UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`Caterpillar, Inc.
`
`Petitioner
`
`v.
`
`Wirtgen America, Inc.
`
`Patent Owner
`
`
`Patent No. 9,879,390
`
`
`Case No. IPR2022-01264
`
`
`DECLARATION OF MICHAEL W. NETKA
`
`
`
`
`
`
`
`
`
`CATERPILLAR EXHIBIT 1020
`
`Page 1 of 22
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`Caterpillar, Inc.
`
`Petitioner
`
`v.
`
`Wirtgen America, Inc.
`
`Patent Owner
`
`
`Patent No. 9,879,390
`
`
`Case No. IPR2022-01264
`
`
`DECLARATION OF MICHAEL W. NETKA
`
`
`
`
`
`
`
`
`
`CATERPILLAR EXHIBIT 1020
`
`Page 1 of 22
`
`
`
`
`
`I.
`
`I, Michael W. Netka, declare as follows:
`BACKGROUND
`I attended the University of Minnesota School of Business
`1.
`
`Accounting from 1970 to 1973 and the Elkins Electronic Institute from 1976
`
`to 1977. At the Elkins Electronic Institute, I obtained a certification of completion
`
`for coursework in electronics theory, components, and servicing.
`
`2.
`
`I attended Hennepin Vocational Technical College from 1987 to 1990,
`
`where I took courses in practical inspection and gauging, precision measurement,
`
`geometric dimensioning and tolerancing, and design print interpretation, among
`
`others.
`
`3.
`
`I attended Metropolitan State University from 1994 to 1999, where I
`
`received a B.A. in Business Management.
`
`4.
`
`I worked at Raygo Machine Assembly from 1984 to 1988, where I
`
`was responsible for machine sub-assembly for all Raygo products, including
`
`vibratory soil compactors, vibratory asphalt compactors, asphalt pavers, asphalt
`
`reclaimers, soil stabilizers, and profilers/cold planers. I joined Caterpillar Paving
`
`Products Inc. (“Caterpillar”) in 1988 and worked there until 2013.
`
`5.
`
`At Caterpillar, I worked as a Quality Control Inspector from 1988 to
`
`1990. In this position, I was responsible for in-process inspections during machine
`
`assembly, test inspections, final inspections after paint, and final inspections before
`
`1
`
`Page 2 of 22
`
`
`
`
`
`shipment. These inspections covered vibratory soil compactors, vibratory asphalt
`
`compactors, asphalt pavers, asphalt reclaimers, and profilers/cold planers. In 1990,
`
`I became a Supervisor, Quality Control and worked in that position until 1993. As
`
`a Supervisor, Quality Control, I oversaw Caterpillar’s Quality Control Group in
`
`Minneapolis, Minnesota. This included overseeing inspections of incoming parts
`
`for assembly, auditing matters, machine conformance tests, and final inspections
`
`performed just before products were released for shipment. The Quality Control
`
`Group in Minneapolis was responsible for Caterpillar’s vibratory asphalt
`
`compactors, asphalt pavers, asphalt reclaimers, soil stabilizers, and profilers/cold
`
`planers.
`
`6.
`
`During my employment in the quality control department at
`
`Caterpillar (from 1988 to 1993), I was involved in the build process of cold planers
`
`and other machines. In this capacity, I often provided the final signoff before a
`
`machine was shipped from the Minneapolis plant. As part of this process, I ensured
`
`that Caterpillar shipping requirements were met. This involved relying on
`
`Caterpillar Factory Notification Lists (FNLs), which were standard-issued
`
`Caterpillar documents that listed the manuals that had to be shipped with a
`
`particular Caterpillar machine. I provide more detail on FNLs below. The types of
`
`manuals listed on the FNLs included parts manuals and operation and maintenance
`
`manuals. As part of my ordinary employment responsibilities, I would check the
`
`2
`
`Page 3 of 22
`
`
`
`
`
`cold planers before shipment to ensure that the manuals listed in the FNL were in
`
`fact placed on the machine.
`
`7.
`
`I left my role as a Supervisor, Quality Control in 1993 and became an
`
`Applications Engineer at Caterpillar, where I worked until 1996. I then served as a
`
`Marketing and Sales Engineer from 1996 to 2000. In this position, I provided
`
`operator and service training for Caterpillar’s PM-465 cold planer machines, as
`
`well as other products. I also trained dealer personnel at dealerships and machine
`
`operators at jobsites.
`
`8.
`
`From 2000 to 2007, I worked at Caterpillar as a Product Support
`
`Manager. From 2007 to 2013, I served as Caterpillar’s Worldwide Product Support
`
`Manager. Between 2000 and 2013, I oversaw the development of service
`
`publications, training manuals, and owners/parts manuals for Caterpillar’s cold
`
`planers, including the PM-465 machines. I was also responsible for post-sale
`
`service and support for various Caterpillar products, including Caterpillar’s
`
`PM-465 machines. Although I was no longer involved in the day-to-day activities
`
`of the Quality Control group, I continued to interact with the Quality Control group
`
`and was fully aware of their practices during this time period.
`
`9.
`
`During my employment at Caterpillar, I have personally delivered
`
`numerous Caterpillar machines, including PM-465 cold planers, to Caterpillar
`
`dealers throughout the United States. I have also assisted numerous Caterpillar
`
`3
`
`Page 4 of 22
`
`
`
`
`
`dealers with delivering Caterpillar machines, including PM-465 cold planers, to
`
`their customers.
`
`10. Additionally, I have operated PM-465 units at customer
`
`demonstrations, trade shows, and on job sites. During my visits to the customer
`
`demonstrations, trade shows, and customer/dealer job sites across the United
`
`States, I often saw the Caterpillar manuals that were shipped with the PM-465
`
`machines (i.e., the manuals listed in the FNLs that were placed in the operator’s
`
`console before shipment). I have also provided service support throughout the
`
`United States for numerous PM-465 units.
`
`11. Through my roles at Caterpillar involving training, product support,
`
`and oversight of product manuals, I gained intimate knowledge about which
`
`manuals were available to customers and how those manuals were made available.
`
`For example, the PM-465 had an Operation and Maintenance manual called the
`
`PM-465 Cold Planer Operation & Maintenance Manual No. KEBU6879-01
`
`(“PM-465 OMM,” Ex. 1002). This manual was not confidential. As explained in
`
`more detail below, from 2000 to 2003, the PM-465 OMM would have been placed
`
`in the console of every PM-465 shipped from our Minnesota manufacturing
`
`facility.
`
`12. The PM-465 also had a new sensor-driven, grade-and-slope control
`
`system designed in house by Caterpillar. Until that time, cold planer manufacturers
`
`4
`
`Page 5 of 22
`
`
`
`
`
`commonly used third-party grade-and-slope systems from companies like Topcon
`
`and MOBA. Because Caterpillar’s PM-465 grade-and-slope system was the first of
`
`its kind, Caterpillar published a grade-and-slope manual called the PM-465 Cold
`
`Planer Caterpillar Grade & Slope Electronic Control System, Systems Operation
`
`Testing and Adjusting Manual (“PM-465 SOTA,” Ex. 1003). The manual is dated
`
`December 1999 and was not confidential. The PM-465 SOTA was available to the
`
`public from 2000 to 2003. For example, any Caterpillar customer could obtain the
`
`PM-465 SOTA simply by requesting one from a Caterpillar dealer. Because the
`
`grade-and-slope system in the PM-465 was new, I often discussed that system, as
`
`well as the PM-465 SOTA describing that system, with customers from 2000 to
`
`2003 in my role as a Product Support Manager.
`
`13. During my employment at Caterpillar, I became familiar with
`
`databases, applications, and asset tracking systems used to track sales and delivery
`
`information.
`
`
`
`
`
`
`
`
`
`
`
`
`
`5
`
`Page 6 of 22
`
`
`
`
`
`Caterpillar can, and has, tracked the sale, shipment, and delivery of Caterpillar
`
`products, including the PM-465 cold planers.
`
`II.
`
`PUBLIC ACCESIBILITY OF THE PM-465 OMM
`14. During my employment at Caterpillar, a corporate procedure was in
`
`effect that required certain documents to be physically located on every cold planer
`
`machine shipped from a Caterpillar factory. This corporate procedure applied to
`
`the PM-465 machine and its operation and maintenance manual (OMM), meaning
`
`that an OMM was located on every PM-465 machine shipped.
`
`15. At times, Caterpillar updated its machines and/or its manuals. For
`
`example, the PM-465 Cold Planer Operation & Maintenance Manual
`
`No. KEBU6879-01 (“PM-465 OMM,” Ex. 1002) is a manual dated January 1999.
`
`The corporate procedure described above drove a system that ensured the correct
`
`version of each manual was shipped with each product.
`
`16.
`
`In particular, at least as of August 28, 1991, the operable corporate
`
`procedure required employees to use a Factory Notification List (FNL) as a guide
`
`for determining which manuals must be shipped with each product, including cold
`
`planers. Ex. 1036 at 3. If a particular version of a manual was listed in an FNL, that
`
`manual had to be physically shipped with the product. Id. Put differently, after
`
`August 28, 1991 corporate procedure required employees to include the technical
`
`6
`
`Page 7 of 22
`
`
`
`
`
`information specified by an FNL in every product, including any PM-465 cold
`
`planer, shipped to customers from the Caterpillar factory. Id.
`
`17. This document references and relies on select FNLs. Caterpillar
`
`employees, including myself, use and have used FNLs such as these to ensure that
`
`the correct manuals, including operation and maintenance manuals, were
`
`distributed with Caterpillar machines.
`
`18. As mentioned, the PM-465 Cold Planer Operation & Maintenance
`
`Manual No. KEBU6879-01 (“PM-465 OMM,” Ex. 1002) is dated January 1999.
`
`Any PM-465 cold planer shipped from May 2000 to March 2003 would have
`
`included the PM-465 OMM manual having version no. KEBU6879-01 in the
`
`operator’s console.
`
`19.
`
`In the table below, I provide exemplary invoice information showing
`
`sales and shipments of PM-465 cold planers manufactured in Caterpillar’s
`
`Minnesota factory. See, e.g., Exs. 1025-1035. The sale and shipment dates I rely on
`
`all fall between May 2000 and March 2003. The invoice information identifies the
`
`transaction date, shipping date, customer who made the purchase, and purchase
`
`price for the relevant PM-465 cold planer transaction. The invoice information
`
`described in this paragraph constitutes Caterpillar business records and was created
`
`by Caterpillar during the ordinary course of business.
`
`7
`
`Page 8 of 22
`
`
`
`
`
`20.
`
`I also include in Table 1 below select FNLs. These FNLs, which are
`
`also Caterpillar business records created by Caterpillar during the ordinary course
`
`of business, show which versions of the Caterpillar manuals accompanied the
`
`PM-465 cold planer at a particular time. The table below pairs each invoice with
`
`the specific FNL that governed at the relevant time. For example, for the PM-465
`
`machine that shipped from Caterpillar to
`
` on December 22,
`
`2000 (Ex. 1040) is paired with the December 2000 FNL (Ex. 1027) because that
`
`was the governing FNL when the shipment was made.
`
`8
`
`Page 9 of 22
`
`
`
`
`
`
`Corresponding FNL
`PM-465
`Invoice
`
`
`
`Exhibit
`Machine
`Date Shipped from
`and Exhibit No.
`
`No.
`Serial
`CATFactory to
`
`
`
`Customer
`Numberon
`
`
`
`
`
`the Invoice
` Ex. 1025
`
`
`
`
`
`(1/19/2001)
`
`
`(3/27/2001)
`
`
`
`(1/21/2002)
`FNL dated November
`
`
`2002 (Ex. 1033)
`
`
`
`
`(3/6/2003)
`
`(5/8/2000)
`
`(11/9/2000)
`
`2000 (Ex. 1026
`
`(12/22/2000)
`
`2000 (Ex. 1027
`
`Ex. 1028
`
`Ex. 1029
`
`Ex. 1030
`
`Ex. 1030
`
`Ex. 1032
`
`(7/17/2001)
`
`(7/31/2001)
`
`(11/20/2002)
`
`Table 1
`
`Ex. 1046
`
`5ZS000186
`
`Ex. 1047
`
`5ZS000187
`
`Ex. 1048
`
`5ZS000188
`
`(3/6/2003)
`
`Ex. 1034
`
`FNL dated March 2003
`(Ex. 1034)
`
`
`
`21. Each one of the FNLslisted in Table1states on its first page “The
`
`FNL identifies the operation and maintenance or owner manual and parts manual
`
`publications that must be furnished with each product as a condition of shipment
`
`from the factory.” See e.g. Exs. 1026-1034 at 1 (emphasis in original). Each one of
`
`Page 10 of 22
`
`Page 10 of 22
`
`
`
`
`
`these FNLs listed in Table 1 also shows that the KEBU6879-01, PM-465 manual
`
`was the version of the operation and maintenance manual that shipped with the
`
`PM-465 machine. Ex. 1026 at 8; Exs. 1027-1032 at 7; Exs. 1033-1034 at 9. Thus,
`
`for all transactions described in Table 1, the PM-465 machine that shipped did so
`
`with the KEBU6879-01 version of the PM-465 OMM (Ex. 1002) physically
`
`located on the machine. Put differently, between May 2000 and March 2003, for
`
`all PM-465 sales and deliveries within the United States, the KEBU6879-01,
`
`PM-465 manual would have been shipped with the machine (since all PM-465
`
`machines sold in the United States were made in Caterpillar’s Minnesota
`
`manufacturing facility). The FNL and invoice information presented above shows
`
`that the KEBU6879-01, PM-465 OMM manual (Ex. 1002) was accessible to the
`
`public, including those in the road construction field.
`
`22. Moreover, the KEBU6879-01, PM-465 OMM manual applied to any
`
`PM-465 machine having serial numbers beginning with 5ZS. Ex. 1002, Cover
`
`Page (stating “5ZS1-UP”). All of the machines listed in Table 1 above have serial
`
`numbers that begin with 5ZS. This additional evidence further shows that each of
`
`the machines listed in Table 1 would have come with the KEBU6879-01, PM-465
`
`OMM manual located on it (in the operator’s console).
`
`23. The PM-465 OMM states that “[t]his manual should be stored in the
`
`operator’s compartment in the literature holder or seat back literature storage area.”
`
`10
`
`Page 11 of 22
`
`
`
`
`
`Ex. 1002 at 2. It also states: “Read, study and keep this manual with the machine.”
`
`Ex. 1002 at 2. Thus, the PM-465 OMM described above was intended to be
`
`physically kept with the machines at all times, even after the machines were
`
`distributed to the public.
`
`24.
`
`I have seen PM-465 machines stay in circulation for many years.
`
`Companies often sell or rent PM-465 machines to other companies on the
`
`secondary market. Thus, KEBU6879-01, PM-465 manual included on PM-465
`
`machines that were shipped and delivered between May 2000 and March 2003
`
`often remained available to the public (including those in the road construction
`
`field) even after the initial ship date of a particular machine.
`
`25. Not only was the KEBU6879-01, PM-465 OMM manual shipped with
`
`all purchased PM-465 cold planers during May 2000 to March 2003, the PM-465
`
`OMM was also available to anyone who wanted to purchase and/or use a PM-465
`
`cold planer (e.g., road construction companies, technicians, machine operators,
`
`engineers, crew supervisors, etc. and others in the road construction field).
`
`26. Moreover, Caterpillar manuals are, and have been available to anyone
`
`in the 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 OMM manual from any
`
`11
`
`Page 12 of 22
`
`
`
`
`
`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 OMM. No such policy existed after
`
`that time either. In my experience, Caterpillar manuals, including PM-465 OMM
`
`manual, were shared without restriction and were often available on the secondary
`
`market.
`
`27. Between May 2000 and March 2003, Caterpillar had over fifty (50)
`
`dealers in the United States, all of whom had permission and authority to provide
`
`the PM-465 OMM manual to the public. The information above shows that the
`
`PM-465 OMM manual (Ex. 1002) was accessible to the public, including those in
`
`the road construction field.
`
`III. PUBLIC ACCESIBILITY OF PM-465 SOTA
`28. The PM-465 Cold Planer Caterpillar Grade & Slope Electronic
`
`Control System, Systems Operation Testing and Adjusting Manual (“PM-465
`
`SOTA,” Ex. 1003) is dated December 1999. The PM-465 SOTA provides
`
`additional details regarding the PM-465’s sensor-driven, grade and slope control
`
`system.
`
`29. Although PM-465 SOTA manual was not automatically shipped with
`
`the machine per corporate policy (unlike the PM-465 OMM), a customer could
`
`obtain this manual from any Caterpillar dealer in the United States. Thus, the
`
`12
`
`Page 13 of 22
`
`
`
`
`
`PM-465 SOTA manual described above was intended to be generally and widely
`
`available to the public (including customers in the road construction field) through
`
`Caterpillar dealers.
`
`30. Moreover, Caterpillar manuals are, and have been available to anyone
`
`in the 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).
`
`31. Between May 2000 and March 2003, Caterpillar had over fifty (50)
`
`dealers in the United States, all of which had permission and authority to provide
`
`the PM-465 SOTA manual to the public. The information above shows that the
`
`PM-465 SOTA manual (Ex. 1003) was accessible to the public, including those in
`
`the road construction field.
`
`13
`
`Page 14 of 22
`
`
`
`
`
`32.
`
`I worked numerous hours for Caterpillar on product support, service,
`
`and repair issues for cold planers. I have seen how important it is for customers
`
`(including contractors) to be able to repair broken components on road milling
`
`machines quickly so that machine downtime can be avoided. To ensure that
`
`machines remain operable, contractors frequently staffed their own service
`
`technicians. I and others at Caterpillar have worked with these service technicians
`
`to ensure that the technicians were equipped with the necessary knowledge to
`
`identify problems and make the necessary repairs to Caterpillar machines,
`
`including the PM-465.
`
`33. While some cold planers used grade-and-slope systems made by third
`
`parties, Caterpillar developed its own grade-and-slope system for the PM-465.
`
`Accordingly, I and/or others at Caterpillar spent considerable time from 2000 to
`
`2003 (and before) assisting contractors’ technicians on how to operate and repair
`
`Caterpillar’s grade-and-slope system for the PM-465 machine. In my experience,
`
`these technicians were often skilled at operating and identifying problems with the
`
`Caterpillar grade-and-slope system on the PM-465 machine, and in repairing the
`
`system when broken, including broken sensors used by the system. The PM-465
`
`OMM (Ex. 1002) and PM-465 SOTA manual (Ex. 1003) were available to these
`
`technicians from 2000 to 2003 as they performed their service and repair work.
`
`14
`
`Page 15 of 22
`
`
`
`
`
`IV. ADDITIONAL FEATURES ON THE PM-465 MACHINE
`DESCRIBED IN THE PM-465 OMM
`34. The grade-and-slope control system of the PM-465 described in the
`
`PM-465 OMM had the ability use and process signals from several different types
`
`of sensors at once. These signals could come from grade sensors that contacted the
`
`ground (e.g., grade slope wheel or ski), grade sensors that did not contact the
`
`ground (e.g., ultrasonic sensor), and slope sensors, among others. The PM-465’s
`
`control system would process the information it received from the grade-and-slope
`
`sensors and extend/retract the legs to ensure that the milling drum is positioned at
`
`the depth set by the operator.
`
`35. The contact grade sensors described in the previous paragraph were
`
`exposed to the environment during milling and could be damaged by debris created
`
`by the rotor drum, as well as other types of obstacles encountered in the
`
`surrounding environment during milling machine operations. The noncontact grade
`
`sensors described in the previous paragraph could be compromised by
`
`environmental conditions such as temperature and atmospheric pressure.
`
`36. For the PM-465 machine described in the PM-465 OMM, as well as
`
`other milling machines throughout the years, it was common for the milled
`
`material to be contained inside the box formed by the side plates and moldboard,
`
`and to have the milled material transported up the conveyer belt and dumped into a
`
`truck for removal. Indeed, a primary purpose of the moldboard was to scrape away
`
`15
`
`Page 16 of 22
`
`
`
`
`
`the milled material generated by the rotor drum during milling operations. There
`
`were situations, however (for example, when milling country roads), where it was
`
`desirable to leave the milled material in place, mix it with additional materials, and
`
`use it to form a base onto which new asphalt was laid. In these situations, the
`
`moldboard was commonly raised so that the milled material was left in place and
`
`graded by the moldboard rather than scraped away. The PM-465 OMM calls this
`
`feature the “In Place Milling” feature. PM-465 OMM (Ex. 1002) at p. 58.
`
`37. Notably, the “In Place Milling” feature could be cumbersome and
`
`time-intensive to use. The operator would chain the moldboard up at a fixed height
`
`above the milled surface, and the moldboard would stay in that position during in-
`
`place milling. The operator could not automatically raise or lower the moldboard
`
`during in-place milling to grade at different elevations.
`
`38. The PM-465 OMM describes a service height sensor that detected
`
`when the PM-465 had been raised to service height. PM-465 OMM (Ex. 1002) at
`
`pp. 66, 108. The PM-465 OMM further describes “sensors at the right-rear corner
`
`of the engine compartment” that “are used to sense the elevation of the rear legs.”
`
`Id. at p. 112 (showing sensor/switch for detecting the presence of a lifting column
`
`within its sensor/switch field). Signals from the sensors/switches described in this
`
`paragraph were sent to and processed by a controller in the PM-465. Notably, the
`
`rear leg-elevation sensors described in this paragraph could become compromised
`
`16
`
`Page 17 of 22
`
`
`
`
`
`by dust and debris, and the PM-465 OMM recommended cleaning them routinely.
`
`Id. at p. 112.
`
`V. AUTHENTICATION AND THE EVIDENCE OF BUSINESS
`RECORDS
`PM-465 OMM Manual
`A.
`39. Ex. 1002 is a true and correct copy of Caterpillar’s PM-465 OMM
`
`Manual.
`
`40. The PM-465 OMM manual in Ex. 1002 was made at or near the
`
`time—or from information transmitted by—someone with knowledge at
`
`Caterpillar. OMMs, such as Ex. 1002, are drafted by Caterpillar’s
`
`1 and reviewed by the
`
`and the
`
` before publication. The
`
`
`
`
`
`
`
` has direct knowledge about the information
`
`contained in each OMM. A new OMM is published when a machine is first
`
`introduced, when design changes occur on the machine, or when the experiences
`
`and circumstances in the field changes.
`
`41.
`
`It is in the regular course of Caterpillar’s business to create and
`
`maintain the OMMs. As explained earlier, Caterpillar’s corporate procedure during
`
`
`1 The name of this department has changed over the years at Caterpillar.
`
`17
`
`Page 18 of 22
`
`
`
`
`
`my employment required each PM-465 machine to ship with an OMM. Thus,
`
`Caterpillar was required to maintain PM-465 OMMs.
`
`42. The
`
` archives and
`
`maintains the OMMs in the ordinary course of business. The earlier archives of the
`
`OMMs were maintained in long term document storage at Caterpillar’s
`
`
`
`. Caterpillar eventually shifted to electronic storage of the OMMs
`
`when electronic storage became feasible.
`
`PM-465 SOTA Manual
`B.
`43. Ex. 1003 is a true and correct copy of Caterpillar’s PM-465 SOTA
`
`Manual.
`
`44. The PM-465 SOTA manual in Ex. 1003 was made at or near the
`
`time—or from information transmitted by—someone with knowledge at
`
`Caterpillar. SOTA manuals, such as Ex. 1003, are drafted by Caterpillar’s
`
` and reviewed by the
`
`
`
` before publication. The
`
` has direct knowledge about the
`
`information contained in each SOTA manual. A new SOTA manual is published
`
`when a machine is first introduced, when design changes occur on the machine, or
`
`when the experiences and circumstances in the field changes.
`
`18
`
`Page 19 of 22
`
`
`
`
`
`45.
`
`It is in the regular course of Caterpillar’s business to create and
`
`maintain the SOTA manuals. As explained earlier, Caterpillar distributed the
`
`SOTA manuals to dealers across the United States, which were then distributed to
`
`the general public.
`
`46. The
`
` archives and
`
`maintains the SOTA manuals in the ordinary course of business. The earlier
`
`archives of the SOTA manuals were maintained in long term document storage at
`
`Caterpillar’s
`
`. Caterpillar eventually shifted to electronic storage
`
`of the SOTA manuals when electronic storage became feasible.
`
`Factory Notification Lists (FNLs)
`C.
`47. Exs. 1025 - 1034 are true and correct copies of Caterpillar’s FNLs.
`
`48. The FNLs in Exs. 1025 - 1034 were made at or near the time – or
`
`from information transmitted by – someone with knowledge at Caterpillar. FNLs
`
`are drafted and issued by
`
`2 in conjunction with the
`
`,
`
`, and the
`
` shortly before shipping an ordered machine
`
`
`
` is a subgroup of the
`
`
`
`2
`
`.
`
`19
`
`Page 20 of 22
`
`
`
`
`
`(e.g., PM-465) to a customer. Each of these departments has direct knowledge
`
`about the information contained in each FNL.
`
`49.
`
`It is in the regular course of Caterpillar’s business to create and
`
`maintain the FNLs to keep track of its sales. The FNLs are archived and
`
`maintained onsite by
`
` in conjunction with the
`
`
`
`,
`
`.
`
`, and the
`
`
`
`VI. DECLARATION
`I declare that all statements made herein of my knowledge are true
`50.
`
`and that all statements made on information and belief are believed to be true; and
`
`further, that these statements were made with knowledge that willful false
`
`statements and the like so made are punishable by fine or imprisonment, or both,
`
`under 18 U.S.C. § 1001.
`
`51.
`
`I declare under penalty of perjury under the laws of the United States
`
`of America that the foregoing is true and correct.
`
`52.
`
`In signing this declaration, I understand that the declaration will be
`
`filed as evidence in a contested case before the Patent Trial and Appeal Board of
`
`the United States Patent and Trademark Office. I acknowledge that I may be
`
`subject to cross-examination in the case and that cross-examination will take place
`
`within the United States. If cross-examination is required of me, I will appear for
`
`20
`
`Page 21 of 22
`
`
`
`cross-examination within the United States during the time allotted for
`
`
`
`
`
`
`
`
`
`cross-examination.
`
`
`
`Executed onthis 23 day of July 2022.
`
`
`
`
`
`
`
`Page 22 of 22
`
`21
`
`Page 22 of 22
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
