UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION
`
` _________________________
`
`)
` EcoFactor, Inc., )
`)
`Plaintiff, )
`)
` vs. ) Case No.
`) 6:21-cv-00428-ADA
` ecobee, Inc., )
`)
`Defendants. )
` _________________________)
`ZOOM VIDEOTAPED DEPOSITION OF DAVID AUSLANDER
`Lafayette, California
`Friday, February 2, 2023
`Volume I
`
` Reported by:
` LORI M. BARKLEY
` CSR No. 6426
`
` Job No. 5698028
`
` PAGES 1 - 76
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2008
`Page 1
`
`
`FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION
`
` _________________________
`
`)
` EcoFactor, Inc., )
`)
`Plaintiff, )
`)
` vs. ) Case No.
`) 6:21-cv-00428-ADA
` ecobee, Inc., )
`)
`Defendants. )
` _________________________)
`ZOOM VIDEOTAPED DEPOSITION OF DAVID AUSLANDER
`Lafayette, California
`Friday, February 2, 2023
`Volume I
`
` Reported by:
` LORI M. BARKLEY
` CSR No. 6426
`
` Job No. 5698028
`
` PAGES 1 - 76
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2008
`Page 1
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`
`
` UNITED STATES DISTRICT COURT
`
` FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION
`
` _________________________
`
` )
`
` EcoFactor, Inc., )
`
` )
`
` Plaintiff, )
`
` )
`
` vs. ) Case No.
`
` ) 6:21-cv-00428-ADA
`
` ecobee, Inc., )
`
` )
`
` Defendants. )
`
` _________________________)
`
` Zoom Videotaped deposition of DAVID AUSLANDER,
`
` Volume I, taken at Lafayette, California, beginning at
`
` 9:00 a.m., and ending at 11:25 a.m., on Friday, February
`
` 2, 2023, before LORI M. BARKLEY, Certified Shorthand
`
` Reporter No. 6426.
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2008
`Page 2
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`
`
` A P P E A R A N C E S :
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` R U S S A U G U S T & K A B A T
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` B Y : J o n a t h a n L i n k
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` A t t o r n e y a t L a w
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` 1 2 4 2 4 W i l s h i r e B o u l e v a r d , 1 2 t h F l o o r
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` L o s A n g e l e s , C A 9 0 0 2 5
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` J l i n k @ r a k l a w . c o m
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` V E N A B L E L L P
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` B Y : J u s t i n O l i v e r
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` A t t o r n e y a t L a w
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` 6 0 0 M a s s a c h u s e t t s A v e n u e , N W
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` W a s h i n g t o n , D C 2 0 0 0 4
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` ( 2 0 2 ) 7 2 1 - 5 4 2 3
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` J o l i v e r @ v e n a b l e . c o m
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2008
`Page 3
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`
`
` I N D E X
`
` WITNESS
`
` DAVID AUSLANDER
`
` PAGE
`
` Examination by Mr. Link 5
`
` EXHIBITS
`
` NUMBER DESCRIPTION PAGE
`
` Exhibit 1 Declaration of David Auslander 15
`
` Exhibit 2 Ground 1 Opinions 18
`
` Exhibit 3 Ehlers 330 Reference, 3-28-03 19
`
` Exhibit 4 Copy of 719 Patent 20
`
` Exhibit 5 Table 28 from Wruck 22
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` Exhibit 6 Overview of Ehlers 330 46
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` Exhibit 1006 Column 19, Lines 1-24, Outdoor 65
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` Climate Conditions
`
` Exhibit 1007 Boiat Reference in Auslander 66
`
` Declaration
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2008
`Page 4
`
`
`
` Lafayette, California; Friday, February 2, 2023
`
` 9:00 a.m.
`
` DAVID AUSLANDER,
`
` having been administered an oath, was examined and
`
` testified as follows:
`
` EXAMINATION
`
` BY MR. LINK:
`
` Q. Good morning, Dr. Auslander.
`
` A. Good morning.
`
` Q. How many depositions have you been in?
`
` A. I don't know, I haven't counted.
`
` Q. Are we talking, you know, single digits or
`
` double digits or over a hundred --
`
` A. No, modest double digits.
`
` Q. And how many of them have been remote
`
` depositions like this?
`
` A. This started of course with COVID. So I've been
`
` in, how many, three at this point, maybe, something like
`
` that.
`
` Q. Okay. Just a reminder on that since we're
`
` making a written record. Both of us want to be mindful
`
` of allowing the other to complete their question or
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` answer before talking. If a question's unclear, just
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2008
`Page 5
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` let me know and we can figure out why it's unclear or I
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` can re-ask it, okay?
`
` A. Sure.
`
` Q. All right. And if you need a break, just ask.
`
` The only thing I'll want is for you to answer the
`
` question that's pending before we go on that break,
`
` okay?
`
` A. Yeah.
`
` Q. Is there any reason you can't give truthful
`
` testimony today?
`
` A. No reason.
`
` Q. And just for the record, do you have any notes
`
` in front of you right now?
`
` A. No, nothing.
`
` Q. And I believe you said earlier that you do have
`
` electronically clean copies of your declarations and
`
` your exhibits; is that correct?
`
` A. Yes.
`
` Q. All right. Any other materials that are related
`
` to these two IPRs?
`
` A. I mean, there's all the working material, but I
`
` won't access that.
`
` Q. Is there anyone with you in the room there?
`
` A. Is anyone in the room? No.
`
` Q. Perfect. All right, and just so is that we're
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2008
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` kind of on the same page, this deposition is for two
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` declarations that you prepared with respect to US patent
`
` number 8596550, right?
`
` A. Yes.
`
` Q. And if I refer to that as the '550 patent,
`
` you'll understand what I'm referring to?
`
` A. Yes.
`
` Q. And the two declarations, one is for IPR
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` 2022-00983, correct?
`
` A. I don't know those numbers.
`
` Q. Okay. Let me try it this way, one of the
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` declarations that you prepared was with respect to
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` claims 1 through 16 of the '550 patent, correct?
`
` A. Correct.
`
` Q. And then the second declaration is for claims 17
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` through 23 of the '550 patent, correct?
`
` A. Correct.
`
` Q. Did you prepare for your deposition today?
`
` A. Yes.
`
` Q. What did you do to prepare for it?
`
` A. Reviewed the material on my own and with
`
` Mr. Oliver.
`
` Q. Did you talk to anyone else besides Mr. Oliver?
`
` A. No.
`
` Q. About how long did you talk to Mr. Oliver?
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2008
`Page 7
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` A. We had three or four meetings of several hours
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` each.
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` Q. And in total, about how long did you prepare for
`
` your deposition today?
`
` A. Total hours or total when did I start?
`
` Q. I would say start total hours.
`
` A. Gee, I don't know, 15, maybe.
`
` Q. Did you write each of your declarations?
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` A. Like, do you mean did I write the original
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` draft?
`
` Q. Yes.
`
` A. No.
`
` Q. Who did write that?
`
` A. The procedure was I think fairly common. We
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` went through all of the issues verbally and in meetings.
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` The lawyer for Ecobee at the time was Leslie Lee. She's
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` no longer with the firm, but she was the one I worked
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` with and of course I don't know who she worked with on
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` her end.
`
` Q. Did you identify the -- let me rephrase that.
`
` How did you find the prior art that you ended up citing
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` in these two declarations?
`
` A. Well, that was identified by the law firm that
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` asked me to make opinions on it.
`
` Q. When they sent you the first draft, did you make
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`IPR2022-00969
`Exhibit 2008
`Page 8
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` any changes to your declarations?
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` A. Oh, yes, we had a lengthy procedure going
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` through line by line kind of stuff.
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` Q. So you read the entirety of both of the
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` declarations?
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` A. Yes.
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` Q. And everything in both of those declarations was
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` substantively accurate?
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` A. Yes, and then no, short of the usual typos and
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` stuff.
`
` Q. Certainly. Dr. Auslander, when did you first
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` hear of EcoFactor?
`
` A. 2007, I believe it was.
`
` Q. And how did you first hear about EcoFactor?
`
` A. I was at -- I still am part of the faculty of
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` University of California at Berkeley working on a
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` project in -- research project on demand response in
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` residential dwellings and was contacted by initially,
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` John Steinberg. At that point I think EcoFactor
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` consisted of John Steinberg and Scott Hublou, so they
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` contacted me at that point. So that was my first
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` exposure.
`
` Q. Have you ever performed any work with or for
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` EcoFactor?
`
` A. Yes, that initial contact ended up being I guess
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`IPR2022-00969
`Exhibit 2008
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` a better part of a year of activity in which we had
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` cooperative activity between EcoFactor and my research
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` group, particularly graduate students, and so that went
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` on from I guess early fall of 2007 into spring of 2008,
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` and then I guess I'd have to get the exact dates, but
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` sometime in 2009, I did a small amount of consulting for
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` them.
`
` Q. Okay. Were you paid for the consulting that you
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` performed for EcoFactor?
`
` A. The consulting? Yes.
`
` Q. How much were you paid; do you recall?
`
` A. No.
`
` Q. Did you perform any consulting for EcoFactor in
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` the 2011 timeframe?
`
` A. No.
`
` Q. When you said you did a small amount of
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` consulting for EcoFactor, what was the nature of that
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` consulting?
`
` A. My recollection is that at that point, the
`
` primary interest is what in a broad sense I would call
`
` fault diagnosis.
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` Q. What do you mean by "fault diagnosis"?
`
` A. Trying to figure out from data what's wrong with
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` the system.
`
` Q. Do you remember roughly how much time you spent
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2008
`Page 10
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` consulting for EcoFactor in this fault diagnosis?
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` A. Yeah, it wasn't very long. I don't know how
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` many hours, but it was a few meetings at their place in
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` wherever it was, down in the peninsula someplace, maybe
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` Redwood City, and some time on my own, scattered over a
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` few months. I think by that time, EcoFactor had a
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` pretty substantial staff -- staff. And I wasn't adding
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` much to what the staff was able to do.
`
` Q. Now, during the 2007/2008 timeframe when you
`
` had, I think you referred to it as, cooperative activity
`
` between EcoFactor and your research group, EcoFactor was
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` doing some field studies work, correct?
`
` A. Yes.
`
` Q. Okay, and that involved collecting data from
`
` some thermostats installed in some different homes,
`
` right?
`
` A. Correct.
`
` Q. And then EcoFactor and some of your graduate
`
` students analyzed that data. Is that accurate?
`
` A. Well, on our side, graduate students. EcoFactor
`
` gave us access to the data, but they didn't present
`
` whatever analysis they did or didn't do.
`
` Q. But EcoFactor published a paper about those
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` field studies, right?
`
` A. Well, now you're in my technical field. A paper
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2008
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` means something published, and, you know, they -- there
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` was some kind of document that they put out that had
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` some information on it, yeah.
`
` Q. Okay, so there was a document that EcoFactor
`
` prepared regarding the data that came from those field
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` studies; is that accurate?
`
` A. Yes, that's correct.
`
` Q. And you wrote the forward for that document,
`
` correct?
`
` A. Yeah, that was myself and Ed Arens, I believe.
`
` Q. All right. So you were aware of what EcoFactor
`
` was doing at least with respect to what was in that
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` paper -- or in that document, correct?
`
` A. Yes. I don't remember the date on the document.
`
` That could have been after we actually finished the work
`
` we were doing with -- I'd have to look at the dates for
`
` sure to get that straight.
`
` Q. Would it surprise you if it were in the 2008
`
` timeframe?
`
` A. No.
`
` Q. When were you engaged by Ecobee to provide an
`
` expert opinion in these two IPRs that you prepared the
`
` declarations for?
`
` A. I don't remember what date they were actually
`
` done. They were done probably in the spring of last
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2008
`Page 12
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` year, so they would have engaged me sometime shortly
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` before that.
`
` Q. And you've been engaged by Ecobee to provide
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` opinions regarding the validity of EcoFactor patents in
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` other proceedings, correct?
`
` A. Yes.
`
` Q. And one of those was in an ITC proceeding in
`
` front of the International Trade Commission, correct?
`
` A. Yes.
`
` Q. Any other proceedings?
`
` A. There were two ITCs, I believe. I don't know if
`
` Ecobee was involved in both of them, though. I'd have
`
` to go check the record. This group was multiple
`
` clients, they kind of merge.
`
` Q. Understood. And one of those other clients was
`
` Google who had engaged you to opine on the validity of
`
` some EcoFactor patents, correct?
`
` A. Yes.
`
` Q. How much have you been paid in total between
`
` Google and Ecobee to offer opinions about the validity
`
` of EcoFactor patents?
`
` A. Gee, this goes back over three years now, I
`
` guess, you know, because this work started initially
`
` with just Google and it started before COVID, because I
`
` can recall the very first deposition that they were
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2008
`Page 13
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` going to do, that had to end up being postponed because
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` of all the COVID closures. So that gives you the
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` timeframe. So over that period, Google and Ecobee, I
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` don't know, maybe a hundred thousand dollars, maybe, you
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` know, that's utterly rough, I'm not -- you know, there's
`
` no calculation going in there.
`
` Q. Understood. I'm not going to require any math
`
` in this deposition.
`
` A. Yeah.
`
` Q. Thank you. I want to start with the declaration
`
` that you provided for the 983 IPR and this is for claims
`
` 1 through 6 (sic). So I'm going to put that declaration
`
` into the Exhibit Share. And I've also provided the '550
`
` patent in case that's ever any use to you.
`
` A. 1 through 16, you mean?
`
` Q. Yes, I'm sorry, yes, 1 through 16.
`
` A. Okay. Tell me when you've done it and then I'll
`
` refresh here.
`
` Q. I just put it in there, so.
`
` A. Okay. I see patented declaration. So let's see
`
` now. Copy them over to the right place. Okay, I have
`
` them.
`
` Q. If you could take a look at this declaration
`
` just real briefly and confirm this is the declaration
`
` that you provided and signed?
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` A. Wait, hold on. I've got the wrong stuff here.
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` (Technology discussion.)
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` THE WITNESS: Okay, I have it.
`
` BY MR. LINK:
`
` Q. Great. Just take a quick look and confirm this
`
` is the declaration you provided giving your opinions on
`
` the validity of claims 1 through 16 of the '550 patent?
`
` A. Looks like it, yes.
`
` (Exhibit 1 was marked for identification by the
`
` court reporter and is attached hereto.)
`
` MR. LINK: One thing I wanted to ask you are you
`
` familiar with the term inherency as it relates to
`
` teachings in prior art?
`
` A. I have had some discussions from time to time,
`
` but since you bring it up, you'd better, you know, give
`
` me the correct legal definition.
`
` Q. I didn't see any mention of that under your
`
` understanding of the relevant law and I wanted to know
`
` what your understanding of the term inherency is, if you
`
` happen to have one.
`
` A. Yes, I could give you one. As I say, I'm not a
`
` legal person, but my understanding of inherency is some
`
` combination that is so strong that it kind of must be.
`
` Q. The next thing I wanted to turn your attention
`
` to is at page 11 on your declaration here. And this is
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`IPR2022-00969
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` for the level of ordinary skill in the art. Do you see
`
` that?
`
` A. Got it, yeah.
`
` Q. And in paragraph 24 you provide your opinion,
`
` "it would require at least a bachelor's degree in
`
` engineering, computer science or a comparable field of
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` study." And 2, "at least five years of, 1, professional
`
` experience in building energy management controls or 2,
`
` relevant degree experience." Do you see that?
`
` A. Yes.
`
` Q. What do you mean by "building energy management
`
` controls"?
`
` A. Energy in buildings is heavily -- the heaviest
`
` user in non-industrial buildings for energy is climate
`
` control. And so building energy management, in its most
`
` common, refers to control of the equipment that's used
`
` to provide climate control in a building. There are
`
` other energy issues in a building, but they're not a
`
` concern in this matter.
`
` Q. What type of careers or jobs would you say have
`
` professional experience in building energy management
`
` controls?
`
` A. Well, right at the top of the list would be
`
` those companies that provide that kind of equipment, so
`
` that would be Johnson Controls, Siemens, Honeywell,
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` although I think Honeywell may be getting out of that
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` business, I'm not sure. Those kinds of companies. So
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` that would be the kind of center of that universe. And
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` then surrounding that are the companies that make the
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` equipment: Train, Goodman, etc., because of how they
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` build their equipment, they obviously have to have
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` control involved and they have to interact with building
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` controls, they have to know that stuff, and then things
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` like thermostat manufacturers, which is one piece of the
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` controls puzzle, so that's kind of an overview of some
`
` of the companies that would represent professional
`
` experience.
`
` Q. Would you consider the people that use those
`
` controls, such as a building engineer, to be a
`
` professional -- or a person having professional
`
` experience in building energy management controls?
`
` A. Yes. Particularly in large buildings. A large
`
` building would have at least an individual and maybe
`
` more, whose sole job is the care and feeding of the
`
` system, so yes, that would qualify as well.
`
` Q. Are you aware of any other courts or agencies
`
` that have ruled on the level of ordinary skill in the
`
` art associated with the '550 patent?
`
` A. ITC. I assume ITC.
`
` Q. So you're aware that the ITC provided its ruling
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`Exhibit 2008
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` on what the level of ordinary skill in the art
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` associated with the '550 patent, right?
`
` A. Yes.
`
` Q. You didn't consider that determination in coming
`
` to your opinion, did you?
`
` A. No.
`
` Q. Would it surprise you to know that the opinion
`
` of the administrative law judge in the ITC is different
`
` than the opinion that you provide for your level of
`
` ordinary skill in the art?
`
` A. No, it would not surprise me. There was a
`
` difference between what EcoFactor presented and what
`
` Google and Ecobee presented. What I'm presenting here
`
` is basically the same as my opinion was at that time.
`
` Q. You didn't feel it was necessary to let the
`
` Patent Trial and Appeals Board know that the ITC had
`
` come to a different conclusion than you did?
`
` A. I didn't think of that one way or the other.
`
` Q. I want to move now to ground 1 of your opinions,
`
` which starts on page 22 in your declaration. You let me
`
` know when you get there.
`
` (Exhibit 2 was marked for identification by the
`
` court reporter and is attached hereto.)
`
` THE WITNESS: 22, okay, got it.
`
` BY MR. LINK:
`
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`ECOBEE V. ECOFACTOR
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` Q. In ground 1, it's your opinion that claims 1
`
` through 16 are obvious over Ehlers 330 in view of Wruck;
`
` is that right?
`
` A. Correct.
`
` Q. And at paragraph 457 you say that you understand
`
` that "Ehlers 330 was not of record during the
`
` prosecution of the application leading to the '550
`
` patent, although a different Ehlers, US patent number
`
` 7130719, Ehlers 719, from a different patent family
`
` having a different disclosure was cited along with
`
` numerous other references." Do you see that?
`
` A. Yes.
`
` Q. How did you come to this understanding?
`
` A. This was information I got from the -- it would
`
` have been Leslie at the time was my main -- whatever
`
` lawyers I was talking to.
`
` Q. Did you look and compare the Ehlers 719 patent
`
` to Ehlers 330?
`
` A. No, I didn't.
`
` Q. So I have put in the marked exhibits, Exhibit
`
` 1004, which is the Ehlers 330 reference, if you want to
`
` pull that up.
`
` A. Sure.
`
` (Exhibit 3 was marked for identification by the
`
` court reporter and is attached hereto.)
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`ECOBEE V. ECOFACTOR
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` THE WITNESS: Okay.
`
` BY MR. LINK:
`
` Q. On the front page under Related US Application
`
` Data, do you see that the Ehlers 330 reference, which is
`
` a published patent application, is a continuation of
`
` application number 10/402370 filed on March 28, 2003?
`
` A. Yes.
`
` Q. And if you look at the top of the second page of
`
` Ehlers, you'll see that it has a sheet, 1 of 18 for the
`
` drawings there, doesn't it?
`
` A. Where are you looking?
`
` Q. You know, on the second page of Ehlers on the
`
` very top --
`
` A. Second page, sorry. Yeah, 1 of 18, it says.
`
` Q. So there's 18 sheets of drawings, right?
`
` A. Right.
`
` Q. I have also put in your marked exhibit folder a
`
` copy of the 719 patent. So if I could have you pull
`
` that up.
`
` (Exhibit 4 was marked for identification by the
`
` court reporter and is attached hereto.)
`
` THE WITNESS: Okay.
`
` BY MR. LINK:
`
` Q. And again, under Related US Application Data on
`
` the first page of Ehlers 719, do you see it says a
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` continuation of application number 10402370?
`
` A. Where are you looking.
`
` Q. Yeah, under Related US Applications.
`
` A. Oh, yeah, item 63?
`
` Q. Yes. It says continuation of application number
`
` 10402370, filed on March 28, 2003. Do you see that?
`
` A. Yep.
`
` Q. So you agree that the Ehlers 330 document and
`
` the Ehlers 719 patent are both continuations of the same
`
` application, aren't they?
`
` A. Appears to be, yeah.
`
` Q. And there on the first page of Ehlers 719, right
`
` below the abstract, it says 18 drawing sheets, doesn't
`
` it?
`
` A. Yes.
`
` Q. And that's the same number of drawing sheets
`
` that are found in Ehlers 330, isn't it?
`
` A. Yes.
`
` Q. Would it surprise you to know there are no
`
` differences in the drawings between Ehlers 330 and
`
` Ehlers 719?
`
` A. Just that I have never looked at the 719, so I
`
` really don't have any familiarity with it.
`
` Q. So despite never looking at the 719 patents, you
`
` still provided in your declaration that the Ehlers 330
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` patent and the Ehlers 719 patents are from different
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` patent families and have different disclosures; is that
`
` correct?
`
` A. Yes, that's what I said, that was the
`
` information I was supplied with; I did not check it.
`
` Q. And as you told me before, your initial draft of
`
` these declarations -- of this declaration was provided
`
` to you, correct?
`
` A. The initial text, yeah, the initial, right.
`
` Q. All right. So moving on to -- well, go to page
`
` 26, where you start your overview of the Wruck
`
` reference.
`
` A. Yes.
`
` Q. And Wruck is Exhibit 1005, so I'm going to also
`
` put that into the marked exhibits. But you can also
`
` look at, it's part of paragraph 60, but it shows up on
`
` the next page on page 28, there is a table 28 that you
`
` refer to in Wruck. Do you see that?
`
` (Exhibit 5 was marked for identification by the
`
` court reporter and is attached hereto.)
`
` THE WITNESS: Yes.
`
` BY MR. LINK:
`
` Q. So this is just a portion of table 28 that has
`
` been reproduced here, correct?
`
` A. Correct.
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`Page 22
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` Q. And here in your declaration, there is
`
` highlighted, among other things, the comments or a
`
` portion of the comments on the last line and that
`
` highlighted portion says "Display actual temporary set
`
` point at Delta value less than, greater than zero."
`
` Do you see that?
`
` A. Yes. That symbol is normally read not equal.
`
` Q. Oh, so not equal? Okay.
`
` Apart from this entry here in table 28, where in
`
` Wruck does it describe this phrase "Delta value"?
`
` A. As far as I know, that's the main place. I
`
` could go check, but as far as I know, I'd have to look
`
` up the discussion in table 28. I could do that if you'd
`
` like.
`
` Q. Well, I mean, you didn't -- other than this --
`
` referring to this table 28 in paragraph 110 in Wruck,
`
` you didn't point to any other sections of Wruck in your
`
` declaration, did you?
`
` A. Not that I recall.
`
` Q. Now, you say that "Delta value is a comparison,"
`
` correct?
`
` A. Yeah, Delta is a difference. The term Delta is
`
` a -- in mathematical terminology means difference.
`
` Q. Is there anywhere in Wruck that describes what
`
` is being compared or what that difference is?
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` A. Well, just what it says here, for sure, I mean,
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` it's a difference between a -- a set point, the actual
`
` set point and the original setpoint.
`
` Q. Where does it say in Wruck that it's a
`
` difference between a actual set point and the original
`
` set point?
`
` A. I don't know. I'd have to look for that. I
`
` don't think we cited anything.
`
` Q. Okay. You would agree that the comment section
`
` there in table 28 that you highlighted, only refers to,
`
` it says "display actual temporary set point," right?
`
` A. Correct.
`
` Q. So that's not telling you what's being compared,
`
` does it?
`
` A. Not specifically, but it's -- I mean, again, to
`
` me, seems reasonable to -- that it's obvious from what's
`
` going on that that's what it's looking at.
`
` Q. Is it possible that that Delta value is merely
`
` comparing whether something got turned on or off?
`
` A. You wouldn't use the word Delta for that.
`
` Q. Why not?
`
` A. Well, because Delta in normal mathematical
`
` terminology, it's written Delta, it's usually the Greek
`
` letter Delta, is used for differences, literally, and
`
` something turned on and off is a difference as in
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` subtraction. Something being turned on or off is not a
`
` difference in that sense.
`
` Q. If, in your words, Delta is normally written
`
` mathematically as a Greek letter Delta and here it
`
` wasn't, does that mean that Delta does not fact mean a
`
` difference?
`
` A. No, I mean, it's not unusual to write out Greek
`
` letters. People often do that for clarity or because
`
` they don't happen to have Greek letters, particularly in
`
` the old typewriter days.
`
` Q. So in your opinion, it's not possible that this
`
` Delta value is merely determining the difference of
`
` whether something is on, which could be indicated as a
`
` one, and off, as indicated as a zero?
`
` MR. OLIVER: Objection, form.
`
` THE WITNESS: I assume I could go ahead and
`
` answer now despite the objection?
`
` MR. LINK: Yes, please do.
`
` THE WITNESS: Now, repeat it. I want to get the
`
` legalities straight here.
`
` BY MR. LINK:
`
` Q. I guess it's not possible that this Delta value
`
` merely determines the difference between whether
`
` something is on, where the system that is indicated as
`
` on when there's a 1 and that the system is indicated as
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` off when there's a zero?
`
` MR. OLIVER: Same objection.
`
` THE WITNESS: I -- you know, as an engineer, I
`
` don't like the "not possible" in the sense of its
`
` finality. But in my opinion, no.
`
` BY MR. LINK:
`
` Q. I wanted to go to your claim mapping, which
`
` starts on page 31 of this declaration. So if you'd let
`
` me know when you get to there.
`
` A. Okay, I'm on 31.
`
` Q. You see where you have a heading F, Claim
`
` Mapping?
`
` A. Yes.
`
` Q. And then you start with independent claim 1?
`
` A. Yes.
`
` Q. You've broken these out where you've given or
`
` assigned them, I guess I would call them sub numbering,
`
` so in this case this is the preamble that you'd call
`
` claim element 1A. Is that accurate?
`
` A. Yes.
`
` Q. So for purposes of ease of reference, I'll
`
` continue to use that. This claim element 1A is the
`
` preamble of claim 1, right?
`
` A. Correct.
`
` Q. So it's your opinion that the preamble of claim
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` 1 is limiting?
`
` MR. OLIVER: Objection, mischaracterizes.
`
` THE WITNESS: I didn't make any discussion or
`
` opinion on that.
`
` BY MR. LINK:
`
` Q. So for purposes of your analysis, you made the
`
` assumption that claim 1A, the preamble, is in fact
`
` limiting and then analyzed it accordingly?
`
` A. I would more just say claim 1A was there and I
`
` described within it rather than skip it.
`
` Q. Moving to page 35, that's where we have claim
`
` element 1B.
`
` A. 1B, yes.
`
` Q. Okay. And in paragraph 81, yo
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