UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`ECOBEE TECHNOLOGIES ULC
`Petitioner
`v.
`ECOFACTOR, INC.
`Patent Owner
`__________
`
`Case No. IPR2022-00969
`Patent No. 8,596,550
`__________
`
`REPLY DECLARATION OF DAVID M. AUSLANDER
`
`ECOBEE Exhibit 1023
`ECOBEE v. ECOFACTOR
`IPR2022-00969
`
`
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`ECOBEE TECHNOLOGIES ULC
`Petitioner
`v.
`ECOFACTOR, INC.
`Patent Owner
`__________
`
`Case No. IPR2022-00969
`Patent No. 8,596,550
`__________
`
`REPLY DECLARATION OF DAVID M. AUSLANDER
`
`ECOBEE Exhibit 1023
`ECOBEE v. ECOFACTOR
`IPR2022-00969
`
`
`
`TABLE OF CONTENTS
`
`INTRODUCTION ........................................................................................... 1
`I.
`QUALIFICATIONS ........................................................................................ 1
`II.
`III. MATERIALS REVIEWED ............................................................................ 1
`LEGAL STANDARDS ................................................................................... 1
`IV.
`THE PERSON OF ORDINARY SKILL IN THE ART ................................. 2
`V.
`THERMAL GAIN AND THERMAL MASS ................................................. 4
`VI.
`VII. EHLERS .......................................................................................................... 5
`A. Ehlers’ Fig. 3D ............................................................................................... 5
`B. Ehlers’ Figs. 3E and 3G ............................................................................... 11
`C. Ehlers Describes an Automated Setpoint..................................................... 15
`VIII. WRUCK......................................................................................................... 18
`THE COMBINATION OF OLS AND BOAIT ............................................ 19
`IX.
`A. Motivation to Combine ................................................................................ 19
`B. Predicting Rate of Change ........................................................................... 20
`SECONDARY CONSIDERATIONS ........................................................... 22
`X.
`XI. CONCLUSION .............................................................................................. 23
`
`i
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`
`
`I.
`
`INTRODUCTION
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`1. My name is David M. Auslander. I have been retained for the purpose
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`of providing opinions with respect to the subject matter recited in the claims of
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`U.S. Patent No. 8,596,550 (“’550 patent”). I have previously provided a
`
`declaration in this matter (Ex. 1002; “Original Declaration”), which addresses
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`claims 17-23. This Reply Declaration responds to opinions in the declaration of
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`John A. Palmer (Ex. 2006).
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`2.
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`I have no financial interest in either party or in the outcome of this
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`proceeding. I am being compensated for my work as an expert on an hourly basis,
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`for all tasks involved. My compensation is not dependent on the outcome of these
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`proceedings or on the content of my opinions.
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`II. QUALIFICATIONS
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`3. My qualifications are set forth in my Original Declaration.
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`III. MATERIALS REVIEWED
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`4.
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`In addition to the materials listed in my Original Declaration, I have
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`also considered the following materials:
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` Ex. 2006 (Declaration of Dr. Palmer); and
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` Ex. 1022 (the deposition of Dr. Palmer).
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`IV. LEGAL STANDARDS
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`In forming my opinions and considering the subject matter of the ’550
`1
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`5.
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`
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`
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`patent and its claims in light of the prior art, I am relying on certain legal principles
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`that counsel explained to me. My understanding of these concepts is set forth in my
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`Original Declaration. Ex. 1002, ¶¶10-27.
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`V. THE PERSON OF ORDINARY SKILL IN THE ART
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`6.
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`Dr. Palmer asserts that “a POSITA would have a bachelor’s degree in
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`engineering, computer science, or a comparable field, with 2-3 years’ experience in
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`temperature controls, embedded control systems, electronic thermostats, or HVAC
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`controls, or similarly relevant industry experience, with relevant experience
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`substituting for education and vice versa.” Ex. 2006, ¶26. Regarding my
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`description of the POSITA, Dr. Palmer disagrees with the reliance on experience in
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`building energy management and controls. Ex. 1002, ¶24. Specifically, Dr. Palmer
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`also asserts that:
`
`“a building energy management system, as the phrase is generally
`applied, describes a complex implementation of multiple sensors,
`processors, actuators, and other components and devices integrated
`into a large commercial building or multiplicity of buildings such as
`on a campus. The building energy management system will generally
`control not only the HVAC system but also other power consumers
`such as elevators, escalators, lighting, and other equipment. By
`contrast, the subject matter of the ‘550 patent is focused on
`residential and similar smaller-scale structures that do not require
`
`
`
`2
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`
`
`
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`the sophistication of controls that are integral to typical building
`energy management systems.”
`
`Ex. 2006, ¶28 (emphasis added). Thus, Dr. Palmer appears to argue that the field I
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`used in connection with defining the POSITA is more complex than the field of the
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`’550 patent. Ex. 1022, 14:14-16:7 (explaining that the field he assumes for the ’550
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`patent is “less complicated to understand, for sure, and arguably, less complicated
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`to design as well”).
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`7.
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`The opinions offered in my Original Declaration would not change if
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`Dr. Palmer’s definition of the POSITA was accepted. In particular, while my
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`definition calls for 5 years of experience, that is for a definition of the field that Dr.
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`Palmer deems more complicated than necessary. Thus, having less experience (2-3
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`years instead of 5 years) pertaining to technology that involves less
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`“sophistication” would balance out. Put another way, where Dr. Palmer admits that
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`the field of the ’550 patent is not complicated, it follows that it would take little
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`experience to realize that the subject matter recited in the claims is obvious.
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`
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`3
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`
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`VI. THERMAL GAIN AND THERMAL MASS
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`8.
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`Dr. Palmer asserts that “thermal gain,” as used in Elhers,1 does not
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`refer to a rate of change of temperatures inside a structure in response to changes in
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`outside temperatures. He argues that “[t]hermal gain is the absorption of thermal
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`energy.” Ex. 1022, 47:4-49:6. Of note, Ehlers refers to the “rate” of thermal gain.
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`See Ex. 1004, Fig. 3E, ¶[0253].
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`9.
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`Dr. Palmer also asserts that “thermal mass,” as used in the ’550
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`patent, refers to “the speed with which the temperature inside the structure will
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`change in response to changes in outside temperatures.” Ex. 1022, 27:19-28:15.
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`However, during his deposition, he acknowledged that the term “thermal mass”
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`actually refers to “an amount of energy that … a structure or system would absorb
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`to result in a … particular change in temperature.” Ex. 1022, 35:7-37:5. He
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`admitted that this value “it’s not time based”; instead, the units of measurement
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`“could be BTUs per degree Fahrenheit.” Ex. 1022, 35:7-37:5. Thus, Dr. Palmer is
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`
`
`1 Dr. Palmer asserts that another Ehlers patent with the same disclosure is of record
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`in the ’550 patent. Ex. 2006, ¶34. Whether or not Ehlers was considered by the patent
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`examiner does not affect my opinions concerning what a POSITA would understand
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`from Ehlers. On this point, Dr. Palmer and I agree. Ex. 1022, 14:3-13.
`
`
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`4
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`
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`
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`acknowledging that the ’550 patent is using “thermal mass” in a manner that he
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`believes to be different with how a POSITA would normally interpret that term and
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`that his basis for applying a different understanding in connection with the ’550
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`patent is the patent’s discussion of a rate of change in inside temperatures. Ex.
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`1022, 27:19-29:10.
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`10. Under the same logic, Elhers states that its “rate of thermal gain”
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`refers to the gain in internal temperatures over time. Ex. 1004, ¶[0255] (“the rate of
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`thermal gain per hour would be set at 3 degrees F. per hour”). Dr. Palmer does not
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`disagree that this statement in Ehlers describes a rate of temperature change inside
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`of a structure. Ex. 1022, 50:2-53:11. Ultimately, a POSITA would clearly
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`understand that Elhers is describing the rate of change of temperatures inside a
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`room in response to outside temperatures. Ex. 1004, ¶¶[0253]-[0255], Figs. 3D,
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`3E, and 3G.
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`VII. EHLERS
`A. Ehlers’ Fig. 3D
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`11. Dr. Palmer takes issue with Ehlers’ Fig. 3D. Specifically, Dr. Palmer
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`points to, e.g., his disagreement as to the meaning of “thermal gain” and asserts
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`that the figure cannot be read “literally” based on his understanding of the
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`terminology. Ex. 2006, ¶39. Interestingly, in acknowledging problems with Fig.
`
`6A in the ’550 patent, Dr. Palmer asserts that the figures should not be taken
`5
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`
`
`
`
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`literally and should be understood as “qualitative.” Ex. 1022, 40:7-42:18. While I
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`believe Fig. 6A of the ’550 patent is simply wrong, it is fair to say that a POSITA
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`would have taken a “qualitative” view of what a reference teaches, including
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`Ehler’s Fig. 3D. A POSITA would have understood Ehlers’ Fig. 3D, in
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`combination with the description thereof, to indicate that the system tracks changes
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`in inside temperatures, over time, in response to different outside temperatures.
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`Indeed, Ehlers refers to “trends” illustrated by the figure. Ex. 1004, ¶[0253]. Dr.
`
`Palmer agrees that this is a reasonable interpretation of Fig. 3D. Ex. 1022, 74:15-
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`77:19.
`
`12. For context, Ehlers describes the collection of interval data. Ex. 1004,
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`¶[0084] (“records actual interval data … for each device 1.08”). In one aspect, the
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`interval data is tracked for learning purposes related to making future adjustments.
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`Ex. 1004, ¶¶ [0253]-[0254] (“to learn the operational run characteristics of the
`
`HVAC system as a function of the thermal gain. Since the outside temperature
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`varies continuously during a typical day, the rate of thermal gain and the HVAC
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`run times also vary in accordance with these changes”). A POSITA would have
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`understood that the interval data derives from sensors, which include indoor and
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`outdoor temperature sensors. Ex. 1004, ¶¶[0230]-[0231], [0239] (explaining that
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`the effective setpoint is based on sensed data). Thus, Ehlers suggests that the
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`
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`6
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`
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`accumulated interval data is sensor data from indoor and outdoor temperature
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`sensors.
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`13. Ehlers also explains that Fig. 3D depicts how the system “tracks and
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`learns about the thermal gain characteristics of the home 2.18. To do this, the
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`system 3.08 tracks the thermal gain rate of the home 2.18 for each set point
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`selected over time by the customer.” Ex. 1004, ¶[0253]. For different set points and
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`different outside temperatures, Ehlers’ system tracks inside temperatures as they
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`approach the outside temperatures. In other words, from certain setpoints, when the
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`HVAC system cycles off (or is turned off), the thermostat tracks the inside
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`temperature as it rises from that setpoint (e.g., 72 degrees F.) towards the outside
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`temperature. This would have been the logical understanding a POSITA would
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`have had from the description in Ehlers concerning Fig. 3D.
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`14. Specifically, in connection with Fig.3D, Ehlers is tracking the change
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`in inside temperatures in relation to certain outside temperatures in order be able to
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`obtain data that can predict future trends under similar conditions. Ex. 1004, ¶¶
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`[0254] (“learn the operational run characteristics of the HVAC system as a
`
`function of the thermal gain.”); [0256] (“uses the learned thermal gain
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`characteristics”). While Fig. 3D’s Y axis refers to the “INDOOR SETPOINT,” a
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`POSITA would understand the same is referring to the setpoint at the start of the
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`
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`7
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`
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`measurement, before the indoor temperature was allowed to rise in response to
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`outside temperatures. This is because, in part, when an HVAC is running normally,
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`the temperature stays constant, as Dr. Palmer acknowledges. Ex. 1022, 20:2-22:22,
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`23:19-22; 107:16-109:18. Thus, while the Y axis is referred to as the “setpoint,” a
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`POSITA would have understood Ehlers Y axis to be tracking the rise in the indoor
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`temperature from that setpoint, when the HVAC switches off. Ex. 1004, ¶[0253]
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`(“as the indoor temperature reaches the outside temperature”), ¶[0255] (“3 degree
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`F. per hour”).
`
`15. Further, while Ehlers shows this representation as a straight line, the
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`straight line suggests an average rate of gain, as Ehlers explains that the straight
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`lines are used for illustrative purposes. Ex. 1004, ¶[0253] (“trends illustrated”). As
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`would have been appreciated by a POSITA, and as explained in Ehlers, when an
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`HVAC switches off (and remains off for an extended period, for whatever reason)
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`in the presence of a relatively high outdoor temperature, the rate of change of the
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`inside temperature is high at the outset, with the rate flattening as the inside
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`temperature approaches the outdoor temperature. Ex. 1004, ¶[0253] (“rapid initial
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`gain when the differential is large and the slower rate of thermal gain, which
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`occurs as the indoor temperature reaches the outside temperature”).
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`16. This operation in Ehlers (observing how the inside temperatures
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`8
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`
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`respond to changes in outside temperature for learning purposes) is similar to a
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`description of the ’550 patent. The ’550 patent explains:
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`FIG. 6b shows a graph of the same house on the same day, but
`assumes that the air conditioning is turned off from noon to 7
`PM. As expected, the inside temperature 304a rises with
`increasing outside temperatures 302 for most of that period,
`reaching 88 degrees at 7 PM. Because server 106 logs the
`temperature readings from inside each house (whether once per
`minute or over some other interval), as well as the timing and
`duration of air conditioning cycles, database 300 will contain a
`history of the thermal performance of each house. That performance
`data will allow server 106 to calculate an effective thermal mass for
`each such structure—that is, the speed with the temperature inside a
`given building will change in response to changes in outside
`temperature. Because the server will also log these inputs against
`other inputs including time of day, humidity, etc. the server will be
`able to predict, at any given time on any given day, the rate at
`which inside temperature should change for given inside and
`outside temperatures.
`
`Ex. 1001, 5:17-34.
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`17.
`
` The ’550 patent uses that learned information for purposes similar to
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`that in Ehlers—e.g., to determine programming associated with achieving a
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`setpoint by a desired time. Ex. 1001, 5:21-34; Ex. 1004, ¶[0295] (“thermal
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`recovery time”; “computed factor is used to more accurately compute the recovery
`9
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`
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`time for thermal gain or loss when combined with the average normalized thermal
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`gain or loss for the site”).
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`18. Thus, a POSITA would have understood that Ehlers’ Fig. 3D and
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`associated description to be describing and/or suggesting “a database comprising a
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`plurality of internal temperature measurements taken within a structure and a
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`plurality of outside temperature measurements relating to temperatures outside the
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`structure; computer hardware … configured to use the stored data to predict a rate
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`of change of temperatures inside the structure in response to changes in outside
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`temperatures.” Ex. 1001, claim 17. Ehlers uses this predicted rate of change, in one
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`instance, to determine a new “offset” setpoint (different from what the user
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`selected). Ex.1004, ¶¶[0253]-[0255], [0256] (“effective set point offset needed”) .
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`The offset setpoint reduces the percentage of time need for the HVAC to cycle on
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`during operation (discussed in more detail below). In other words, by knowing
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`how quickly the temperature will rise in a space, the system can select a setpoint
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`that keeps the runtime to 33%. Ex. 1004, ¶[0256]. In other words, Ehlers
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`“calculate[s] … scheduled setpoint programming of the programmable
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`communicating thermostat for one or more times based on the predicted rate of
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`change.” Ex. 1001, claim 17.
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`10
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`
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`B.
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`Ehlers’ Figs. 3E and 3G
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`19. Dr. Palmer takes an odd view of Figs. 3E and 3G of Ehlers. Ex. 2006,
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`¶¶40-45. In Dr. Palmer’s view, the “THERMAL GAIN RATE PER HOUR” in
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`Figs. 3E and 3G cannot be a “rate of inside temperature change because Ehlers
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`expressly states that” the HVAC system was set a specific setpoint for the entire
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`day and humidity control was not being used. Ex. 2006, ¶41. In Dr. Palmer’s view,
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`because an HVAC setpoint keeps the inside temperature constant, there cannot be a
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`rate change of the inside temperature, as shown in Figs. 3E and 3G. He further
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`asserts that if thermal gain was understood to be a rate of change of inside
`
`temperature, then those figures would indicate a constant increase of inside
`
`temperatures over a 24-hour period, resulting in a 42-degree increase of inside
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`temperature. Ex. 2006, ¶44. A POSITA would not have found that to be a logical
`
`interpretation of Ehlers’ Figs. 3E and 3G.
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`20. To begin, Dr. Palmer does not dispute the normal operation of an
`
`HVAC system in which, as would have been appreciated by a POSITA, cycles on
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`and off to maintain a fairly constant inside temperature. Ex. 1022, 20:2-22:22,
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`23:19-22; 107:16-109:18. If the setpoint is 72 degrees F., the HVAC system may
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`cycle on when the temperature rises to 73 degrees F., stay on until the temperature
`
`drops to 71 degrees F., cycle off, and then repeat that cycle when the temperature
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`11
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`
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`
`
`
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`again reaches 73 degrees F. Dr. Palmer refers to this band as the “dead band.” Ex.
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`1022, 21:5-22:17. I refer to the operation as hysteresis.
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`21. Regardless of the terminology applied, this cycling on and off is
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`explicitly referred to in Ehlers with respect to Figs. 3E and 3G. In Ehlers’ example
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`pertaining to Fig. 3E, the HVAC system cycles to keep the inside temperature
`
`close to the setpoint (which was fixed for the entire day). Ex. 1004, ¶[0254]. The
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`cycling on and off of the HVAC system is referred to as the “HVAC RUNTIME
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`%” and, for Fig. 3E, varies from about 10% to about 80%. Ex. 1004, ¶[0254], Fig.
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`3E. This indicates, for instance, that when it is not particularly hot outside, the
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`HVAC system may only need to cycle on for 10% of the time to maintain the
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`setpoint. As the outdoor temperature rises, the HVAC system may need to cycle on
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`for 80% of the time to maintain the setpoint. As a POSITA would have understood,
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`while the temperature is kept fairly constant (within a narrow band) the system is
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`cycling on and off, and during the off cycle, the temperature inside the structure
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`rises at approximately the predicted rate of thermal gain, which as shown in Fig.
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`3E varies from about 0.5 degrees F. per hour to about 4 degrees F. per hour. Ex.
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`1004, Fig. 3E. Thus, that rate of thermal gain indicates the expected rate of change
`
`when the HVAC system cycles off, which it does throughout the day.
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`12
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`
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`22.
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`In the example in Ehlers’ Fig. 3G, the goal is to prevent the HVAC
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`runtime from exceeding 33%, to conserve energy. The system does this using the
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`knowledge of the expected rate of thermal gain given current conditions. Ex. 1004,
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`¶[0256] (“using it computed thermal gain rate and the corresponding HVAC cycle
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`run time projections”). Specifically, the system changes the setpoint to a new
`
`setpoint that allows the system to prevent its runtime from exceeding 33%. Ex.
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`1004, ¶[0256] (“[b]y adjusting the effective set point upward, the system 3.08 is
`
`able to maintain the HVAC run time at the predetermined trigger level”; “Fig. 3G
`
`illustrates this scenario”).
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`23. Thus, in Fig. 3G, the expected rate of thermal gain, which is a rate of
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`change of inside temperature per unit time, is used to control the programming of
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`the system by providing a new (computer calculated) setpoint. Ex. 1004, ¶¶[0255]
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`(“the dead band in this example would be raised to 3 degrees F. and the rate of
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`thermal gain would be set at 3 degrees F. per hour”); [0256] (“uses the learned
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`thermal gain characteristics of the site 1.04 … to maintain a flat level of demand
`
`and consumption”).
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`24. Moreover, in Figs. 3E and 3G, a POSITA would understand that the
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`thermal gain rate is that “learned” information that predicts what will happen at
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`any given point of time for a given setpoint and a given outside temperature, when
`
`13
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`
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`
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`the system cycles off. Ex. 1004, ¶¶[0253]-[0256]. Dr. Palmer’s suggestion that this
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`thermal gain rate would indicate a continual increase in inside temperature over 24
`
`hours straight, even with the HVAC operating normally to maintain the setpoint, is
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`not logical given the disclosure in Ehlers. Dr. Palmer acknowledged that a
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`POSITA would know that a normally operating HVAC system strives to maintain
`
`its setpoint, and Ehlers describes just that. Ex. 1004, ¶[0254]. Dr. Palmer also
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`acknowledges that HVAC systems cycle on and off such that the inside
`
`temperatures is kept within a narrow band, which is also explicitly described in
`
`Ehlers with respect to Figs. 3E and 3G. Ex. 1004, ¶¶[0254]-[0256]; see also Ex.
`
`1001, 5:9-12 (stating that when an HVAC system “turns on[] the inside
`
`temperature stays constant”). Figures 3E and 3G show that the system is operating
`
`normally (i.e., cycling on and off at runtime rates), as opposed to staying on 100%
`
`of the time, which would happen if the inside temperature was continuously rising.
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`Just applying these accepted principles described in Ehlers rebuts Dr. Palmer’s
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`assertion that Ehlers suggests a continuous rise in indoor temperature over 24
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`hours at the same time that the system determines a runtime intended to maintain
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`the inside temperature. A POSTA would adopt a sensical view of Ehlers’ Figs. 3E
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`and 3G, along the lines I have set forth above.
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`14
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`
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`C. Ehlers Describes an Automated Setpoint
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`25. Dr. Palmer disputes whether Ehlers describes an automated setpoint.
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`See Ex. 2006, ¶79. In particular, Dr. Palmer believes that because Ehlers’ system
`
`allows a user to dictate how far from the user selected setpoint the system may
`
`stray in determining a new (automated) setpoint, that somehow the new setpoint is
`
`not automated. See, e.g., Ex. 2006, ¶83. That does not square with the record. What
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`is described is that, while the user may control that allowable range of the offset,
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`the system automatically determines a particular offset setpoint within that range.
`
`26. Ehlers describes that the system calculates a new setpoint different
`
`from the one selected by a user. Ex. 1004, ¶¶[0141] (“setpoints are offset”;
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`“original setpoint (prior to the offset change)”), [0150] (“can change the heating
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`and cooling setpoint(s) and offset the values of the thermostat”), [0255] (“permit
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`the system in this example to vary the temperature in the home from the normal set
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`point of 72 F by the 4 degree offset …”), [0256] (“computes the required effective
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`set point offset …”). A POSITA would understand these changes to a manual
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`setpoint as automated setpoints because the computer selects the new temperature
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`setting.
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`27. While, in Ehlers, a user may influence how far from the manual
`
`setpoint the automated setpoint may be offset, that does not change the analysis.
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`15
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`
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`Specifically, Ehlers explains that the user may select from a range of options (e.g.,
`
`10 settings) from “100% comfort management … to 100% economic
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`management.” Ex. 1004, ¶[0255]. The settings “would be tied to the number of
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`degrees from the set point that the customer would make available to the system
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`3.08 to achieve economic benefits.” Ex. 1004, ¶[0255]. In the maximum setting for
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`economic benefits, the system may be permitted to deviate from the manual
`
`setpoint by 4 degrees F. (e.g., “from 72 F to 76 F”). Ex. 1004, ¶[0255]. Thus, while
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`the user may limit how far the system may stray from the manual setpoint, a
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`POSITA would understand that the system makes the determination of when to
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`change the setpoint and by how much. Thus, the new setpoint is automated. Also,
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`over the course of the day, the system may vary the setpoint multiple times. In the
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`late morning, the system may adjust the setpoint from 72 degrees F. to 73 degrees
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`F. to reduce the HVAC runtime. By 1pm, the system may have adjusted the offset
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`to 75 degrees F. and, as the outside temperatures drops later in the day, that process
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`would likely reverse itself. This is an automated process using setpoints (at
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`particular times) that the user did not input. Thus, I disagree that Ehlers does not
`
`describe automated setpoints.
`
`28.
`
`In addition, as discussed in my Original Declaration, Ehlers uses the
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`predicted rate of change of inside temperatures in recovery operations from, for
`
`16
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`
`
`
`
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`instance, unoccupied mode to occupied modes. Ex. 1002, ¶¶95-99. In a recovery
`
`operation, a user may desire the inside temperature to be 72 degrees F. by 6pm,
`
`upon arriving home from work. To achieve that desired indoor temperature, the
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`system in Ehlers would use the predicted rate of change under given conditions to
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`determine when to begin operating the HVAC. That could mean changing the
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`setpoint to 72 degrees F. at 5pm, or using ramping to select various setpoints in
`
`ramping to the desired temperatures. These intermediate setpoints prior to 6pm
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`would be automated by the system. See Ex. 1004, ¶¶ [0246],[0255]; Ex. 1002,
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`¶¶135-136.
`
`29.
`
`It should also be noted that, in Ehlers, the system learns from user
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`preferences. Ex. 1004, ¶[0242] (“system 3.08 manages comfort for the customer
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`site 1.04 by learning from the user’s inputs or adjustments to the system 3.08 to
`
`change or modify indoor air temperature”). For instance, if the system adopted an
`
`offset setpoint to conserve energy each afternoon, but the user manually adjusted
`
`the offset setpoint on Saturday afternoons when the outdoor temperature exceeded
`
`95 degrees F., the system would learn from the user’s actions. See Ex. 1004,
`
`¶[0243] (explaining that the offset programming “would be modified as needed
`
`based on the user’s changes to the set point”). The learning of user behavior is not
`
`described in Ehlers as being limited to instances when the user’s modifications are
`
`17
`
`
`
`
`
`
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`made relative to a manual setpoint or an automated setpoint. See Ex. 1002, ¶99.
`
`And a POSITA would understand that the learning would happen regardless of
`
`whether the setpoint being adjusted was the original setpoint or an offset
`
`(automated) setpoint. In either case, the system would learn from the user’s
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`preferences. Ehlers describes tracking user adjustments without regard to the origin
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`of the prior setpoint in order to execute “follow my lead” learning. Ex. 1004,
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`¶¶[0308]-[0309]. A POSITA would have appreciated that a system like Ehlers
`
`would often be learning from changes to automated setpoints inasmuch as Ehlers’
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`automated, offset setpoints are intended for energy conservation (at the expense of
`
`comfort) and users often adjust their thermostats when they are uncomfortable.
`
`VIII. WRUCK
`
`30. Dr. Palmer asserts that Wruck does not describe comparing different
`
`setpoints or provide a detailed explanation of the “Delta value.” Ex. 2006, ¶55. As
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`explained in my Original Declaration, Wruck describes that a user may override
`
`setpoints and that the system detects when such changes have been made. Ex.
`
`1002, ¶59. Specifically, Wruck’s system determines the “Delta value” between the
`
`actual setpoint and the scheduled setpoint and, if that setpoint is greater than zero,
`
`determines that a change has been made such that new setpoint should be
`
`displayed. Ex. 1002, ¶¶60-61. Given the simple principles involved, Wruck does
`
`18
`
`
`
`
`
`
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`not need to provide a more detailed description for a POSITA to understand that
`
`Wruck is, at least, suggesting a comparison of values (scheduled and actual
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`setpoints) and a determination of a difference between those values. In fact, Dr.
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`Palmer admits that “Delta” has a common meaning in the scientific community—
`
`“a change.” Ex. 1022, 139:9-11.
`
`IX. THE COMBINATION OF OLS AND BOAIT
`A. Motivation to Combine
`
`31. Dr. Palmer’s declaration takes issue with the combination of Ols and
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`Boait. In particular, Dr. Palmer asserts that Ols is directed to a “retrofit[s]” system
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`that operates using controllable dampers attached to air ducts, while Boait is
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`directed to “a central heating boiler.” Ex. 2006, ¶¶100-106. According to Dr.
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`Palmer’s declaration, these types of systems “differ[] substantially” and therefore
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`there would have been no reason to combine the teachings. Ex. 2006, ¶104. I
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`disagree.
`
`32. First, Ols and Boait are not limited to the types of operations/systems
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`identified in Dr. Palmer’s declaration. Ols explains that its programming system
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`may be used on general heating and cooling systems. Ex. 1006, 1:34-42 (“Heating
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`and cooling equipment is old and well known.”), 3:16-34 (“climate control system
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`100”; “heating/AC system 104”). Boait also pertains to various heating and cooling
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`systems. Ex. 1007, 1:5-8 (“central heating systems”); 1:26-27 (“heating and/or
`19
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`
`
`
`
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`cooling”); 3:6-13 (“[i]n its broadest aspect the central heating system can include a
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`heating and/or cooling device”; “can also be a conventional ‘air based’ system”).
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`Thus, a POSITA would not have viewed either Ols or Boait as being limited to a
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`particular type of system. Dr. Palmer himself acknowledged that the references
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`describe various types of heating and cooling systems. Ex. 1022, 140:6-143:15
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`(“[f]urnaces, air conditioners, heat pumps,” etc.), 149:6-150:8.
`
`33. Second, Dr. Palmer agrees that prior art smart thermostats would not
`
`be limited to working with one type of heating or cooling system. Ex. 1022, 141:2-
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`16. A POSITA would have understood that the thermostatic controllers in Ols and
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`Boait would not have been limited to particular types of heating or cooling system
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`and that teachings concerning controlling and programming from either of these
`
`references would be applicable to the other.
`
`B.
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`Predicting Rate of Change
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`34. Dr. Palmer argues that neither Ols nor Boait suggests predicting the
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`rate of change in inside temperatures in response to outside temperatures. Ex.
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`2006, ¶¶111-113. I disagree.
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`35. Boait describes tracking inside and outside temperatures and making
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`calculation using the same related to predicting how the inside temperature will
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`change in response to the outside temperature. Ex. 1007, 20:1-20; Ex. 1002, ¶¶182-
`
`20
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`
`
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`
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`185. In particular, Boait describes the determination of, for instance, recovery
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`times based on this information. As Boait explains, the time it will take for the
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`system to recover to an occupied setting in the morning given one outdoor
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`temperature may be different as compared to “a very cold morning.” Ex. 1007,
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`20:22-29. Thus, a POSITA would have understood Boait to be describing the
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`prediction of a rate of change based on changes in outside temperature (e.g., the
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`rate of change on a cold morning vs. the rate of change on a warmer morning). Dr.
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`Palmer ultimately agreed with this understanding of Boait. Ex. 1022, 160:2-
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`163:19; 19:14-20. Also, this operation in Boait matches an example in the ’550
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`patent. Ex. 1001, 5:35-40; Ex. 1022, 28:16-31:22.
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`36. Similarly, Ols describes that the system learns from historical data.
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`Ex. 1006 11:53-12:34; Ex. 1002 ¶¶179-181. Ols also explains that “outdoor
`
`climate conditions are used as factors for determining settings and actions.” Ex.
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`1004, 19:1-24, 12:14-34; Ex. 1002, ¶180. As a whole, a POSITA would have
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`understood Ols to be describing using indoor and outdoor temperatures to control
`
`thermostat programming. Also, predicting rates of change in inside temperatures
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`based on outside temperatures this would have been obvious in view of Boait.
`
`37.
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`I also note that Dr. Palmer argues that the setting changes in Ols are
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`based on humidity adjustments rather than predicted rates of change. Ex. 2006,
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`21
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`
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`¶¶118-119. Dr. Palmer cites to Ols at 31:20-42 on this point. Ex. 2006, ¶118.
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`However, Dr. Palmer ignores that Ols explains that “even if the humidity
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`adjustment is off, then the set point temperature may still not be the temperature
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`desired by the user … because the system may use a different set point in order to
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`conserve energy and/or to better meet other needs of the system or of that
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`location.” Ex.1006, 31:37-42. Thus, Ols explicitly states that its setpoint
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`programming is not limited to humidity-based adjustments, which Dr. Palmer
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`ultimately acknowledged. Ex. 1022, 147:4-148:20.
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`
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