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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` ECOBEE TECHNOLOGIES, ULC, )
`
`-o0o-
`
`Petitioner, )
`
`)
`
` v. ) Patent No.
`
`) 98,596,550
`
`) IPR2022-00969
`
` ECOFACTOR, INC., )
`
`Patent Owner. )
`
` _____________________________)
`
`)
`
` RECORDED VIDEOCONFERENCE DEPOSITION OF DAVID AUSLANDER
`
`Taken via Zoom
`
`On Wednesday, June 7, 2023
`
`At 8:56 a.m.
`
` Reported by: Emily A. Gibb, RPR, CSR, CCR
`
`Veritext Legal Solutions
`Calendar-CA@veritext.com 866-299-5127
`
`Page 1
`
`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` ECOBEE TECHNOLOGIES, ULC, )
`
`-o0o-
`
`Petitioner, )
`
`)
`
` v. ) Patent No.
`
`) 98,596,550
`
`) IPR2022-00969
`
` ECOFACTOR, INC., )
`
`Patent Owner. )
`
` _____________________________)
`
`)
`
` RECORDED VIDEOCONFERENCE DEPOSITION OF DAVID AUSLANDER
`
`Taken via Zoom
`
`On Wednesday, June 7, 2023
`
`At 8:56 a.m.
`
` Reported by: Emily A. Gibb, RPR, CSR, CCR
`
`Veritext Legal Solutions
`Calendar-CA@veritext.com 866-299-5127
`
`Page 1
`
`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 1
`
`
`
` A P P E A R A N C E S
` For the Petitioner, EcoBee:
` Justin J. Oliver, Esq.
` VENABLE LLP
` 600 Massachusetts Avenue, NW
` Washington, District of Columbia 20001
` (202) 721-5423
` joliver@venable.com
`
` For the Patent Owner, EcoFactor:
` Jonathan Link, Esq.
` RUSS AUGUST & KABAT LAW
` 12424 Wilshire Boulevard
` 12th Floor
` Los Angeles, California 90025
` (310) 826-7474
` jlink@raklaw.com
`
` Also Present:
`
` Anthony Gulino, Legal Videographer
`
` * * *
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`Veritext Legal Solutions
`Calendar-CA@veritext.com 866-299-5127
`
`Page 2
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 2
`
`
`
` I N D E X
` DAVID AUSLANDER PAGE
` Examination By Mr. Link 5
`
` * * *
`
` E X H I B I T S
`
` EXHIBIT DESCRIPTION PAGE
`
` Exhibit 1023-969 - Case No. IPR2022-00969 5
` Reply Declaration of David M.
` Auslander
`
` Exhibit 1023-983 - Case No. IPR2022-00983 5
` Reply Declaration of David M.
` Auslander
`
` Exhibit 1022 - April 11, 2023 Transcript of 13
` John A. Palmer, Ph.D.
` Exhibit 1004 - United States Patent 27
` Application Publication No.
` 2004/0117330 A1
` Exhibit 1005 - United States Patent 46
` Application Publication No. US
` 2005/0040250 A1
` Exhibit 1007 - UK Patent Application GB 2 47
` 432 016 A
`
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`Veritext Legal Solutions
`Calendar-CA@veritext.com 866-299-5127
`
`Page 3
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 3
`
`
`
` P R O C E E D I N G S
`
` -o0o-
`
` VIDEOGRAPHER: Good morning, everyone. We
`
` are going on the record at 8:56 a.m., Pacific
`
` Daylight Time on June 7, 2023. Please note that this
`
` deposition is being conducted virtually. Quality of
`
` recording depends on the quality of camera and
`
` Internet connection of participants. What is seen
`
` from the witness and heard on screen is what will be
`
` recorded. Audio and video recording will -- will
`
` continue to take place unless all parties agree to go
`
` off the record.
`
` This is Media Unit 1 of the video-recorded
`
` deposition of Dr. David Auslander taken by counsel
`
` for patent owner in the matter of Ecobee Technologies
`
` ULC versus EcoFactor, Inc. And the patent numbers
`
` are IPR2022-969 and 983.
`
` This deposition is being conducted remotely
`
` using virtual technology. My name is Anthony Gulino
`
` representing Veritext Legal Solutions, and I am the
`
` videographer. The court reporter is Emily Gibb from
`
` the firm Veritext Legal Solutions. I am not related
`
` to any party in this action, nor am I financially
`
` interested in the outcome. If there are any
`
`Veritext Legal Solutions
`Calendar-CA@veritext.com 866-299-5127
`
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 4
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` objections to proceeding, please state them at the
`
` time of your appearance.
`
` Counsel will now state their appearances and
`
` affiliations, beginning with the noticing attorney.
`
` MR. LINK: Good morning. My name is
`
` Jonathan Link from the law firm of Russ August &
`
` Kabat on behalf of the patent owner, EcoFactor.
`
` MR. OLIVER: Justin Oliver from the law form
`
` of Venable on behalf of the petitioner EcoBee.
`
` And before we get started, you might have
`
` already mentioned this, this video is just being used
`
` for purposes of the court reporter and copies will
`
` not be saved; correct?
`
` MR. LINK: I -- yes.
`
` MR. OLIVER: Yeah. Okay.
`
` EXAMINATION
`
` BY MR. LINK:
`
` Q. All right. Good morning, Dr. Auslander.
`
` A. Good morning. Good to see you.
`
` Q. Good. You as well.
`
` (Exhibits 1023-969 and 1023-983 were
`
` marked for identification.)
`
` I've -- I've marked or -- or introduced as
`
` two exhibits your two reply declarations in this case
`
`Veritext Legal Solutions
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`
`Page 5
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 5
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` that you filed. One was filed in support of
`
` IPR2022-00983, and the other was filed in support of
`
` IPR2022-00969.
`
` Can you take a look at those and just make
`
` sure that those are your reply declarations.
`
` A. Okay. I'm downloading them.
`
` Q. All right.
`
` A. Yes.
`
` Q. Okay. Great.
`
` A. At least a quick look, yes.
`
` Q. Wonderful.
`
` Well, and so with that in mind, what -- what
`
` I wanted to do was go through and just confirm some
`
` things about these two declarations.
`
` In both declarations, you provided some
`
` opinions regarding the person of ordinary skill in
`
` the art; correct?
`
` A. Yes.
`
` Q. Okay. And if I could have you turn to that
`
` section in both of these declarations. In both
`
` cases, it starts at paragraph 6. Let me know when
`
` you've done that.
`
` A. Paragraph 6. Okay.
`
` Q. Are there any substantive differences
`
` between this section that provide your opinions on
`
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`Page 6
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 6
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` the person of ordinary skill in the art in the reply
`
` declaration for the 983 IPR versus that same section
`
` in the reply declaration for the 969 IPR?
`
` A. The -- you mean in these two reports we're
`
` looking --
`
` Q. Yes.
`
` A. -- the two reports we're looking at?
`
` Not as --
`
` Q. Yes, sir.
`
` A. Not as far as I know.
`
` Q. Okay. You wrote these -- you wrote both of
`
` your reply declarations; is that correct?
`
` A. Yeah. In the -- the -- you know, the -- the
`
` usual method of working -- working with law firms,
`
` yes.
`
` Q. Okay. And so in reviewing and -- and
`
` ensuring that these sections were correct and
`
` accurately reflected your opinions, you looked at all
`
` sections in these declarations; correct?
`
` A. Correct.
`
` Q. Okay. Do you recall any differences when
`
` you performed that review between these -- your
`
` opinions on the person of ordinary skill in the art
`
` of the 983 declaration versus the 969 declaration?
`
` A. Not that I recall.
`
`Veritext Legal Solutions
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`Page 7
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 7
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` Q. Okay. I want to turn, then, to your section
`
` that you have in both declarations entitled "Thermal
`
` Gain and Thermal Mass" that starts at paragraph 8 in
`
` both declarations.
`
` Can you turn to that?
`
` A. Okay.
`
` Q. And, again, is there any substantive
`
` difference in the opinions that you provide with
`
` respect to thermal gain and thermal mass in the 983
`
` patent -- or, I'm sorry, in the 983 IPR, as compared
`
` to the declaration for the 969 IPR?
`
` A. No, not to my knowledge.
`
` Q. Moving to paragraph 11 in both of these
`
` declarations, you have a sectioned entitled "Ehlers'
`
` Fig. 3D."
`
` Do you see that?
`
` A. Yep.
`
` Q. Okay. And this is where you provide your
`
` opinions with respect to Ehlers' Figure 3D; correct?
`
` A. Yes.
`
` Q. Okay. And, again, are there any substantive
`
` differences between the opinions you offer with
`
` respect to Ehlers' Figure 3D in the reply declaration
`
` for the 983 IPR versus the opinions you offer
`
` regarding -- with respect to Ehlers' Figure 3D in the
`
`Veritext Legal Solutions
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`
`Page 8
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 8
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` reply declaration for the 969 IPR?
`
` A. No, not that I know of.
`
` Q. I want to jump, then, to -- to paragraph 19
`
` in both of these declarations. And this is where you
`
` have a heading entitled "Ehlers' Figs. 3E and 3G."
`
` Do you see that?
`
` A. Yeah, I'm there.
`
` Q. Okay. And, again, is there any substantive
`
` difference regarding the opinions you offer on
`
` Ehlers' Figures 3E and 3G in the reply declaration
`
` for the 983 IPR and the opinions you offer on Ehlers'
`
` Figures 3E and 3G in the reply declaration for the
`
` 969 IPR?
`
` A. No, not that I know of.
`
` Q. Okay. I'd like to now move to paragraph 25
`
` in your declarations where you have a heading
`
` entitled "Ehlers Describes an Automated Setpoint."
`
` If you can let me know when you get there.
`
` A. Okay.
`
` Q. Is there any substantive difference
`
` regarding the opinions you offer on whether Ehlers
`
` describes an automated set point in the reply
`
` declaration in the 983 IPR versus the opinions you
`
` offer on whether Ehlers describes an automated set
`
` point in the reply declaration in the 969 IPR?
`
`Veritext Legal Solutions
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`
`Page 9
`
`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 9
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` A. Nope, not that I know of.
`
` Q. Let me ask you this: When you finalized
`
` this section of your report -- of your declaration
`
` with respect to whether Ehlers describes an automated
`
` set point, did you intend for there to be any
`
` substantive differences in your opinions that you
`
` provide in the 983 IPR reply declaration versus the
`
` reply declaration that you provided in the 969 IPR?
`
` A. No, I didn't.
`
` Q. Okay. At paragraph 30 in both of these
`
` declarations, you have a heading for "Wruck."
`
` Would you let me know when you've turned to
`
` that.
`
` A. Okay.
`
` Q. Are there any differences in the opinions
`
` that you provide about Wruck in your reply
`
` declaration for the 983 IPR and the opinions that you
`
` provide about Wruck in your reply declaration for the
`
` 969 IPR?
`
` A. Not that I know of.
`
` Q. Okay. Did you intend for there to be any
`
` differences between these two sections?
`
` A. No.
`
` Q. Okay. And then if you could go to
`
` paragraph 31 --
`
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`Page 10
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 10
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` A. Uh-huh.
`
` Q. -- of both of these reports and let me, and
`
` let me know when you get there.
`
` A. Yep.
`
` Q. This is -- you have here a section entitled
`
` "Secondary Considerations"; correct?
`
` A. On the 983.
`
` Q. On the 983 there.
`
` And at paragraph 38 of the 969 IPR reply
`
` declaration, you also have a section entitled
`
` "Secondary Considerations"; correct?
`
` A. Do you want me to go to paragraph 38?
`
` Q. Yes, in the -- for the reply declaration for
`
` the 969 IPR.
`
` A. Yes. Okay.
`
` Q. Okay?
`
` A. I'm there.
`
` Q. All right. On both declarations, you have a
`
` section entitled "Secondary Considerations"; correct?
`
` A. Correct.
`
` Q. Okay. Is there any difference in the
`
` opinions you offer on secondary considerations in
`
` your reply declaration for the 983 IPR versus the
`
` opinions you offer on secondary considerations in
`
` your reply declaration for the 969 IPR?
`
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`Page 11
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 11
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` A. Not that I know of.
`
` Q. Okay. And did you intend for there to be
`
` any differences in your opinions in these two
`
` sections?
`
` A. No.
`
` Q. Okay. Great.
`
` Is it accurate to say that in these two
`
` declarations where you have sections that have the
`
` same headings, that you did not intend to provide
`
` different opinions in the 983 reply declaration
`
` versus opinions in those same sections in the 969
`
` reply declaration?
`
` A. Yeah. That makes sense.
`
` Q. Okay. So I want to then focus on the -- the
`
` 969 reply declaration and have you look at that one
`
` for right now.
`
` A. Okay.
`
` Q. I want to go back to paragraph 9, which is
`
` where you -- is -- in the section entitled "Thermal
`
` Gain and Thermal Mass."
`
` A. Yes.
`
` Q. Okay.
`
` A. Okay. I'm there.
`
` Q. And you state that in that -- paragraph 9,
`
` you state that Dr. Palmer admitted that this value,
`
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 12
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` "'it's not time based'; instead the units of
`
` measurement 'could be BTUs per degree Fahrenheit.'"
`
` Do you see that?
`
` A. Yes.
`
` Q. Okay. So first of all, when you say "this"
`
` in that sentence, "admitted that this value" --
`
` A. Mm-hmm.
`
` Q. -- what is "this" referring to?
`
` A. Let's --
`
` Q. Oh.
`
` A. You're -- you're in the sentence that starts
`
` "He admitted that this value 'it's not time based,'"
`
` that sentence?
`
` Q. Yes, that's correct.
`
` A. "This" refers to thermal mass.
`
` Q. Okay. When you cite to that Exhibit 1022,
`
` which is Dr. Palmer's deposition; correct?
`
` (Exhibit 1022 was marked for
`
` identification.)
`
` THE WITNESS: Yes.
`
` BY MR. LINK:
`
` Q. Okay. Is that -- isn't it true that when
`
` Dr. Palmer testified, that he didn't merely say it's
`
` not time based; is that right?
`
` A. I assume that there's more to that quote
`
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`Page 13
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`ECOBEE V. ECOFACTOR
`IPR2022-00969
`Exhibit 2011
`Page 13
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` than just those three words, yeah.
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` Q. All right.
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` A. Or four words.
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` Q. Did -- did you read that quote when you
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` finalized your declaration here?
`
` A. Yeah.
`
` Q. Okay. I've provided here, in the marked
`
` exhibits, Exhibit 1022, which is Dr. Palmer's
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` deposition testimony. I wanted you to turn to
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` page 35 of that, so that we can --
`
` A. Oh, hold -- hold on a second. I need to get
`
` rid of --
`
` Q. Sure.
`
` A. I need to get rid of the phones in here.
`
` Q. No problem.
`
` A. Sorry. I forgot to do that earlier.
`
` Q. No worries.
`
` A. Okay. So let me get to that exhibit.
`
` This is 1022?
`
` Q. Yep.
`
` A. Okay. I have it up.
`
` Q. Okay. And so at -- at line 21 of -- of
`
` page 35, Dr. Palmer was asked:
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` "And as used in the industry, did it" --
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` that is --
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` A. Hang on a second.
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` Q. Oh, sure.
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` A. Okay. I'm on page 35.
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` What line?
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` Q. Line 21.
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` A. Yeah.
`
` Q. And Dr. Palmer was asked:
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` "... as used in the industry, did it" --
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` that is, thermal mass -- "always indicate a
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` rate of change?"
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` A. Okay.
`
` Q. And his response was:
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` "It was related to the rate of change,
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` but it was not necessarily a measure of a
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` rate of change."
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` Right?
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` A. I see that.
`
` Q. All right. And then later at the bottom
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` of -- of paragraph -- or, I'm sorry, page 36, there's
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` a question there that starts:
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` "And what would be the units of
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` measurements used" during "that definition,
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` when it's energy?"
`
` A. Mm-hmm.
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` Q. Do you see that? It goes all the way
`
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` through 37; right?
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` A. Yes. Got it.
`
` Q. What -- what did Dr. Palmer respond?
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` A. "... could be BTUs per degree Fahrenheit.
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` ... could be joules per second."
`
` Q. Okay. So you agree that Dr. Palmer did
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` testify that it could be time based; right?
`
` A. Hmm. That's interesting. I did not notice
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` that, and that testimony is inconsistent. BTUs and
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` joules are both units of energy. So BTUs per degree
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` Fahrenheit is not the same as joules per second. So
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` there's something inconsistent in that answer.
`
` Q. Why is that answer necessarily inconsistent?
`
` A. Because he's trying -- he's saying --
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` he's -- the -- the question being asked is what are
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` the units? And he's basically saying here it could
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` be this or it could be that. That is, it could be
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` BTUs per degree Fahrenheit. And I'm -- I'm
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` interjecting the "or" -- correct me if you don't
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` think it's correct -- or it could be joules per
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` second. Okay? So that's what's being said here.
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` And those two units are not consistent. They're not
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` the same.
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` Now, there's -- one is energy per unit of
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` temperature, and the other is energy per unit of
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`Exhibit 2011
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` time. So there's an inconsistency in that answer,
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` and -- and thank you for pointing it out. I hadn't
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` noticed that.
`
` Q. Do you agree that the value of thermal mass
`
` could be provided in BTUs per degree Fahrenheit?
`
` A. Yes.
`
` Q. Okay. Would a person of ordinary skill in
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` the art know that?
`
` A. Yes.
`
` Q. Okay. Could the value of a thermal mass be
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` represented in joules per second?
`
` A. No.
`
` Q. Why not?
`
` A. Well, joules -- we'd look up -- okay.
`
` Before we go down here, joules is not a unit I work
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` with very often, and I believe joules is a unit of
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` energy.
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` But either one of you can look it up right
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` now and confirm that before we go further, or I can
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` answer your question on -- based on what I think it
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` is. But probably it would be best to confirm exactly
`
` what joules are.
`
` Q. Why -- why don't we assume that joules are a
`
` unit of energy --
`
` A. Okay.
`
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` Q. -- and have you answer that way.
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` A. That's fine.
`
` Q. Okay.
`
` A. So this is -- this is energy per unit of
`
` time, and energy per unit of time is a -- is a
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` measure of power.
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` So they -- the thermal mass describes in
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` qualitative terms the amount of energy that a
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` physical mass can absorb in terms of how much
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` temperature change will happen because of that energy
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` absorption. And so that's expressed in energy per
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` unit of temperature, as in BTUs per degree
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` Fahrenheit, which is the first statement.
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` The -- assuming I'm -- you know, as I say, I
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` don't work with joules very often.
`
` Q. Mm-hmm.
`
` A. Assuming I'm correct with that joules is in
`
` fact an energy, that -- I would think -- if I were
`
` making this statement, I would say joules per degree
`
` Celsius.
`
` Q. Okay. In -- excuse me. In -- in this --
`
` turning back to your declaration --
`
` A. Yes.
`
` Q. -- you have a footnote at page 4 of the
`
` reply declaration for the 969 --
`
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`Exhibit 2011
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` A. Yes.
`
` Q. -- IPR.
`
` Do you see that?
`
` A. Yes.
`
` Q. Okay. And you state that:
`
` "Whether or not Ehlers was considered by the
`
` patent examiner does not affect my opinions"
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` regarding why a POSITA -- "what a POSITA
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` would understand from Ehlers."
`
` Do you see that?
`
` A. Yes.
`
` Q. Okay. And this -- this is in response to
`
` Dr. Palmer's assertion that another Ehlers' patent
`
` with the same disclosure is of record in the '550
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` patent; right?
`
` A. Yes.
`
` Q. Okay. Do you know if another Ehlers' patent
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` with the same disclosure is of record in the
`
` prosecution of the '550 patent?
`
` A. I did not confirm that specifically, but I
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` don't -- didn't doubt that -- what Dr. Palmer said
`
` was correct.
`
` Q. So you didn't investigate it at all to just
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` make sure that it was a -- Dr. Palmer's statement was
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` accurate?
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` A. No, because as it -- as it says in the
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` footnote, I consider these patents for their content,
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` and whether or not it was part of the examination is
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` not a significant part of my analysis.
`
` Q. Do you think that the examiner's
`
` understanding of the teachings of Ehlers as compared
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` to the claims of the '550 patent would be relevant to
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` your analysis?
`
` A. To the extent that material in the file
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` history is used, that is true.
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` But I -- you know, I don't know what's in
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` the mind of the patent examiner other than that.
`
` Q. Do you know if the teachings of Ehlers were
`
` found in the file history of the '550 patent?
`
` A. I -- I don't recall at this point.
`
` Q. Okay. I want to turn to paragraph 10 of the
`
` declaration for 969 IPR.
`
` A. Okay.
`
` Q. And in this paragraph, you quote from
`
` Ehlers --
`
` A. Mm-hmm.
`
` Q. -- and you state that -- in that quote, it
`
` says:
`
` "('the rate of thermal gain per hour would be
`
` set at 3 degrees F. per hour')."
`
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`Exhibit 2011
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` Do you see that?
`
` A. Yes.
`
` Q. Is there anywhere else in Ehlers that
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` indicates that the thermal gain rate is in degrees
`
` per hour?
`
` A. Not specifically that I recall.
`
` Q. Okay. Is there anywhere else in Ehlers that
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` indicates that the thermal gain rate is in any time
`
` value measurement?
`
` A. I don't recall that there's any place in
`
` Ehlers that gives a specific unit for thermal gain,
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` other than what's quoted.
`
` Q. Okay.
`
` A. That's -- that's my recollection. But
`
` other -- other than searching the patent, at this
`
` point, I couldn't say that for sure.
`
` Q. No, that's fine.
`
` Now, in -- in that section there, where it
`
` says the rate of thermal gain per hour would be set
`
` at 3 degrees Fahrenheit per hour --
`
` A. Mm-hmm.
`
` Q. -- how does -- how would a thermal gain per
`
` hour be set?
`
` A. If it's a -- if -- it's my -- my reading of
`
` it is that it's -- it's set in the sense of a value
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` being set, in this case, as a prediction. The --
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` the -- the specifics of this is not used in the
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` report, other than the quotation for the -- for the
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` units.
`
` Q. Does Ehlers describe setting this prediction
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` anywhere else?
`
` A. He uses thermal gain prediction throughout,
`
` yeah.
`
` Q. Well, does it describe how that thermal gain
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` prediction is set?
`
` A. Well, he describes using -- using
`
` predictions. I mean, as I said, I -- I -- I
`
` interpreted this to be set in the sense of setting a
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` value from some computation.
`
` Q. But the term "set" in this context,
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` certainly with the context of HVAC systems, doesn't
`
` necessarily mean that it comes from any sort of
`
` computation; correct?
`
` A. Taken in isolation, you can't -- you can't
`
` tell, that's correct.
`
` Q. Okay. So, for example, when a user sets a
`
` temperature for the thermostat, that's not from any
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` sort of calculation; correct?
`
` A. Depends on how you consider a -- a user's
`
` brain.
`
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`ECOBEE V. ECOFACTOR
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`Exhibit 2011
`Page 22
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` Q. Okay. I -- I want to move now to -- to
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` paragraph 11 in the --
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` A. Sure.
`
` Q. -- reply declaration for the 969 IPR.
`
` A. Sure. Yeah.
`
` Q. And this is where you start talking about
`
` Ehlers' Figure 3D; right?
`
` A. Yes. Yes.
`
` Q. Okay. Can a person -- let me strike that
`
` and start that over.
`
` Can Figure 3D be read and understood by a
`
` person of ordinary skill in the art without also
`
` reading and understanding Figures 3E and 3G of
`
` Ehlers?
`
` A. I believe so.
`
` Q. Okay. So there's no information in
`
` either -- with respect to either Figures 3E or 3G
`
` that would be relevant to a person of
`
` understanding -- a person of ordinary skill in the
`
` art in understanding Figure 3D?
`
` A. You mean in the backward sense? I would
`
` have to go to E and G in order to understand D?
`
` Q. Yes.
`
` A. No, I don't believe you'd have to look at E
`
` or G to understand D.
`
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`ECOBEE V. ECOFACTOR
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`Exhibit 2011
`Page 23
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` Q. Can Figures 3E and 3G of Ehlers be read and
`
` understood by a person of ordinary skill in the art
`
` without reading and understanding Figure 3D?
`
` A. In a broad sense, yes. In a specific sense,
`
` they're related. In a broad sense, Figures 3E and 3G
`
` express certain information. And that information
`
` can be understood by, you know, reading the -- the
`
` description in the patent and looking at the figures.
`
` On -- in the broader context, they are related.
`
` Q. Would a person of ordinary skill in the art
`
` need to read and understand Figure 3D of Ehlers to
`
` fully understand what is being disclosed in
`
` Figures 3E and 3G of Ehlers?
`
` A. That's -- that's a broad question.
`
` Figures 3E and 3G describe certain behavior
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` of an HVAC system under certain conditions, and that
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` understanding does not in any way depend on
`
` Figure 3D.
`
` Q. Okay. In paragraph 11 in your reply
`
` declaration for the 969 IPR, in the last sentence,
`
` you say:
`
` "Dr. Palmer agrees that this is a reasonable
`
` interpretation of Fig. 3D."
`
` Do you see that?
`
` A. Yes.
`
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`Exhibit 2011
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` Q. What is the "this" that you are referring to
`
` in that sentence?
`
` A. Oh, that the preceding sentence:
`
` "Ehlers refers to 'trends'" -- which is
`
` quoted -- "illustrated by the figure."
`
` Q. Turning to paragraph 13 in your reply
`
` declaration, yeah, in the middle of the paragraph,
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` you state that Ehlers -- I'm sorry. In the very
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` beginning.
`
` "Ehlers also explains that Fig. 3D" --
`
` A. Where? Where?
`
` Q. I'm sorry. Let me --
`
` A. Okay.
`
` Q. Let me start that over just so it's clear
`
` here.
`
` A. Yeah.
`
` Q. It -- the first sentence in paragraph 13,
`
` you state that:
`
` "Ehlers also explains that Fig. 3D depicts
`
` how the system 'tracks and learns about the
`
` thermal gain characteristics of the home
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` 2.18. To do this, the system 3.08 tracks the
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` thermal gain rate for the home 2.18 for each
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` set point selected over time by the
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` customer.'"
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` Do you see that?
`
` A. Yes.
`
` Q. Okay. But this is done for only one
`
` particular outside temperature at a time; correct?
`
` A. Correct.
`
` Q. So nothing in figure --
`
` A. Well, not -- not exactly. I mean, if a set
`
` point -- if a set point continues for any length of
`
` time, the outside temperature will be changing, so
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` there would be multiple outside temperatures.
`
` Q. Where -- where does it show that in Figure
`
` 3D?
`
` A. Well, Figure 3D is not -- is -- is looking
`
` at specific outside temperatures there. They are
`
` mentioned.
`
` Q. All right. I'm going to introduce figure --
`
` the Ehlers reference, just so that we have it --
`
` A. Sure.
`
` Q. -- and you can look at it as needed. And
`
` specifically, I think, so we can go to Figure 3D.
`
` Where does it show or where is it
`
` described --
`
` A. Hang -- hang on a second.
`
` Q. Okay. I'm sorry.
`
` A. It has not appeared in the marked exhibits
`
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`24
`
`25
`
` yet.
`
` Q. Okay. Oh, hold on a second. Let me --
`
` Okay. It should be there now. Let me know
`
` if that's not the case.
`
` A. Yes. Okay. Let's see. What is it? Is
`
` that 1023?
`
` Q. Yeah, it showed up as that. It should be
`
` just 1004. My apologies on that. We'll --
`
` A. Oh, oh, I see. Okay.
`
` Q. Yeah.
`
` A. Oh, yeah, okay. Okay.
`
` (Exhibit 1004 was marked for
`
` identification.)
`
` BY MR. LINK:
`
` Q. And you said, if a set point continues for
`
` any length of time, the outside temperature will be
`
` changing, so there will be multiple outside
`
` temperatures.
`
` And I want to know where in Figure 3D,
`
` either the figure itself or its description in
`
` Ehlers, does it talk about any one of those
`
` particular lines involving a change in outside
`
` temperature.
`
`
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