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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`CATERPILLAR INC.
`Petitioner
`
`v.
`
`WIRTGEN AMERICA, INC.
`Patent Owner
`
`
`
`
`
`Case IPR2017-02188
`U.S. Patent 9,656,530
`
`
`EXHIBIT 2014
`
`Teleconference Transcript Between Board and
`Parties, July 2, 2018
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 1
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`JUDGE SCOTT A. DANIELS
`JUDGE BARRY L. GROSSMAN
`JUDGE KEVIN W. CHERRY
`---oOo---
`CATERPILLAR, INC., :
`:
`Petitioner, :
`:
`vs. : No. IPR 2017-02185
`:
`WIRTGEN AMERICA, INC., :
`:
`Patent Owner. :
`________________________________ :
`
` REPORTER'S TRANSCRIPT OF TELEPHONIC PROCEEDINGS
`July 2, 2018
`
`Reported by:
`LAURA AXELSEN
`C.S.R. NO. 6173
` ____________________________________________________
`DIGITAL EVIDENCE GROUP
`1730 M Street, NW, Suite 812
`Washington, D.C. 20036
`(202) 232-0646
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2018
`
`202-232-0646
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`
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`7/2/2018
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`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 2
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`JUDGE SCOTT A. DANIELS
`JUDGE BARRY L. GROSSMAN
`JUDGE KEVIN W. CHERRY
`---oOo---
`CATERPILLAR, INC., :
`:
`Petitioner, :
`:
`vs. : No. IPR 2017-02185
`:
`WIRTGEN AMERICA, INC., :
`:
`Patent Owner. :
`________________________________ :
`
`BE IT REMEMBERED THAT, on Monday , July 2, 2018,
`commencing at the hour of 7:05 a.m. Pacific Time of the
`said day, with all parties being present telephonically
`and the Certified Shorthand Reporter being in San
`Francisco, California, before me, LAURA AXELSEN, a
`Certified Shorthand Reporter for the State of
`California, the following proceedings were thereupon
`had, to-wit:
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`Digital Evidence Group C'rt 2018
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`202-232-0646
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`
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`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 3
`
`APPEARANCES OF COUNSEL
`FOR THE PETITIONER:
`FINNEGAN, HENDERSON, FARABOW
`GARRETT & DUNNER LLP
`BY: JOSHUA L. GOLDBERG, ESQ.
`DAVID K. MROZ, ESQ.
`901 New York Avenue, NW
`Washington, District of Columbia 20001
`
`FOR THE PATENT OWNER:
`STERNE, KESSLER, GOLDSTEIN & FOX
`BY: R. WILSON "TREY" POWERS, III, ESQ.
`1100 New York Avenue, NW
`Washington, District of Columbia 20005
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`Digital Evidence Group C'rt 2018
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`202-232-0646
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`7/2/2018
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`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 4
`JUDGE DANIELS: Hi, this is Judge Daniels
`again. We're still having trouble getting Judge
`Grossman on the phone. Judge -- Judge Kevin Cherry and
`I will go ahead and get this going so we don't waste
`anyone's time. Let me just ask for patent owner who we
`have on the line?
`MR. POWERS: Good morning, your Honor. This
`is Ralph Powers for Wirtgen America, patent owner.
`JUDGE DANIELS: Thank you. And for
`petitioner?
`MR. GOLDBERG: Good morning, your Honor. This
`is Joshua Goldberg, and with me I have David Mroz.
`JUDGE DANIELS: Thank you. Okay. So I was
`just reading the e-mail again. I did not go to look at
`any of the -- the information in the ITC investigation.
`But I guess since patent owner asked for the call, what
`we should do is -- why don't you tell me a little about
`the situation and these -- this other confidential
`business information?
`MR. POWERS: Certainly, your Honor. So this
`is Ralph Powers again. So Wirtgen seeks leave to file a
`motion for additional discovery. Just as a reminder,
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`Digital Evidence Group C'rt 2018
`
`202-232-0646
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 5
`this case relates to cold planers, also known as milling
`machines.
` Wirtgen seeks eight documents that were
`provided by Caterpillar during the parallel ITC
`investigation. These documents are covered by the ITC
`protective order, but their production is in the
`interest of justice.
` Wirtgen knows that Caterpillar acquired and
`tore down at least one Wirtgen milling machine. The
`docs -- the documents that we seek are related to
`objective indicia, especially copying. And based on the
`public description of the document from the ITC exhibit
`list, the documents go to issues like the identification
`and the rank and relative importance for Caterpillar and
`Wirtgen milling machine features.
` They go to the cold planer program of
`Caterpillar's new product line that was accused in the
`ITC. They go to Caterpillar's cold planer new product
`introduction gateway launch review, and similar types of
`documents. So we're seeking eight documents that, uhm,
`that all go to this objective indicia, and especially
`copying.
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`Digital Evidence Group C'rt 2018
`
`202-232-0646
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 6
` Several members of our IPR team have firsthand
`knowledge of the documents because they're under the ITC
`protective order; although, other members of our IPR
`team do not. Each of these documents was admitted as
`exhibits in the parallel ITC case where Wirtgen asserted
`this patent at issue in the IPR. And they're all highly
`relevant, because they contradict positions that Cat has
`taken in its petition, specifically that the that patent
`claims would have been obvious.
` When you look at the prior art that Cat
`asserts in its petition, for example, Swisher, a
`23-year-old reference, and Neumeier, a 36-year-old
`reference, 36 years before the patent application was
`filed by Wirtgen, it goes to show that Caterpillar's
`obviousness argument is based on hindsight.
` Because the documents show that although
`Caterpillar has been in the milling machine business for
`decades, they never included the claimed features until
`they tore down a Wirtgen milling machine.
` Cat, itself has had several models of milling
`machines that came out well after the references that
`Caterpillar asserts in its petition. But it wasn't
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`Digital Evidence Group C'rt 2018
`
`202-232-0646
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 7
`until after Cat acquired and tore down Wirtgen's milling
`machines that the claim feature suddenly appeared in
`Caterpillar's machines. And as far as we know, until
`Caterpillar copied Wirtgen's patented feature, no other
`milling machine claimed -- sorry. No other milling
`machine contained the claimed features.
` So the parties had a meet and confer, and
`during this conversation, Caterpillar actually stated
`that it didn't have issues with Wirtgen using the
`requested documents for some purposes.
` For example, Caterpillar's attorney offered to
`allow Wirtgen to use the documents to show that
`Caterpillar conducted a teardown of Wirtgen's machines,
`but it's worth noting that this statement from
`Caterpillar's counsel in the presence of Wirtgen counsel
`not subscribed to the ITC protective order is, by
`itself, enough to show that more than a mere possibility
`of finding something useful in these documents exists.
` But I also note that in making its offer,
`Caterpillar didn't want Wirtgen to go into, quote, the
`details of the documents. In other words, Caterpillar
`wanted to restrict Wirtgen's use of these documents in
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`
`Digital Evidence Group C'rt 2018
`
`202-232-0646
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 8
`
`the IPR.
` And so Wirtgen rejected this possibility
`because it would be unfairly prejudicial to Wirtgen to
`agree to only limited use of these documents, especially
`when that use would foreclose Wirtgen's possibility to
`make the type of full and robust showing of copying that
`it will make if it's successful entertaining this
`discovery.
` So that brings us to today. These are
`Caterpillar documents that Cat can easily produce.
`We're only seeking eight of them. They're already
`exhibits considered at the ITC.
` The Panel might be tempted to say that Wirtgen
`should just go to the ITC, but the ITC has ruled that
`party seeking to obtain discovery -- this kind of
`discovery should go to the PTAB for relief. And that's
`at 337-TA-1003, Order 21, where the ITC judge decided
`that, at least in part, the statutory exceptions to the
`ITC protective order do not apply to additional
`discovery in IPR. In sum there, the ITC said go to the
`PTAB.
` And the PTAB has granted additional discovery
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`Digital Evidence Group C'rt 2018
`
`202-232-0646
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 9
`
`of very similar types of documents from an ITC
`proceeding related to copying. That's One World Tech v.
`Chamberlain Group in IPR-2017-00126, Paper 20. That was
`approximately 13 documents.
` And many times, as I'm sure your Honors are
`aware, in the context of District Court protective
`orders, the PTAB has granted additional discovery in
`similar context. That's IPR-2017-01446, Paper 33, IPR
`2015-01060, Paper 20, IPR-2014-00746, Paper 15, IPR
`2015-00595, 596, 597, Paper 31. And I'll just give one
`more example, here. IPR 2017-01976 and 77, paper 22.
` So Cat chose to file. Wirtgen has the right
`to defend its patents. We want to work with that,
`implement an agreeable protective order. We've already
`offered to do this. We're willing to agree to an
`outside-counsel-only level of protection for these
`documents for Cat. We don't seek their litigation
`positions. Wirtgen cannot reasonably generate this
`information through other means, and the requested
`discovery is very easily understandable and not
`burdensome at all.
` JUDGE DANIELS: Mr. Powers, what, uhm -- what
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`Digital Evidence Group C'rt 2018
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`202-232-0646
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`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 10
`else -- understanding it sounds like there is some
`agreement at some level, then, what, uhm --
`understanding that the copying is just one -- one of the
`factors or one part of finding secondary considerations,
`which we sometimes -- you know, depending on the level
`of copying, teardown, I mean it is what it is, I guess.
` I mean, if something's obvious then -- then
`I'm not -- it's just a part of these
`obviousness/non-obviousness factors. What else do you
`want to use -- my question is, what else do you want to
`use it for besides that? I mean, why not -- sounds like
`you could just agree to use it for this potential
`evidence of copying and that Cat might be okay with it.
` MR. POWERS: Yes, your Honor. I mean, we
`certainly want to use it for copying, but without going
`into details of the documents that are protected by the
`ITC protective order, essentially what Wirtgen wants to
`do is connect some dots to make the copying argument
`that we'll present to you as robust and persuasive as
`possible.
` And that requires more than just an agreement
`that, yeah, Caterpillar tore down a Wirtgen machine.
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`Digital Evidence Group C'rt 2018
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`202-232-0646
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`7/2/2018
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`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 11
`There's more to it than that. There's -- there's more
`to a deliberate nature of including these particular
`claimed features that is evidenced by these documents.
` JUDGE DANIELS: All right. Has there been
`a -- where is the ITC -- have they had a -- have they
`had a trial or issued an order?
` MR. POWERS: Your Honor, there's been a
`hearing, and the initial determination is due at the end
`of August.
` JUDGE DANIELS: Okay. Uhm, oh, I was just
`reminded, is this -- is this for just this one IPR,
`or -- or also for the -- for the other ones that are
`somewhat related here?
` MR. POWERS: Well, it may be for one other
`IPR, your Honor, but my co-counsel is taking the lead on
`one of the other IPRs where this may be an issue. Uhm,
`we originally wrote, uhm, and had a meet and confer on
`two different IPRs, including one I think you are
`paneled for. So you may be receiving an additional
`request, uhm, within a few days. But --
` JUDGE DANIELS: Okay.
` MR. POWERS: But that's not really my
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`Digital Evidence Group C'rt 2018
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`202-232-0646
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`
`
`7/2/2018
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`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 12
`
`decision.
` JUDGE DANIELS: All right. All right. Uhm,
`Mr. Goldberg, you want to respond?
` MR. GOLDBERG: Yes, your Honor. I think you
`actually kind of hit the issue on the head with the
`question of what else are they wanting it for.
` We did have a meet and confer with him the
`other day about these documents, and that was kind of
`the key question on the table, because our main concern
`here is that these documents are subject to very, very,
`strict protective order in the ITC.
` It's not just the standard protective order in
`the ITC. The parties actually went further. So this
`isn't just limited to outside counsel's eyes only, like
`many protective orders are there. But it's actually
`further restricted and includes a prosecution bar where
`individual attorneys actually have to sign on and be
`bound by that prosecution bar.
` And the reason that we have that is because
`Wirtgen has been very aggressive in trying to patent
`different things that cover competitor products,
`including Caterpillar. And these documents that are at
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`Digital Evidence Group C'rt 2018
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`202-232-0646
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`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 13
`issue here are some of the most confidential, secretive
`documents that Caterpillar has.
` Wirtgen tries to make it sound that, like, oh,
`these are just related to this minor issue, but they're
`not. They're dozens and hundreds of pages long and
`include significant discussions related to engineering
`considerations and potential future designs that we
`just -- we can't have getting into the public.
` So we tried to work with Wirtgen to try and
`come up with a solution here, and we're willing to
`actually stipulate that Caterpillar has acquired and
`torn down a Wirtgen machine. And it seems like that
`should get them where they need to be.
` But there's some unknown extra stuff that
`they're looking for, and we just don't know what that
`is. So we can't really assess how to deal with this
`situation, because maybe there's some middle ground
`between where we're at and this full production of all
`these documents. But we're just not -- we can't assess
`where that is, because they haven't been willing to tell
`us.
` So, you know, given the -- given the very
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`Digital Evidence Group C'rt 2018
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`202-232-0646
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`
`
`7/2/2018
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`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 14
`important nature of these documents to Caterpillar,
`we're in the position right now of having to oppose this
`request. I do also want to note to the Board that while
`there are some cases, as petitioner mentioned, of
`documents moving from one proceeding into another,
`there's also board cases that say that's inappropriate.
` One example, Meyer Products versus Douglas
`Dynamics, IPR 2015-01247 is an example of the Board
`saying we're not going to get involved in a protective
`order issue. You need to go back to the court to deal
`with that.
` Another example, B/E Aerospace, Inc. versus
`MAG Aerospace Industries, IPR 2014-01510. So we think
`here, this is really an ITC protective order issue, and
`they're trying to get out from under it, but the burden
`that's placing on Caterpillar is actually very large,
`because it's not just a matter of letting them use some
`documents.
` It's a matter of documents that are extremely
`confidential potentially going public and being in a
`much less protected situation than they are at the ITC.
`Not just because of a protective order in PTAB, even if
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`Digital Evidence Group C'rt 2018
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`202-232-0646
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`
`
`7/2/2018
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`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 15
`it had outside counsel only would still not be as
`restrictive, but also because unlike in the ITC where
`the documents just remain confidential effectively
`forever, in the PTAB, documents can potentially become
`public at the end of the case.
` JUDGE DANIELS: Yeah. And I think that's one
`of -- I get that concern. I mean, you are right.
`You've probably had these calls or issues with us
`before. I mean, it's a big deal for us to keep this
`stuff sealed. We have and we can. Uhm, and I don't
`think, you know -- what -- what our penchant as judges
`here at PTAB is to make everything public where we can.
`So I understand your concern.
` How many pages -- you said hundreds of pages.
`How many total? I'm just looking at the e-mails. So
`there's -- there's about eight documents, I think. How
`many pages total?
` MR. GOLDBERG: I don't have the exact number.
`My co-counsel might.
` JUDGE DANIELS: Just any -- a rough number.
`Like, is it 200 or 800? I mean --
` MR. POWERS: Your Honor, I -- here's a rough
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`www.DigitalEvidenceGroup.com
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`Digital Evidence Group C'rt 2018
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`202-232-0646
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`
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`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 16
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`number. Roughly 200.
` JUDGE DANIELS: Okay.
` MR. POWERS: It's not hundreds and hundreds
`and hundreds of pages. And if I could just respond to
`one other thing. I mean, you know, to be persuasive,
`copying evidence requires -- requires some think, right?
`And I think merely stipulating that there was a teardown
`would not accomplish those goals for Wirtgen.
` I know and you know that the PTAB is pretty
`rigorous in applying its judgment of objective indicia,
`and so this additional discovery is important to connect
`those dots to show that this is not just a teardown that
`occurred, but there was more that happened.
` And, you know, I also -- just frankly, there's
`no mystery here, as in contrast to what my opponent is
`saying, that we told them on the meet and confer that we
`would want to use these documents the same way we use
`them in the ITC. We just don't want to pull punches,
`and simply stipulating that copying occurred -- or,
`sorry, that a teardown occurred won't accomplish our
`goal.
` So, you know, Caterpillar chose to avail
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`Digital Evidence Group C'rt 2018
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`202-232-0646
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`
`
`7/2/2018
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`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 17
`itself of this forum, and we are happy to agree to a
`protective order that protects Caterpillar to the best
`of our ability, you know, here at the PTAB Board. We
`don't want these documents to get out either, and so we
`are happy to work with them to come up with a protective
`order that we can live with, everybody.
` MR. GOLDBERG: This is -- sorry, your Honor.
` JUDGE DANIELS: Oh, no, go ahead.
` MR. MROZ: Sure. I just -- to correct the
`record, the eight documents in this particular
`proceeding, it's more than 200. It's -- the first four
`documents are, I think, over 400, getting close to 400.
`I'm going through rest of them.
` But just to be clear about the meet and
`confers we had, we were trying to work with Wirtgen and
`come up with an arrangement that would -- that would
`kind of be a middle ground and work with everyone. And
`the response was, well, we want to use them in the ITC
`proceeding.
` The problem with that is these all just come
`into the ITC proceeding knowing that the protective
`order is in place. So these documents come in in their
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`www.DigitalEvidenceGroup.com
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`Digital Evidence Group C'rt 2018
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`202-232-0646
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`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 18
`entirety. No redactions. No anything. And there's so
`many other issues addressed in these documents that go
`beyond what Wirtgen's trying to use them for in this
`proceeding. So it's very concerning to us.
` Once we get out from underneath that ITC
`protective order, we don't know what they're going to do
`with this information. I mean, they have a propensity,
`Wirtgen does -- their counsel -- the law firms in this
`case -- hopefully not the litigation counsel working on
`this case -- but other attorneys at the firm have a
`propensity for filing a lot of patents for Wirtgen. And
`one of their business practices, it appears, based on
`the patents they filed, to aggressively patent other
`people's --
` MR. POWERS: Let me correct that.
` MR. MROZ: Well, let me finish. Let me
`finish for a second.
` MR. POWERS: We never filed a patent
`application for Wirtgen.
` MR. MROZ: -- hasn't?
` MR. POWERS: No.
` MR. MROZ: Okay. I'm not sure about that.
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`www.DigitalEvidenceGroup.com
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`Digital Evidence Group C'rt 2018
`
`202-232-0646
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`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 19
`We can get into that later. But the other firm --
` MR. POWERS: I'm quite sure.
` MR. MROZ: Okay. Like I said, we can double
`check that later. But the point is Patterson, who is
`the other law firm, has been co-counsel in this case
`with Sterne Kessler, has filed a number of patents. And
`Patterson is involved, you know, intricately in this
`case.
` So that's why we had as prosecution production
`bar put in place. We're really concerned about this
`information not just going public, but being misused by
`Wirtgen. And there was a lot of negotiation about the
`prosecution bar. They fought back about it, and this
`concerned us even more. So I just want to explain the
`concern we have and show why.
` MR. POWERS: The --
` JUDGE DANIELS: All right. Gentlemen, let
`me -- it's hard to hear when you guys are talking over
`each other. I get it. This is sort of a -- this is a
`sort of a touchstone issue for both parties. I get it.
` Here's my first thought: It actually, kind
`of, to me -- and you can tell me if I'm wrong here -- it
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`www.DigitalEvidenceGroup.com
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`Digital Evidence Group C'rt 2018
`
`202-232-0646
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 20
`almost sounds like you guys are kind of close. Like, it
`sounds like you -- I don't have a problem with -- we
`wouldn't have a problem if, like, keeping this -- if you
`want to do a fairly strict confidentiality agreement and
`keep this -- keep this close, I'm okay with that.
` I mean, we can make sure that things do not
`get out from here, and I understand, you know, there's
`always sort of the selective counsel and law firms. I
`get it.
` Here's one of my thoughts: Are there pages
`that can be extracted from this material, or are there
`certain pages that, for instance, go to copying? I
`mean, I -- perhaps Wirtgen thinks that if -- Mr. Powers,
`if you think that these are the key ones you think we
`should see, perhaps you could let Cat keep other ones,
`uhm, from -- from coming in.
` We're probably going to find some middle
`ground if you guys can't, so -- so -- so that's why I'm
`saying, maybe if you guys sound like you're working
`together pretty well, maybe you should try once more.
` I will say this: I'm certainly -- what I
`think I'm going to do, I'm going to jump off here and
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2018
`
`202-232-0646
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 21
`just chat with the other judges for a second. But my
`thought is to ask you guys to go back one more time, do
`a meet and confer, and then I can also authorize here on
`the phone -- you know, I could authorize the motion -- I
`can authorize the motion and a response for sure. You
`know, and I keep it short. That's five, six pages.
`Something like that. But before I make a decision, I
`definitely want to hear from both parties again and put
`that in the record.
` MR. POWERS: Certainly, your Honor. If I
`may, one of our concerns was just that some panels have
`a tendency to want to see a full exhibit. But it would
`be something that I think we could work out with
`Caterpillar to determine pages that are completely
`irrelevant from these exhibits and then seek admission
`of these exhibits that way in the IPR, if that would
`help everybody's concerns. That would be a middle
`ground that we would be willing to try to negotiate with
`Caterpillar.
` MR. GOLDBERG: That is I think, you know, trying
`to work together on this some more is a good idea, and
`we would be happy to do that.
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2018
`
`202-232-0646
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 22
`
` JUDGE DANIELS: Yeah. Let me do this.
`Let's -- let's -- let's do this. If you guys sound like
`you're kind of close, let me ask you to meet and confer
`once more, see if you can work that out. And if not,
`uhm, what I will do is go ahead -- if you guys come back
`and say you can't do it, I mean, I think we go ahead and
`authorize the motion. So I won't authorize the motion
`now, uhm, but I think if you guys come back and say,
`hey, we still can't quite get there, then I think we go
`forward with that.
` MR. POWERS: Your Honor, may I -- may I
`request that you authorize the motions if we don't reach
`agreement? Because we're not too far out from our POR
`date. And I don't want there to be any kind of, uhm,
`delay -- undue delay. Uhm, would you be willing to do
`that, sir?
` JUDGE DANIELS: Yeah. I'm thinking about it.
`When's -- when's the response due?
` MR. POWERS: It's on the third of August.
` JUDGE DANIELS: So a month.
` MR. POWERS: Yeah.
` JUDGE DANIELS: Yeah, I don't have a problem
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2018
`
`202-232-0646
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 23
`with that. Uhm, I don't have a problem. I mean,
`beginning of this week, everyone's probably going on
`vacation, right?
` MR. POWERS: Yes, your Honor.
` JUDGE DANIELS: That takes the week out of it.
`Uhm, I'll authorize you -- I'll do a short order to this
`effect and authorize you all, uhm, a six-page motion and
`a six-page response, uhm, that you can go ahead and --
`and do if you cannot reach an agreement. But, I mean,
`I'm certainly -- my thought would be to find a middle
`ground, and it sounds like you guys are almost there.
`So I don't want to step on your toes if you're close.
` MR. POWERS: Thank you, your Honor.
`Appreciate it.
` JUDGE DANIELS: And let me put a -- let me put
`a -- give you a time own that. So you guys probably
`want to talk a couple of times. When do you think you
`might -- you want a week or two? You want to the 12th
`or 13th of July?
` MR. POWERS: I think a week is plenty of time,
`as long as -- you know, the 12th probably works just
`fine for me on our end.
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`www.DigitalEvidenceGroup.com
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`Digital Evidence Group C'rt 2018
`
`202-232-0646
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 24
` JUDGE DANIELS: Is that okay, Mr. Goldberg?
` MR. GOLDBERG: Yeah, that would be fine.
` JUDGE DANIELS: And then you could get a -- I
`guess I give you a few more days, whatever you want, to
`respond if -- if -- if the motion was due on the 12th.
` MR. GOLDBERG: Can we get until the 19th?
` JUDGE DANIELS: Sure. So the 3rd. Okay.
`Okay. Yeah.
` MR. GOLDBERG: Your Honor, I have one other
`question, too. You mentioned before there was multiple
`proceedings involved and Wirtgen's counsel might get
`another one from counsel in the other case. I believe
`that actually both of these law firms are on all of
`these cases, and we would like to avoid a situation
`where we have to kind of have the same negotiation over
`and over again. So I think --
` MR. POWERS: JOSH, we will be happy to work
`with you on that.
` JUDGE DANIELS: Yeah, we can do it -- I
`wouldn't make you have you do it over again. No one
`wants to do double work here. So --
` MR. POWERS: Josh, we can come to a decision
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`www.DigitalEvidenceGroup.com
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`Digital Evidence Group C'rt 2018
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`202-232-0646
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 25
`on this case. I think we can come to a decision on --
`so that decision can work for everything.
` MR. GOLDBERG: Okay. Sounds good.
` JUDGE DANIELS: All right, guys. I will -- I
`will -- thank you very much for your time. I will just
`issue a very short order authorizing the motion and the
`response, and that we just -- basically confirming this
`call. And other than that, good luck, and sounds like
`you guys are on the right track.
` MR. GOLDBERG: One last thing, your Honor.
`Just for the record, was there a court reporter on the
`line? I thought that Wirtgen's counsel was going to
`provide one, but I don't know if they did.
` MR. POWERS: There is and there was. There
`has been a court reporter on the whole time.
` JUDGE DANIELS: Okay. And can you -- can you,
`uhm -- let's see. We definitely want that transcript.
` MR. POWERS: Your Honor, we can get that to
`you, I think, in a couple of days.
` JUDGE DANIELS: Okay. Yeah. I usually ask.
`That's my fault for not asking but --
` MR. POWERS: No problem. I should have
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`www.DigitalEvidenceGroup.com
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`Digital Evidence Group C'rt 2018
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`202-232-0646
`
`
`
`7/2/2018
`
`Caterpillar, Inc., v. Wirtgen America, Inc.
`
`Telephonic Proceedings
`
`Page 26
`
`mentioned it. I forgot.
` MR. MROZ: And, your Honor, one more minor issue.
`So the issue of going to the ITC to request permission
`like the protective order says, should we move forward --
`should Wirtgen move forward with that, or what's the
`situation there?
` JUDGE DANIELS: Say that -- say that again.
`Say that again, going back to the ITC.
` MR. MROZ: Sure. Sorry. So the protective
`order we have -- I guess maybe this wasn't flushed out.
`There's been no briefing yet. But the protective order
`says that if the parties can't agree on the information
`to be used in the PTAB or another proceeding, that the
`offering party wants to use it has to go t
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