Case 1:17-cv-00770-JDW Document 229-27 Filed 10/05/23 Page 1 of 20 PageID #: 23780
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`Exhibit 74
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`Exhibit 74
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`Case 1:17-cv-00770-JDW Document 229-27 Filed 10/05/23 Page 2 of 20 PageID #: 23781
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`WIRTGEN AMERICA, INC.
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`Plaintiff/Counterclaim-Defendant,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`) C.A. No. 1:17-cv-00770-JDW
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`REPLY EXPERT REPORT OF DR. JOHN MEYER CONCERNING
`THE INFRINGEMENT OF U.S. PATENT NO. 7,530,641
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`CATERPILLAR INC.
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`v.
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`Defendant/Counterclaim-Plaintiff.
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`Case 1:17-cv-00770-JDW Document 229-27 Filed 10/05/23 Page 3 of 20 PageID #: 23782
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`Step 11.5: “in that the milling drum
`(12) is uncoupled from the drive
`engine (6), ... when detecting that
`the deviation falls below a pre-
`determined distance between the
`milling drum (12) and the ground
`surface (2).”
`
`Step 15.1: “the drum is raised by a
`pre-determined amount larger than a
`minimum distance”
`Step 15.2: “a sensing device
`measuring takes a lower limit
`position which corresponds to a pre-
`determined distance or
`minimum distance”
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`
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`Claim 11[f]: “the milling drum (12)
`is uncoupled from the drive engine
`(6), and/or the traveling devices (8)
`are uncoupled from the drive engine
`(6) and/or the machine frame (4) is
`raised and/or an alarm signal is
`generated when detecting that the
`deviation falls below a pre-
`determined distance between the
`milling drum (12) and the ground
`surface (2)”
`Claim 15: “a method in accordance
`with claim 11, characterized in that
`the milling drum (12) is raised by a
`predetermined amount that is larger
`than a minimum distance between
`the milling drum (12) and the
`ground surface (2), and in that a
`sensing device measuring towards
`the ground surface (2) takes a lower
`limit position which corresponds to
`a pre-determined distance or to a
`minimum distance to be maintained
`between the milling drum (12) and
`the ground surface (2).”
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`A. The Accused Products Infringe Claim Step 11.4 (Claim 11[e])
`23.
`It is my opinion that the Accused Products do practice the claim step
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`in that “a distance is monitored between the rotating, raised milling drum (12) and
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`the ground surface (2) or an obstacle located in front of the milling (12) when seen
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`in the direction of travel.”
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`24. The ’641 patent specification explains that “[t]he distance to be
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`monitored may either be a pre-determined fixed distance, or may consist of a pre-
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`determined fixed minimum distance, or can be variable in that it is capable of
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`being increased in accordance with an increasing travel speed of the traveling
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`devices.” ’641 patent, 5:23-27.
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`25. As explained in my initial report, the Accused Machines monitor the
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`positions of the side plates and moldboard relative to the lowest plane of the
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`milling drum. See Meyer Initial Rep. ¶¶ 99-106, 138-148. In other words, the
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`Accused Machines monitor a pre-determined fixed minimum distance between the
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`milling drum and the ground.
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`26. A person of ordinary skill in the art would understand that the status
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`of the side plates and moldboard correspond to a pre-determined fixed minimum
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`distance. Contra Klopp Initial Rep. ¶¶ 183, 185. I have provided the corresponding
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`pre-determined fixed minimum distances for the sides plates and moldboard below.
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`Side plate
`27. Furthermore, as Caterpillar’s documentation explains, “the
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`disengagement feature is activated . . . [when] any side plate is raised above a
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`threshold.” CAT0004149 (2016 PM620 & PM622 Technical Presentation) at 4508.
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`For the side plates in the Accused Products, the reverse rotor disengagement
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`threshold (deviation) corresponds to 50 mm in the Accused Large Milling Products
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`and 24 mm (left) or 28 mm (right) in the Accused Small Milling Machines. See
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`CAT0068812 (July 2015 PM600 Machine Software Requirements) at 9171;
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`CAT_00057265 (LPM Rotor On Off Control 3.1) at 57273; CAT0004149 (2016
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`PM620 & PM622 Technical Presentation) at 4360, 4395, 4397; CAT0007161
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`(2016 PM620 & PM622 Systems Operation Testing and Adjusting) at 7174-75,
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`7191-93; CAT-770_011453 (PM300 Parts Manual) at 2002-03; CAT_00057877
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`(Small Cold Planer – Rotor On Off Control Software Documentation) at 7878.
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`28. The Accused Products have side plate sensors that are linear sensors
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`“that send[] a pulse-width modulated (PWM) signal directly to the transmission
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`ECM. These sensors transmit the vertical position of the side plates.”
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`CAT0004149 (2016 PM620 & PM622 Technical Presentation) at 4359 (emphasis
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`added); CAT-770_043792 (Oct. 2021 PM3XX Technical Presentation) at 044123
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`(explaining same logic exists in the PM300 milling machines); see also id. at 4401,
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`4395, 4497, 4509; CAT0007161 (2016 PM620 & PM622 Systems Operation
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`Testing and Adjusting) at 7196-97, 7234.
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`29. Caterpillar’s software documentation for the Accused Large Milling
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`Machines explains the side plate thresholds are pre-defined duty cycles of the
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`PWM signals from the side plate position sensing cylinders: these “cylinder
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`positions are used for the High Side Plate/Moldboard While Reversing event. . . .
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`[T]he rotor will be disengaged if any side plate cylinder is raised more than 50
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`mm. This translates to a cylinder sensor PWM of >78.9% for the left side plate
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`cylinders and >81.4% for the right side plate cylinders.” CAT0068812 (July 2015
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`PM600 Machine Software Requirements) at 9171 (emphasis added); see also
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`CAT_00057265 (LPM Rotor On Off Control 3.1) at 57273; see also CAT0004149
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`(2016 PM620 & PM622 Technical Presentation) at 4360, 4395, 4397;
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`CAT0007161 (2016 PM620 & PM622 Systems Operation Testing and Adjusting)
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`at 7174-75, 7191-93. Thus, the Accused Large Milling Machines monitor the side
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`plates for a deviation of 50 mm.
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`30. Similarly, Caterpillar’s software documentation for the Accused Small
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`Milling Machines explains that “[t]he transmission ECM shall read the ‘Left and
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`Right side Plate Position at Rotor’ internal variables. . . . [T]he rotor drive will be
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`disengaged if any side plate cylinder is raised above the bottom of the rotor
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`(scratch position).” CAT_00057877 (Small Cold Planer – Rotor On Off Control
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`Software Documentation) at 7878.
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`31. The difference in position between the fully-raised side plate position
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`and the fully-lowered side plate position corresponds to the respective strokes of
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`the right and left side plate(s)—360 mm for the left side plate and 478 mm for the
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`right side plate. See Mar. 10, 2023 Wirtgen’s Infringement Contentions, Ex. D at
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`45-47 (citing CAT-770_011453 (PM300 Parts Manual) at 2002-03).
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`32. The software documentation provides a table that shows the rotor
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`should be disengaged when the left side plate position at rotor is anywhere between
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`0-336 mm or the right side plate position at rotor is anywhere between 0-450 mm.
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`CAT_00057877 (Small Cold Planer – Rotor On Off Control Software
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`Documentation) at 7878-79. Thus, the Accused Small Milling Machines monitor
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`the side plates for a deviation 24 mm (left) or 28 mm (right).
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` Moldboard
`33. For the moldboard in the Accused Products, the reverse rotor
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`disengagement threshold (deviation) corresponds to 50 mm in the Accused Large
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`Milling Machines and 40 mm in the Accused Small Milling Machines. See
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`CAT0068812 (July 2015 PM600 Machine Software Requirements) at 9164;
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`CAT_00057252 (Tier 4f Cold Planer – Moldboard Position) at 7256; CAT-
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`770_043792 (Oct. 2021 PM3XX Technical Presentation) at 4030, 4032;
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`11
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`CAT_00057877 (Small Cold Planer – Rotor On Off Control Software
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`Documentation) at 7879.
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`34. Caterpillar’s corporate witness testified that the Accused Products use
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`switches placed at certain points on the rear door to detect when the moldboard is
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`not lowered. See Engelmann Dep. 148:6-12, Mar. 16, 2023; see also Meyer Initial
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`Rep. ¶ 100. In my initial report, I pointed to Caterpillar’s documentation describing
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`that “[t]he moldboard position is determined by switches mounted to the rotor
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`service door and a plate mounted to the moldboard.” Meyer Initial Rep. ¶ 100
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`(citing CAT0007161 (Oct. 2016 PM620 & PM622 Systems, Operating, Testing &
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`Adjusting Manual) at 7175-76).
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`35. These switches are magnetic and when “the trigger plate (18) passes
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`over a switch, the switch closes and changes state in the ECM logic. The combined
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`state of the switches resolves the moldboard location.” CAT0004149 (Aug. 2016
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`PM620 & PM622 Technical Presentation) at 4360 (emphasis added). “The
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`moldboard is equipped with two position switches. The Moldboard Lowered
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`Position Switch measures when the moldboard is lowered (specifically 50 mm
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`from being fully lowered). The Moldboard Raised Switch measures when the
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`moldboard is raised (specifically 50 mm from being fully raised). . . . [W]hen the
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`[Moldboard Lowered Position Switch] is open the moldboard is considered not
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`lowered.” CAT0068812 (July 2015 PM600 Machine Software Requirements) at
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`12
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`9164; see also CAT_00057252 (Tier 4f Cold Planer – Moldboard Position) at
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`7256. Thus, the Accused Large Milling Machines monitor the moldboard for a
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`deviation of 50 mm. “[T]he disengagement feature is activated . . .[when] [t]he
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`moldboard status changes to “Not Lowered[.]” CAT0004149 (2016 PM620 &
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`PM622 Technical Presentation) at 4508; see also CAT0068812 (July 2015 PM600
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`Machine Software Requirements) at 9171 (“[T]he rotor drive will be disengaged if
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`the Moldboard Lowered Position Status becomes Not Lowered.”).
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`36. Similarly, the Accused Small Milling Machines have a “moldboard
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`cylinder . . . equipped with a position sensor (5) that monitors the position of the
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`moldboard. . . . The service range of the moldboard extends down 0-365 mm (0-
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`14.4 in) from the top of the moldboard travel.” Meyer Initial Rep. at ¶ 136 (citing
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`CAT-770_043792 (Oct. 2021 PM3XX Technical Presentation) at 4030, 4032); see
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`also CAT-770_021849 (Jun. 2020 PM3XX Systems Operation Testing and
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`Adjusting Manual) at 1883. When the moldboard cylinder extension is < 710 mm,
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`the rotor drive is disengaged.
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`CAT_00057877 (Small Cold Planer – Rotor On Off Control Software
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`Documentation) at 7879. The Accused Small Milling Machines monitor the
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`moldboard for a deviation of 40 mm.
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`37. Thus, as explained in my initial expert report, the Accused Products
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`“monitor the positions of the side plates and moldboard relative to the lowest plane
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`of the milling drum.” See Meyer Initial Rep. ¶ 100. The rotor of the Accused
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`Products is shut off “during reverse travel” when the distance between the bottom
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`edges of the side plates or the moldboard and the frame is less than the threshold
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`distances. See Klopp Rebuttal Rep. ¶ 184 (citing CAT-770_014810 at 4887).
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`Caterpillar’s documentation clearly defines that the Accused Products measure a
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`distance, or a pre-determined fixed distance or a pre-determined fixed minimum
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`distance, satisfying claim element 11[e]/11.4. See Meyer Initial Rep. ¶¶ 100-06,
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`138-48. Because Dr. Meyer inappropriately focuses on numerical values, I have
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`provided the exact threshold distance for the side plates and moldboard as
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`explained by Caterpillar’s documentation.
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`38. For the reasons explained above, it is my opinion that the Accused
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`Products practice claim element 11[e]/11.4.
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`B.
`39.
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`The Accused Products Infringe Claim Step 11.5 (Claim 11[f])
`It is my opinion that the Accused Product infringe the claim
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`limitation: “the milling drum (12) is uncoupled from the drive engine (6), and/or
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`the traveling devices (8) are uncoupled from the drive engine (6) and/or the
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`machine frame (4) is raised and/or an alarm signal is generated when detecting that
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`the deviation falls below a predetermined distance between the milling drum (12)
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`and the ground surface (2).” This corresponds to claim limitation 11[f] in my initial
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`report. See Meyer Initial Infringement Rep. ¶¶ 436-40, 464-65.
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`40. The Klopp Rebuttal Report defines claim step 11.5 as “that the milling
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`drum (12) is uncoupled from the drive engine (6), . . . when detecting that the
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`deviation falls below a pre-determined distance between the milling drum (12) and
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`the ground surface (2).” Klopp Rebuttal Rep. ¶ 186. I note that Dr. Klopp uses an
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`ellipsis to modify claim element 11.5 in accordance with my understanding of how
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`this claim limitation should be interpreted. See Meyer Rebuttal Rep. ¶¶ 256-60.
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`Contra Klopp Opening Invalidity Rep. ¶¶ 556-57. Specifically, Dr. Klopp
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`understood that he could select one step—“that the milling drum (12) is uncoupled
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`from the drive engine (6)”—from a list of possible steps—“and/or the traveling
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`devices (8) are uncoupled from the drive engine (6) and/or the machine frame (4)
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`is raised and/or an alarm signal is generated”—and practice claim element 11.5. Id.
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`I agree with Dr. Klopp that the other possible steps of, “and/or the traveling
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`devices (8) are uncoupled from the drive engine (6) and/or the machine frame (4)
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`is raised and/or an alarm signal is generated,” are properly interpreted as
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`alternatives.
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`41. Regardless, it is my opinion that the Accused Products do practice the
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`claim step in that “the milling drum (12) is uncoupled from the drive engine (6),
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`. . . when detecting that the deviation falls below a pre-determined distance
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`between the milling drum (12) and the ground surface (2).” See Meyer Initial Rep.
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`¶¶ 107-114, 149-56.
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`42. As I explained in my initial infringement report, the Accused Products
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`uncouple the raised milling drum from the drive engine upon sensing that the
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`raised scraper blade (“moldboard”) or side plates exceed a certain threshold. This
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`occurs when (1) the Accused Large Milling Machines are operating in reverse, (2)
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`the rotor drive status is “on,” and (3) “[t]he moldboard status changes to ‘Not
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`Lowered’ or any side plate is raised above a threshold.” See Meyer Initial Rep.
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`¶¶ 107-14, 149-56. Thus, when the milling drum reaches a distance relative to the
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`positions of the side plates and moldboard and the appropriate signals are
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`generated by the sensors associated with the scraper blade and/or the side plates,
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`the “automatic rotor disengagement feature” causes the rotor to disengage from the
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`drive engine. Id.
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`43. Dr. Klopp argues that the Accused Products do not infringe because
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`“Dr. Meyer has not shown claim step [11.5] that the deviation (change, difference,
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`or departure) in the distance triggers rotor shutoff. Dr. Meyer is not able to show
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`this, because [a person of ordinary skill] would see that it makes no sense to
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`compare a distance deviation to a predetermined distance in the context of
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`avoiding drum contact with the ground.” Klopp Rebuttal Rep. ¶ 187 (emphasis in
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`original). Dr. Klopp’s rebuttal report defines a “predetermined distance” as a “net
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`value.” See, e.g., Klopp Rebuttal Rep. ¶ 189.
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`44. However, Dr. Klopp presents a new argument that ignores the patent
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`specification. The ’641 patent specification explains that a “pre-determined
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`distance . . . can be effected either directly or indirectly. Direct measuring is
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`effected, for instance, by means of mechanical or electronic measurement of the
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`distance, whereas indirect measuring of the distance can be effected, for instance,
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`via machine elements of the construction machine, via tracers or via the actual
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`position of the lifting column carrying the machine frame.” 641 patent, 2:57-64
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`(emphasis added).
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`45. Nonetheless, as discussed above with respect to claim element
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`11[e]/11.4, I have provided numeric values for the deviation from the Accused
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`Products. For example, the reverse rotor disengagement threshold (deviation) for
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`the moldboard corresponds to 50 mm in the Accused Large Milling Machines and
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`40 mm in the Accused Small Milling Machines. See CAT0068812 (July 2015
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`PM600 Machine Software Requirements) at 9164; CAT_00057252 (Tier 4f Cold
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`Planer – Moldboard Position) at 7256; CAT-770_043792 (Oct. 2021 PM3XX
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`Technical Presentation) at 4030, 4032; CAT_00057877 (Small Cold Planer – Rotor
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`On Off Control Software Documentation) at 7879.
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`46. And the side plate reverse rotor disengagement threshold (deviation)
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`corresponds to 50 mm in the Accused Large Milling Products and 24 mm (left) or
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`28 mm (right) in the Accused Small Milling Machines. See CAT0068812 (July
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`2015 PM600 Machine Software Requirements) at 9171; CAT_00057265 (LPM
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`Rotor On Off Control 3.1) at 57273; CAT0004149 (2016 PM620 & PM622
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`Technical Presentation) at 4360, 4395, 4397; CAT0007161 (2016 PM620 &
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`PM622 Systems Operation Testing and Adjusting) at 7174-75, 7191-93; CAT-
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`770_011453 (PM300 Parts Manual) at 2002-03; CAT_00057877 (Small Cold
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`Planer – Rotor On Off Control Software Documentation) at 7878.
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`47. For the reasons explained above, it is my opinion that the Accused
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`Products practice claim element 11[f]/11.5.
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`C. The Accused Products Infringe Claim Step 15.1
`48.
`It is my opinion that the Accused Products practice claim 15. Dr.
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`Klopp’s Rebuttal Report separates claim 15 into two “steps.” Claim step 15.1 “is
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`characterized in that the milling drum is raised by a pre-determined amount that is
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`larger than a minimum distance between the milling drum (12) and the ground
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`surface (2).” See Klopp Rebuttal Rep. ¶ 193. Because claim 15 is not an accused
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`claim, but accused claims 17 and 18 depend from claim 15, I addressed claim 15 as
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`part of my analysis regarding claims 17 and 18 in my initial infringement report.
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`See Meyer Initial Expert Rep. ¶¶ 116-17, 121-22, 158-59, 163-64.
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`49. As stated in my initial report, the Accused Machines “perform a
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`method where the milling drum is moved into a raised position when it is not in
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`milling mode. At least the ‘PRE-SCRATCH,’ ‘PRE-SERVICE,’ AND ‘SERVICE
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`HEIGHT’ positions would constitute a raised position[.]” See Meyer Initial Rep.,
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`Ex. D at 20 (citing CAT0007161 at 7188, 7202; CAT0004149 at 4359, 4389; see
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`also CAT-770_014810, Systems Operation Testing and Adjusting, PM620,
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`PM622, PM820, PM822, PM825 Cold Planer Machine Systems, Publication No.
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`M0125695-01 (May 2021) at 4844).
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`50. For claim step 15.1, Dr. Klopp presents a new argument—that step
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`15.1 requires “net values.” See Klopp Rebuttal Rep. ¶ 194.
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`51. As the ’641 patent specification explains, “[a] preferred embodiment
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`of the invention provides that the milling drum is raised by a pre-determined
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`amount that is larger than a minimum distance to be maintained between the
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`milling drum and the ground surface[.]” ’641 patent, 3:7-10. The patent
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`specification does not require that “a pre-determined amount” be a “net value” as
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`Dr. Klopp argues.
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`52. And Dr. Klopp’s invalidity report confirms this understanding of how
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`the claim should be interpreted—Dr. Klopp’s invalidity report did not explain how
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`the prior art taught “net values” for claim step 15.1’s “pre-determined amount.”
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`See Klopp Opening Rep. ¶ 442. Instead, Dr. Klopp argued that a person of ordinary
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`skill “would understand that the step is inherently disclosed through any standard
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`operation of the machine in accordance with its intended purposes.” Klopp
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`Opening Rep. ¶ 442.
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`53. For the reasons explained above, it is my opinion that the Accused
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`Products practice claim step 15.1.
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`D. The Accused Products Infringe Claim Step 15.2
`54.
`It is my opinion that the Accused Products practice claim step 15.2: “a
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`sensing device measuring towards the ground surface (2) takes a lower limit
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`position which corresponds to a pre-determined distance or to a minimum distance
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`to be maintained[.]” See Klopp Rebuttal Rep. ¶ 198.
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`55. As the ’641 patent specification explains, “a preferred embodiment of
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`the invention provides that the milling drum is raised by a pre-determined amount
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`that is larger than a minimum distance to be maintained between the milling drum
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`and the ground surface and that a sensing device measuring towards the ground
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`surface shows a lower limit position which corresponds to a pre-determined stance
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`or to a minimum distance to be maintained between the milling drum and the
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`ground surface. With such a sensing device, the monitoring device has to merely
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`establish as to whether the sensing device leaves a limit lower position, because in
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`this case a pre-determined distance or a minimum distance to be maintained by the
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`milling drum is no longer adhered to.” ’641 patent 3:7-19 (emphasis added).
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`56.
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`In the Accused Products, the rotor is disengaged while travelling in
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`reverse if the side plates and the moldboard—the sensing devices—exceed the
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`rotor disengagement threshold—or in other words, the sensing device leaves a
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`lower limit position. Thus, the rotation of the rotor while travelling in reverse is
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`controlled by this rotor disengagement threshold. Contra Klopp Rebuttal Rep.
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`¶¶ 197-200.
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`57. Dr. Klopp argues that I have not identified a pre-determined distance
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`or a minimum distance as required by step 15.2. See Klopp Rebuttal Rep. at
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`¶¶ 199-200. As identified throughout my report, the “side plates and moldboard
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`serve as sensing devices[.]” See, e.g., Meyer Initial Rep. ¶¶ 112, 119, 123, 154,
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`161. Contra Klopp Rebuttal Rep. at ¶ 197.
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`21
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`Case 1:17-cv-00770-JDW Document 229-27 Filed 10/05/23 Page 18 of 20 PageID #: 23797
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`58. Although I disagree that the ’641 patent requires a “net value,” as
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`discussed with respect to claim element 11[e]/11.4, I have provided the values for
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`the rotor disengagement threshold as defined in Caterpillar’s documentation.
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`59. For example, the rotor will disengage when the reverse rotor
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`disengagement threshold for the moldboard corresponds to 50 mm in the Accused
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`Large Milling Machines and 40 mm in the Accused Small Milling Machines. See
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`CAT0068812 (July 2015 PM600 Machine Software Requirements) at 9164;
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`CAT_00057252 (Tier 4f Cold Planer – Moldboard Position) at 7256; CAT-
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`770_043792 (Oct. 2021 PM3XX Technical Presentation) at 4030, 4032;
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`CAT_00057877 (Small Cold Planer – Rotor On Off Control Software
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`Documentation) at 7879. And the rotor will disengage when the reverse rotor
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`disengagement threshold for the side plate corresponds to 50 mm in the Accused
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`Large Milling Products and 24 mm (left) or 28 mm (right) in the Accused Small
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`Milling Machines. See CAT0068812 (July 2015 PM600 Machine Software
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`Requirements) at 9171; CAT_00057265 (LPM Rotor On Off Control 3.1) at
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`57273; CAT0004149 (2016 PM620 & PM622 Technical Presentation) at 4360,
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`4395, 4397; CAT0007161 (2016 PM620 & PM622 Systems Operation Testing and
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`Adjusting) at 7174-75, 7191-93; CAT-770_011453 (PM300 Parts Manual) at
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`2002-03; CAT_00057877 (Small Cold Planer – Rotor On Off Control Software
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`Documentation) at 7878.
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`22
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`Case 1:17-cv-00770-JDW Document 229-27 Filed 10/05/23 Page 19 of 20 PageID #: 23798
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`60. For the reasons explained above, it is my opinion that the Accused
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`Products practice claim step 15.2.
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`XI. Conclusion
`61. 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 Caterpillar,
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`including any expert opinions offered by Caterpillar, or any additional inspections
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`performed on Wirtgen or Caterpillar machines. Additionally, I understand that
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`Wirtgen America and/or Caterpillar may use demonstratives at some point later
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`during this investigation. To the extent that such demonstratives are used, I again
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`reserve the right to amend, modify, or supplement this report.
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`Executed on the 7th of July in 2023.
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`___________________________
`John Meyer, Ph.D.
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`24
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