Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 1 of 21 PageID #: 25187
`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 1 of 21 PagelD #: 25187
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`EXHIBIT 11
`EXHIBIT 11
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 1 of 21 PagelD #: 25187
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`EXHIBIT 11
`EXHIBIT 11
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 2 of 21 PageID #: 25188
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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` IN THE UNITED STATES DISTRICT COURT
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` FOR THE DISTRICT OF DELAWARE
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`Page 1
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`---------------------------------x
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`WIRTGEN AMERICA, INC., :
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` Plaintiff/Counterclaim-Deft. :
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` V. : C.A. No.
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`CATERPILLAR, INC., : 17-770-JDW-MPT
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` Defendant/Counterclaim-Plf. :
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`---------------------------------x
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` VIDEOTAPED DEPOSITION OF DR. JOHN LUMKES
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` Friday, August 11, 2023
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` 9:10 a.m. Eastern Daylight Time
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`REPORTER: Sherry L. Brooks,
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` Certified LiveNote Reporter
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`______________________________________________________
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` DIGITAL EVIDENCE GROUP
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` 1730 M Street, NW, Suite 812
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` Washington, D.C. 20036
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` (202) 232-0646
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`www.DigitalEvidenceGroup.com Digital Evidence Group C'rt 2023
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`202-232-0646
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`
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 3 of 21 PageID #: 25189
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`Page 6
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` P R O C E E D I N G S
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` - - -
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` THE VIDEOGRAPHER: This is video Number 1
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`of the video recorded deposition of Dr. John Lumkes
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`in the matter of Wirtgen America, Inc. versus
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`Caterpillar, Inc. in the United States District Court
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`for the District of Delaware, Case No. 117-CV-007700.
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` This deposition is being held at Sterne
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`Kessler Goldstein & Fox, 1101 K Street, Northwest,
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`Washington, DC on August 11th, 2023. The time on the
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`video screen is 9:10 a.m. Eastern Time.
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` My name is DeShawn White. I am the legal
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`videographer from Digital Evidence Group. The court
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`reporter is Sherry Brooks in association with Digital
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`Evidence Group.
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` Will counsel please introduce themselves
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`for the record, followed by the court reporter
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`administering the oath.
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` MR. SMITH: Ryan Smith of the law firm
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`Wilson Sonsini on behalf of the defendant
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`Caterpillar, Inc.
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` MR. CONKLIN: Kyle Conklin of Sterne
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 4 of 21 PageID #: 25190
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`Kessler on behalf of Wirtgen America. I'm joined by
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`Page 7
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`my colleague Danny Yonan.
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` * * * * *
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` DR. JOHN H. LUMKES
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`was called for examination by counsel and, after
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`having been duly sworn by the notary, was examined
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`and testified as follows:
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` (Exhibit Number 234 was marked for
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`identification and was attached to the deposition.)
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` EXAMINATION BY COUNSEL FOR DEFENDANT/
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` COUNTERCLAIM-PLAINTIFF
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` BY MR. SMITH:
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` Q. Good morning, Dr. Lumkes. Could you
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`please state your full name and home address for the
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`record?
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` A. John Lumkes, 2343 Staggerwing Lane,
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`Lafayette, Indiana 47909.
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` Q. And, Dr. Lumkes, how many times have you
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`been deposed?
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` A. I don't recall the exact number. Three or
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`four.
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` Q. Do you remember the matters that you were
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 5 of 21 PageID #: 25191
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`Page 73
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` A. I'd have to think more about that. I was
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`asked to evaluate the ones with tracks and/or wheels
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`and not whether or not there's other ways to do it.
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` Q. What are the advantages of using tracks
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`over wheels in general?
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` A. In the context of road milling machines?
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`In the context of what?
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` Q. Well, let's just start generally with
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`off-road machines. Generally, what's the advantage
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`of tracks versus wheels?
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` A. Again, what are you talking, on surfaces?
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`I mean, there's a lot of variables. I mean, tracks
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`can be used better in some places and not in others
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`and vice versa.
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` Q. Okay. So what places are tracks used
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`better?
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` A. Are you, again, limiting it to road
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`milling or just in general?
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` Q. I said off-road machines. So for off-road
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`or say -- strike that.
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` Off-highway machines in the general level,
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`what's the advantages of having tracks versus wheels?
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 6 of 21 PageID #: 25192
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`Page 74
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` A. So one of the advantages would be less
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`soil compaction.
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` Q. Can you think of any other major
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`advantages?
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` MR. CONKLIN: Objection. Form.
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` A. There's just so many variables. It
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`depends on surface conditions and whether or not you
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`get more or less traction. Typically, you would get
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`less deflection if the wheel has a tire, so there's a
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`lot of variables.
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` BY MR. SMITH:
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` Q. What do you mean by deflection?
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` A. Well, if a wheel has a rubber tire on it,
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`then that potentially would have deflection.
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` Q. You mean, the rubber would compress or
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`move?
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` A. Correct.
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` Q. What's -- for off-highway vehicles, what's
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`the advantage of having wheels with tires as opposed
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`to tracks?
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` A. Again, it depends on the context. But
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`depending on the surface, less rolling resistance,
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 7 of 21 PageID #: 25193
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`Page 75
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`less cost, less weight.
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` Q. Now, for purposes of road milling
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`machines, is it correct that as a general matter
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`today they are sold with tracks?
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` MR. CONKLIN: Objection. Form.
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` A. As a general matter, meaning that you can
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`only get it one way or the other? What do you mean
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`by "general matter"?
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` BY MR. SMITH:
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` Q. Well, are you aware of any road milling
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`machines that are currently sold that have wheels
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`with tires?
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` A. If -- I believe -- if the road recycling
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`machine was used on a road, that would be one example
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`of recycling.
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` Q. Will you consider that road recycling
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`machine to be a --
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` A. I'm sorry -- rotary mixer.
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` Q. Okay. So is your understanding that
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`rotary mixers typically use wheels with tires?
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` A. I don't know if I'd say typically. I
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`mean, I think they're examples. Yeah, I would -- I
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 8 of 21 PageID #: 25194
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`think most of the examples I looked at would have
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`Page 76
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`that.
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` Q. Do you know why it is that the rotary
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`mixers use wheels with tires, whereas the road
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`milling machines use tracks?
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` MR. CONKLIN: Objection. Form.
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` A. Well, again, it depends on -- are you
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`talking -- what size of the machine? road milling? an
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`unprepared surface? on a soft bed? on a pavement?
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`What -- what's the context for your question?
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` BY MR. SMITH:
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` Q. Well, are you aware of -- well, let me ask
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`you this: Are you aware of road milling machines
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`that have conveyor belts that use wheels with tires?
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` A. I did not inspect any of those as part of
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`this case, no.
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` Q. All the road milling machines having
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`conveyor belts that you inspected had tracks, right?
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` A. Correct.
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` Q. And do you have any understanding as to
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`why the road milling machines that you've looked at
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`utilized tracks as opposed to wheels with tires?
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 9 of 21 PageID #: 25195
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`Page 77
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` A. So depending on the conditions there would
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`be advantages to soil compaction to soft -- settling
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`into soft soil, going over bumps, less deflection.
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` Q. And are you aware of some off-highway
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`vehicles where the customer has an option of either
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`having wheels with tires or tracks?
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` A. Yeah. I think there's examples of that.
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` Q. Are you aware that some road milling
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`machines have a roller that's approximately in the
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`middle of the machine, whereas some other road
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`milling machines have a rotor that's approximately in
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`the back?
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` A. Correct.
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` Q. And do you know why -- strike that.
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` What's the advantage of putting the rotor
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`in approximately the middle of the machine?
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` MR. CONKLIN: Objection. Form.
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` A. In the context of the patent, that's laid
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`out. They describe some of that in raising and
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`lowering legs. It minimizes displacement of the
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`milling -- disturbances on the milling depth.
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 10 of 21 PageID #: 25196
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`Page 117
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`wheels for -- as also including Caterpillars.
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` Q. Right. We'll talk about the wheel
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`embodiment, but it applies just as equally to the
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`Caterpillar embodiment, right?
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` A. I think what you're saying -- that when
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`referring to wheel it also would mean referring to a
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`Caterpillar as well.
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` Q. Is it your position that every Caterpillar
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`would necessarily include a wheel?
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` A. I think it would be a -- that a person of
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`ordinary skill in the art would see that there would
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`be a wheel that meets the definition of a wheel
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`within a Caterpillar, yes.
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` Q. Is any circular object a wheel?
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` A. I think if you look at like Webster's
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`definition, it would be -- I forget the -- I'd have
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`to look it up -- a solid object, round with an axle.
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`Solid or spoked I think it says.
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` Q. In your view, a wheel doesn't have to have
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`a tire?
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` A. No. I think there's examples of where
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`wheels would not have tires.
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 11 of 21 PageID #: 25197
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`wheel, right front wheel, left rear wheel, and right
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`Page 130
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`rear wheel?
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` A. Again, in the context of the patent
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`describing it as either being a wheel or Caterpillar
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`and not distinguishing between the use, and
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`recognizing that they describe two different
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`implementations of a wheel or Caterpillar with a
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`wheel, that I would -- so the language is more clear
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`the way it's written than without that.
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` Q. My question had nothing to do with whether
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`or not it's more clear or less clear. So I thought
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`you had been able to follow my assumption, which was
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`to take the first part of claim 1 and omit the term
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`-- strike that -- to take the first part of claim 1
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`and omit the instances of the term "Caterpillar."
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` Did you follow that part of it?
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` A. Correct, in the claim language.
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` Q. Okay. And so in that -- and under that
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`assumption that the term "Caterpillar" has been
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`omitted from the claim language.
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` Now, my question is whether having a
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`Caterpillar would meet the claim requirement of a
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 12 of 21 PageID #: 25198
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`Page 131
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`wheel?
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` MR. CONKLIN: Objection. Form.
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` A. Again, I understand what you're asking.
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`The patent description says wheel or Caterpillar
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`where it is using wheel and still meaning
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`Caterpillar. So if you remove that in there, it
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`would still include the use of Caterpillar.
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` BY MR. SMITH:
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` Q. Right. So if you omit the term
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`"Caterpillar" from claim 1, having a Caterpillar,
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`nonetheless, still reads on the term "wheel"?
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` A. What are the assumptions on the
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`Caterpillar again? The problem is there's other
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`assumptions on Caterpillars with or without wheels,
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`without one or two -- I mean, there's different --
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`there's unknowns yet that I need to look at if I'm
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`understanding your question right.
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` Q. So is it your testimony that you, sitting
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`here today, don't have an opinion about whether the
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`term "Caterpillar" -- strike that.
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` Sitting here today, you don't have an
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`opinion as to whether a Caterpillar would necessarily
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 13 of 21 PageID #: 25199
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`"Caterpillar conducted customer surveys that showed
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`the popularity of Wirtgen's milling machine
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`Page 185
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`features."
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` Do you see that?
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` A. Correct.
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` Q. Am I correct that in these expert reports
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`you did not conduct an element-by-element analysis to
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`show that any particular Wirtgen milling machine was
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`practicing any of the asserted claims?
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` A. Are you -- could you repeat that?
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` Q. In the context of these expert reports,
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`your opening report, your rebuttal report, and your
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`reply report, you didn't conduct an
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`element-by-element analysis to show that any
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`particular Wirtgen milling machine was practicing any
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`of the asserted claims?
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` A. If I understand your question, I think --
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`believe that was done in the part of the ITC case.
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` Q. And my question was just about these
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`expert reports. So just within the four corners of
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`the three expert reports that you've submitted in
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`this case, you didn't conduct an element-by-element
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 14 of 21 PageID #: 25200
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`Page 186
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`analysis to show any particular Wirtgen milling
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`machine was practicing any asserted claim?
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` A. I'd have to go through the reference
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`documents to verify that. I don't recall redoing it
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`or doing it. I'd have to look. There's so many
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`documents on there, but I don't -- it's not
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`explicitly that I can recall in the report.
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` Q. Okay. Why don't we go to paragraph 44 of
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`your rebuttal report, which is Exhibit 235.
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` A. Okay.
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` Q. And in the first sentence of paragraph 44,
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`you wrote: "The Caterpillar PM465 cold planer ('the
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`465' (sic)) is a conventional road milling machine."
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` Do you see that?
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` A. Yes.
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` Q. And you don't dispute that the PM465 was
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`manufactured and sold at least one year prior to the
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`filing dates for the asserted patents?
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` A. Correct. I don't believe that that's
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`disputed in my -- by the courts.
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` Q. And I think on paragraph -- well, let me
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`ask you this: Would you agree that the PM465 had a
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 15 of 21 PageID #: 25201
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
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`Dr. John Lumkes
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`Page 253
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`the operator.
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` A. But it's going to try to maintain -- if it
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`maintains grade, it's going to be shifting and then
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`you'll no longer be parallel to surface again.
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` Q. But by continuing to adjust the rear legs
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`you could get it to be parallel, right?
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` A. When you say "continuing to adjust the
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`rear leg," you're manually trying to figure out where
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`the position is that is --
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` Q. Yeah. You can get relatively parallel to
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`ground through manual adjustment to the rear legs,
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`right?
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` MR. CONKLIN: Objection. Form.
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` A. So you're saying if the operator turned on
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`grade control in the front, adjusted it to maintain
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`grade, and then you play around with the back
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`settings until you found out where it was
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`approximately parallel to surface that you could find
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`a parallel spot doing that method?
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` BY MR. SMITH:
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` Q. Yeah. Is that possible?
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` A. While you're milling?
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`www.DigitalEvidenceGroup.com Digital Evidence Group C'rt 2023
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`202-232-0646
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`
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 16 of 21 PageID #: 25202
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`8/11/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`
`Dr. John Lumkes
`
` Q. Say before you mill. You haven't started
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`Page 254
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`yet.
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` A. It would be difficult to -- with -- with
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`indicators and time and trying to hit the button at
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`the right time and raise and lower the legs. You
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`might be able to get close to where it was parallel
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`for that point in time, but then any milling or
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`change it would be difficult to get to in the first
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`place.
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` Q. So you could -- you could perhaps
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`initially establish a milling -- strike that.
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` You could perhaps establish a parallel
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`orientation of the machine relative to ground, but
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`you're saying it would be difficult to maintain the
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`parallel orientation once the milling process starts?
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` A. Using the back --
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` (Whereupon, Madam Reporter asked for
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`clarification from the witness.)
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` A. Using the manual on the back legs and
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`grade control on the front legs, it would be
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`difficult to get parallel to surface established in
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`the first place.
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`www.DigitalEvidenceGroup.com Digital Evidence Group C'rt 2023
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`202-232-0646
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`
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 17 of 21 PageID #: 25203
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`8/11/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`
`Dr. John Lumkes
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` A. If you know where it's at and you want to
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`point me to it, you're welcome to, and I'll look
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`Page 264
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`through it.
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` Q. Do you remember or is it the pitch hold
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`feature that's being accused of infringing the '972
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`patent or something else?
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` A. I'd like to double-check and see. It's
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`been a long day, a lot of documents, and I don't want
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`to create inaccuracies.
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` Q. Why don't we go to page 210 of your report
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`-- opening report. This might help. And you -- on
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`page 210 you have a quote from a -- it looks like an
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`internal Caterpillar document. And it talks about
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`hold pitch in the first bullet point. Then there's
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`creep to inclination and then it's -- creep to
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`parallel has been crossed out.
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` Do you see that? And then there's standby
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`mode.
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` Do you see that?
`
` A. I'm catching it here, yes.
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` Q. Okay. And the hold pitch mode is the one
`
`that Eric Engelmann was testifying about at his
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`202-232-0646
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`
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 18 of 21 PageID #: 25204
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`8/11/2023
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`Wirtgen America Inc. v. Caterpillar Inc.
`
`Dr. John Lumkes
`
`Page 265
`
`deposition?
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` A. I think that's where I refer --
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` Q. And with the hold pitch mode the operator
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`can select the longitudinal inclination of the
`
`machine to certain values within a range; is that
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`right?
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` MR. CONKLIN: Objection. Form.
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` BY MR. SMITH:
`
` Q. We're trying to figure out infringement
`
`for the '972 patent, and it sounds like we're not
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`accusing the hold pitch feature of infringement. But
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`I just want to confirm that.
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` A. I thought there was one other spot that I
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`referenced Engelmann. That's what I was looking for
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`and I'm not sure if I'm going to find it.
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` Q. Well, let me just try to shortcut this.
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`Sitting here today, do you know if the hold pitch
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`feature of the PM600 infringes or not?
`
` MR. CONKLIN: Objection. Form.
`
` A. I need more time to find my references in
`
`the report related to that and see.
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` BY MR. SMITH:
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`202-232-0646
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 19 of 21 PageID #: 25205
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`8/11/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`
`Dr. John Lumkes
`
` Q. Okay. Well, then creeped inclination in
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`Page 266
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`the second bullet point says: "Legs adjusted
`
`periodically at low velocity command until --
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` A. Where are you reading from?
`
` Q. This is on 210. This is the document you
`
`pasted into your report. It says: "Legs adjusted
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`periodically at low velocity command until average of
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`rear leg linear sensors reaches target."
`
` Do you see that?
`
` A. No. Where are you reading at?
`
` Q. 210 -- page 210.
`
` A. Okay.
`
` Q. There's a huge part of a document that you
`
`chose to paste into your report, and then the second
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`bullet point says "Creep" --
`
` A. Oh, the second bullet point.
`
` Q. -- "to inclination."
`
` Do you see that?
`
` A. Yeah.
`
` Q. And it says: "Legs adjusted periodically
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`at low velocities (sic) until average of rear leg
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`linear sensors reaches target."
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`202-232-0646
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 20 of 21 PageID #: 25206
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`8/11/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`
`Dr. John Lumkes
`
`Page 267
`
` Do you see that?
`
` A. Um-hum.
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` Q. Do you know if that target is ever at an
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`exactly parallel longitudinal inclination?
`
` MR. CONKLIN: Objection. Form.
`
` A. Based on just this excerpt from there, do
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`you have that reference with you that I can look at
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`the surrounding parts?
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` BY MR. SMITH:
`
` Q. Well, I mean, if the surrounding parts
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`were so important, I imagine you should have put them
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`in your report, right?
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` A. I don't know if I reference this in
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`earlier round (sic) two (sic).
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` Q. Okay. So sitting here today, you don't
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`know if creeped inclination infringes the '972
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`patent, right?
`
` MR. CONKLIN: Objection. Form.
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`Mischaracterizes.
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` A. I said I would need more time to go
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`through and answer that question.
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` BY MR. SMITH:
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`202-232-0646
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`Case 1:17-cv-00770-JDW Document 249-11 Filed 10/25/23 Page 21 of 21 PageID #: 25207
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`8/11/2023
`
`Wirtgen America Inc. v. Caterpillar Inc.
`
`Dr. John Lumkes
`
`Page 274
`
` CERTIFICATE OF NOTARY PUBLIC
`
` I, SHERRY L. BROOKS, the officer before
`
`whom the foregoing deposition was taken, do hereby
`
`certify that the witness whose testimony appears in
`
`the foregoing deposition was duly sworn by me; that
`
`the testimony of said witness was taken by me in
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`stenotype and thereafter reduced to typewriting under
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`my direction; that said deposition is a true record
`
`of the testimony given by said witness; that I am
`
`neither counsel for, related to, nor employed by and
`
`of the parties to the action in which this deposition
`
`was taken; and, further, that I am not a relative or
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`employee of any counsel or attorney employed by the
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`parties hereto, nor financially or otherwise
`
`interested in the outcome of this action.
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` SHERRY L. BROOKS
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`18
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` Notary Public in and for
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` District of Columbia
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`My commission expires: November 30, 2025
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`www.DigitalEvidenceGroup.com Digital Evidence Group C'rt 2023
`
`202-232-0646
`
`
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