CATERPILLAR EXHIBIT £162
`Caterpillar vy Wirtgen,
`1PR2017-02188
`
`Date: April 20, 2018
`
`Case: Certain Road Milling Machines and Components Thereof
`
`
`
`i E
`
`s ;B
`
`SSTGS
`
`THIS DOCUMENT CONTAINS CONFIDENTIAL
`INFORMATION
`
`3E E
`
`aera
`
`s :
`
`a ;
`
`
`
`:ad
`
`Ace-Federal Reporters, Inc.
`Phone: 202-347-3700
`Fax: 202-737-3638
`:
`Email: info@acefederal.com |
`Internet: www.acefederal.com
`
`ee
`
`TEAMaNReeETee
`
`Page 1 of 16
`
`CATERPILLAREXHIBIT1162
`CATERPILLARv. WIRTGEN
`IPR2017-02188
`
`Page 1 of 16
`
`CATERPILLAR EXHIBIT 1162
`CATERPILLAR v. WIRTGEN
`IPR2017-02188
`
`

`

`THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION
`
`UNITED STATES OF AMI
`
`BEFORE THE
`
`INTERNATIONAL TRADE COMMISSION
`
`caaaRUTaT
`
`IN THE MATTER OF:
`
`CERTAIN ROAD MILLING MACHINES
`
`:
`
`:
`
`Investigation Number
`
`337-TA-1067
`
`AND COMPONENTS THEREOF
`
`HEARING
`
`x
`
`Friday, April 20, 2018
`
`EN
`samen
`ee
`
`SERECO
`
`
`Courtroom C
`
`U.S. International Trade
`
`
`
`Commission
`
`500 E Street,
`
`SW
`
`Washington, DC
`
`The Hearing commenced, pursuant
`
`to notice of the
`
`Judge, at 10:00 a.m., before the Honorable David P. Shaw,
`
`Administrative Law Judge for the United States
`
`International Trade Commission.
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`202-737-3638
`
`Page 2 of 16
`
`See
`
`
`Page 281
`LEOMee
`
`
`
`Page 2 of 16
`
`

`

`THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION
`
`PROCEEDINGS
`JUDGE SHAW:Yesterday evening when we broke we
`were between witnesses, but before we continue with our
`next witness, let me inquire ofthe parties, any
`housekeeping or other matters we should addressfirsthand
`this morning?
`MR. YONAN:There is nothing from Complainants’
`side, your Honor. Thank you.
`MS. LEHMAN: Your Honor,I just do havelists of
`the exhibits that came in through the cross of Mr. McEvoy
`and Mr. Schmidt that have been approvedby the other side,
`so I wantedto just movethose lists into evidence,
`JUDGE SHAW: Nothing I am unfamiliar with,
`
`right?
`
`2
`3
`4
`5
`
`67
`
`8 9
`
`10
`u
`12
`13
`4
`15
`6
`7
`18
`19
`20
`21
`22
`23
`24
`
`.
`
`1 2 3 4
`
`5
`
`6 7 8 9
`
`10
`ll
`
`14
`15
`16
`17
`18
`19
`20
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`2 3 4
`
`5
`6
`7
`8
`9
`
`10
`u
`12
`13
`14
`1s
`16
`
`
`
`
`
`
`
`
`
`
`CHRISTINE E. LEHMAN,ESQ.
`JAMES R. BARNEY, ESQ.
`DAVID K. MROZ,ESQ.
`SONJA W. SAHLSTEN,ESQ.
`CONNOR 8. HOUGHTON,ESQ.
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`202.408.4000
`Counsel for Respondents Caterpillar Paving Products,
`Inc., Caterpillar Prodotti Stradali S.r.L.,
`Caterpillar Americas CV, and Caterpillar, Inc.
`
`4
`5
`6
`7
`8
`9
`
`10
`n
`2
`13
`14
`15
`1s
`
`JOHN LUMKES
`
`wascalled as a witness and, having first been duly swom,
`was examined andtestified as follows:
`JUDGE SHAW: Thank you.
`MR. JOFFRE: Good moming, Judge Shaw. Michael
`Jofire for Wirtgen.
`JUDGE SHAW: Good morning.
`DIRECT EXAMINATION
`BY MR. JOFFRE:
`Q Good morning, Dr. Lumkes. Could you just
`introduce yourselfto the Judge.
`A Good morning, I am John Lumkes.
`Q You havein front ofyou a binder.
`A Ido.
`
`17
`18
`19
`20
`21
`
`v7
`18
`19
`20
`21
`
`Q Could you let me know whatis inside the binder.
`A Thavefour documents, my direct witness
`statement, the demonstratives for that and my rebuttal
`statement and the demonstratives for that, CX-04, 05,
`011 -- 010 and 011.
`
` Page 284
`
`APPEARANCES:
`
`
`
`
`DANIEL E. YONAN, ESQ.
`
`
`PAUL A. AINSWORTH, ESQ.
`
`JONATHAN TUMINARO,ESQ.
`
`
`
`DANIEL 8. BLOCK, ESQ.
`
`
`MICHAELJOFFRE, ESQ.
`
`
`
`
`
`Sterne, Kessler, Goldstein & Fox P.L.L.C.
`
`
`
`
`1100 New York Avenue, NW
`
`
`
`
`Washington, DC 20005
`
`202.371.2600
`
`
`
`
`
`
`Counsel for Complainant Wirtgen America, Inc.
`
`
`
`
`RYAN D. LEVY, ESQ.
`MS. LEHMAN:Right.
`SETH R. OGDEN,ESQ.
`
`
`JUDGE SHAW: Very good. Andthose are received
`Patterson Intellectual Property Law, P.C.
`
`
`and you can transmit them to the court reporter and
`Roundabout Plaza, Suite 500
`
`
`
`whatever you have worked out with her.
`1600 Division Street
`
`
`
`
`
`(Exhibits received here to belisted in index.)
`Nashville, Tennessee 37203
`MS. LEHMAN: Thankyou very much.
`615.242.2400
`
`
`
`
`
`
`JUDGE SHAW: Very good.
`Counsel for Complainant Wirtgen America,Inc.
`Then wecan proceedto the next witness.
`
`MR. YONAN: Thank you, your Honor. Complainants
`
`call Dr. John Lumkesto the stand.
`JUDGE SHAW: Good morning, Dr. Lumkes.
`
`
` Page 285
`
`
`
`
`
`
`- continued-
`1
`THE WITNESS: Good morning, your Honor.
`
`
`APPEARANCES (CONTINUED):
`2
`Whereupon,
`3
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`22
`22
`Q_ Do these witness statements contain your answers
`23
`23
`to questions from counsel?
`24
`24
`A They do.
`
` MR. JOFFRE: Your Honor, we would move to admit
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`202-737-3638
`
`2
`
`(Pages 282 to 285)
`
`Page 3 of 16
`
`Page 3 of 16
`
`

`

`were Wirtgen and Caterpillar, is that correct? SoBSSSSSS a
`
`DVDOmWNAWBBwWN
`
`
`
`Page 286
`CXAC, CX-5C, as well as the exhibits referenced therein.
`JUDGE SHAW:Any objection?
`MR. MROZ: No, your Honor.
`JUDGE SHAW: Very well. Those are admitted.
`(Exhibits CX-4C AND CX-SCreceived.)
`(Exhibits received hereto belisted in index.)
`JUDGE SHAW:Let meask a procedural question
`with respectto all ofthe witnesses.
`I notice we are
`doing direct and rebuttal witness statements when witnesses
`are coming up. Is there anything about rebuttal cases or
`combinedtestimony, agreements between the parties that
`anyone would liketo fill mein on,oris there no "there"
`there, as they say?
`MR. YONAN: Yes, your Honor, we've agreed with
`the other side that we're goingto call the witnesses once
`and, in doing so, address their direct and rebuttal, at
`least for Complainant. That way-- I know there were
`travel issues with some ofthe witnesses as well, so that
`we could get them up and down during the samepart ofthe
`testimony.
`MS. LEHMAN: Yes, your Honor, that's our
`understanding. So there will be essentially no rebuttal
`case. Like they will finish, put upall their witnesses,
`we will put up all our witnesses, and then we'll be done.
`JUDGE SHAW: Sounds good to me. All right,
`
`Page 287
`
`thank you very much.
`MR. JOFFRE: Wepass the witness, your Honor.
`JUDGE SHAW: Thank you.
`MR. MROZ: Good morning, your Honor. David Mroz
`on behalf ofFinnegan and Caterpillar Respondents.
`JUDGE SHAW: Good morning.
`MR. MROZ: MayI proceed?
`JUDGE SHAW: Well, I don't know.
`that dolly of--
`MR. MROZ: We're goingto bring a bunch of
`binders.
`
`I just saw
`
`JUDGE SHAW:IfI say no, do | not get all that,
`or how does that work?
`
`(Laughter.)
`MR. MROZ: Your Honor, this first part of the
`testimony will be on the public record.
`JUDGE SHAW: Very good, thank you. All right.
`Any time.
`
`CROSS-EXAMINATION
`BY MR. MROZ:
`
`Good morning, Dr. Lumkes.
`Good morning.
`Good to see you again.
`Samehere.
`
`So I'm going to start with a demonstrative. Can
`
`THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION
`
`Page 288
`
`DoomHMANWAWN
`
`youplease show, Ian, demonstrative RDX-0016.001.
`Andthis isjust to set the framework for what
`we'll be talking abouttoday.
`Youtestified in this case, Dr. Lumkes, on the
`‘530 patent and the '309 patent; that's correct?
`A Correct.
`
`Q Youare a professorin agriculture engineering;
`correct?
`A Correct.
`
`Q Youfocus on the design ofofF-highway machinery
`as part ofthat job?
`A As part ofit, that's true.
`Q_ Offhighway machinery includes tractors, road
`construction equipment, earth-Omoving equipmentandpit
`mining equipment; right?
`A Correct.
`
`Q_ Can we show RDX-16.002,please.
`And you have either operated or worked on a
`varicty ofdifferent off-highway machines;right,
`Dr. Lumkes?
`A That's true.
`
`Q This includes wheelloaders, graders, skid
`steers, tractors, rollers and backhoes?
`A That's true.
`
`Q Did you see — well, actually, let's circle the
`
`first machine there.
`
`Whatis that machine right there?
`A Awheel loader.
`
`Q Okay. And the next machine, what's that machine
`there?
`
`Backhoe.
`Is there a backhoe arm on that machine?
`Yes, there is.
`You've done design work involving off-highway
`machines;isn't that right?
`A Yes.
`
`Q_ You've worked on, from a design standpoint,
`windrowers?
`Correct.
`And backhoe arms?
`Correct.
`
`Just like the backhoe arm up in that drawing
`
`there?
`A Similar.
`
`Before this case, you never actually worked on
`Q
`the design of a cold planer, though, did you?
`A That's correct.
`
`Two months ago at your deposition, I believe you
`Q_
`said the only two companies you knew who madecold planers
`
`Se
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`202-737-3638
`
`3
`
`(Pages 286 to 289)
`
`Page 4 of 16
`
`Page 4 of 16
`
`

`

`
`
`
`Page 290
`Page 292
`
`
`
`A Technologies are evolvingin all different
`A Yes, in response to that question, I remember
`answering that way.
`fields. For example, in the drone field, the use of
`different kinds of sensors that may have applicability. So
`Q Let's go back to that question. Can you please
`
`drones are very commonly used now in agriculture,so it's
`
`show deposition transcript page 56 ofDr. Lumkes,lines 1
`not a stretch.
`through 3.
`You said there -- actually, can you go to the
`
`question before that, please. You were asked, "Have you
`
`worked with companies who make cold planers?" And you
`
`responded, "To be honest, at this point the only two
`
`companies I know who make cold planers are Wirtgen and
`
`Caterpillar." Is that correct?
`
`A That was mystatementatthe time,that's
`correct.
`
`THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION
`
`Q That's because a good engineer knowsthat a
`solution that works in one field might work in another?
`A It might.
`Q Can weplease show RDX-16.003.
`Dr. Lumkes,this is claim | of the '530 patent,
`in view ofthe RX500 machine. Do you recognize that claim?
`A Yes, Ido.
`Q_ Were you asked to analyze claim 1 ofthe '530
`patent in this case?
`A Itsa-- the claims that I was looking at are
`dependent on this claim, so as part of that, correct.
`Q_
`That's what I was gettingto.
`A Yeah.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Q Youdon't stand by that statement?
`
`
`A No, iff would havethought morecarefiilly about
`that answer, I knew from reading other documents for the
`
`
`patent case that there are obviously other companies.
`
`
`Q_ Okay. So you want to change your answer today?
`Q So this is an independent claim and the claims
`A No, I'm just saying that wasthe statement I
`that you're analyzing in this case depend from claim 1?
`madeat the time, I thought that was correct.
`
`
`A Correct.
`Q Okay. To be fair, Dr. Lumkes, you've been able
`
`
`
`
`Q_
`Solet's consider claim | in view ofthe Roadtec
`to draw from the work you've done in noncoldplanerfields
`
`
`
`to do the cold planer design work in this case; correct?
`RXSO0 prior art machine that Caterpillar is asserting. My
`
`understanding from Wirtgen's prehearing statementis that
`A I would disagree,in that it was design work,
`
`Wirtgen doesnot dispute that the RX500disclosesall of
`but analysis of designs on patent infringement and validity
`
`
`
`
`
`
`Page 291
`Page 293
`
`
`
`thoselimitations in green check marks next to them; is
`and domestic industry,so it's different than designing
`that correct?
`equipment.
`
`A Thatis correct.
`
`
`Q. Okay. Well, I don't think that was my question.
`
`A Okay.
`Q Sothe only limitation that's in dispute is that
`
`
`last limitation, which-- that final limitation on
`Q I'm just simply asking ifyour work that you did
`
`
`
`RDX-16.003; is that correct?
`
`before working onthis case on off-highway machines gave
`
`
`
`A Relative to claim1, correct.
`you the expertise necessary to do youranalysisin this
`
`case.
`Q Yeah. And can wecall that the sensor
`
`
`A Thereare similarities with the work I had done
`
`
`limitation, just 1o makeit easier on us?
`
`earlier that are similar to the analysis I did in this
`A Sure. As described in that claim,that'sfine.
`
`
`
`case, correct.
`
`Q_ Okay. Let's go to the patent. Can you please
`
`
`show us JX-003.
`Q That had to have been where you got your
`
`
`
`
`expertise; right? Because you've never worked onthe
`
`design of a cold planer before?
`
`
`A Correct,
`Q Sure. We're going to showit on the screen
`
`
`
`here. Is this the '530 patent, Dr. Lumkes?
`
`
`
`A Yes,it is.
`
`
`Q
`This patent has three figures; right?
`
`
`
`A Yes. Could] just get a copy ofthatin front
`
`
`
`Q Ifa student were working, on a project on an
`ofme, just for review, so I can lookatit?
`
`
`
`Q_
`Sure. So it's tab 2 in the volume 1 binderthat
`agricultural machine, for example, would you ever suggest
`
`
`that they look to the dronefield?
`you have there.
`
`
`
`A I would, dependingon the application in the
`Andcan you show -- can you show figures 2 and 3
`
`
`
`agricultural field they're lookingat.
`together while he's looking.
`
`
`Q_ Why is that?
`A Okay.
`
`
`
`See
` SES
`
`
`
`A Could you please point me to wherethat's at in
`the binders?
`
`Q Did you ever encourage yourstudents,
`Dr. Lumkes, to look to other fields when performing
`designs?
`A Ido.
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`4
`
`(Pages 290 to 293
`
`202-737-3638
`
`Page 5 of 16
`
`
`
`
`
`
`
`
`
` [Soars
`
`Page 5 of 16
`
`

`

` Wee
`
`Doyouseethat?
`A Correct.
`Q
`Isthat the controller?
`Q And what happens whenthepiston cylinder
`extends?
`A__That's what the patent specifications say that
`it is, correct,
`A_Thelifting columns, the upper hollow cylinder
`Q
`Samewith figure 2, has a number 23 there.
`and lower hollow cylinder, extend with it.
`Do you see that?
`Q__
`Sothere's a wire rope sensor attachedto this
`A Correct.
`component; correct?
`A To the moving elementsofthe lifting column or
`piston cylinder, yes.
`
`Q
`A
`
`Is that the controller as well?
`Same number, yes.
`
`Q_ Okay. So we have a piston inside of a dual
`hollow cylinder design here; is that correct?
`A Correct.
`
`Page 295
`
`Page 297
`
`Andthe controller is represented in these
`Q_
`diagrams with either a box ortriangle; correct?
`A Yes.
`
`There's nothing inside that box ortriangle?
`Q_
`A Correct.
`
`Let's go to figure 3. Do you see a 23 there on
`Q
`figure 3 of the '530 patent, Dr. Lumkes?
`A Ido.
`
`Q That's another blank triangle?
`A
`Correct.
`
`2OnDHWN
`
`Okay. Where is the bottom part ofthe wire rope
`Q_
`sensor attached to this component?
`A Lookslike at the junction ofthe piston
`cylinder rod and the lower-- the lower lifting column.
`Q
`Is it attached to the lifting column oris
`the -- is the sensor attachedto the lifting columnoris
`the sensorattached to the piston cylinderin this drawing
`at the bottom?
`
`A It's hard to tell from this drawing.
`Q_
`That's not whatyousaid at your deposition;
`right? So let's go back to your deposition, transcript
`142, page 142, lines 11 through 18.
`I asked you, "Is that
`wire rope sensor connectedto the piston cylinder or
`hydraulic cylinderor the telescoping columns? Can you
`tell?”
`
`You said "Based on the exact drawing andthe
`shaded crosshatch area, I would-- let me see how it was
`intended.
`It's hard to tell on that.
`I believeit's
`attached to the hatch marks would show the lower hollow
`cylinder 15."
`Is that correct?
`A Yes.
`
`Q You will agree,sir, in figure 3 that there's a
`wire rope sensor? It might help to look at the '530 patent
`at column 6, lines 25 to 32.
`A Yes, item number | is described as the wire rope
`sensor, yes.
`Q
`There's a wire rope sensor with number 2] and
`then there's a wire rope with 22 and that comprises the
`measuring device 18?
`A
`Yes, the measuring device 18, correct.
`Q You will agree, Dr. Lumkes,that the bottom
`portion ofthe wire rope sensorin this figure, figure 3,
`is connected to the hollowlifting column, right, not the
`piston cylinder?
`Q Andlet's go to the '530 patent, columns —
`A__Thepatentsaysit's attached to the piston
`column 6,lines 25 through 32.
`cylinder or the upper hollow cylinder.
`Do yousee the sentence that begins with "In the
`FICEaTo EE
`San
`
`297
`(Pages 294 to
`
` )
`
`5
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`202-737-3638
`
`Page 6 of 16
`
`THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION
`
`Page 294
`
`Page 296
`
`Sothose are figures 2 and 3; correct?
`Q
`Q_ Well, the bottom -- actually, Jet's just walk
`A Yes,
`throughthis drawing inalittle more detail.
`Q Actually take a step back. Can you show figures
`A Okay.
`_l and 2 togetherfirst.
`Q_
`So wehave a piston cylinder.
`A Correct.
`These are figures 1 and 2; correct?
`A Correct.
`
`ODOeWHHWRFWH
`
`Is that 16?
`
`Q_
`correct?
`
`Andthat's inside two hollow lifting columns;
`
`A Yes, the upper hollow cylinder and lower hollow
`cylinder.
`Q_ What's the -- what number denotes the upper
`hollow cylinder?
`A 13.
`
`Q What numberdenotes the lower hollow cylinder?
`A
`15.
`
`Andthese are whole views ofthe cold planer,
`Q_
`for lack of a better term?
`A Sure,
`
`Q Let's go to figure 3. And this is the only
`picture or diagram in the '530 patent that describes the
`sensor in detail; is that correct?
`A Yes.
`
`Sothe first two figures in the '530 patent have
`Q
`a number23.
`
`Page 6 of 16
`
`

`

`THIS DOCUMENT CONTAINS CONFIDENTIALINFORMATION
`
`CooeYNDWPhwyYe
`
`embodiment"?
`
`Doyousee that, Dr. Lumkes?
`Yes.
`
`A
`
`It says "In the embodiment, the said measuring
`Q
`device 18 includes the wire rope 22 that is attached at the
`support 11 or the lower hollow cylinder 15 andis, on the
`other hand, coupled with wire rope sensor 21 that is
`attachedat the cylinder elementof the piston cylinder
`unit 16 or at the upper hollow cylinder 13."
`A Correct.
`
`So doesthistell us that for figure 3, the
`Q
`bottom ofthe wire rope sensor is attached to the lower
`cylinder and the upper portion of the wire rope sensor can
`be attached to the -- either the upper cylinderor the
`piston cylinder?
`A Correct.
`
`So the only drawing in the '530 patent that
`Q
`showsthe sensor in detail allows for a design where the
`sensor is attached to the piston cylinder in one example;
`right?
`A Correct.
`
`Andit allows for design wherethe piston --
`Q_
`where the sensorisn't attached to the piston cylinder at
`all?
`A Correct.
`
`Page 300
`
`Q_ And we're allowed to merge those two documents
`together in determining whatoverall features the RX500
`had; right?
`A Depends ifthe two part -- the parts manuals and
`the schematics cover the combination that you're looking
`at.
`
`I'mjustasking a simple question. We can view
`Q_
`these documents together when we'retrying to figure out
`what features the machinehad.
`
`A Okay.
`Q Do youdisagree with that?
`A Disagree with what statement again?
`Q_ Are we allowed underpatent law to view these
`two documents, these two design documents, together when
`we're trying to figure out what materials or whatfeatures
`the RX500 had?
`A Yes.
`
`Q. Okay. All right. I'm going to show you page
`176 ofRX-19.Is this a page from the Roadtec RX500
`manual, parts manual?
`A Yes,it is.
`Q Okay. Can you please zoomin, Mr. Andryszak, on
`part number 65, 66 and 67.
`Is this a parts list for the RX500?
`A Forthe electrical assembly, yes.
`
`assemblies and the rear assembly;is that correct?
`
`Page 299
`
`Page 301
`
`oOOoUIDHAPFww
`
`
`
`Q Can we have RDX-16.003 up onthe screen, please.
`Let's talk about the RX500 asit applies to claim 1 ofthe
`'530 patent. Roadtec produced a parts manual in this case;
`is that correct?
`A Correct,
`
`Q Produced an electrical schematic in this case;
`is that correct?
`
`A Correct. Could you refer me to that document
`again?
`Q Sure. There's an electrical schematic that they
`produced and you have reviewed; right?
`A Yes.
`
`Q_ Okay. I'm not goingto gointoit in detail, I
`just want to knowin general ifyou've reviewedit.
`A Okay.
`Q You can read these two documents together to
`determine what the RX500 had, when it was out on the
`market; correct?
`A. Depends on what you say "whatthey had."
`Q_ Well, the parts manualdescribes somefeatures
`in the product; correct?
`A Correct.
`
`Theelectrical schematic describes some features
`Q_
`in the product; correct?
`
`[see three different reference numbers on
`Q
`there, 65, 66 and 67; right?
`A Ido.
`
`Q_ And that number nextto the 65, 66 and 67, is
`that a part number?
`A Yes.
`
`Q All three of the same part number?
`A No.
`
`They have different part numbers in sequential
`Q_
`order; right?
`A Correct.
`
`Okay. So we have a wire hamess for a yo-yo
`Q_
`elevation sensor in the left front. Do you see that?
`A Ido.
`
`Q_ Wire harness, yo-yo elevation sensorin the
`right front. Do you see that?
`A Ido.
`
`Q_ Anda wire harness for a yo-yo elevation sensor
`for the left rear. Do you see that?
`A Ido.
`
`Q You will agree, Dr. Lumkes,that this parts
`manual showsthat the RX500 showedit had three yo-yo
`sensors, in particular three yo-yo elevation sensorsthat
`werea part or related to the front right andleft leg
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`202-737-3638
`
`Page 7 of 16
`
`
`(Pages 298 to 301)
`
`6
`
`Page 7 of 16
`
`

`

`THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION
`
`Page 302
`
`A No, I would not agree with the statementthatit
`was affiliated with the leg assemblies.
`It was in that
`area of the machine,left front, right front, left rear.
`Q
`I think I said a part orrelated to the front
`right and left leg assemblies. You disagree with that
`language, "a part or related to"?
`A__
`I'm not sure what you mean byrelated to the leg
`assemblies.
`
`Okay. Well, let's go to CX-005C. This is your
`Q.
`rebuttal witness statement.
`
`Page 304
`
`yourstatement, it says right there they are relying on
`yourstatement, that the RX500 has three yo-yo elevation
`sensors that are a part or related to the front right and
`left leg assemblies.
`Doyouseethat?
`A Ido.
`
`So you don't believe that there were sensors on
`Q
`the leg assemblies of the RX500; right?
`A I don't believe it was clear that there were in
`
`OMDAmWBwNe
`
`the leg assemblies, correct.
`A Okay.
`MR. MROZ: SoThave to, your Honor, go to the
`Q
`Specifically question 67 and answer 67. Can you
`confidential record for this next portion.
`please highlight the last sentence of that paragraph 67,
`JUDGE SHAW: Very well, thank you.
`right there, where you say that "it is evident from the
`(Confidential session follows.)
`electrical assembly parts table on page 176 of RX-19",
`which is what we were lookingat?
`A
`Correct.
`
`Toa
`
`aaaSO)
`
`It's evident that three yo-yo elevation sensors
`Q
`are a part or related to the front right andleft leg
`assemblies and the rear left assembly.
`So you disagree with that statement?
`A No,in the context ofthat paragraph, J agree
`withthat.
`
`Q. Okay. Let's lookatit in context with a
`different paragraph. Can yougoto the Lumkesrebuttal
`
`Page 303
`
`expert report, please, paragraph 388 and highlightthe last
`sentence of that paragraph.
`Here again, I believe yousayit's evident from
`the electrical assembly parts table that the yo-ya
`elevation sensors are a part or related to the front right
`andleft leg assemblies and the rear left assembly.
`Doyousee that?
`A Ido.
`
`No
`
`So do youstill disagree that yo-yo sensors are
`Q
`not on the legs?
`A Related to does not mean that they are on the
`legs.
`
`It says "a part."
`It says “or related to."
`"Or" is a dysjunctive term; right? So they
`Q
`could be on?
`
`A Right. So the point on here is it's not clear.
`Q_
`Okay. Let's go to -- well, so do you stand by
`that staternent?
`A Yes.
`
`Okay. Let's go to one more. Thisis the
`Q.
`prehearing brief for Wirtgen, page 181. Endofthefirst
`paragraph, it says, "all that is evident."
`I just want to bring this to your attention,
`Dr. Lumkes. Yousay -- or Wirtgen says now,relying on
`
`
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`202-737-3638
`
`7
`
`(Pages 302 to 305)
`
`Page 8 of 16
`
`Page 8 of 16
`
`

`

`THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION
`
`
`
`
`OPEN SESSION CONTINUED
`BY MR. MROZ:
`
`Page 316
`
`Q_ Okay. Let's look at claim 1 in the '530 patent,
`which is on RX-00 -- or RX-3 -- excuse me, JX-3. And
`specifically, that's the final clause of claim 1; is that
`right, Dr. Lumkes?
`A Correct.
`
`Q_ That's what wecalled the sensorlimitation
`earlier?
`A Yes.
`
`Q Now,you believe,sir, that even assuming the
`yo-yo sensors on the RX500 ran within the lifting column,
`the sensors weren't connected to the piston cylinder in the
`RX500 machine; is that correct?
`A Ididn't assume that they were part ofthe
`lifting column, period. So --
`Q_ Okay. Let's go to your witnessstatement,
`CX-SC, question 73 for a moment,please.
`Doyou see onthelast sentence there, you say,
`"The cable ofthe yo-yo sensor is not connected to the
`piston cylinder unit ofthe RX500, so the yo-yo sensorsin
`the RX500 machineare not directly coupled to the piston
`cylinder unit"?
`A Correct.
`
`Q_
`
`Abovethat you say, "Even assumingthat the
`
`the left over there.
`
`ocoMneeoe
`
`Page 317
`
`yo-yo" sensor “elevation sensors" -- excuse me, "even
`assuming that the yo-yo elevation sensors ran within the
`lifting column as Mr, Lewis and Dr. Alleyneasscrt, there
`is no evidence that the yo-yo elevationsensors are
`connected to the cylinders.”
`Doyousee that?
`A Yes.
`
`Q Okay. So for this next part ofthe testimony,
`I'd like to operate fromthat assumption that Mr. Lewis was
`right, that he did remember what he wastalking about, and
`that the yo-yo sensors were connected under your -- based
`on your assumption here. Is that fair?
`A Okay. So we'll make -- you're asking me to make
`the assumption that the yo-yo elevation sensors were within
`insidethe lifting columnsfor this point?
`Q Yes.
`A Okay.
`Q. Wecantake that down, Mr. Andryszak. And can
`you please put RX-297 onthe screen.
`This is a sketch that you drew at your
`deposition; is that correct?
`A Yes, I rememberthat.
`Q_
`Thave a demonstrative where we cleanedthis up
`a little bit. It's RDX-0016.006, reproduced yoursketch on
`
` cosa
`Mee
`
`
`10 (Pages 314 to 317)
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`202-737-3638
`
`Page 9 of 16
`
`Page 9 of 16
`
`

`

`THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION
`
`Page 318
`
`Page 320
`
`Doyou see that?
`A Ido.
`
`Q_ And we have a cleaner version on the right.
`Doyousee that?
`A Yes.
`
`Q Lookingat your exhibit, it has an upper hollow
`cylinder and a lowerhollow cylinder; is that right?
`A itis.
`
`Q You drewthis, correct, at your deposition?
`Do you rememberthat?
`A ldid.
`
`There are also some wire rope sensors that we
`Q_
`putat different locations onthis apparatus;is that
`correct?
`A That's correct.
`
`Q_ And we havea point A and a point B. And ifyou
`remember,I believe that's where wesaid that the piston
`wasfixed rigidly to the cylinders.
`Do you rememberthat?
`A Yeah, I think -- J think that’s howwe described
`it, correct.
`Q_
`The red wire rope sensorthere has one end
`attached to the outside ofthe upper hollow cylinder.
`Doyousee that?
`A Yes.
`
`upperpart ofthe piston cylinder and the lowerpart --
`excuse me, the upperpart ofthe blue sensoris attached to
`the upperpart ofthe piston cylinder; correct?
`A Correct.
`
`The lowerpart ofthe blue sensoris attached to
`Q_
`the lowerpart ofthe blue cylinder?
`A Correct:
`
`sREOOTE
`
`The bluepiston -- or the lower part ofthe
`Q_
`piston cylinder?
`A Correct.
`
`Q Alot of cylinders going on here.
`A Yeah.
`
`Q. Okay. Now, we've coveredthe red, the blue and
`the green sensors; right?
`A Correct.
`
`Solet's put the purple oneaside for a moment.
`Q_
`Ifthe piston cylinder in RX-297 moved 20 centimeters, the
`blue, red and green wire rope sensors would all detect a
`change in distance of20 centimeters;is that correct?
`A Yes, assuming they remained vertical. Like if
`the machine wasturning.
`Q. Okay. We also drew a wire rope sensor in purple
`with the upper part attached to the machine frame;is that
`correct?
`A Correct.
`
`Page 319
`
`Page 321
`
`ComUNANDWewWw
`
`COUYDAmAFYwD
`
`DMNYDWbhWwWw Taaenee
`
`
`And another endattachedto the outside of the
`Q_
`lower hollow cylinder; correct?
`A Correct.
`
`There's a green wire rope sensor with one end
`Q_
`attached to the inside ofthe upper hollow cylinder?
`A Correct.
`
`Q Do youseethat?
`A Yep.
`Q_
`Andthen at the bottom endattached to the lower
`hollow cylinder on the inside?
`A Correct,
`
`Q Andthe lowerpart attached to a componentthat
`extended from the bottom hollowcylinder; isn't that right?
`A That's right.
`Q_
`Assumethatall four ofthese sensors can move
`freely, they're not interfered with. When the piston
`cylinderin this drawing moves by a certain distance,all
`four sensors provide the same change in distance
`measurement, don't they?
`A Yes, as long as the rigid couplingis
`maintained.
`
`Q Justlike, ifyou can animate that drawing, just
`like this drawing shows;is that correct?
`A Correct.
`
`Q_ And after you drew this green sensor, I believe
`yourposition -- you made clear that it would be possible
`Q Okay. Okay. Can we have claim 1 ofthe '530
`to also connectthat green sensorto the two sections of
`patent back on the screen, Can you highlight that fast
`the hydraulic cylinder; is that right?
`
`A__As shown in the blue, you're asking? clause, "wherein each ofthe lifting position sensors is
`Q-
`Yeah.
`connected to the at least one piston cylinder unit located
`A Correct.
`withinits associated lifting column.” Thanks,
`I wantto talk about that word "connected" and
`what it means to you. Do yousee that word "connected"in
`there?
`A Ido.
`
`Q_ And you said if you connectedit that way, that
`would also give you the same motion?
`A Samerelative displacementI think we used, yes.
`Q
`Okay. So that's when we drew a blue sensorat
`deposition; correct?
`Q_Lifting piston sensors, each ofthelifting
`A
`Correct,
`piston sensors is connectedto the at least one piston
`Q__
`That blue sensor is connected orattached to the
`cylinder unit?
`
`
` Te
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`11
`
`(Pages 318 to 321)
`
`202-737-3638
`
`Page 10 of 16
`
`Page 10 of 16
`
`

`

`THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION
`
`Page 322
`
`Page 324
`
`&
`
`A Uh-huh.
`
`Q. Can we have RDX-16.006 on the screen again.
`Youwill agree, sir, that the green sensorthat
`we've been discussing in RX-297,that's at least indirectly
`connected to the piston cylinder; right?
`A.
`Indirectly, as long asthe rigidity is
`maintained, correct.
`Q Okay. So doesn't that also mean, then, that the
`RX500 design, ifMr. Lewis was right, the piston -- the
`sensor would be indirectly connected to the piston cylinder
`as well?
`
`A IfMr. Lewis's testimonyis correct, whichis
`not clear from the other drawings, then it would be
`indirectly connected, yes.
`Q Okay. Let's move onto claim 2 ofthe '530
`patent. Can you please show that, Mr. Andryszak.
`Let's talk aboutthis claim 2, which is a
`controller term; right?
`A It adds a controller toit, yes.
`Q It takes the design from claim 1.
`A Uh-huh.
`
`Q_ Whichis kind ofa physical, mechanical design,
`and adds a controller to automate the machine; correct?
`A Acertain controller configuration, yes.
`Q. Allright. So we went through those figures
`
`Q Asfar as the physical design ofthe controller
`in the '530 patent is concerned, these drawings and the
`patent in general, they depict the controller as a black
`box; right?
`A Yes.
`
`Q_ Okay. So the '530 patent assumes that a person
`skilled in the art would simply know to go out and choose a
`particular electrical component, electronic component, of
`the type that's commonly used in the industry, and then
`just plugit into that box; is that right?
`A Yes. I wouldn't say necessarily plug in, but
`the controllers ofthe types to regulate this would be a
`commonterm used in industry.
`Q_
`Let mesayit this way. This isn't a controller
`patent; right?
`A No.
`
`Q The patent assumesthat a personskilled in the
`art wouldjust go out and find a controller and useit in
`the context ofthis disclosure?
`
`A Right. The patent doesn't definethat.
`Q Nocircuitry, explaining how the controller
`worksin the patent?
`A Within -- inside the controller 23, no. In the
`configuration and how it's hookedup,it does show some
`signalerrors.
`
`the ground surface; is that correct?
`
`
`SSaSSE77aSS
`Mm
`Menan
`
`Le
`
`Page 323
`
`Page 325
`
`COOtDAWehYDNH
`
`earlier, where we showedthat in the figures 1, 2 and 3 in
`the '530 patent, there was a component 23 that wasthe
`controller; is that correct?
`A That's correct.
`
`Andthat was -- it pointed to either a blank box
`Q_
`or a blank triangle; is that correct?
`A
`Correct.
`
`Andthe controllerin this patent, the patent
`Q_
`requires it to perform certain functions,right, functional
`movements; is that correct?
`A_ Yes, to regulate the lifting positions.
`Q
`Sure.
`A Yeah.
`
`Q Nocircuitry, no source code, algorithm --
`A Correct.
`
`Q_
`
`--in the patent?
`You're aware,sir -- well, let's go to the Davis
`reference. You're aware ofthe Davisreference; right?
`A Tam.
`
`Q Can weplease putthat on the screen,
`Mr. Andryszak. That's RX-23. Davis discloses a road
`construction machine;is that right?
`A Aroad scarifier which would be classified as
`that.
`
`Q_ Aroadscarifier is a road construction machine?
`A Yes.
`
`QQ. Aroad scarifier is a road construction machine
`__Itcan be used to regulate the depth ofthe
`Q
`working drum; night?
`that has a milling drum thatcuts the road; right?
`A Correct.
`A__It would play a role in that. It's not a direct
`
`measurementofthe depth of the milling drum.
`Q Davis has fourlegs, the machine in Davis, I
`shouldsay, has four legs, each ofwhich has a hydraulic
`Q.
`Okay. But controller would help facilitate that
`jack; is that correct?
`process; is that correct?
`A Help facilitate, yes.
`A Correct. Could I just open up that patent a
`Q_
`Controller would help facilitate the process of
`minute just so ] can look at the big picture?
`Q Sure, sure. It's going to be tab 9.
`doing other functional movements in the patentlike
`A Okay.
`preventing overshoot or bringing the machineparallel to
`Q_ Okay. SoIbelieve -- I'm not sure I got your
`answer. Davis hasfour legs, each ofwhich has a hydraulic
` oe
`Pages 322 to 325)
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.