Paper No. 22
`Entered: June 6, 2023
`
`Trials@uspto.gov
`571-272-7822
`
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`GOOGLE LLC and ECOBEE TECHNOLOGIES ULC,
`Petitioner,
`
`v.
`
`ECOFACTOR, INC.,
`Patent Owner.
`______________
`
`IPR2022-00538
`Patent 9,194,597
`______________
`
`Record of Oral Hearing
`Held: May 3, 2023
`______________
`
`
`
`Before SCOTT B. HOWARD, PAUL J. KORNICZKY, and
`BRENT M. DOUGAL Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
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`
`
`Entered: June 6, 2023
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`GOOGLE LLC and ECOBEE TECHNOLOGIES ULC,
`Petitioner,
`
`v.
`
`ECOFACTOR, INC.,
`Patent Owner.
`______________
`
`IPR2022-00538
`Patent 9,194,597
`______________
`
`Record of Oral Hearing
`Held: May 3, 2023
`______________
`
`
`
`Before SCOTT B. HOWARD, PAUL J. KORNICZKY, and
`BRENT M. DOUGAL Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2022-00538
`Patent 9,194,597
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`ELIZABETH A. LAUGHTON, ESQ.
`Smith Baluch LLP
`700 Pennsylvania Avenue, SE
`Washington, D.C. 20003
`(703) 585-8839
`laughton@smithbaluch.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JONATHAN D. LINK, ESQ.
`Russ August & Kabat
`800 Maine Avenue, SW
`Washington, D.C. 20024
`(310) 826-7474
`jlink@raklaw.com
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday, May
`
`3, 2023, commencing at 9:00 a.m. at the U.S. Patent and Trademark Office,
`1961 Stout Street, Denver, Colorado.
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`IPR2022-00538
`Patent 9,194,597
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`P R O C E E D I N G S
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`(9:00 a.m.)
`
`JUDGE DOUGAL: Good morning.
`This is the hearing for IPR 2022-00538. Before I read my opening, I
`
`want to clarify. I believe we have two hearings today, the 00538 case and
`the 00473. From the schedule, my understanding is we're planning on doing
`these separately, the 538 right now at 9 o'clock and then the 473 at noon. Is
`that everyone's -- the parties' understanding?
`
`MR. LINK: Yes, Your Honor.
`
`MS. LAUGHTON: Yes.
`
`JUDGE DOUGAL: Just to get that out there, make sure the hearing
`staff and everybody is consistent across the board that that's what we're
`doing today. There was a little confusion because sometimes when we have
`two hearings, we consolidate them and do them all at the same time, but that
`is not the plan for today.
`
`So hopefully -- is that what you were informed as well?
`
`THE COURT REPORTER: I just was told to be here all day.
`
`JUDGE DOUGAL: All right. That works, that works. Excellent.
`Okay.
`
`So this is the hearing again for IPR 2022-00538. We are officially
`now on the record for this case. I am Judge Dougal. I am joined virtually by
`Judges Howard and Korniczky. So we thank you all for being here today
`and taking the time to go over these cases with us.
`
`As you know, even though this hearing is not virtual, we have two
`judges who are virtual, and so it's just as important as normal to speak into
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`IPR2022-00538
`Patent 9,194,597
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`the microphone, make sure your microphone is on, its important for the
`record to identify which slide, or demonstrative you are referring to. We
`have the slides. We have the full record before us. So if you have any
`questions about that, please let us know.
`
`I also want to make you aware that we do have a public line listening
`in, and I'm sure you probably have colleagues who are listening on the
`phone; and I know that it's being used today.
`
`So with that to start us off, we will start with counsel. So who do we
`have today for Petitioner?
`
`MS. LAUGHTON: This is Elizabeth Laughton, representing
`Petitioner, Google LLC.
`
`JUDGE DOUGAL: And for Patent Owner?
`
`MR. LINK: Good morning, Your Honor. Jonathan Link of Russ
`August & Kabat on behalf of Patent Owner EcoFactor.
`
`JUDGE DOUGAL: Jonathan Lincoln, did you say?
`
`MR. LINK: Link, L-i-n-k.
`
`JUDGE DOUGAL: Okay. So I believe we have a full hour, right, for
`both sides. Petitioner, how much time would you like to reserve for
`rebuttal?
`
`MS. LAUGHTON: 15 minutes, Your Honor.
`
`JUDGE DOUGAL: 15 minutes. Okay. Mr. Link?
`
`MR. LINK: 20 minutes, Your Honor.
`
`JUDGE DOUGAL: 20. Okay. Great.
`
`Ms. Laughton, please proceed when you're ready.
`
`MS. LAUGHTON: Can everyone hear me? Okay. Great.
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`IPR2022-00538
`Patent 9,194,597
`
`Good morning, Your Honor. May it please the Board. My name is
`
`Elizabeth Laughton from Smith Baluch LLP, and I represent the Petitioner,
`Google LLC, in this inter partes review of the '597 patent.
`
`I'd like to focus my presentation today on the claim elements that are
`disputed by the Patent Owner EcoFactor in its briefings, but before I turn to
`that, I'd first like to discuss the independent claims, claims 1, 9, and 17, and
`some of the differences in these claims.
`
`Now, with reference to Slides 2 and 3, here I've reproduced the
`independent claims. All three independent claims here relate to detecting a
`manual change to a thermostat set point. So as just an example for
`reference, in the context of these claims, there's a programmable thermostat
`and it's controlling the inside temperature of the structure to a particular set
`point. It's turning on the heating or the cooling to maintain the inside
`temperature at or around that particular temperature. And then, as an
`example, it isn't cool enough for a user, so the user walks up to the
`thermostat and changes that set point to a lower value. That would be an
`example of a manual change to a set point. In the claims system, the
`methods can detect the user has made such a manual change.
`
`Claim 9 additionally cites that the manual changes are incorporated
`into programming. As can be seen in the last element, a set point is then
`changed based on a rule for the interpretation of the user 's manual change.
`
`Now, all three claims involve storing data. This data consists of
`inside and outside temperature measurements, and they also involve
`predicting changes in inside temperatures in response to outside
`temperatures. All three claims involve calculating an automated set point
`for the HVAC system, and in particular in claims 9 and 17, this calculation
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`IPR2022-00538
`Patent 9,194,597
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`is based on predicted rate of change. Now, claim 9 doesn't actually recite a
`predicted rate of change earlier in the claim, but it does mention a predicted
`rate of change when it says that the programming is calculated based on that
`predicted rate of change.
`
`Claim 1 and claim 17 involve the use of a difference value. Looking
`specifically on Slide 2, in claim 1, this difference value is calculated by
`comparing an automated set point to an actual set point.
`
`Now, with reference to Slide 4, the petition presents one ground of
`unpatentability, obviousness based on the Ehlers '330 reference, the Wruck
`reference, and the knowledge of a person of ordinary skill in the art.
`EcoFactor only challenges certain portions of Petitioner's case for
`patentability with respect to the independent claims. EcoFactor does not
`specifically raise any issues relating to the dependent claims, and on this
`slide, I've listed the limitations that EcoFactor has argued or not rendered
`obvious by the prior art.
`
`Now, with reference to Slide 5, I'd like to begin -- unless there are any
`particular questions from the board, anything you'd like me to start with first,
`I'd like to begin by talking about an issue which affects all of EcoFactor's
`arguments. EcoFactor argues --
`
`JUDGE DOUGAL: I'd like to ask a few things real quick.
`
`MS. LAUGHTON: Sure.
`
`JUDGE DOUGAL: So, first of all, there's an argument by both
`parties about level of skill in the art, but at the same time, I did not
`necessarily see in the papers anywhere where that difference in level of skill
`in the art was argued -- made a difference in a particular claim limitation,
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`IPR2022-00538
`Patent 9,194,597
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`and so one question I have is whether that dispute, in essence, matters for
`any particular claim or claim limitation.
`
`MS. LAUGHTON: In our view, the Petitioner's level of ordinary skill
`in the art should be adopted, but, however, the challenge claims are obvious
`under either proposed definition. And so from our view, the difference in
`the parties' proposed definition does not make a difference with respect to
`the obviousness of the challenged claims.
`
`JUDGE DOUGAL: Okay. Thank you. And then, also, as we
`mentioned this today, we're here for this case today and the 473 case today.
`Even though we're not consolidating the hearings, if, you know, the
`discussions you're going to go into, for example, on Ehlers and the thermal
`gain, if you believe -- if you essentially need to make the same argument
`now and again in the later hearing, we are, of course, more than willing,
`since we're the same panel on both, to hear it once and to then, in essence,
`put this transcript in both cases, or I believe we have another hearing next
`week again with the same panel. You know, if there are any parts of the
`arguments that we can save even a little bit of time and put this transcript
`again in that hearing, we're open to do that as well. And so it may be
`worthwhile as you -- to put it in the record if you want to mention, you
`know, this argument applies to the 573 -- the 538 case or also the 473 or
`some other case, that would be perfectly acceptable. Obviously, you don't
`have to.
`
`Sorry for taking up a little bit of your time there.
`
`Probably what you'll do in this regard. I imagine you're both inclined
`to do that, but after the hearing, you can get together and decide officially if
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`IPR2022-00538
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`you want to take that step and have this transcript put in the other cases or
`not. So we'll give you that freedom to discuss.
`
`Is there any questions on that on either side?
`
`MR. LINK: No.
`
`JUDGE DOUGAL: No? Okay.
`
`Okay. So getting back to your argument and thermal gain, in this
`case, there is -- you know, the way it was presented, right, in the Patent
`Owner response is there's an extended argument about the meaning of
`thermal gain, and then there's application to the claims. And so, obviously,
`we need to understand some background as to Ehlers and thermal gain, but
`the real issue is what the claims actually require and how it relates to the
`claims.
`
`And so for the -- for this case, one question I have is whether we have
`to come up with a definition. Do we have to -- even though thermal gain is
`not in the claims, do we have to, in essence, construe the term and come up
`with a formal definition of what it means or of how Ehlers defines it or uses
`it to be able to determine if the claims teach it or don't require thermal gain?
`I guess that's one of my main questions in this area. So with that, I'll turn it
`back over to you.
`
`MS. LAUGHTON: Sure. Before I get to your specific question about
`thermal gain, I'll just let you know that I do believe that the arguments
`regarding thermal gain and the use of predictive rates of change apply to
`both cases. So what I plan to do -- because that is one of the other principal
`issues that's been presented in these cases, I plan to start with that and
`address that in this argument here for the '597 patent and then really not
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`IPR2022-00538
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`reprise any of that in the '186 unless there's specific questions that the board
`has --
`
`JUDGE DOUGAL: Okay.
`
`MS. LAUGHTON: -- but we do believe that the arguments relating to
`thermal gain and the predicted rates of change apply to both cases.
`
`So I don't think that the board needs to adopt any specific definition of
`thermal gain. I think that it's clear that Ehlers '330 teaches rates of change
`with inside temperature, particularly with respect to Figure 3D, and more
`broadly than just the usage of thermal gain. I think part of where the dispute
`is coming from is that when Ehlers uses the term "thermal gain," as Mr.
`Shah, Petitioner's expert, explains, what it's referring to is the rate of change
`of inside temperature.
`
`And this is actually very similar to the '597 patent and also, just for
`reference, the '186 patent that we'll get to later today, which refers to the
`thermal mass, essentially, as the rate of change of inside temperature. So a
`person of ordinary skill in the art reading the term "thermal gain" in the
`context of the Ehlers '330 reference would understand that that's what it's
`referring to.
`
`So unless there are any further questions, I'll do exactly what you
`suggested --
`
`JUDGE KORNICZKY: Counsel, this is Judge Korniczky.
`
`MS. LAUGHTON: Pardon me.
`
`JUDGE KORNICZKY: Would you please explain what your
`understanding of Patent Owner's position is about the definition of thermal
`gain and the temperature change --
`
`MS. LAUGHTON: Sure.
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`IPR2022-00538
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`JUDGE KORNICZKY: -- the rate of temperature change?
`
`MS. LAUGHTON: Sure. So my understanding of the Patent Owner's
`
`position I think only really became somewhat clear when I read the surreply.
`So in the petition, we set forth that Ehlers '330 does teach the rates of change
`of inside temperature, and we noted that when it's using the term "thermal
`gain," that's what it's referring to there.
`
`So then in the Patent Owner response, EcoFactor essentially argued
`that the thermal gain rate is not the rate of change of inside temperature. It
`said -- I think I'm paraphrasing, but something along the lines of it's the
`addition of heat into the building.
`
`And so this was somewhat confusing because it's very clear that
`Ehlers '330 refers to the thermal gain rate in units of degrees over time.
`That's what it's talking about. In Figure 3D, it's specifically tracking the
`temperature and it's tracking the time. Dr. Palmer, EcoFactor's own expert,
`actually admitted that Ehlers '330 is tracking -- is measuring thermal gain by
`tracking the temperature and the time, and EcoFactor didn't really identify
`any other way in which it would be measuring the addition of heat or
`anything like that other than just by tracking the temperature and the time.
`
`So if you're tracking the temperature and the time and you're tracking
`that over time, what you end up with is the slope of that, would be the rate of
`change of inside temperature over time.
`
`So then when I read the surreply, I think what I understood
`EcoFactor's argument to be -- and, actually, I have a slide that's sort of
`specifically directed to this, and maybe if I go to that, that might be helpful.
`This is in particular with reference to Slide 18. I'll give you a moment to get
`there.
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`In surreply, EcoFactor essentially argued that the thermal gain rate
`
`essentially -- sometimes is the same as the rate of change of inside
`temperature, but then sometimes it's not, right, and it admits it here when it
`says, "It's often quite different from the rate of change of temperature." That
`means that sometimes it is not different.
`
`And as I understand their argument, actually, when the HVAC system
`is off, so the system is not cycling at all, the system is not working to cool or
`to heat, it's just off, and we have the temperature drifting in the structure in
`response to, for example, the, you know, hot outside temperature outside.
`The rate of change of inside temperature, I think, would be exactly
`equivalent to even what EcoFactor thinks the thermal gain rate is here. And
`I think that's what it's trying to say here.
`
`And, of course, as we explain in the briefing, in Ehlers' Figure 3D,
`that's exactly what it's doing. It's turning off the HVAC system, and it's
`allowing the temperature to drift and the reason there's no active cooling or
`heating or anything going on in that figure. And the reason that Ehlers '330
`is doing this is because it wants to, as it says, learn the thermal gain
`characteristics of the structure. It wants to understand how the structure
`reacts, for example, to changes in outside temperature. That information is
`useful because then you can model the structure in the future.
`
`And so -- let me just finish my answer to your question then. So I
`think that what I now understand EcoFactor to be saying in surreply is that it
`isn't different -- sorry, it is different -- apologies -- when the HVAC system
`is off, and they think that when the HVAC system is on, somehow the
`thermal gain rate is not the same as the rate of change of inside temperature.
`And I think the way that Ehlers '330 is using it is that it is the same. I don't
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`IPR2022-00538
`Patent 9,194,597
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`think it's distinguishing between that. EcoFactor certainly hasn't identified
`any way in which you could sort of break out the two effects, right, so the
`effect of the outside temperature and the effect of the HVAC system. It isn't
`like you can say, okay, this is adding this amount of change of temperature
`and this is adding that amount of change. They haven't identified any way to
`do that.
`
`What you can do, though, is you can track the inside temperature over
`time. And then you buy that. You can learn how quickly, for example, the
`HVAC system is cooling.
`
`That is what I think now I understand their position to be on the
`difference between the two, but I would say that, again, ultimately, even if
`EcoFactor is correct, right -- I don't think this is the case, as Mr. Shah
`explains in particular in his reply declaration, but even if EcoFactor is
`correct and when the HVAC system is actually on during the portions when
`it's on and cooling that somehow the thermal gain rate is not the same as the
`rate of change of inside temperature, it is the case that it is the same when
`it's off, and Ehlers '330 teaches doing it when it's off. The claims don't
`require that the HVAC system be on. They're agnostic as to whether it's on
`or off, and I think in particular EcoFactor admitted that in its surreply. And
`so Ehlers '330 clearly teaches the rate of change of inside temperature in that
`context when the HVAC system is off at the very minimum.
`
`Does that answer your question? Do you have any follow-up on that?
`
`JUDGE KORNICZKY: Yes. No.
`
`MS. LAUGHTON: Okay. So then turning back to Ehlers' teachings,
`I think I probably went over a lot of it in some sense in that soliloquy, but I
`just wanted to point out a couple of the key pieces of evidence here, and also
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`just before I do this, I also want -- I had mentioned Mr. Shah's reply
`declaration, and in response to EcoFactor's arguments presented to the
`Patent Owner's response, we offer to apply the declaration from Mr. Shah,
`and he went into great detail explaining exactly why Ehlers is teaching the
`rate of change of inside temperature and also how it's using that in order to
`predict the behavior of the system.
`
`And EcoFactor did not seek to depose Mr. Shah on that declaration,
`and his declaration testimony stands sort of unchallenged, unrebutted here,
`unrebutted. EcoFactor's surreply actually sort of ignores the vast majority of
`that declaration in evidence, and I would submit that EcoFactor's choice to
`keep its head in the sand regarding Mr. Shah's testimony demonstrates really
`the weaknesses of its position in terms of its interpretations of Ehlers '330.
`
`So in reference to Slide 6 in terms of some of the key teachings,
`Ehlers '330 teaches tracking and learning about the thermal gain
`characteristics of the home. In order to do this, it tracks, as I said, the inside
`temperature in the home over time given different initial set point
`temperatures and also given different outside temperatures. In particular, as
`Figure 3D here suggests, the temperature is measured in 4 minutes per
`interval, is what it says. So the slopes of the lines in Figure 3D are rates of
`change of inside temperature over time.
`
`And moreover, it's clear that Ehlers '330 determines thermal gain in
`units of inside temperature over time, as we can see here in this excerpt from
`Paragraph 255 when it specifically says that the rate of thermal gain per hour
`would be set at 3 degrees Fahrenheit per hour. That's temperature over time.
`
`Turning now to Slide 7, as I mentioned, in Figure 3D, the HVAC
`system is off and it's not cycling to maintain the inside temperature at a set
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`point, and as I mentioned, Ehlers '330 does this in order to learn about the
`thermal characteristics of the home. This is useful information. It allows it
`to better control the system in order to balance costs and comfort.
`
`And the fact that the HVAC system is off in Figure 3D can actually be
`seen from Ehlers '330 text accompanying that figure where it talks about
`what happens as the indoor temperature begins to reach the outside
`temperature. This only ever happens if an HVAC system is turned off and
`the inside temperature is allowed to drift. Normally, if it's on, what you'd
`want to do is to keep it controlled to a particular set point temperature.
`
`So as I mentioned, EcoFactor's declarant, Dr. Palmer, clearly realizes
`that Ehlers '330 Figure 3D illustrates rates of change of inside temperature
`over time. He admits that it tracks the thermal gain by tracking the inside
`temperature and the time. If that's the case, as Dr. Palmer admits, it has
`units of temperature over time.
`
`Turning now to Slide 9, Dr. Palmer's declaration testimony recognizes
`the same, specifically that in Figure 3D, the HVAC system is off and Ehlers
`'330 is measuring how much the inside temperature changes over time.
`Now, these are unqualified statements in his declaration. He is providing his
`testimony regarding what the reference teaches.
`
`Reproduced here on Slide 10 are more declaration statements from
`Dr. Palmer. He recognizes that the slopes of the lines in Figure 3D reflect
`rates of change of temperature over time and that the HVAC system is not
`functioning to control the temperature of the structure in those particular
`circumstances presented here in Figure 3D.
`
`Here, with reference to Slide 11, he also recognizes that this rate of
`change of inside temperature is affected by the different initial set point
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`IPR2022-00538
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`temperatures. So as I mentioned, what happens is that the system controls
`down the temperature to hit a particular set point, and then it turns it off and
`lets it drift; and so those are the initial set point temperatures that Dr. Palmer
`is referencing here. And also, it's affected by the outside temperature.
`
`With reference to Slide 12, as Mr. Shah testifies, a person of ordinary
`skill in the art would know how to calculate rates of change of inside
`temperature. Dr. Palmer, he testifies that it's fairly straightforward and easy
`to do.
`
`And as I mentioned previously with reference to Slide 13, Ehlers
`'330's use of the term "thermal gain rate" is, in fact, similar to '597 patent's
`own terminology, which defines these factor thermal structures as speed,
`right, which is a rate of change of temperature inside a building. And as I
`mentioned before and I think Your Honors would see in the slides, in
`particular for the '186 patent, there's similar disclosures.
`
`So nonetheless, despite all of this, EcoFactor is still arguing that
`Ehlers '330 does not determine rates of change of inside temperature. In
`particular, in his declaration accompanying the factors of Patent Owner's
`response, Dr. Palmer opines that the thermal gain rate is the rate at which
`energy is absorbed. Now, he cites nothing in support of this, including
`nothing in particular of Ehlers. It's not like he points to some portion of
`Ehlers where it talks about energy being absorbed.
`
`Ehlers '330 nowhere discusses measuring energy in connection with
`determining a thermal gain rate. Dr. Palmer certainly points to nothing nor
`does he make any attempt to reconcile his testimony with the '597 patent's
`own description of the rate of change of inside temperature of the thermal
`mass construction.
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`JUDGE KORNICZKY: So if that position is correct, then what
`
`would the units be? Would it be temperature over time?
`
`MS. LAUGHTON: Temperature over time, yes. I mean, that, in
`particular, is the way in which Ehlers '330 uses that. It talks about degrees
`Fahrenheit over a particular period of time. I suppose you could -- I'm sorry.
`Go ahead.
`
`JUDGE KORNICZKY: Earlier, you were saying it was energy, the
`rate of change of energy.
`
`MS. LAUGHTON: Right, and that's -- sorry.
`
`JUDGE KORNICZKY: What would the units be in that case? Would
`it be temperature still?
`
`MS. LAUGHTON: There's no evidence on that point. I don't know
`what the units would be there. EcoFactor has not pointed to what the units
`would be other than just what we see from Ehlers '330 already, which is
`temperature over time, and so if you're tracking temperature over time, you
`have rates of change of temperature over time.
`
`JUDGE KORNICZKY: So if the thermal gain -- rate of thermal gain
`was rate of heat, what would the units be? Would it still be temperature or
`would it be Btus over time?
`
`MS. LAUGHTON: Your Honor, there actually is no evidence on that
`in this proceeding. I think that's a very good question, and I think that that
`exposes sort of the weaknesses of EcoFactor's position. They haven't
`pointed to anywhere where Ehlers is tracking Btus or using some other
`measure of tracking the amount of heat that's added into some kind of
`system. There's nothing on that that I'm aware of in any of the evidence
`that's been provided. Instead, all of the evidence is unequivocal that the
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`IPR2022-00538
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`thermal gain, again, as Dr. Palmer in particular testified, is tracked by
`measuring temperature and time.
`
`So, great, I think that just takes me through the rest of that part of the
`interview. Just real quick with reference to Slide 14, EcoFactor tries to
`suggest that Mr. Shah's testimony is equivocal on this, that he's not certain
`about Ehlers' teachings, and his testimony, in fact, is very clear. He says in
`his declaration it's clear to me within the context of Ehlers '330 this is what
`he's doing. In particular, if you look at the portion of his deposition
`testimony that EcoFactor has cited, which is reproduced here on Slide 14, he
`also makes very clear that he understands that the way that Ehlers is looking
`at it, this is what it's doing. He doesn't express any uncertainty about it.
`
`So the apparent basis for EcoFactor's argument that Ehlers '330 does
`not disclose the rates of change of inside temperature is based on Ehlers'
`Figures 3E and 3G. And EcoFactor asserts that these figures are purportedly
`inconsistent with the teaching of a thermal gain rate as a rate of change of
`inside temperature and therefore it has to be something else. Now, they
`never said exactly what it is or how it could be measured, as you noted, but
`it has to be something else according to EcoFactor.
`
`Now, instead, these figures are actually entirely consistent with
`Petitioner Mr. Shah's understanding. So as the petition explains, these
`figures represent circumstances in which the HVAC system is on and
`cycling. So it's working to maintain the inside temperature at or near a set
`point, and as Mr. Shah testifies, a person of ordinary skill in the art would
`understand that these thermal gain rates, the ones that are actually
`specifically -- sorry, specifically graphed here are representing portions of
`the HVAC cycle when the system is off, and the inside temperature in these
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`IPR2022-00538
`Patent 9,194,597
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`contexts, in a cooling context, is rising in response to, for example, hot
`conditions outside.
`
`And so to understand why this is the case, it might be helpful to just
`review briefly what an HVAC cycle is, and so Slide 16 here is a diagram
`depicting an exemplary cooling cycle. So as we can see, even though the
`HVAC system is on and cycling, it's not actually actively cooling all the
`time. Instead, as I'm sure we're all familiar with from the operation of
`HVAC systems in our own homes, the cooling turns on and off. And so
`when the inside temperature rises, once it hits a particular temperature
`control limit, which is sometimes referred to as a dead band, this then
`triggers the cooling on portion of the cycle to come back on -- you hear it
`click on -- and then the system cools the temperature back down again to the
`set point. So this process is repeated each cycle.
`
`So as the HVAC system cycles on and off --
`
`JUDGE HOWARD: This is Judge Howard.
`
`MS. LAUGHTON: Sure.
`
`JUDGE HOWARD: So if I'm looking at this example in diagram A
`where it says rate of change of 2.5 degrees Fahrenheit per hour, that would
`correspond to the thermal gain rate, and then when we look at it during its
`cooling, when it's minus 1.67 degrees per hour, that's not the thermal gain
`rate because the air conditioning is on and you're actually not being -- that
`place isn't being heated, the unit is actually being cooled. Is that
`understanding correct?
`
`MS. LAUGHTON: I think that's partially correct, Your Honor. So
`certainly during that portion when it's off, that is the rate of change of inside
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`temperature, and that corresponds to the thermal gain rate, I think, as I
`mentioned, even under EcoFactor's understanding.
`
`Now, Mr. Shah's testimony is that Ehlers '330 is using the term
`"thermal gain rate" to -- sort of broadly to refer to the rate of change of
`inside temperature over time. So Ehlers '330 would also refer to that cooling
`rate as the rate of thermal gain as well. Right? And --
`
`JUDGE HOWARD: But that's not reflected in Figure 3E. I mean
`Figure 3E, for example, shows it getting quite warm out, so warm that the
`unit is cycling so that it's 80 percent on, but it sort of shows a constant
`thermal -- positive thermal gain rate. So there's always being some heating
`going on even though the temperature is so high that the air conditioning is
`on all the time.
`
`So it seems to me that when it's mapping the thermal gain rate, it's
`talking about it only during those parts of the cycle where the air
`conditioning is on.
`
`MS. LAUGHTON: I think Your Honor is correct, that in Figures 3E
`and 3G, what it in particular is depicting there is the portion of the cycles
`when it's off because -- let's just think about it, for example. Say we have
`three-hour time intervals here. Let's just say over a particular hour, I mean,
`what actually is going to happen is that -- is that -- actually, over the period
`of the entire day, you know, the net, right, is going to be no change in
`temperature, right? Nobody thinks that the temperature is just accelerating
`into infinity, as EcoFactor sort of suggests might be an interpretation of this
`here. What's happening is the temperature is rising and it's being cooled
`down and it's rising and it's being cooled back down. So what's happening
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