`Case 1:17-cv-00770-JDW Document 250-93 Filed 10/25/23 Page 1 of 4 PagelD #: 29040
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`EXHIBIT 90
`EXHIBIT 90
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`Case 1:17-cv-00770-JDW Document 250-93 Filed 10/25/23 Page 2 of 4 PageID #: 29041
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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. C.A. No. 17-770-JDW
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`REBUTTAL EXPERT REPORT OF DR. ANDREW W. SMITH, P.E.
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`Case 1:17-cv-00770-JDW Document 250-93 Filed 10/25/23 Page 3 of 4 PageID #: 29042
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`Claim 13: The road milling machine of Claim 1, wherein: the controller is configured to
`establish the parallel orientation of the machine frame relative to the ground surface only
`when the controller performs a readjustment of the milling depth or a setting of a
`predefinable milling depth.
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` Regarding Claim 13 Dr. Lumkes opines (ellipses added):
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`“In my opinion, to the extent that the Accused Caterpillar Machines only establish
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`parallel to surface during the ‘creep to scratch’ and ‘creep to parallel’ maneuvers
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`and ‘creep to parallel’ maneuvers occur only after a milling adjustment.”189
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` this claim is met…….The ‘creep to scratch’
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` Examples of the obstacle jump and ramp-in maneuvers referred to by Dr. Lumkes are
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`shown in Figure 30. As can be seen, both of the creep to scratch maneuvers referred to by
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`Dr. Lumkes occur after the stabilization of the milling roller at its final milling depth
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`position. Accordingly, Dr. Lumkes takes the position that “when the controller performs a
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`readjustment of the milling depth” does not mean “when the controller is currently
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`performing a readjustment of the milling depth”, but rather that the limitations of Claim 13
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`can be satisfied if the parallel orientation maneuver occurs merely “in response to” or after
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`a readjustment of the milling depth (or setting) of the milling roller has been completed.
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` Dr. Lumkes provides no support for this interpretation; i.e., an appropriate analysis of the
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`claim limitation would proceed by analyzing the specification of the ’972 Patent to
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`demonstrate that “when the controller performs” can include “after the controller performs,
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`whereas Dr. Lumkes has not provided any of this analysis. Accordingly, his position that
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`“when the controller performs” means “after the controller performs” is unsupported.
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`189 Lumkes Opening Report, ¶363.
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`2111403.002 - 1731
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`75
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`Case 1:17-cv-00770-JDW Document 250-93 Filed 10/25/23 Page 4 of 4 PageID #: 29043
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`controller (by e.g., activating touch screen buttons via a separate screen) to change this
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`relative inclination.
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`In this case, a user could select a variety of relative inclinations to set the machine frame
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`to, as well as select an appropriate error band which (if the machine travelled outside of
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`this inclination error band) the user would be notified and queried for further instructions
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`(i.e., to manually establish the machine’s parallel orientation again or not). Such
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`information would be useful, e.g., as an alert to the operator that the ground inclination was
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`unexpectedly changing, for instance.
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`In his opening report, Dr. Lumkes opines that there were “Advantages of Parallel to
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`Surface” capabilities which, in his opinion were acknowledged by Caterpillar. However,
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`Dr. Lumkes does not opine that the automatic establishing of said parallel orientation itself
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`was the recognized feature; accordingly, to the extent that there was a perceived user
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`preference for parallel to surface orientation capabilities, Dr. Lumkes (nor, to my
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`knowledge, Wirtgen America) has not demonstrated that the preference could not have
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`been satisfied by achieving parallel orientation automatically, as opposed to manually. This
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`notwithstanding, I am not aware of any information provided by Wirtgen America in this
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`matter which demonstrates that any sales were tied directly to the automatic establishing
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`of parallel orientation as recited in the ’972 Patent.
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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 Chicago, IL.
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`Andrew W. Smith, Ph.D., P.E.
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`2111403.002 - 1731
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`90
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