Case 1:17-cv-00770-JDW Document 348 Filed 03/08/24 Page 1 of 3 PageID #: 31308
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`WILMINGTON
`RODNEY SQUARE
`
`NEW YORK
`ROCKEFELLER CENTER
`
`CHARLOTTE
`CARILLON TOWER
`
`Adam W. Poff
`P 302.571.6642
`apoff@ycst.com
`
`March 8, 2024
`
`VIA CM/ECF
`
`The Honorable Joshua D. Wolson
`United States District Court
` for the Eastern District of Pennsylvania
`James A. Byrne United States Courthouse
`601 Market Street, Room 3809
`Philadelphia, PA 19106
`
`Re: Wirtgen America, Inc. v. Caterpillar, Inc. C.A. No. 17-770-JDW
`
`Dear Judge Wolson,
`
`Pursuant to the Court’s instructions, we write to provide Wirtgen’s proposal for post-trial
`briefing in this matter. The parties contemplate that there will be three sets of issues to be
`briefed: (1) Caterpillar’s equitable defenses on the ’268, ’530, and ’788 patents; (2) post-trial
`motions pursuant to Rules 50 and 59; (3) Wirtgen’s motion for post-verdict remedies, including
`enhanced damages, injunctive relief, attorneys’ fees, and prejudgment interest.
`
`The parties met-and-conferred and reached agreement on a number of issues, but there
`are two disputes over scheduling that remain. Those issues are: (1) the timing for the third set of
`briefs relating to Wirtgen’s motion for post-verdict remedies; and (2) whether Caterpillar is
`entitled to a surreply on the issue of post-verdict remedies. The parties’ respective proposals are
`set forth in the table below.
`
`With respect to the timing of Wirtgen’s motion seeking post-verdict remedies, there is no
`legitimate reason to delay that motion until after the Court considers Caterpillar’s post-trial
`motions. Here, the jury found in Wirtgen’s favor on five out of six patents. Wirtgen has the right
`to seek a permanent injunction, enhancement, attorneys’ fees, and prejudgment interest based on
`that verdict. Nothing in the Federal Rules, Local Rules, or practice in Delaware suggests that
`Wirtgen’s right to seek that relief should be indefinitely postponed until after post-trial motions
`for judgment as a matter of law are resolved by the Court. Courts in this jurisdiction regularly
`consider and resolve all post-verdict motions together, including motions for injunctive relief,.
`See, e.g. Purewick Corp. v. Sage Prod., LLC, 666 F. Supp. 3d 419 (D. Del. 2023) (Norieka, J.);
`Dasso Int'l, Inc. v. Moso N. Am., Inc., No. 17-CV-1574, 2023 WL 5349374 (D. Del. Aug. 21,
`
`Young Conaway Stargatt & Taylor, LLP
`Rodney Square | 1000 North King Street | Wilmington, DE 19801
`P 302.571.6600 F 302.571.1253 YoungConaway.com
`
`

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`Case 1:17-cv-00770-JDW Document 348 Filed 03/08/24 Page 2 of 3 PageID #: 31309
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`Young Conaway Stargatt & Taylor, LLP
`Judge Wolson
`March 8, 2024
`Page 2
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`2023) (Kennelly, J.); Power Integrations, Inc. v. Fairchild Semiconductor Corp., No. CV 12-
`540-LPS, 2019 WL 3290986 (D. Del. July 22, 2019) (Stark, J.); Riverbed Tech., Inc. v. Silver
`Peak Sys., Inc., No. CV 11-484-RGA, 2014 WL 4695765 (D. Del. Sept. 12, 2014) (Andrews, J.).
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`While Caterpillar may hope that this Court will set aside some portion of the jury’s
`verdict, that hope is not a basis to delay Wirtgen from seeking the full range of post-verdict
`remedies available to it under the law. To the extent Caterpillar has concerns regarding the
`number of issues to be briefed, the parties’ proposed staggered schedule and proposed page
`limits should adequately address these concerns.
`
`With respect to Caterpillar’s request for a surreply brief for any motion for post-verdict
`remedies, Caterpillar has not explained why a surreply is warranted in this case. In this
`jurisdiction, surreplies are not permitted without permission of the court. See Local Rule 7.1.2
`(providing for all motions the right to file a response and a reply but not other papers without
`court approval). As Caterpillar has not explained why a departure from the Local Rules is
`warranted, Wirtgen respectfully requests that Caterpillar’s request for a surreply be denied.
`
`
`
`
`
`Caterpillar files Opening Brief on estoppel issues (25
`pages)
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`Wirtgen files Responsive Brief on estoppel issues (25
`pages)
`
`Caterpillar files Reply Brief on estoppel claims /
`defenses (10 pages)
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`Wirtgen
`
`4/10/2024
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`Caterpillar
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`4/10/2024
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`5/10/2024
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`5/10/2024
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`5/31/2024
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`5/31/2024
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`Simultaneous Opening Rules 50/59 Briefs (30 pages)
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`4/24/2024
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`Simultaneous Responsive Rule 50/59 Briefs (30 pages)
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`5/24/2024
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`Simultaneous Reply Rule 50/59 Briefs (15 pages)
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`Wirtgen Opening Brief on Post-Verdict Remedies (30
`pages)
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`Caterpillar Responsive Brief on Post-Verdict Remedies
`(30 pages)
`
`6/14/2024
`
`4/24/2024
`
`5/24/2024
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`4/24/2024
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`5/24/2024
`
`6/14/2024
`
`30 days after
`JMOL Order
`
`30 days after
`Wirtgen
`Opening Brief
`
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`

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`Case 1:17-cv-00770-JDW Document 348 Filed 03/08/24 Page 3 of 3 PageID #: 31310
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`Young Conaway Stargatt & Taylor, LLP
`Judge Wolson
`March 8, 2024
`Page 3
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`
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`Wirtgen Reply Brief on Post-Verdict Remedies (15
`pages)
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`Wirtgen
`
`6/14/2024
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`Caterpillar Surreply Brief on Post-Verdict Remedies (15
`pages
`
`N/A
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`
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`Caterpillar
`
`14 days after
`Caterpillar
`Response
`
`7 days after
`Wirtgen Reply
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`We are available at the Court’s convenience should Your Honor have any questions.
`
`
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`Respectfully,
`
`/s/ Adam W. Poff
`
`Adam W. Poff (No. 3990)
`
`AWP:hs
`cc: All Counsel of Record (via email)
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