Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 1 of 27 PageID #: 34271
`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 1 of 27 PagelD #: 34271
`
`EXHIBIT 32
`EXHIBIT 32
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`

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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 2 of 27 PageID #: 34272
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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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`
`)
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`Plaintiff,
`
`
`v. )
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`
`
`
`
`
`)
`CATERPILLAR INC.,
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`
`)
`
`
`
`
`
`
`)
`Defendant.
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`
`
`)
`________________________________
`)
`
`C.A. No. C.A. No. 17-770-JDW
`
`REBUTTAL EXPERT REPORT OF DR. ANDREW W. SMITH, P.E.
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`
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`

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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 3 of 27 PageID #: 34273
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`
`V.
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`Background on the Accused Products
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`
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`I understand that a Joint Stipulation Regarding Representative Accused Products was filed
`
`by Wirtgen and Caterpillar on April 12, 2023. I understand that this document identifies “a
`
`‘Representative Product’ for each specified Product Group.”12 Table 1 reproduces the table
`
`of representative Caterpillar products identified in the Joint Stipulation Regarding
`
`Representative Accused Products.
`
`
`Caterpillar’s Large Milling Machines
`
`
`
`
`Caterpillar’s Large Milling Machines include the Caterpillar PM600 and PM800 series
`
`cold planer machines, examples of which are shown in Figure 1. Both machine series
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`correspond to front-discharge cold planers that use a rotor to cut a controlled depth of
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`pavement. The characteristics of the cutting operation are described by the “grade” (i.e.,
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`depth of the cut) and the “slope” (i.e., side-to-side variation in the cut elevation). The cut
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`material (i.e., the reclaimed asphalt pavement) typically exits the front of the machine via
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`a conveyer. Front-discharge cold planers are able to cut a depth of pavement, i.e., mill road
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`material, while loading reclaimed material into a truck that is traveling in the same direction
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`as traffic.
`
`
`12 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 4 of 27 PageID #: 34274
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`
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`Figure 1. Caterpillar PM600 series machine (top)13,14 and Caterpillar PM800 series machine
`(bottom)15,16 as photographed during inspection.
`
`
`
`
`
`
`13 EXPONENT_0005717.
`14 Machine shown is specifically a PM622 02B build with product identification number CAT00PM6TTPH00300
`(EXPONENT_0005700).
`15 EXPONENT_0005700.
`16 Machine shown is specifically a PM822 02A build with product identification number CAT00PM8CEE200107
`(EXPONENT_0005701).
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 5 of 27 PageID #: 34275
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`I understand that the PM600 and PM800 series cold planer machines share “high
`
`commonality,”17 and that the differences between the machines, e.g., engine models,18 are
`
`not material to the Asserted Claims as reflected by their grouping in the Joint Stipulation
`
`Regarding Representative Accused Products agreed upon by both parties.19
`
`I understand that there are different versions of cold planer machines within the PM600
`
`and PM800 series. For example, the PM620 and PM622 are cold planer machines
`
`considered to be PM600 series machines. Similarly, the PM820, PM822, and PM825 are
`
`cold planer machines considered to be PM800 series machines. I understand that the
`
`differences between models within the PM600 and PM800 series, e.g., the cutting width,20
`
`are not material to the Asserted Claims as reflected by their grouping in the Joint
`
`Stipulation Regarding Representative Accused Products agreed upon by both parties.21
`
`
`
`I understand that there are different “builds” of cold planer machines within the PM600
`
`and PM800 series. For example, the PM620 01A build is a PM620 build within the PM600
`
`series, and the PM822 02B build is a PM822 build within the PM800 series. I understand
`
`that the differences between builds are material to the Asserted Claims as reflected by their
`
`separation in the Joint Stipulation Regarding Representative Accused Products agreed
`
`upon by both parties.22
`
`
`
`For the ’972 Patent I understand that the Joint Stipulation Regarding Representative
`
`Accused Products specifies the PM620 01A or PM622 01A build as originally
`
`manufactured as the representative product for the “PM620, PM622, PM820, PM822,
`
`
`17 Deposition of Mr. Eric Engelmann, taken March 17, 2023, p. 305:1-5.
`18 Deposition of Mr. James Aardema, taken March 22, 2023, p. 80:10-15.
`19 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
`20 CAT-770_041387.
`21 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
`22 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
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`2111403.002 - 1731
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 6 of 27 PageID #: 34276
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`PM825 machines before any redesigns were implemented in 02A build, 02B build, or by
`
`service letters.”23 I understand that the Joint Stipulation Regarding Representative Accused
`
`Products specifies the PM622 02B build as the representative product for “PM620, PM622,
`
`PM820, PM822, PM825 machines after redesigns were implemented in 02A build, 02B
`
`build, 02C build or by service letters.”24
`
`For the ’788 and ’474 Patents, I understand that the Joint Stipulation Regarding
`
`Representative Accused Products specifies the PM622 02B build as the representative
`
`product for the “PM620, PM622, PM820, PM822, PM825 machines, including all 01A,
`
`02A, 02B, and 02C builds.”25
`
`The following background section on the Accused Products focuses on the products
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`identified as the representative products in the Joint Stipulation Regarding Representative
`
`
`
`
`
`Accused Products.26
`
`
`
`
`
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`23 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
`24 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
`25 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
`26 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
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`2111403.002 - 1731
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 7 of 27 PageID #: 34277
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`Table 1. A table extracted from the April 12, 2023, Joint Stipulation Regarding Representative
`Accused Products illustrating the representative product for each product group.
`
`Product Group
`
`PM620, PM622, PM820, PM822, PM825
`machines before any redesigns were implemented in
`02A build, 02B build, or by service letters
`
`PM620, PM622, PM820, PM822, PM825
`machines after redesigns were implemented in 02A
`build, 02B build, 02C build or by service letters
`
`PM620, PM622, PM820, PM822, PM825
`machines, including all 01A, 02A, 02B, and 02C
`builds
`
`PM310, PM312, PM313 machines, including all
`01A, 02A, 02B, and 02C builds
`
`Representative Product
`For the ’972 Patent
`
`PM620 or PM622 01A build as
`originally manufactured
`
`PM622 02B build
`
`For the ’788 and ’474 Patents
`
`PM622 02B build
`
`PM312 02B build
`
`
`
`
`
`Inspections
`
`
`
`I inspected multiple Caterpillar Large Milling Machines. I inspected a PM622 02B build27
`
`and PM822 02B build28 on August 3-4, 2022. I have reviewed photographs and video taken
`
`during an inspection by Exponent staff of a PM622 02B build29 and PM822 02A build30
`
`on December 12-13, 2022.
`
`
`27 Product identification number CAT00PM6TTPH00300 (EXPONENT_0006496).
`28 Product identification number CAT00PM8EEE200311 (EXPONENT_0005718).
`29 Product identification number CAT00PM6PXS600330 (EXPONENT_0005719).
`30 Product identification number CAT00PM8CEE200107 (EXPONENT_0005720).
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 8 of 27 PageID #: 34278
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`Timeline
`
`
`
`I understand that the PM600 and PM800 series cold planers were preceded by prior
`
`Caterpillar cold planer machines, including PM465, PM565, and PM200 series machines.
`
`Testimony regarding the PM565 indicates that the machine first went on sale in the United
`
`States in 1992 as Caterpillar’s first front-material discharge machine.31 The PM465
`
`followed, being released in 1997.32 Both machines were sold throughout the 1990s and
`
`2000s.33 I understand that Caterpillar has produced several invoices showing sales of
`
`specific machines in the United States during the 1990s.34 Testimony indicates that
`
`Caterpillar acquired Italian cold planer manufacturer Bitelli in 2000 and updated a pre-
`
`existing Bitelli cold planer model into the PM200 series machine.35 I understand that the
`
`PM200 series cold planer machine was the preceding Caterpillar cold planer machine
`
`model prior to the release of the PM600 and PM800 series machines. Testimony indicates
`
`that Caterpillar’s “cold planer project” including “development of the PM600, 800, and
`
`300 machines” started in 2010.36
`
`
`
`For the ’972 Patent, the PM620 01A and PM622 01A builds were first shipped in May
`
`2016.37 The PM620 01A and PM622 01A builds are representative of the accused Large
`
`Milling Machines “before any redesigns were implemented in 02A build, 02B build, or by
`
`service letters.”38 The first shipment date of the 02A build occurred in June and July 2019
`
`for the PM600 and PM800 series, respectively. The PM622 02B build, representative of
`
`
`
`31 RX-0984C.0012.
`32 RX-0985C.0120.
`33 RX-0985C.0120; RX-0985C.0066.
`34 RX-0987C.0009.
`35 Deposition of Mr. Eric Engelmann, taken March 17, 2023, pp. 309:20 – 310:5.
`36 Deposition of Mr. Eric Engelmann, taken March 16, 2023, pp. 17:16 – 18:7.
`37 Defendant Caterpillar Inc.’s Objections and Responses to Wirtgen America, Inc.’s Third Set of Interrogatories,
`p. 4/6.
`38 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 9 of 27 PageID #: 34279
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`the accused Large Milling Machines “after redesigns were implemented,” was first shipped
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`in November 2020.39 Testimony regarding the Accused Products is generally consistent
`
`with the dates provided above.40,41,42
`
`
`
`For the ’788 and ’474 Patents, the PM622 02B build, representative of the accused Large
`
`Milling Machines, was first shipped in November 2020.43 The accused Large Milling
`
`Machines were first shipped as the 01A build in May 2016 and December 2017 for the
`
`PM600 and PM800 series machines, respectively.44 Testimony regarding the Accused
`
`Products is generally consistent with the dates provided above.45,46,47
`
`PM620 01A
`General milling function
`As described previously, the “PM620 and PM622 Cold Planers are classified as road-
`
`
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`milling machines, mobile road construction machines used to mill material from paved
`
`surfaces.”48 The milling of the paved surface is performed by a rotor equipped with milling
`
`tools, shown in Figure 2. The rotor is attached to the machine. On either side of the rotor
`
`are hydraulic side plates,49 which keep the milling material inside the rotor chamber.
`
`
`39 Defendant Caterpillar Inc.’s Objections and Responses to Wirtgen America, Inc.’s Third Set of Interrogatories,
`p. 4/6.
`40 Deposition of Mr. Jeffrey Hoyle, taken March 16, 2023, p. 70:2-6.
`41 Deposition of Mr. Eric Engelmann, taken March 17, 2023, p. 297:8-11.
`42 Deposition of Mr. Eric Engelmann, taken March 16, 2023, p. 29:15-19.
`43 Defendant Caterpillar Inc.’s Objections and Responses to Wirtgen America, Inc.’s Third Set of Interrogatories,
`p. 4/6.
`44 Defendant Caterpillar Inc.’s Objections and Responses to Wirtgen America, Inc.’s Third Set of Interrogatories,
`p. 4/6.
`45 Deposition of Mr. Jeffrey Hoyle, taken March 16, 2023, p. 70:2-6.
`46 Deposition of Mr. Eric Engelmann, taken March 17, 2023, p. 297:8-11.
`47 Deposition of Mr. Eric Engelmann, taken March 16, 2023, p. 29:15-19.
`48 CAT-770_004491.
`49 CAT_00037701, p. 5/24.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 10 of 27 PageID #: 34280
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`Figure 2. The rotor, milling tools, and side plates on the PM620 01A.50
`Engine
`The PM620 01A is powered by a Cat C18 ACERT engine, capable of producing 630 hp.51
`
`
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`The engine is “iso-mounted to reduce noise and vibration” using gearbox mountings that
`
`connect the engine and gearbox to the chassis of the machine.52
`
`Operator’s station
`The PM620 01A is equipped with an operator’s station with both left and right-side
`
`operator control consoles.53 The control consoles provide the operator with the ability to
`
`perform a variety of machine functions including driving/steering the machine, adjusting
`
`the height of the machine, and performing milling operations. The operator’s station is also
`
`equipped with either a single LCD display or dual LCD displays.54 The operator control
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`station is shown in Figure 3. Further, the machine is also equipped with a ground control
`
`console (multiple consoles are optionally available).55 The ground control console allows
`
`for the machine to be adjusted from the ground as well as the operator station.
`
`
`
`50 CAT-770_004674.
`51 CAT_00037701, p. 23/24.
`52 CAT_00037701, p. 6/24.
`53 CAT_00037701, p. 8/24.
`54 CAT-770_004546.
`55 CAT-770_041512.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 11 of 27 PageID #: 34281
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`Figure 3.
`
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`Image of the operator control station of the PM620 01A with the control consoles and
`LCD displays identified.
`Ground engaging elements
`The machine possesses four crawler tracks, i.e., caterpillars. These tracks support the
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`
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`machine as well as allow the machine to traverse the milling surface. The four crawler
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`tracks are connected to the machine by four steerable legs. These legs can be steered in
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`four different “steering modes: front steer, rear steer, crab steer, coordinated steer.”56
`
`These machine components are shown below in Figure 4.
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`56 CAT_00037701, p. 7/24.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 12 of 27 PageID #: 34282
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`Figure 4.
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`Image showing the legs and crawler tracks on the PM620 01A.57
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`
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`Elevation control elements
`The four steerable legs are capable of being extended or retracted to adjust machine
`
`
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`height.58 This allows the machine to lower the rotor down into the milling surface to
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`perform a milling operation. Elevation control is accomplished by hydraulic piston-
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`cylinder units located inside the machine legs. The hydraulic piston-cylinder units and their
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`relative positioning with respect to the machine frame are shown in Figure 5.
`
`57 CAT_00037701, p. 4/24.
`58 CAT_00037701, p. 7/24.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 13 of 27 PageID #: 34283
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`
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`Figure 5. PM620 01A hydraulic piston-cylinder units and their relative positioning with respect
`to the machine frame.59
`Leg sensors
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`
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`
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`The legs of the 01A build are equipped with position sensors located within the hydraulic
`
`cylinders used to extend and retract the legs, thereby adjusting machine height.60 Figure 6
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`shows a cross-section of one of the hydraulic piston cylinder units with the position sensor
`
`and corresponding magnet identified.
`
`59 CAT-770_005277.
`60 Deposition of Mr. Eric Engelmann, taken March 16, 2023, p. 28:3-7.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 14 of 27 PageID #: 34284
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`Figure 6. Example of one of the hydraulic cylinders used to adjust machine height (left). Cross-
`section of one of the hydraulic cylinders with the position sensor identified (right). 61,62
`
`
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`
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`Side plate sensors
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`
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`The relative position of the side plates of the PM620 01A with respect to the machine frame
`
`is established using hydraulic cylinders.63 The hydraulic cylinders are equipped with
`
`position sensors to measure the distance of the side plates relative to the machine frame.64
`
`The side plate hydraulic cylinders and a cross section of one of the hydraulic cylinders are
`
`
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`61 CAT-770_005277.
`62 CAT-770_005288.
`63 CAT-770_005264.
`64 Deposition of Mr. Eric Engelmann, taken March 16, 2023, p. 28:3-7.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 15 of 27 PageID #: 34285
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`shown in Figure 7. The hydraulic cylinders with position measurements are used with the
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`optional Grade and Slope control system.65
`
`
`
`Figure 7.
`
`(Left) Mixing chamber with side plates adjacent to the rotor. The relative positioning
`of a side plate with respect to the machine frame is established with two hydraulic
`cylinders with a position sensor.66 (Right) The hydraulic used to control the position of
`the side plates with the sensor annotated.67
`Additional sensors
`
`
`
`
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`In addition to the side plate sensors, optional sonic sensors68 or position-sensing
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`hydraulically controlled inboard averaging skis69 can be utilized as the reference for the
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`optional Grade and Slope control system.70 The sonic sensor unit contains five individual
`
`sonic sensors and can be installed at “multiple inboard or external locations around the
`
`machine.” 71 The sonic sensor unit is shown in Figure 8. A portion of an inboard averaging
`
`
`
`65 CAT_00037701, p. 10/24.
`66 CAT_00037701, p. 7/24.
`67 CAT-770_005290.
`68 Deposition of Eric Engelmann, taken March 16, 2023, p. 123:13-16.
`69 CAT-770_005265.
`70 CAT_00037701, p. 13/24.
`71 CAT_00037701, p. 13/24
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 16 of 27 PageID #: 34286
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`ski assembly is shown in Figure 9. Additionally, a slope sensor is used to measure the cross
`
`slope of the machine when one of the previously described Cross Slope guidance methods
`
`of the Grade and Slope control system is activated. The GS 410 slope sensor used in the
`
`Accused Products also is configured to detect fore-aft inclination or “mainfall.” A
`
`schematic of a cross slope sensor is shown in Figure 10.
`
`Figure 8. Sonic sensor unit containing five sonic sensors. The unit can be installed at multiple
`positions on the machine.72
`
`
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`72 CAT_00037701, p. 13/24
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 17 of 27 PageID #: 34287
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`Figure 9. A portion of an inboard averaging ski assembly.73
`
`
`
`
`Figure 10. A schematic of a cross slope sensor utilized on the PM600 and 800 machines to
`measure left-to-right cross slope angle of the machines.74
`
`73 CAT_00037701, p. 16/24.
`74 CAT_770-040211.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 18 of 27 PageID #: 34288
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`PM622 01A
`
`The primary difference between the Caterpillar PM622 01A and the PM620 01A is the
`
`cutting width.75 The PM620 01A possesses a cutting width of 79 in. and the PM622 01A
`
`possesses a cutting width of 88 in.76 I understand that the differences between the PM620
`
`01A and PM622 01A are not material to the Asserted Patents.
`
`PM622 02B
`
`Certain components and features of the PM622 02B build are substantially similar to the
`
`PM620 01A and PM622 01A builds, e.g., the machine frame,77 rotor,78 engine,79 operator’s
`
`station,80 and ground engaging tracks.81,82,83 I understand that differences between the 02B
`
`and 01A builds for these components and features are not material to the Asserted Patents.
`
`Unlike the PM620 01A, the 02B builds of the PM600 and PM800 machines do not possess
`
`position sensing cylinders.84 The PM622 02B builds possess rear track angle sensors and
`
`rear leg tower proximity sensors that were not present in the 01A builds.85
`
`Grade and Slope Control System
`
`I have reviewed the document titled “Operation and Maintenance Manual: CAT® Grade
`
`& Slope for Cold Planers”86 and understand that it is representative of the grade and slope
`
`
`
`75 CAT-770_041532.
`76 CAT-770_041532.
`77 CAT-770_056381.
`78 CAT-770_014764.
`79 CAT-770_041926.
`80 CAT-770_041789.
`81 CAT-770_041920.
`82 CAT-770_041933.
`83 CAT0004788.
`84 Deposition of Eric Engelmann, taken March 17, 2023, p. 297:16-18.
`85 Deposition of Eric Engelmann, taken March 16, 2023, p. 159:4-5.
`86 CAT-770_040200 - CAT-770_040271.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 19 of 27 PageID #: 34289
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`control systems for the PM622 02B build, which correspondingly is representative of the
`
`PM600/PM800 series milling machines.
`
`
`
`The grade and slope control system for PM600/PM800 machines comprises a user interface
`
`mounted on the upper operating station as well a ground control station which allow a user
`
`to both monitor and change the values measured by the sensors on each side of the machine,
`
`as well as provide new set points for the various sensors described above, see Figure 11.
`
`Figure 11: Photographs taken during the inspection of a PM622 by Exponent personnel on August
`3, 2022.87 The user interfaces on the upper control station (left) and ground control
`stations (right) can be seen.
`Each user interface allows a user to access the grade and slope control system shown in
`
`
`
`Figure 12. As can be seen, this interface allows a user to select various sensors for grade
`
`and slope control of the milling machine as well as indicating the current and target values
`
`
`
`for the selected sensor.88
`
`
`
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`87 EXPONENT_0006494, EXPONENT_0006495.
`88 Combinations of sensors may also be used, see e.g. CAT-770_040210-CAT-770_040211.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 20 of 27 PageID #: 34290
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`Figure 12: Selected portions of the Caterpillar grade and slope control system89 manual showing
`the user interface which allows a user to control the grade, slope, and mainfall of the
`PM600/PM800 milling machines using the various sensors (shown on the right).
`The grade and slope control of the PM600/PM800 milling machines allows a user to
`
`perform a milling operation in both manual and automatic control of the left front, right
`
`front, and rear (adjusted together) legs, see Figure 13.
`
`Through the user interface, the switching of sensors for control can also be accomplished
`
`through several steps. First the user selects a sensor icon (e.g., items 6 and 8 in Figure 12)
`
`to identify which sensor is to be replaced. A new screen appears with a list of available
`
`replacements sensors, once a user has selected a replacement sensor, the user must confirm
`
`the switchover by pressing the “OK” button, see Figure 14. Further details on the
`
`mechanics of the sensor switchover process as practiced by the Caterpillar machines are
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`given in this report below.
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`89 See CAT-770_040208 - CAT-770_040216.
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`Figure 13: Annotated figures from the Caterpillar materials90 showing the aspect of the user
`interface used to control the automatic modes of lifting columns in the PM600/PM800
`milling machines.
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`
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`Figure 14: Annotated images from Caterpillar materials91 describing how a user can accomplish
`a sensor switch using the user interface consisting of multiple steps as shown above.
`The user interface for the PM600/PM800 machines also allows a user to change both the
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`
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`setpoints for individual sensors to be used as well as modify the measured values reported
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`
`
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`90 CAT-770_040215, CAT-770_040219.
`91 CAT-770_040221-CAT-770_040222.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 22 of 27 PageID #: 34292
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`by sensors.92 A user may also use the user interface to “bench” a sensor or to set the setpoint
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`for a given sensor to match the reported value.93
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`
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`The grade and slope control system for the PM600/PM800 machines is also configured to
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`provide several special modes of operation, including transitioning into/out of a cut,94 and
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`a maneuver allowing a user to briefly raise the machine up and over an obstacle (obstacle
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`jump).95
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`Caterpillar’s Small Milling Machines
`
`
`Caterpillar’s Small Milling Machines include the Caterpillar PM300 series cold planer
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`machines, an example of which is shown in Figure 15. The PM300 series machines are
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`configured to mill road material by the same means as the PM600/PM800 series machines
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`(i.e., controlling the grade and slope of the machine while grinding road material to be
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`ejected away from the front of the machine).
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`
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`I understand that there are different versions of cold planer machines within the PM300
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`series. For example, the PM310 and PM312 are cold planer machines considered to be
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`PM300 series machines. I understand that the differences between models within the
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`PM300 series, e.g., the cutting width,96 are not material to the Asserted Claims as reflected
`
`by their grouping in the Joint Stipulation Regarding Representative Accused Products
`
`agreed upon by both parties.97
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`
`
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`92 See CAT-770_040223-CAT-770_040225.
`93 CAT-770_040225.
`94 CAT-770_040226-CAT-770_040232
`95 CAT-770_040237.
`96 CAT-770_041174.
`97 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 23 of 27 PageID #: 34293
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`Figure 15. Caterpillar PM300 series machine from inspection.98,99
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`
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`
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`I understand that there are different “builds” of cold planer machines within the PM300
`
`series. For example, the PM310 01A build is a PM310 build within the PM300 series. I
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`understand that the differences between builds are material to the Asserted Claims as
`
`reflected by their separation in the Joint Stipulation Regarding Representative Accused
`
`Products agreed upon by both parties.100
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`
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`
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`I understand that the Joint Stipulation Regarding Representative Accused Products
`
`specifies the PM312 02B build as the representative product for the “PM310, PM312,
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`PM313 machines, including all 01A, 02A, 02B, and 02C builds.”101
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`The following background section on the accused products focuses on the products
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`identified as the representative products in the Joint Stipulation Regarding Representative
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`Accused Products.102
`
`
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`98 EXPONENT_0006497.
`99 Machine shown is specifically a PM312 02B build with product identification number CAT00PM3CNJX00263
`(EXPONENT_0006498).
`100 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
`101 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
`102 Joint Stipulation Regarding Representative Accused Products, April 12, 2023.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 24 of 27 PageID #: 34294
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`Inspection
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`I have review photographs and videos taken by Exponent staff during an inspection of a
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`Caterpillar PM312 02B build on December 12-13, 2022.103
`
`Timeline
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`The PM312 02B build, representative of the accused Small Milling Machines, was first
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`shipped in November 2019.104 The accused Small Milling Machines were first shipped as
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`the 01A build in May 2018.105 Testimony regarding the Accused Products is generally
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`consistent with the dates provided above.106
`
`PM312 02B
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`In the following, to describe the components and features of the PM312 02B build, I will
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`cite to documents and features as demonstrated on the PM310 01A build as the components
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`and features of the PM310 02B build are substantially similar to the PM310 01A build,
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`e.g., the machine frame,107 rotor,108 engine, operator’s station, and ground engaging
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`tracks.109 I understand that differences between the PM312 02B and 01A builds for these
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`components and features (such as the milling width) are not material to the Asserted
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`Patents.
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`
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`As described previously, the “PM310, PM312, and PM313 Cold Planers are classified as
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`road-milling machines, mobile road construction machines used to mill material from
`
`
`103 Product identification number CAT00PM3CNJX00263 (EXPONENT_0006498).
`104 Defendant Caterpillar Inc.’s Objections and Responses to Wirtgen America, Inc.’s Third Set of Interrogatories,
`p. 4/6.
`105 Defendant Caterpillar Inc.’s Objections and Responses to Wirtgen America, Inc.’s Third Set of Interrogatories,
`p. 4/6.
`106 Deposition of Mr. Corey Hanback, taken March 3, 2023, p. 56:3-5.
`107 CAT-770_002624.
`108 CAT-770_002875-CAT-770_002881.
`109 CAT-770_041920.
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`paved surfaces.”110 The PM312 02B build shares many similarities with the previously
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`discussed PM600 machines, e.g., the PM312 02B possesses a machine body,111 a rotor for
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`milling paved surfaces surrounded by side plates,112 four ground engaging crawler
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`tracks,113 and four extendable/retractable legs.114 These machine components are illustrated
`
`in Figure 16 below.
`
`Figure 16.
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`Image showing select components on the PM310 01A,115 these components are
`the same as in the PM312 02B build.
`
`
`
`
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`
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`The primary physical difference between the PM300 and PM600 machines is the size of
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`the PM300 machines. A comparison of the shipping specifications of the PM620 01A, the
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`PM 622 01A, and the PM310 01A are presented below in Figure 17. The length of the
`
`
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`110 CAT-770_002085.
`111 CAT-770_002624.
`112 CAT-770_002875-CAT-770_002881
`113 CAT-770_002616- CAT-770_002610.
`114 CAT-770_002085; CAT-770_002200; CAT-770_002648; CAT-770_002676.
`115 CAT-770_002060.
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`Case 1:17-cv-00770-JDW Document 369-32 Filed 04/12/24 Page 26 of 27 PageID #: 34296
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`PM310 01A machine can be observed to be significantly smaller than its PM600
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`counterparts.
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`Figure 17.
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`Shipping specifications of the PM620 01A (left),116 the PM622 01A (middle),117
`and the PM310 01A (right).118
`
`
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` With regards to the features and performance relevant to the claims of the ’788 and ’474
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`Patents analyzed in this report, the grade and slope control system for the PM312 02B is
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`substantially identical to the previously described PM600 machines’ Grade and Slope
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`control systems.119
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`
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`116 CAT-770_004491.
`117 CAT-770_004492.
`118 CAT-770_002085.
`119 CAT-770_091773.
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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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`
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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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`
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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
`
`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
`
`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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`
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`
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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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`