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`Page 109
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`-ooOoo-
`
`ECOFACTOR, INC.,
`
`Plaintiff,
`
`:
`
`:
`
`v.
`
`: Case No. 6:21-cv-00428
`
`ECOBEE, INC.,
`
`Defendant.
`
`:
`
`:
`
`________________________ :
`
` VIDEOTAPED VIDEOCONFERENCED DEPOSITION OF JOHN PALMER
`TAKEN THROUGH
`ADVANCED REPORTING SOLUTIONS, a Veritext company
`Part II
`
`Taken on Friday, December 16, 2022
`1:17 p.m. to 5:09 p.m.
`
` Reported by: Abigail D.W. Johnson, RPR, CRR, CRC
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
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`GOOGLE 1022
`
`001
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`Page 110
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`Page 112
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`1 December 16, 2022 1:17 p.m.
`2 P R O C E E D I N G S (continued)
`3 -o0o-
`4 VIDEOGRAPHER: The time now is 1:17 p.m.
`5 We are back on the record.
`6 EXAMINATION (continued)
`7 BY MS. WOODWORTH:
`8 Q. Dr. Palmer, are you ready to continue?
`9 A. Of course.
`10 Q. If you could turn in your report to
`11 paragraph 652.
`12 (Clarification by the reporter.)
`13 BY MS. WOODWORTH:
`14 Q. This is part of your response to
`15 Dr. D'Adrade's opinions regarding the combination of
`16 the Ecobee SMART Thermostat with Benco and Jayadev;
`17 correct?
`18 A. Give me just a second to find it. Did you
`19 say "552"?
`20 Q. 652.
`21 A. Oh, I'm sorry. Yes. This is with regard
`22 to the -- the combination or the hypothetical
`23 combination of Ecobee SMART Thermostat with Jayadev.
`24 Q. And my understanding in this paragraph is
`25 that it's your opinion that Ecobee, specifically, as a
`
`1 A P P E A R A N C E S
`
`23
`
` For the Plaintiff:
`4 John Link
` James Pinkens
`5 RUSS AUGUST & KABAT
` 12424 Wilshire Blvd.
`6 12th Floor
` Los Angeles, California 90025
`7 jlink@raklaw.com
` (310) 826-7474
`
`89
`
` For the Defendant:
`10 Megan S. Woodworth
` Venable LLP
`11 600 Massachusetts Avenue, NW
` Washington, District of Columbia 20001
`12 mswoodworth@venable.com
` (202) 344-4507
`
` Also Present: Andrea Francis (videographer)
`
` -ooOoo-
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`Page 111
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`Page 113
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`1 company, in its own patent filing did not cite the
`2 Jayadev patent that somehow evidences a lack of
`3 motivation for POSITA to combine the Ecobee SMART
`4 Thermostat with Jayadev; is that correct?
`5 A. Yes.
`6 Q. If you could turn to Exhibit 6. It is
`7 marked. And can you confirm that Exhibit 6 is a
`8 printout of the Google patent version of Jayadev that
`9 you had used to come to that conclusion?
`10 A. Yes.
`11 (Exhibit No. 6 was marked
`12 for identification.)
`13 BY MS. WOODWORTH:
`14 Q. Do you understand that the obviousness
`15 evaluation is not from the standpoint of any specific
`16 person, but from the standpoint of a hypothetical
`17 person of ordinary skill in the art; correct?
`18 A. Yes. Hypothetical person of ordinary skill
`19 in the art. But in this case, we have a proposed
`20 combination involving, specifically, a party to the
`21 case. And they presumably employ persons of, at least,
`22 ordinary skill in the art in their research and
`23 development domain. And yet the -- they're not
`24 referencing the very things that Dr. D'Adrade -- sorry
`25 Dr. D'Adrade is proposing would be obvious.
`
`1 I N D E X
`2 EXAMINATIONS PAGE
`3 Examination (Continued) By Ms. Woodworth..............112
`4 Examination By Mr. Link...............................214
`5 Further Examination By Ms. Woodworth..................215
`
`6 7
`
` E X H I B I T S
`8 EXHIBIT NO. DESCRIPTION PAGE
`9 Exhibit 6 Strategic-response control system ....113
` for regulating air conditioners for
`10 economic operation
`11 Exhibit 7 Report by Tom Webster, P.E............131
`12 Exhibit 8 Article: "Should Patent Examiners ...147
` Get More Time?"
`
`13
`
` Exhibit 9 Expert Report of Brian D'Andrade, ....154
`14 Ph.D., P.E., CCNP
`15 Exhibit 10 United States Patent: '186............209
`16 -o0o-
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`Page 134
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`1 A. A hysteresis band is the -- basically, the
`2 operational or the control feature that has the
`3 thermostat turned depending on whether you're cooling
`4 or heating. Let's just give the example of cooling.
`5 The cooling would be -- would come on when
`6 the temperature is above the setpoint and would turn
`7 off when the temperature is below the setpoint.
`8 And that hysteresis band would be the
`9 difference between the turn-on temperature and the
`10 turn-off temperature, in terms of it being a range of
`11 operational temperatures.
`12 Q. Do those ranges typically revolve around
`13 the setpoint for the system?
`14 A. Typically, yes.
`15 Q. In your mind, would employing a hysteresis
`16 band constitute an intentional compressor delay, as
`17 we've been using that term today?
`18 A. The hysteresis band is not the same as an
`19 intentional delay of the compressor. They -- a
`20 hysteresis band can affect the delay of the compressor,
`21 but it's not the same thing.
`22 Q. Would that fall into the second category
`23 that we described where the compressor is not on
`24 because of the operation control of the compressor?
`25 A. I would say that generally, yes, the
`
`Page 136
`1 Q. In paragraph 107 and 108, you cite to other
`2 portions of the specification that you say support the
`3 -- this aspect of the '100 claims.
`4 Do any of these cited sections disclose,
`5 specifically, a method for selecting a particular
`6 interval for a compressor delay?
`7 A. Okay. I have read paragraph 107 and 108.
`8 And I'm sorry, I have already forgotten your question.
`9 Q. Do you refer to anywhere in these
`10 paragraphs, do you cite to any part of the
`11 specification that expressly discloses a method for
`12 selecting an interval for a compressor -- for
`13 compressor delay?
`14 A. It -- it doesn't put it in specific terms,
`15 but it does indicate the relationship between change in
`16 inside temperature and the need for -- and how that
`17 would inform a decision in specifying a compressor
`18 delay.
`19 Q. Those were all your words, though, correct,
`20 not that of the specification?
`21 A. Yes, those were my words. And I cited
`22 where the information in the specification puts that
`23 all in context.
`24 Q. Paragraph 111 to 112, this describes the
`25 portion of the specification that describes the ability
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`Page 135
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`Page 137
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`1 off-time that would result from a change in the
`2 hysteresis band would generally be a -- an
`3 unintentional off-time, as -- as we've been using the
`4 term.
`5 Q. And I think you actually just answered my
`6 next question, but let me just go ahead.
`7 If you modify that hysteresis band, you
`8 make the offset from the setpoint larger so there would
`9 be a modified hysteresis band.
`10 Would you also agree that the off-periods
`11 for the compressor during a cycle of the modified
`12 hysteresis period -- or modified hysteresis activity,
`13 would still not constitute an intentional delay? Did
`14 you understand that question?
`15 A. I -- I think I understood your question.
`16 And the answer is that increasing the width
`17 of the hysteresis band is not exactly the same as
`18 introducing a delay.
`19 Q. And --
`20 A. But it does impact the operation.
`21 Q. -- you said it doesn't introduce a delay?
`22 I just want to make sure that we are precise.
`23 It doesn't introduce an intentional delay;
`24 correct?
`25 A. Correct.
`
`1 to predict the rate of change of inside temperature
`2 under varying conditions; is that correct?
`3 A. Yes.
`4 Q. Does this portion of the specification
`5 describe, specifically, how that prediction is
`6 performed?
`7 What calculation is done?
`8 MR. LINK: Objection. Compound question.
`9 (Clarification by the reporter.)
`10 THE WITNESS: It does not expressly
`11 identify an equation for the calculation.
`12 BY MS. WOODWORTH:
`13 Q. Would a person of ordinary skill in the art
`14 know how to calculate a rate of change of temperature?
`15 A. Yes, they would.
`16 Q. And these portions of the specification
`17 also do not expressly specify how a rate of change can
`18 be used to select the compressor delay setting;
`19 correct?
`20 A. These paragraphs, again, inform the overall
`21 understanding of the relationship between rate of
`22 change of temperature and desirable changes in -- in
`23 the compressor delay. But it does not expressly call
`24 it out in these paragraphs.
`25 Q. Starting in paragraph 114 of your report,
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`Page 158
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`1 particular duty cycle and time period, let's say one
`2 hour, would that constitute a compressor delay within
`3 the meaning of the '100 patent?
`4 MR. LINK: Objection. Incomplete
`5 hypothetical.
`6 THE WITNESS: It wouldn't necessarily,
`7 because -- for one, I -- as -- and I may be remembering
`8 wrong, but I thought that it was -- under Ehlers, it's
`9 the customer that specifies the -- the duty cycle. But
`10 even if it's the utility that specifies the maximum
`11 duty cycle, that -- without knowing whether, you know,
`12 the setpoint is satisfied in 5 minutes or in 7 minutes
`13 or in 10 minutes, then --
`14 And, you know, over one-hour period, you
`15 may have under the -- under the hypothetical maximum
`16 duty cycle, you may have that turn on and operate for 5
`17 minutes, and then turn off and stay off for 5 minutes.
`18 And then turn on again for -- for 7 minutes. And then
`19 turn off again for another 5 minutes. And then turn on
`20 again until you reach -- if you're picking a one-third
`21 and a duty -- a one-third duty cycle, once you've
`22 reached an on time of -- a total on-time of 20 minutes
`23 in a given hour, then, then, whatever is left, is
`24 whatever is left. And you've got to leave it off until
`25 your hour is complete.
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`Page 159
`
`1 So in other words, the duty cycle dictates
`2 the ratio of on to off-time. And if you specify what
`3 the duration of the on-time is, you can thereby
`4 calculate the off-time. But the specific operation
`5 does not -- is not the same as -- as determining a
`6 delay.
`7 BY MS. WOODWORTH:
`8 Q. If we're looking at a cycle, as we defined
`9 it earlier, as the amount of time that it takes to go
`10 from peak to peak in the thermal wave form of an HVAC
`11 system -- strike that. I'm going to move on.
`12 Let's move on to Claim Element 1[c]. So
`13 let me just make sure, actually, first, in your -- this
`14 portion of your report, you don't have a section that
`15 expressly falls out for Claim Element 1[b]; correct?
`16 A. I'm sorry. I'm looking at the wrong
`17 document. Let me get back to my report.
`18 Can you tell me again what page we are on?
`19 Q. Well, I think I found the answer to my
`20 question in paragraph 125. It looks like you're
`21 focused on Elements 1[a], 1[b], 1[d] and 1[e]; is that
`22 correct?
`23 A. Yes.
`24 Q. Turning to 1[c], I believe that's
`25 paragraph 133 and 134; correct?
`
`Page 160
`1 A. 1[c] begins on 133, yes. And then goes to
`2 134.
`3 Q. And it recites "a computer processor" --
`4 "the processor configured to: access stored data
`5 comprising a plurality of internal temperature
`6 measurements taken within a structure and a plurality
`7 of outside temperature measurements relating to
`8 temperatures outside the structure."
`9 Would you admit that as of the time of the
`10 filing of this patent application, that such a
`11 structure was known in the art to a person of ordinary
`12 skill in the art?
`13 MR. LINK: Objection. Vague.
`14 THE WITNESS: A structure, meaning the
`15 structure for which temperatures inside and outside are
`16 being measured?
`17 BY MS. WOODWORTH:
`18 Q. No, the structure as claimed the computer
`19 process can figure to access stored data as it's
`20 described in this claim limitation.
`21 A. The -- the existence of computer processors
`22 that are capable of accessing data that's stored that
`23 is taken over time is, by itself, not a -- not unheard
`24 of.
`25 Q. Well, and certainly EcoFactor did not
`
`Page 161
`1 invent that even within the context of that stored data
`2 being a plurality of internal and external temperature
`3 measurements; correct?
`4 A. That is correct.
`5 Q. You admit that Ehlers discloses sensing
`6 inside temperature; correct?
`7 A. I'm sorry, which paragraph are you
`8 referring to?
`9 Q. Of your report?
`10 A. Yes.
`11 Q. I'm just asking you right now: Do you
`12 acknowledge that Ehlers discloses sensing inside
`13 temperature measurements?
`14 A. I do recall that Ehlers discloses measuring
`15 inside temperature.
`16 Q. And Ehlers discloses measuring outside
`17 temperature as well; correct?
`18 A. I'm looking. It looks like I make
`19 reference to Dr. D'Adrade's report identifying the --
`20 an outside temperature measurement. And then it
`21 references -- it looks like paragraph 268 of Ehlers. I
`22 can go and double-check that, but I do believe that
`23 Ehlers makes -- or identifies temperature measurements
`24 as being made, but it doesn't talk about storing those
`25 temperature measurements over time.
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`Page 164
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`1 Q. Okay. Well, let's look at paragraph 268.
`2 Do you understand that there it describes
`3 as having a gateway node 1.10 that includes both a
`4 processer, which can access data stored in a memory;
`5 correct?
`6 A. I'm sorry, I'm still trying to get there.
`7 You said paragraph 268?
`8 Q. Correct.
`9 A. Yes.
`10 Q. And that -- so that discloses a gateway
`11 Node 1.10, which includes a processor that is
`12 configured to access stored data in a memory; correct?
`13 A. Yes. And then the next paragraph -- the
`14 next 40-some paragraphs identify the parameters that
`15 Ehlers recommends being stored in that memory.
`16 Q. Let's go to the example in paragraph 293.
`17 It states that one of the things that's stored is
`18 "weather information and history data including at a
`19 minimum outside temperature lows and highs"; correct?
`20 A. Yes.
`21 Q. So a minimum outside temperature low would
`22 be at least one, and a minimum outside temperature high
`23 would be at least a second outside temperature
`24 measurement; correct?
`25 A. Not -- not necessarily. That could be an
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`Page 163
`1 almanac entry. I mean, it could be information
`2 that's -- that's reported from the weather service that
`3 he references as an almanac entry. But it's not a
`4 multiplicity of measurements over time; it is a high
`5 and a low for a given day.
`6 Q. But those would be stored over time?
`7 A. Sorry. That would be day, week or billing
`8 period, is what it says later in the paragraph.
`9 Q. Right. And next is those by day.
`10 So that would be stored for each day;
`11 correct?
`12 A. Potentially, yes.
`13 Q. And those are outside temperature lows and
`14 outside temperature highs; correct?
`15 A. That's what it says.
`16 Q. Ehlers also teaches in Figure 4L that it is
`17 going to provide reports -- or it can provide reports
`18 to the user that reflect temperature reports that are
`19 going to reflect temperature as well as heating and
`20 cooling setpoint; correct?
`21 A. 4L does -- does reflect a so-called daily
`22 temperature report.
`23 Q. And a person of ordinary skill in the art
`24 would understand that to be daily inside temperature
`25 measurements as well as the heating and cooling
`
`1 setpoints; correct?
`2 A. It would be some temperature record,
`3 whether it was temperature measurements or averages of
`4 temperature over some period of time. Ehlers, in his
`5 list of data stored, refers to temperature averages,
`6 but, you know, what window those are averaged over is
`7 not clear.
`8 Q. In order to create an average temperature,
`9 you have to have at least two temperature measurements;
`10 correct?
`11 A. It -- in order to create an average, you
`12 would have to have two temperature measurements; that
`13 is correct.
`14 Q. Let's look at Figure 3D as well. We might
`15 spend some time here.
`16 This figure is described as how the system
`17 tracks and learns the thermal gain characteristic of a
`18 home; correct?
`19 A. That's part of the description of -- of
`20 this figure.
`21 Q. And you understand that there's, kind of,
`22 two sets of lines shown here, correct, those that start
`23 with 3.12 and the second set that starts with 3.14?
`24 A. You -- you're overlooking the one that's
`25 marked 3.16, but yes, there are multiple sets of lines
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`Page 165
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`1 on this.
`2 Q. Well, 3.16 is not a set, is it? Or is it a
`3 set of one?
`4 A. It doesn't fit in either of the other
`5 categories. So yes, I would say it is probably a set
`6 of one.
`7 Q. But you do understand that those -- the two
`8 sets, 3.12 and 3.14, refer to two different outside
`9 weather temperature measurement conditions; correct?
`10 A. I don't think I understood you correctly on
`11 that.
`12 Can you ask that question again?
`13 Q. I said -- well, let me ask it this way.
`14 You understand that the set of lines that
`15 start with 3.12, that these are associated with an
`16 outside temperature measurement of -- you wrote
`17 90 degrees. I can't recall if it is 90 or 99. I think
`18 it's 90. Yeah, 90.
`19 A. No.
`20 Q. I'm sorry, you're right. I did that wrong.
`21 Let me start over.
`22 For the set of lines 3.12 -- that start
`23 with 3.12, you understand that these represent a series
`24 of conditions when the indoor setpoint is originally 72
`25 degrees?
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`Page 166
`1 A. The -- the lines marked 3.12A, 3.12B and
`2 3.12C are reflective of a condition relative to an
`3 indoor setpoint of 72 degrees.
`4 Q. So the difference -- and the difference
`5 between those lines, 3.12, 3.12A, B, and C, reflects a
`6 different condition with respect to the outside
`7 temperature; correct?
`8 A. Essentially, yes.
`9 Q. So line 3.12A represents the condition
`10 where the outside temperature measurement was
`11 99 degrees Fahrenheit; correct?
`12 A. I'm going back to look at the paragraph and
`13 specification. It's just taking me a minute.
`14 Do you remember what the -- what the
`15 paragraph number is where that description is embodied.
`16 Q. 253.
`17 A. I'm sorry?
`18 Q. 253.
`19 A. Thank you.
`20 So yes, it says, "On the day represented by
`21 line 3.12A the outside temperature was 99 degrees
`22 Fahrenheit."
`23 Q. And for the line represented by 3.12, the
`24 outside temperature's 90 degrees?
`25 A. That's what it says, yes.
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`Page 168
`1 inside temperature is increasing in each of the lines
`2 depicted here; correct?
`3 A. Not necessarily, no. If you -- if you look
`4 at the plot, you look at the axis label, the only thing
`5 that it reflects is that the vertical axis is a
`6 setpoint. Now, how that is interpreted in the context
`7 of the -- of the specification is somewhat ambiguous.
`8 Certainly, it suggests that something is
`9 happening over the course of 128 minutes, but it also
`10 says in the specification that that represents thermal
`11 gain. And it does not say that it represents an actual
`12 measured temperature over time.
`13 On the contrary, it actually says
`14 specifically that only the lined marked 3.16 represents
`15 an actual reflection of -- of -- that would be more
`16 consistent with a temperature over time. Although
`17 it's -- it describes it as being a variable thermal
`18 gain rate over time.
`19 But it -- it admits that those straight
`20 lines are not reflective of actual conditions. It just
`21 says that -- that these characteristics are
`22 illustrative or illustrating trends as opposed to being
`23 actual temperature measurements.
`24 Q. Would an POSITA understand from this,
`25 though, and what one would expect, in terms of normal
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`Page 167
`
`1 Q. So the line represented by 3.12C, the
`2 outside temperature was 76 degrees; correct?
`3 A. That is what it says.
`4 Q. So those three outside temperature
`5 measurements were known to the system; correct?
`6 A. Boy, that's a good question. I mean,
`7 it's -- there's -- there's some serious ambiguity with
`8 Figure 3D. For one, the suggestion that over a
`9 128-minute period the temperature was consistently and
`10 continuously 99 or 90 or 77, seems like a bit of a
`11 stretch.
`12 So are those actual measurements? I think
`13 they're classifications of a sort and probably
`14 represent a -- an actual measurement of a time or a
`15 temperature at some point during a particular window.
`16 But it's -- it's hard to suggest that that -- you know,
`17 when it says the day represented by 99 degrees
`18 Fahrenheit, that that constitutes a 128-minute window
`19 of the temperature being measured at 99 degrees
`20 Fahrenheit. So I don't believe that the specification
`21 and the figure completely and accurately represent that
`22 as being a temperature measurement, per se.
`23 Q. You would understand -- or a person --
`24 excuse me. A person of ordinary skill in the art would
`25 understand that these figures are showing that the
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`Page 169
`1 operation, or in terms of normal thermodynamics within
`2 a home given the outside temperature conditions that we
`3 understand are reflected here, and the indoor setpoint
`4 initialization that is reflected here, that each of
`5 these lines reflect that the indoor temperatures would
`6 be increasing under each of the six thrive sets of
`7 conditions?
`8 A. A POSITA would probably infer that the
`9 temperature was increasing. However, as a POSITA would
`10 recognize it, a straight-line temperature, change over
`11 the course of a little over two hours, would be
`12 unusual.
`13 And so the -- the POSITA would, obviously,
`14 need to go and look at the specification to see what
`15 Ehlers had actually -- is describing. And Ehlers
`16 actually describes that he's plotting a thermal gain --
`17 or a thermal rate of gain or illustrating trends on
`18 these -- on this graphic, which he actually refers to
`19 as a table -- that it's an illustration of a concept of
`20 thermal rate of gain.
`21 But he doesn't say that they're actual
`22 temperature measurements, nor does he suggest that
`23 those straight lines reflect actual specific
`24 conditions, but rather an illustration of what he's
`25 referring to as the thermal rate of gain. That's why
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`1 it's so important to read the other less ambiguous
`2 disclosures in the same specification that talk about
`3 the thermal gain rate in the context of -- of other
`4 figures and other explanation.
`5 Because this graphic, Figure 3D, has just
`6 some confusion and ambiguity in it. And the
`7 specification in and of itself is insufficient to
`8 decipher what exactly Ehlers is trying to communicate
`9 in that figure.
`10 Q. Does the line shown in 3.16 more accurately
`11 reflect what a POSITA would expect in terms of the
`12 change of inside temperature over time given the
`13 conditions that are expressed there?
`14 A. To the extent that the -- that the
`15 conditions are not expressed in detail, it --
`16 certainly, one would expect that over time you would
`17 see a more rapid increase in -- in inside temperature
`18 initially and a lower rate of increase in temperature
`19 later.
`20 If you turn off the AC and if you had, you
`21 know, allowed the temperature to -- to fluctuate in the
`22 absence of any active cooling.
`23 Q. So is it your understanding that Figure 3D
`24 reflects the condition where the HVAC system is turned
`25 off?
`
`1 to is being depicted in plot line 3.16; correct?
`2 A. The next sentence says, "This rate if" --
`3 that's the way it's written -- "thermal gain change is
`4 illustrated in Figure 3D as plot line 3.16 which shows
`5 the thermal gain for a setpoint of 74 degrees F. and an
`6 outside temperature of 70 degrees F."
`7 So it's illustrating thermal gain --
`8 Q. That was my --
`9 A. It's illustrating an effect. But again,
`10 it's -- it's an illustration of an artificial condition
`11 suggestive -- that is not what a POSITA would expect.
`12 And therefore, as I said, there's confusion in the --
`13 in the specification. There's confusion in the figure.
`14 And so you've got to read the other paragraphs talking
`15 about the thermal gain rate and the illustration
`16 thereof in order to put it all in context.
`17 Q. Well, the sentence before is describing,
`18 and I think you agreed with this, it is describing the
`19 effect that a POSITA would expect, which is a more
`20 rapid initial gain in the inside temperature when the
`21 differential is large between inside and outside
`22 temperature, and a slower rate of thermal gain that
`23 occurs when the indoor temperature reaches the outside
`24 temperature; correct?
`25 A. Yes.
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`Page 171
`1 A. That is something that one might infer, but
`2 Ehlers doesn't say that. And he -- what he says -- and
`3 for that matter, the graphic itself shows a horizontal
`4 axis of time but a vertical axis of setpoint. It
`5 doesn't say a vertical axis of inside temperature. And
`6 none of the paragraph 253 that discusses Figure 3D says
`7 that it's plotting temperature, per se.
`8 It says it's illustrating thermal gain
`9 rate, which is not the same.
`10 Q. Okay. Let's -- let's look at the end of
`11 paragraph 253, then.
`12 Starting with the line, it says "While
`13 these graphs are drawn to illustrate the rate of
`14 thermal gain, they do not depict the rapid initial gain
`15 when the differential is large and the slower rate of
`16 thermal gain, which occurs as the indoor temperature
`17 reaches the outside temperature."
`18 You would understand a person of ordinary
`19 skill in the art would understand there it is
`20 reflecting -- there it's describing the indoor
`21 temperature measurement reaching the outside
`22 temperature measurement; correct?
`23 A. That is describing the characteristics that
`24 would be anticipated in specific conditions, yes.
`25 Q. And that is what the next sentence refers
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`Page 173
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`1 Q. And that effect is illustrated in plot
`2 line 3.16; correct?
`3 A. It -- the -- the concept is illustrated.
`4 But it doesn't say that Figure 3 -- or that plot
`5 line 3.16 represents an actual temperature measurement.
`6 Q. Do you agree with me --
`7 A. It calls an illustration.
`8 Q. Right. But they're illustrations when
`9 they're in EcoFactor's patents, and you suddenly can
`10 understand them. It's quite remarkable, Dr. Palmer.
`11 MR. LINK: Objection. It's argumentative.
`12 He answered your question.
`13 BY MS. WOODWORTH:
`14 Q. You would agree with me that a POSITA could
`15 readily derive a rate of change from a plotted curve of
`16 temperature versus time, which would be indicated by a
`17 slope of the curve; correct?
`18 A. The rate of change of a temperature could
`19 be determined from the slope of that temperature
`20 plotted against time, yes.
`21 Q. In paragraph 140 of your report, you state
`22 that a POSITA would understand the term -- that a
`23 POSITA would understand the thermal gain rate would be
`24 the rate at which energy is absorbed.
`25 "That is, thermal gain is specifically
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`Page 174
`1 referring to the absorption of energy, for example, by
`2 sunlight irradiating a house or by convective and
`3 conductive heat transfer into the house from the warm
`4 outside air into the walls"; is that correct?
`5 A. That's what I said, yes.
`6 Q. Does Ehlers disclose any type of sunlight
`7 sensor, as far as you're aware?
`8 A. Not that I recall.
`9 Q. Does Ehlers disclose any other equipment or
`10 componentry for measuring heat transfer into the house
`11 from the warm air -- outside air into the walls?
`12 A. Can you ask that again, please?
`13 Q. Does Ehlers disclose any other componentry
`14 for measuring the convective and conductive heat
`15 transfer into the house from the warm outside air into
`16 the walls?
`17 A. Other than what?
`18 Q. Any -- any -- I guess I asked about a
`19 sunlight sensor. So now I'm asking: Is there
`20 componentry for measuring the convective and conductive
`21 heat transfer into the house from the warm outside air
`22 into the walls?
`23 A. It's evident that Ehlers makes the
`24 determination of that thermal gain rate in association
`25 with monitoring of the temperature.
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`Page 176
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`1 A. That's what it says.
`2 Q. So the units that are disclosed there for
`3 the thermal gain per hour are degrees Fahrenheit per
`4 hour -- excuse me.
`5 The units disclosed there for the rate of
`6 thermal gain per hour are 3 degrees Fahrenheit per
`7 hour; correct?
`8 A. That's -- that's what Ehlers says in that
`9 sentence.
`10 Q. A POSITA would understand that the rate of
`11 change of temperature, as the parties have defined it
`12 in this -- or in this litigation, could also have units
`13 of degrees Fahrenheit per hour; correct?
`14 A. The rate of change of temperature could
`15 have units of degrees Fahrenheit per hour. That is a
`16 true statement.
`17 Q. Do you understand that it's Dr. D'Adrade's
`18 opinion that once a thermal -- once a set of thermal
`19 gain rates at different indoor and outdoor conditions
`20 are tracked, that these calculated values are then used
`21 as predicted values during the system operation;
`22 correct?
`23 A. It's my understanding that he -- he makes
`24 that assertion, yes.
`25 Q. Would you agree that a person of ordinary
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`Page 175
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`Page 177
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`1 Q. The monitoring what?
`2 A. Temperature.
`3 Q. By "temperature," you mean inside
`4 temperature?
`5 A. Yes. And -- yeah, as illustrated in
`6 Figure 3D.
`7 Q. So Ehlers discloses tracking the thermal
`8 gain by tracking the inside temperature and the time;
`9 correct?
`10 A. In essence, yes, in the absence of any
`11 active cooling, of course.
`12 Q. Ehlers discloses that the thermal gain rate
`13 has units of degrees Fahrenheit divided by hours;
`14 correct?
`15 A. If you look at Fi