Case 1:17-cv-00770-JDW Document 307-7 Filed 02/02/24 Page 1 of 5 PageID #: 30533
`Case 1:17-cv-00770-JDW Document 307-7 Filed 02/02/24 Page 1 of 5 PagelD #: 30533
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`EXHIBIT 14
`EXHIBIT 14
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`Case 1:17-cv-00770-JDW Document 307-7 Filed 02/02/24 Page 1 of 5 PagelD #: 30533
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`EXHIBIT 14
`EXHIBIT 14
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`Case 1:17-cv-00770-JDW Document 307-7 Filed 02/02/24 Page 2 of 5 PageID #: 30534
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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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`C.A. No. C.A. No. 17-770-JDW
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`Plaintiff,
`v. )
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`CATERPILLAR INC.,
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`Defendant.
`________________________________
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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 307-7 Filed 02/02/24 Page 3 of 5 PageID #: 30535
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`columns 1313 will be displaced. Thus, the establishing of the parallel orientation
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`of the machine frame 4 relative to the ground or traffic surface 8 is not
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`controlled actively by the control means 23, but passively in that, in a currently
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`performed readjustment of the milling depth or in the process of newly setting
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`a desired value for the predetermined milling depth, it is decided whether the
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`quantity of oil flowing via the two 4/3-way valves 84,86 for this purpose is to be
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`guided into the front working cylinders 40,42 and thus into the front lifting columns
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`12, or into the rear working cylinders 44,46 and thus into the rear lifting columns
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`13.”191
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`Accordingly, Dr. Lumkes is incorrect to assert that “when the controller performs” means
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`“after the controller performs” within Claim 13 as the specification of the ’972 clearly
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`teaches that “when the controller performs a readjustment….” means “during the time that
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`the controller is performing a readjustment.” Dr. Lumkes provides no analysis to
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`demonstrate that the controllers of the Accused Products perform a parallel orientation
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`during a readjustment or setting operation, thus he has not demonstrated that the Accused
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`Products practice the limitations of Claim 13 as intended by the specification.
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`Dr. Lumkes’ unsupported interpretations of terms notwithstanding, even if one assumes
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`arguendo that Dr. Lumkes’ interpretation of “when the controller performs” as “after the
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`controller performs) is supported (it is not), he has still only shown that, for several
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`examples of operation, the Accused Products initiate a parallel orientation maneuver after
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`an adjustment of the milling depth not that the Accused Products are incapable of
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`191 ’972 Patent, 10:52-67.
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`2111403.002 - 1731
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`7777
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`Case 1:17-cv-00770-JDW Document 307-7 Filed 02/02/24 Page 4 of 5 PageID #: 30536
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`performing an adjustment of milling depth if and only if a milling adjustment has been
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`made.
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`For at least the above reasons, Dr. Lumkes has failed to demonstrate that the Accused
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`Products practice the limitations of Claim 13 of the ’972 Patent. Furthermore, as can be
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`seen above, e.g.,., in Figure 3030, the Accused Products perform the creep to scratch
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`maneuvers well after the adjustments of milling depth. To the extent that the creep to
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`scratch and creep to parallel maneuvers are found to be operations to establish a parallel
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`orientation of the frames of the Accused Products, the Accused Products do not perform
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`these maneuvers “only when the controller performs a readjustment of the milling depth or
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`a setting of a predefinable milling depth;” accordingly the Accused Products do not
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`practice the limitations of Claim 13 of the ’972 Patent.
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`Claim 15: The road milling machine of Claim 1, wherein: the controller is configured to
`control the parallel orientation of the machine independently of control of the milling depth
`of the milling roller.
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`Dr. Lumkes also opines that the Accused Products practice the limitations of Claim 15 of
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`the ’972 Patent with the following analysis (ellipses added):
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`“The controller can implement the parallel to surface features while the machine is
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`milling in automatic mode. Accordingly, such a parallel to surface feature is
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`implemented independent of milling depth. As shown in the various schematics
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`depicting operations involving “creep to scratch” maneuvers, milling depth is
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`maintained while creeping to scratch….….Thus, milling depth is maintained
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`independently of the “creep to scratch” maneueuver [sic] that controls the parallel
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`orientation of the machine frame.”192
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`192 Lumkes Opening Report, ¶367.
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`2111403.002 - 1731
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`7878
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`Case 1:17-cv-00770-JDW Document 307-7 Filed 02/02/24 Page 5 of 5 PageID #: 30537
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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.,
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`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 operatoror 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 doeses 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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`9090
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