UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN SMART THERMOSTAT
`SYSTEMS, SMART HVAC SYSTEMS,
`SMART HVAC CONTROL SYSTEMS, AND
`COMPONENTS THEREOF
`
`Inv. No. 337-TA-1258
`
`ORDER NO. 18:
`
`CONSTRUING THE TERMS OF THE ASSERTED CLAIMS OF
`THE PATENTS AT ISSUE
`
`(September 1, 2021)
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`TABLE OF CONTENTS
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`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`INTRODUCTION ................................................................................................................. 1
`
`IN GENERAL ........................................................................................................................ 2
`
`RELEVANT LAW ................................................................................................................ 2
`
`LEVEL OF ORDINARY SKILL .......................................................................................... 7
`
`THE ASSERTED PATENTS ................................................................................................ 8
`
`The 567 Patent ........................................................................................................... 9
`
`The 983 Patent ......................................................................................................... 11
`
`The 488 Patent ......................................................................................................... 12
`
`The 550 Patent ......................................................................................................... 14
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`VI.
`
`CLAIM CONSTRUCTION ................................................................................................. 16
`
`Construction of the Agreed-Upon Claim Terms ...................................................... 16
`
`B.
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`Construction of the Disputed Claim Terms ............................................................. 18
`
`“operational efficiency of a heating, ventilation and air conditioning
`(HVAC) system” / “operational efficiency of an HVAC system” .............. 18
`
`“receives status of said HVAC system” / “based on the status of the HVAC
`system” ......................................................................................................... 20
`
`“compare said temperature measurements from said first structure” .......... 22
`
`“first state of repair”..................................................................................... 24
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`“suggest a cause of degradation” ................................................................. 25
`
`“expected temperature measurements of a rate of change in inside
`temperature” ................................................................................................. 27
`
`“performance characteristic” ....................................................................... 28
`
`Whether the preambles of the 567 patent are limiting ................................. 31
`
`Whether the preambles of the 488 patent are limiting ................................. 34
`
`“HVAC system” / “heating, ventilation, and air conditioning (HVAC)
`system” / “heating ventilation and air conditioning system” ....................... 35
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`“processors . . . configured to” ..................................................................... 36
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`I.
`
`INTRODUCTION
`
`This Investigation was instituted by the Commission on December 29, 2020 to determine
`
`whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United
`
`States, the sale for importation, or the sale within the United States after importation of smart
`
`thermostat systems, smart HVAC systems, smart HVAC control systems, and components thereof
`
`by reason of infringement of one or more of: claims 1, 2, 5, and 7 of U.S. Patent No. 8,423,322
`
`(“the 322 patent”); claims 1, 2, 5, 7, 15, 16, 19, and 20 of U.S. Patent No. 8,019,567 (“the 567
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`patent”); claims 1-3 and 16-18 of U.S. Patent No. 10,612,983 (“the 983 patent”); claims 1, 5-7, 9,
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`13-15, and 17 of U.S. Patent No. 8,596,550 (“the 550 patent”); and claims 1, 2, 5, 7-10, and 13-15
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`of U.S. Patent No. 8,886,488 (“the 488 patent”). See 86 Fed. Reg. 17403 (April 2, 2021). The
`
`Complainant is EcoFactor, Inc. (“EcoFactor”). The Respondents are Carrier Global Corporation
`
`(“Carrier”); ecobee Ltd. and ecobee Inc. (collectively, “ecobee”); and Google LLC (“Google”)
`
`(collectively, “Respondents”).
`
`EcoFactor recently dismissed the 322 Patent. Order No. 16 (August 5, 2021). The
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`Commission did not review the Initial Determination. EDIS Doc. No. 749920.
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`No Markman hearing was held; however, the parties filed joint proposed claim construction
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`charts setting forth a limited set of terms to be construed, and also filed initial and reply claim
`
`construction briefs wherein each party offered its construction for the claim terms in dispute.1
`
`1 For convenience, the briefs and amended chart submitted by the parties are referred to as:
`CIMB
`Complainant’s Initial Markman Brief
`CRMB
`Complainant’s Reply Markman Brief
`RIMB
`Respondents’ Initial Markman Brief
`RRMB
`Respondents’ Reply Markman Brief
`JC
`Joint Claim Construction Chart
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`II.
`
`IN GENERAL
`
`The claim terms addressed below are construed for the purposes of this Investigation, and
`
`those terms not in dispute need not be construed. See Vanderlande Indus. Nederland BV v. Int’l
`
`Trade Comm’n, 366 F.3d 1311, 1323 (Fed. Cir. 2004) (noting that the administrative law judge need
`
`only construe disputed claim terms). The meaning of claim terms not presently disputed will be
`
`addressed in connection with the evidentiary hearing.
`
`III.
`
`RELEVANT LAW
`
`“An infringement analysis entails two steps. The first step is determining the meaning and
`
`scope of the patent claims asserted to be infringed. The second step is comparing the properly
`
`construed claims to the device accused of infringing.” Markman v. Westview Instruments, Inc., 52
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`F.3d 967, 976 (Fed. Cir. 1995) (en banc) (internal citations omitted), aff'd, 517 U.S. 370 (1996).
`
`Claim construction is a “matter of law exclusively for the court.” Id. at 970-71. “The construction
`
`of claims is simply a way of elaborating the normally terse claim language in order to understand
`
`and explain, but not to change, the scope of the claims.” Embrex, Inc. v. Serv. Eng'g Corp., 216
`
`F.3d 1343, 1347 (Fed. Cir. 2000).
`
`Claim construction focuses on the intrinsic evidence, which consists of the claims
`
`themselves, the specification, and the prosecution history. See Phillips v. AWH Corp., 415 F.3d
`
`1303, 1314 (Fed. Cir. 2005) (en banc); see also Markman, 52 F.3d at 979. As the Federal Circuit
`
`in Phillips explained, courts must analyze each of these components to determine the “ordinary and
`
`customary meaning of a claim term” as understood by a person of ordinary skill in art at the time of
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`the invention. 415 F.3d at 1313. “Such intrinsic evidence is the most significant source of the
`
`legally operative meaning of disputed claim language.” Bell Atl. Network Servs., Inc. v. Covad
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`Commc'ns Grp., Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001).
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to
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`which the patentee is entitled the right to exclude.”’ Phillips, 415 F.3d at 1312 (quoting Innova/Pure
`
`Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). “Quite apart
`
`from the written description and the prosecution history, the claims themselves provide substantial
`
`guidance as to the meaning of particular claims terms.” Id. at 1314; see also Interactive Gift Express,
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`Inc. v. Compuserve Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001) (“In construing claims, the analytical
`
`focus must begin and remain centered on the language of the claims themselves, for it is that
`
`language that the patentee chose to use to ‘particularly point [ ] out and distinctly claim [ ] the subject
`
`matter which the patentee regards as his invention.”). The context in which a term is used in an
`
`asserted claim can be “highly instructive.” Phillips, 415 F.3d at 1314. Additionally, other claims
`
`in the same patent, asserted or unasserted, may also provide guidance as to the meaning of a claim
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`term. Id. “Courts do not rewrite claims; instead, we give effect to the terms chosen by the patentee.”
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`K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1364 (Fed. Cir. 1999).
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`The specification “is always highly relevant to the claim construction analysis. Usually it is
`
`dispositive; it is the single best guide to the meaning of a disputed term.” K-2 Corp., 191 F.3d at
`
`1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). “[T]he
`
`specification may reveal a special definition given to a claim term by the patentee that differs from
`
`the meaning it would otherwise possess. In such cases, the inventor’s lexicography governs.” 191
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`F.3d at 1316. “In other cases, the specification may reveal an intentional disclaimer, or disavowal,
`
`of claim scope by the inventor.” Id. As a general rule, however, the particular examples or
`
`embodiments discussed in the specification are not to be read into the claims as limitations. Id. at
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`1323. In the end, “[t]he construction that stays true to the claim language and most naturally aligns
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`with the patent’s description of the invention will be ... the correct construction.” Id. at 1316
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`(quoting Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998)).
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`In addition to the claims and the specification, the prosecution history should be examined,
`
`if in evidence. Id. at 1317; see Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir.
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`2004). The prosecution history can “often inform the meaning of the claim language by
`
`demonstrating how the inventor understood the invention and whether the inventor limited the
`
`invention in the course of prosecution, making the claim scope narrower than it would otherwise
`
`be.” Phillips, 415 F.3d at 1317; see Chimie v. PPG Indus. Inc., 402 F.3d 1371, 1384 (Fed. Cir. 2005)
`
`(“The purpose of consulting the prosecution history in construing a claim is to exclude any
`
`interpretation that was disclaimed during prosecution.”).
`
`When the intrinsic evidence does not establish the meaning of a claim, then extrinsic
`
`evidence (i.e., all evidence external to the patent and the prosecution history, including dictionaries,
`
`inventor testimony, expert testimony, and learned treatises) may be considered. Phillips, 415 F.3d
`
`at 1317. Extrinsic evidence is generally viewed as less reliable than the patent itself and its
`
`prosecution history in determining how to define claim terms. Id. “The court may receive extrinsic
`
`evidence to educate itself about the invention and the relevant technology, but the court may not use
`
`extrinsic evidence to arrive at a claim construction that is clearly at odds with the construction
`
`mandated by the intrinsic evidence.” Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 977 (Fed. Cir.
`
`1999).
`
`If, after a review of the intrinsic and extrinsic evidence, a claim term remains ambiguous,
`
`the claim should be construed so as to maintain its validity. Phillips, 415 F.3d at 1327. Claims,
`
`however, cannot be judicially rewritten in order to fulfill the axiom of preserving their validity. See
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`Rhine v. Casio, Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999). Thus, “if the only claim construction
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`that is consistent with the claim’s language and the written description renders the claim invalid,
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`then the axiom does not apply and the claim is simply invalid.” Id.
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`The construction of a claim term is generally guided by its ordinary meaning. However,
`
`courts may deviate from the ordinary meaning when: (1) “the intrinsic evidence shows that the
`
`patentee distinguished that term from prior art on the basis of a particular embodiment, expressly
`
`disclaimed subject matter, or described a particular embodiment as important to the invention;” or
`
`(2) “the patentee acted as his own lexicographer and clearly set forth a definition of the disputed
`
`claim term in either the specification or prosecution history.” Edwards Lifesciences LLC v. Cook
`
`Inc., 582 F.3d 1322, 1329 (Fed. Cir. 2009); see also GE Lighting Sols., LLC v. AgiLight, Inc., 750
`
`F.3d 1304, 1309 (Fed. Cir. 2014) (“the specification and prosecution history only compel departure
`
`from the plain meaning in two instances: lexicography and disavowal.”); Omega Eng’g, Inc, v.
`
`Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003) (“[W]here the patentee has unequivocally
`
`disavowed a certain meaning to obtain his patent, the doctrine of prosecution disclaimer attaches
`
`and narrows the ordinary meaning of the claim congruent with the scope of the surrender.”); Rheox,
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`Inc. v. Entact, Inc., 276 F.3d 1319, 1325 (Fed. Cir. 2002) (“The prosecution history limits the
`
`interpretation of claim terms so as to exclude any interpretation that was disclaimed during
`
`prosecution.”). Nevertheless, there is a “heavy presumption that a claim term carries its ordinary
`
`and customary meaning.” CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir.
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`2002) (citations omitted). The standard for deviating from the plain and ordinary meaning is
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`“exacting” and requires “a clear and unmistakable disclaimer.” Thorner v. Sony Computer Entm’t
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`Am. LLC, 669 F.3d 1362, 1366-67 (Fed. Cir. 2012); see Epistar Corp. v. Int’l Trade Comm’n, 566
`
`F.3d 1321, 1334 (Fed. Cir. 2009) (requiring “expressions of manifest exclusion or restriction,
`
`representing a clear disavowal of claim scope” to deviate from the ordinary meaning) (citation
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`omitted). As the Federal Circuit has explained, “[w]e do not read limitations from the specification
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`into claims; we do not redefine words. Only the patentee can do that.” Thorner, 669 F.3d at 1366.
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`A claim must also be definite. Pursuant to 35 U.S.C. § 112, second paragraph: “The
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`specification shall conclude with one or more claims particularly pointing out and distinctly
`
`claiming the subject matter which the applicant regards as his invention.” 35 U.S.C. § 112, ¶ 2. In
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`Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014), the Supreme Court held that § 112,
`
`¶ 2 requires “that a patent’s claims, viewed in light of the specification and prosecution history,
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`inform those skilled in the art about the scope of the invention with reasonable certainty.” Id. at
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`2129. A claim is required to “provide objective boundaries for those of skill in the art,” and a claim
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`term is indefinite if it “might mean several different things and no informed and confident choice is
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`among the contending definitions.” Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed.
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`Cir. 2014). A patent claim that is indefinite is invalid. 35 U.S.C. § 282(b)(3)(A).
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`Courts are not required to construe every claim limitation of an asserted patent. See O2
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`Micro Intern. Ltd. v. Beyond Innovation Technology Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008)
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`(citations omitted). Rather, “claim construction is a matter of resolution of disputed meanings and
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`technical scope, to clarify and when necessary to explain what the patentee covered by the claims,
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`for use in the determination of infringement.” Id. at 1362 (quoting U.S. Surgical Corp. v. Ethicon,
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`Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997)); see also Embrex, 216 F.3d at 1347 (“The construction
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`of claims is simply a way of elaborating the normally terse claim language in order to understand
`
`and explain, but not to change, the scope of the claims.”) (citation omitted). In addition, “[a]
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`determination that a claim term ‘needs no construction’ or has the ‘plain and ordinary meaning’ may
`
`be inadequate when a term has more than one ‘ordinary’ meaning or when reliance on a term's
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`‘ordinary’ meaning does not resolve the parties’ dispute.” O2 Micro, 521 F.3d at 1361. Claim
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`construction, however, is not an “obligatory exercise in redundancy.” U.S. Surgical Corp., 103 F.3d
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`at 1568. “[M]erely rephrasing or paraphrasing the plain language of a claim by substituting
`
`synonyms does not represent genuine claim construction.” C.R. Bard, Inc. v. U.S. Surgical Corp.,
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`388 F.3d 858, 863 (Fed. Cir. 2004).
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`IV.
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`LEVEL OF ORDINARY SKILL
`
`EcoFactor asserts that a person of ordinary skill in the art at the time of the invention “would
`
`have had (a) a bachelor’s degree in engineering, computer science, or a comparable field of study,
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`and (b) at least 2 years of professional experience in temperature controls, embedded control systems,
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`electronic thermostats, HVAC controls, building energy management and controls or other similarly
`
`relevant industry experience. Additional relevant industry experience may compensate for lack of
`
`formal education or vice versa.” CIMB at 5. This assertion is supported by the opinion of one of
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`Complainant’s experts, Mr. Robert Zeidman. See id., Zeidman Decl. ¶ 37.
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`Respondents assert that a person of ordinary skill in the art would have had “a (1) Bachelor’s
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`degree in engineering, computer science, or a comparable field of study, and (2) at least five years
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`of (i) professional experience in building energy management and controls, or (ii) relevant industry
`
`experience. Additional relevant industry experience may compensate for lack of formal education
`
`or vice versa.” RIMB at 8. This assertion is supported by the opinion of one of Respondents’
`
`experts, Dr. David M. Auslander. See id., Ex. 6 ¶ 27.
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`The parties’ experts’ opinions regarding the educational background necessary for a skilled
`
`artisan are the same and are reasonable: a bachelor’s degree in engineering, computer science or a
`
`comparable field of study. Their opinions regarding the professional experience vary slightly, with
`
`Mr. Zeidman requiring 2 years of in specific fields of experience, such as temperature controls,
`
`embedded control systems, electronic thermostats, or HVAC controls, or “building energy
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`management and controls,” whereas Dr. Auslander requires 5 years of practical experience in the
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`general area of “building energy management and controls.”
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`Professional experience in a more specialized area, even if for a shorter time (as Complainant
`
`contends), seems more appropriate than a more general area of experience having no direct
`
`connection to the relevant technology, even if for a longer time (as Respondents contend).
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`Therefore, a person of ordinary skill in the art at the time of the invention would have had a
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`bachelor’s degree in engineering, computer science, or a comparable field, with 2-3 years’
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`experience in temperature controls, embedded control systems, electronic thermostats, or HVAC
`
`controls, or similarly relevant industry experience, with relevant experience substituting for
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`education and vice versa.
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`V.
`
`THE ASSERTED PATENTS
`
`The 567, 488, and 983 patents are in the same family and have substantially the same
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`specification. The 983 patent ultimately is a continuation of the 567 patent, and all three of these
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`patents claim priority to provisional application No. 60/994,011, which was filed on September 17,
`
`2007.
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`The 567, 488, and 983 patents relate to the operation and operational efficiency of HVAC
`
`systems. The patents are directed to a system that evaluates the changes in the operational efficiency
`
`of existing HVAC technology using processor(s) that receives outside temperature measurements
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`from a source other than the HVAC system, stores those measurements over time in a database,
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`compares the inside temperature measurements and outside temperature measurements over time,
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`and then compares an inside temperature of the structure with an inside temperature of that same
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`structure recorded at a different time to “determine whether the operational efficiency of the HVAC
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`system has decreased over time.” 567 patent, cl. 1. The specifications teach an improvement to the
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`“standard programmable thermostat” that relies on “other sources of information that could be used
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`to increase comfort, decrease energy use, or both.” Id., 1:66-67. Thus, a goal of these patents is to
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`have “a thermostat system using only a single temperature sensor to take . . . suboptimal installations
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`into account and to correct for the erroneous readings generated by such thermostats.” Id. 2:41-44.
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`The 567 Patent
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`The 567 patent, entitled “System and Method For Evaluating Changes In The Efficiency Of
`
`An HVAC System,” was filed on September 16, 2008 and issued on September 13, 2011. The 567
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`patent is assigned on its face to EcoFactor, Inc.
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`The 567 patent has 20 claims, of which claims 1, 2, 5, 7, 15, 16, 19, and 20 are asserted in
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`various combinations against the various respondents. The asserted claims in which there are agreed
`
`upon and disputed terms read as follows, with the agreed terms in italics and the disputed terms
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`highlighted in bold.
`
`1.
`
`A system for evaluating changes in the operational efficiency of an HVAC
`system over time comprising:
`at least one HVAC control system associated with a first structure that receives
`temperature measurements from at least a first structure conditioned by at
`least one HVAC system, and receives status of said HVAC system;
`one or more processors that receive measurements of outside temperatures from at
`least one source other than said HVAC system and compare said
`temperature measurements from said first structure, wherein said one or
`more processors compares the inside temperature of said first structure and
`the outside temperature over time to derive an estimation for the rate of
`change in inside temperature of said first structure when said HVAC system
`is in a first state of repair; and
`one or more databases that store at least said temperature measurements obtained
`from said first structure over time,
`wherein said one or more processors compares an inside temperature recorded inside
`the first structure with said estimation for the rate of change in inside
`temperature of said first structure to determine whether the operational
`efficiency of the HVAC system has decreased over time; and
`wherein if said operational efficiency has decreased, said one or more processors
`analyzes the changes in the operational efficiency over time to suggest a
`cause of degradation.
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`2.
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`5.
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`7.
`
`A system as in claim 1 in which said processors receive measurements of
`outside temperatures for geographic regions such as ZIP codes from sources
`other than said HVAC control systems.
`
`A system as in claim 1 in which said HVAC system includes a programmable
`thermostat and said programmable thermostat is the sole source for current
`data regarding temperature inside said first structure conditioned by said
`HVAC system.
`
`A system as in claim 1 in which the status of said HVAC system includes
`whether said system is "on" or "off'.
`
`15.
`
`A method for evaluating changes in the operational efficiency of an HVAC
`system over time comprising:
`storing temperature measurements from at least a first structure conditioned by an
`HVAC system; and
`comparing with one or more processors said temperature measurements from said
`first structure with outside temperature measurements over time to derive
`expected temperature measurements of a rate of change in inside
`temperature of said first structure when the HVAC system is in a first state
`of repair wherein the expected temperature measurements are based at least
`in part upon past temperature measurements and based at least in part on
`outside temperature measurements,
`wherein said one or more processors compares an inside temperature recorded inside
`the first structure with said expected temperature measurements to determine
`whether the operational efficiency of the HVAC system has decreased.
`
`16.
`
`19.
`
`20.
`
`The method as in claim 15 wherein said outside temperature measurements
`are for geographic regions such as ZIP codes from sources other than said
`HVAC system.
`
`The method as in claim 15 wherein a programmable thermostat associated
`with said HVAC system is the sole source for current data regarding
`temperature inside the first structure conditioned by said HVAC system.
`
`The method as in claim 15 further comprising whether the status of said
`HVAC system is "on" or "off'.
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`The 983 Patent
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`The 983 patent was filed on April 3, 2019 and issued on April 7, 2020, and is entitled
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`“System and Method For Evaluating Changes In The Efficiency Of An HVAC System.” The 983
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`patent is assigned to EcoFactor, Inc.
`
`The parties agree that the preamble of claim 1 is limiting. JC at 1. The 983 patent has 30
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`claims, of which claims 1-3 and 16-18 are asserted in various combinations against the various
`
`respondents. The asserted claims read as follows (with the agreed to terms in italics and disputed
`
`term highlighted in bold):
`
`1.
`
`A system for controlling an HVAC system at a user's building, the system
`comprising:
`a memory; and
`one or more processors; the one or more processors configured to receive a first
`data from at least one sensor, wherein the first data from the at least one
`sensor includes a measurement of at least one characteristic of the user's
`building;
`the one or more processors further configured to receive a second data from a
`network connection, wherein the second data from the network connection is
`collected from a source external to the building;
`the one or more processors further configured to receive a first temperature
`setpoint for the building, wherein the first setpoint includes a temperature
`value and a time value;
`the one or more processors further configured to predict, based at least on the first
`data from the sensor, the second data from the network connection, and the
`first temperature setpoint, the time necessary for the HVAC system to
`operate in order to reach the temperature value by the time value; and
`the one or more processors further configured to control the HVAC system to
`operate to cause the building to reach the temperature value by the time value.
`
`2.
`
`3.
`
`16.
`
`The system of claim 1, wherein the first data from the at least one sensor
`comprises a measurement of the current temperature and humidity of the
`building by the sensor.
`
`The system of claim 2, wherein the second data from the network connection
`comprises a measurement of the current outdoor temperature.
`
`The system of claim 1, wherein the memory is further configured to store
`historical values of the first data and second data.
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`17.
`
`18.
`
`The system of claim 16, wherein the one or more processors' prediction of
`the time necessary for the HVAC system at the user's building to operate in
`order to reach the temperature value by the time value is further based on
`analyzing the stored historical values of the first data and second data.
`
`The system of claim 17, wherein the one or more processors is further
`configured to calculate a performance characteristic of the HVAC system
`based at least on the historical values of the first data and second data.
`
`The 488 Patent
`
`The 488 patent, entitled “System and Method For Calculating The Thermal Mass of a
`
`Building,” was filed on May 1, 2012 and issued on November 11, 2014. The 488 patent is assigned
`
`on its face to EcoFactor, Inc.
`
`The 488 patent has 15 claims, of which claims 1, 2, 5, 7-10, and 13-15 are asserted in various
`
`combinations against the various respondents. The asserted claims in which there are agreed upon
`
`and disputed terms read as follows, with the agreed terms in italics and the disputed terms
`
`highlighted in bold.
`
`1.
`
`A system for calculating a value for the operational efficiency of a heating,
`ventilation and air conditioning (HVAC) system comprising:
`at least one HVAC control system that receives inside temperature measurements
`from at least a first location conditioned by at least one HVAC system;
`one or more databases that store at least said temperatures measured at said first
`location over time;
`one or more processors comprising computer hardware that is configured to receive
`outside temperature measurements from at least one source other than said
`HVAC system, wherein said one or more processors are configured to
`calculate one or more predicted rates of change in said inside temperature
`measurements at said first location based on the status of the HVAC system
`and to relate said one or more predicted rates of change to said outside
`temperature measurements; and
`said one or more processors further configured to compare at least one predicted
`temperature based on the one or more predicted rates of change, with an
`actual inside temperature measurement.
`
`PETITIONER GOOGLE EX. 1012
`
`

`

`2.
`
`5.
`
`7.
`
`8.
`
`The system as in claim 1 in which said processors receive outside
`temperatures for geographic regions based on ZIP codes from sources other
`than said HVAC system.
`
`The system as in claim 1 further comprising a programmable thermostat and
`said programmable thermostat is a source for current data regarding
`temperature inside said location conditioned by said HVAC system.
`
`The system as in claim 1 wherein said one or more predicted rates of change
`is the predicted speed with which the temperature inside a building will
`change in response to changes in outside temperatures.
`
`The system as in claim 1 wherein said one or more processors calculate the
`one or more predicted rates of change for a given time on a given day.
`
`9.
`
`A method for calculating a value for the operational efficiency of a heating,
`ventilation and air conditioning (HVAC) system that comprises:
`receiving inside temperature measurements from at least a first location conditioned
`by at least one HVAC system;
`storing in one or more databases at least said inside temperatures measured at said
`first location over time;
`receiving outside temperature measurements from at least one source other than said
`HVAC system;
`calculating with computer hardware comprising one or more computer processors
`one or more predicted rates of change in said inside temperatures at said first
`location based on the status of the HVAC system, where said predicted
`rates of change are related to said outside temperature measurements; and
`comparing with the one or more processors, at least one predicted temperature based
`on the one or more predicted rates of change, with at least one actual inside
`temperature measurement.
`
`10.
`
`13.
`
`14.
`
`15.
`
`The method as in claim 9 in which said outside temperatures are received for
`geographic regions based on ZIP codes from sources other than said HVAC
`system.
`
`The method as in claim 9 in which said data regarding said inside
`temperatures at said location conditioned by said HVAC system is supplied
`by a programmable thermostat.
`
`The method as in claim 9 wherein said one or more predicted rates of change
`is the predicted speed with which the temperature inside a building will
`change in response to changes in outside temperatures.
`
`The method as in claim 9 wherein said one or more processors calculate the
`one or more predicted rates of change for a given time on a given day.
`
`PETITIONER GOOGLE EX. 1012
`
`

`

`The 550 Patent
`
`The 550 patent, entitled “System, Method, And Apparatus For Identifying Manual Inputs To
`
`And Adaptive Programming Of A Thermostat,” was filed on May 11, 2010 and issued on December
`
`3, 2013. The 550 patent is assigned to EcoFactor, Inc.
`
`The 550 patent relates to systems and methods that incorporate “manual changes to the
`
`setpoint for a thermostatic controller into long-term programming of the thermostatic controller.”
`
`550 patent at Abstract. The Specification explains that when “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.” Id. 1:64–67. Thus, it would be
`
`“advantageous to . . . adapt[] to signaling from occupants in the form of manual temperature changes
`
`and incorporat[e] the information contained in such gestures into long-term programming.” Id. at
`
`2:9–12. Therefore, the 550 patent teaches a system that “compares the actual setpoint at a given
`
`time for the thermostatic controller to an expecte