UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Before The Honorable HAYWOOD S. GILLIAM, JR., Judge
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`GOOGLE LLC,
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` Plaintiff, )
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` Defendant.
`____________________________)
`
` vs.
`
`ECOFACTOR, INC.,
`
` Claim Construction
`
` NO. C 21-03220 HSG
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` Pages 1 - 122
`
` Oakland, California
` Friday, July 22, 2022
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`For Plaintiff:
`
`For Defendant:
`
` Keker & Van Nest
` 633 Battery Street
` San Francisco, California 94111-1809
` BY: LEO L. LAM,
` EDWARD A. BAYLEY,
` VICTOR T. CHIU, ATTORNEYS AT LAW
`
` Allen & Overy LLP
` 550 High Street, 2nd Floor
` Palo Alto, California 94301
` BY: ERIC E. LANCASTER, ATTORNEY AT LAW
`
` Russ, August & Kabat
` 12424 Wilshire Boulevard, 12th Floor
` Los Angeles, California 90025
` BY: REZA MIRZAIE,
` MINNA Y. CHAN,
` KRISTOPHER R. DAVIS,
` JAMES N. PICKENS, ATTORNEYS AT LAW
`
`Reported By:
`
` Raynee H. Mercado, CSR No. 8258
`
`Proceedings reported by electronic/mechanical stenography;
`transcript produced by computer-aided transcription.
`
`RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR (510) 565-7228
`
`GOOGLE 1031
`
`CERTIFIED COPY
`
`001
`
`
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`Before The Honorable HAYWOOD S. GILLIAM, JR., Judge
`
`GOOGLE LLC,
`
` )
` )
` Plaintiff, )
` )
` )
` )
` )
` )
` )
` Defendant.
`____________________________)
`
` vs.
`
`ECOFACTOR, INC.,
`
` Claim Construction
`
` NO. C 21-03220 HSG
`
` Pages 1 - 122
`
` Oakland, California
` Friday, July 22, 2022
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`For Plaintiff:
`
`For Defendant:
`
` Keker & Van Nest
` 633 Battery Street
` San Francisco, California 94111-1809
` BY: LEO L. LAM,
` EDWARD A. BAYLEY,
` VICTOR T. CHIU, ATTORNEYS AT LAW
`
` Allen & Overy LLP
` 550 High Street, 2nd Floor
` Palo Alto, California 94301
` BY: ERIC E. LANCASTER, ATTORNEY AT LAW
`
` Russ, August & Kabat
` 12424 Wilshire Boulevard, 12th Floor
` Los Angeles, California 90025
` BY: REZA MIRZAIE,
` MINNA Y. CHAN,
` KRISTOPHER R. DAVIS,
` JAMES N. PICKENS, ATTORNEYS AT LAW
`
`Reported By:
`
` Raynee H. Mercado, CSR No. 8258
`
`Proceedings reported by electronic/mechanical stenography;
`transcript produced by computer-aided transcription.
`
`RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR (510) 565-7228
`
`GOOGLE 1031
`
`CERTIFIED COPY
`
`001
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`Friday, July 22, 2022 1:33 p.m.
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`2
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`P R O C E E D I N G S
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`--o0o--
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`THE CLERK: Now calling civil matter
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`4:21-CV-03220-HSG, Google LLC versus EcoFactor, Incorporated.
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`Counsel, please state your appearances starting with the
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`plaintiff, please.
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`MR. LAM: Good afternoon, Your Honor. Leo Lam from
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`Keker, Van Nest & Peters for DJ plaintiff Google.
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`Can the Court hear me?
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`THE COURT: I can.
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`MR. LAM: Thank you, Your Honor. Good afternoon.
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`With me at counsel table are Ed Bayley and Victor Chiu
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`from the Keker firm, as well as Eric Lancaster from Allen &
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`Overy.
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`And also with us, Your Honor, in the gallery, are Chester
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`Day from Google. And then again from the Keker firm, Anna
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`Porto, and our summer associates, Amrutha Doral, Grant
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`Strudwick, and Alex Williams.
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`Thank you, Your Honor.
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`THE COURT: All right. Good afternoon.
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`MR. MIRZAIE: Your Honor, this is Reza Mirzaie for
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`defendants. Good afternoon.
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`THE COURT: Good afternoon.
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`MR. MIRZAIE: With me today is Minna Chan, James
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`RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR (510) 565-7228
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`Pickens, and Chris Davis, all from the Russ August & Kabat law
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`firm. And we represent DJ defendants in this case, and we're
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`ready to proceed.
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`THE COURT: Good afternoon.
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`MR. MIRZAIE: Thank you.
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`THE COURT: All right. We're here for the claim
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`construction hearing this afternoon. The way I'd like to
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`proceed is we'll just go through the claims and in the
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`sequence that they're presented in the papers, and we'll do
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`each one claim by claim. So I'll hear from each side as to
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`each claim, and then we'll move to the next claim.
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`We've got a total of an hour and a half -- I'm sorry --
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`hour and a half per side set aside this afternoon, and we'll
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`need to be efficient in moving through everything for that
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`reason.
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`All right. I think the way we've been proceeding is that
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`the patent owners have gone first. Have you all talked about
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`whether you have a preference as to what the sequence is?
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`MR. LAM: Well, Your Honor, notwithstanding the --
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`Leo Lam for Google. Notwithstanding the briefing sequence,
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`theoretically neither side has the burden of proof on claim
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`construction except for Google as to issues of indefiniteness.
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`So I would ask the Court and -- I don't know about EcoFactor's
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`preferences that we at least take turns going first. And I
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`don't know whether the Court has any particular preference for
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`RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR (510) 565-7228
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`THE COURT: Sure. All right. EcoFactor?
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`MS. CHAN: Good afternoon, Your Honor. Minna Chan
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`for the defendant, EcoFactor.
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`So I think Your Honor, I think, is correct that Google
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`does appear to be injecting ambiguity into the claim term.
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`And just to be clear, there are actually -- there -- it
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`originally appeared there were two disputes in Google and
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`EcoFactor's proposal. One was the "indoor temperature value,"
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`which we don't agree. And then second was the "achieve and
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`maintain" that Google wanted. It appears Google is no longer
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`contending that there is a dispute, and therefore the Court
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`should adopt the "achieve or maintain" in EcoFactor's proposal
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`for this construction.
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`In terms of the time issue, there really is no question
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`that setpoint always has a time component. In fact, the
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`preferred embodiment at lines -- at column 5, lines 35 to 40
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`shows that the precooling setpoint has a temperature which is
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`the future inside temperature and also a time component when
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`it will turn on.
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`And in the specification at lines -- at column 1, lines 37
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`to 41, it clearly talks about an example where the homeowner
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`is getting out of bed at 7:00 a.m., setting the thermostat to
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`change from the overnight setpoint of 64 degrees to 70 at
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`6:00 a.m., to make the house comfortable when the consumer
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`gets up.
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`RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR (510) 565-7228
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`So whenever "setpoint" is being discussed, there is always
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`a time component to it. One is -- so Google's construction is
`
`problematic, for example, because it really does contradict
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`the plain meaning of "setpoint," which as we've pointed out in
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`our briefs, has been adopted by Google itself and multiple
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`other parties throughout many different litigations over the
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`course of two and a half years.
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`THE COURT: Although it sounds like the problem is
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`what it often is, that they may have agreed to it and then
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`they realized later that the way you were using it, the
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`dispute hadn't been resolved. And so why not resolve it
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`sooner.
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`And just looking at the specification, so in column 5, it
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`looks like it's lines, basically starting around 54, there's
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`this discussion where it's basically a formula, the data
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`should include each of the following, and time and the
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`setpoint are discussed differently.
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`So why doesn't that tend to support Google's proposed
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`construction?
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`MS. CHAN: It's talking about it -- to get -- I'm
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`sorry, Your Honor. Give me one moment to grab --
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`(Pause in the proceedings.)
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`MS. CHAN: So the entire discussion at columns -- the
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`bottom of column 5 and going onto column 6, it's always
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`talking about temperature and time hand in hand when it is
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`RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR (510) 565-7228
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`103
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`discussing the setpoint. It's never talking about the
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`temperature in isolation from the time. It's always hand in
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`hand.
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`And that makes sense because when, for example, you know,
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`at your own home, you have a thermostat that will have a
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`heating setpoint of -- and also a cooling setpoint. What that
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`means is, for example, a cooling setpoint means if you set it
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`at 72 degrees, and the outside temperature is 40 degrees,
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`it -- if the outside temperature ever goes above 72 degrees,
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`then the system is supposed to kick on and cool down your home
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`to the cooling setpoint that you had set of 72 degrees. But
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`if the outside temperature remains 40 degrees, then your
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`system will never kick on.
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`So in that sense there still is a ten component to it
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`because it is when that -- when the temperature will hit above
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`that setpoint of 72 degrees.
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`THE COURT: But why? The setpoint is the number
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`that's in the system. Whether it's entered or otherwise
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`generated, where are you getting that idea that the setpoint
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`has anything to do with when something will happen?
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`MS. CHAN: So if we were to look at, for example --
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`let's say the specification at column --
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`THE COURT: And just to the point we're making,
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`Mr. Clerk, just maybe give a five minutes left sort of
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`notification because I think we're getting close to time.
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`RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR (510) 565-7228
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`104
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`THE CLERK: We're close to that now, Your Honor.
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`THE COURT: All right.
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`MS. CHAN: Just to address the question that you
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`posed about the setpoint. So when you are programming the
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`setpoint, you are always setting what times of day that
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`setpoint is going to be valid for. So, for example, from
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`9:00 a.m. to 5:00 p.m., when you're home or when you're going
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`to be away, there is always a time on when the system is
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`supposed to turn on or off, depending on what your cooling or
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`your heating setpoint is scheduled for.
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`THE COURT: All right. So you have five minutes
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`total left for everything. So just take that into account in
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`how you allocate your time.
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`MS. CHAN: Okay. And just to be clear, EcoFactor's
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`proposal for this term is temperature setting, it's not a
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`value. And we're -- we believe that that really is the plain
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`meaning that the parties have agreed to over the years.
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`And our point is just that you should not be disturbing
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`this plain meaning without any disclaimer or lexicography,
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`which Google has not pointed to at all in its brief.
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`Thank you, Your Honor.
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`THE COURT: All right. Thanks.
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`And how much time left, Mr. Clerk, for Google? They
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`should have a little bit, I think.
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`THE CLERK: About four and a half, Your Honor.
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`RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR (510) 565-7228
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`THE CLERK: Court is adjourned.
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`(Proceedings were concluded at 4:34 P.M.)
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`--o0o--
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`122
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`CERTIFICATE OF REPORTER
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` I certify that the foregoing is a correct transcript
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`from the record of proceedings in the above-entitled matter.
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`I further certify that I am neither counsel for, related to,
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`nor employed by any of the parties to the action in which this
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`hearing was taken, and further that I am not financially nor
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`otherwise interested in the outcome of the action.
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`___________________________________
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`Raynee H. Mercado, CSR, RMR, CRR, FCRR, CCRR
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` Saturday, July 23, 2022
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`RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR (510) 565-7228
`
`008
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`
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