Case 1:17-cv-00770-JDW Document 439-9 Filed 07/31/24 Page 1 of 5 PageID #: 39983
`Case 1:17-cv-00770-JDW Document 439-9 Filed 07/31/24 Page 1 of 5 PagelD #: 39983
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`EXHIBIT 9
`EXHIBIT 9
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`Case 1:17-cv-00770-JDW Document 439-9 Filed 07/31/24 Page 2 of 5 PageID #: 39984
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`that I think is probably ready for us. In the meantime, I
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`think before we get them up though, we have some
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`housekeeping to do.
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`So I did see the e-mails last night that came in
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`and then there were a couple of additional issues, whatever,
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`to discuss. So let me start -- well, why don't you tell me
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`what the other issues were so we can set an agenda.
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`MR. YOON: Your Honor, this is one issue we can
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`handle very quickly, it's as to the '972 patent. When you
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`go to the '972 patent, there are two claims asserted in this
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`case, claims 12 and 13. Claim 12 was subject to the IPR and
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`the final decision in the IPR came out. That decision came
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`out on February 6th, and that final decision found that
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`Caterpillar did not prove that claim 12 was unpatentable.
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`THE COURT: Okay.
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`MR. YOON: For the exact reasons that the Court
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`had issued in its January 4th decision with regards to
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`collateral estoppel as to the '530 and '309 patent. We
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`agree that that reasoning would apply to claim 12. And so
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`what the parties have proposed, Your Honor, is that we don't
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`dispute that pursuant to the grounds set forth in the
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`Court's summary judgment decision, IPR estoppel applies with
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`regard to claim 12, and that decision was docket number 272.
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`And we would submit a proposed order to the Court. The
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`purpose of this is so that we preserve your right to appeal.
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`If you recall in your order you respectfully disagreed with
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`Judge Bryson on that rational. We want to make sure that
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`claim 12 of the '972 would be included in that appeal so we
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`would not have to present an invalidity defense 120 claim 12
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`in this trial, we don't waiver anything.
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`THE COURT: That's fine. That makes sense to
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`me. And so right, you need an order on the docket so that
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`is something to appeal.
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`MR. YOON: Also this was agreed upon, we met and
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`conferred with counsel, we'll submit a proposed order for
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`the Court.
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`THE COURT: Fine. That would be -- okay. And
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`then in terms of sort of what I think is the triage
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`standpoint I guess is the issues with respect to the opening
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`slides. And so why don't I hear from Caterpillar on the
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`objections that were made. I did look at these slides, it
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`was 678.2.
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`MR. YOON: Your Honor, the parties worked very
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`hard to meet and confer. There is just this very small
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`number of issues. If you go to slide 1.6, we believe that
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`it's argumentative as to the bullet points, third from
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`bottom, that says generated 1,128 new ideas, quote, so they
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`can "mimic" Wirtgen. I think that's argumentative in the
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`context of the opening, and we had asked for that to be
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`taken out, Your Honor.
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`APPEARANCES (Cont'd):
`
` PATTERSON INTELLECTUAL PROPERTY LAW
` BY: RYAN D. LEVY, ESQ.
`
` -and-
`
` STERNE KESSLER GOLDSTEIN & FOX
` BY: PAUL AINSWORTH, ESQ.
` BY: DANIEL YONAN, ESQ.
` BY: WILLIAM H. MILLIKEN, ESQ.
`
` Counsel for the Plaintiff/
` Counterclaim-Defendants
`
` POTTER ANDERSON & CORROON LLP
` BY: BINDU A. PALAPURA, ESQ.
` BY: ANDREW L. BROWN, ESQ.
`
` -and-
`
` WILSON SONSINI GOODRICH & ROSATI, P.C.
` BY: JAMES C. YOON, ESQ.
` BY: MATTHEW MACDONALD, ESQ.
`
` Counsel for the Defendant/
` Counterclaim-Plaintiff
`
` _ _ _ _ _ _ _ _ _ _ _ _
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`THE COURT: Good morning, everyone. Have a
`seat, please.
`All right. I am told that we have a jury panel
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`

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`Case 1:17-cv-00770-JDW Document 439-9 Filed 07/31/24 Page 3 of 5 PageID #: 39985
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`A customer can expect to spend a similar amount of
`money on spare parts over the operation of the machine as
`they did on the machine. It's a very rough environment and
`they eat a lot of parts.
`Mr. McEvoy, would you also please turn to
`Exhibit 2687 A.
`Yes.
`Mr. McEvoy, have you seen this exhibit before?
`I have.
`What is this document?
`This document represents the spare parts sales and
`gross margin on spare part sales.
`MR. LEVY: Your Honor, I move to admit
`Exhibit 2687 A into evidence.
`MR. YOON: No objection Your Honor.
`THE COURT: Okay. It's admitted.
`(PTX Exhibit No. 2687A was admitted into
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`evidence.)
`BY MR. LEVY:
`Mr. McEvoy, what other machines does Wirtgen America
`sell that are used for road construction?
`The other product in the road construction space is
`the soil stabilizers, mixers, reclaimers, they basically are
`like a milling machine but they have a tendency to mix kind
`of deeper below what a milling machine will do.
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`or an additive that would help enhance the load bearing
`structure underneath so that it is a stable base to work on.
`Mr. McEvoy, I would like to talk a little bit about
`Wirtgen America's marketing customers. What involvement do
`you have as CEO with Wirtgen America customers?
`Very fortunate, I spend a lot of time with customers.
`Our business is highly specialized. We know our customer
`base very well. I have been in the industry for a long
`time. And I have come to know -- I see customers at trade
`shows, we have events that we host at our facility and I see
`customers in the industry quite often. We also have a sales
`organization that's constantly in contact with customers as
`well, so people come visit our facility in Nashville for
`training fairly consistently.
`Generally what type of feedback have you received
`from your customers?
`Good. You hear the good and the bad. A lot of times
`questions that other people can't answer. But it's mainly
`good. I think we have listened to our customers well and
`are providing the, you know the types of material, the
`products and the features and the support that they like.
`And I think that's evidenced by our market share and our
`market position.
`And considering this feedback, Mr. McEvoy, why do you
`believe customers buy Wirtgen America's milling machines and
`
`If you would please turn to Exhibit 2690 in your
`binder.
`Yes.
`Mr. McEvoy, have you seen this document before?
`I have.
`And what is this document?
`This is a cold recycler soil stabilizer W R model
`series brochure.
`MR. LEVY: Your Honor, I move to admit
`Exhibit 2690 into evidence.
`MR. YOON: No objection, Your Honor.
`THE COURT: Okay. It's admitted.
`(PTX Exhibit No. 2690 was admitted into
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`evidence.)
`
`jury?
`
`MR. LEVY: Your Honor may I publish it for the
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`THE COURT: Yes.
`MR. LEVY:
`Mr. McEvoy, what type of applications are soil
`stabilizers used for?
`Soil stabilizer is like a milling machine, it has a
`rotor, but it goes much deeper. So if the road is unstable
`underneath or you have soil conditions that don't allow for
`good load bearing capacity, this is the machine you would
`bring in to mix in, you would mix in like a cement or a lime
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`soil stabilizer products?
`Again, I go back to product, and it is about the
`productivity of the product, it's about innovation, it's
`about being a leader in that technology space where you are
`providing the next generation of machines that help the
`contractor be more effective and efficient in doing their
`job and ultimately make them more successful. And in
`addition to that, will be supporting the customers to the
`point which they feel confident and secure.
`You mentioned the term productivity. What do you
`mean by productivity in the milling space?
`Again, with milling, time is money, you have a very
`tight window, you have to get in and get out. So a machine
`has to be, again, producing at a high hourly rate. It has
`to be highly reliable, and it has to be highly accurate in
`the way that it does its work. So milling contractors are
`paid by the amount of tons they cut out and the number of
`hours they cut it out, so productivity and time is money.
`And we talked about market share a little bit
`earlier. What has Wirtgen's market share been in the U.S.
`over the past couple of years?
`The past four years we have held over 70 percent
`market share.
`And what companies compete in the milling machine and
`soil stabilizer markets in the United States?
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`Case 1:17-cv-00770-JDW Document 439-9 Filed 07/31/24 Page 4 of 5 PageID #: 39986
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`205
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`207
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`Levy - direct
`1
`A.
`Clearly three other competitors, Caterpillar and
`2
`another company called Vomag and one called Road-Tech.
`3 Q.
`And roughly what relative market share does each of
`4
`these companies have?
`5
`A.
`Caterpillar being the number 2 Position, Road-Tech
`6
`and Vomag are really in a space that I would say are, you
`7
`know, lesser products, significantly less support and not as
`8
`widely accepted as the Wirtgen products. Caterpillar is
`9
`really right there with us because of specifications,
`10
`pricing, and the strength of their distribution system.
`11 Q.
`So which of these companies then would you describe
`12
`as competing with Wirtgen?
`13
`A.
`Caterpillar all the time, yes.
`14 Q.
`Mr. McEvoy what happened in 2016 that contributed to
`15
`Caterpillar's ability to compete with Wirtgen?
`16
`A.
`2016 was the launch of the PM600 series machines.
`17 Q.
`And have you seen anything like that before?
`18
`A.
`It was pretty surprising. I mean, I think prior to
`19
`2016, Caterpillar had been in the marketplace, and I would
`20
`say almost in and out in a very --struggling when the PM600
`21
`series came in, their market share immediately doubled, they
`22
`just moved very quickly in the market space, were very
`23
`aggressive with the customers, a lot of our existing
`24
`customers, and were moving very rapidly.
`25 Q.
`Before 2016, roughly what was Caterpillar's market
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`Levy - direct
`shipments over a period of time, and the relative shipments
`also of Wirtgen, on sales of Wirtgen over the same period of
`time, and then supports the exhibits that are listed here.
`MR. LEVY: Your Honor, I move to admit
`Exhibit 3368 into evidence.
`MR. YOON: No objection, Your Honor.
`THE COURT: 3368 is admitted.
`MR. LEVY: Your Honor, may I publish the
`
`THE COURT: Yes.
`(PTX Exhibit No. 3368 was admitted into
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`exhibit?
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`evidence.)
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`MR. LEVY:
`14 Q.
`Mr. McEvoy, this -- is this the information from
`15
`which Wirtgen America calculates its market share?
`16
`A.
`Yes.
`17 Q.
`Let's switch to a different topic here. How does
`18
`Wirtgen America go about obtaining machines from Wirtgen
`19
`GmbH to sell in the United States?
`20
`A.
`We have a production forecast system that we -- a
`21
`model that we have been running for many years and which we
`22
`would forecast out 12 months in advance what we believe the
`23
`market is going to take, what we believe we will need. And
`24
`then as that window gets a little bit closer, we refine
`25
`those numbers, but we're always keeping forecast out in
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`206
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`208
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`Levy - direct
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`Levy - direct
`1
`1
`front of the factory for production, to have production
`share?
`2
`2
`A.
`position.
`Maybe four percent.
`3 Q.
`3 Q.
`How accurate is Wirtgen America's demand forecast?
`And what happened to Caterpillar's market share after
`4
`4
`A.
`I think we're pretty good. This is a relatively
`the introduction of the new many in 2016?
`5
`5
`A.
`small market, but we know really well. So our ability to
`It quickly doubled.
`6
`6 Q.
`understand what moves this market and how it moves, I think
`And correspondingly what happened to Wirtgen
`7
`7
`we're very close to and I would say our forecasting history
`America's market share during this time?
`8
`8
`A.
`is very good.
`Ours went down.
`9 Q.
`9 Q.
`What kind of events have prevented Wirtgen America
`By about how much?
`10
`10
`A.
`from meeting market demand?
`An equal amount as to what Cats went up.
`11
`11 Q.
`A.
`Most recently Covid. Covid I think put the entire
`Mr. McEvoy, how did you get this information on
`12
`12
`world in a tail spin on supply chain issues. We had the
`market share?
`13
`13
`A.
`same, I think every industry, every space had the same
`We use the association of equipment manufacturers,
`14
`14
`issues. Supply chain related delays for components in the
`it's an association that all manufacturing companies in our
`15
`15
`factories, so lead times got stretched out, but so did
`industry space report into on a monthly basis. We submit
`16
`16
`everybody else's.
`our unit numbers into that association. We aggregate, or
`17 Q.
`17
`Was this effective -- was this effect unique to
`they pull the numbers together for the entire industry, put
`18
`18
`Wirtgen?
`them back out and from there we can determine our share
`19
`19
`A.
`It was not. It was not. It was everybody's at the
`position.
`20
`20 Q.
`same time.
`Mr. McEvoy, if you could please turn to Exhibit 6638.
`21 Q.
`21
`A.
`Well, today how is manufacturing capacity?
`Yes.
`22
`22 Q.
`A.
`It's very good. It's very good. We have much better
`Have you seen this document before?
`23
`23
`A.
`availability, lead times and really prepared to move.
`I have.
`24 Q.
`24 Q.
`Further we talked about Caterpillar market share,
`What is this document?
`25
`25
`A.
`It's a summary document that shows the industry
`could Wirtgen America absorb their market share?
`02/12/2024 06:35:11 PM
`Page 205 to 208 of 246
`52 of 100 sheets
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`Case 1:17-cv-00770-JDW Document 439-9 Filed 07/31/24 Page 5 of 5 PageID #: 39987
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`is it gets in your head, even if you say oh, I don't care,
`it gets in your head and it affects what you're thinking.
`The best thing to do is just stay out of it. When the case
`is over, you can tell anybody you want about it. But for
`now you just got to keep away from it. The last thing, I'm
`going to emphasize, don't go looking stuff up, I don't think
`there is any news coverage about this, possible, but even if
`it's not, the internet is not your friend. Don't look stuff
`up, consider the evidence you hear in this courtroom and
`only in this courtroom. Finally logistics, I know some of
`you have some distance to travel to get back and forth here,
`we can start at 9:00 or 9:30 tomorrow, I don't know if
`people have a preference, given what you have going on at
`home. Does anyone have a preference? If you do just raise
`your hand and tell me. Oh no. So my inclination is to
`start at 9:00. And that way we can get through more of it
`and not extend the case any longer than it has to be. I'll
`see everyone here, try to be here a little before nine and
`we'll start as soon as we can. Thanks and have a good
`evening.
`
`COURT CLERK: All rise.
`(Jury leaving the courtroom at 4:40 p.m.)
`THE COURT: Okay. You can have a seat.
`You know, I know I have obviously some-- I
`haven't had a chance to look at the transcript. I'm going
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`to do that over night and why don't we plan to be here at
`8:30 tomorrow and we'll take that up. If there is any
`housekeeping, we can take that up as well.
`Who is your next witness, Mr. Levy?
`MR. LEVY: Your Honor, Dr. Hahn.
`THE COURT: Who is it?
`MR. LEVY: Dr. Gunter Hahn.
`THE COURT: And he's the one we need an
`interpreter?
`MR. LEVY: The interpret will be there just to
`assist if there is an issue, not to interpret.
`THE COURT: You all agreed on an interpreter?
`MR. YOON: Yes, Your Honor.
`THE COURT: I'll probably give the jury
`instructions so they understand what is happening. But I
`think that's it. So I'll see you all in the morning and I
`will look for your e-mail tonight.
`Thanks.
`COURT CLERK: All rise.
`(Court recessed at 4:42 p.m.)
`
`