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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`ECOFACTOR, INC.,
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`Civil Action No. 6:20-cv-00075 (ADA)
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`Plaintiff,
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`JURY TRIAL DEMANDED
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`v.
`GOOGLE LLC,
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`Defendant.
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`REBUTTAL EXPERT REPORT OF DR. DON TURNBULL REGARDING THE NON-
`INFRINGEMENT OF U.S. PATENT NOS. 8,412,488, 8,738,327 AND 10,534,382
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`Dated: October 22, 2021
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`___________________________________
`Don Turnbull, Ph.D.
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`GOOGLE 1028
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`RESTRICTED – CONFIDENTIAL SOURCE CODE
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`XI.
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`THE ACCUSED PRODUCTS DO NOT PRACTICE ANY OF THE ASSERTED
`CLAIMS OF THE ’382 PATENT
`335.
`I am of the opinion that Google does not directly or indirectly infringe the ’382
`Patent and that Google’s Nest Thermostat, Nest Thermostat E, and Nest Learning Thermostat
`Third Generation do not practice the asserted claims of the ’382 Patent.
`336.
`I understand that EcoFactor accuses the Home/Away features of Google’s Nest
`Thermostat, Nest Thermostat E, and Nest Learning Thermostat Third Generation devices of
`infringing the asserted claims.
`A.
`Claim 1
`1.
`Claim element 1[b]: “one or more processors with circuitry and code
`designed to execute instructions”
`337. As EcoFactor conceded in its August 16, 2021 Patent Owner’s Response, the “one
`or more processors with circuitry and code designed to execute instructions” required by claim
`element 1[b] must include at least a single processor that meets all of the limitations of the ’382
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`108
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`RESTRICTED – CONFIDENTIAL SOURCE CODE
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`Patent. See August 16, 2021 Patent Owner’s Response (IPR2021-00054) at 13 (“all of the ‘one
`or more processors’ must be able to perform the functions recited in claim elements [1d], [1e],
`[1f], [1g], [1i], [1k], and [1l]. That is, there needs to be at least a single processor that meets all
`of the limitations of claim elements [1d], [1e], [1f], [1g], [1i], [1k], and [1l]. Put another way, if a
`processor only met the limitations of claim elements [1d] and [1f], it would not meet the full
`limitations [sic] of claim 1.”); Id. at 17 (“More troublesome is that the Petition provides no
`mapping of the specific ‘embodiment’ of memory or processors in Gaedelmann and Ehlers that
`meets the claim limitations of the ’382 patent. Instead, [i]t mixes and matches different
`processors, often asserting that two or three processors meet a particular claim limitation.”).
`338. Each of the claim elements that reference “one or more processors with circuitry
`and code designed to execute instructions” specifically refer to “the one or more processors with
`circuitry and code.” See ’382 Patent at 8:17-62. As EcoFactor concedes, a POSITA looking at
`this claim language would recognize that “the one or more processors with circuitry and code
`designed to execute instructions” referenced in the claim limitations refers to the same “one or
`more processors.”
`339. None of the processors identified in Mr. de la Iglesia’s Infringement Report
`perform all the limitations of the ’382 Patent claims that reference “the one or more processors
`with circuitry and code” throughout Claim 1. For example,
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`109
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