Case 1:17-cv-00770-JDW Document 240-2 Filed 10/19/23 Page 1 of 7 PageID #: 24354
`Case 1:17-cv-00770-JDW Document 240-2 Filed 10/19/23 Page 1 of 7 PagelD #: 24354
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`EXHIBIT 23
`EXHIBIT 23
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`Case 1:17-cv-00770-JDW Document 240-2 Filed 10/19/23 Page 2 of 7 PageID #: 24355
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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,
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`v. )
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`CATERPILLAR INC.,
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`Defendant.
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`________________________________
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`C.A. No. 17-770-JDW
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`REBUTTAL EXPERT REPORT OF JOSEPH RAKOW, Ph.D., P.E., F.A.S.M.E.
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`Case 1:17-cv-00770-JDW Document 240-2 Filed 10/19/23 Page 3 of 7 PageID #: 24356
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`[29] The road-building machine of claim 26, wherein the machine has a four
`sided stability pattern having a widest transverse dimension, transverse to the
`forward direction of the chassis, which widest transverse dimension falls within
`a footprint of the working roller or rotor.
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`2.
`Four sided stability pattern having a widest transverse
`dimension
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`67.
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`As discussed above, I understand that the patentee has the burden of proving infringement,
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`and that literal infringement is established only if each and every element of a claim is
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`shown to be present in the accused product or process. Dr. Lumkes has not shown that the
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`Large Milling Machines practice each and every element of Claim 29.
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`68.
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`Dr. Lumkes states that “adjacent pairs of tracks move as if they were on an imaginary
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`pivoting axle between the tracks” as a result of the positive coupling of the four hydraulic
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`leg cylinders.120 He has not provided a definition for an “imaginary pivoting axle.” The
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`term “imaginary pivoting axle” is not defined in the ’309 Patent.
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`69.
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`Dr. Lumkes states, “The pivot point of this imaginary axle will be at the midpoint of the
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`line passing through each adjacent pair of tracks.”121 He has not provided any references,
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`calculations, or analyses to support this claim regarding the “pivot point” of the undefined
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`“imaginary axle.” He does not identify the orientation in which the imaginary axle will
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`pivot or why the imaginary axle will pivot at the midpoint.
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`70.
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`Dr. Lumkes states, “The vertices of the diamond-shaped stability pattern are located at the
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`midpoints between adjacent pairs of lifting claim. Again, this is due to the pivot points of
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`the imaginary axles being located at the midpoint.”122
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`120 Lumkes Initial Expert Report, ¶146.
`121 Lumkes Initial Expert Report, ¶146.
`122 Lumkes Initial Expert Report, ¶147.
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`Case 1:17-cv-00770-JDW Document 240-2 Filed 10/19/23 Page 4 of 7 PageID #: 24357
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`71.
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`Dr. Lumkes references two images to support his statement. The first image referenced by
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`Dr. Lumkes is reproduced in Figure 19 (top), citing the file “CAT005043.jt.”123 Notably,
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`the blue diamond shape annotated in Figure 19 is not present in the original CAD file
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`(“CAT005043.jt”), but was apparently added by Dr. Lumkes. I show a screenshot of the
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`original CAD file in Figure 19 (bottom).
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`72.
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`First, as discussed above, Dr. Lumkes has not provided a definition for the “imaginary
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`axles.” The ’309 Patent does not define “imaginary axles.” Second, Dr. Lumkes has not
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`provided any references, calculations, or analyses to support (i) the alleged shape of the
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`stability pattern (“diamond-shaped”) and (ii) the placement of the alleged diamond-shaped
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`stability pattern as annotated in Figure 19.124,125 He has not provided an explanation for
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`why the pivot point of imaginary axles is relevant to the stability pattern of the machine.
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`123 CAT005043.jt corresponds to a three-dimensional computer aided design (“CAD”) representation of a PM600
`series machine.
`124 CAT005043.jt.
`125 Lumkes Initial Expert Report, ¶147.
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`Case 1:17-cv-00770-JDW Document 240-2 Filed 10/19/23 Page 5 of 7 PageID #: 24358
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`Figure 19. (Top) Annotated image reproduced from the Initial Report of Dr. Lumkes.
`(Bottom) Raw image generated from CAT005043.jt. The annotated and alleged
`stability diamond is not present in CAT005043.jt.
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`73.
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`The second image referenced by Dr. Lumkes is reproduced in Figure 20.126 Dr. Lumkes
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`states that this image shows the “diamond shape stability pattern of PM600 machine and
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`acknowledging enhanced machine capability.”127 The document that Dr. Lumkes
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`references128 and testimony do not provide support for this statement.
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`126 Lumkes Initial Expert Report, ¶147.
`127 Lumkes Initial Expert Report, ¶147.
`128 CAT_00055857, p. 10/13.
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`Case 1:17-cv-00770-JDW Document 240-2 Filed 10/19/23 Page 6 of 7 PageID #: 24359
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`using a tilt table.135 Testimony supports this understanding of the document from which
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`Dr. Lumkes extracted Figure 20.136
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`Figure 21. Additional context provided in the remainder of the document referenced
`by Dr. Lumkes regarding the alleged diamond-shaped stability pattern.
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`75.
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`Dr. Lumkes’ analysis lacks valid references and calculations regarding the nature, shape,
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`and placement of the stability pattern of the Accused Products. Accordingly, Dr. Lumkes
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`has not shown that the Large Milling Machines practice each and every element of Claim
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`29 for at least the reasons described above.
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`135 CAT_00055857, p. 8/13.
`136 Deposition of Jeffrey Hoyle, taken March 16, 2023, p. 167:15-19.
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`Case 1:17-cv-00770-JDW Document 240-2 Filed 10/19/23 Page 7 of 7 PageID #: 24360
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`VIII. Conclusion
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`90.
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`For at least the reasons stated above, it is my opinion that that the Accused Products do not
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`infringe on the Asserted Claims based on the evidence provided by Dr. Lumkes in his
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`Initial Expert Report.
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`I declare under the penalty of perjury that the foregoing is true and correct.
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`Executed on June 16, 2023 at Menlo Park, California
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`Joseph Rakow, Ph.D., P.E., F.A.S.M.E.
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