Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 1 of 15 PageID #: 25253
`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 1 of 15 PagelD #: 25253
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`EXHIBIT 14
`EXHIBIT 14
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 2 of 15 PageID #: 25254
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`WIRTGEN AMERICA, INC.
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`Plaintiff/Counterclaim-Defendant,
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`v.
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`CATERPILLAR INC.
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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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`Defendant/Counterclaim-Plaintiff.
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`INITIAL EXPERT REPORT OF DR. JOHN MEYER
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 3 of 15 PageID #: 25255
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`Appendix E
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 4 of 15 PageID #: 25256
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`for the PM312 model milling machine (which is exemplary of the other Accused Small Milling Machines).
`the same across all models, the below claims chart details the infringement of the Accused Small Milling Machines by citing to documents
`functionalities. See D.I. 186, Apr. 12, 2023 Joint Stipulation at 2. Accordingly, to the extent components and functionalities are substantially
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`All models of the Accused Small Milling Machines include substantially the same components and provide substantially the same
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`after Wirtgen filed its complaint.
`this action, see, e.g., CAT_0028678 (June 2017 Patent Notice Email Chain). Caterpillar’s infringement of the ’641 Patent continued even
`Landscape), and has been on notice of its infringement of the ’641 Patent since at least June 16, 2017, by virtue of the Original Complaint in
`infringes the ’641 Patent. Caterpillar has had knowledge of the ’641 Patent since at least 2012, CAT_00053633 (Wirtgen Ten Year Patent
`infringing manner. Caterpillar’s end customers have used and continue to use the Accused Small Milling Machines in a manner that directly
`customers on how to use the Accused Small Milling Machines, including through its manuals, videos, training, and advertising, in an
`configured to infringe, and Caterpillar, directly and/or through its dealers and distributors, actively instructs, promotes, and encourages
`Milling Machines in a manner that infringes claims 11, 17, and 18 of the ’641 Patent. The Accused Small Milling Machines are specifically
`Caterpillar indirectly infringes by knowingly and intentionally inducing dealers and customers to use and operate the Accused Small
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`(Oct. 2021 PM3XX Technical Presentation) at 4030, 4033-35.
`manuals. See, e.g., CAT-770_021849 (Jun. 2020 PM3XX Systems Operation Testing and Adjusting Manual) at 1926; CAT-770_043792
`drum running, the customer is practicing the steps of the asserted claims, and is taught how to do so by Caterpillar’s training materials and
`can disengage. See Engelmann Dep. 146:9-147:17, Mar. 16, 2023. When a customer backs up, or drives in reverse and leaves the milling
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`Caterpillar’s customers directly infringe as the reverse rotor shutoff feature is “present at all times” and is not something a customer
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`to “[c]heck the reversing with rotor functionality”).
`forward direction but would shut off the rotor in reverse.”); CAT_00054680 (PM600 Software Testing) (describing 2014 performance tests
`CAT_00013338 (Mar. 2017 Meeting Notes) at 4 (“If the ECM is not seeing any of the moldboard sensors the machine would still mill in the
`Milling Machines. See, e.g., CAT_00003117 (Jan. 2017 Meeting Notes) at 2; see also CAT_00012831 (Oct. 2016 email) at 1;
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`Caterpillar directly infringes by making, using, offering to sell, selling, and importing into the United States the Accused Small
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`Patent and indirectly infringes claims 11, 17, and 18 of the ’641 Patent, both literally and under the doctrine of equivalents.
`7,530,641 (“the ’641 Patent”), owned by Wirtgen America, Inc. (“Wirtgen”). Caterpillar directly infringes claims 11, 17, and 18 of the ’641
`the 02B build—(collectively, “Accused Small Milling Machines”) operate so as to practice claims 11, 17, and 18 of U.S. Patent No.
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`The PM300 Series (including at least the PM310, PM312, and PM313)—including the 01A and 02A builds, and certain machines of
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`Caterpillar’s Small Milling Machines Infringe U.S. Patent No. 7,530,641 under 35 U.S.C. § 271(a) and (b)
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 5 of 15 PageID #: 25257
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`element 11[p]. Thus, it is my opinion that claim element 11[p] is also met under the doctrine of equivalents.
`substantially the same function, in substantially the same way, to achieve substantially the same result as claim
`Small Milling Machines include a substantially similar damage avoidance/safety feature that is intended to perform
`insubstantial. Indeed, to the extent that any such differences exist, it is nonetheless my opinion that the Accused
`in claim element 11[p], a person of ordinary skill in the art would have understood these differences to be
`To the extent that any differences may exist between the Accused Small Milling machines and the features disclosed
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`also WA-1717199, PM312 Inspection Video.)
`(CAT-770_044295, PM310, PM312, and PM313 Cold Planers, Publication No. QEHQ2423 (Jul. 2018) at 4315; see
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` side view of the CAT PM312 is depicted below.
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` A
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`during road construction.
`The Accused Small Milling Machines are cold planers, devices or construction machines for milling road surfaces
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`The Accused Small Milling Machines perform a method for working ground surfaces with a construction machine.
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`Exemplary Caterpillar Accused Products
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`construction machine (1)
`ground surfaces (2) with a
`11[p]. Method for working
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`U.S. Patent No. 7,530,641
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 6 of 15 PageID #: 25258
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`explain the technology and/or illustrate this feature.
`to show that the PM312 practices this feature. I also may rely upon demonstratives that I have not yet prepared to
`interrogatories, and responses to requests for admission, and/or inspection of the PM312 or a representative machine
` may also rely on additional expert testimony, other documents considered, witness testimony, responses to
`
` I
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`element 11[a]. Thus, it is my opinion that claim element 11[a] is also met under the doctrine of equivalents.
`substantially the same function, in substantially the same way, to achieve substantially the same result as claim
`Small Milling Machines include a substantially similar damage avoidance/safety feature that is intended to perform
`insubstantial. Indeed, to the extent that any such differences exist, it is nonetheless my opinion that the Accused
`in claim element 11[a], a person of ordinary skill in the art would have understood these differences to be
`To the extent that any differences may exist between the Accused Small Milling machines and the features disclosed
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`
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`(CAT-770_041058 at 1063-64.)
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`Exemplary Caterpillar Accused Products
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`U.S. Patent No. 7,530,641
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 7 of 15 PageID #: 25259
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`(CAT-770_043792 at 4123.)
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`surface, i.e., when not in milling mode.
`position by extending the lifting columns/leg posts to lift the frame and the milling drum away from milled ground
`Because the milling drum of the Accused Small Milling Machines is fixed to the frame, it is moved into a raised
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`when it is not in milling mode.
`The Accused Small Milling Machines perform a method where the milling drum is moved into a raised position
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`not in milling mode,
`raised position when it is
`drum (12) is moved into a
`11[c]. where the milling
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`explain the technology and/or illustrate this feature.
`to show that the PM312 practices this feature. I also may rely upon demonstratives that I have not yet prepared to
`interrogatories, and responses to requests for admission, and/or inspection of the PM312 or a representative machine
` may also rely on additional expert testimony, other documents considered, witness testimony, responses to
`
` I
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`element 11[b]. Thus, it is my opinion that claim element 11[b] is also met under the doctrine of equivalents.
`substantially the same function, in substantially the same way, to achieve substantially the same result as claim
`Small Milling Machines include a substantially similar damage avoidance/safety feature that is intended to perform
`insubstantial. Indeed, to the extent that any such differences exist, it is nonetheless my opinion that the Accused
`in claim element 11[b], a person of ordinary skill in the art would have understood these differences to be
`To the extent that any differences may exist between the Accused Small Milling machines and the features disclosed
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`02 (Oct. 2021) at 4120.)
`(CAT-770_043792, Technical Presentation, PM310, PM312, and PM313 Cold Planers, Publication No. QESV2314-
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`Exemplary Caterpillar Accused Products
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`U.S. Patent No. 7,530,641
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 8 of 15 PageID #: 25260
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`explain the technology and/or illustrate this feature.
`to show that the PM312 practices this feature. I also may rely upon demonstratives that I have not yet prepared to
`interrogatories, and responses to requests for admission, and/or inspection of the PM312 or a representative machine
` may also rely on additional expert testimony, other documents considered, witness testimony, responses to
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` I
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`element 11[c]. Thus, it is my opinion that claim element 11[c] is also met under the doctrine of equivalents.
`substantially the same function, in substantially the same way, to achieve substantially the same result as claim
`Small Milling Machines include a substantially similar damage avoidance/safety feature that is intended to perform
`insubstantial. Indeed, to the extent that any such differences exist, it is nonetheless my opinion that the Accused
`in claim element 11[c], a person of ordinary skill in the art would have understood these differences to be
`To the extent that any differences may exist between the Accused Small Milling machines and the features disclosed
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`raised position where the machine is not in milling mode. (See also CAT-770_021849 at 1854-55.)
`(CAT-770_043792 at 4030, 4033-35.) At least the “Pre-Service” and “SERVICE Mode” position would constitute a
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`Exemplary Caterpillar Accused Products
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`U.S. Patent No. 7,530,641
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`

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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 9 of 15 PageID #: 25261
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`obstacle) via one or more of the side plate positions and the scraper (“moldboard”) position. (CAT-770_021849 at
`The Accused Small Milling Machines monitor a distance between the milling drum and the ground surface (or an
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`seen in direction of travel.
`between the rotating, raised milling drum and the ground surface or an obstacle located in front of the milling when
`The Accused Small Milling Machines perform a method in that a distance is monitored, directly or indirectly,
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`explain the technology and/or illustrate this feature.
`to show that the PM312 practices this feature. I also may rely upon demonstratives that I have not yet prepared to
`interrogatories, and responses to requests for admission, and/or inspection of the PM312 or a representative machine
` may also rely on additional expert testimony, other documents considered, witness testimony, responses to
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` I
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`element 11[d]. Thus, it is my opinion that claim element 11[d] is also met under the doctrine of equivalents.
`substantially the same function, in substantially the same way, to achieve substantially the same result as claim
`Small Milling Machines include a substantially similar damage avoidance/safety feature that is intended to perform
`insubstantial. Indeed, to the extent that any such differences exist, it is nonetheless my opinion that the Accused
`in claim element 11[d], a person of ordinary skill in the art would have understood these differences to be
`To the extent that any differences may exist between the Accused Small Milling machines and the features disclosed
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`to remain on.”).)
`in a range that is lowered below the bottom of the rotor, and if those—those conditions are met, it will allow the rotor
`then the rotor must be protected by the side plates and the moldboard. So the side plates and the mold board must be
`on a few variables. The machine cannot be raised into the service position. If that happens, the rotor is forced off, and
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`the direction of travel;
`milling (12) when seen in
`located in front of the
`surface (2) or an obstacle
`drum (12) and the ground
`rotating, raised milling
`monitored between the
`11[e]. in that a distance is
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`Exemplary Caterpillar Accused Products
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`U.S. Patent No. 7,530,641
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 10 of 15 PageID #: 25262
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`U.S. Patent No. 7,530,641
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`Exemplary Caterpillar Accused Products
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 11 of 15 PageID #: 25263
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`“automatic rotor disengagement feature” causes the rotor to disengage from the drive engine.
`appropriate signals are generated by the sensors associated with the scraper blade and/or the side plates, the
`distance between the milling drum and the ground surface falls below a “predetermined distance” at which the
`300 and the 600 and 800 in how the moldboard height was sensed, but the logic was the same.”).) Thus, when the
`side plate or the moldboard were elevated above some threshold point. . . There was a subtle difference between the
`conditions, if the machine was propelling in the reverse direction, and then it was looking if the side plates, if either
`16, 2023 (“The conditions that would cause the rotor to disengage were if the rotor was on, that was one of the
`770_021849 at 1926; see also CAT_00005903 at p. 3; CAT0007161 at 7235; Engelmann Dep. 147:8-148:12, Mar.
`(3) “[t]he moldboard is raised above the scratch point or the side plates are raised above the scratch point.” (CAT-
`occurs when (1) the Accused Small Milling Machines are operating in reverse, (2) the rotor drive status is “on,” and
`ground surface, the Accused Small Milling Machines uncouple the raised milling drum from the drive engine. This
`See 11[e] above. Upon sensing the raising of the scraper (“moldboard”) or side plates by engagement with the
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`and the ground surface.
`signal is generated when detecting that the deviation falls below a pre-determined distance between the milling drum
`and/or the traveling devices are uncoupled from the drive engine and/or the machine frame is raised and/or an alarm
`The Accused Small Milling Machines perform a method in that the milling drum is uncoupled from the drive engine
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`ground surface (2).
`milling drum (12) and the
`distance between the
`below a pre-determined
`that the deviation falls
`generated when detecting
`and/or an alarm signal is
`machine frame (4) is raised
`engine (6) and/or the
`uncoupled from the drive
`traveling devices (8) are
`engine (6), and/or the
`uncoupled from the drive
`milling drum (12) is
`11[f]. and in that the
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`explain the technology and/or illustrate this feature.
`to show that the PM312 practices this feature. I also may rely upon demonstratives that I have not yet prepared to
`interrogatories, and responses to requests for admission, and/or inspection of the PM312 or a representative machine
` may also rely on additional expert testimony, other documents considered, witness testimony, responses to
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` I
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`element 11[e]. Thus, it is my opinion that claim element 11[e] is also met under the doctrine of equivalents.
`substantially the same function, in substantially the same way, to achieve substantially the same result as claim
`Small Milling Machines include a substantially similar damage avoidance/safety feature that is intended to perform
`
`Exemplary Caterpillar Accused Products
`
`U.S. Patent No. 7,530,641
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 12 of 15 PageID #: 25264
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`explain the technology and/or illustrate this feature.
`to show that the PM312 practices this feature. I also may rely upon demonstratives that I have not yet prepared to
`interrogatories, and responses to requests for admission, and/or inspection of the PM312 or a representative machine
` may also rely on additional expert testimony, other documents considered, witness testimony, responses to
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` I
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`element 11[f]. Thus, it is my opinion that claim element 11[f] is also met under the doctrine of equivalents.
`substantially the same function, in substantially the same way, to achieve substantially the same result as claim
`Small Milling Machines include a substantially similar damage avoidance/safety feature that is intended to perform
`insubstantial. Indeed, to the extent that any such differences exist, it is nonetheless my opinion that the Accused
`in claim element 11[f], a person of ordinary skill in the art would have understood these differences to be
`To the extent that any differences may exist between the Accused Small Milling machines and the features disclosed
`
`WA-1717621 (Inspection Videos).)
`1717206; WA-1717207; WA-1717120; WA-1717260; WA-1717148; WA-1717149; WA-1717150; WA-1717151;
`WA-1717168; WA-1717169; WA-1717234; WA-1717142; WA-1717106; WA-1717170; WA-1717199; WA-
`(See also WA-1717233; WA-1717238; WA-1717141; WA-1717146; WA-1717105; WA-1717110; WA-1717167;
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`software associated with rotor disengagement feature is similar among the PM300, PM600, and PM800 machines).)
`(CAT-770_043792 at 4133-134; see also O’Donnell Dep. 275:9-280:7, 337-TA-1067, Jan. 5, 2018 (confirming
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`Exemplary Caterpillar Accused Products
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`U.S. Patent No. 7,530,641
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 13 of 15 PageID #: 25265
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`element 15[b]. Thus, it is my opinion that claim element 15[b] is also met under the doctrine of equivalents.
`substantially the same function, in substantially the same way, to achieve substantially the same result as claim
`Small Milling Machines include a substantially similar damage avoidance/safety feature that is intended to perform
`insubstantial. Indeed, to the extent that any such differences exist, it is nonetheless my opinion that the Accused
`in claim element 15[b], a person of ordinary skill in the art would have understood these differences to be
`To the extent that any differences may exist between the Accused Small Milling machines and the features disclosed
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`determined distance between the raised milling drum and the ground surface. (CAT-770_043792 at 044029.)
`See 11[e] above. The operator may raise or lower the moldboard by pressing a button, thereby setting a pre-
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`maintained between the milling drum and the ground surface.
`surface takes a lower limit position which corresponds to a pre-determined distance or to a minimum distance to be
`The Accused Small Milling Machines perform a method in that a sensing device measuring towards the ground
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`ground surface (2).
`milling drum (12) and the
`be maintained between the
`to a minimum distance to
`pre-determined distance or
`which corresponds to a
`takes a lower limit position
`the ground surface (2)
`device measuring towards
`15[b]. in that a sensing
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`explain the technology and/or illustrate this feature.
`to show that the PM312 practices this feature. I also may rely upon demonstratives that I have not yet prepared to
`interrogatories, and responses to requests for admission, and/or inspection of the PM312 or a representative machine
` may also rely on additional expert testimony, other documents considered, witness testimony, responses to
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`element 15[a]. Thus, it is my opinion that claim element 15[a] is also met under the doctrine of equivalents.
`substantially the same function, in substantially the same way, to achieve substantially the same result as claim
`Small Milling Machines include a substantially similar damage avoidance/safety feature that is intended to perform
`insubstantial. Indeed, to the extent that any such differences exist, it is nonetheless my opinion that the Accused
`in claim element 15[a], a person of ordinary skill in the art would have understood these differences to be
`To the extent that any differences may exist between the Accused Small Milling machines and the features disclosed
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`drum and the ground surface.
`milling drum is raised by a pre-determined amount that is larger than the minimum distance between the milling
`The Accused Small Milling Machines perform a method in accordance with claim 11, characterized in that the
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`Exemplary Caterpillar Accused Products
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`See 11[e] above.
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`the ground surface (2), and
`the milling drum (12) and
`minimum distance between
`amount that is larger than a
`by a pre-determined
`milling drum (12) is raised
`characterized in that the
`accordance with claim 11,
`15[a]. Method in
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`U.S. Patent No. 7,530,641
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 14 of 15 PageID #: 25266
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`See 11[e] above.
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`device.
`plate arranged at the side next to the milling drum and/or a hood enclosing the milling drum is used as a sensing
`The Accused Small Milling Machines practice a method in accordance with claim 15 characterized in that a side
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`explain the technology and/or illustrate this feature.
`to show that the PM312 practices this feature. I also may rely upon demonstratives that I have not yet prepared to
`interrogatories, and responses to requests for admission, and/or inspection of the PM312 or a representative machine
` may also rely on additional expert testimony, other documents considered, witness testimony, responses to
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` I
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`that claim 17 is also met under the doctrine of equivalents.
`function, in substantially the same way, to achieve substantially the same result as claim 17. Thus, it is my opinion
`include a substantially similar damage avoidance/safety feature that is intended to perform substantially the same
`to the extent that any such differences exist, it is nonetheless my opinion that the Accused Small Milling Machines
`in claim 17, a person of ordinary skill in the art would have understood these differences to be insubstantial. Indeed,
`To the extent that any differences may exist between the Accused Small Milling machines and the features disclosed
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`See 11[e] above.
`blade that is arranged behind the milling drum when seen in the direction of travel is used as a sensing device.
`The Accused Small Milling Machines practice a method in accordance with claim 15, characterized in that a scraper
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`explain the technology and/or illustrate this feature.
`to show that the PM312 practices this feature. I also may rely upon demonstratives that I have not yet prepared to
`interrogatories, and responses to requests for admission, and/or inspection of the PM312 or a representative machine
`I may also rely on additional expert testimony, other documents considered, witness testimony, responses to
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`sensing device.
`drum (12) is used as a
`(18) enclosing the milling
`drum (12) and/or a hood
`side next to the milling
`plate (24) arranged at the
`characterized in that a side
`with claim 15,
`18. Method in accordance
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`device.
`travel is used as a sensing
`seen in the direction of
`milling drum (12) when
`arranged behind the
`scraper blade (22) that is
`characterized in that a
`with claim 15,
`17. Method in accordance
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`Exemplary Caterpillar Accused Products
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`U.S. Patent No. 7,530,641
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Case 1:17-cv-00770-JDW Document 249-14 Filed 10/25/23 Page 15 of 15 PageID #: 25267
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`U.S. Patent No. 7,530,641
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`Exemplary Caterpillar Accused Products
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`Side Plate
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`(See, e.g., CAT-770_043792 at 4012 (depicting a side plate arranged at the side next to the milling drum).)
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`To the extent that any differences may exist between the Accused Small Milling machines and the features disclosed
`in claim 18, a person of ordinary skill in the art would have understood these differences to be insubstantial. Indeed,
`to the extent that any such differences exist, it is nonetheless my opinion that the Accused Small Milling Machines
`include a substantially similar damage avoidance/safety feature that is intended to perform substantially the same
`function, in substantially the same way, to achieve substantially the same result as claim 18. Thus, it is my opinion
`that claim 18 is also met under the doctrine of equivalents.
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` I
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` may also rely on additional expert testimony, other documents considered, witness testimony, responses to
`interrogatories, and responses to requests for admission, and/or inspection of the PM312 or a representative machine
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