UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`Caterpillar, Inc.
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`Petitioner
`
`v.
`
`Wirtgen America, Inc.
`
`Patent Owner
`
`
`Patent No. 8,308,395
`
`
`Case No. IPR2018-01091
`
`
`DECLARATION OF MICHAEL W. NETKA
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`Page 1 of 23
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`CATERPILLAR EXHIBIT 1046
`CATERPILLAR v. WIRTGEN
`IPR2018-01091
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`Caterpillar, Inc.
`
`Petitioner
`
`v.
`
`Wirtgen America, Inc.
`
`Patent Owner
`
`
`Patent No. 8,308,395
`
`
`Case No. IPR2018-01091
`
`
`DECLARATION OF MICHAEL W. NETKA
`
`
`
`
`
`
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`Page 1 of 23
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`CATERPILLAR EXHIBIT 1046
`CATERPILLAR v. WIRTGEN
`IPR2018-01091
`
`
`
`
`
`
`I.
`
`I, Michael W. Netka, declare as follows:
`BACKGROUND
`I attended the University of Minnesota School of Business
`1.
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`Accounting from 1970 to 1973 and the Elkins Electronic Institute from 1976
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`to 1977. At the Elkins Electronic Institute, I obtained a certification of completion
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`for coursework in electronics theory, components, and servicing.
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`2.
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`I attended Hennepin Vocational Technical College from 1987 to 1990,
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`where I took courses in practical inspection and gauging, precision measurement,
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`geometric dimensioning and tolerancing, and design print interpretation, among
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`others.
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`3.
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`I attended Metropolitan State University from 1994 to 1999, where I
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`received a B.A. in Business Management.
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`4.
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`I worked at Raygo Machine Assembly from 1984 to 1988, where I
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`was responsible for machine sub-assembly for all Raygo products, including
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`vibratory soil compactors, vibratory asphalt compactors, asphalt pavers, asphalt
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`reclaimers, soil stabilizers, and profilers/cold planers. I joined Caterpillar Paving
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`Products Inc. (“Caterpillar”) in 1988 and worked there until 2013.
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`5.
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`At Caterpillar, I worked as a Quality Control Inspector from 1988 to
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`1990. In this position, I was responsible for in-process inspections during machine
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`assembly, test inspections, final inspections after paint, and final inspections before
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`shipment. These inspections covered vibratory soil compactors, vibratory asphalt
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`compactors, asphalt pavers, asphalt reclaimers, and profilers/cold planers. In 1990,
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`I became a Supervisor, Quality Control and worked in that position until 1993. As
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`a Supervisor, Quality Control, I oversaw Caterpillar’s Quality Control Group in
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`Minneapolis, Minnesota. This included overseeing inspections of incoming parts
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`for assembly, auditing matters, machine conformance tests, and final inspections
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`performed just before products were released for shipment. The Quality Control
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`Group in Minneapolis was responsible for Caterpillar’s vibratory asphalt
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`compactors, asphalt pavers, asphalt reclaimers, soil stabilizers, and profilers/cold
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`planers.
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`6.
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`During my employment in the quality control department at
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`Caterpillar (from 1988 to 1993), I was involved in the build process of cold planers
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`and other machines. In this capacity, I often provided the final signoff before a
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`machine was shipped from the Minneapolis plant. As part of this process, I ensured
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`that Caterpillar shipping requirements were met. This involved relying on
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`Caterpillar Factory Notification Lists (FNLs), which were standard-issued
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`Caterpillar documents that listed the manuals that had to be shipped with a
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`particular Caterpillar machine. I provide more detail on FNLs below. The types of
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`manuals listed on the FNLs included parts manuals and operation and maintenance
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`manuals. As part of my ordinary employment responsibilities, I would check the
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`cold planers before shipment to ensure that the manuals listed in the FNL were in
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`fact placed on the machine.
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`7.
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`I left my role as a Supervisor, Quality Control in 1993 and became an
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`Applications Engineer at Caterpillar, where I worked until 1996. I then served as a
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`Marketing and Sales Engineer from 1996 to 2000. In this position, I provided
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`operator and service training for Caterpillar’s PM-465 cold planer machines, as
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`well as other products. I also trained dealer personnel at dealerships and machine
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`operators at jobsites.
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`8.
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`From 2000 to 2007, I worked at Caterpillar as a Product Support
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`Manager. From 2007 to 2013, I served as Caterpillar’s Worldwide Product Support
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`Manager. Between 2000 and 2013, I oversaw the development of service
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`publications, training manuals, and owners/parts manuals for Caterpillar’s cold
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`planers, including the PM-465 machines. I was also responsible for post-sale
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`service and support for various Caterpillar products, including Caterpillar’s
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`PM-465 machines. Although I was no longer involved in the day-to-day activities
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`of the Quality Control group, I continued to interact with the Quality Control group
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`and was fully aware of their practices during this time period.
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`9.
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`During my employment at Caterpillar, I have personally delivered
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`numerous Caterpillar machines, including PM-465 cold planers, to Caterpillar
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`dealers throughout the United States. I have also assisted numerous Caterpillar
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`dealers with delivering Caterpillar machines, including PM-465 cold planers, to
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`their customers.
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`10. Additionally, I have operated PM-465 units at customer
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`demonstrations, trade shows, and on job sites. During my visits to the customer
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`demonstrations, trade shows, and customer/dealer job sites across the United
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`States, I often saw the Caterpillar manuals that were shipped with the PM-465
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`machines (i.e., the manuals listed in the FNLs that were placed in the operator’s
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`console before shipment). I have also provided service support throughout the
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`United States for numerous PM-465 units.
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`11. Through my roles at Caterpillar involving training, product support,
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`and oversight of product manuals, I gained intimate knowledge about which
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`manuals were available to customers and how those manuals were made available.
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`For example, the PM-465 had an Operation and Maintenance manual called the
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`PM-465 Cold Planer Operation & Maintenance Manual No. KEBU6879-01
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`(“PM-465 OMM,” Ex. 1037). This manual was not confidential. As explained in
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`more detail below, from 2000 to 2003, the PM-465 OMM would have been placed
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`in the console of every PM-465 shipped from our Minnesota manufacturing
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`facility.
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`12. The PM-465 also had new a grade-and-slope system designed in
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`house by Caterpillar. Until that time, cold planer manufacturers commonly used
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`third-party grade-and-slope systems from companies like Topcon and MOBA.
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`Because Caterpillar’s PM-465 grade-and-slope system was the first of its kind,
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`Caterpillar published a grade-and-slope manual called the PM-465 Cold Planer
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`Caterpillar Grade & Slope Electronic Control System, Systems Operation Testing
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`and Adjusting Manual (“PM-465 SOTA,” Ex. 1039). The manual is dated
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`December 1999 and was not confidential. The PM-465 SOTA was available to the
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`public from 2000 to 2003. For example, any Caterpillar customer could obtain the
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`PM-465 SOTA simply by requesting one from a Caterpillar dealer. Because the
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`grade-and-slope system in the PM-465 was new, I often discussed that system, as
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`well as the PM-465 SOTA describing that system, with customers from 2000 to
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`2003 in my role as a Product Support Manager.
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`13. During my employment at Caterpillar, I became familiar with
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`databases, applications, and asset tracking systems used to track sales and delivery
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`information.
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`Caterpillar can, and has, tracked the sale, shipment, and delivery of Caterpillar
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`products, including the PM-465 cold planers.
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`II.
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`PUBLIC ACCESIBILITY OF THE PM-465 OMM
`14. During my employment at Caterpillar, a corporate procedure was in
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`effect that required certain documents to be physically located on every cold planer
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`machine shipped from a Caterpillar factory. This corporate procedure applied to
`
`the PM-465 machine and its operation and maintenance manual (OMM), meaning
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`that an OMM was located on every PM-465 machine shipped.
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`15. At times, Caterpillar updated its machines and/or its manuals. For
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`example, the PM-465 Cold Planer Operation & Maintenance Manual
`
`No. KEBU6879-01 (“PM-465 OMM,” Ex. 1037) is a manual dated January 1999.
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`An updated version of this manual, i.e., the PM-465 Cold Planer Operation &
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`Maintenance Manual, No. KEBU6879-02 (Ex. 1038), issued later and bears a June
`
`2003 date. The corporate procedure described above drove a system that ensured
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`the correct version of each manual was shipped with each product.
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`16.
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`In particular, at least as of August 28, 1991, the operable corporate
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`procedure required employees to use a Factory Notification List (FNL) as a guide
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`for determining which manuals must be shipped with each product, including cold
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`planers. Ex. 1036 at 3. If a particular version of a manual was listed in an FNL, that
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`manual had to be physically shipped with the product. Id. Put differently, after
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`August 28, 1991 corporate procedure required employees to include the technical
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`information specified by an FNL in every product, including any PM-465 cold
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`planer, shipped to customers from the Caterpillar factory. Id.
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`17. This document references and relies on select FNLs. Caterpillar
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`employees, including myself, use and have used FNLs such as these to ensure that
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`the correct manuals, including operation and maintenance manuals, were
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`distributed with Caterpillar machines.
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`18. As mentioned, the PM-465 Cold Planer Operation & Maintenance
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`Manual No. KEBU6879-01 (“PM-465 OMM,” Ex. 1037) is dated January 1999.
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`The PM-465 Cold Planer Operation & Maintenance Manual, No. KEBU6879-02
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`(Ex. 1038) is dated June 2003. Thus, any PM-465 cold planer shipped during the
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`time period May 2000 to March 2003 would have included the PM-465 OMM
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`manual having version no. KEBU6879-01 in the operator’s console. (The
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`KEBU6879-02 version of that manual had not issued yet.)
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`19.
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`In the table below, I provide exemplary invoice information showing
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`sales and shipments of PM-465 cold planers manufactured in Caterpillar’s
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`Minnesota factory. See, e.g., Exs. 1025-1035. The sale and shipment dates I rely on
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`all fall between May 2000 and March 2003. The invoice information identifies the
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`transaction date, shipping date, customer who made the purchase, and purchase
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`price for the relevant PM-465 cold planer transaction. The invoice information
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`described in this paragraph constitutes Caterpillar business records and was created
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`by Caterpillar during the ordinary course of business.
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`20.
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`I also include in Table 1 below select FNLs. These FNLs, which are
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`also Caterpillar business records created by Caterpillar during the ordinary course
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`of business, show which versions of the Caterpillar manuals accompanied the
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`PM-465 cold planer at a particular time. The table below pairs each invoice with
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`the specific FNL that governed at the relevant time. For example, for the PM-465
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`machine that shipped from Caterpillar to
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` on December 22,
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`2000 (Ex. 1027) is paired with the December 2000 FNL (Ex. 1018) because that
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`was the governing FNL when the shipment was made.
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`Corresponding FNL
`PM-465
`Invoice
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`
`
`Exhibit
`Machine
`Date Shipped from
`and Exhibit No.
`
`No.
`Serial
`CATFactory to
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`
`
`Customer
`Numberon
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`
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`
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`the Invoice
` Ex. 1016
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`
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`(1/19/2001)
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`(3/27/2001)
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`
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`(1/21/2002)
`FNL dated November
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`2002 (Ex. 1023)
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`
`
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`(3/6/2003)
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`(5/8/2000)
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`(11/9/2000)
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`2000 (Ex. 1017
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`(12/22/2000)
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`2000 (Ex. 1018
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`Ex. 1019
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`Ex. 1020
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`Ex. 1021
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`Ex. 1021
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`Ex. 1022
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`(7/17/2001)
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`(7/31/2001)
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`(11/20/2002)
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`Table 1
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`Ex. 1033
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`5ZS000186
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`Ex. 1034
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`5ZS000187
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`Ex. 1035
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`5ZS000188
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`(3/6/2003)
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`Ex. 1024
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`FNL dated March 2003
`(Ex. 1024)
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`21.
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`Each one of the FNLslisted in Table 1 states on its first page “The
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`FNL identifies the operation and maintenance or owner manual and parts manual
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`publications that must be furnished with each product as a condition of shipment
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`from the factory.” See e.g. Exs. 1016-1024 at 1 (emphasis in original). Each one of
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`these FNLs listed in Table 1 also shows that the KEBU6879-01, PM-465 manual
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`was the version of the operation and maintenance manual that shipped with the
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`PM-465 machine. Ex. 1016 at 8; Exs. 1017-1022 at 7; Exs. 1023-1024 at 9. Thus,
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`for all transactions described in Table 1, the PM-465 machine that shipped did so
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`with the KEBU6879-01 version of the PM-465 OMM (Ex. 1037) physically
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`located on the machine. Put differently, between May 2000 and March 2003, for
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`all PM-465 sales and deliveries within the United States, the KEBU6879-01,
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`PM-465 manual would have been shipped with the machine (since all PM-465
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`machines sold in the United States were made in Caterpillar’s Minnesota
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`manufacturing facility). The FNL and invoice information presented above shows
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`that the KEBU6879-01, PM-465 OMM manual (Ex. 1037) was accessible to the
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`public, including those in the road construction field.
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`22. Moreover, the KEBU6879-01, PM-465 OMM manual applied to any
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`PM-465 machine having serial numbers beginning with 5ZS. Ex. 1037, Cover
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`Page (stating “5ZS1-UP”). All of the machines listed in Table 1 above have serial
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`numbers that begin with 5ZS. This additional evidence further shows that each of
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`the machines listed in Table 1 would have come with the KEBU6879-01, PM-465
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`OMM manual located on it (in the operator’s console).
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`23. The PM-465 OMM states that “[t]his manual should be stored in the
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`operator’s compartment in the literature holder or seat back literature storage area.”
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`Ex. 1037 at 2. It also states: “Read, study and keep this manual with the machine.”
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`Ex. 1037 at 2. Thus, the PM-465 OMM described above was intended to be
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`physically kept with the machines at all times, even after the machines were
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`distributed to the public.
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`24.
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`I have seen PM-465 machines stay in circulation for many years.
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`Companies often sell or rent PM-465 machines to other companies on the
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`secondary market. Thus, KEBU6879-01, PM-465 manual included on PM-465
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`machines that were shipped and delivered between May 2000 and March 2003
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`often remained available to the public (including those in the road construction
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`field) even after the initial ship date of a particular machine.
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`25. Not only was the KEBU6879-01, PM-465 OMM manual shipped with
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`all purchased PM-465 cold planers during May 2000 to March 2003, the PM-465
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`OMM was also available to anyone who wanted to purchase and/or use a PM-465
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`cold planer (e.g., road construction companies, technicians, machine operators,
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`engineers, crew supervisors, etc. and others in the road construction field)
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`26. Moreover, Caterpillar manuals are, and have been available to the
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`public (including those in the road construction field) for years, through Caterpillar
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`dealers at a cost, even when a cold planer has not been purchased. In other words,
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`any person―e.g., a person interested in and knowledgeable about cold planer
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`machines―could have purchased the PM-465 OMM manual from any Caterpillar
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`dealer between May 2000 and March 2003. Caterpillar had no company policy
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`between May 2000 and March 2003 preventing its dealers from distributing
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`manuals, including manuals such as PM-465 OMM. No such policy existed after
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`that time either. In my experience, Caterpillar manuals, including PM-465 OMM
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`manual, were shared without restriction and were often available on the secondary
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`market.
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`27. Between May 2000 and March 2003, Caterpillar had over fifty (50)
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`dealers in the United States, all of whom had permission and authority to provide
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`the PM-465 OMM manual to the public. The information above shows that the
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`PM-465 OMM manual (Ex. 1037) was accessible to the public, including those in
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`the road construction field.
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`III. PUBLIC ACCESIBILITY OF PM-465 SOTA
`28. The PM-465 Cold Planer Caterpillar Grade & Slope Electronic
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`Control System, Systems Operation Testing and Adjusting Manual (“PM-465
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`SOTA,” Ex. 1039) is dated December 1999. The PM-465 SOTA provides
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`additional details regarding the grade and slope control system described in the
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`PM-465 OMM manual.
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`29. Although PM-465 SOTA manual was not automatically shipped with
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`the machine per corporate policy (as was the PM-465 OMM), a customer could
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`obtain this manual from any Caterpillar dealer in the United States. Thus, the
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`PM-465 SOTA manual described above was intended to be generally available to
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`the public (including to those in the road construction field) through Caterpillar
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`dealers.
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`30. Moreover, Caterpillar manuals are, and have been available to the
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`public (including those in the road construction field) for years, through Caterpillar
`
`dealers at a cost, even when a cold planer has not been purchased. In other words,
`
`any person―e.g., a person interested in and knowledgeable about cold planer
`
`machines―could have purchased the PM-465 SOTA manual from any Caterpillar
`
`dealer between May 2000 and March 2003. Caterpillar had no company policy
`
`between May 2000 and March 2003 preventing its dealers from distributing
`
`manuals, including manuals such as PM-465 SOTA manual No such policy existed
`
`after that time either. In my experience, Caterpillar manuals, including PM-465
`
`SOTA manual, were shared without restriction and were often available on the
`
`secondary market (including to those in the road construction field).
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`31. Between May 2000 and March 2003, Caterpillar had over fifty (50)
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`dealers in the United States, all of which had permission and authority to provide
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`the PM-465 SOTA manual to the public. The information above shows that the
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`PM-465 SOTA manual (Ex. 1039) was accessible to the public, including those in
`
`the road construction field.
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`32.
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`I worked numerous hours for Caterpillar on product support, service,
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`and repair issues for cold planers. I have seen how important it is for customers
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`(including contractors) to be able to repair broken components on road milling
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`machines quickly so that machine downtime can be avoided. To ensure that
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`machines remain operable, contractors frequently staffed their own service
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`technicians. I and others at Caterpillar have worked with these service technicians
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`to ensure that the technicians were equipped with the necessary knowledge to
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`identify problems and make the necessary repairs to Caterpillar machines,
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`including the PM-465.
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`33. While some cold planers used grade-and-slope systems made by third
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`parties, Caterpillar developed its own grade-and-slope system for the PM-465.
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`Accordingly, I and/or others at Caterpillar spent considerable time from 2000 to
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`2003 (and before) assisting contractors’ technicians on how to operate and repair
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`Caterpillar’s grade-and-slope system for the PM-465 machine. In my experience,
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`these technicians were often skilled at operating and identifying problems with the
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`Caterpillar grade-and-slope system on the PM-465 machine, and in repairing the
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`system when broken, including broken sensors used by the system. The PM-465
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`OMM (Ex. 1037) and PM-465 SOTA manual (Ex. 1039) were available to these
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`technicians from 2000 to 2003 as they performed their service and repair work.
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`IV. COLD PLANER SENSORS SENSOR FAILURE ISSUES
`I have also been asked to provide my opinions regarding sensors and
`34.
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`control systems on cold planers prior to April 27, 2006.
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`35.
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`In my experience, there is a tremendous amount of industry crossover
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`in technologies implemented on construction machines designed for use with dirt,
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`asphalt, and concrete. For example, because these machines typically operate to
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`achieve a desired grade and/or slope of the finished surface, the control systems
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`and sensors on these machines share numerous commonalities. The same type of
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`grade and slope sensors are routinely implemented on cold planers, motor graders,
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`pavers, dirt trimers, and reclaimers. Grade and slope control systems having
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`similar features and capabilities are also routinely implemented on all of these
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`machines.
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`36. Like me, many of my colleagues worked on more than one project
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`within Caterpillar. For example, it was routine for engineers to work on motor
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`graders or pavers and then transfer over to work on cold planers or vice-versa. As a
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`result, I observed that engineers routinely implemented design ideas and
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`technologies developed for one type of construction equipment (e.g. motor grader)
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`on a different type of machine (e.g. cold planer). Such cross-proliferation of
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`technologies was routine within Caterpillar. As a specific example, the grade and
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`slope control system implemented on the PM-465 cold planer was initially
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`developed for Caterpillar’s motor graders and later repurposed for use on the
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`PM-465 cold planers.
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`37.
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`I have reviewed the declaration (Ex. 2008) provided by Mr. Jan
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`Schmidt of Wirtgen America, Inc. in this proceeding. As I explain in more detail
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`below, I disagree with several of Mr. Schmidt’s opinions.
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`38. My opinions are based on my over 5000 hours of personal experience
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`in operating cold planers, using sensors and control systems on those cold planers,
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`and my interactions with contractors and machine operators of cold planers at
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`various job sites around the United States.
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`39. Mr. Schmidt stated that sensor failure was not a significant concern in
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`road milling machine operation. Ex. 2008 at¶ 30. I disagree.
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`40. Although the sensors used on milling machines are designed to work
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`in the construction environment, they can and do fail or malfunction.
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`41. Various types of contact and non-contact grade sensors are used in
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`road milling operations. Contact sensors may include wire rope sensors, external
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`skis that follow a curb or a stringline, or ground contact sensors that have rollers or
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`wheels that travel on a curb adjacent to the milled surface. As I discussed above, I
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`have personally operated cold planers on a variety of job sites throughout the
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`United States. I have also observed firsthand the failure of contact type grade
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`sensors on numerous occasions. In particular, I have observed separation of the
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`wire ropes from the spools, and breakage of or damage to the skis or wheels on
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`ground contact sensors.
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`42. Like the contact type grade sensors, non-contact grade sensors often
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`malfunctioned or failed during milling operations. Non-contact sensors may
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`include sonic grade sensors, laser sensors, GPS sensors, inertial sensors, and slope
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`sensors. Sonic sensors are typically mounted on the sides of the cold planer and
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`detect a distance of the mounting surface from the ground based on reflections of
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`sound waves. Sonic sensors produce erroneous readings if there is excessive dust
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`or debris between the sensor and the ground. Such sensors also produce erroneous
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`readings as a result of changes in temperature, which affects the density of air
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`between the sensor and the ground surface. Sonic sensors are often damaged by
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`debris or by coming in contact with obstructions (e.g. poles, walls, embankments,
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`etc.) on the job site.
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`43. Like sonic sensors, laser sensors are also typically mounted on a side
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`of the machine and detect a distance from, for example, a laser plane generated by
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`a rotatable reference laser beam. Laser sensors produce faulty readings when, for
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`example, the laser beam is obscured. Laser beams may be blocked by various types
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`of obstructions such as reflecting surfaces, passing traffic, trees, buildings,
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`machines or equipment on the job site, or even personnel on the job site. Thus,
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`laser sensors can and do fail both on outdoor (e.g. open roadways) and indoor
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`locations (e.g. within covered parking structures). Similarly, slope sensors provide
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`erroneous readings and can fail due to internal component failures of the slope
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`sensing mechanism or due to failure of the connecting wire harness. I have
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`personally observed failure of sonic grade sensors, laser sensors, and slope sensors
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`on milling machines.
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`44. Mr. Schmidt stated that if a slope sensor failed for some reason, an
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`operator would want to stop the milling job. Ex. 2008 at¶ 30. I disagree.
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`45. Repairing or building a roadway usually involves removal of the
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`existing asphalt using a cold planer and subsequently repaving the road using new
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`asphalt. The milling operation is typically performed by a contractor who owns and
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`operates the cold planer. Cold planers are expensive machines and as a result
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`milling contractors want to maximize the utilization of these machines. Therefore,
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`a milling contractor assigned to complete milling of a particular stretch of road is
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`highly motivated to finish the job so that the machine may be redeployed to
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`another job at the same or different location.
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`46. Stopping milling operations, as Mr. Schmidt suggests, would delay or
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`postpone completion of a milling job, which in turn may affect subsequently
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`scheduled jobs for the milling machine or for a paver. Often road construction
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`projects must be completed within a short period of time, for example, overnight to
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`allow vehicular traffic access to the road the following morning. In such situations,
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`a paver typically follows the milling machine and deposits new asphalt on the
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`milled roadway surface. The asphalt deposited by the paver is typically maintained
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`at a high temperature and must be deposited on the roadway surface while the
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`asphalt temperature is within a certain range. If the asphalt cannot be deposited on
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`the roadways surface in time, the asphalt temperature may drop below the desired
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`range and the asphalt may no longer be usable. Thus, stopping milling operations
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`can impact subsequent operations such as paving and may lead to significant
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`economic and material losses to the paving contractor.
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`47.
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`It has been my experience, therefore, that milling contractors typically
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`do not want to delay, postpone, or cancel previously scheduled milling jobs
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`because of sensor failure. Instead, I have observed that the milling contractors
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`typically want to complete a milling job as scheduled and address repair and/or
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`maintenance issues, including those associated with sensors, at the end of the
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`workday or between jobs when the cold planer is idle.
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`48.
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`I note that cold planers prior to 2006 already utilized milling drums
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`rigidly attached to a machine frame. Thus, on these machines, the slope of the
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`milling drum was directly related to the height of the machine frame relative to the
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`roadway surface on either side of the machine. In other words, it was possible to
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`control the orientation (i.e. depth of cut and slope) of the milling drum either by
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`controlling the height of the frame on both sides of the machine or by controlling
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`the height on one side and the slope of the frame. Therefore, in the event of a
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`malfunction or failure of a slope sensor, it was possible to continue milling
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`operations by using grade sensors on both sides of the machine to control the slope
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`of the milling drum. In my opinion, a milling contractor would be motivated to
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`continue milling operations using an alternate grade sensor instead of the failed
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`slope sensor. Further, it is my opinion that doing so would still produce a milled
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`surface meeting the desired quality specifications.
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`49.
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`I have personally observed milling contractors continue milling
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`operations by using an alternate grade sensor when they encountered a slope sensor
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`failure. I have also performed milling operations by switching to an alternate grade
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`sensor on encountering a failed slope sensor.
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`50. There may be limited road configurations in which it may be difficult
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`to continue milling operations without a functioning slope sensor. For example, it
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`may be difficult to perform milling operations on highly banked roadway portions
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`without a slope sensor. Even in these situations, I have observed milling
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`contractors continue to conduct milling operations by using alternate grade sensors.
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`In fact, using grade sensors to mill highly banked roadway sections was routine
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`practice well before electronic grade and slope sensors were developed. Thus,
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`except in very specific circumstances, I have observed that milling operators will
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`typically continue to perform milling operations by switching to an alternate
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`available grade sensor when they encounter a slope sensor failure.
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`51. Mr. Schmidt opined that it would be impractical to continue a road
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`milling operation if specific grade sensors failed. Ex. 2008 at ¶ 30. I disagree.
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`52. As I mentioned above, milling contractors are highly motivated to
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`complete a milling job so that the milling machine can be utilized for subsequently
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`scheduled projects. Therefore, in my experience, a milling operator typically would
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`continue to operate the milling machine by switching to an available slope sensor if
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`one of the grade sensors failed or malfunctioned. As I explained above, because of
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`the rigid attachment of the milling drum to the machine frame, it is possible to
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`control the grade and slope of the milling drum by using a combination of grade
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`and slope sensors. I have personally observed milling contractors continue milling
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`operations by using an alternate slope sensor when they encountered a grade sensor
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`failure. I have also performed milling operations by switching to an alternate slope
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`sensor on encountering a failed grade sensor.
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`V.
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`DECLARATION
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`I declare that all statements made herein of my knowledgearetrue
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`53.
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`andthat all statements made on information and belief are believed to be true; and
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`further, that these statements were made with knowledgethat willful false
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`statements andthe like so made are punishable by fine or imprisonment, or both,
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`under 18 U.S.C. § 1001.
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`I declare underpenalty of perjury underthe lawsof the United States
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`54.
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`of America that the foregoing is true and correct.
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`55.
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`In signing this declaration, I understandthat the declaration will be
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`filed as evidence in a contested case before the Patent Trial and Appeal Board of
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`the United States Patent and Trademark Office. I acknowledge that I may be
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`subject to cross-examination in the case and that cross-examinationwill take place
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`within the United States. If cross-examination is required of me, I will appear for
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`cross-examination within the United States during the timeallotted for
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`cross-examination.
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`Executed on this lst day of June 2019.
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`a
`aA fi Bo port
`By:_4 Lethd fii PAX CH
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