1:12-cv-01017-JBM-JAG # 57-1 Page 1 of 12
`E-FILED
`
` Friday, 26 October, 2012 07:39:14 PM
` Clerk, U.S. District Court, ILCD
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
`PEORIA DIVISION
`
`CATERPILLAR INC.,
`Plaintiff,
`
`and
`RAPTOR MINING PRODUCTS INC., and
`RAPTOR MlNING PRODUCTS (USA) INC.,
`Intervenors,
`
`vs.
`ESCO CORPORATION,
`Defendant.
`
`AND RELATED COUNTERCLAIMS
`
`CASE NO. 12-cv-01017-JBM-JAG
`
`Hon. Joe Billy McDade
`Hon. John A. Gorman
`
`MEMORANDUM IN SUPPORT OF RAPTOR MINING PRODUCTS INC.
`AND RAPTOR MINING I>RODUCTS (USA) INC.'S MOTION TO INTERVENE
`
`Raptor Mining Products, Inc. and Raptor Mining Products (USA), Inc. (collectively,
`
`"Raptor") move to intervene under Federal Rule of Civil Procedure 24. Raptor seeks a
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`declaration that any use, manufacture, import, offer of sale, or sale of components incorporating
`
`the CapSure® system does not infringe any valid claim of United States patent nwnbers
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`7,178,274 and 7,640,684 (collectively, "ESCO Patents"). Raptor also seeks the same declaration
`
`regarding United States patent numbers R£43,693 and 8,122,621 (collectively, "Additional
`
`ESCO Patents") presuming that the Court grants Caterpillar, Inc. ("Caterpillar") leave to amend
`
`its complaint so that it may add them.
`
`FACTUAL BACKGROUND
`
`Caterpillar, Inc. ("Caterpillar") develops, manufactures, and sells ground engaging tools
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`incorporating a retention system known as Caterpillar's CapSure® retention system ("CapSure®
`
`system"). (Dkt. No. 28, ~ 1.) Raptor specializes in high performance wear components. (Smith
`
`1 1h1 ?40 I
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 1
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`

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`1:12-cv-01017-JBM-JAG # 57-1 Page 2 of 12
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`Dec!. ,, 5.) Raptor's principals invented the CapSure® system-a component used in ground(cid:173)
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`engaging tools. (Smith Dec!. ~ 6.) Raptor manufactures and sells components incorporating the
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`CapSure® system to authorized Caterpillar dealers. (Smith Dec!. ~ 8.)
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`ESCO Corporation ("ESCO") sells grOtmd-engaging tools. (Dkt. No. 53, Answer ,, 5.)
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`ESCO has previously filled Caterpillar's supply requirements for certain components that
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`compliment Caterpillar's product line. (Dkt. No. 28, ~ 8.) In mid-2011, ESCO refused to
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`continue supplying the component. (Dkt. No. 28, ~ 9.) When the business relationship between
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`ESCO and Caterpillar degraded, ESCO accused Caterpillar of infringing the ESCO Patents.
`
`(Dkt. No. 28, ~ 12.)
`
`On January 12, 2012, Caterpillar filed this lawsuit. (Dkt. No. 1.) Caterpillar seeks a
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`declaration that it does not infringe any valid claim of the ESCO Patents. (Dkt. No. 28, ~ 2.)
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`ESCO counterclaims for patent infringement. (Dkt. No. 53, Countercl. ~~ 9-22.) ESCO alleges
`
`that Caterpillar's business activities involving the CapSure® system constitute an unauthorized
`
`manufacture, use, import, sale, or offer for sale under 35 U.S.C. § 271. (Dkt. No. 53, Countercl.
`
`~~ 9- 22.)
`
`On March 16, 2012, ESCO moved to dismiss Caterpillar's complaint for lack of subject
`
`matter jurisdiction. (Dkt. No. 32.) This Court denied ESCO's motion on July 24, 2012. (Dkt.
`
`No. 43.) Shortly thereafter on August 29, 2012, ESCO and its Canadian affiliate ESCO Canada
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`filed a patent infiingement action against Caterpillar and Caterpillar's affil iate Caterpillar Global
`
`Mining LLC in the United States District Court in the District ofNevada. (Krieger Dec!.~ 3 and
`
`Ex. A.) In the newly filed Nevada action, ESCO also named Raptor and Cashman Equipment
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`Company as defendants. (Krieger Dec!.~ 3 and Ex. A.) In add ition to the ESCO Patents at issue
`
`in this lawsuit, ESCO's complaint in the District of Nevada also alleged infringement of the
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`2
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`3 16 1240.1
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 2
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`

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`1:12-cv-01017-JBM-JAG # 57-1 Page 3 of 12
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`Additional ESCO Patents. (Krieger Decl. ~ 4 and Ex. B, ~ 62.) Raptor understands that
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`Caterpillar is seeking leave to amend its complaint to include the Additional ESCO Patents.
`
`(Krieger Decl. ~ 5.)
`
`ARGUMENT
`
`Under Rule 24, Raptor may intervene: (1) as a matter of right; or (2) permissively. Raptor
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`is entitled to intervene as a matter of right under Rule 24(a)(2) in order to protect its significant
`
`interests in this lawsuit. The claims, defenses, and other transactions at issue in this action are of
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`significant interest to Raptor. Raptor's interests in the aforementioned transactions and the
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`corresponding questions of law and fact are not believed to be adequately represented by the
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`present parties. As such, there is a need to allow Raptor to intervene as to adequately protect its
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`interest.
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`This lawsuit centers on whether the manufacture and sale of components incorporating
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`the CapSure® system infringes the ESCO Patents. (Dkt. No. 28, ~ 1.) Raptor manufactures and
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`sells components incorporating the CapSure® system. (Smith Decl. ~ 8.) Raptor is currently
`
`defending a lawsuit in the District of Nevada for alleged infTingement of these same ESCO
`
`Patents. (Krieger Decl. ~ 4 and Ex. B, ~ 62.) Granting Raptor's motion is believed to promote
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`judicial efficiency and consistency in addition to allowing adequate representation of all the
`
`interests of all the parties. Granting the motion to intervene will not prejudice the existing
`
`parties nor will it cause undue delay as this lawsuit is still in its infancy.
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`Alternatively, the Court should permit Raptor to permissively intervene under Rule
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`24(b)(l)(B). Caterpillar claims that its business activities relating to the CapSure® system do
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`not infringe any valid claim of the ESCO Patents. (Dkt. No. 28, ~ 1.) Raptor asserts the same
`
`claim with respect to itself. (Ex. 1, ~ 1) Raptor' s claim shares a common question oflaw or fact
`
`3
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`3 161240.1
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 3
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`

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`1:12-cv-01017-JBM-JAG # 57-1 Page 4 of 12
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`with Caterpillar's claim. Resolving these two claims in a single lawsuit will promote Rule 24's
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`central purpose- enhanced judicial efficiency and consistency.
`
`I.
`
`Raptor Has a Right to Intervene under Rule 24(a)(2).
`
`Under Rule 24(a)(2), a party is entitled to intervene where: (I) the party timely applies;
`
`(2) the party has an interest relating to the subject matter of the action; (3) there is a risk that the
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`interest will be impaired "as a practical matter" by the action's outcome; and ( 4) the existing
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`patiies do not adequately represent the interest of the proposed intervenor. F ED. R. CJv. P.
`
`24(a)(2); Vollmer v. Publrs. Clearing House, 248 F.3d 698, 705 (7th Cir. 2001). "Rule 24 should
`
`be liberally construed in favor of potential intervenors." iWork Software, LLC v. Corporate
`
`Express, Inc., 2003 U.S. Dist. LEXIS 19686, at 6 (N.D. Ill. 2003). Raptor is entitled to
`
`intervene.
`
`A.
`
`Raptor's Motion to Intervene is Timely.
`
`Rule 24 imposes a reasonableness test rather than a precise time limit. See Nissei Sangyo
`
`Am. v. United States, 31 F.3d 435, 438-39 (intervention timely where intervenor filed motion
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`three months after learning of suit); Clm·ox Co. v. S.C. Johnson & Son, Inc., 627 F. Supp. 2d 954,
`
`961 (E.D. Wis. 2009) (intervention timely where intervenor filed motion just over a month after
`
`suit commenced). Courts consider four factors when determining whether a proposed
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`intervenor's timing is reasonable: (1) the length of time that the intervenor knew or should have
`
`known of his interest in the case; (2) any potential prejudice that the existing pa1iies may suffer
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`from the intervenor' s delay; (3) any potential prejudice that the intervenor may suffer if the court
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`denies the motion to intervene; and (4) any unusual circumstances. See Shea v. Angulo, 19 F.3d
`
`343, 349 (7th Cir. 1994).
`
`4
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`3 161240.1
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 4
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`

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`1:12-cv-01017-JBM-JAG # 57-1 Page 5 of 12
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`Caterpillar filed this lawsuit on January 12,2012. (Dkt. No. 1.) Raptor learned about it on
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`September 24, 2012 shortly after ESCO filed its Nevada complaint against Raptor and
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`Caterpillar on August 29,2012. (Smith Decl. ~ II.) Raptor moved swiftly to investigate the
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`situation and file this motion. (Smith Decl. ~ 12.) The existing parties have neither taken any
`
`discovery nor participated in any preliminary scheduling. (Dkt. No. 52.) Granting Raptor's
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`motion is not believed to prejudice the existing parties. Denying the motion, on the other hand,
`
`will likely prejudice Raptor. Raptor has a significant interest in this action as this Court will
`
`likely determine whether a party that manufactures and sells components incorporating the
`
`CapSure® system infringes the ESCO Patents. (Dkt. No. 28, ~ 1.) Raptor manufactures and sells
`
`components incorporating the CapSure® system. (Smith Decl. ~ 8.) This Court will also likely
`
`determine whether the ESCO Patents are valid. (Dkt. No. 28, ~ 1.) Raptor is defending an
`
`ESCO-initiated lawsuit in the District of Nevada for allegedly infringing the ESCO Patents.
`
`(Krieger Dec!. ~ 4 and Ex. B, ~ 62.) Determining these issues without Raptor's presence will
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`prejudice Raptor. Raptor respectfully asks the Court to protect Raptor's opportunity to be heard.
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`Raptor's timing as to the filing of this motion is believed reasonable in light of its recent
`
`knowledge of the action. This motion is thus believed to be timely.
`
`B.
`
`Raptor Has an Interest Related to the Transactions in this Lawsuit.
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`A proposed intervenor must show that it has a direct, significant, and legally protectable
`
`interest. Security Ins. Co. v. Schipporeit, Inc., 69 F.3d 1377, 1380 (7th Cir. 1995). The Court of
`
`Appeals for the Seventh Circuit has explained that the most obvious benefits of intervention are
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`"the efficiency and consistency that result from resolving related issues in a single proceeding."
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`Schipporeit, 69 F.3d at 1381. Federal case law from other circuits uniformly agrees, noting that
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`the requirement is "primarily a practical guide to disposing of lawsuits by involving as many
`
`5
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`316 1240. 1
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 5
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`

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`1:12-cv-01017-JBM-JAG # 57-1 Page 6 of 12
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`apparently concerned persons as is compatible with efficiency and due process." See, e.g.,
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`Wilderness Soc 'y v. United States Forest Serv., 630 F.3d 1173, 1179 (9th Cir. 2011 ); Akiachak
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`Native Cmty v. DO!, 584 F.Supp.2d 1 (D.D.C. 2008).
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`Raptor has a direct, significant, and legally protectable interest in this lawsuit. This Court
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`will likely determ ine whether a party that manufactures and sells components incorporating the
`
`CapSure® system infringes the ESCO Patents. (Dkt. No. 28, ~ 1.) Raptor manufactures and sells
`
`components incorporating the CapSure® system. (Smith Decl. ~ 8.) Nearly thirty-five percent
`
`of Raptor's total sales directly comprise components incorporating the CapSure® system. (Smith
`
`Dec!.
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`9.) Because Raptor's principals invented the CapSure® system, Raptor also generates
`
`consulting fees from Caterpillar for work performed on the CapSure® system. (Smith Dec!. ~
`
`1 0.) An adverse ruling for Caterpillar in this lawsuit would harm Raptor's business. (Smith Decl.
`
`~ 13.)
`
`Moreover, Raptor's motion promotes judicial efficiency and consistency. This Court
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`denied ESCO's motion to dismiss Caterpillar's complaint for lack of subject matter jurisdiction.
`
`(Dkt. No. 43.) Shortly thereafter, ESCO filed an almost identical lawsuit against Caterpillar in
`
`the District or Nevada. (Krieger Dec!. ~ 4 and Ex. B.) ESCO named Raptor as a defendant in the
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`District of Nevada but not in this lawsuit. (Krieger Dccl, ~ 3 and Ex. A; Dkt. No. 53, Countercl.
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`~,19-22.) ESCO also cited the two Additional ESCO Patents in its District of Nevada complaint.
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`(Krieger Dec!. ~ 4 and Ex. B, 62.) ESCO is attempting to fight this battle in two jurisdictions.
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`Raptor seeks to intervene in this lawsuit and ultimately move to transfer the District of Nevada
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`case to the jurisdiction of first filing-
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`the Central District or Illinois. By allowing Raptor to
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`intervene, the Court will honor Rule 24's primary purpose-
`
`resolving related issues in a single
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`6
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`3161240 I
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 6
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`1:12-cv-01017-JBM-JAG # 57-1 Page 7 of 12
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`proceeding to promote efficiency and consistency. Raptor's interest in this lawsuit is thus
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`believed to be more than sufficient.
`
`C.
`
`Resolving T his Matter Without Raptor's Presence Will Impair
`Raptor's Ability to Protect Its Interest.
`
`If this motion is denied, Raptor's ability to protect its interest will likely suffer. The
`
`impairment requirement strongly favors intervention. See Pacific Mut. Life Ins. Co. v. National
`
`Bank & Trust Co. , 110 F.R.D. 272, 277 (N.D. Ill. 1986). It turns on "whether the decision of a
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`legal question involved in the action would as a practical matter foreclose rights of the proposed
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`intervenors in a subsequent proceeding." See Zurich Capital Mkts. Inc. v. Coglianese, 236
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`F.R.D. 379, 386 (N.D. III. 2006); see also FED. R. CIV. P. 24 ADv. COMM. NOTE ("If an absentee
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`would be substantially affected in a practical sense by the determination made in an action, he
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`should, as a general rule, be entitled to intervene.").
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`Raptor is defending an almost identical lawsuit in the District ofNevada. (Krieger Decl. ~
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`4 and Ex. B.) ESCO claims that Raptor's manufacture and sale of components incorporating the
`
`CapSure® system infringes the same ESCO Patents involved in this lawsuit. (Krieger Decl. ~ 4
`
`and Ex. B, ~ 62.) Claim construction is a critical phase in both lawsuits; claim construction is a
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`question of law. See Afarkman v. Westview Instruments, 517 U.S. 370, 391 (1996). This Court's
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`claim construction may have a highly persuasive effect as to the same patents at issue in the
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`District ofNevada. It would be contrary to the interests ofRaptor as well as the patent system as
`
`a whole if Raptor were required to defend the construction of claims for patents in which it has
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`no invo.lvement. Raptor has significant interests in this lawsuit. Raptor needs to have a voice in
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`this lawsuit's claim construction phase. If this motion is denied, Raptor's District of Nevada
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`lawsuit may turn on an issue in which Raptor was never afforded a voice. Doing so will impair
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`7
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`3161240.1
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 7
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`1:12-cv-01017-JBM-JAG # 57-1 Page 8 of 12
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`Raptor's ability to protect its interests. This scenario is believed to meet Rule 24(a)(2)'s
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`impairment requirement.
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`D.
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`Caterpillar Cannot Adequately Represent Raptor's Interest.
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`The inadequate representation requirement is a low hurdle. See Ligas v. Maram, 478 F.3d
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`771, 774 (7th Cir. 2007) (citing Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.l 0
`
`(1972)). A proposed intervenor need only show that representation "may" be inadequate. !d.
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`"Any doubt concerning the propriety of allowing intervention should be resolved in favor of the
`
`proposed intervenors because intervention allows the court to resolve all related disputes in a
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`single action." See Federal Sav. & Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983
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`F.2d 211,216 (11th Cir. 1993).
`
`Raptor needs to participate in this lawsuit to ensure that its interests are adequately
`
`represented. This lawsuit centers on the CapSure® system. (Dkt. No. 28, ~ 1.) Raptor is the
`
`foremost authority on the CapSure® system. (Smith Dec!. ~ 7.) Caterpillar did not invent the
`
`CapSure® system-Raptor's principals did. (Smith Decl. ~ 6.) Raptor advises Caterpillar on
`
`CapS ure® system design changes. (Smith Decl. ~ 1 0.) Raptor is uniquely situated to provide
`
`technical expertise on the CapSure® system. (Smith Dec!. ,[ 7.) Caterpillar, therefore, is not
`
`believed to be capable of adequately representing Raptor's interests. This scenario meets Rule
`
`24(a)(2)'s inadequate representation requirement.
`
`In short, Raptor is entitled to intervene in this lawsuit under Rule 24(a)(2) because
`
`Raptor's motion is timely, Raptor has a significant and legally protectable interest in the
`
`CapSure® system, Raptor's interest will suffer if this motion is denied, and Caterpillar cannot
`
`adequately represent that interest with respect to Raptor.
`
`8
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`3 161240.1
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 8
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`1:12-cv-01017-JBM-JAG # 57-1 Page 9 of 12
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`II.
`
`The Court Should Permit Raptor to Intervene under Rule 24(b)(l)(B).
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`Alternatively, the Court should permit Raptor to intervene under Rule 24(b)(l)(B). Rule
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`24(b) is "about economy in litigation." City of Chicago v. FEMA, 660 F.3d 980, 987 (7th Cir.
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`2011). The threshold for permissive intervention is low. Rule 24(b)(l)(B) vests courts with
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`broad discretionary power in this area. Gr~tfith v. University Hosp. , L.L.C., 249 F.3d 658, 661-62
`
`(7th Cir. 2001) ("Rule 24(b) vests district courts with 'considerable discretion' when deciding
`
`whether to permit intervention by third parties seeking to protect their interests in a particular
`
`action"). District courts may permit any party to intervene that can demonstrate: ( 1) a claim or
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`defense that shares a common question of law or fact with the main action; and (2) independent
`
`jurisdiction. See Ligas v. Maram, 478 F.3d 771, 775 (7th Cir. 2007)
`
`ln exercising that
`
`discretion, courts must consider whether the intervention will unduly delay the lawsuit or unduly
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`prejudice the existing parties' rights. FED. R. CIV. P. 24(b)(3); see Schipporeit, Inc. , 69 F.3d at
`
`1381. Raptor's motion is believed to meet these requirements. Raptor's motion thus merits
`
`approval under this Court's broad discretionary power.
`
`A.
`
`Raptor's Claim Shares a Question of Law or Fact in Common with
`Caterpillar's Claim.
`
`Courts interpret the common question of law or fact requirement broadly. See Bond v.
`
`Ultreras, 585 F.3d 1061, 1070 (7th Cir. 2009). Intervention is a procedural device meant to
`
`promote efficiency by consolidating related legal questions into a single lawsuit. See Shea, 19
`
`F.3d at 349; see also Rivers v. Califano, 86 F.R.D. 41,44 (S.D.N.Y. 1980) (common question of
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`law and fact present because proposed intervenors' claims were nearly identical to the existing
`
`plaintiffs' claims).
`
`Caterpillar seeks a declaration that it does not and has not infringed any valid claim of the
`
`ESCO Patents. (Dk:t. No. 28, ~ 1.) Raptor understand that Caterpillar is also currently seeking
`
`9
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`3161240.1
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 9
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`

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`1:12-cv-01017-JBM-JAG # 57-1 Page 10 of 12
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`leave to amend its complaint to address the Additional ESCO Patents. (KTieger Decl. ~ 5.) Raptor
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`proposes the same claims with respect to itself. (Ex. I, ~ 1.) Raptor' s claim shares a question of
`
`law or fact in common with Caterpillar's claim. By granting Raptor' s motion, the Court will
`
`promote judicial efficiency.
`
`B.
`
`The Court Has Independent Jurisdiction over Raptor's Claim.
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`Raptor seeks a declaration that its use, manufacture, import, offer of sale, or sale of
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`components incorporating the CapSure® system does not infringe any valid claim within the
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`ESCO Patents. (Ex. 1, ~ 1.) Rap tor also seeks the same declaration regarding the Additional
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`ESCO Patents presuming that the Court grants Caterpi llar leave to amend its complaint so that it
`
`may add them. (Ex. 1, ~ 1.) This Court has independent jurisdiction over Raptor's claim pursuant
`
`to 28 U.S.C. §§ 2201-02 and 28 U.S.C. §§ 1331 and 1338(a).
`
`C.
`
`Permitting Raptor to Intervene Will Neither Unduly Delay the Litigation Nor
`Unduly Prejudice the Existing Parties.
`
`Permitting Raptor to intervene will neither prejudice the existing parties nor delay this
`
`lawsuit in light of the infancy of the same. The existing parties have yet to file a proposed
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`discovery plan or participate in any preliminary scheduling. Now is the appropriate time for
`
`Raptor to intervene.
`
`Ill
`
`Ill
`
`Ill
`
`Ill
`
`Ill
`
`Ill
`
`Ill
`
`10
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`3 16 1240. 1
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 10
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`

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`1:12-cv-01017-JBM-JAG # 57-1 Page 11 of 12
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`CONCLUSION
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`Raptor has a significant interest in this lawsuit- whether the sale and manufacture of
`
`components incorporating the CapSure® system infringes the ESCO Patents. As the foremost
`
`expert on the CapSure® system, only Raptor can adequately represent that interest. Now is the
`
`appropriate time for Raptor to intervene. Allowing Raptor to do so will promote Rule 24's
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`central purpose- enhanced judicial efficiency and consistency. Raptor respectfully asks this
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`Court to grant its motion to intervene and continue as a party in this lawsuit.
`
`DATED this 26th day of October, 2012.
`
`Respectfully submitted,
`
`Colby B. Springer (Admission Forthcoming)
`CSpringer@LRLaw.com
`2440 W. El Camino Real, 6111 Floor
`Mountain View, CA 94040
`Telephone: (650) 391 -1380
`Facsimile: (650) 391 - 1495
`
`Attorneys for Intervenors
`
`11
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`3 16 1240.1
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 11
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`1:12-cv-01017-JBM-JAG # 57-1 Page 12 of 12
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`CERTIFICATE OF SERVICE
`
`I certify that on this 261h day of October, 20 12 a true and correct copy of the fo regoing
`
`MEMORANDUM IN SUPPORT OF RAPTOR MINING PRODUCTS INC. AND
`
`RAPTOR MINING PRODUCTS (USA) INC.'S MOTION TO INTERVENE was served via
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`the U.S. Distri ct Court fo r the Central District of Illinois' ECF Notification System upon the
`
`following counsel of record :
`
`Robert G. Abrams
`rabrams@bakerlaw.com
`Timothy L. Bertschy
`tbertschy@heylroyster.com
`Gregory J. Commins, Jr.
`gcommins@bakerlaw.com
`Edward II. Williams
`ehw illiams@ bakerlaw.com
`John M. Touhy
`jtouhy@bakerlaw.com
`John P. IIeil, Jr.
`jheil@heylroyster.com
`Gillian L. Whittlesey
`gwhi ttlcsey@bakerlaw .com
`
`Counsel for Caterpillar Inc.
`
`Louis DiSanto
`Craig D. Leavell
`clcavell@kirkland.com
`David G. Lubben
`dglubben@dcamplaw.com
`Binal J. Patel
`bpatel@bannerwitcoff.com
`Timothy J. Rcchtien
`ldisanto@bannerwitcoff.com
`Charles W. Shifley
`cshiflcy@bannerwitcoff.com
`Brian D. Sieve
`brian.sieve@kirkland.com
`
`Counsel for ESCO Corporation
`
`~.
`An Employee of Lewis~
`
`12
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`3161240.1
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 12
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`

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`1:12-cv-01017-JBM-JAG # 57-5 Page 1 of 2
`E-FILED
`
` Friday, 26 October, 2012 07:39:14 PM
` Clerk, U.S. District Court, ILCD
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
`PEORIA DIVISION
`
`CATERPILLAR INC.,
`
`Plaintiff,
`
`CASE NO. 12-cv-01017
`
`and
`
`RAPTOR MINING PRODUCTS INC., and
`
`RAPTOR MINING PRODUCTS (USA) INC.,
`
`Intervenors,
`
`vs.
`
`ESCO CORPORATION,
`
`Defendant.
`
`AND RELATED COUNTERCLAIMS
`
`I, Murray Smith, declare:
`
`DECLARATION OF MURRAY
`SMITH IN SUPPORT OF
`INTERVENORS' MOTION TO
`INTERVENE
`
`Hon. Joe Billy McDade
`
`Hon. John A. Gorman
`
`1.
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`1 am Director of Engineering of Proposed Plaintiffs Rap tor Mining Products Inc.
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`and Raptor Mining Products (USA) Inc. (collectively, "Raptor").
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`2.
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`3.
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`I have held this title since 2005 when I co-founded Raptor.
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`As pru1 of my responsibilities, I am responsible for overseeing the design of
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`components incorporating the CapSure® retention system ("CapSure® system").
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`4.
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`I have personal knowledge of the facts set forth herein and if called upon to
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`testify, I could and would competently testify thereto.
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`5.
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`Rap tor specializes in high performance wear components.
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`111'> 1?.4? I
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 13
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`1:12-cv-01017-JBM-JAG # 57-5 Page 2 of 2
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`6.
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`Raptor's principals invented the CapSure® system- a component used in ground-
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`engaging tools.
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`7.
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`Raptor is the foremost authority on the Cap Sure® system and is uniquely situated
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`to provide technical expertise on the CapSure® system.
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`8.
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`Raptor manufactures and sells components incorporating the CapSure® system to
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`authorized Caterpillar Inc. ("Caterpillar'') dealers.
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`9.
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`Nearly thirty-five percent ofRaptor's total sales directly comprise the CapSure®
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`system.
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`I 0.
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`Raptor generates consulting fees from Caterpillar for advising Caterpillar Inc. on
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`design changes and perfom1ing other vvork performed related to the CapSure® system.
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`11.
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`Raptor lcamed about this lawsuit between Caterpillar and ESCO Corporation in
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`the United States District Court for the Central District of Illinois on September 24, 201 2.
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`12.
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`Raptor moved swiftly to investigate the situation and prepare a strategy to protect
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`its interests.
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`13.
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`An adverse ruling for Caterpillar in this lawsuit would harm Raptor's business.
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`I declare under penalty of perjury under the Jaws of the United States and the State
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`of Ulinois that the foregoing is true and correct and that this declar tion was execut (j o
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`the 26th of October, 2012 in Barrie, Ontario, Canada.
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`Mm-ray Smith ;
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`2
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`J 158791 I
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`Caterpillar v. ESCO IPR2015-00409
`ESCO Exhibit 2011 Page 14
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