UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ECOBEE TECHNOLOGIES ULC
`
`Petitioner
`
`v.
`
`ECOFACTOR, INC.
`Patent Owner
`
`Patent No. 8,596,550
`
`DECLARATION OF DAVID M. AUSLANDER
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`TABLE OF CONTENTS
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`ENGAGEMENT AND COMPENSATION ................................................... 4 
`I.
`QUALIFICATIONS ........................................................................................ 4 
`II.
`SUMMARY OF OPINIONS ........................................................................... 6 
`III.
`IV. MATERIALS REVIEWED ............................................................................ 6 
`V.
`UNDERSTANDING OF THE RELEVANT LAW ........................................ 8 
`A.
`Anticipation ........................................................................................... 8 
`B.
`Obviousness ........................................................................................... 8
`LEVEL OF ORDINARY SKILL IN THE ART ........................................... 11 
`VI.
`VII. RELEVANT TIMEFRAME FOR DETERMINING OBVIOUSNESS ....... 12 
`VIII. TECHNICAL INTRODUCTION ................................................................. 12 
`A.
`The ’550 Patent Disclosure ................................................................. 12 
`IX. CLAIM INTERPRETATION ....................................................................... 18 
`A.
`BACKGROUND ON CLAIM INTERPRETATION ......................... 18 
`B.
`CLAIM INTERPRETATION OF THE ’550 PATENT ..................... 19 
`GROUND 1: Claims 17-23 Are Obvious Over Ehlers ’330 in view of
`Wruck. ............................................................................................................ 21 
`A.
`Effective Prior Art Dates of Ehlers ’330 and Wruck .......................... 21 
`B.
`Overview of the Combination ............................................................. 21 
`1.
`Overview of Ehlers ’330 ........................................................... 22 
`2.
`Overview of Wruck ................................................................... 25 
`3.
`Overview of the Combination ................................................... 27 
`Rationale (Motivation) Supporting Obviousness ................................ 28 
`C.
`Reasonable Expectation of Success .................................................... 28 
`D.
`Analogous Art ..................................................................................... 29 
`E.
`Claim Mapping .................................................................................... 29 
`F.
`XI. GROUND 2: Claims 17-23 Are Obvious Over Ols ’725 in view of Boait and
`Wruck ............................................................................................................. 59 
`A.
`Effective Prior Art Dates of Ols ’725, Boait, and Wruck ................... 59 
`B.
`Overview of the Combination ............................................................. 59 
`
`X.
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`Overview of Ols ’725 ................................................................ 60 
`1.
`Overview of Boait ..................................................................... 61 
`2.
`Overview of Wruck ................................................................... 62 
`3.
`Overview of the Combination ................................................... 62 
`4.
`Rationale (Motivation) Supporting Obviousness ................................ 63 
`C.
`Reasonable Expectation of Success .................................................... 64 
`D.
`Analogous Art ..................................................................................... 64 
`E.
`Claim Mapping .................................................................................... 65 
`F.
`XII. OATH ............................................................................................................ 91
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`I.
`
`ENGAGEMENT AND COMPENSATION
`1.
`My name is David M. Auslander. I have been retained by counsel for
`
`ecobee Technologies ULC, ecobee Ltd., and Generac Holdings Inc. (collectively,
`
`“ecobee”) for the purpose of providing my opinion with respect to the
`
`unpatentability of U.S. Patent No. 8,596,550 (“the ’550 patent”). I am being
`
`compensated for my time in preparing this declaration at my standard hourly rate,
`
`and my compensation is not dependent upon my opinions or the outcome of the
`
`proceedings. My curriculum vitae is attached as Ex. 1003.
`
`II. QUALIFICATIONS
`2.
`I received my Bachelors in Mechanical Engineering from The Cooper
`
`Union in 1961. From the Massachusetts Institute of Technology, I received a Master
`
`of Science (S.M.) in 1964 and a Doctor of Science (ScD) in 1966. I have over 50
`
`years of experience in the study, research, teaching, and development in control
`
`system design and analysis, including energy management systems, real time
`
`software methodology, motion control, and dynamic system modeling and
`
`simulation.
`
`3.
`
`My research areas focus on control system design and analysis,
`
`including energy management systems like those discussed in the ’550 patent. This
`
`area also includes issues of real time software design and dynamic system
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`simulation, which are key areas for designing successful products that need to adapt
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`to changing environments. For example, I co-authored the “Real-Time Software for
`
`Implementation of Feedback Control,” chapter in The Control Handbook, published
`
`by CRC Press and IEEE Press in 1996. I also co-authored a textbook entitled Control
`
`Software for Mechanical Systems: Object Oriented Design in a Real-Time World,
`
`published by Prentice-Hall in 2002. I also authored a chapter regarding “Digital
`
`Controllers,” in the Encyclopedia of Physical Science and Technology (Third
`
`Edition), published by Academic Press in 2003, and co-authored a chapter entitled
`
`“Network Fundamentals,” in the Handbook of Networked and Embedded Control
`
`Systems, published in 2005.
`
`4.
`
`Some relevant research papers for which I was a co-author are: “Multi-
`
`Sensor Single-Actuator Control of HVAC Systems” at the International Conference
`
`for Enhanced Building Operations in Richardson, TX (2002), “A Tale of Two
`
`Houses: the Human Dimension of Demand Response Enabling Technology from a
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`Case Study of an Adaptive Wireless Thermostat” and “Demand Response-Enabled
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`Residential Thermostat Controls” for the American Council for an Energy Efficient
`
`Economy (ACEEE, 2008), and “Developing Affordable Smart Thermostats” for
`
`Home Energy (2008).
`
`5.
`
`I have taught classes in the areas of real time software and feedback
`
`control systems. I developed a measurement and instrumentation course and several
`
`courses in the areas of mechatronics.
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`6.
`
`I have received several awards for my work, including an Education
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`Award from the American Automatic Control Counsel, the Control Practice Award
`
`from the Dynamic Systems and Control Division of the American Society of
`
`Mechanical Engineers, the Donald P. Eckman Award from the Instrumentation,
`
`Systems, and Automation Society, and a Career Award from Mechatronics and
`
`Embedded Systems and Applications (MESA).
`
`7.
`
`As a result, I am thoroughly familiar with the theory, practice, and
`
`history of the technology described and claimed in the ’550 patent.
`
`III.
`
`SUMMARY OF OPINIONS
`8.
`In my opinion, a person of ordinary skill in the art would have found
`
`the subject matter of claims 17-23 to be obvious based on: (1) Ehlers ’330 in view
`
`of Wruck (Ground 1) and (2) Ols ’725 in view of Boait and Wruck (Ground 2).
`
`IV. MATERIALS REVIEWED
`9.
`In forming my opinions, I have relied on my knowledge of the field and
`
`my experience, and have specifically reviewed the following exhibits:
`
`Exhibit No.
`
`Description
`
`1001
`
`1002
`
`1003
`
`1004
`
`U.S. Patent No. 8,596,550 (“the ’550 patent”).
`
`Declaration of David M. Auslander.
`
`C.V. of David M. Auslander.
`
`U.S. Patent App. Pub. 2004/0117330 (“Ehlers ’330”).
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`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`
`1012
`
`1013
`
`1014
`
`1015
`
`1016
`
`1017
`
`1018
`
`1019
`
`U.S. Patent App. Pub. 2005/0040250 A1 (“Wruck”).
`
`U.S. Patent No. 8,374,725 (“Ols ’725”)
`
`U.K. Patent App. Pub. No. GB 2432016 (“Boait”).
`
`File History of Application No. 12/778,052.
`
`U.S. Patent App. Pub. 2005/0171645 (“Oswald”).
`
`U.S. Patent No. 5,934,554 (“Charles”).
`
`U.S. Patent No. 6,029,092 (“Stein”).
`ITC Inv. No. 337-TA-1258, Order No. 18, Construing the
`Terms of the Asserted Claims of the Patents at Issue (Sept. 1,
`2021).
`ecobee, Inc. v. EcoFactor, Inc., 1-21-cv-00323 (D. Del.),
`Answer (May 5, 2021).
`
`ecobee, Inc. v. EcoFactor, Inc., 1-21-cv-00323 (D. Del.),
`Scheduling Order (October 14, 2021).
`
`Horan, T, Control Systems and Applications for HVAC/R,
`Prentice-Hall, Inc., 1997.
`
`Levenhagen, J, HVAC Control and Systems, McGraw-Hill, Inc.,
`1993.
`
`U.S. Patent No. 8,751,186 B2 (“the ’186 patent”).
`
`Excerpt from McDaniel, G, IBM Dictionary of Computing,
`McGraw-Hill, Inc., 1993, p. 165.
`
`U.S. Patent No. 7,784,704 (“Harter”).
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`V.
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`UNDERSTANDING OF THE RELEVANT LAW
`10.
`I have the following understanding of the applicable law:
`
`A.
`
`11.
`
`Anticipation
`
`I understand that a claim in an issued patent can be unpatentable if it is
`
`anticipated. I understand that “anticipation” means that there is a single prior art
`
`reference that discloses every element of the claim, arranged in the way required by
`
`the claim.
`
`12.
`
`I understand that an anticipating prior art reference must disclose
`
`each of the claim elements.
`
`B.
`
`13.
`
`Obviousness
`
`I understand that a claim in an issued patent can be unpatentable if it is
`
`obvious. Unlike anticipation, obviousness does not require that every element of the
`
`claim be in a single prior art reference. Instead, it is possible for claim elements to
`
`be described (or suggested) in different prior art references, so long as there is
`
`motivation or sufficient reasoning to combine the references, and a reasonable
`
`expectation of success in achieving what is set forth in the claims.
`
`14.
`
`I understand that a claim is unpatentable for obviousness if the
`
`differences between the claimed subject matter and the prior art are such that the
`
`subject matter as a whole would have been obvious at the time the alleged invention
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`was made to a person having ordinary skill in the art to which said subject matter
`
`pertains.
`
`15.
`
`I understand, therefore, that when evaluating obviousness, one must
`
`consider obviousness of the claim “as a whole.” This consideration must be from the
`
`perspective of the person of ordinary skill in the relevant art, and that such
`
`perspective must be considered as of the time the alleged invention was made.
`
`16.
`
`17.
`
`The level of ordinary skill in the art is discussed in ¶¶ 23-25 below.
`
`The relevant time frame for obviousness, the time the alleged invention
`
`was made, is discussed in ¶¶ 26-27, below.
`
`18.
`
`I understand that in considering the obviousness of a claim, one must
`
`consider four things. These include the scope and content of the prior art, the level
`
`of ordinary skill in the art at the relevant time, the differences between the prior art
`
`and the claim, and any “secondary considerations.”
`
`19.
`
`I understand that “secondary considerations” include real-world
`
`evidence that can tend to make a conclusion of obviousness either more probable or
`
`less probable. For example, the commercial success of a product embodying a claim
`
`of the patent could provide evidence tending to show that the claimed invention is
`
`not obvious. In order to understand the strength of the evidence, one would want to
`
`know whether the commercial success is traceable to a certain aspect of the claim
`
`not disclosed in a single prior art reference (i.e., whether there is a causal “nexus” to
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`the claim language). One would also want to know how the market reacted to
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`disclosure of the invention, and whether commercial success might be traceable to
`
`things other than innovation, for example the market power of the seller, an
`
`advertising campaign, or the existence of a complex system having many features
`
`beyond the claims that might be desirable to a consumer. One would also want to
`
`know how the product compared to similar products not embodying the claim. I
`
`understand that commercial success evidence should be reasonably commensurate
`
`with the scope of the claim, but that it is not necessary for a commercial product to
`
`embody the full scope of the claim.
`
`20. Other kinds of secondary considerations are possible. For example,
`
`evidence that the relevant field had a long-established, unsolved problem or need
`
`that was later provided by the claimed invention could be indicative of non-
`
`obviousness. Evidence that others had tried, but failed to make an aspect of the claim
`
`might indicate that the art lacked the requisite skill to do so. Evidence of copying of
`
`the patent owner’s products before the patent was published might also indicate that
`
`its approach to solving a particular problem was not obvious. Evidence that the art
`
`recognized the value of products embodying a claim, for example, by praising the
`
`named inventors’ work, might tend to show that the claim was non- obvious.
`
`21.
`
`I further understand that prior art references can be combined where
`
`there is an express or implied rationale to do so. Such a rationale might include an
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`expected advantage to be obtained, or might be implied under the circumstances. For
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`example, a claim is likely obvious if design needs or market pressures existing in the
`
`prior art make it natural for one or more known components to be combined, where
`
`each component continues to function in the expected manner when combined (i.e.,
`
`when there are no unpredictable results). A claim is also likely unpatentable where
`
`it is the combination of a known base system with a known technique that can be
`
`applied to the base system without an unpredictable result. In these cases, the
`
`combination must be within the capabilities of a person of ordinary skill in the art.
`
`22.
`
`I understand that when considering obviousness, one must not refer to
`
`teachings in the specification of the patent itself. One can, however, refer to portions
`
`of the specification admitted to being prior art, including the “BACKGROUND”
`
`section. Furthermore, a lack of discussion in the patent specification concerning how
`
`to implement a disclosed technique can support an inference that the ability to
`
`implement the technique was within the ordinary skill in the prior art.
`
`VI. LEVEL OF ORDINARY SKILL IN THE ART
`23.
`In my opinion, the relevant art was that of heating, ventilation, and air
`
`conditioning (“HVAC”) control and building automation. (Ex. 1001, Abstract, 3:48-
`
`67, 4:8-17).
`
`24.
`
`In my opinion, the level of ordinary skill encompassed a person with at
`
`least a (1) Bachelor’s degree in engineering, computer science, or a comparable field
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`of study, and (2) at least five years of (i) professional experience in building energy
`
`management and controls, or (ii) relevant industry experience. In my opinion,
`
`additional relevant industry experience may compensate for lack of formal education
`
`or vice versa.
`
`25. Given my experience in the field, I am familiar with the knowledge that
`
`a person of ordinary skill in the art would have had at the time and the manner in
`
`which such a person would have viewed the available information at the time. My
`
`testimony is offered from this perspective, even if it does not specifically refer to the
`
`perspective of a person of ordinary skill in the art in every instance.
`
`VII. RELEVANT TIMEFRAME FOR DETERMINING OBVIOUSNESS
`26.
`I understand that obviousness must be evaluated “at the time of the
`
`invention.” From the cover pages of the ’550 patent, I can see that the first
`
`provisional application for a patent was filed in the United States on May 12, 2009.
`
`27.
`
`For the purpose of this declaration, I have been asked to provide my
`
`analysis based on the time frame immediately prior to this date.
`
`VIII. TECHNICAL INTRODUCTION
`A.
`The ’550 Patent Disclosure
`
`28.
`
`The ’550 patent is one of a family of patents directed to controlling
`
`HVAC systems. The ’550 patent at-issue relates generally to controls for climate
`
`control systems, such as heating and cooling systems (“HVAC systems”). (Ex. 1001,
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`Abstract, 1:18-2:17, 3:48-67, 4:8-32). In general, the term “HVAC system” is
`
`understood to refer to the components responsible for heating and cooling a structure
`
`or location, that is, heating, ventilation, and/or cooling devices that transfer heat into
`
`or out of a structure/location.
`
`29. HVAC systems have, for decades, been controlled by thermostats. (Ex.
`
`1001, 1:18-2:17). At the most basic level, thermostats operate through a control
`
`scheme commonly referred to as “feedback control.” Direct feedback control is the
`
`simplest form of feedback control. Direct feedback control is defined by a control
`
`variable, that is, the quantity that is to be controlled, in this case the temperature of
`
`the enclosed space, and the desired value for target measurement. Thermostats are
`
`typically wall-mounted units that have an internal temperature sensor, and which
`
`allow a user to set a target temperature. The target temperature, or “setpoint,” is
`
`compared against the actual temperature, and the HVAC system is essentially
`
`switched on or off in an attempt to maintain the setpoint temperature, or a level close
`
`thereto.
`
`30.
`
`The ’550 patent states that “[p]rogrammable thermostats have been
`
`available for more than 20 years.” (Ex. 1001, 1:18-19). According to the ’550 patent,
`
`“[p]rogrammable thermostats offer two types of advantages as
`compared to non-programmable devices.
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`[¶] On the one hand, programmable thermostats can save energy in
`large part because they automate the process of reducing conditioning
`during times when the space is unoccupied, or while occupants are
`sleeping, and thus reduce energy consumption.
`
`[¶] On the other hand, programmable thermostats can also enhance
`comfort as compared to manually changing setpoints using a non-
`programmable
`thermostat. For example, during
`the winter, a
`homeowner might manually turn down the thermostat from 70 degrees
`F. to 64 degrees when going to sleep and back to 70 degrees in the
`morning. . . . A programmable thermostat allows homeowners to
`anticipate the desired result by programming a pre-conditioning of the
`home. So, for example, if the homeowner gets out of bed at 7 AM,
`setting the thermostat to change from the overnight setpoint of 64
`degrees to 70 at 6 AM can make the house comfortable when the
`consumer gets up.”
`
`(Ex. 1001, 1:19-41).
`
`31. According to the ’550 patent, however, “all of the advantages of a
`
`programmable thermostat depend on the match between the preferences of the
`
`occupants and the actual settings employed.” (Ex. 1001, 1:45-47). The ’550 patent
`
`explains that “[i]f the temperatures programmed into a thermostat do not accurately
`
`reflect the preferences of the occupants, those occupants are likely to resort to
`
`manual overrides of the programmed settings.” (Ex. 1001, 1:64-67).
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`32.
`
`The ’550 patent suggests improving typical thermostat function by
`
`“adapting to signaling from occupants in the form of manual temperature changes
`
`and incorporating the information contained in such gestures into long-term
`
`programming.” (Ex. 1001, 2:10-12). In other words, the ’550 patent suggests
`
`detecting user-initiated manual changes to temperature settings (e.g., programmed
`
`setpoints) and then using information regarding those changes to make changes to
`
`long-term programming of a thermostat. It also suggests using inside temperature,
`
`outside temperature, and other factors to purportedly calculate and take into account
`
`the building’s thermal characteristics. (Ex. 1001, 2:12-17, 5:17-34). As the ’550
`
`patent notes, such calculations might involve the rate at which an HVAC system
`
`heats or cools a building. (Ex. 1001, 5:5-40, 3:48-67, claim 17).
`
`33. Having the programming of an HVAC system learn from user-initiated
`
`manual changes to temperature settings was known in the art. For instance, Ehlers
`
`’330 discloses “‘follow my lead’ artificial intelligence learning and execution
`
`routines” that utilized saved setpoint pattern change information to improve HVAC
`
`system operation. (Ex. 1004, ¶¶0308-0309).
`
`34.
`
`In addition, the difference between the indoor and outdoor temperature
`
`was well known in the prior art to affect the rate at which a building loses or gains
`
`heat. (See, e.g., Ex. 1015, Book p. 200; Ex. 1016, Book p. 281). For example, on a
`
`hot summer afternoon, a building will gain heat (incur a rise in temperature) faster
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`than on a cool day, placing greater demand on the air conditioning system on a hot
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`day. Similarly, on a cold winter day, the building will lose heat more quickly than
`
`on a warmer day, placing greater demand on the heating system. The ability of the
`
`HVAC system to change the temperature of the house (and thus affect the rate of
`
`change of temperature) was known to depend on the outside temperature.
`
`35. One common prior art application of this principle relates to, for
`
`example, “setback and recovery” schedules. Such schedules change the setpoint of
`
`a thermostat at different times of day, in order to save energy when the building is
`
`unoccupied. For example, a workplace thermostat could be programmed during the
`
`winter to have a daytime (8 AM to 5 PM) setpoint of 70 F, and an evening setpoint
`
`of 50 F (when the building is expected to be unoccupied). Allowing the building to
`
`cool down to 50 F in the evening is called “setback,” while heating the building back
`
`up to 70 F in the morning is called “recovery.” Knowing the likely rate of change
`
`of a temperature inside of a building, due to the temperature outside the building,
`
`allowed the system to determine when to start the recovery process in order to reach
`
`the setpoint by the programmed time.
`
`36.
`
`The ’550 patent has three independent claims. Generally, claim 17
`
`recites an apparatus that has conventional components including a programmable
`
`communicating thermostat, a remote processor, a network, a database, and computer
`
`hardware comprising one or more computer processors. Thus, the claims of the ’550
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`patent simply recite a combination of well-known HVAC control features.
`
`Specifically, independent claim 17 of the ’550 patent reads as follows:
`
`17. An apparatus for detecting manual changes to the setpoint for a
`thermostatic controller comprising:
`
`at least a programmable communicating thermostat;
`
`at least a remote processor;
`
`at least a network connecting said remote processor and said
`communicating;
`
`at least a database comprising a plurality of internal temperature
`measurements taken within a structure and a plurality of outside
`temperature measurements relating to temperatures outside the
`structure;
`
`computer hardware comprising one or more computer processors
`configured to use the stored data to predict a rate of change of
`temperatures inside the structure in response to changes in outside
`temperatures;
`
`the one or more computer processors configured to calculate scheduled
`setpoint programming of the programmable communicating thermostat
`for one or more times based on the predicted rate of change, the
`scheduled programming comprising one or more automated setpoints;
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`at least a database that stores the one or more automated setpoints
`associated with the scheduled programming for said programmable
`communicating thermostat;
`
`at least a database that stores actual setpoint programming of said
`programmable communicating thermostat; and
`
`the one or more computer processors configured to compare the one or
`more automated setpoints associated with said scheduled setpoint
`programming with said actual setpoint programming.
`
`(Ex. 1001, claim 17).
`
`37. As I set forth in detail below, in my opinion, the elements of the ’550
`
`patent’s claims were obvious over the prior art. As EcoFactor’s own patents
`
`acknowledge, it was well-understood that the ability of an HVAC system to cool a
`
`structure depended on the outside temperature. (See, e.g., Ex. 1017, 2:54-3:6). It was
`
`also known how to detect user-initiated manual changes to setpoints and to learn
`
`from those changes in order to improve thermostat programming and reduce the need
`
`for users to make manual setpoint adjustments.
`
`IX. CLAIM INTERPRETATION
`A.
`BACKGROUND ON CLAIM INTERPRETATION
`
`38.
`
`I understand that it is sometimes necessary or useful for claim terms in
`
`a patent to be further explained or interpreted (“construed”). I understand that in the
`
`present proceeding, the Board applies the same claim construction standard used by
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`District Courts in actions involving the validity or infringement of a patent. This
`
`involves construing claim terms in accordance with the ordinary and customary
`
`meaning of such terms, as understood by one of ordinary skill in the art, in light of
`
`the claim language, the technical disclosure of the patent (i.e., the specification) and
`
`the prosecution history or “file history” of correspondence with the United States
`
`Patent and Trademark Office (USPTO) pertaining to the patent.
`
`39.
`
`I further understand that the file history of a parent patent application
`
`can be relevant to the claim construction of claim terms appearing in patents that
`
`have descended from that parent application.
`
`40.
`
`I understand that certain “extrinsic” evidence, such as dictionaries or
`
`other prior art, can sometimes be useful to understand the meaning of a claim term.
`
`However, I understand that where there is a conflict between any such extrinsic
`
`evidence and the patent and patent’s prosecution history, the latter controls.
`
`B.
`
`41.
`
`CLAIM INTERPRETATION OF THE ’550 PATENT
`
`I understand that a prior International Trade Commission (“ITC”)
`
`investigation involving Patent Owner EcoFactor, Inc. and ecobee Ltd. and ecobee
`
`Inc. addressed issues involving the ’550 patent, and applied the claim constructions
`
`that the Parties agreed to, shown below:
`
`19
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`PETITIONER GOOGLE EX. 1002
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`

`

`Claim 17 Terms
`
`Stipulated Construction
`
`“compare”/“comparing”
`
`“rate of change of temperatures inside
`the structure”
`
`“setpoint”
`
`“automated setpoint”
`
`“analyze/analyzing to determine one or
`more similarities or differences
`between”
`“the difference between inside
`temperature measurements divided by
`the span of time between the
`measurements”
`“a temperature setting for a thermostat
`to achieve or maintain”
`“a computer-calculated temperature
`setting for a thermostat to achieve or
`maintain”
`
`42.
`
`In this proceeding, I have been asked to apply these constructions that
`
`were agreed upon by the parties.
`
`43. Additionally, the ’550 patent describes multiple databases stored on a
`
`database structure 300, as shown in Fig. 5. (Ex. 1001, 4:33-42, 5:55-58). In my
`
`opinion, a POSITA would have understood that a database, in the context of the ’550
`
`patent, is a collection of data stored on a data structure, where multiple databases
`
`can be stored on one data structure. (Ex. 1018, 165). Further, the plain and ordinary
`
`meaning of database is “an organized collection of data.” (Ex. 1018, 165).
`
`20
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`X.
`
`GROUND 1: Claims 17-23 Are Obvious Over Ehlers ’330 in view of
`Wruck.
`44.
`In my opinion, claims 17-23 are obvious under pre-AIA 35 U.S.C. §
`
`103(a) over U.S. Pat. App. Pub. 2004/0117330 (“Ehlers ’330”)(Ex. 1004) in view of
`
`U.S. Pat. Pub. 2005/0040250 (“Wruck”)(Ex. 1005).
`
`A.
`
`45.
`
`Effective Prior Art Dates of Ehlers ’330 and Wruck
`
`Ehlers ’330 is a U.S. patent application that was published on June 17,
`
`2004, and I understand that it is thus prior art.
`
`46. Wruck is a U.S. patent application that was published on February 24,
`
`2005, and I understand that it is thus prior art.
`
`47.
`
`I understand that Ehlers ’330 was not of record during the prosecution
`
`of the application leading to the ’550 patent, although a different Ehlers (U.S. Pat.
`
`No. 7,130,719 (“Ehlers ’719”)), from a different patent family and having a different
`
`disclosure, was cited along with numerous other references. (Ex. 1008, 253). I
`
`understand that Ehlers ’719 was not discussed on the record by the Examiner or
`
`Applicant.
`
`48.
`
`I understand that Wruck was not of record during the prosecution of the
`
`application leading to the ’550 patent.
`
`B.
`
`49.
`
`Overview of the Combination
`
`In my opinion, while Ehlers ’330 teaches and/or suggests all elements
`
`of the claims, Wruck reinforces the obviousness cases with respect to, at least,
`
`21
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`PETITIONER GOOGLE EX. 1002
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`“compar[ing] ... automated setpoints ... with ... actual setpoint[s],” as I describe in
`
`more detail below. Wruck also describes other features of the claim.
`
`1.
`
`Overview of Ehlers ’330
`
`50.
`
`Ehlers ’330 is similar to the ’550 patent. (Ex. 1004, Fig. 1B, ¶¶0072-
`
`0079, 0099). Shown below are Fig. 1B of Ehlers ’330 (left side), compared with Fig.
`
`2 of the ’550 patent (right side):
`
`Ehlers ’330, Fig. 1B
`
`’550 patent, Fig. 2
`
`(Ex. 1004, Fig. 1B, ¶¶0072-0079).
`
`51.
`
`In both systems there are conditioned spaces having thermostats. (Ex.
`
`1004, ¶0076)(Ex. 1001, 3:48-67, 4:8-32). The thermostats in each system are
`
`connected to gateways, specifically gateway 1.10D in Ehlers ’330 (Ex. 1004,
`
`¶¶0061-0062) and gateway 112 in the ’550 patent (Ex. 1001, 3:48-67, 7:54-61). The
`
`22
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`PETITIONER GOOGLE EX. 1002
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`
`
`gateways connect the thermostats in each system over networks to servers. (Ex.
`
`1004, ¶¶0072-0073)(Ex. 1001, 3:48-67).
`
`52. Both systems collect and store information relevant to the conditioning
`
`of a building. (Ex. 1004, ¶¶0088, 0151, 0268-0309)(Ex. 1001, 4:33-42). In Ehlers
`
`’330, for example:
`
`“[T]he system 1.02 may have the ability to sense the current indoor
`temperature and could be enhanced to include at a minimum, humidity
`sensing, outside temperature, . . . dew point and local weather forecast
`data or encoded signals ... .”
`
`(Ex. 1004, ¶0088).
`
`53. Ehlers ’330’s thermostat contains various scheduled temperature
`
`setpoints for the HVAC system, which are manually changeable by a user. (Ex.
`
`1004, ¶¶0012, 0013, 0153-0160, 0228, 0239, 0244, 0253-0256, 0278, 0281, 0308-
`
`0309, 0316-0324, 0320). A user can also “override” a scheduled setpoint. (Ex. 1004,
`
`¶¶0116, 0118, 0156, 0316, 0354, Fig. 4C).
`
`54. Ehlers ’330 also teaches using rates of changes in temperatures,
`
`including calculating the rate at which inside temperature changes at any given
`
`outside temperature (“thermal gain rate”) for a given setpoint, in order to predict
`
`how long it will take for the HVAC system to heat or cool the building from one
`
`setpoint to another. (Ex. 1004, ¶¶0253-0254, 0256, 0295, Fig. 3D). Ehlers ’330 can
`
`use this thermal gain rate to “compute[] the required effective set point offset needed
`
`
`
`23
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`to keep the HVAC cycle run time at [a] specified trigger level.” (Ex. 1004, ¶0256).
`
`A setpoint offset is a degree difference above or below a target temperature; an offset
`
`is often used to allow temperatures to deviate within a range from the target
`
`temperature in order to reduce runtime of the HVAC system. Thus, by utilizing the
`
`effect thermal gain rate has on HVAC run time, the system of Ehlers ’330 determines
`
`what future setpoint would minimize run time. (Ex. 1004, ¶0256).
`
`55.
`
`Ehlers ’330 also teaches detecting and implementing a user’s manual
`
`changes to a setpoint. (Ex. 1004, ¶0242 (“the system 3.08 manages comfort for the
`
`customer site 1.04 by learning from the user’s inputs or adjustments to the system
`
`3.08 to change or modify indoor air temperature”), ¶0243 (controls are “modified as
`
`needed based on the user’s changes to the set point at the thermostat 1.30D” and that
`
`a “control algorithm [] learn[s] the user’s individual preferences and over time,
`
`eliminat[es] the need for the site 1.04 occupant to make any changes”)).
`
`56.
`
`Ehlers ’330 further teaches that its system per