In the patent infringement lawsuit Wirtgen America, Inc. v. Caterpillar, Inc., Brattle provided testimony on behalf of Wirtgen, a leading manufacturer and developer of road rehabilitation equipment. Wirtgen accused Caterpillar of infringing several of its patents related to cold milling technology used to rehabilitate road surfaces. A Delaware federal jury recently found Caterpillar guilty of willful infringement, leading to a $12.9 million award owed to Wirtgen.

Brattle was retained by Patterson Intellectual Property Law on behalf of Wirtgen – a subsidiary of Deere & Company – in 2021. The Brattle team was led by Principals Dr. Pallavi Seth and Dr. Coleman Bazelon. Dr. Seth filed expert reports, provided deposition testimony, and testified before a jury regarding reasonable royalty damages incurred by Wirtgen as a result of Caterpillar’s infringement of Wirtgen’s patents.

Dr. Seth evaluated the nature and role of competition between the parties, Wirtgen’s role as an inventor and leader in the market for cold milling machines, Wirtgen’s licensing history, and the nature and essentiality of Wirtgen’s patents. Taking these aspects into consideration, the Brattle team employed several economic techniques – including using patent forward citation analysis and a bargaining model – to quantify the impact of Caterpillar’s infringement of Wirtgen’s patents.

Caterpillar attempted to exclude testimony from Dr. Seth about the inclusion of convoyed and derivatives sales, apportionment methodology of the damages, and reliance on lost profits. Having evaluated these arguments from Caterpillar, the judge ruled that Dr. Seth’s analysis relied on economic principles, facts of the case, and case law precedent.

Following a seven-day trial in the US District Court for the District of Delaware, the jury found that Caterpillar infringed five of the six patents in question and that the infringement was willful.  Consistent with Dr. Seth’s damages analysis, Wirtgen was awarded damages of $12.9 million.