Case 1:17-cv-00770-JDW Document 369-34 Filed 04/12/24 Page 1 of 8 PageID #: 34314
`Case 1:17-cv-00770-JDW Document 369-34 Filed 04/12/24 Page 1 of 8 PagelD #: 34314
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`EXHIBIT 34
`EXHIBIT 34
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`Case 1:17-cv-00770-JDW Document 369-34 Filed 04/12/24 Page 1 of 8 PagelD #: 34314
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`EXHIBIT 34
`EXHIBIT 34
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`Case 1:17-cv-00770-JDW Document 369-34 Filed 04/12/24 Page 2 of 8 PageID #: 34315
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`WIRTGEN AMERICA, INC.,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Plaintiff/Counterclaim-Defendant, )
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`Defendant/Counterclaim-Plaintiff. )
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`C.A. No. 1:17-cv-00770-JDW
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`v.
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`CATERPILLAR INC.,
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`REPLY EXPERT REPORT OF DR. CHRISTOPHER RAHN
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`1
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Case 1:17-cv-00770-JDW Document 369-34 Filed 04/12/24 Page 3 of 8 PageID #: 34316
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`device/system, which the Court construed to mean “controller input and output
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`switch,” is consistent with the PTAB’s finding that switches can be buttons.
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`(b) Dr. Smith’s erroneously adds limitations to the terms
`“switchover device operable to switch over” and
`“controller and switchover system being configured to
`switch over”
`55. Dr. Smith further opines, “Dr. Rahn does not explain how the alleged
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`switchover devices of the Accused Products practice the full scope of their recited
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`abilities in Claim 1[f]” and “Dr. Rahn does not explain how the alleged switchover
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`systems he identifies in the Accused Products practice the full scope of their
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`recited abilities in Claim 1[f] [sic].” Smith Rebuttal Report, ¶¶ 91, 144. I disagree
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`because Dr. Smith has erroneously added limitations to the claims.
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`56. First, Dr. Smith incorrectly concludes that the claims require that the
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`switchover device/system be the only component involved in the switchover. See
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`id., ¶¶ 91–93, 144–146. Dr. Smith is adding new limitations to “switchover device
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`operable to switch over” in the ’788 patent and “controller and switchover system
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`being configured to switch over” in the ’474 patent that are inconsistent with the
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`claim language. A skilled artisan would understand the plain and ordinary meaning
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`of these terms to indicate that both the switchover device/system and the controller
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`are used to switch over control. Again, the two separate claim elements in claim 1
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`of the ’788 patent—“a switchover device operable to switch over” and “the
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`controller being operable to effect switchover”— indicate that at least the
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`37
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Case 1:17-cv-00770-JDW Document 369-34 Filed 04/12/24 Page 4 of 8 PageID #: 34317
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`switchover device and the controller collectively perform the switchover.
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`Regarding the ’474 patent, the conjunction “and” in the respective claim 19 term
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`indicates that both the controller and switchover system collectively perform the
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`switchover: “the controller and switchover system being configured to switch
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`over.” Thus, Dr. Smith’s suggestion that only the recited switchover device/system
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`or only the controller effects the switchover is wrong. Nothing in the plain and
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`ordinary meaning of the claim language imposes such a requirement.
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`57. Second, Dr. Smith incorrectly concludes that my opinion “by default”
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`is that all “that is required for a switchover is to initiate the switchover process, or
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`equivalently that the ‘time of switchover’ is when the user pushes the GUI buttons
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`he identifies (to initiate the switchover).” Smith Rebuttal Report, ¶¶ 93, 147. That
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`is wrong—the switchover itself does not occur until control is effected.
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`58. Contrary to Dr. Smith’s assertions, the entire flow chart below
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`illustrates the steps of Caterpillar’s hot-swap switchover process, starting at the
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`diamond labeled “Sensor Selection Opened” at the top-left and ending at the
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`rectangles labeled “Resume Auto / Complete” at the bottom-right. Switchover
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`initiates when the operator selects a replacement sensor and ends at the time of
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`switchover when the switchover is effected—and control is switched over to using
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`the replacement sensor.
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`38
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Case 1:17-cv-00770-JDW Document 369-34 Filed 04/12/24 Page 5 of 8 PageID #: 34318
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`and approaches to a certain claim term render Dr. Rahn’s analysis of all the claims
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`which use switchover/switching over inconsistent and fail to demonstrate to a
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`reasonable degree of engineering certainty that the Accused Products practice said
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`claims.” Id., ¶ 154. To support these arguments, Dr. Smith provides the below
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`annotated version of the flow chart stating that it was my opinion that the
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`controller effects the switchover at the steps within his annotated blue box. Id., ¶¶
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`95 (Fig. 21), 154 (Fig. 28).
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`Id. at Fig. 28.
`I disagree with this characterization. Although I agree that
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`63.
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`Caterpillar’s controller performs the steps in Dr. Smith’s annotated blue box (and
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`thus is “operable to effect switchover”), the switchover is not effected until the
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`rectangles labeled “Resume Auto / Complete.” This is also consistent with my
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`41
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Case 1:17-cv-00770-JDW Document 369-34 Filed 04/12/24 Page 6 of 8 PageID #: 34319
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`opinion that any component that performs a step of Caterpillar’s hot-swap
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`switchover process is “operable to switchover,” “operable to effect switchover,” or
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`“configured to switch over,” as recited in the Asserted Claims. Each step is part of
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`the process for effecting the switchover.
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`B. Claim 5 of ’788 Patent—“pre-setting”
`64. Regarding claim 5, Dr. Smith argues, “Dr. Rahn fails to provide a
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`consistent argument as to how the Accused Products practice the limitations of
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`Claim 5; I also demonstrate below that the Caterpillar grade and slope system sets
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`the operating parameter during (not prior to) the effecting of a switchover of
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`control and therefore does not practice each and every limitation of Claim 5 of the
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`’788 Patent.” Smith Rebuttal Report, ¶103. Neither conclusion is true.
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`65. Again, Caterpillar’s hot-swap switchover process starts at the
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`diamond labeled “Sensor Selection Opened” on the top-left and ends at the
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`rectangles labeled “Resume Auto / Complete.”
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`42
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`Case 1:17-cv-00770-JDW Document 369-34 Filed 04/12/24 Page 7 of 8 PageID #: 34320
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`CAT_00054722 (Hot Swap Flow Chart).
`66. Any component that is used in a step of this diagram is “operable to
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`switchover” or “operable to effect switchover” as recited, for example, in elements
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`1[f] and 1[g]. And the switchover is actually effected (completed) at the rectangles
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`labeled “Resume Auto / Complete.” The fact that I identified different steps of
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`Caterpillar’s hot-swap switchover process for the virtual buttons and controllers
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`with respect to elements 1[f] and 1[g] is not inconsistent with my opinions about
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`pre-setting in claim 5.
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`67. Notably, Dr. Smith does not contest that, in Caterpillar’s hot-swap
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`switchover process, a target value is set at the benching/pass-through steps that I
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`identified or that this occurs before the switchover is actually effected (completed)
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`at the rectangles labeled “Resume Auto / Complete.” Accordingly, as I explained
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`43
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`Case 1:17-cv-00770-JDW Document 369-34 Filed 04/12/24 Page 8 of 8 PageID #: 34321
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`X.
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`Conclusion
`This report contains my complete opinions as of today based on discovery
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`provided by Defendant. I reserve the right to amend, modify, or supplement this
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`report in the even additional discovery is provided by Defendant, including any
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`expert opinions offered by Defendant.
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`Executed on July 7, 2023
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`Christopher Rahn, Ph.D.
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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