Case 5:21-cv-03220 Document 1 Filed 04/30/21 Page 1 of 11
`
`Bijal V. Vakil (CA State Bar No. 192878)
`bvakil@whitecase.com
`Shamita D. Etienne-Cummings (CA State Bar No. 202090)
`setienne@whitecase.com
`Henry Y. Huang (CA State Bar No. 252832)
`henry.huang@whitecase.com
`WHITE & CASE LLP
`3000 El Camino Real
`Two Palo Alto Square, Suite 900
`Palo Alto, CA 94306-2109
`Telephone: 650.213.0300
`Facsimile: 650.213.8158
`Attorneys for Plaintiff
`Google LLC
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`GOOGLE LLC,
`
`Plaintiff,
`
`v.
`ECOFACTOR, INC.,
`Defendant.
`
`Case No. 5:21-cv-3220
`COMPLAINT FOR
`DECLARATORY JUDGMENT
`DEMAND FOR JURY TRIAL
`
`Plaintiff Google LLC (“Google”), for its complaint against Defendant EcoFactor, Inc.
`(“EcoFactor”), alleges:
`
`NATURE OF THE ACTION
`
`1.
`
`This is an action for declaratory judgment of non-infringement of U.S. Patent Nos.
`
`8,740,100 (“’100 Patent”), 8,751,186 (“’186 Patent”), 9,194,597 (“’597 Patent”) and 10,584,890
`
`(“’890 Patent”) (collectively, the “Asserted Patents,” attached as Exhibits 1-4, respectively)
`
`against EcoFactor, pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, and the
`
`patent laws of the United States, 35 U.S.C. § 100 et seq., and for any and all other relief the Court
`
`deems just and proper.
`
`1
`
`COMPLAINT FOR DECLARATORY
`JUDGMENT CASE NO. 5:21-cv-3220
`
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`SILICON VALLEY
`
`ATTORNEYS AT LAW
`
`WHITE & CASE LLP
`
`GOOGLE V. ECOFACTOR
`IPR2022-00538
`Exhibit 2001
`Page 1
`
`

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`Case 5:21-cv-03220 Document 1 Filed 04/30/21 Page 2 of 11
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`2.
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`Google requests this relief because EcoFactor filed a complaint with the Western
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`District of Texas (“W.D. Tex.”), Docket No. 6:21-cv-00428 (the “ecobee W.D. Tex. Action”),
`
`claiming that ecobee, Inc. infringed the Asserted Patents because ecobee designed, developed,
`
`manufactured, tested, used, offered for sale, sold, and/or imported “smart thermostats, smart
`
`HVAC systems, smart HVAC control systems, and components thereof.” A true and correct copy
`
`of EcoFactor’s public complaint is attached as Exhibit 5 (the “ecobee W.D. Tex. Complaint”).
`
`3.
`
`The products accused in the ecobee W.D. Tex. Action are “smart thermostat
`
`systems, smart HVAC systems, smart HVAC control systems, and all components (including
`
`accessories) thereof” (the “Product Category”). Ex. 5, ¶ 10. Google also makes and sells smart
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`thermostat systems, including the Nest Thermostat and the Nest Third Generation Learning
`
`Thermostat (the “Accused Google Products”), which have been accused of patent infringement by
`
`EcoFactor in prior pending litigation.
`
`4.
`
`EcoFactor previously asserted a dozen patents, including patents related to the
`
`Asserted Patents, in multiple pending cases against both ecobee and Google, also accusing the
`
`same technology, such as in the Product Category. See infra ¶¶ 14-20. So far, EcoFactor has
`
`sued multiple defendants at a time on each set of asserted patents. Such repeated filings against
`
`Google, ecobee, and other defendants identified below over the same and related technology
`
`constitute a course of conduct that demonstrates EcoFactor’s preparedness and willingness to
`
`enforce its patent rights against Google. Moreover, EcoFactor’s past litigation conduct
`
`demonstrates that it enforces the same patents against ecobee and Google in the Product
`
`Category.
`
`5.
`
`An actual and justiciable controversy therefore exists under 28 U.S.C. §§ 2201-
`
`2202 between Google and EcoFactor as to whether Google is infringing or has infringed the
`
`Asserted Patents.
`
`2
`
`COMPLAINT FOR DECLARATORY
`JUDGMENT CASE NO. 5:21-cv-3220
`
`SILICON VALLEY
`
`ATTORNEYS AT LAW
`
`WHITE & CASE LLP
`
`GOOGLE V. ECOFACTOR
`IPR2022-00538
`Exhibit 2001
`Page 2
`
`

`

`Case 5:21-cv-03220 Document 1 Filed 04/30/21 Page 3 of 11
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`THE PARTIES
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`6.
`
`Plaintiff Google LLC is a subsidiary of Alphabet Inc. with its principal place of
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`business located at 1600 Amphitheatre Parkway, Mountain View, California 94043.
`
`7.
`
`Upon information and belief, Defendant EcoFactor, Inc. is a privately held
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`company organized under Delaware’s laws, with a principal place of business at 441 California
`
`Avenue, Number 2, Palo Alto, California 94301.
`
`JURISDICTION AND VENUE
`
`8.
`
`Google files this complaint against EcoFactor pursuant to the patent laws of the
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`United States, Title 35 of the United States Code, with a specific remedy sought based upon the
`
`laws authorizing actions for declaratory judgment in the federal courts of the United States, 28
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`U.S.C. §§ 2201 and 2202, and under the patent laws of the United States, 35 U.S.C. §§ 1-390.
`
`9.
`
`This Court has subject matter jurisdiction over this action, which arises under the
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`United States’ patent laws, pursuant to 28 U.S.C. §§ 1331, 1338(a), and 2201(a).
`
`10.
`
`This Court has personal jurisdiction over EcoFactor, which has its principal place
`
`of business in Palo Alto, California.
`
`11.
`
`Venue in this District is proper under 28 U.S.C. §§ 1391(b) because EcoFactor
`
`resides in this District, and also because EcoFactor is subject to personal jurisdiction in this
`
`District, and a substantial part of the events giving rise to Google’s declaratory judgment claim of
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`non-infringement (such as the development and sale of Nest thermostats) occurred in this District.
`
`INTRADISTRICT ASSIGNMENT
`
`12.
`
`Pursuant to Civil L.R. 3-2(c) and 3-5(b), this is an Intellectual Property Rights
`
`Action subject to assignment on a district-wide basis.
`
`FACTUAL BACKGROUND
`
`13.
`
`Google’s headquarters at 1600 Amphitheatre Parkway, Mountain View, California
`3
`
`COMPLAINT FOR DECLARATORY
`JUDGMENT CASE NO. 5:21-cv-3220
`
`SILICON VALLEY
`
`ATTORNEYS AT LAW
`
`WHITE & CASE LLP
`
`GOOGLE V. ECOFACTOR
`IPR2022-00538
`Exhibit 2001
`Page 3
`
`

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`Case 5:21-cv-03220 Document 1 Filed 04/30/21 Page 4 of 11
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`94043 are located in this District. Google’s mission is to organize the world’s information and
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`make it universally accessible and useful. Over the past two decades, in service of that mission,
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`Google has become one of the world’s most innovative technology companies.
`
`14.
`
`EcoFactor has asserted its patents against allegedly infringing products that
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`originated at Nest Labs that launched in 2010 in Palo Alto. The founders of Nest sought to save
`
`the planet while saving consumers money with their energy usage. After merging with the
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`Google family of companies in 2014, the Nest product division has continued to operate primarily
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`in the San Francisco Bay Area. The vast majority of technical and business activities related to
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`Nest have occurred and continue to occur in this District.
`
`15.
`
`Starting in late 2019, EcoFactor conducted a patent litigation campaign against
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`Google and other smart thermostat manufacturers, such as ecobee. Against Google, EcoFactor
`
`asserted 12 patents across four different cases, including lawsuits in the District of Massachusetts,
`
`the Western District of Texas, and the International Trade Commission (“ITC”).
`
`16.
`
`On November 12, 2019, EcoFactor sued Google in the District of Massachusetts,
`
`asserting four patents related to the Asserted Patents. See EcoFactor, Inc. v. Google LLC, No.
`
`1:19-cv-12322-DJC (D. Mass.). That case is currently stayed pending the ITC case below.
`
`17.
`
`On November 22, 2019, EcoFactor filed another lawsuit against Google at the
`
`ITC, asserting the patents in the Massachusetts action above. See In the matter of Certain Smart
`
`Thermostats, Smart HVAC Systems and Components Thereof, Investigation No. 337-TA-1185
`
`(ITC) (the “1185 Investigation”). The 1185 Investigation confirmed that the venue at the center
`
`of the allegations is in this District because EcoFactor’s witnesses, Google’s source code (and the
`
`review of such source code), and Google’s U.S. witnesses are all located in this District. On
`
`April 20, 2021, the ITC issued an initial determination in the 1185 Investigation, finding no
`
`violation by Google or any other respondents.
`
`18.
`
`On January 31, 2020, EcoFactor then filed another lawsuit against Google in the
`4
`
`COMPLAINT FOR DECLARATORY
`JUDGMENT CASE NO. 5:21-cv-3220
`
`SILICON VALLEY
`
`ATTORNEYS AT LAW
`
`WHITE & CASE LLP
`
`GOOGLE V. ECOFACTOR
`IPR2022-00538
`Exhibit 2001
`Page 4
`
`

`

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`Case 5:21-cv-03220 Document 1 Filed 04/30/21 Page 5 of 11
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`Western District of Texas, asserting another four patents related to the Asserted Patents. See
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`EcoFactor, Inc. v. Google LLC, No. 6:20-cv-00075 (W.D. Tex.). That case is currently
`
`proceeding through discovery, with trial set for December 6, 2021.
`
`19.
`
`On February 25, 2021, EcoFactor filed a fourth lawsuit against Google, at the ITC,
`
`asserting another four patents related to the Asserted Patents. See In the matter of Certain Smart
`
`Thermostat Systems, Smart HVAC Systems, Smart HVAC Control Systems, And Components
`
`Thereof, Investigation No. 337-TA-1258 (ITC, filed Feb. 25, 2021) (the “1258 Investigation”).
`
`That case is currently proceeding through discovery.
`
`20.
`
`On March 1, 2021, Google filed a declaratory relief action in this District relating
`
`to the patents at issue in the 1258 Investigation. EcoFactor stipulated to a stay of that action
`
`pending resolution of the 1258 Investigation. See Google LLC v. EcoFactor, Inc., No. 5:21-cv-
`
`1468-JD (N.D. Cal.).
`
`21.
`
`Across four cases filed within the past 18 months, EcoFactor has asserted 12
`
`patents against Google, all related to smart thermostat systems, and all accusing Google’s Nest
`
`line of smart thermostat products. Those dozen patents are related to the Asserted Patents.
`
`EcoFactor has also sued multiple other companies in these litigations, including: ecobee, Vivint,
`
`Inc., Alarm.com Inc., Johnson Controls Inc., Emerson Electric Co., Resideo Technologies, Inc.,
`
`Honeywell International Inc., Siemens Industry, Inc., Siemens AG, Daikin Industries, Ltd.,
`
`Schneider Electric USA, Inc., and Carrier Global Corp. EcoFactor’s litigation conduct evidences
`
`that the same patents are asserted against ecobee and Google in the Product Category.
`
`22.
`
`From this litigation activity, EcoFactor engages in a course of conduct that shows
`
`a preparedness and a willingness to enforce its patent rights relating to the same technology
`
`against the same set of products. These repeated assertions demonstrate a substantial risk that
`
`Google will face harm from further patent infringement allegations, including the new Asserted
`
`Patents that EcoFactor asserts against ecobee. EcoFactor’s past actions demonstrate that it plans
`5
`
`COMPLAINT FOR DECLARATORY
`JUDGMENT CASE NO. 5:21-cv-3220
`
`SILICON VALLEY
`
`ATTORNEYS AT LAW
`
`WHITE & CASE LLP
`
`GOOGLE V. ECOFACTOR
`IPR2022-00538
`Exhibit 2001
`Page 5
`
`

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`Case 5:21-cv-03220 Document 1 Filed 04/30/21 Page 6 of 11
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`to assert multiple sets of patents against multiple defendants at once, including Google.
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`23.
`
`The Accused Google Products do not directly or indirectly infringe any asserted
`
`claim of the Asserted Patents, either literally or under the doctrine of equivalents. Google has not
`
`caused, directed, requested, or facilitated any such infringement, and it did not have any specific
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`intent to do so.
`
`COUNT I:
`
`DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE ’100 PATENT
`
`24.
`
`Google hereby restates and incorporates by reference the allegations set forth in
`
`paragraphs 1 through 23 of this Complaint as if fully set forth herein.
`
`25.
`
`EcoFactor claims to own all right, title, and interest in the ’100 patent by
`
`assignment.
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`26.
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`In the ecobee W.D. Tex. Complaint, EcoFactor alleges that the Product Category
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`infringes the ’100 patent. See, e.g., Ex. 5 ¶¶ 10, 17-24.
`
`27.
`
`The Accused Google Products do not include or practice multiple claim limitations
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`of the claims of the ’100 patent, including, but not limited to: “a thermostatic controller having at
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`least two settings for a delay enforced by said thermostatic controller after said thermostatic
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`controller turns said ventilation system off prior to allowing said thermostatic controller to signal
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`said ventilation system to turn on again,” “one setting being for a first interval,” “at least a second
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`setting for a time interval that is longer than said first interval,” “access stored data comprising a
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`plurality of internal temperature measurements taken within a structure and a plurality of outside
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`temperature measurements relating to the temperatures outside the structure,” “use the stored data
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`to predict a rate of change of temperatures inside the structure in response to at least changes in
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`outside temperatures,” and “evaluate one or more parameters including at least the outside
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`temperature measurements and the predicted rate of change, and to determine whether to adopt
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`said first interval or said second interval based upon the values of said parameters.”
`6
`
`COMPLAINT FOR DECLARATORY
`JUDGMENT CASE NO. 5:21-cv-3220
`
`SILICON VALLEY
`
`ATTORNEYS AT LAW
`
`WHITE & CASE LLP
`
`GOOGLE V. ECOFACTOR
`IPR2022-00538
`Exhibit 2001
`Page 6
`
`

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`Case 5:21-cv-03220 Document 1 Filed 04/30/21 Page 7 of 11
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`28.
`
`An actual and justiciable controversy therefore exists between Google and
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`EcoFactor regarding whether any of the Accused Google Products have infringed any of the
`
`asserted claims of the ’100 patent. A judicial declaration is necessary to determine the parties’
`
`respective rights regarding the ’100 patent.
`
`29.
`
`Google seeks a judgment declaring that Google does not directly or indirectly
`
`infringe any asserted claims of the ’100 patent, either literally or under the doctrine of
`
`equivalents.
`
`COUNT II:
`
`DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE ’186 PATENT
`
`30.
`
`Google hereby restates and incorporates by reference the allegations set forth in
`
`paragraphs 1 through 23 of this Complaint as if fully set forth herein.
`
`31.
`
`EcoFactor claims to own all right, title, and interest in the ’186 patent by
`
`assignment.
`
`32.
`
`In the ecobee W.D. Tex. Complaint, EcoFactor alleges that the Product Category
`
`infringes the ’186 patent. See, e.g., Ex. 5, ¶¶ 10, 27-34.
`
`33.
`
`The Accused Google Products do not include or practice multiple claim limitations
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`of the claims of the ’186 patent, including, but not limited to: “the one or more server computers
`
`configured to receive inside temperature measurements from at least a first location conditioned
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`by at least one HVAC system,” “one or more databases that store the inside temperature
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`measurements over time,” “the one or more server computers to receive outside temperature
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`measurements from at least one source other than the HVAC system,” “wherein the one or more
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`server computers are configured to calculate one or more predicted rates of change in temperature
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`at the first location based on status of the HVAC system, and based on the outside temperature
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`measurements, wherein the one or more predicted rates of change predict a speed a temperature
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`inside the first location will change in response to changes in outside temperature,” and “the one
`7
`
`COMPLAINT FOR DECLARATORY
`JUDGMENT CASE NO. 5:21-cv-3220
`
`SILICON VALLEY
`
`ATTORNEYS AT LAW
`
`WHITE & CASE LLP
`
`GOOGLE V. ECOFACTOR
`IPR2022-00538
`Exhibit 2001
`Page 7
`
`

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`Case 5:21-cv-03220 Document 1 Filed 04/30/21 Page 8 of 11
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`or more server computers are further configured to determine whether to direct the HVAC control
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`system to pre-cool the first structure based on the one or more predicted rates of change prior to
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`directing the HVAC control system to reduce electricity demand.”
`
`34.
`
`An actual and justiciable controversy therefore exists between Google and
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`EcoFactor regarding whether any of the Accused Google Products have infringed any of the
`
`asserted claims of the ’186 patent. A judicial declaration is necessary to determine the parties’
`
`respective rights regarding the ’186 patent.
`
`35.
`
`Google seeks a judgment declaring that Google does not directly or indirectly
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`infringe any asserted claims of the ’186 patent, either literally or under the doctrine of
`
`equivalents.
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`COUNT III:
`
`DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE ’597 PATENT
`
`36.
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`Google hereby restates and incorporates by reference the allegations set forth in
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`paragraphs 1 through 23 of this Complaint as if fully set forth herein.
`
`37.
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`EcoFactor claims to own all right, title, and interest in the ’597 patent by
`
`assignment.
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`38.
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`In the ecobee W.D. Tex. Complaint, EcoFactor alleges that the Product Category
`
`infringes the ’597 patent. See, e.g., Ex. 5, ¶¶ 10, 37-44.
`
`39.
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`The Accused Google Products do not include or practice multiple claim limitations
`
`of the claims of the ’597 patent, including, but not limited to: “stored data comprising a plurality
`
`of internal temperature measurements taken within a structure and a plurality of outside
`
`temperature measurements” “using the stored data to predict changes in temperature inside the
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`structure in response to at least changes in outside temperatures,” “the scheduled programming
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`comprising at least a first automated setpoint at a first time,” “generating with the at least one
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`computer, a difference value based on comparing at least one of the an actual setpoints at the first
`8
`
`COMPLAINT FOR DECLARATORY
`JUDGMENT CASE NO. 5:21-cv-3220
`
`SILICON VALLEY
`
`ATTORNEYS AT LAW
`
`WHITE & CASE LLP
`
`GOOGLE V. ECOFACTOR
`IPR2022-00538
`Exhibit 2001
`Page 8
`
`

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`Case 5:21-cv-03220 Document 1 Filed 04/30/21 Page 9 of 11
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`time for the thermostatic controller to the first automated setpoint for the thermostatic controller,”
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`“detecting a manual change to the first automated setpoint by determining whether the at least one
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`of the actual setpoints and the first automated setpoint are the same or different based on the
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`difference value,” and “detecting a manual change to the first automated setpoint by determining
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`whether the at least one of the actual setpoints and the first automated setpoint are the same or
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`different.”
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`40.
`
`An actual and justiciable controversy therefore exists between Google and
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`EcoFactor regarding whether any of the Accused Google Products have infringed any of the
`
`asserted claims of the ’597 patent. A judicial declaration is necessary to determine the parties’
`
`respective rights regarding the ’597 patent.
`
`41.
`
`Google seeks a judgment declaring that Google does not directly or indirectly
`
`infringe any asserted claims of the ’597 patent, either literally or under the doctrine of
`
`equivalents.
`
`COUNT IV:
`
`DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE ’890 PATENT
`
`42.
`
`Google hereby restates and incorporates by reference the allegations set forth in
`
`paragraphs 1 through 23 of this Complaint as if fully set forth herein.
`
`43.
`
`EcoFactor claims to own all right, title, and interest in the ’890 patent by
`
`assignment.
`
`44.
`
`In the ecobee W.D. Tex. Complaint, EcoFactor alleges that the Product Category
`
`infringes the ’890 patent. See, e.g., Ex. 5, ¶¶ 10, 47-54.
`
`45.
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`The Accused Google Products do not include or practice multiple claim limitations
`
`of the claims of the ’890 patent, including, but not limited to: “a wireless radio compatible with a
`
`wireless radio frequency protocol and configured to communicate bi-directionally with a location-
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`aware mobile device;” “receive radio frequency signals from the location-aware mobile-device,”
`9
`
`COMPLAINT FOR DECLARATORY
`JUDGMENT CASE NO. 5:21-cv-3220
`
`SILICON VALLEY
`
`ATTORNEYS AT LAW
`
`WHITE & CASE LLP
`
`GOOGLE V. ECOFACTOR
`IPR2022-00538
`Exhibit 2001
`Page 9
`
`

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`Case 5:21-cv-03220 Document 1 Filed 04/30/21 Page 10 of 11
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`“receive geo-positioning data from the location-aware mobile device,” “initiating at least one
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`cooling or heating cycle for the HVAC system when the geo-positioning data is determined to
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`indicate that the building is unoccupied by the user;” “analyze a plurality of data parameters
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`specific to the user, including at least one data parameter relating to usage of the HVAC system at
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`various times,” and “a compressor delay circuit configured to delay the start or stop of a
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`compressor for the HVAC system and protect the compressor from rapid cycling.”
`
`46.
`
`An actual and justiciable controversy therefore exists between Google and
`
`EcoFactor regarding whether any of the Accused Google Products have infringed any of the
`
`asserted claims of the ’890 patent. A judicial declaration is necessary to determine the parties’
`
`respective rights regarding the ’890 patent.
`
`47.
`
`Google seeks a judgment declaring that Google does not directly or indirectly
`
`infringe any asserted claims of the ’890 patent, either literally or under the doctrine of
`
`equivalents.
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`PRAYER FOR RELIEF
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`WHEREFORE, Google prays for judgment as follows:
`
`A.
`
`Declaring that Accused Google Products do not directly or indirectly infringe any
`
`asserted claims of the ’100 patent, either literally or under the doctrine of equivalents;
`
`B.
`
`Declaring that Accused Google Products do not directly or indirectly infringe any
`
`asserted claims of the ’186 patent, either literally or under the doctrine of equivalents;
`
`C.
`
`Declaring that Accused Google Products do not directly or indirectly infringe any
`
`asserted claims of the ’597 patent, either literally or under the doctrine of equivalents;
`
`D.
`
`Declaring that Accused Google Products do not directly or indirectly infringe any
`
`asserted claims of the ’890 patent, either literally or under the doctrine of equivalents;
`
`E.
`
`Declaring that judgment be entered in favor of Google and against EcoFactor on
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`Google’s claims;
`
`10
`
`COMPLAINT FOR DECLARATORY
`JUDGMENT CASE NO. 5:21-cv-3220
`
`SILICON VALLEY
`
`ATTORNEYS AT LAW
`
`WHITE & CASE LLP
`
`GOOGLE V. ECOFACTOR
`IPR2022-00538
`Exhibit 2001
`Page 10
`
`

`

`Case 5:21-cv-03220 Document 1 Filed 04/30/21 Page 11 of 11
`
`F.
`
`G.
`
`H.
`
`Finding that this is an exceptional case under 35 U.S.C. § 285;
`
`Awarding Google its costs and attorneys’ fees in connection with this action; and
`
`Awarding Google such other and further relief as the Court deems just and proper.
`
`JURY DEMAND
`
`Pursuant to Federal Rule of Civil Procedure 38 and Civil Local Rule 3-6, Google demands
`
`a jury trial on all issues and claims so triable.
`
`Dated: April 30, 2021
`
`Respectfully submitted,
`By: /s/Bijal V. Vakil ____________________
`Bijal V. Vakil
`Bijal V. Vakil (CA State Bar No. 192878)
`bvakil@whitecase.com
`Shamita D. Etienne-Cummings
`(CA State Bar No. 202090)
`setienne@whitecase.com
`Henry Y. Huang (CA State Bar No. 252832)
`henry.huang@whitecase.com
`WHITE & CASE LLP
`3000 El Camino Real
`Two Palo Alto Square, Suite 900
`Palo Alto, CA 94306-2109
`Telephone: 650.213.0300
`Facsimile: 650.213.8158
`Attorneys for Plaintiff
`Google LLC
`
`11
`
`COMPLAINT FOR DECLARATORY
`JUDGMENT CASE NO. 5:21-cv-3220
`
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`SILICON VALLEY
`
`ATTORNEYS AT LAW
`
`WHITE & CASE LLP
`
`GOOGLE V. ECOFACTOR
`IPR2022-00538
`Exhibit 2001
`Page 11
`
`