`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`Plaintiff,
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`
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`v.
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`
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`Defendant.
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`
`
`
`C.A. No. 17-770-JDW
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`JURY TRIAL DEMANDED
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`
`
`)))))))))
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`
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`WIRTGEN AMERICA, INC.,
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`
`
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`CATERPILLAR INC.,
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`
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`CATERPILLAR INC.’S NOTICE OF SUBSEQUENT AUTHORITY
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`Pursuant to District of Delaware Local Rule 7.1.2(b), Defendant Caterpillar Inc.
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`(“Caterpillar”) respectfully submits Prolitec Inc. v. ScentAir Techs., LLC, No. 20-984-WCB,
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`2023 WL 8697973 (D. Del. Dec. 13, 2023) (attached hereto as Exhibit A), as subsequent
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`authority in further support of Caterpillar’s Opposition (D.I. 239) to Wirtgen America, Inc.’s
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`pending Combined Motion for Partial Summary Judgment and Motion to Exclude Expert
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`Testimony (D.I. 217, 218). In Prolitec, the plaintiff moved for summary judgment that the
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`defendant was estopped from asserting certain device prior art as allegedly cumulative of a
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`patent that the defendant could have raised in its earlier IPR challenge. See 2023 WL 8697973 at
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`*21. Judge William C. Bryson, sitting by designation in this District, denied the plaintiff’s
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`motion because “IPR estoppel does not apply to device art, even when that device art is
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`cumulative of patents and printed publications that were or could have been asserted in a prior
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`IPR.” See id. at *21-23. For this same reason, Caterpillar should not be estopped from relying
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`on the PM-465, PM-565, and RX-500 machines as prior art references. See D.I. 239 at 28-29.
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`
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`Case 1:17-cv-00770-JDW Document 270 Filed 12/26/23 Page 2 of 2 PageID #: 29439
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`
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`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Bindu A. Palapura
`Bindu A. Palapura (#5370)
`Andrew L. Brown (#6766)
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`bpalapura@potteranderson.com
`abrown@potteranderson.com
`
`
`Attorneys for Defendant Caterpillar Inc.
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`
`OF COUNSEL:
`
`James C. Yoon
`Christopher D. Mays
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`Telephone: (650) 493-9300
`
`Ryan R. Smith
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104
`Telephone: (206) 883-2500
`
`Lucy Yen
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`1301 Avenue of the Americas, 40th Floor
`New York, NY 10019
`Telephone: (212) 999-5800
`
`Dated: December 26, 2023
`11230641 /11898.00005
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`
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`2
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