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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`GOOGLE LLC and ECOBEE TECHNOLOGIES ULC,
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`Petitioner
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`v.
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`ECOFACTOR, INC.,
`Patent Owner
`____________
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`IPR2022-005381
`Patent 9,194,597 B2
`____________
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`PETITIONER’S OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64
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`1 IPR2022-01461 (ecobee Technologies ULC) has been joined with this
`proceeding.
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`Pursuant to 37 C.F.R. §42.64(b)(1), Petitioner Google LLC hereby submits
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`the following objections to Patent Owner’s Sur-Reply. Petitioner objects to Exhibits
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`2014 and 2015, filed with Patent Owner’s Sur-Reply, for the following reasons:
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`Exhibits 2014 and 2015 are improper under 37 C.F.R. § 42.23(b) which
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`provides that “[a] sur-reply may only respond to arguments raised in the
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`corresponding reply and may not be accompanied by new evidence other than
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`deposition transcripts of the cross-examination of any reply witness.” Because
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`Patent Owner elected not to take the deposition of Petitioner’s reply witness, the
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`submission of any new evidence accompanying Patent Owner’s Sur-Reply is
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`improper.
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`Petitioner further objects to Exhibit 2014 which Patent Owner’s Sur-Reply
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`identifies as “Petitioner Google’s Reply in IPR2022-00473.” This document in fact
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`appears to be a copy of Petitioner Google’s Reply filed in the present IPR and is thus
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`not what Patent Owner purports it to be.
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`Petitioner further objects to Exhibit 2015, which Patent Owner identifies as
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`“January 6, 2023, Deposition of Dr. John A. Palmer, IPR2022-00473” as apparently
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`duplicative. Petitioner notes that the Transcript of January 6, 2023 Deposition of
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`John A. Palmer in IPR2022-00473 was filed as Exhibit 1023 to Petitioner’s Reply.
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`Patent Owner did not object to this exhibit.
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`These objections are being timely served within 5 business days of service
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`of the Patent Owner’s Sur-Reply and accompanying exhibits.
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`Dated: March 8, 2023
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`Respectfully submitted,
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`/Matthew A. Smith/
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`Matthew A. Smith (Reg. No. 49,003)
`SMITH BALUCH LLP
`700 Pennsylvania Ave. SE 2nd Floor
`Washington, DC 20003
`Phone: (202) 669-6207
`smith@smithbaluch.com
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`Counsel for Petitioner Google LLC
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that the foregoing PETITIONER’S
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`OBJECTIONS TO EVIDENCE PURSUANT TO 37 C.F.R. § 42.64 was served by
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`electronic mail on March 7 2023, on all counsel of record at the United States
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`Patent & Trademark Office.
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`Date: March 8, 2023
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`/Matthew A. Smith/ (RN 49,003)
`Matthew A. Smith
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