Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 1 of 29
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`ECOFACTOR, INC.,
`Plaintiff,
`
`v.
`GOOGLE LLC,
`
`Defendant.
`
`ECOFACTOR, INC.,
`Plaintiff,
`
`v.
`ECOBEE, INC.,
`Defendant.
`
`ECOFACTOR, INC.,
`Plaintiff,
`
`v.
`VIVINT, INC.,
`
`Defendant.
`
`Case No. 6:20-cv-00075-ADA
`
`JURY TRIAL DEMANDED
`
`Case No. 6:20-cv-00078-ADA
` JURY TRIAL DEMANDED
`
`Case No. 6:20-cv-00080-ADA
` JURY TRIAL DEMANDED
`
`DEFENDANTS’ OPENING CLAIM CONSTRUCTION BRIEF
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`GOOGLE 1017
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 2 of 29
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`TABLE OF CONTENTS
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`BACKGROUND ON ASSERTED PATENTS ...................................................................1
`U.S. Patent No. 8,180,492 (“’492 Patent”) ..............................................................1
`U.S. Patent No. 8,412,488 (“’488 Patent”) ..............................................................1
`U.S. Patent No. 8,738,327 (“’327 Patent”) ..............................................................2
`U.S. Patent No. 10,534,382 (“’382 Patent”) ............................................................3
`DISPUTED CONSTRUCTIONS ........................................................................................3
`“rate of change in inside temperature” (’488 patent claims 1, 9; ’327 patent
`claims 1, 11); “rate of change in temperature inside the [said] structure” (’488
`patent claims 8, 16; ’327 patent claims 5, 15) .........................................................3
`“measurement[s]” [“measurement[s]”; “measurement of outside temperatures”;
`“temperature measurement inside a structure”; “temperature measurements
`from inside the structure”; “measurement of at least one characteristic of the
`building”; “measurement of the current outdoor temperature”] (’488, ’327, and
`’382 patents, all claims) ...........................................................................................7
`’488 Patent Claims 1 and 9 – Indefiniteness ............................................................8
`“user interface actions intended to alter a state of one or more of said
`[networked] electronic devices” (’492 patent claims 1, 10) ..................................11
`“receiving [receives] input from one or more users” (’492 patent claims 1, 10);
`“said input from said one or more users” (’492 patent claims 1, 9, 10, 18) ..........16
`“outside temperature” (’488 patent claims 1, 2, 9, 10; ’327 patent claims 1, 2,
`11, 12) ....................................................................................................................20
`“programmable thermostat” (’327 patent claims 3, 13) .........................................21
`AGREED CONSTRUCTIONS .........................................................................................22
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 3 of 29
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`TABLE OF AUTHORITIES
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`Page(s)
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`
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`Cases
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`Acacia Media Techs. Corp. v. New Destiny Internet Grp.,
`405 F. Supp. 2d 1127 (N.D. Cal. 2005) ...................................................................................... 9
`
`In re Collier,
`397 F.2d 1003 (C.C.P.A. 1968) .................................................................................................. 8
`
`Merck & Co. v. Teva Pharms. USA, Inc.,
`395 F.3d 1364 (Fed. Cir. 2005) ................................................................................................ 12
`
`O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) ............................................................................................ 8, 16
`
`Wang Labs., Inc. v. Am. Online, Inc.,
`197 F.3d 1377 (Fed. Cir. 1999) .......................................................................................... 14, 18
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`ii
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 4 of 29
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`TABLE OF EXHIBITS
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`1
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`2
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`3
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`4
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`5
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`6
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`7
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`8
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`9
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`10
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`11
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`12
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`Oct. 7, 2010 Office Action from prosecution history of US. Patent No. 8,180,492
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`Feb. 7, 2011 Response from prosecution history of US. Patent No. 8,180,492
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`Mar. 1, 2012 Response from prosecution history of US. Patent No. 8,180,492
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`Aug. 2, 2011 Response from prosecution history of US. Patent No. 8,180,492
`
`Excerpts of Thomas G. Beckwith and Roy D. Marangoni Mechanical
`Measurements, 4th ed.
`
`Excerpts of “Merriam-Webster Dictionary, 10th ed. (1999)”
`
`Excerpts of “American Heritage Dictionary, 3d ed. (1993)”
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`US. Patent No. 5,977,964 to Williams, et al.
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`Excerpts of “Webster’s II New College Dictionary, (2001)”
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`Page from Merriam-Webster, https://me1riam—webster.com/dictionary/current
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`Page from Merriam-Webster, https://www.merriam-
`webster.com/dictionary/rate%200f’/020change
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`Page from Merriam-Webster, https://www.meniam—
`webster.com/dictionary/user%20interface
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`l3
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`Excerpts of “Webster’s H New College Dictionary, (2001)”
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`iii
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 5 of 29
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`
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`Defendants Google LLC, ecobee, Inc., and Vivint, Inc. hereby submit their Opening Claim
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`Construction Brief.
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`
`
`Background on Asserted Patents
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`The four asserted patents generally cover management of HVAC systems. The claimed
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`management features include determining whether someone is home to adjust temperatures,
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`checking if an HVAC system is on or off, and handling requests to reduce energy usage.
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`
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`U.S. Patent No. 8,180,492 (“’492 Patent”)
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`The ’492 patent issued May 15, 2012 from an application filed July 13, 2009. The patent
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`tries to solve the problem of adjusting home temperatures based on occupancy. While motion
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`sensors “involve considerable expense” and “cannot reliably detect presence,” the ’492 patent is
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`directed to detecting occupancy based on user interaction: “detecting the use of networked
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`consumer electronics devices as indications of occupancy.” ’492 at Abstract, 3:1-15. Independent
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`claims 1 (method) and 10 (system) are essentially identical and each recite steps for determining
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`occupancy, prompting the user about changing temperature, and then keeping a non-occupied
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`temperature setpoint in response to input overriding the proposed change in temperature.
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`
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`U.S. Patent No. 8,412,488 (“’488 Patent”)
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`The ’488 patent issued April 2, 2013 from an application filed March 1, 2012, and
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`addresses the problem of checking if an HVAC system is on or off based on outside and inside
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`temperatures. The patent “comprises systems and methods for estimating the rate of change in
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`temperature inside a structure,” in connection with “a system for offering peak demand reduction
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`to electric utilities.” ’488 at Abstract, 1:22-25. The ’488 patent purports to use the “relationship
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`between the inside temperature and the outside temperature to determine whether the climate
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`control system is ‘on’ or ‘off.’” Id. at Abstract. The ’488 patent specification discloses
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`embodiments in which temperature measurements and calculations based on temperature data over
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`1
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 6 of 29
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`
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`time are used to assess whether the operating status of the HVAC system in a structure is “on” or
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`“off.” Id. at 3:25-4:15. Independent claims 1 and 9 of the ’488 patent are directed to a system and
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`method for “monitoring the operation[al status] of an HVAC system,” comprising: (1) an HVAC
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`control system associated with a first structure; and (2) one or more processors that are capable of:
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`(i) receiving measurements of outside temperatures from a source other than the HVAC system;
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`(ii) comparing a received inside temperature and the outside temperature; (iii) deriving an
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`estimation for the rate of change in inside temperature of the structure in response to outside
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`temperature; and (iv) comparing an inside temperature with the estimation for the rate of change
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`in inside temperature to “determine whether the first HVAC system is on or off.”
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`
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`U.S. Patent No. 8,738,327 (“’327 Patent”)
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`The ’327 patent issued May 27, 2014 from an application filed March 28, 2013, and is
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`related to the ’488 patent. The ’327 patent purports to relate to “systems and methods for
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`estimating the rate of change in temperature inside a structure.” ’327 at Abstract. The ’327
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`Abstract states that, “[a]t least one thermostat located is [sic] inside the structure and is used to
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`control an [sic] climate control system,” a “remote processor is in communication with said
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`thermostat,” and “at least one processor compares the outside temperature” with “information
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`reported . . . from the thermostat” in order to “determine whether the climate control system is ‘on’
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`or ‘off.’” Id. The ’327 patent explains that the “invention relates to the use of thermostatic HVAC
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`controls . . . connected to a computer network as a part of a system for offering peak demand
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`reduction to electric utilities.” Id. at 1:22-25. Independent claims 1 and 11 of the ’327 patent are
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`directed to a system and method for controlling the operation of an HVAC system requiring: (1) a
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`thermostat inside the structure, and (2) one or more remote servers. The remote servers are capable
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`of: (i) receiving measurements of outside temperatures; (ii) communication with the thermostat;
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`(iii) receiving inside temperatures from the thermostat; (iv) comparing the inside and outside
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`2
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 7 of 29
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`temperatures to “derive an estimation for the rate of change in inside temperature of the structure
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`in response to outside temperature”; (v) receiving a demand reduction request; and (vi) sending a
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`signal to the thermostat to change the first setting to a second setting to reduce demand by the
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`HVAC system.
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`D.
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`US. Patent No. 10,534,382 (“’382 Patent”)
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`The ’382 patent issued January 14, 2020 fiom an application filed April 3, 2019. The
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`patent purports to be directed to “systems and method for detecting the use of networked consumer
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`electronics as indications of occupancy” for purposes of “automatically adjusting the temperature
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`setpoint.” ’382 at Abstract. The ’382 patent states that the “state of occupancy is used to alter the
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`setpoint on the thermostatic HVAC control to reduce unneeded conditioning of occupied
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`spaces.” Id. Independent claims 1 and 17 are directed to systems for controlling an HVAC system
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`at a user’s building that comprise, among other things, a set of processors that (i) receive first data
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`including a measurement of at least one characteristic of the building, (ii) receive second data from
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`a network connection, (iii) receive temperature setpoints corresponding to a desired temperature
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`setting when the building is occupied or unoccupied, and (iv) execute instructions to determine
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`whether the building is occupied or unoccupied, and based on that determination, control the
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`HVAC system.
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`[1.
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`Disputed Constructions
`
`A.
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`“rate of change in inside temperature” (’488 patent claims 1, 9; ’327 patent
`claims 1, 11); “rate of change in temperature inside the [said] structure”
`
`(’488 patent claims 8, 16; ’327 patent claims 5, 15)
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`Plaintiff’s Pro . osal
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`Defendants’ Pro . osal
`
`between the measurements (i. e., AT/At)”
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`“the difference between two inside
`temperature measurements over a particular
`span of time between the measurements”
`
`“the difference between inside temperature
`measurements divided by the span of time
`
`The claims of both the ’488 and ’327 patents require a set of processors (or servers) that are
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 8 of 29
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`
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`configured to derive an estimate for the “rate of change in inside temperature” of a structure. See
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`’488 at cl. 1, 9; ’327 at cl. 1, 11. Defendants propose that this term be construed to mean “the
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`difference between inside temperature measurements divided by the span of time between the
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`measurements (i.e., ∆T/∆t).” This construction is consistent with the intrinsic and extrinsic
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`evidence, as discussed below.
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`The term “rate of change” is well-understood to be “a value that results from dividing the
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`change in a function of a variable by the change in the variable.” See Ex. 61 (Merriam-Webster,
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`10th ed. (1999), at 969); see also Ex. 11 (https://www.merriam-webster.com/dictionary/
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`rate%20of%20change (showing current definition unchanged from 1999)). In the ’488 and ‘327
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`patents, the rate of change is for temperature, which is expressed, for example, as degrees
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`Fahrenheit per second, degrees Celsius per hour, or the like. More generically, if the temperature
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`T is a function of time t, then the “rate of change” of the temperature is, in mathematical terms,
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`represented as “ΔT/Δt,” where ΔT refers to the difference in temperature and Δt is the span in time
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`between those two measurements. The construction proposed by Defendants accurately reflects
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`this well-understood meaning of a “rate of change.”
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`Furthermore, in the context of the claim language—which requires a rate of change in inside
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`temperature—the claimed “rate of change” relates to the difference between two inside
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`temperature measurements divided by the span of time between those inside temperature
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`measurements. For example, if the inside temperature measurement at 1pm is 70 degrees
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`Fahrenheit and the inside temperature measurement at 2pm is 80 degrees Fahrenheit, the rate of
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`change in inside temperature is 10 degrees Fahrenheit per hour (or 10°F/1hr). This is consistent
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`with the common specification of the ’488 and ’327 patents, which uses the term “rate” in the
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`
`1
`“Exs. 1-13” refer to exhibits to the Declaration of Bijal Vakil, filed concurrently.
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`4
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 9 of 29
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`
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`context of the rate at which inside temperature measurement changes. The ’488 and ’327 patents
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`explain that “basic versions of thermostats use components such as a coiled bi-metallic spring to
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`measure actual temperature” while “electronic digital thermostats . . . use solid-state devices such
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`as thermistors or thermal diodes to measure temperature.” ’488 at 1:36-46; ’327 at 1:36-46. The
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`patents then explain that the “invention comprises systems and methods for estimating the rate of
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`change in temperature inside a structure.” ’488 at Abstract; ’327 at Abstract (emphases added).
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`For instance, in reference to Figure 6a, the patents explain that “[w]hen the air conditioning turns
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`on, the inside temperature stays constant (or rises at a much lower rate) despite the rising outside
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`temperature.” ’488 at 7:8-9; ’327 at 7:8-9 (emphases added). Similarly, in reference to Figure 8,
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`the patents further explain that “[i]f the server determines that the temperature inside the house
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`is rising at the rate predicted if the air conditioning is shut off, then the server confirms 508 that
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`the air conditioning has been shut off.” ’488 at 7:57-60; ’327 at 7:57-60 (emphases added).
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`EcoFactor agrees that “a rate of change in inside temperature” must consider the difference
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`between two inside temperature measurements. But the rest of EcoFactor’s proposed construction
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`is flawed for two reasons. First, by generically referring to a “difference . . . over a particular span
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`of time,” EcoFactor’s proposed construction wrongly allows for a calculation that simply takes the
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`difference between two temperature measurements at two different times. This overlooks a matter
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`of elementary mathematics—a rate of change in mathematics is the difference of two
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`measurements divided by the difference in time between those measurements. In other words,
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`(cid:1844)(cid:1853)(cid:1872)(cid:1857) (cid:1867)(cid:1858) (cid:1829)(cid:1860)(cid:1853)(cid:1866)(cid:1859)(cid:1857) (cid:1858)(cid:1867)(cid:1870) A(cid:3404)A(cid:2870)(cid:3398)A(cid:2869)
`(cid:1872)(cid:2870)(cid:3398)(cid:1872)(cid:2869)
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`where ‘A’ equals the measured quantity and ‘t’ equals time.” Applying this mathematical principle
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`to a rate of change in inside temperature, the formula would read:
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`5
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 10 of 29
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`
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`(cid:1844)(cid:1853)(cid:1872)(cid:1857) (cid:1867)(cid:1858) (cid:1829)(cid:1860)(cid:1853)(cid:1866)(cid:1859)(cid:1857) (cid:1861)(cid:1866) (cid:1846)(cid:1857)(cid:1865)(cid:1868)(cid:1857)(cid:1870)(cid:1853)(cid:1872)(cid:1873)(cid:1870)(cid:1857) (cid:3404)
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`(cid:1846)(cid:1857)(cid:1865)(cid:1868)(cid:2870)(cid:3398)(cid:1846)(cid:1857)(cid:1865)(cid:1868)(cid:2869)
`(cid:1846)(cid:1861)(cid:1865)(cid:1857) (cid:1867)(cid:1858) (cid:1846)(cid:1857)(cid:1865)(cid:1868)(cid:2870) (cid:3398) (cid:1846)(cid:1861)(cid:1865)(cid:1857) (cid:1867)(cid:1858) (cid:1846)(cid:1857)(cid:1865)(cid:1868)(cid:2869)
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`In mathematics, this formula may be represented as “ΔT/Δt,” as explained above and proposed in
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`Defendants’ proposed construction.
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`EcoFactor seeks to avoid this elementary mathematical principle and leave open the
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`possibility—which it has pursued in related litigations involving related patents—that merely
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`determining a difference between two temperature measurements at two different times is a rate
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`of change in temperature. EcoFactor’s formulation would yield a value with units of temperature,
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`which is not a rate of change. A rate of change in temperature must be expressed as units of
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`temperature per unit of time—in other words, ΔT/Δt.
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`Second, by using the phrase “over a particular time” instead of “over the particular time,”
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`EcoFactor’s proposed construction also incorrectly suggests that the span of time used for
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`calculating the rate of change can somehow be different than the actual span of time between the
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`two inside temperature measurements. As discussed above, in order to actually calculate a rate of
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`change in inside temperature, the difference in inside temperature measurements must be divided
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`by the actual span of time between those temperature measurements.2
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`Accordingly, Defendants respectfully request that the Court adopt their construction and
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`construe “rate of change in inside temperature” to mean “the difference between inside temperature
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`measurements divided by the span of time between the measurements (i.e., ∆T/∆t).”
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`2
`Additionally, the claims lack an antecedent basis for “the rate of change,” and are indefinite
`in that respect.
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`6
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 11 of 29
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`B.
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`‘C
`“measurement[s]” [“measurement[s]”; measurement of outside
`temperatures”; “temperature measurement inside a structure”;
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`“temperature measurements from inside the structure”; “measurement of at
`least one characteristic of the building”; “measurement of the current
`outdoor temperature”] (’488, ’327, and ’382 patents, all claims)
`
`Plaintiffs Pro . osal
`
`Defendants’ Pro . osal
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`an instrument by using standardized units”
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`Plain and ordinary meaning; no
`construction necessary.
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`“determination [of the claimed property] by
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`“Measurement” is a well—understood scientific term that should be defined for the jury.
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`“[T]he process or the act of the measurement consists of obtaining a quantitative comparison
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`between a predefined standard and a measurand.” See Ex. 5 (Thomas G. Beckwith & Roy D.
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`Marangoni, Mechanical Measurements (4th Ed.) (“Mechanical Measurements”) at 1 (emphasis in
`
`original».
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`The claims use the term “measurement” in precisely this manner,
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`to reflect
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`determination of temperature with an instrument.
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`The asserted claims all use the term
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`“measuremen ” with respect to temperatures: “receives temperature measurements from inside the
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`structure,” “receiving temperature measurements inside a structure from at least one thermosta ,”
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`(‘
`,3
`“measurement of at least one characteristic of the building, measurement of the current
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`temperature of the building by the sensor,” and “receive measurements of outside temperatures.”
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`’327 at 9:30, 10:16-19; ’382 at 8:20-21, 9:14-15; ’488 at 9:47.
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`The specification also makes clear that measurements are accomplished by instruments,
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`such as sensors. See, e.g., ’488 at 1:37-38; ’327 at 1:37—38; ’382 at 1:37-38 (“[T]hermostats use
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`components such as a coiled bi-metallic spring to measure actual temperature,”); ’488 at 6:63-65;
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`’327 at 6:63—65 (“the bi-directional communication will also allow the thermostat to regularly
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`measure and send to the server information about the temperature in the building”); ’488 at 9:11-
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`13 (“The system installed in a subscriber’s home may optionally include additional temperature
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`sensors at different locations within the building”) (emphasis added); id. at 9: 15-18 (“Additional
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 12 of 29
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`temperature and/or humidity sensors may allow increased accuracy of the system, which can in
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`turn increase user comfort, energy savings or both”).
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`The specification does not provide for the term “measuremen ” to mean a forecast.
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`EcoFactor has asked the Court to give the term “measurement” its “plain and ordinary meaning,”
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`but in both its infringement contentions in these cases and in related litigations involving related
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`patents, EcoFactor has attempted to include forecasted temperatures as falling within the ambit of
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`the meaning of the term “measurement.” They do not. Because there is an actual dispute between
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`the parties as to what constitutes a “measurement,” construction of this term is necessary to
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`determine the proper scope of the claims. 02 Micro Int ’1 Ltd. v. Beyond Innovation Tech. Co.,
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`521 F.3d 1351, 1360 Ged. Cir. 2008) (“When the parties raise an actual dispute regarding the
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`proper scope of these claims, the court, not the jury, must resolve that dispute.) The term
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`“measurement” should be given its meaning in the context of the claims—a “determination [of the
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`claimed property] by an instrument by using standardized units.”
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`C .
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`’488 Patent Claims 1 and 9 — Indefiniteness
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`Plaintiff’s Pro n osal
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`Defendants’ Pro . osal
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`1003 C.C.P.A. 1968 , and its ro yen .
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`Plain and ordinary meaning; no construction
`necessary.
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`Indefinite due to lack of essential structural
`connections, under In re Collier, 397 F.2d
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`The asserted claims of the ’488 patent are invalid as indefinite because they list multiple
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`components without reciting structural relationships between them. Claims 1 and 9 recite systems
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`“
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`with two sets of components
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`at least one HVAC control system” and “one or more processors.”
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`However, the claims do not identify any structural relationship between any of those parts, and
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`thus fail to inform the public about the scope of the claims with reasonable certainty.
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`Under long—standing law, claims are indefinite if they fail to identify essential structural
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`connections. See In re Collier, 397 F.2d 1003, 1005 (C .C.P.A. 1968) (affirming rejection of claim
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 13 of 29
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`
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`that “does not positively recite structural relationships of the two elements”). “Patents claiming a
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`system, are indefinite under § 112 if the claim does not recite structural relationships of essential
`
`elements.” Acacia Media Techs. Corp. v. New Destiny Internet Grp., 405 F. Supp. 2d 1127, 1138
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`(N.D. Cal. 2005). For example, a “sequence encoder” in a communication system was indefinite
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`where the claim “omits disclosure of a cooperative relationship with the other elements” and there
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`was “no specification of its input or its output.” Id. at 1138.
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`The claims here are similarly deficient. Independent claims 1 and 9 are indefinite because
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`they merely recite a catalog of elements, and fail to specify any structural relationship between the
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`claimed components of the “HVAC control system” and the “one or more processors.” See
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`Declaration of Don Turnbull (“Turnbull Decl.”) ¶ 46-53. Claims 1 and 9 recite functions
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`associated with the HVAC control system (receiving temperature measurements) and the one or
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`more processors (receiving measurements of outside temperatures, etc.), but they recite no
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`structural relationship whatsoever. None of these functions provides insight into any structural
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`relationship between the components. At most, the only overlap as to the functionality of the
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`HVAC control system and the one or more processors is that both perform functions involving
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`inside temperature measurements. However, the claims fail to recite which component provides
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`these inside temperature measurements to the other component, or whether the HVAC control
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`system, the one or more processors, or both receive the inside temperature measurements from
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`some other component, or whether another configuration exists. Id. ¶ 47.
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`The specification also fails to clarify the structural relationship between these components.
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`Because there is no disclosure of an HVAC control system, it is not possible to infer from the
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`specification any structural relationship between the HVAC control system and the one or more
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`processors. For example, Figure 2 of the ’488 patent shows “in further detail” the “major
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`9
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 14 of 29
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`elements” of the system, including computer 104, thermostat 108, HVAC unit 110, a server
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`containing a database 106a and 106b, and a gateway 110, that connects the thermostat and
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`computer to the Internet 102. ’488 at 5:47-67. But absent from this disclosure is any description
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`of the identified “major element[s]” of the system.
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`Further complicating the disclosures, all of the “major elements” of the system (apart from
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`the HVAC system 110) are disclosed as comprising one or more processors, including computer
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`104, server 106, and thermostat 108. See Turnbull Decl. ¶¶ 35-38, 49. Accordingly, a PHOSITA
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`cannot infer from the specification any structural relationship regarding the one or more
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`processors. The specification also teaches that “control of the HVAC system [] relies primarily on
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`communication running from the server to the thermostat” (’488 at 6:61-62) and that “the system
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`will be capable of numerous diagnostic and controlling functions beyond those of a standard
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`thermostat” (id. at 6:67-7:2). See Turnbull Decl. ¶¶ 39-42, 50. The claims thus create many
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`possible arrangements of these components, but no way to identify which infringe. See id. ¶¶ 51-
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`52.
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`A person of ordinary skill in the art would understand that the HVAC control system and
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`HVAC system are separate and distinct components because claims 1 and 9 refer to them
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`separately. See id. ¶ 50. Thus, the ’488 patent introduces more ambiguity about whether the
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`HVAC control system corresponds to any component of the system and how it might interact with
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`any other component. The same is true for “one or more processors,” which could correspond to
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`any of the “major elements” or combination of elements in the system. Id. ¶ 35-38, 49.
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`10
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 15 of 29
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`D.
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`“user interface actions intended to alter a state of one or more of said
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`[networked] electronic devices” (’492 patent claims 1, 10)
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`Plaintiff’s Pro - osal
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`Defendants’ Pro . osal
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`Plain and ordinary meaning; no
`construction necessary.
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`“a user intentionally interacting with the
`device’s graphic user interface to alter the
`device’s state and indicate whether the
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`structure is occu - ied”
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`The disputed phrase appears in the following limitations of claims 1 and 10:
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`From claim 1: “determining whether one or more networked electronic devices
`inside said structure are in use, wherein said networked electronic devices comprise
`a graphic user interface comprising a display, wherein said networked electronic
`devices receive input from one or more users and wherein use of said networked
`electronic devices comprises at least one of cursor movement, keystrokes or other
`user interface actions intended to alter a state of one or more of said networked
`electronic devices by one or more users;”
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`From claim 10: “one or more electronic devices having at least a graphic user
`interface comprising a display wherein said electronic devices receive input from
`one or more users and wherein use of said electronic devices comprises at least one
`of cursor movement, keystrokes or other user interface actions intended to alter a
`state of one or more of said electronic devices by one or more users wherein
`activity of one or more networked electronic devices indicates whether said
`thermostat should be changed from said first temperature setpoint to said second
`temperature setpoint”
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`Defendants’ construction clarifies for a jury that a user intentionally interacts with the
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`claimed graphic(al) user interfaces of the electronic devices, and that those actions also indicate
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`whether a structure is occupied. This proposal explains that the invention looks for user interaction
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`with devices to see if the user might be home, so that it can ask the user about adjusting the
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`temperature.
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`First, the language and ordering of the claims themselves support this construction. The
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`independent claims each require determining whether networked electronic devices are “in use,”
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`where the “use” comprises “at least one of cursor movement, keystrokes or other user interface
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`actions intended to alter a state.” E.g., ’492 cl. 1 (emphasis added). Accordingly, the claims
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`11
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 16 of 29
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`explain that “user interface actions” are intentional—“intended to alter a state”—and that cursor
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`movement and keystrokes are examples of such actions. Furthermore, the altered “state” relates
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`to occupancy of the structure because, “in response to use” of the claimed devices, the system
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`determines that the HVAC system is set to a temperature setpoint “indicating that said structure is
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`deemed to be non occupied.” Id. The claims further specify that the “networked electronic devices
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`comprise a graphic user interface comprising a display” (claim 1), or “electronic devices having
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`at least a graphic user interface comprising a display” (claim 10). Therefore, the claimed electronic
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`devices each have a graphic user interface with a display, through which the system can detect
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`“user interface actions.” If the user did not interact through the “graphic user interface[s],” those
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`recited interfaces would be meaningless. See Merck & Co. v. Teva Pharms. USA, Inc., 395 F.3d
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`1364, 1372 (Fed. Cir. 2005) (“A claim construction that gives meaning to all the terms of the claim
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`is preferred over one that does not do so.”).
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`Second, the specification also supports this construction because the disclosed
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`embodiments all involve users intentionally interacting with a graphic user interface. For example,
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`Figure 1 depicts computers for user interaction, which can be “conventional computers,”
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`“handheld and wireless devices such as personal digital assistants (PDAs), cellular telephones and
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`other devices capable of accessing the network,” or “microprocessor-controlled home
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`entertainment equipment including advanced televisions, televisions paired with home
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`entertainment/media centers, and wireless remote controls.” ’492 at 4:61-5:7. The computers also
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`“utilize a browser” and “provide information, sound, graphics and text.” Id. at 5:8-24. These
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`examples are all consistent with home occupants using a device’s graphic user interface, and the
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`system detecting that use for occupancy information.
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`In another example, Figure 6 “represents the screen of a computer or other device 104 using
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`Case 6:20-cv-00075-ADA Document 34 Filed 10/06/20 Page 17 of 29
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`a graphical user interface connected to the Internet”:
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`Id. at 6:33-34, Fig. 6. “The screen shows that a browser 1200 is displayed on computer 104. In
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`one embodiment, a background application installed on computer 104 detects activity by a user of
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`the computer, such as cursor movement, keystrokes or otherwise, and signals the application
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`running on server 106 that activity has been detected.” Id. at 6:35-40. Figure 7 further confirms
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`that the system detects an intentional action on the graphic user interface of a computer to
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`determine occupancy.3 Figure 7 depicts “a flowchart showing the steps involved in the operation
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`of one embodiment of the subject invention”:
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`3
`In their August 2, 2011 response during prosecution, the applicants stated that they consider
`Figure 7 to embody the claim