Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 1 of 17 PageID #: 38992
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`WIRTGEN AMERICA, INC.
`
`
`Plaintiff/Counterclaim-
`Defendant,
`v.
`
`CATERPILLAR INC.
`
`Defendant/Counterclaim
`Plaintiff.
`
`
`
`
`Case No. 17-770-JDW
`
`
`
`PLAINTIFF’S REPLY BRIEF IN SUPPORT OF MOTION FOR JUDGMENT
`AS A MATTER OF LAW PURSUANT TO FEDERAL RULE OF CIVIL
`PROCEDURE 50(b) OR, IN THE ALTERNATIVE, A NEW TRIAL
`PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 59
`
`
`
`
`
`
`
`

`

`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 2 of 17 PageID #: 38993
`
`
`
`YOUNG CONAWAY STARGATT &
`TAYLOR, LLP
`
`Adam W. Poff (No. 3990)
`Samantha G. Wilson (No. 5816)
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`(302) 571-6600
`apoff@ycst.com
`swilson@ycst.com
`
`
`Attorneys for Plaintiff Wirtgen America, Inc.
`
`Dated: June 28, 2024
`
`OF COUNSEL:
`
`Ryan D. Levy
`Seth R. Ogden
`William E. Sekyi
`Mark A. Kilgore
`PATTERSON INTELLECTUAL
`PROPERTY LAW, P.C.
`1600 Division Street, Suite 500
`Nashville, Tennessee 37203
`(615) 242-2400
`rdl@iplawgroup.com
`sro@iplawgroup.com
`wes@iplawgroup.com
`mak@iplawgroup.com
`
`
`- and -
`
`
`Daniel E. Yonan
`Paul A. Ainsworth
`William H. Milliken
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`1101 K Street, NW, 10th Floor
`Washington, DC 20005
`(202) 371-2600
`dyonan@sternekessler.com
`painsworth@sternekessler.com
`wmilliken@sternekessler.com
`
`

`

`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 3 of 17 PageID #: 38994
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`TABLE OF CONTENTS
`
`Page
`
`B.
`
`Caterpillar failed to show that claim 32 is invalid based on the PM465 machine and
`Braud. .................................................................................................................................. 1
`A.
`Caterpillar failed to provide a prior-art reason for incorporating an elastomeric
`coupling into a modified PM465 machine to arrive at claim 32. ............................ 1
`Caterpillar’s expert analyzed the wrong claim language and failed to demonstrate
`clear and convincing obviousness. .......................................................................... 4
`The Court Should Grant JMOL of infringement because the evidence conclusively
`established that Caterpillar’s large milling machines and rotary mixers infringe claim 32
`of the ’268 patent and no evidence permits any different finding. ..................................... 6
`A.
`Attachment limitation ............................................................................................. 6
`B.
`Alignment limitation ............................................................................................... 8
`C.
`Accommodation Limitation .................................................................................... 9
`The Court Should Grant a New Trial in the Absence of JMOL ....................................... 10
`
`
`
`I.
`
`II.
`
`III.
`
`
`
`
`
`
`- i -
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`

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`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 4 of 17 PageID #: 38995
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Cordis Corp. v Boston Sci. Corp., 658 F.3d 1347 (Fed. Cir. 2011). .............................................. 6
`
`In re Sang Su Lee, 277 F.3d 1338 (Fed. Cir. 2002) ........................................................................ 4
`
`InTouch Techs., Inc. v. VGO Commc’ns, Inc., 751 F.3d 1327 (Fed. Cir. 2014)............................. 1
`
`Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91 (2011) .................................................................. 5
`
`Moba, B.V. v. Diamond Automation, Inc., 325 F.3d 1306 (Fed. Cir. 2003) .......................................... 8
`
`Shopify Inc. v. Express Mobile, Inc. 2024 WL 2260900 (D. Del. May 17, 2024) ........................ 10
`
`Treehouse Avatar LLC v Valve Corp., 54 F.4th 709 (Fed. Cir. 2022) ............................................ 5
`
`Williamson v. Consol. Rail Corp., 926 F.2d 1344 (3d Cir. 1991) ................................................ 10
`
`
`
`
`
`
`
`- ii -
`
`

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`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 5 of 17 PageID #: 38996
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`Caterpillar’s responsive brief (Resp. Br.), like its arguments at trial, fails to identify any
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`evidence on which a reasonable jury could have concluded that claim 32 of the ’268 patent is
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`invalid. Caterpillar identified no evidence in the record that a skilled artisan had reason to modify
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`the PM-465/Braud combination with a torsionally flexible elastomeric coupling to arrive at the
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`claimed invention. Caterpillar also fails to identify sufficient evidence to permit any finding
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`other than infringement of the ’268 patent. Caterpillar identified nothing in the ’268 patent
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`permitting a jury to read “attached to the machine frame” in the claims as requiring more than a
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`single attachment between the engine and machine frame. And Caterpillar identified no evidence
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`on which a jury could have relied to conclude that Caterpillar did not align the Accused Product
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`drive train components during manufacture or that they were not designed to accommodate a
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`lack of alignment during operation. Accordingly, the Court should grant JMOL that claim 32 of
`
`the ’268 patent is not invalid and the Accused Products infringe or, in the alternative, grant a new
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`trial on both issues.
`
`I.
`
`Caterpillar failed to show that claim 32 is invalid based on the PM465 machine and
`Braud.
`
`A.
`
`Caterpillar failed to provide a prior-art reason for incorporating an
`elastomeric coupling into a modified PM465 machine to arrive at claim 32.
`
`At trial, Caterpillar and Dr. Klopp failed to provide a basic requirement of an obviousness
`
`analysis – the motivation to combine the prior art. Caterpillar’s responsive brief strings together
`
`various citations to Dr. Klopp’s testimony through which Caterpillar tries to construct a
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`motivation to combine the prior art. Resp. Br. at 5, 10-12. At trial, Dr. Klopp alleged that such
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`couplings were known but did not substantiate those allegations with evidence. Even if he had,
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`his testimony was still insufficient to support an obviousness finding because he did not explain
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`how and why a skilled artisan would have incorporated the couplings into the modified PM-465.
`
`See InTouch Techs., Inc. v. VGO Commc’ns, Inc., 751 F.3d 1327, 1352 (Fed. Cir. 2014)
`
`1
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`

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`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 6 of 17 PageID #: 38997
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`(reversing trial court’s denial of JMOL on validity where expert failed to address why a skilled
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`artisan would have been motivated to combine references).
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`Caterpillar does not even argue that Dr. Klopp provided such testimony. Instead,
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`Caterpillar argues (at 11) that the jury could have inferred a design need for the modification
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`from other record evidence. But Caterpillar fails to identify any such evidence. Instead,
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`Caterpillar identifies testimony concerning machines Wirtgen released many years after the ’268
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`patent’s priority date. Such evidence cannot as a matter of law demonstrate a prior-art design
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`need.
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`First, contrary to Caterpillar’s suggestions, Dr. Klopp did not identify any evidence in the
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`record demonstrating that elastomeric couplings were known in the prior art. Resp. Br. at 11.
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`Acknowledging that the PM-465 machine and Braud have torsionally rigid U-joint couplings,
`
`Dr. Klopp alleged that “there is a patent, [Kirschey], that I talked about, at some point in the
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`case, that is one of these rubber couplings that is prior art.” Trial Tr. at 1122, 10-12. But
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`Kirschey was never admitted into evidence and there is no testimony at all to establish its
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`contents or that it was prior art. Dr. Klopp also referenced demonstratives that depicted an
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`automobile and tractor that allegedly used torsionally flexible rubber couplings in their
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`powertrains. The jury, however, could not have relied on such demonstratives as evidence per
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`the Court’s instructions. Trial Tr. at 2069:22–2070:10. Caterpillar does not even allege that the
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`demonstratives actually depicted torsionally flexible elastomeric couplings. And Dr. Klopp never
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`suggested he had personal knowledge of such elastomeric couplings before the priority date
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`sufficient to lay a proper foundation for his testimony. His testimony was unsupported,
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`speculative, and cursory.
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`Second, Caterpillar identifies no evidence demonstrating that, before the ’268 patent’s
`
`2
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`

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`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 7 of 17 PageID #: 38998
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`priority date, the art recognized a design need for reducing vibration transmission in PM-465
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`machines such that a skilled artisan would be motivated to replace the PM-465’s U-joint
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`coupling with a torsionally flexible elastomeric coupling. At trial, neither Caterpillar nor its
`
`expert put forth any evidence or testimony of a design need for torsionally flexible couplings,
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`instead, proffering such a motivation for the first time in its response brief (at 11). Caterpillar
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`points to no evidence that before the ’268 patent’s priority date skilled artisans appreciated that
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`the PM-465 machine suffered from vibrations that needed to be reduced. And Caterpillar points
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`to no evidence suggesting that torsionally flexible elastomeric couplings could reduce vibrations
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`in the PM-465 more effectively than the U-joint coupling the machine already used. Thus, even
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`if Caterpillar identified prior-art evidence in the record suggesting that vibrations were bad,
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`Caterpillar provided no reason for modifying the PM-465’s drive train to include a torsionally
`
`flexible elastomeric coupling.
`
`Third, Caterpillar wrongly alleges (at 11) that Dr. Klopp “explained why a POSA would
`
`have been motivated to use the elastomeric couplings of the prior art to arrive at claim 32.” Dr.
`
`Klopp never provided any such explanation. See Trial Tr. at 1119:19–1123:12 (stating that
`
`elastomeric couplings were known but failing to even assert—much less explain why—that a
`
`skilled artisan would have incorporated one into the PM-465-Braud combination). The cited
`
`testimony, Trial Tr. at 1100:6-17, is Dr. Klopp’s conclusory opinion that the advantage described
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`in the ’268 patent’s Summary of the Invention – which does not even mention couplings – was
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`not “a new idea.” But absent any supporting basis, his “opinion” was nothing more than a
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`hindsight-inspired use of the invention to justify his unsupported obviousness allegations. Dr.
`
`Klopp’s attempt to use the problem identified in the patent specification to support his
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`motivation to combine is improper because it seeks to use that which the inventor taught against
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`3
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`

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`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 8 of 17 PageID #: 38999
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`the inventor herself. See In re Sang Su Lee, 277 F.3d 1338, 1343–44 (Fed. Cir. 2002). The
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`remaining evidence Caterpillar points to in its response is the testimony of Mr. Schmidt
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`describing the features of a Wirtgen W 210 milling machine, which was not released until 2010 –
`
`five years after the ’268 patent’s priority date. Unsurprisingly, the machine practices the ’268
`
`patent’s claims. Even so, Dr. Klopp provided no explanation of how the ’268 patent’s invention
`
`or features of a 2010 machine reflect the state of the art before the patent’s 2005 priority date,
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`because they did not exist before 2005. Yet again, Caterpillar presents only hindsight reasoning,
`
`not evidence of a prior art design need on which the jury was entitled to rely. Id.
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`In short, Caterpillar failed to present evidence on an issue on which it bears a clear and
`
`convincing burden of proof. Its attempt to distract from its defective case by criticizing Dr.
`
`Rahn’s testimony should be ignored. See Resp. Br. at 7. Given Caterpillar’s utter failure to
`
`provide evidence of a motivation to combine, the content of Wirtgen’s rebuttal case is irrelevant.
`
`B.
`
`Caterpillar’s expert analyzed the wrong claim language and failed to
`demonstrate clear and convincing obviousness.
`
`Caterpillar’s argument that “Dr. Klopp did not analyze the wrong claim language” is as
`
`patently false as its assertion that Dr. Klopp’s erroneous analysis of original claim 14, rather than
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`the ’268 patent’s reissued claim, was a mere “transcription error.” Resp. Br. at 9. Dr. Klopp’s
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`obviousness analysis is legally insufficient. Dr. Klopp’s demonstrative shown to the jury
`
`wrongly listed the broad limitation of original claim 14 that “the second subset includes at least
`
`one element selected from the group consisting of: the hydraulic pump drive; the clutch; and the
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`drive element pulley of the traction drive assembly.” DDX5-67.
`
`Dr. Klopp did not just mistakenly read the wrong limitation while performing the correct
`
`analysis. He used and analyzed the incorrect claim language. His testimony that “it says at least
`
`one element from the group, so I think in that case all you need is one of them,” (Trial Tr. at
`
`4
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`

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`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 9 of 17 PageID #: 39000
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`1119:11-13) shows that his analysis was incorrect, not that he simply overlooked a transcription
`
`error. His further statement that “[a]nd in the case of the 465, it’s the pulley,” confirmed that his
`
`underlying analysis erroneously relied on the broader scope of the original claim 14. The
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`narrower scope of that limitation in the ’268 patent’s reissued claim 14 requires the second
`
`subset to include not only the pulley, but must also include a hydraulic pump drive and clutch.
`
`Compare Trial Tr. at 1119:6–13, with Ex. 0007, 9:22-26.
`
`As an accused infringer alleging invalidity, Caterpillar bears burden of proving clearly
`
`and convincingly that reissued claim 14 of the ’268 patent is obvious. Microsoft Corp. v. i4i Ltd.
`
`P’ship, 564 U.S. 91, 102 (2011). Caterpillar acknowledges that the jury’s obviousness analysis
`
`required an assessment of Graham factor (2), the “differences between the prior art and the
`
`claims at issue.” But Caterpillar provided the jury with Dr. Klopp’s incorrect analysis and
`
`conclusion that this claim 14 limitation only requires the second subset to include the PM-465’s
`
`drive pulley. Trial Tr. at 1119:6–13.
`
`Caterpillar argues that the jury could have pieced together Dr. Klopp’s testimony
`
`regarding other claim limitations to infer the claim (with the correct second subset) would have
`
`been obvious. Resp. Br. at 9. But that is insufficient because the jury was never presented with
`
`the correct second subset analysis. Dr. Klopp’s erroneous testimony and demonstratives falsely
`
`suggest that the presence of a hydraulic pump drive and clutch in the second subset is an
`
`unimportant detail, not a mandatory requirement of the limitation, trivializing the rearrangement
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`necessary to modify the PM-465 to meet the claims 14 and 32.
`
`The court should not credit Dr. Klopp’s obviousness analysis of claim 32 because it relies
`
`on original claim 14 which is broader and materially different than the ’268 patent’s reissued
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`claim. Treehouse Avatar LLC v Valve Corp., 54 F.4th 709, 71 (Fed. Cir. 2022) (striking expert
`
`5
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`

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`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 10 of 17 PageID #: 39001
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`testimony that was “materially different from the construction adopted by the parties and the
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`court.”); Cordis Corp. v Boston Sci. Corp., 658 F.3d 1347, 1357–58 (Fed. Cir. 2011).
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`Caterpillar’s argument that the “substance of [Dr. Klopp’s] testimony supplied a more than
`
`sufficient basis for the jury to conclude that the particular drivetrain configuration of the ’268
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`patent was obvious” is misplaced. Resp. Br. at 10. The disagreement between the proper scope of
`
`the claim and the incorrect scope that Dr. Klopp analyzed was substantive – it was a change
`
`necessary to avoid the prior art and receive the reissue. Its omission resulted in prejudicial error.
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`Contra Resp. Br. At 10. Dr. Klopp’s incorrect obviousness analysis inhibited the jury’s ability to
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`properly assess the “differences between the prior art and the claims at issue.” And, contrary to
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`Caterpillar’s argument, the facts of Cordis are directly applicable. See Op. Br. At 10 n.5.
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`The Court should reject Dr. Klopp’s testimony that modifying the PM-465 to meet
`
`second subset limitation of claim 32 would have been obvious and grant JMOL of no invalidity
`
`or, at least grant a new trial.
`
`II.
`
`The Court Should Grant JMOL of infringement because the evidence conclusively
`established that Caterpillar’s large milling machines and rotary mixers infringe
`claim 32 of the ’268 patent and no evidence permits any different finding.
`
`A.
`
`Attachment limitation
`
`Much as it would like, Caterpillar cannot escape Dr. Klopp’s trial testimony
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`acknowledging, in plain and ordinary language, that the two “relatively soft” rubber mounts at
`
`the lower side of each of the PM622 and RM800 engines attach each engine to the frame of each
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`machine. Dr. Klopp confirmed this by admitting the same under cross-examination with
`
`reference to his demonstrative DDX5-48.
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`6
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`

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`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 11 of 17 PageID #: 39002
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`
`
`Q. ….There are two blue circles there, that’s showing you agree the
`engine is attached to the frame at those two blue points, correct?
`A. Correct.
`Q. And the same thing with the RM800, you agree that it’s attached
`on the non-drive end of the engine to the frame, correct?
`A. That’s correct.
`
`
`Trial Tr. at 1164:9-16. There is no dispute that the engine corresponds to the first subset of claim
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`14 or that, in each of the Accused Products, a total of four mounts connect the engine to the
`
`machine’s frame and pump drive. As Dr. Klopp has admitted, two of those four “relatively soft”
`
`rubber mounts attach the engine to the frame. Thus, a reasonable jury following the court’s
`
`instruction that comprising means “including but not limited to” could draw only one conclusion.
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`Despite an additional pair of mounts connecting the engine to the pump drive, the Accused
`
`Products meet the claim limitation that the first subset (the engine) is attached to the machine
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`frame. Trial Tr. at 2076:15–23 (emphasis added).
`
`Despite Caterpillar’s protests, Wirtgen does not seek a claim construction of “attached.”
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`The explicit words of the claim could hardly be more straightforward, and Dr. Klopp has
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`7
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`

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`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 12 of 17 PageID #: 39003
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`admitted that the Accused Products include an engine attached to the frame. JMOL is appropriate
`
`here because it was Caterpillar that mislead the jury to import limitations from the figures and
`
`preferred embodiments into the claims. Trial Tr. at 1102:20-1105:14. The only way the jury
`
`could have found no infringement was to accept Caterpillar’s invitation to read “first subset is
`
`attached to the machine frame” to instead mean “first subset is attached to the machine frame at
`
`both ends, is attached to the second subset only by an articulated coupling, and is not indirectly
`
`connected to any component of the drive train that is rigidly mounted to the machine frame.” It
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`would be legal error to permit the jury to import those unrecited limitations into the claims. See
`
`Moba, B.V. v. Diamond Automation, Inc., 325 F.3d 1306, 1314 (Fed. Cir. 2003).
`
`B.
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`Alignment limitation
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`Caterpillar is wrong that Wirtgen seeks a construction that alignment, as claimed, is
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`defined by the tolerances in the Desch pump drive installation guide. Resp. Br. at 21. As Dr.
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`Rahn explained, the plain and ordinary interpretation of “aligned” is simply that the relevant axes
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`of the drive engine, hydraulic pump drive, and drive pulley components have been “lined up.”
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`Trial Tr. at 842:1-22. Dr. Rahn clarified that claim 14 “doesn’t talk about specs or anything like
`
`that, it just says that they should be aligned prior to operation.” Trial Tr. at 878:9-11. In other
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`words, the claims do not specify a measured accuracy for alignment; they simply require that
`
`axes have been aligned.
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`Wirtgen provided unrebutted evidence that Caterpillar aligns the Accused Products’ drive
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`engine, hydraulic pump drive, and drive pulley axes during manufacture prior to operation.
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`Caterpillar’s power train systems team lead, Mr. Schafer, confirmed that Caterpillar’s follows its
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`coupling manufacturer’s (Desch) instructions in assembling the drivetrain components any lining
`
`up their axes. Trial Tr. at 790:1–791:1; Ex. 0037.0016-17 (coupling instructions). Dr. Rahn
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`relied on that sworn testimony. Trial Tr. at 843:2–6; Op. Br. at 13-16. Those instructions,
`
`8
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`

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`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 13 of 17 PageID #: 39004
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`corroborated by Mr. Schafer’s testimony, provide alignment offset tolerances that dictate how
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`accurately the axes must be aligned during assembly. Ex. 0037.0016-17. No more is required to
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`show that the components are aligned at the time of manufacture and no evidence exists in the
`
`record to the contrary. Caterpillar never challenged the veracity or accuracy of Mr. Schafer’s
`
`testimony or the Desch documents he testified about. There is no evidence upon which a
`
`reasonable jury could have concluded that the axes were not aligned.
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`C.
`
`Accommodation Limitation
`
`Caterpillar concedes that demonstrating lack of alignment does not require any
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`measurements to show “the accused machines operated misaligned.” Resp. Br. at 25, n.9.
`
`Instead, Caterpillar argues that meeting the claimed “accommodation element” requires
`
`exceeding the “during operation” tolerances because operating within those tolerances comprised
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`alignment. Aside from the absurdity noted in the opening brief that such a reading would render
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`the claim impossible to satisfy, Caterpillar is flatly wrong that the lack of alignment should be
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`measured from the “max. permissible offset during operation” specified in the Desch
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`instructions. See Op. Br. at 18; Ex. 0037.0017.
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`Claim 14 specifies that the lack of alignment is “between the output axis of the drive engine
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`and the input axes of the hydraulic pump drive and the drive pulley” and that the articulated
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`coupling must accommodate the misalignment “due to the dynamic movement of the first subset
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`relative to the second subset during operation of the construction machine.” Ex. 0007, 9:39-44.
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`Thus, the lack of alignment that the articulated coupling must accommodate is between the
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`aligned position of the hydraulic pump drive and drive pulley axes, which is fixed during
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`Caterpillar’s manufacture of the accused machines, and the engine’s axis as it moves about its
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`aligned position during operation. Trial Tr. at 844:3-845:15.
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`As the Court explained in its Markman order, “‘[a] lack of” is binary in this case: there
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`9
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`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 14 of 17 PageID #: 39005
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`either is or is not alignment. The claim covers the smallest misalignment until the machine
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`breaks.” D.I. 167 at 10 (emphasis added). By comparing the possible pre-operation alignment
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`offsets with the much larger “during operation” offsets the Accused Product’s elastomeric
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`coupling could accommodate, Dr. Rahn conclusively demonstrated that the couplings were
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`designed to accommodate a lack of alignment during machine operation. Trial Tr. at 844:18-
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`845:15. Dr. Klopp agreed. Trial Tr. at 1107:13-22; Op. Br. at 18. Caterpillar fails to identify any
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`contrary evidence on which a reasonable jury could have relied upon to conclude that the
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`Accused Products do not meet the Accommodation limitation.
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`III. The Court Should Grant a New Trial in the Absence of JMOL
`
`A new trial should be granted in this case because “a miscarriage of justice would result
`
`if the verdict were to stand.” Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1352–53 (3d Cir.
`
`1991). For example, as explained above (sections I and II, supra), the evidence Caterpillar
`
`presented on invalidity that a skilled artisan would have wanted to modify the PM-465 to meet
`
`the second subset limitation was incorrect and misleading. Likewise on non-infringement, Dr.
`
`Klopp misled the jury to import limitations from the figures and preferred embodiments into the
`
`claims and ignore his admission that the engine is attached to the machine frame in Accused
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`Products. See Shopify Inc. v. Express Mobile, Inc. 2024 WL 2260900, at *5 (D. Del. May 17,
`
`2024) (finding miscarriage of justice where testimony was confusing).
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`Additionally, a new trial is appropriate here even if the Court finds that some evidence
`
`supports the verdict, because the verdict is “against the weight of the evidence”—indeed, against
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`the great weight of the evidence—and “a serious mistake has been made.” Williamson, 926 F.2d
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`at 1352–53. Caterpillar identified no evidence that a skilled artisan had reason to modify the PM-
`
`465 and Braud to include a torsionally flexible elastomeric coupling as claim 32 requires.
`
`Caterpillar’s lead powertrain engineer admitted that Caterpillar aligns the axes of drive train
`
`10
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`

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`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 15 of 17 PageID #: 39006
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`components in the Accused products prior to operation, and manufacturing documentation
`
`showed the articulated couplings used in the Accused Products accommodated a lack of
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`alignment during operation. Accordingly, if the Court is not inclined to grant JMOL, it should at
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`the very least grant a new trial.
`
`Dated: June 28, 2024
`
`Of Counsel:
`Ryan D. Levy
`Seth R. Ogden
`William E. Sekyi
`Mark A. Kilgore
`PATTERSON INTELLECTUAL PROPERTY LAW, P.C.
`Roundabout Plaza
`1600 Division Street, Suite 500
`Nashville, Tennessee 37203
`(615) 242-2400
`rdl@iplawgroup.com
`sro@iplawgroup.com
`wes@iplawgroup.com
`mak@iplawgroup.com
`
`YOUNG CONAWAY STARGATT & TAYLOR,
`LLP
`
`/s/ Adam W. Poff
`Adam W. Poff (No. 3990)
`Samantha G. Wilson (No. 5816)
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`(302) 571-6600
`apoff@ycst.com
`swilson@ycst.com
`
`
`
`
`11
`
` -
`
` and -
`
`
`Daniel E. Yonan
`Paul A. Ainsworth
`William H. Milliken
`STERNE, KESSLER, GOLDSTEIN & FOX PLLC
`1101 K Street NW, 10th Floor
`Washington, DC 20005
`(202) 371-2600
`dyonan@sternekessler.com
`painsworth@sternekessler.com
`wmilliken@sternekessler.com
`
`Attorneys for Wirtgen America, Inc.
`
`
`
`
`
`
`

`

`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 16 of 17 PageID #: 39007
`
`CERTIFICATE OF COMPLIANCE
`
`The undersigned certifies that Plaintiff’ Reply Brief In Support Of Motion For Judgment
`
`
`
`
`As A Matter Of Law Pursuant To Federal Rule Of Civil Procedure 50(b) Or, In The Alternative,
`
`A New Trial Pursuant to Federal Rule of Civil Procedure 59 contains 3,159 words, exclusive of
`
`caption, tables, pictures, and signature block, counted using Microsoft Word’s word count
`
`feature.
`
`Dated: June 28, 2024
`
`Of Counsel:
`Ryan D. Levy
`Seth R. Ogden
`William E. Sekyi
`Mark A. Kilgore
`PATTERSON INTELLECTUAL PROPERTY LAW, P.C.
`Roundabout Plaza
`1600 Division Street, Suite 500
`Nashville, Tennessee 37203
`(615) 242-2400
`rdl@iplawgroup.com
`sro@iplawgroup.com
`wes@iplawgroup.com
`mak@iplawgroup.com
`
`YOUNG CONAWAY STARGATT & TAYLOR,
`LLP
`
`/s/ Adam W. Poff
`Adam W. Poff (No. 3990)
`Samantha G. Wilson (No. 5816)
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`(302) 571-6600
`apoff@ycst.com
`swilson@ycst.com
`
`
`
`
`
`
` -
`
` and -
`
`
`Daniel E. Yonan
`Paul A. Ainsworth
`William H. Milliken
`STERNE, KESSLER, GOLDSTEIN & FOX PLLC
`1101 K Street NW, 10th Floor
`Washington, DC 20005
`(202) 371-2600
`dyonan@sternekessler.com
`painsworth@sternekessler.com
`wmilliken@sternekessler.com
`
`Attorneys for Wirtgen America, Inc.
`
`
`
`
`
`

`

`Case 1:17-cv-00770-JDW Document 425 Filed 06/28/24 Page 17 of 17 PageID #: 39008
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on June 28, 2024, I caused the foregoing document to be served by
`
`email upon the following counsel:
`
`Bindu A. Palapura
`Andrew L. Brown
`POTTER ANDERSON & CORROON, LLP
`1313 N. Market Street, 6th Floor
`Wilmington, DE 19801
`bpalapura@potteranderson.com
`abrown@potteranderson.com
`
`James C. Yoon
`Ryan R. Smith
`Christopher Mays
`WILSON SONSINI GOODRICH &
`ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`jyoon@wsgr.com
`rsmith@wsgr.com
`cmays@wsgr.com
`
`
`
`
`
`
`
`
`
`Lucy Yen
`Michelle Dang
`WILSON SONSINI GOODRICH &
`ROSATI, P.C.
`1301 Avenue of the Americas, 40th Floor
`New York, NY 10019
`lyen@wsgr.com
`mdang@wsgr.com
`
`Matthew A. Macdonald
`Naoya Son
`Alexander Turner
`Neil N. Desai
`WILSON SONSINI GOODRICH &
`ROSATI, P.C.
`953 East Third Street, Suite 100
`Los Angeles, CA 90013
`matthew.macdonald@wsgr.com
`nson@wsgr.com
`aturner@wsgr.com
`ndesai@wsgr.com
`
`caterpillar@wsgr.com
`
`YOUNG CONAWAY STARGATT &
`TAYLOR, LLP
`
`/s/ Adam W. Poff
`Adam W. Poff (No. 3990)
`Samantha G. Wilson (No. 5816)
`Alexis N. Stombaugh (No. 6702)
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`(302) 571-6600
`apoff@ycst.com
`swilson@ycst.com
`astombaugh@ycst.com
`
`Attorneys for Plaintiff
`
`