[00:00:00] Speaker 03:
The third argument is docket number 24-1958, Cosm Enterprises Incorporated versus EchoB Technologies, ULC.

[00:00:15] Speaker 03:
Mr. Helgi, welcome back.

[00:00:39] Speaker 00:
Please begin.

[00:00:40] Speaker 00:
May it please the court?

[00:00:41] Speaker 00:
Thank you, Your Honor.

[00:00:42] Speaker 00:
Your Honor, we are now talking about the 268 patent, which Your Honor has obviously heard quite a bit about during the ITC argument.

[00:00:51] Speaker 00:
The board's final written decision includes two flaws that we contend are fatal.

[00:00:55] Speaker 00:
One is an incorrect construction.

[00:00:57] Speaker 00:
Once again, the board adopted a construction that eliminated the requirement that the generated measurement and verification data correspond to the reduction in consumed power.

[00:01:12] Speaker 00:
We can get into that in quite a bit, but I think it's more important also to address the fact that there is also an ownership issue here that is, I think, maybe a little bit more important than it was in the 592.

[00:01:22] Speaker 00:
Oftentimes, as patent owner, we don't know what a petitioner thinks about ownership.

[00:01:29] Speaker 00:
This case is not that case.

[00:01:30] Speaker 00:
This is a very unusual case because we had the petitioner telling everybody, including this court, including the ITC, Cosum does not and has never owned the 268 patent.

[00:01:41] Speaker 00:
The problem here is that the board was made aware of this problem, this issue, and did not resolve it.

[00:01:48] Speaker 00:
It did not reach a determination.

[00:01:50] Speaker 00:
There is a footnote on page one of the petition that says ECB understands there's an issue with ownership or a challenge of ownership without owning up to its own involvement in that challenge.

[00:02:04] Speaker 00:
And I think this is a case where both the board

[00:02:10] Speaker 00:
and petitioners might benefit from this court's education about how disputes should be resolved regarding ownership.

[00:02:20] Speaker 00:
Because as Your Honors know, Cosum has gone through the entire process, the entire IPR process.

[00:02:26] Speaker 00:
We would contend that we are the owner.

[00:02:28] Speaker 00:
We do contend we're the owner.

[00:02:30] Speaker 00:
But to the extent that there is another owner out there, or to the extent that the board concludes that we're not the owner, that should have been decided early.

[00:02:39] Speaker 00:
And it wasn't.

[00:02:40] Speaker 00:
And we would contend.

[00:02:41] Speaker 04:
So let me sort of reprise what I think I was suggesting in the previous argument.

[00:02:48] Speaker 04:
And I'm sorry, Molly, I cannot see you at the moment.

[00:02:53] Speaker 04:
Something went wrong.

[00:02:55] Speaker 04:
I can hear you.

[00:02:56] Speaker 04:
So we can just proceed.

[00:03:00] Speaker 04:
For this issue, if we apply the five genetics summary judgment standard,

[00:03:08] Speaker 04:
What we have is you've alleged that you're the patent owner, you're the recorded assignee, and no contrary facts.

[00:03:20] Speaker 04:
Under the summary judgment standard, that's enough.

[00:03:25] Speaker 04:
We're done with any kind of article three problem perhaps.

[00:03:35] Speaker 04:
Then there's a question about whether

[00:03:38] Speaker 04:
this argument you make about what Ecobee should have said.

[00:03:50] Speaker 04:
We do not actually think that a person would be named.

[00:03:54] Speaker 04:
Your picture is back now.

[00:03:58] Speaker 04:
Thank you.

[00:04:02] Speaker 04:
Except I think maybe it's completely frozen.

[00:04:07] Speaker 04:
OK, now it's actually frozen.

[00:04:08] Speaker 00:
Sorry, I'm just listening.

[00:04:10] Speaker 04:
I'm sorry for the mechanics.

[00:04:15] Speaker 04:
So it's a reviewability question.

[00:04:17] Speaker 04:
Whether the review of this argument you make about what ECOB should have said and what the board should have demanded of them is reviewable.

[00:04:30] Speaker 04:
But just on the Article III standing, why isn't it perfectly plain that under the hygienic standard,

[00:04:37] Speaker 04:
It's enough for you to be here.

[00:04:43] Speaker 00:
So your honor, I think you're right.

[00:04:44] Speaker 00:
And from the perspective of constitutional standing, I agree that the 592 in this case come out the same.

[00:04:51] Speaker 00:
I think if we're going to look at that phygenic standard.

[00:04:53] Speaker 04:
So then let's go to the argument that you make about what ECOB should have said and what the board should have demanded of ECOB seems to be

[00:05:07] Speaker 04:
reviewable because it is not actually a 312 argument.

[00:05:12] Speaker 04:
It's not an argument that some element of 312 is flunked, because you cannot find in 312 a requirement that the petitioner assert what it believes to be the patent owner.

[00:05:29] Speaker 04:
An argument that would be 312 is if you asserted you're not the patent owner.

[00:05:36] Speaker 04:
And Ecobee has not identified the patent owner, but you haven't made that argument for obvious reasons.

[00:05:42] Speaker 04:
So it seems to me this is a kind of argument about what the board should have done in the course of trying the case, which is not an institution.

[00:05:57] Speaker 04:
So, Your Honor, I would- And also, it's a complete allude.

[00:06:01] Speaker 04:
It's also wrong for that.

[00:06:05] Speaker 00:
So Your Honor, I would say that what we have in terms of establishing Article III standing here is equally important in terms of assuring that constitutional obligations of notice and opportunity to be heard to any interested party in an in-rem proceeding, like a PTAB proceeding, also require a party like Ecobee to come forward and say,

[00:06:32] Speaker 00:
We think there's some other party that owns the patent.

[00:06:34] Speaker 00:
We don't think the party that we've drawn into this proceeding owns the patent.

[00:06:37] Speaker 00:
We want to go forward with them.

[00:06:39] Speaker 00:
We think there's somebody else out there.

[00:06:41] Speaker 00:
And I think this is, again, 99.9% of the cases, this is never going to be an issue.

[00:06:47] Speaker 00:
This is a really odd situation because we know what he could be thinks through the ITC case.

[00:06:54] Speaker 00:
Much like the World's V Bungie case that dealt with RPI and the proper naming of RPI, there is an obligation.

[00:07:01] Speaker 04:
The difference between this and the RPI case is that in the RPI case, the argument was made, there is a missing RPI.

[00:07:11] Speaker 04:
You're not saying there's a missing patent owner.

[00:07:15] Speaker 00:
Correct, Your Honor, although we're alluring the board that another party thinks there's a missing patent owner.

[00:07:23] Speaker 00:
So what?

[00:07:26] Speaker 00:
So let's put it this way, Your Honor.

[00:07:28] Speaker 00:
I think there is a harm to a party who comes in and says, we own a patent.

[00:07:33] Speaker 00:
And a petitioner says, well, we don't think you do, but we're going to put you through the process.

[00:07:36] Speaker 00:
There's a harm in the sense that there is some value, some benefit to quiet title for the PTO to say, we're going to look at the operative documents.

[00:07:45] Speaker 00:
We're going to make a decision.

[00:07:46] Speaker 00:
And we're going to say, yes, this IPR can proceed against this party because we do agree that you are a patent owner here, which also gives this court

[00:07:56] Speaker 00:
evidence and a record to review so that we aren't in the situation like we were with the 592 patent where we're saying, gosh, does this agreement issue create standing up in this case or not?

[00:08:08] Speaker 00:
A fulsome record is beneficial at the PTAB, but unfortunately here we didn't have one because the petitioner who does have an obligation of candor with the tribunal

[00:08:20] Speaker 00:
frankly, hid their position on ownership, hid the evidence, hid their arguments, even though there was fulsome briefing at the ITC.

[00:08:29] Speaker 00:
Judge Ronjo, I understand your point, kind of the so what.

[00:08:33] Speaker 00:
We would submit that

[00:08:36] Speaker 00:
When there is a dispute, again, 99% of the time or more, this is not going to come up.

[00:08:40] Speaker 00:
But when it does come up, the board should go through the process to make sure all interested parties have been notified and alerted.

[00:08:47] Speaker 03:
What if, in the ITC appeal, we were to conclude that Cosm owns this patent?

[00:08:56] Speaker 03:
Then would this argument that you're raising right now go away?

[00:09:00] Speaker 00:
I think so, Your Honor.

[00:09:02] Speaker 00:
I think so.

[00:09:04] Speaker 00:
We've been teasing that out quite a lot, trying to figure that question out.

[00:09:07] Speaker 00:
I think it does go away.

[00:09:09] Speaker 00:
Standing here is established.

[00:09:11] Speaker 00:
The only thing I would say, Your Honor, is if we're addressing it from this phygenic standard, which is summary judgment, is that quiet title?

[00:09:20] Speaker 00:
Is ECOB precluded?

[00:09:21] Speaker 00:
Is there effectively judicial estoppel from ECOB later saying, hey, we do have an issue with title?

[00:09:28] Speaker 00:
I don't think it's quite determinative fully.

[00:09:33] Speaker 00:
But I think this argument goes away.

[00:09:37] Speaker 00:
So moving on, Your Honor, to maybe a more interesting topic, which is claim construction.

[00:09:41] Speaker 04:
I heard you have a question related to that.

[00:09:44] Speaker 00:
I'm sorry.

[00:09:45] Speaker 04:
What's the status of claim development?

[00:09:51] Speaker 04:
It's not part of this IPR, right?

[00:09:54] Speaker 00:
I think that's right, Your Honor.

[00:09:55] Speaker 00:
Claim 12 is not in... I think it's claim 1 and 14 are the independent claims that are at issue here.

[00:10:01] Speaker 04:
1 through 11 and 13 through 19 are what was ruled on.

[00:10:06] Speaker 00:
I think that's right.

[00:10:07] Speaker 04:
That's the onliness in claims.

[00:10:09] Speaker 04:
But the reason I ask is that if claim 12, for some reason, has been canceled or something like that, then if you were to reach the merits and rule against you here,

[00:10:23] Speaker 04:
There really isn't much public benefit in quieting title because the patent is dead.

[00:10:31] Speaker 00:
Except, Your Honor, I would respectfully say that if we do have Claim 12 alive, there is a reissue procedure we could go through if we so chose.

[00:10:40] Speaker 04:
And that's what I'm asking.

[00:10:42] Speaker 04:
Tell me about the status of Claim 12.

[00:10:44] Speaker 00:
So Your Honor, I'm not aware of any plans to go through reissue.

[00:10:48] Speaker 00:
I think Claim 1 is the most important because of the ITC case, of course.

[00:10:54] Speaker 00:
But I think owning claim 12 is it's owning claim 12.

[00:10:58] Speaker 00:
That would be good, too.

[00:10:59] Speaker 00:
We would like that.

[00:11:02] Speaker 00:
Your Honor, from the intervening counsel's argument during the ITC hearing, I heard counsel say that measurement verification data, the generating measurement verification data, has to correspond to the reduction in consumed power.

[00:11:17] Speaker 00:
And that's what the claim requires.

[00:11:19] Speaker 00:
And we agree with that.

[00:11:20] Speaker 00:
However, in this IPR proceeding,

[00:11:23] Speaker 00:
board effectively rewrote the corresponding two terms to read instead generating measurement and verification data before the reduction in consumer power.

[00:11:34] Speaker 00:
Because again, we're talking about figure 1C of errors where you're taking a measurement beforehand, then going through the process of the demand response period.

[00:11:42] Speaker 00:
Our position is that the correspondence has to occur.

[00:11:47] Speaker 00:
Now, the board said they recognize, first of all, they recognize the antecedent basis that comes in element one, here we're calling it 1B, where the reduction in consumed power results from disabling the power to the power consuming device.

[00:12:03] Speaker 00:
So there's a trigger that gets you to that reduction in consumed power.

[00:12:07] Speaker 00:
Element 1c requires generating measurement verification data corresponding to the reduction.

[00:12:13] Speaker 03:
Ellers, as we already spoke about earlier, uses this measured and verified language itself.

[00:12:23] Speaker 03:
And the board then, at A42, consulted the AEIC document, just as it had earlier, to understand

[00:12:33] Speaker 03:
measurement and verification, as that term is used in the claim, and then concluded, well, Ehlers is disclosing this limitation because it's directed to the same thing that was defined by the AEIC document.

[00:12:49] Speaker 03:
So what's wrong with that basic analysis?

[00:12:52] Speaker 00:
So, Your Honor, let me, if I can, split these two concepts.

[00:12:56] Speaker 00:
One is the measurement and verification process, which, again, we don't dispute that Ehlers says measured and verified.

[00:13:02] Speaker 00:
But the data that goes into the process is where I think we have a problem with element 1c of the 268 patent in this proceeding.

[00:13:14] Speaker 00:
What the board found is that Ehlers discloses, I think they say,

[00:13:21] Speaker 00:
Eleanor suggests that measurement and verification methods are used.

[00:13:30] Speaker 00:
We don't dispute that, because Eleanor says measured and verified.

[00:13:33] Speaker 00:
But the question for 1C, the operative question, is the data that is used for measurement and verification, when is that generated?

[00:13:41] Speaker 00:
The board says we recognize there has to be a correspondence, but we say it's not time, and we don't tell you what it has to be.

[00:13:47] Speaker 00:
So the question is, what is it?

[00:13:49] Speaker 00:
How does data that's generated before a reduction in consumed power, how does that correspond to it?

[00:13:54] Speaker 00:
The board doesn't explain that.

[00:13:57] Speaker 04:
Why is it more complicated than this?

[00:14:03] Speaker 04:
You're talking about turning off a device.

[00:14:05] Speaker 04:
So you know, without having to measure, that there's zero out during the actual event.

[00:14:11] Speaker 04:
To figure out what a saving is, you need some figures about what it otherwise would have been.

[00:14:17] Speaker 04:
So of course, just by all of the historical data or whatever else you've used before, the before event is the comparator.

[00:14:32] Speaker 04:
And that is corresponding to.

[00:14:34] Speaker 04:
It's at least corresponding to because corresponding to does not mean identical to four decimal places.

[00:14:44] Speaker 04:
Corresponding is that a drawback term, not a

[00:14:47] Speaker 04:
a term of procedure.

[00:14:50] Speaker 00:
Your Honor, respectfully, in this scenario, I would disagree in the sense that there may be stored data that's being used to go through the measurement verification process.

[00:15:02] Speaker 00:
This claim doesn't preclude that.

[00:15:04] Speaker 00:
This claim doesn't preclude going into a historical database and saying, last week when it was 75 degrees out Fahrenheit, this is how much AC you used, AC power you used from 4 to 5 PM.

[00:15:16] Speaker 00:
There's nothing wrong with that.

[00:15:17] Speaker 00:
But what this claim is saying is, let's do better.

[00:15:19] Speaker 00:
Let's generate measurement and verification data.

[00:15:21] Speaker 00:
In other words, data that's going to be used in the algorithm corresponding to the reduction that occurs upon disabling today.

[00:15:30] Speaker 00:
And that's what element 1B and 1C together, I think, require, is generating the data that's being used for measurement and verification upon disabling the power today at the time.

[00:15:44] Speaker 04:
So for example, I mean, are you saying

[00:15:46] Speaker 04:
that you obviously don't need during the downtime to measure how much power is being used, because you know what it is in zero.

[00:15:58] Speaker 04:
So you want to measure the temperature during that hour long downtime, or measure what?

[00:16:06] Speaker 00:
Well, great question, Your Honor.

[00:16:08] Speaker 00:
Again, I think ambient temperatures could be important.

[00:16:11] Speaker 00:
Right?

[00:16:12] Speaker 00:
An HVAC wouldn't kick out.

[00:16:13] Speaker 00:
If your set point is 64 and it's 62 outside in AC, really low setting, it's 62 outside, it wouldn't kick on anyway.

[00:16:23] Speaker 00:
So is that really, as you said, Your Honor, yeah, the power is drawn is zero.

[00:16:28] Speaker 00:
But if it wouldn't have been on anyway, you don't get credit for that.

[00:16:32] Speaker 00:
So I think there are things like that.

[00:16:34] Speaker 00:
And in fact, because these are devices that are under a consumer control,

[00:16:42] Speaker 00:
A consumer can go back, yeah, sure, the utility, Dominion Electric, reduced the set point on my thermostat because I've subscribed to this demand response period.

[00:16:51] Speaker 00:
But you know what?

[00:16:52] Speaker 00:
Everybody's really hot here.

[00:16:54] Speaker 00:
We're going to manually adjust it.

[00:16:56] Speaker 00:
So there's certain things that could be going on during the period of reduced power that affect the counterfactual.

[00:17:06] Speaker 00:
They go into that.

[00:17:06] Speaker 00:
And I know, Your Honors, I'm way late.

[00:17:12] Speaker 03:
from the other side.

[00:17:32] Speaker 02:
Good morning, and may it please the court.

[00:17:35] Speaker 02:
Causum's due process argument is a non-issue because it lacks standing to raise it, and because Causum never asked the board to consider the ownership issues such that the issue was waived.

[00:17:45] Speaker 02:
With respect to the second argument raised by Causum, the construction of generating measurement and verification data, it fares no better.

[00:17:53] Speaker 02:
The board correctly rejected the idea that the claim requires a power measurement to be made during the cutoff period.

[00:18:01] Speaker 02:
In fact,

[00:18:01] Speaker 02:
The 268 patent itself describes collecting power measures before a cutoff period, because that is what is used to determine what energy was saved.

[00:18:12] Speaker 02:
I'll also note, despite COSM's argument to the contrary, the 268 patent and the specificity of the embodiment relied upon by the parties does not describe a power measurement during the cutoff event.

[00:18:24] Speaker 02:
For those reasons, there is simply no support for the claim construction issue.

[00:18:28] Speaker 02:
And even if we could get past those issues, we still have the factual findings by the board that the term measured and verified as used in Ehlers is describing measurement verification as used in the claim.

[00:18:40] Speaker 02:
And therefore, however we understand this terminology, Ehlers suggests or teach that requirement.

[00:18:47] Speaker 02:
For those reasons, the decision below should be upheld.

[00:18:51] Speaker 02:
With that, Abs.

[00:18:52] Speaker 04:
Can I just clarify, did the board say

[00:18:59] Speaker 04:
even if measurements during the event is required, Ehlers teaches that?

[00:19:07] Speaker 02:
No, Your Honor.

[00:19:08] Speaker 02:
What the board said, and this is in the appendix at 41 and 42, is that the use of measured and verified in Ehlers is a teaching of the term of art, measurement and verification.

[00:19:20] Speaker 02:
Thus, the measurement verification as used in the claim is also what's being taught in Ehlers.

[00:19:26] Speaker 02:
Because we're talking here about a term of art, that term of art is used in the claim and used in Ehlers has to be co-excensive, has to be the same thing.

[00:19:34] Speaker 02:
That's what the board found.

[00:19:37] Speaker 04:
I'm not sure how that somehow avoids the question

[00:19:48] Speaker 04:
this terminology requires measurement during the event?

[00:19:54] Speaker 02:
The issue is that the full term being construed is measurement verification corresponding, I guess the exact language.

[00:20:06] Speaker 02:
Measurement and verification data corresponding to the reduction in consumed power.

[00:20:09] Speaker 02:
So the most important, what the board focused on there is, what does that mean?

[00:20:14] Speaker 02:
Measurement and verification data corresponding to reduction in power.

[00:20:18] Speaker 02:
And what the board found is, that term overall is talking about, it's not described or defined in the patent.

[00:20:25] Speaker 02:
It is a understanding of what is used in the art.

[00:20:28] Speaker 02:
So whatever that understanding is, it would be suggested by others.

[00:20:31] Speaker 01:
Do you think that language has a time requirement in it?

[00:20:34] Speaker 02:
No, it does not have a time requirement.

[00:20:36] Speaker 02:
Why not?

[00:20:37] Speaker 02:
Well, I think for purposes of cleaning destruction, we first start with the intrinsic record.

[00:20:42] Speaker 02:
So if we look at the 268 patent, what the 268 patent describes, starting at column 7 and then going on to the embodiment further relied upon in column 21, is that there is a measurement in advance of the event.

[00:20:58] Speaker 02:
And specifically, as cited in our brief, page 6, column 7, lines 11 through 27 makes this clear.

[00:21:06] Speaker 01:
And I'm going to point to two quotes from that section.

[00:21:13] Speaker 01:
the time limited and that's supported by the specification, which has a preferred embodiment that actually has the measurement done beforehand.

[00:21:22] Speaker 02:
Correct.

[00:21:22] Speaker 02:
Okay.

[00:21:23] Speaker 02:
And what that says is that the power management system determines the amount of steady state power each device consumes when turned on and logs the information and database.

[00:21:33] Speaker 02:
It goes that on the 10 Ben explained because the amount of power consumed by each specific load is known.

[00:21:39] Speaker 02:
The system can determine precisely which loads to turn off.

[00:21:42] Speaker 02:
What this is describing is measuring power of the devices that were participating devices, and then in advance of the event deciding which ones to turn off depending on how much energy you need to save.

[00:21:52] Speaker 02:
So there's a measurement in advance followed by a decision based on what to turn off.

[00:21:58] Speaker 02:
And then as discussed in the more cited two sections in column 21 of the patent, you measure how long the device was off.

[00:22:06] Speaker 02:
Energy savings is simply a function of the time the device was off,

[00:22:09] Speaker 02:
and the power consumption as measured before the device was turned on.

[00:22:14] Speaker 02:
It's the baseline referred to in the board's decision.

[00:22:18] Speaker 02:
Those are the only two things you need.

[00:22:21] Speaker 02:
What does this device use power-wise and how long was it off?

[00:22:26] Speaker 02:
Energy savings is a function of those two things.

[00:22:29] Speaker 02:
While COSM seems to argue that there's a requirement for a measurement during, you'll actually not find in the specification any description of a specific power measurement occurring during the event.

[00:22:42] Speaker 02:
The power measure occurs prior to the event.

[00:22:45] Speaker 02:
So getting back to claim construction, the question is, how can we adopt a claim construction that requires a measurement during?

[00:22:53] Speaker 02:
and saying a measurement before it doesn't count when the specification describes the measurement before and doesn't describe it during.

[00:23:01] Speaker 02:
That would be a claim construction that would contradict the intrinsic record, not be supported by it.

[00:23:12] Speaker 03:
What about a measurement after?

[00:23:13] Speaker 03:
Does a measurement after have to take place too?

[00:23:17] Speaker 02:
No measurement after has to take place.

[00:23:19] Speaker 02:
From the point of view of how do you have enough information to calculate measurement verification, you need the power that that device would use.

[00:23:26] Speaker 02:
Has it been on?

[00:23:28] Speaker 02:
How long was it on?

[00:23:29] Speaker 02:
Ultimately, those are the only two things that you need.

[00:23:32] Speaker 02:
Now, there are measurement and verification systems that don't turn devices off.

[00:23:37] Speaker 02:
This claim requires disabling power.

[00:23:39] Speaker 02:
Some measurement verifications simply throttle power.

[00:23:42] Speaker 02:
Think of a fan that was on high and you turned it down to low.

[00:23:46] Speaker 02:
There, you might actually want to do a measurement during, and there's nothing precluding a measurement during.

[00:23:52] Speaker 02:
The question is whether it's required by the concept of measurement verification or the claims itself.

[00:23:59] Speaker 02:
And it is not required.

[00:24:02] Speaker 02:
You could do whatever else you want to do to try and make it the best determination of savings that you would like, but it is not a require.

[00:24:14] Speaker 04:
What about the example that your counterpart told me about the utility company wants to and send some signals to turn off the air conditioning for the next two hours.

[00:24:32] Speaker 04:
But people in the house, after 15 minutes, 20 minutes or something, say, not acceptable.

[00:24:38] Speaker 04:
I'm now going to turn it on.

[00:24:42] Speaker 04:
Doesn't there have to be a

[00:24:44] Speaker 04:
simply a measurement of how much during the hope for two-hour turnoff it was actually off.

[00:24:54] Speaker 02:
That would be a procedure that a company might want to put in place.

[00:24:58] Speaker 02:
I will note that the patent itself says that what is required by a measurement verification program is ultimately to be determined by a governing body or a power company.

[00:25:10] Speaker 02:
A company can decide, we want more.

[00:25:12] Speaker 02:
And the patent says that governing body might decide that for this particular program, it wants more.

[00:25:20] Speaker 02:
But that does not put in the specification a specific requirement that there must be more.

[00:25:27] Speaker 02:
Sure, you can do whatever you want.

[00:25:29] Speaker 02:
You can have added information.

[00:25:30] Speaker 02:
The question is whether or not the claim says you have to absolutely do it.

[00:25:34] Speaker 02:
And I think the fact that the specification allows that whatever the program can be, would be, can be decided later is a telling indication that there are not specific requirements to that example that you gave your honor.

[00:25:52] Speaker 04:
I just don't remember this.

[00:25:53] Speaker 04:
Did the board make anything of a notion that actually the term corresponding has a whole lot of the gold room?

[00:26:04] Speaker 04:
in it.

[00:26:05] Speaker 04:
That is an argument that it's a term of some breadth.

[00:26:10] Speaker 04:
The correspondence doesn't have to be, as I said before, to three decimal places of accurate.

[00:26:17] Speaker 04:
Or did the parties argue about that?

[00:26:20] Speaker 02:
No, that's not as far as I can recall from the review of the record.

[00:26:23] Speaker 02:
I don't believe that the board focused on the term corresponding.

[00:26:26] Speaker 02:
I think what the parties and the board focused more on is that

[00:26:31] Speaker 02:
The idea is, as you pointed out earlier, the counterfactual.

[00:26:35] Speaker 02:
You can't actually measure savings while a device is off.

[00:26:38] Speaker 02:
You have to have some sort of historical notion of what that device uses, know how long it was off.

[00:26:44] Speaker 02:
So in that case, you are making a determination of what the data you're using corresponds to what the reduction was.

[00:26:52] Speaker 02:
That's going to be historical data.

[00:26:53] Speaker 02:
It's going to be time.

[00:26:55] Speaker 02:
The board did discuss that, but there was not a specific, as far as I can recall, determination of corresponding is broad and therefore, as you would put it.

[00:27:10] Speaker 02:
With that, if absent any further questions about claim construction, I can address the

[00:27:16] Speaker 02:
the notice argument, if that would be helpful to the court.

[00:27:19] Speaker 02:
And I thank you for your patience for hearing these three cases in a row.

[00:27:22] Speaker 02:
I'm sure there's been plenty of information provided already.

[00:27:26] Speaker 02:
I will note that the argument for the due process, the alleged due process violation in this case is interesting in that it is a bit of a catch-22 for Cosm.

[00:27:39] Speaker 02:
And that is the argument is essentially that Cosm may not own the patent.

[00:27:44] Speaker 02:
And if it doesn't own the patent, the patent owner wasn't given notice.

[00:27:49] Speaker 02:
That is simply not an injury to COSM.

[00:27:52] Speaker 02:
COSM has not disputed that it did not have notice.

[00:27:56] Speaker 02:
It has not disputed that the Patent Office allowed it to participate in this proceeding, that it was fully hurt.

[00:28:02] Speaker 02:
So either COSM owns the patent, in which case there is no notice problem, or COSM doesn't own the problem.

[00:28:09] Speaker 02:
patent, in which case the injury that it alleges doesn't belong to Cosm, it belongs to some other party.

[00:28:15] Speaker 02:
I don't see any way around that catch 22 that this issue resolves itself because either way you figure it out, the argument for Cosm doesn't work.

[00:28:28] Speaker 02:
And I'll also note that Cosm's argument is essentially that the flaw in the final written decision

[00:28:36] Speaker 02:
is that the board didn't make a ultimate determination on ownership.

[00:28:41] Speaker 02:
Who owns the patent?

[00:28:43] Speaker 02:
The problem with that, separate and apart from what I just addressed, is that no party, calls them in particular, asked the board to make that determination.

[00:28:54] Speaker 02:
So the question is, how could we fault the board for not making a determination that neither party asked it to make?

[00:29:02] Speaker 02:
there can't be a flaw in the decision from that point of view.

[00:29:05] Speaker 03:
And in fact, if Cozum really wanted this... Cozum must have raised some sort of objection to your side, Echo Bee, for bringing this challenge and identifying Cozum as the patent owner when it knew that Echo Bee doesn't believe that Cozum is the patent owner.

[00:29:26] Speaker 02:
It did raise that and it was in the context primarily of an institution.

[00:29:31] Speaker 02:
The argument pre-institution was that there should not be an institution because section 35 USC 312, I think it's A5, was not met because there was not proper service, not service on the patent owner.

[00:29:45] Speaker 02:
That was the argument pre-institution.

[00:29:47] Speaker 02:
The argument post-institution was pretty much the same argument, but it was, well, you should basically end this case and not get to a final decision.

[00:29:55] Speaker 02:
The response to that, and the correct response to that, is that's not what the statute requires.

[00:30:01] Speaker 02:
The statute requires, specifically, that the petition must be served on the patent owner or, if applicable, the designated representative of the patent owner.

[00:30:11] Speaker 02:
The factual argument that CAUSEM makes is that the petition was served on CAUSEM, not the patent owner.

[00:30:18] Speaker 02:
That is not accurate.

[00:30:19] Speaker 02:
The petition was served on the correspondence... I'm sorry, I'm sorry.

[00:30:24] Speaker 04:
Causland could not possibly have said that that petition was not served on the patent.

[00:30:32] Speaker 04:
It was served on Causland.

[00:30:33] Speaker 04:
Causland thinks it's the patent.

[00:30:35] Speaker 04:
It could not possibly have said that.

[00:30:37] Speaker 04:
What it said was the petition was not served on another person that the petitioner believes is the patent.

[00:30:45] Speaker 04:
It incorrectly believes it's the patent.

[00:30:48] Speaker 04:
But so what?

[00:30:48] Speaker 04:
312 doesn't require that.

[00:30:51] Speaker 02:
I completely agree.

[00:30:52] Speaker 02:
The only point I was going to

[00:30:54] Speaker 02:
raise with respect to 312 is it doesn't even require that service be made on the patent owner.

[00:31:00] Speaker 02:
It requires the service be made on the patent owner or, if applicable, the designated representative of the patent owner.

[00:31:06] Speaker 02:
In this case, the petition was served on the correspondence address of record, which was a law firm.

[00:31:13] Speaker 02:
who that law firm represents is between the law firm and its client.

[00:31:16] Speaker 02:
So all Ecobee could do is serve the registered agent listed in the records for the U.S.

[00:31:24] Speaker 02:
Patent Office because that's what the statute requires.

[00:31:27] Speaker 04:
As to whether or not... Is Carson on the current PTO books as assignee?

[00:31:37] Speaker 02:
Yes, Your Honor.

[00:31:40] Speaker 04:
Was that part of this record?

[00:31:43] Speaker 02:
Yes, your honor.

[00:31:44] Speaker 04:
It's a matter of public opinion.

[00:31:45] Speaker 02:
Yeah.

[00:31:46] Speaker 02:
It was raised here that that is the assignment address.

[00:31:51] Speaker 02:
Does the assignee and the correspondence or address of record are of record in this appeal.

[00:31:57] Speaker 02:
In any event, for those reasons, we don't believe there is any problem with the service or any viable due process argument that could be raised by causing this case.

[00:32:07] Speaker 02:
And absent any further questions, I'll leave the rest of the briefs.

[00:32:12] Speaker 03:
Okay.

[00:32:13] Speaker 03:
Thank you very much.

[00:32:14] Speaker 03:
Thank you.

[00:32:23] Speaker 03:
Yes.

[00:32:23] Speaker 03:
Let's give Mr. Helge two minutes.

[00:32:26] Speaker 00:
Thank you, Your Honor.

[00:32:27] Speaker 00:
I will probably use less than that if I can.

[00:32:29] Speaker 00:
Very quickly, in terms of whether there is disclosure in our patent of measurement and verification data being generated during

[00:32:37] Speaker 00:
The period of reduced power, there is.

[00:32:39] Speaker 00:
And block 816 of figure 7 of our patent does have, after a turn-off transaction is sent, log amount of power and time stamp in ALS.

[00:32:49] Speaker 00:
That's the system.

[00:32:49] Speaker 00:
Database for each ALC power consuming device reduced.

[00:32:54] Speaker 00:
There is this logging process that goes on.

[00:32:56] Speaker 00:
So I just want to say that if there's a question of whether there's

[00:32:59] Speaker 00:
specification support for what we're saying about corresponding to there is and I would say at least this portion.

[00:33:05] Speaker 00:
Judge Toronto I think you asked did the board evaluate claim or element 1c under our interpretation of the claim and the answer is correct that counsel gave they did not engage in that analysis.

[00:33:18] Speaker 00:
And the last point I'd just like to say is, while we are causing this assigning of record to the PTO, there was a quick claim deed that was logged at some point in favor of Residio from another entity somewhere, I think Landis and Gear, GYR, Gear.

[00:33:36] Speaker 00:
Is that a record in this case?

[00:33:40] Speaker 00:
Not in this case, Your Honor.

[00:33:41] Speaker 00:
Correct.

[00:33:43] Speaker 00:
But just to say,

[00:33:46] Speaker 00:
There is something on the title that looks fishy.

[00:33:49] Speaker 00:
But cause and maintains, we do own it, and that does not change.

[00:33:53] Speaker 00:
Your Honors, I appreciate all your time today.

[00:33:54] Speaker 00:
Thank you.

[00:33:55] Speaker 00:
Let's go to other questions.

[00:33:56] Speaker 03:
Thank you.