum
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`housing. At my inspection, I observed that the spray bar injects water into the
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`system by arranging the nozzles into holes in the milling drum housing. The tips
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`of the nozzles are flush with the inside of the housing and spray water from this
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`63
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 5 of 16 PageID #: 23633
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`location onto the milling drum. The figure below shows the arrangement of these
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`nozzles I observed on the display example milling drum housing.
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`(WA-17232023)
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`The image below further shows the nozzles spraying water on the W 210 Fi
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`during my inspection.
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`64
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 6 of 16 PageID #: 23634
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`(WA-17232064)
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`90. The operator is able to control the water spray system from the
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`control panels (which include an HMI screen) located around the machine. The
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`operator can select whether to operate the water spray system through a Manual
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`or Automatic mode.
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`65
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 7 of 16 PageID #: 23635
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`table below:
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`Claim Term
`“Operating condition and/or
`operating state”
`“Determine a desired main
`spray manifold pressure based
`on the estimated amount of
`pressurized water”
`pump
`“Determine
`[the/a]
`signal based on the desired
`main spray pressure”
`“Estimate an amount of
`pressurized water that will be
`required
`to
`operate
`the
`[primary/first]
`rotor
`spray
`bank”
`“Activate
`valve”
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`the first control
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`
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`Construction
`Any information detected by the
`machine
`about
`then-current
`operation
`Estimate the amount of water
`needed to generate an intended
`pressure
`Determine [the/a] pump signal
`based on the estimated amount of
`water
`needed
`to
`generate
`intended pressure
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`Claim
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`Claims 1 and 8
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`Claims 1 and 8
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`Claims 1 and 8
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`Plain and ordinary meaning
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`Claims 1 and 8
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`Open the first control valve
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`Claims 1 and 8
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`XII. The Accused Wirtgen America Machines Do Not Infringe the Asserted
`Claims
`107. It is my opinion that the Accused Wirtgen America Machines do
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`not infringe the claims of the ’618 Patent both through the physical hardware
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`limitations and by failing to perform certain of the software functions.
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`108. The Accused Wirtgen America Machines do not satisfy the
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`hardware requirements of the claims, including the location of the spray bar and
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`the configuration of the water reservoir. Specifically, the spray bar is located on
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`78
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 8 of 16 PageID #: 23636
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`the housing, not the frame. Further, the water reservoir is integrally formed as
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`part of the frame rather than being a separate structure mounted on the frame.
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`109. The Accused Wirtgen America Machines further do not satisfy
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`various software requirements because the controller does not estimate an
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`amount of pressurized water, determine a desired main spray manifold pressure,
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`or maintain the desired main spray manifold pressure.
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`A. The Rotor Spray Bar Is Not Mounted to the Frame and Is
`Not Disposed in Housing Because the Rotor Spray Bar Is
`Mounted to the Outside of the Housing
`110. It is my opinion that the Accused Wirtgen America Machines do
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`not satisfy the claim requirements that the spray bar be “mounted to the frame”
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`because the spray bar is instead mounted to the housing. This is most simply
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`illustrated by my observation of the display example milling drum housing
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`(which again was identical to the observed milling drum housing on the W 210
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`Fi machine) that was separated from the frame but still had the rotor spray bar
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`mounted to the housing. If the spray bar was indeed mounted to the frame, it
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`would have been impossible for the spray bar to be removed undisturbed and
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`intact when the rotor and housing were removed from the machine frame.
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`79
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 9 of 16 PageID #: 23637
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`must be engineered to contain debris from the milling process.
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`133. A POSITA (i.e., a person versed in mobile industrial equipment)
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`would not refer to the external paneling as the housing, but would understand
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`the housing to refer to the milling drum housing. Dr. Sorini identifies no
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`evidence that a POSITA would consider the external paneling as the housing.
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`But, as discussed above, a POSITA would understand that the referred to
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`housing is the milling drum housing. WA-17232118 at 43:6-46:20.
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`B.
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`The Water Reservoir Is Not Mounted on the Frame
`Because the Water Reservoir Is Formed in the Frame
`134. It is my opinion that the Accused Wirtgen America Machines do
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`not include a water reservoir that would be considered “mounted on” the frame
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`because the water reservoir is formed by the frame itself. Thus, there is no
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`separate part that must be “mounted on” the frame.
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`135. The Specification of the ’618 Patent does not provide a figure
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`showing the water reservoir in the machine. The Specification only provides a
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`schematic indicating the water reservoir 266.
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`99
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 10 of 16 PageID #: 23638
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`’618 Patent at Fig. 4.
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`136. The Specification further describes that typical milling machines
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`“will carry a water reservoir.” ’618 Patent at 1:40-41. The Specification further
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`states that “[a] water reservoir is mounted on the frame and configured to enclose
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`and contain water.” ’618 Patent at 1:60-65. The claims themselves require that
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`the “water reservoir [be] mounted on the frame.” ’618 Patent at Claims 1, 8. By
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`stating that the water reservoir is “carried” and “mounted on the frame,” these
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`disclosures suggest the water reservoir is a discrete component from the frame
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`itself that must be mounted on the frame.
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`137. The water reservoir in the Accused Wirtgen America Machines,
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`however, is different because the frame itself forms the water reservoir. As
`100
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 11 of 16 PageID #: 23639
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`shown in the figure below, the water reservoir is formed by the front portion of
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`the frame.
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`(WA-17232182)
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`101
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 12 of 16 PageID #: 23640
`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 12 of 16 PagelD #: 23640
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
`HIGHLY CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY
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`Udi
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`(WA-17232184)
`(WA-17232184)
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`peeERIEELLtLALiiiiiidaeeeeeee
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`102
`102
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`eee
`ee
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`>
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 13 of 16 PageID #: 23641
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`(WA-17232181)
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`This unitized construction is further shown by the images from the CAD model
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`of the frame below.
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`103
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 14 of 16 PageID #: 23642
`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 14 of 16 PagelD #: 23642
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
`HIGHLY CONFIDENTIAL — OUTSIDE ATTORNEYS’ EYES ONLY
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`(WA-17232180)
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`(WA-17232180)
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`104
`104
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 15 of 16 PageID #: 23643
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`(WA-17232180)
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`As can be further seen in the cross-sectional view below, the tank is formed by
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`the void in the front portion of the frame.
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`(WA-17232180)
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`138. Thus, the water reservoir is not a discreet component that can be
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`removed. Instead, it is integrally formed as part of the frame. The water reservoir
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`is therefore not “mounted on the frame.”
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`C. The Accused Wirtgen America Machines Do Not Estimate
`an Amount of Water
`139. It is my opinion that the Accused Wirtgen America Machines do
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`not “estimate an amount of pressurized water that will be required to operate the
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`primary rotor spray bank when it is determined that the primary rotor spray bank
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`should be activated” because the machines do not measure or otherwise
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`105
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`Case 1:17-cv-00770-JDW Document 229-16 Filed 10/05/23 Page 16 of 16 PageID #: 23644
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Dr. Sorini show in the source code where this calculation, adjustment, or
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`correction is made.
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`XIII. Conclusion
`179. This report contains my complete opinions as of today based on
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`discovery provided by Caterpillar. I reserve the right to amend, modify, or
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`supplement this report in the event additional discovery is provided by
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`Caterpillar, including any expert opinions offered by Caterpillar, or any
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`additional
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`inspections performed on Wirtgen or Caterpillar machines.
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`Additionally, I understand that Wirtgen America and/or Caterpillar may use
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`demonstratives at some point later during this investigation. To the extent that
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`such demonstratives are used, I again reserve the right to amend, modify, or
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`supplement this report.
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`180. I declare under penalty of perjury under the laws of the United
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`States that the foregoing is true and correct.
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`181. Executed on the 16th of June 2023.
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`Durham K. Giles, Ph.D.
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`129
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