Trials@uspto.gov
`571-272-7822
`
`Paper No. 25
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______
`
`GOOGLE, LLC,
`Petitioner,
`v.
`ECOFACTOR, INC.,
`Patent Owner.
`__________
`IPR2022-00475
`Patent 8,740,100
`__________
`Record of Oral Hearing
`Held: May 11, 2023
`__________
`
`Before SCOTT B. HOWARD, PAUL J. KORNICZKY, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`

`

`IPR2022-00475
`Patent 8,740,100
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`ELIZABETH A. LAUGHTON, ESQ.
`of 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.
`of 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 Thursday, May 11,
`2023, commencing at 8:59 a.m. at the U.S. Patent and Trademark Office,
`1961 Stout Street, Denver, Colorado.
`
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`IPR2022-00475
`Patent 8,740,100
`
`
`P-R-O-C-E-E-D-I-N-G-S
`
`(8:59 a.m.)
`JUDGE KORNICZKY: Good morning. This is a hearing in IPR
`
`2022-00475, Google versus EcoFactor. As I said, I'm Judge Korniczky. To
`my right is Judge Dougal, and on the screen is Judge Howard.
`
`Counsel for Petitioner, would you please identify yourself for the
`record?
`
` MS. LAUGHTON: Good morning, Your Honors. My name is
`Elizabeth Laughton from the law firm of Smith Baluch LLP, representing
`the Petitioner, Google, LLC. I have with me here [on the public phone line]
`Chester Day, who is in-house counsel at Google, and I believe on the line we
`also have Emily Chen, who is in-house counsel at Google, and Matt Smith,
`who is also from my law firm, Smith Baluch.
`
`JUDGE KORNICZKY: Would you please move the mic closer to
`you?
`
` MS. LAUGHTON: Sure. Was everybody able to hear that or do I
`need to repeat it?
`
`JUDGE KORNICZKY: That was good. Thank you.
`
`And counsel for Patent Owner?
`
` MR. LINK: Good morning, Your Honor. Jonathan Link of the law
`firm Russ August & Kabat on behalf of the Patent Owner, EcoFactor.
`
`JUDGE KORNICZKY: All right. Thank you. It's good to see you
`all again. So we have, I guess, agreed to give the parties 60 minutes each.
`MS. Laughton, how much time do you want to save for rebuttal?
`
` MS. LAUGHTON: May I please reserve 20 minutes?
`
`JUDGE KORNICZKY: 20 minutes. Okay.
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`IPR2022-00475
`Patent 8,740,100
`
`All right. First of all, thank you for filing that summary of the
`
`different litigations and proceedings. That was helpful. And then, last week
`in our hearing in the morning, which I cannot remember the case number,
`we had agreed to incorporate the transcript into this case because some of
`the issues are the same. And I guess one of the things I want to ask is during
`your argument, if there's anything you want to add to your argument from
`last week, you know, please be sure to do so. Okay? There's no reason to
`repeat everything, but if there's something new you want to add, that would
`be helpful.
`
` MS. LAUGHTON: Thank you, Your Honor. May I ask a question?
`
`JUDGE KORNICZKY: Sure.
`
` MS. LAUGHTON: Our understanding is all three of the transcripts
`would be incorporated in all three of the cases. Is that the board's intention?
`
`JUDGE KORNICZKY: If it's agreeable to the parties, yes.
`
` MR. LINK: It's agreeable to the Patent Owner, Your Honor.
`
` MS. LAUGHTON: Great. Thank you.
`
`JUDGE DOUGAL: So Petitioner, ready?
`
` MS. LAUGHTON: Yes, Your Honor.
`
`JUDGE KORNICZKY: The other thing I want to make sure you do -
`- you know, Judge Howard is on the screen -- when you're going through
`your slides, your PowerPoint presentation, please be sure to identify the slide
`so Judge Howard can follow along and the court reporter can follow along as
`well.
`
` MS. LAUGHTON: Absolutely. I will do my best.
`
`Judge Howard, can you hear me?
`
`JUDGE HOWARD: Yes, I can hear you.
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`IPR2022-00475
`Patent 8,740,100
`
` MS. LAUGHTON: Good morning, Your Honors. May it please the
`
`board. My name is Elizabeth Laughton from the law firm of Smith Baluch
`LLC, and I represent Petitioner, Google, LLC, in connection with this inter
`partes review of the '100 patent. At the outset, I'd like to start by answering
`the board's question which was posed at the hearings last week in the IPR of
`the '186 and '597 patents regarding the level of ordinary skill in the art.
`Petitioner submits that the challenged claims of the '100 patent are obvious
`under either proposed level of ordinary skill and that the obviousness of the
`challenged claims does not turn on the level of ordinary skill adopted here.
`
`Turning to the next issue, in connection with the '597 and '186 patent
`IPRs last week, the parties presented argument regarding Ehlers '330 rate of
`change teachings. As we've discussed, but I'd like to reiterate here, the
`evidence and argument in this proceeding is very similar. Again, MR.
`Shah, Petitioner's expert, submitted a reply declaration explaining Ehlers
`'330's use of its thermal gain rates, and EcoFactor did not seek to depose
`MR. Shah on that declaration and, again, largely ignores it in its surreply. I
`don't plan to reprise all of those arguments in detail unless the board has any
`specific questions, but I would like to address a couple of discrete issues
`relating to Ehlers '330's teachings with respect to the claim limitations at
`issue here.
`
`So turning to what is Slide 6 of Petitioner's demonstratives, first, as
`we've discussed, EcoFactor argues here, as well as in the other IPRs, that the
`thermal gain rate taught by Ehlers '330 is the rate of heat absorption. As we
`have seen, Ehlers '330 teaches tracking the thermal gains by measuring the
`temperature and the time, as Patent Owner's expert Dr. Palmer admits, and
`we can see this in particular on Slide 6.
`
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`IPR2022-00475
`Patent 8,740,100
`
`Turning to Slide 4, Ehlers '330 also refers to the thermal gain rate as
`
`having units of degrees Fahrenheit per hour, temperature over time. As we
`can see here on Slide 4, in particular over here on the right-hand side,
`referring to the rate of thermal gain per hour would be set at 3 degrees
`Fahrenheit per hour. Ehlers '330 never talks about measuring energy when
`it's talking about thermal gain rates. Instead, it's talking about tracking the
`inside temperature over time as Dr. Palmer admitted. Further, by measuring
`the temperature over time, Ehlers is, of course, measuring heat absorption
`because as the structure absorbs heat, the inside temperature changes.
`
`There's one other issue that I would like to address with respect to
`claim element [1e] here, and that is the particular language in response to at
`least changes in outside temperatures.
`
`JUDGE KORNICZKY: Before we get to that?
`
` MS. LAUGHTON: Sure.
`
`JUDGE KORNICZKY: What are the units in Figures 3E and 3F? It
`talks about thermal gain rate per hour.
`
` MS. LAUGHTON: Sure. So as MR. Shah testifies, a person of
`ordinary skill in the art would also understand that to be referring to degrees
`Farenheit per hour in this context.
`
`JUDGE KORNICZKY: Is there any discussion in the spec about
`that?
`
` MS. LAUGHTON: I think that the specification in particular talks
`about tracking the thermal gain over time and refers to it in degrees
`Fahrenheit per hour, and then particularly with reference to -- turning to
`Slide 4, the discussion in Paragraph 255, talking about the thermal gain per
`hour being set at 3 degrees Fahrenheit per hour, and I think that discussion in
`particular in Paragraph 255 is in the context of talking about all of these
`
`
`
`6
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`

`

`IPR2022-00475
`Patent 8,740,100
`
`thermal gain rates; and that would be inclusive of the Figures 3E and 3G that
`are being discussed in this section of Ehlers '330.
`
`Also, as MR. Shah testifies and explains in particular in detail in his
`reply declaration, the thermal gain rates that one sees in Figures 3E and 3G
`are, in fact, very consistent with the types of thermal gain rates that we're
`looking at here in Figure 3D, in particular where we see intervals of time,
`and then we see temperature, again, beginning at an initial setpoint and then
`allowing the temperature to drift. That also further informs him that the
`rates in Figures 3E and 3G would be understood to be units of degrees
`Fahrenheit per hour.
`
`And unless there are any other questions on that point, I will turn then
`back to Slide 19. Oh, I would just observe one quick thing here, looking in
`particular at Slide 18. We do see that it says the thermal gain rate per hour
`right here on the particular legend. So we do understand that it is per hour
`and, in the context of the rest of the disclosure, would understand those
`numbers to be referring to degrees Fahrenheit.
`
`So then turning back to Slide 19, I wanted to briefly talk about the
`claim language at issue here, this claim language or similar claim language
`at issue in the '186 and the '597 patent cases, and this is the language in
`response to at least changes in outside temperatures. Petitioner's position as
`set forth in its briefing is that because Ehlers '330 thermal gain rates are
`calculated for different outside temperature and vary with outside
`temperature, they are in response to changes in outside temperatures. And
`I'd also like to note that the '100 patent --
`
`JUDGE KORNICZKY: I'm sorry. Could you repeat that again? I
`lost you.
`
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`IPR2022-00475
`Patent 8,740,100
`
` MS. LAUGHTON: Sure. Petitioner's position as set forth in its
`
`briefing is that because Ehlers '330 thermal gain rates are calculated for
`different outside temperatures -- we saw that in particular with reference to
`3D, right? We have the different outside temperatures, and we see that it's
`tracking the thermal gain rates given different outside temperatures. We can
`also see that in Figures 3E and 3G. As Ehlers itself explains, the outside
`temperature is changing over time throughout the day, and we see the
`thermal gain rate changing in response largely to that change in outside
`temperature over time throughout the day. And so because they are
`calculated, they're indexed for those different outside temperatures, as Dr.
`Palmer himself testifies, and then they vary with outside temperature, they
`are in response to changes in outside temperature. And I'd like to note that
`the '100 patent provides little to no information regarding the meaning of
`this claim language. Petitioner points this out in reply, but I would just like
`to take the time specifically to emphasize it here.
`
`I reproduced here on Slide 19 the sole discussion in the '100 patent
`regarding predicting rates of change. As we can see, the '100 patent states
`that the system can predict the rate at which inside temperature should
`change for given inside and outside temperatures. That's what it's saying it
`can do here. And under the plain and ordinary meaning of the claim
`language, predicting the rate at which the inside temperature should change
`for a given outside temperature satisfies this claim language. It takes into
`account changes in outside temperatures because if the outside temperature
`is different or changes, a different predicted rate can be calculated and used.
`
`There's no support for any other use of outside temperatures in
`calculating the predicted rates of change in the '100 patent, and the same
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`IPR2022-00475
`Patent 8,740,100
`
`goes also for the '597 patent and the '186 patent. We do address this in our
`briefing, but I just wanted to take the time to highlight that here.
`
`Unless there are any questions from the board regarding Ehlers '330 or
`the rates of change, I'd like to turn to what is the principal issue in this
`proceeding, which relates to claim element [1f].
`
`So here on Slide 23, we can see the claim language for claim element
`[1f] here. And just as a bit of background to situate us regarding this claim
`language, the two intervals here referred to in [1f] refer back to claim
`element [1b], which describes at least two settings for a delay. Those
`settings are for a first interval and a second interval that's longer than the
`first interval. So these two intervals that we see here that we're talking about
`here in claim element [1f], they're the intervals for the settings for delay.
`And these settings for delay per the claim language previously in [1b],
`they're enforced by the thermostatic controller after the system is turned off
`and prior to allowing it to signal the system to turn on again.
`
`So turning to Slide 24, the petition argues that this claim element is
`obvious in view of the combination of Ehlers '330 and the McLellan
`reference. Here on Slide 24, I have reproduced the three different delays
`that are taught by McLellan and that are relied upon in the petition. Before
`turning to the specifics of the use of these delays, I'd like to note that
`EcoFactor does not dispute that a person of ordinary skill in the art would be
`motivated to or would have a reasonable expectation of success in using all
`three of these delays, all three of these features in Ehlers '330 system.
`
`The first delay at issue is McLellan's safety delay. The parties appear
`to agree that this is a minimum delay in order to protect the compressor.
`The parties also appear to agree that it is and would always be implemented.
`You don't want to ever have a delay that is shorter than the safety delay
`
`
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`

`IPR2022-00475
`Patent 8,740,100
`
`because that would risk damage to the compressor. Everyone seems to be in
`agreement about that.
`
`JUDGE KORNICZKY: Can you change that or is that set, set by the
`compressor manufacturer?
`
` MS. LAUGHTON: My understanding is that the safety delay is a
`standard element in most compressors -- most, if not all, compressors and
`that it is normally set by the manufacturer.
`
`JUDGE KORNICZKY: Is that going to be set by time or
`temperature?
`
` MS. LAUGHTON: My understanding is that it is irrespective of time
`and temperature. What it does is that when the HVAC system is -- turns off,
`essentially then there is a delay that would prevent it from restarting again
`immediately, say just a couple minutes later -- or actually let's just say one
`minute later because it can have a variable amount. Because what you don't
`want is to have the compressor turn on and off very rapidly. That can
`damage it.
`
`And I think Your Honor's question might actually be going to the use
`of the rate of change and the outside temperature in setting the delays here,
`and so I think it might be helpful to talk a little bit about the claim language
`here because -- and again, with reference to Slide 23, which requires that the
`system "evaluate one or more parameters including at least the outside
`temperature measurements and the predicted rate of change, and to
`determine whether to adopt said first interval or said second interval based
`upon the values of said parameters," so the claim language here doesn't
`require that, for example, these intervals be consulted in determining
`whether to just adopt one interval full stop. What it requires is that the
`
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`IPR2022-00475
`Patent 8,740,100
`
`system choose between a first interval and a second interval by evaluating
`these parameters.
`
`So Petitioner's theory here is that -- there are two theories -- two
`separate independent theories here, the first with respect to the choice
`between the safety delay and then the safety delay plus the random delay,
`and then the second theory being the choice between the safety delay and
`then the cycling feature. And the Petitioner's theory here is that these
`elements would be considered in the choice whether to just adopt the plain
`old safety delay, which is the default, or to adopt the safety delay plus the
`random delay. So that's a choice between whether to adopt the first interval
`or the second interval and then similarly, with respect to the second theory,
`whether to just adopt a safety delay, which is the default, or to use the delay
`that would be created via the use of the cycling feature.
`
`JUDGE KORNICZKY: So let me back up here.
`
` MS. LAUGHTON: Sure.
`
`JUDGE KORNICZKY: So as I understand Petitioner's position, the
`first interval would be the safety delay?
`
` MS. LAUGHTON: That's correct, Your Honor.
`
`JUDGE KORNICZKY: Under both of your theories?
`
` MS. LAUGHTON: That's correct, Your Honor.
`
`JUDGE KORNICZKY: In your first theory, the second interval
`would be the safety delay plus the random delay?
`
` MS. LAUGHTON: Yes, Your Honor.
`
`JUDGE KORNICZKY: Now we turn to your second theory. The
`first interval is the safety delay. The second interval would be just the
`cycling feature or it would be the safety delay and the cycling feature?
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`IPR2022-00475
`Patent 8,740,100
`
` MS. LAUGHTON: Petitioner has identified it as the cycling feature
`
`because the interval of the cycling feature is going to be longer than the first
`interval, but, of course, the safety delay will always be implemented. So at
`any point, the safety delay will still be implemented, but the interval -- the
`second interval, which is created via the use of the cycling feature, is always
`going to be longer than the period of the safety delay. So that's what we've
`identified as the second interval. Sorry.
`
`JUDGE KORNICZKY: So with the random -- so you're saying in
`your second theory, the cycling feature will always be longer than the safety
`delay?
`
` MS. LAUGHTON: That's correct, Your Honor.
`
`JUDGE KORNICZKY: Let's go to your first theory.
`
` MS. LAUGHTON: Yes.
`
`JUDGE KORNICZKY: Wouldn't the random delay always -- I guess
`-- does the random delay have to be longer than a safety delay?
`
` MS. LAUGHTON: So it might be helpful to talk about McLellan's
`specific teaching with respect to the random delay. So I believe that
`McLellan states that the random delay can be set between 1 and 4 minutes.
`Right?
`
`JUDGE KORNICZKY: I'm sorry. Say that again.
`
` MS. LAUGHTON: McLellan states that the length of the random
`delay can be set between 1 and 4 minutes.
`
`JUDGE KORNICZKY: Right. Okay.
`
` MS. LAUGHTON: So here's the issue, is that if we were just looking
`at that time period absent thinking about the fact that a safety delay would
`also be implemented, that might actually -- a person of ordinary skill in the
`art would understand, and as MR. Shah testifies, that if you just allow it to
`
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`IPR2022-00475
`Patent 8,740,100
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`turn back on -- one of the systems in this instance to turn back on after 1
`minute, that might not be enough time --
`
`JUDGE KORNICZKY: No, I understand that.
`
` MS. LAUGHTON: -- for the safety delay. Yes.
`
`JUDGE KORNICZKY: Let's look at your Slide 27, which is the first
`one we come to.
`
` MS. LAUGHTON: Sure, sure.
`
`JUDGE KORNICZKY: At the top, you have your title, the safety
`delay. That's your first interval.
`
` MS. LAUGHTON: Correct.
`
`JUDGE KORNICZKY: And then it says, "OR 'Safety delay' plus
`'Random delay.'" That's your second interval.
`
` MS. LAUGHTON: Correct, Your Honor.
`
`JUDGE KORNICZKY: What I'm trying to understand -- and this is
`your first theory?
`
` MS. LAUGHTON: Yes, Your Honor.
`
`JUDGE KORNICZKY: In your second theory, what is the second
`interval?
`
` MS. LAUGHTON: So let me go to --
`
`JUDGE KORNICZKY: So I think you just passed it.
`
` MS. LAUGHTON: There it is.
`
`JUDGE KORNICZKY: On Slide 38, again, the title it says "'Safety
`delay.'" That's your interval. "OR 'safety delay' plus 'cycling feature,'" that's
`your second interval.
`
` MS. LAUGHTON: Sure. The Petitioner has mapped it --
`
`JUDGE KORNICZKY: Is that right? The second interval is the
`safety delay plus the cycling feature in your second theory?
`
`
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`IPR2022-00475
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`
` MS. LAUGHTON: I think the safety delay would always be
`
`implemented. I think we particularly identify the length of the restricted
`period as being the second interval. Certainly the safety delay would form a
`part of that to the extent it's part of that restricted period and it would not
`allow it to turn on.
`
`JUDGE KORNICZKY: That's also under your first theory. I'm
`trying to figure out what the difference is.
`
` MS. LAUGHTON: I don't think there's any difference in both of
`them in that the safety delay will always be implemented.
`
`JUDGE KORNICZKY: Okay. Got it. And as I understand it, it has
`to because you can't turn the safety delay off, you can't change it?
`
` MS. LAUGHTON: That's my understanding as well, is that a person
`of ordinary skill in the art would understand that one would always use a
`safety delay and that it would be -- it would risk damage to the compressor
`and be undesirable to ever not have that.
`
`So then, if I can, turning back to what is Slide 24 -- so we just
`discussed the use of the safety delay. I'll turn then in particular to
`summarize the use of the random delay. The parties appear to agree that it
`randomly delays the start of the system following an energy saving period
`and that it's useful in preventing power spikes which could be caused by, for
`example, multiple different HVAC systems all coming on at the same time
`at the end of a curtailment period.
`
`And then the third delay, as we discussed, is McLellan's cycling
`feature. EcoFactor does appear to dispute that this is a setting for a delay,
`and I will address why it is under the plain and ordinary meaning of the
`claim language.
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`JUDGE KORNICZKY: So I'm trying to understand, what is the
`
`difference?
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` MS. LAUGHTON: I'm sorry. The difference between?
`
`JUDGE KORNICZKY: I'm sorry. What's the difference between a
`random delay and a cycling feature?
`
` MS. LAUGHTON: Sure. So what the random delay does is that if
`you have -- at the end of a curtailment period, if you have an instance in
`which multiple HVAC systems are now all going to come on at the same
`time, that might cause a power spike, and that would be a bad thing.
`
`JUDGE KORNICZKY: Got it.
`
` MS. LAUGHTON: What it does is it imposes an additional delay so
`you don't have them all kicking on at the same time.
`
`JUDGE KORNICZKY: Why wouldn't the cycling feature do the
`same thing?
`
` MS. LAUGHTON: The cycling feature has multiple different
`benefits. I would say that one of the benefits of the cycling feature -- I think
`what Your Honor is suggesting here is correct -- it can be used to stagger the
`cycle of the different HVAC systems, and that goes to the motivation, right,
`to use the cycling feature in Ehlers '330 because if you have multiple
`different HVAC systems, you don't want them all to be on exactly the same
`cycle. You want those to be staggered. I think the cycling feature also has
`the additional benefit, which is one of the things that we talk about also with
`reference to the motivation to add that into Ehlers '330, is that it allows you
`to impose a direct cycle restriction.
`
`So if Your Honors recall, we talked a lot last week regarding Ehlers
`'330 Paragraph 256 and particularly the example in 256 where the system --
`where essentially there's a 33 percent cycling time and we want to maintain
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`that, right? We don't want to go above that for energy saving reasons. So
`the way that Ehlers '330 does that is that Ehlers '330 does it via setpoint
`control, as we discussed, and particularly with reference to the '597 patent,
`Ehlers '330 basically calculates a setpoint offset that the system would not
`have to run more than 33 percent of the time to maintain. Right? And that's
`how it does it. So it does it via setpoint control.
`
`So what McLellan is doing here is that McLellan -- I'm just going to --
`I think there's a particular slide that addresses this. I'm looking now at Slide
`34. So what McLellan does is it just does a direct cycle restriction. It
`doesn't do this in this particular cycling feature. It does do this via setpoint
`control. What it just says is let's take that example in Ehlers '330, we want it
`to be 33 percent of the time and no more.
`
`JUDGE KORNICZKY: So it's just using time instead of
`temperature? I'm sorry. McLellan is using time instead of temperature?
`
` MS. LAUGHTON: Yes, it's basically stopping the system from
`coming on even when that would be called for because, for example, the
`setpoint is higher, we've crossed the deadband, and now it would want to
`come on, and say no, you can't come on because we've set a maximum
`amount of time that you're allowed to be on; and that results in a restricted
`period and a delay.
`
`JUDGE DOUGAL: If that's the case, Patent Owner, one of their
`arguments is it doesn't select these features based on the outside temperature.
`So how does it select it based on the outside temperature?
`
` MS. LAUGHTON: Sure. So as we discuss in the petition and
`explain in the reply -- and this is also with reference to the motivation to use
`the cycling feature in Ehlers '330 and also the way in which it would actually
`meet the particular claim element [1f]. So I don't know if you recall, but just
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`as a reminder, we talked a little bit about Ehlers '330 and the fact that you
`might have instances, right, where you can't maintain both your desired
`temperature and your 33 percent cycling time. Right? You can't have both,
`so you have to pick. And Ehlers '330, I think, in particular refers to those
`instances where the thermal gain exceeds the allowed temperature variant.
`So at that point, what Ehlers '330 says in Paragraph 256 is that we either
`have to let the temperature rise or we have to have our cycle time increase,
`right? And so there's times -- so Ehlers '330 itself realizes that there's times
`when its set -- its own setpoint based control is limited, right? You have an
`allowed temperature variant, and at some point you can't have both and you
`have to chose.
`
`And so when you have those instances in which you have to choose,
`what McLellan's feature allows you to do is just say, for example, I want it
`to be 33 percent. I don't care what temperature results from this at this point.
`What's important to me is my energy-saving goal, and I want to maintain the
`cycle restriction at 33 percent.
`
`And in particular, McLellan, I think, motivates this -- sorry. I'll just
`direct you to Slide 35, where Ehlers '330 is particularly talking about this,
`that we have the thermal gain rise exhausting the allowed temperature
`variant. So we have a point where the system has an option. It has to do one
`or the other.
`
`So what McLellan's cycling feature, again here on Slide 34, allows
`you to do is just set the customizable duty cycle. Say it's 33 percent. I don't
`care what temperature we get at this point. And McLellan, in fact, says this
`can be used in addition to temperature setpoint. It can be used in addition to
`Ehlers '330 setpoint control.
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`JUDGE KORNICZKY: Say that again? What I'm losing you on is
`
`the claim requires that the interval is based on outside temperature.
`
` MS. LAUGHTON: Right.
`
`JUDGE KORNICZKY: And you keep talking about time.
`
` MS. LAUGHTON: Sure. So let me --
`
`JUDGE KORNICZKY: How is it based on outside temperature?
`
` MS. LAUGHTON: So let me explain, and I think it might be helpful
`throughout this, in particular, to direct you to Page 59, 58, 59 in particular in
`the petition, and I'll describe that, but I want to direct you there.
`
`JUDGE KORNICZKY: One second. You said 59?
`
` MS. LAUGHTON: 58 and 59, Your Honor.
`
`JUDGE KORNICZKY: Okay.
`
` MS. LAUGHTON: So there, as we explain, it would be obvious to
`evaluate the thermal gain rate, right, the predicted rate of change, which, as
`we talked about, is the correct predicted rate of change to use selected via
`analysis of the outside temperature measurement and also itself is indexed
`by and calculated with and corresponds to outside temperature to determine
`whether or not to follow that customizable cycle. Right? And so what we --
`and this also particularly refers back to the analysis of [1b1] that talks about
`what I was just talking about, how Ehlers has this choice between the two.
`So you have this instance where Ehlers particularly says --
`
`JUDGE KORNICZKY: Wait. Back up.
`
` MS. LAUGHTON: Sure.
`
`JUDGE KORNICZKY: Ehlers says you can choose between the
`setpoint temperature or your time, the run time, I guess, of the compressor?
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` MS. LAUGHTON: What it says -- and I'm looking in particular at
`
`Slide 35. What it says is the system will have the option to exceed the cycle
`run time trigger level or exceed the allowed temperature --
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`JUDGE KORNICZKY: Right.
`
` MS. LAUGHTON: -- depending on which is most important, right?
`So what McLellan lets you do is to maintain the cycle run time to say no, I
`just directly want to say it's 33 percent and that's it in this instance, right --
`
`JUDGE KORNICZKY: But what is that adding to Ehlers? Ehlers
`can do that too.
`
` MS. LAUGHTON: What it says here is it allows you to exceed the
`cycle run time trigger level. What that might actually be -- remember -- in
`this particular example, our allowed temperature variant goes up to 76,
`right? So what that might say is we still want to maintain 76, right, and so
`we're just going to let it run more. We're going to do whatever it needs to do
`to maintain 76.
`
`Or it's going to -- or it's going to say no, we want to keep it at 33. So
`it's just going to allow the temperature to rise. And I don't see that there's a
`specific teaching of directly saying no, we just want to direct it to just be 33.
`
`JUDGE KORNICZKY: Okay.
`
` MS. LAUGHTON: And, again, McLellan is talking about the fact
`that this is used together with temperature setpoint control. And so it's
`clearly obvious -- and, in fact, that EcoFactor has actually challenged the
`obviousness as such of using McLellan's direct cycle control here. In fact, I
`mean, I think it's perhaps what Your Honor is getting at; it's suggested itself
`by Ehlers '330 here, is that they're talking about maintaining a particular
`cycle percentage.
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`JUDGE KORNICZKY: At the most basic, I guess, McLellan is just
`
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