Case 6:21-cv-00428-ADA Document 41 Filed 07/25/22 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`ECOFACTOR, INC.,
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`Plaintiff,
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`v.
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`ECOBEE, INC.,
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`Case No.: 6:20-cv-00078-ADA
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`JURY TRIAL DEMANDED
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`Defendant.
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`ECOFACTOR, INC.,
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`Plaintiff,
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`v.
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`ECOBEE, INC.,
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`Defendant.
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`Case No.: 6:21-cv-00428-ADA
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`JURY TRIAL DEMANDED
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`LEAD CASE
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`ORDER GRANTING JOINT MOTION TO CONSOLIDATE ACTIONS
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`Upon consideration of the Joint Motion to Consolidate Actions submitted by Plaintiff
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`EcoFactor, Inc. and Defendant ecobee, Inc. in the above-captioned cases, the Court is of the
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`opinion that the Motion should be granted.
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`IT IS THEREFORE ORDERED that the Joint Motion is GRANTED and that Case No.
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`6:20-cv-00078-ADA (“the -00078 Action”) is consolidated into Case No. 6:21-cv-00428-ADA
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`(“the -00428 Action”) for all purposes, including trial. It is further ORDERED that this
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`consolidation be implemented according to the following stipulations by the parties:
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`1.
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`All discovery materials and filings in the -00078 Action will be treated as though
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`they were submitted in the consolidated -00428 Action, subject to the additional terms below.
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`ECOBEE 1023
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`001
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`Case 6:21-cv-00428-ADA Document 41 Filed 07/25/22 Page 2 of 4
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`2.
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`By September 13, 2022 (i.e., four weeks before the close of fact discovery), the
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`parties shall update the discovery responses and document productions previously provided in the
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`-00078 Action solely to include (1) updated financial documents and information, and (2)
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`documents and information regarding ecobee’s two new thermostat products that were released in
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`May 2022 (Smart Thermostat Enhanced and Smart Thermostat Premium).
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`3.
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`The
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`Court
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`will
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`hold
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`ecobee
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`to
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`its
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`stipulation,
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`solely for purposes of litigating the alleged infringement of U.S. Patent No. 8,738,327 (the
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`“’327 patent”), that there is no material difference between the accused functionality and
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`relevant source code of the Smart Thermostat Enhanced and Smart Thermostat Premium, on
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`the one hand, and the accused ecobee Smart Thermostat with Voice Control, on the other
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`hand, the latter of which was already addressed in the parties’ expert reports. Consequently,
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`EcoFactor’s same infringement arguments and ecobee’s same non-infringement arguments
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`apply to the Smart Thermostat Enhanced and Smart Thermostat Premium. However, for
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`avoidance of doubt, ecobee does not stipulate—and nothing herein prejudices ecobee from
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`arguing—that the Smart Thermostat Enhanced and Smart Thermostat Premium are materially
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`different from Smart Thermostat with Voice Control for purposes other than analyzing
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`infringement of the ’327 patent—including, for example, for purposes of analyzing infringement
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`of the patents currently in issue in the -00428 Action.
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`4.
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`On or before October 18, 2022 (the deadline for opening expert reports on the
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`patents already at issue in the -00428 Action), opening expert reports previously submitted in the
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`-00078 Action may be supplemented to address updated sales data and ecobee’s two new
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`thermostat products. On or before November 15, 2022 (the deadline for rebuttal expert reports on
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`the patents already at issue in the -00428 Action), rebuttal expert reports previously submitted in
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`the -00078 Action may be supplemented to address new material contained in supplemental
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`002
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`Case 6:21-cv-00428-ADA Document 41 Filed 07/25/22 Page 3 of 4
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`opening reports. The technical expert reports of Mr. Zeidman and Dr. Souri will be supplemented
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`only to reference the parties’ Stipulation 3 above and convey that their existing opinions therefore
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`apply to ecobee’s two new thermostat products. Supplements to the damages expert reports of Mr.
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`Kennedy and Ms. Riley will be consistent with their existing damages theories. Mr. Kennedy and
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`Ms. Riley each may be deposed for up to two hours on the supplemental contents of their
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`supplemental reports. Given the very narrow purpose of their supplemental reports, there will be
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`no further deposition of Mr. Zeidman or Dr. Souri regarding their -00078 Action reports.
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`5.
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`The following three motions, which are presently pending in the -00078 Action,
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`will be decided in the proposed consolidated -00428 Action: (1) ecobee’s Corrected Motion to
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`Strike New Infringement Theories (Dkt. No. 90); (2) ecobee’s Corrected Motion to Exclude the
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`Damages Opinions of David Kennedy (Dkt. No. 91); and (3) EcoFactor’s Motion to Exclude
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`Opinions of ecobee’s Damages Expert Michele Riley (Dkt. No. 94).
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`6.
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`The parties shall serve new pretrial disclosures on January 10, 2023, thus replacing
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`the pretrial disclosures previously served in the -00075 Action.
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`7.
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`ecobee agrees not to seek a stay or otherwise delay trial of the consolidated -00428
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`Action, absent (1) serious and unanticipated illness or injury to lead counsel or experts that would
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`prevent such individuals from participating in the trial as scheduled to begin on March 21, 2023,
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`or (2) other unforeseen and serious events that would make it unreasonable or impossible to try
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`the case as scheduled.
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`8.
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`All existing motions in limine and pending evidentiary objections will be deemed
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`moot, and the parties will submit new motions in limine and objections in the normal course in
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`advance of the new trial date.
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`9.
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`All current deadlines in the -00078 action not addressed above will be vacated.
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`003
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`Case 6:21-cv-00428-ADA Document 41 Filed 07/25/22 Page 4 of 4
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`10.
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`The -00428 action shall be designated as the "Lead Case." All counsel of record
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`in the -00075 action shall take timely notice of all future filings in the -00428 action and, if
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`needed, file any appropriate notice of appearance in the -00428 action. All counsel of record in
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`the -00075 action are hereby deemed to receive service of all future filings in the -00428 action.
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`The parties shall make all future filings on the -00428 docket.
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`11.
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`The parties are ORDERED to meet and confer to file a joint motion in the -00428
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`action to enter a scheduling order that clearly sets forth all deadlines.
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`SIGNED on this 25th day of July, 2022.
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`__________________________________
`ALAN D. ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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`004
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