Brattle’s Analyses and Testimony Upheld in Wirtgen v. Caterpillar Patent Infringement Matter
In a patent infringement case involving road rehabilitation equipment, Brattle was retained on behalf of Wirtgen to provide damages analysis and testimony concerning the German manufacturer’s claims that Caterpillar was infringing several of its patents related to cold milling technology. In September 2024, several months following a jury trial, a Delaware court enhanced the damages that Caterpillar owes Wirtgen by 50 percent to about $19.5 million and, in a rare move for a patent case, issued a permanent injunction blocking the sale of Caterpillar’s infringing road rehabilitation machines.
Background
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 in February 2024 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 rigorous 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, Judge Joshua D. Wolson ruled that Dr. Seth’s analysis relied on economic principles, facts of the case, and case law precedent. The judge also determined that her forward patent citation analysis could properly apportion damages and that her Rubenstein bargaining model could account for unpatented contributions to Caterpillar’s profits on the accused products.
Outcome
In February 2024, 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.
After the manufacturer sought additional relief, a district judge upheld the jury’s decision but enhanced the amount awarded to Wirtgen to $19.5 million. In a ruling filed in September 2024, Judge Wolson – calling Caterpillar’s actions “sneaky or, at the very least, underhanded” – noted he found increasing the damages appropriate given Caterpillar’s actions after the US International Trade Commission (ITC) blocked the company from importing the infringing machines from where they were manufactured internationally in 2019; in response, Caterpillar began manufacturing the machines in question in Texas. Judge Wolson additionally found that Wirtgen suffered irreparable harm from Caterpillar’s infringement that could not be compensated monetarily and thus granted Wirtgen’s request for a permanent injunction – rare in patent cases – blocking the sale of Caterpillar’s infringing machines.
