[00:00:00] Speaker 04:
OK, very good.

[00:00:02] Speaker 04:
So we have six cases this morning.

[00:00:06] Speaker 04:
The court will hear four oral arguments in four appeals.

[00:00:11] Speaker 04:
And the first appeal is docket number 23-1769, Cosmium Enterprises Incorporated versus ITC.

[00:00:21] Speaker 04:
Mr. Weinberg?

[00:00:26] Speaker 04:
You've reserved three minutes for rebuttal, correct?

[00:00:28] Speaker 04:
Sounds good.

[00:00:29] Speaker 04:
OK.

[00:00:30] Speaker 04:
Please begin.

[00:00:32] Speaker 00:
Good morning, Your Honors.

[00:00:33] Speaker 00:
Jonathan Weinberg for Appellant Clauseman.

[00:00:35] Speaker 00:
May it please the court.

[00:00:36] Speaker 00:
This appeal presents three claim construction issues.

[00:00:40] Speaker 00:
I know that we also briefed an ownership dispute, which, based on the briefing, has seemed to have fallen out of the case, because that's not a... But could you get to standing?

[00:00:49] Speaker 04:
Do you have constitutional standing to even be here and pursue this appeal in front of this court?

[00:00:56] Speaker 00:
Yeah, we do.

[00:00:57] Speaker 00:
We agree with the position that the commission has taken that this ownership dispute is not a constitutional standing issue.

[00:01:04] Speaker 00:
To begin with, it's a 281 issue.

[00:01:07] Speaker 00:
And so it's non-jurisdictional.

[00:01:09] Speaker 00:
There was no decision below regarding it.

[00:01:11] Speaker 04:
And so it's not actually before.

[00:01:13] Speaker 04:
Ownership was contested below, though, wasn't it?

[00:01:15] Speaker 00:
It was.

[00:01:16] Speaker 00:
And in front of the ALJ, there was a finding.

[00:01:20] Speaker 00:
Who concluded that COSM does not own this patent.

[00:01:23] Speaker 00:
Correct.

[00:01:24] Speaker 00:
But that finding was not adopted by the commission.

[00:01:27] Speaker 00:
And so there's no finding for this court to review on ownership.

[00:01:31] Speaker 03:
But don't we have an obligation to independently determine whether you have a standing?

[00:01:37] Speaker 03:
And that requires us, in this case, under the facts of this case, to actually look at ownership on our own, right?

[00:01:44] Speaker 00:
Well, the difference, and this isn't the briefing for Epileze, is that 281 and ownership is a statutory standing issue.

[00:01:54] Speaker 00:
And under this Court's precedent and loan star, statutory standing is not.

[00:01:58] Speaker 03:
We're talking about constitutional standing.

[00:01:59] Speaker 03:
We have to show that you have sufficient interest in the case, which means you have to have some sort of rights in the patent.

[00:02:07] Speaker 00:
Correct.

[00:02:07] Speaker 00:
Well, the parties agree that we do have constitutional standing.

[00:02:11] Speaker 00:
And whether there's patent ownership that's under 281 under this Court's precedent and loan star

[00:02:16] Speaker 00:
that's specifically not a constitutional issue.

[00:02:19] Speaker 00:
So if I could quote Lone Star.

[00:02:20] Speaker 04:
Maybe not.

[00:02:22] Speaker 04:
I agree.

[00:02:22] Speaker 04:
But as I understand it, there's no other basis you've advanced for having constitutional standing other than ownership of the patent.

[00:02:31] Speaker 04:
Is that fair to say?

[00:02:32] Speaker 00:
I'm not sure that I understand the question.

[00:02:35] Speaker 04:
Well, OK.

[00:02:36] Speaker 04:
You're saying that you don't need to necessarily own the patent to have constitutional standing here.

[00:02:43] Speaker 00:
When evaluating constitutional standing, the allegations brought by the plaintiff or the complainant are taken as true.

[00:02:52] Speaker 00:
And here, we've represented that we do own these patents.

[00:02:55] Speaker 00:
And for purposes of appellate Article III jurisdiction, that's taken as true.

[00:03:01] Speaker 00:
So that's sufficient.

[00:03:03] Speaker 04:
What authority says that when the question of ownership of the patent was disputed in the tribunal below, we at the Federal Circuit can just assume that you do own the patent and therefore have constitutional standards?

[00:03:24] Speaker 00:
Well, because it's not an issue that was brought here.

[00:03:25] Speaker 00:
So to quote Lone Star, whether a party possesses all substantial rights in a patent does not implicate standing or subject matter jurisdiction.

[00:03:34] Speaker 03:
That's statutory standing.

[00:03:35] Speaker 00:
That's correct.

[00:03:36] Speaker 03:
So we're not talking about statutory standing, which is different.

[00:03:38] Speaker 03:
We're talking about Article III standing.

[00:03:41] Speaker 03:
That's not something parties can just agree to or that can be waived.

[00:03:45] Speaker 03:
It's something we have to assess in each and every one of our cases.

[00:03:49] Speaker 00:
Right.

[00:03:50] Speaker 03:
And it wouldn't apply at the ITC, because that's not an Article III court.

[00:03:54] Speaker 03:
So it's something new here.

[00:03:57] Speaker 00:
So in front of this court, and I'm sorry if I'm sort of repeated here.

[00:04:02] Speaker 03:
Basically, if you're saying that you're the patent owner, all you really need to do is say, doesn't that just mean we need to assess whether you're, in fact, the patent owner based on the record before us?

[00:04:11] Speaker 00:
I believe that the standard is that,

[00:04:15] Speaker 00:
our representations on appeal for purposes of evaluating jurisdiction are taken as true.

[00:04:20] Speaker 00:
We represent that we own these patents.

[00:04:22] Speaker 00:
And whether or not there was a dispute below, there's no decision below saying that we don't own the patents.

[00:04:27] Speaker 00:
We represent we own the patents.

[00:04:28] Speaker 00:
There's no dispute about that before this court.

[00:04:31] Speaker 00:
And so that's taken as true.

[00:04:34] Speaker 00:
And so we have here, there's no dispute over Article III standing.

[00:04:38] Speaker 05:
We have a concrete injury here.

[00:04:41] Speaker 05:
Can I interrupt?

[00:04:41] Speaker 05:
Yeah, that's something you noted.

[00:04:46] Speaker 05:
That's a lot different.

[00:04:48] Speaker 05:
I don't understand the relationship in your view between this case and the IPR that's coming up on the same map.

[00:04:59] Speaker 05:
If we were to conclude in the IPR that claim one is unpatentable, do you agree that this case is root?

[00:05:11] Speaker 00:
Yes, the patent would be invalid, and we would no longer be able to assert that at the ITC.

[00:05:18] Speaker 05:
And sometimes there's a second follow-on question to a litmus completion, which is what exactly would we do?

[00:05:29] Speaker 05:
One possibility is to dismiss the appeal.

[00:05:31] Speaker 05:
The other is to vacate and revend the instructions to the commission to dismiss the appeal.

[00:05:38] Speaker 05:
Do you have a view about which

[00:05:40] Speaker 05:
of those would be appropriate and whether it would matter to you?

[00:05:45] Speaker 00:
I don't.

[00:05:46] Speaker 00:
I think whatever the court decides to proceed on would be the court's prerogative.

[00:05:51] Speaker 00:
It could simply hold on to the opinion until the IPR opinion is final and then dismiss in Rule 36 or otherwise remand.

[00:05:59] Speaker 00:
It's up to the court completely.

[00:06:03] Speaker 04:
OK.

[00:06:03] Speaker 04:
I'm sorry.

[00:06:04] Speaker 04:
You had some merits arguments.

[00:06:06] Speaker 00:
Yes, we have three claim construction issues.

[00:06:09] Speaker 00:
I don't know if the court is particularly focused on one of those, because I'm sure we don't have time for all of them.

[00:06:15] Speaker 00:
So if there are particular questions, let me know.

[00:06:17] Speaker 00:
Otherwise, I'll proceed.

[00:06:19] Speaker 00:
I'm sorry.

[00:06:19] Speaker 05:
I'm having a few problems hearing you.

[00:06:23] Speaker 05:
The other microphones are feeling just fine for me, but your microphone is not feeling well for me.

[00:06:29] Speaker 05:
I don't know if there's a solution to that.

[00:06:33] Speaker 00:
I'll speak more loudly.

[00:06:34] Speaker 00:
Hopefully, that will help.

[00:06:36] Speaker 00:
So I'll proceed through the issues in the order they were briefed, unless the court has specific questions on specific ones of these issues.

[00:06:43] Speaker 05:
All right.

[00:06:46] Speaker 00:
Our position on what is measurement and verification data is a pretty simple one.

[00:06:50] Speaker 00:
Measurement and verification data is data for measurement and verification.

[00:06:55] Speaker 00:
That's how it's described in the specification.

[00:06:59] Speaker 00:
You have no definition of measurement and verification data.

[00:07:04] Speaker 00:
What you do have is a description of a measurement and verification process.

[00:07:09] Speaker 00:
Now, no embodiment sends a reduction in consumed power, like the appellees argue.

[00:07:14] Speaker 00:
The only thing that these embodiments send is, well, not the only thing, but what they send during the event is runtime.

[00:07:20] Speaker 00:
What these embodiments describe is during a demand response event, there's some decrease in runtime, and that runtime is sent to the utility to perform measurement and verification.

[00:07:33] Speaker 04:
This is the accused product you're talking about, right?

[00:07:37] Speaker 04:
The accused system?

[00:07:38] Speaker 00:
The accused system certainly does this.

[00:07:39] Speaker 00:
I'm talking about claim construction at the moment, but we could talk about infringement as well.

[00:07:44] Speaker 00:
The accused system does perform this function.

[00:07:47] Speaker 04:
But it doesn't send any meter readings, right?

[00:07:53] Speaker 00:
Yeah, that's right.

[00:07:56] Speaker 00:
There's no requirement in the claim construction or no justification for reading a requirement of meter readings into the claim term measurement and verification data.

[00:08:06] Speaker 00:
And I'm happy to talk about the analysis that the ALJ performed and why that's wrong.

[00:08:14] Speaker 03:
The claim construction?

[00:08:15] Speaker 00:
The claim construction, yeah.

[00:08:17] Speaker 00:
So the ALJ's analysis is at page 78 of the appendix.

[00:08:21] Speaker 00:
And it begins with what kind of looks like a claim construction.

[00:08:24] Speaker 00:
It says, measurements, according to Mr. Forbes, the inventor in his deposition, is raw measurement from a meter or a sub-meter or from any device that's capable of performing measurement.

[00:08:37] Speaker 00:
It's a bit tautological there.

[00:08:38] Speaker 00:
Measurement is anything from a device capable of performing measurement.

[00:08:42] Speaker 00:
There's nothing in that deposition testimony that says it had to come from a meter.

[00:08:46] Speaker 00:
It has to be power.

[00:08:47] Speaker 00:
There's simply no support for that.

[00:08:49] Speaker 00:
And if you look at Mr. Forbes' testimony that is cited at page 78, he says explicitly that, quote, measurement can be in the form of a runtime.

[00:08:59] Speaker 00:
And so that Forbes deposition testimony and testimony does not support any requirement of a meter reading or preclude runtime in any way.

[00:09:12] Speaker 00:
When the ALJ went on to do the non-infringement analysis, he said, well, Resideo can't infringe because it doesn't read meter data.

[00:09:24] Speaker 00:
Where did that come from?

[00:09:25] Speaker 00:
There's no requirement in that measurement definition we just read to read meter data.

[00:09:30] Speaker 00:
And he also said that runtime data is insufficient because the measurement and verification process

[00:09:37] Speaker 00:
not just the data, but the process, requires at some point taking actual measurements of power, such as baseline.

[00:09:44] Speaker 00:
This really conflates the measurement and verification process with what is measurement and verification data.

[00:09:50] Speaker 00:
Measurement and verification data includes the run time, perhaps the process requires other information, like how much energy this appliance would have taken during the run time, but that's not the definition of measurement and verification data.

[00:10:05] Speaker 00:
And you can see there's no support for that, based on what it is that he cited there as well.

[00:10:10] Speaker 00:
The same Forbes deposition testimony, and in addition, the witness statement of Mr. DiCaprio.

[00:10:17] Speaker 04:
Doesn't this patent specification describe that the whole point of the patented invention is to take these meter readings so that you could send that back to some server to run a bunch of calculations to figure out exactly

[00:10:36] Speaker 04:
how much power was consumed during some control event, and then compare that to what would have happened had there been no control event, and then you can much more accurately calculate what the actual reduction in power was.

[00:10:52] Speaker 00:
The second part of that is correct.

[00:10:54] Speaker 00:
So there is a description of how you do measurement verification in the patent, Comp 7, and again,

[00:11:03] Speaker 04:
But I guess my point is, if I'm understanding the patent correctly, then the meter reading is a key element.

[00:11:13] Speaker 04:
I mean, that's the whole point, is to send information back so you can run these kind of calculations.

[00:11:19] Speaker 04:
And if you don't send that back, I mean, the runtime data, I don't know why the server even needs the runtime data.

[00:11:28] Speaker 04:
It doesn't already know what the length of time is for the control event.

[00:11:33] Speaker 00:
What the specification sends back, what it describes, is not a sending back of power measurements.

[00:11:43] Speaker 00:
It describes taking a baseline, how much is being used normally, and then taking a runtime during the event, and sending that runtime during the event.

[00:11:51] Speaker 03:
You could see that.

[00:11:52] Speaker 03:
You know what might be helpful is if you pointed to us, where's part of the specification are you relying on?

[00:11:57] Speaker 00:
Sure.

[00:11:57] Speaker 00:
For example, column 21, line 48 talks about using runtime for MNV.

[00:12:03] Speaker 00:
and I'm happy to read from that section if it will be helpful.

[00:12:07] Speaker 00:
It says there that the database record for each active load client contains the actual amount or average amount of power that would have been used, right, that's the base lining, by the active load client during the last cut event, along with the amount of time that each controllable device was turned off.

[00:12:25] Speaker 00:
The power savings application that's at the utility uses this information, the amount of time,

[00:12:32] Speaker 00:
to calculate the amount of power in megawatts that was saved.

[00:12:35] Speaker 00:
And so all of the embodiments simply describe that during the event, the thermostat is sending back runtime data, not power measurements.

[00:12:44] Speaker 00:
In fact, I don't know.

[00:12:45] Speaker 04:
I guess there's other embodiments that are doing the meter reading, right?

[00:12:51] Speaker 00:
I'm not aware of them.

[00:12:52] Speaker 00:
If you have ones that you want to point to, I can take a look at them.

[00:12:55] Speaker 00:
But the other section that describes measurement and verification is in column seven, and it describes a similar process.

[00:13:03] Speaker 04:
Oh, this is about the power supply value?

[00:13:07] Speaker 00:
Well, the power supply value is something that's calculated by the utility in the back end on servers.

[00:13:14] Speaker 00:
What this describes is that because the amount of power consumed by each specific load is known, the system could determine precisely which loads to turn off and track the power savings.

[00:13:24] Speaker 00:
And then it tracks the amount of time that these devices were turned off.

[00:13:29] Speaker 04:
And it's calculated at the meter, right?

[00:13:32] Speaker 00:
No, the power supply value is calculated at the server.

[00:13:36] Speaker 03:
It says the power supply value is calculated at the sub-meter.

[00:13:43] Speaker 03:
Line 28.

[00:13:45] Speaker 00:
Or at any device control that measures power within the standard supply.

[00:13:53] Speaker 00:
If you read a little bit farther up at the first sentence of the paragraph,

[00:14:02] Speaker 00:
Furthermore, based on the reduction consumed power, the system and methods of the present invention provide for generating at the control center a power supply value.

[00:14:13] Speaker 00:
And the control center is the server at the utility.

[00:14:17] Speaker 00:
But I understand that there is that next sentence that says that you can measure some reduction in the meter potentially.

[00:14:25] Speaker 00:
But this does describe that it's being calculated at the server.

[00:14:32] Speaker 05:
Can I just switch to a different topic, please?

[00:14:42] Speaker 05:
Sure.

[00:14:42] Speaker 05:
Is it right that if we get to the merits here, the non-infringement determination can be supported independently on the basis of the identifiable controllable device?

[00:15:00] Speaker 05:
not having a finding that what we've mapped out on to is mainly reloads inside the thermostat are not a controllable device.

[00:15:13] Speaker 00:
Yeah, there are three different independent tank constructions that we would have to win on all three to win here today.

[00:15:20] Speaker 00:
And the power control message is one of those independent bases.

[00:15:24] Speaker 05:
What was wrong with

[00:15:28] Speaker 05:
the commission is finding on that part of the real is that the control of the guys has to be addressable through.

[00:15:39] Speaker 05:
Maybe something similar, but simply closing the circuit to allow current to flow is not that.

[00:15:50] Speaker 00:
Well, there's two issues.

[00:15:51] Speaker 00:
The first one is that the commission didn't make any finding about this for residues thermostats on the 268 patent.

[00:15:57] Speaker 00:
There was simply no actual analysis.

[00:16:00] Speaker 00:
All of the analysis.

[00:16:01] Speaker 05:
So that was borrowed from, I guess, appendix 94 or around there.

[00:16:08] Speaker 05:
But I didn't see any argument that that didn't flow back into around page 74 or 78 or what it was on residues.

[00:16:19] Speaker 05:
because the chief ALJ did say he was deciding, in Presidio's matter, both grounds.

[00:16:32] Speaker 05:
So the analysis got delayed for Christmas Day.

[00:16:36] Speaker 00:
All right, so if we were to take the analysis from the ITRON

[00:16:39] Speaker 00:
There's two analyses they borrowed, one from the 552 patent, which is completely inappropriate because there's different claim language here that says specifically that the controllable device has to have an IP network.

[00:16:52] Speaker 00:
So that's a different... they can't borrow from that different claim language.

[00:16:56] Speaker 00:
The other place that they borrow from is the ITRON analysis.

[00:17:01] Speaker 00:
Procedurally improper, we've said that a few times to do that.

[00:17:04] Speaker 00:
But even if it's not procedurally improper, it's wrong for a few reasons.

[00:17:08] Speaker 00:
Number one, it contradicts the DI analysis, which came to the exact opposite conclusion, that IP addresses are not necessary.

[00:17:16] Speaker 00:
That wasn't adopted by the court, by the commission, but that does show... I'm sorry, DI, I don't know what those letters... I'm sorry, the domestic industry analysis.

[00:17:27] Speaker 00:
Thank you.

[00:17:28] Speaker 00:
In the domestic industry analysis, the court came to the exact opposite conclusion saying that the relays are the controllable devices in this claim.

[00:17:39] Speaker 00:
So as for the requirement as IP addressable, they bar from the ITRON analysis.

[00:17:46] Speaker 00:
And what is the ITRON analysis?

[00:17:49] Speaker 00:
The CLJ analyzed the ITRON device.

[00:17:52] Speaker 00:
ITRON is a different respondent.

[00:17:55] Speaker 00:
And what the CLJ cited for ITRON was Paradiso's expert witness's testimony.

[00:18:02] Speaker 00:
But this expert witness's testimony has no weight, because it's not a claim construction issue.

[00:18:07] Speaker 00:
The expert doesn't say, look at this patent.

[00:18:16] Speaker 00:
Sorry.

[00:18:19] Speaker 00:
Say I look at the patent, this is what I think it means.

[00:18:21] Speaker 00:
But that's just an expert opinion.

[00:18:24] Speaker 00:
It's extrinsic evidence.

[00:18:25] Speaker 00:
This court is perfectly competent to look at the specification to decide de novo whether or not there's a requirement of a IP addressable, controllable device.

[00:18:36] Speaker 00:
I don't see that requirement.

[00:18:38] Speaker 03:
You do have to give, if an expert's going to talk about what a term means to a person with ordinary skill in the art, that would be reviewed.

[00:18:45] Speaker 03:
under a factual standard, like for a clear right?

[00:18:49] Speaker 00:
Yes, certainly any factual representations that he makes about a prisoner-ordinated skill, there could be some deference to, of course.

[00:18:56] Speaker 00:
But it was simply a line citation saying this expert said so, and therefore, this is what this means.

[00:19:02] Speaker 04:
Mr. Weinberg, we're way out of time at this point.

[00:19:05] Speaker 04:
We'll give you a little bit of rebuttal time, OK?

[00:19:07] Speaker 00:
Thank you, Your Honor.

[00:19:08] Speaker 00:
I appreciate it.

[00:19:09] Speaker ?:
OK.

[00:19:20] Speaker 01:
May it please the court.

[00:19:21] Speaker 01:
I'd like to begin with jurisdiction.

[00:19:23] Speaker 01:
The court seemed a bit concerned about it.

[00:19:26] Speaker 01:
And here, there's no dispute that the commission made a determination, a final determination under Section 337.

[00:19:33] Speaker 04:
And that final determination- Right, but I don't understand the ITC.

[00:19:38] Speaker 04:
What is its determination as to who owns this patent?

[00:19:42] Speaker 01:
I mean, the commission didn't determine that because it didn't have to.

[00:19:45] Speaker 01:
Under the law, the court allows the commission to make

[00:19:48] Speaker 01:
a determination on one or more dispositive issues.

[00:19:51] Speaker 03:
For Article 3's standing, though, there's a different requirement.

[00:19:55] Speaker 01:
That's correct.

[00:19:56] Speaker 03:
And so what do you think needs to be shown for Article 3's standing?

[00:19:59] Speaker 01:
They have to show an injury in fact, right?

[00:20:02] Speaker 01:
And that is shown by the commission declining the exclusion order.

[00:20:07] Speaker 01:
That is what they claim to be the injury in fact.

[00:20:09] Speaker 03:
If they're alleging that they're the patent owner.

[00:20:10] Speaker 03:
Right.

[00:20:11] Speaker 03:
If they're not truly the patent owner, what is their interest?

[00:20:14] Speaker 01:
Well, I mean, enshrined them, and this court said that

[00:20:18] Speaker 01:
Ownership of patent doesn't implicate standing.

[00:20:21] Speaker 01:
That is what the court said in Schwindleman was because Ms.

[00:20:26] Speaker 01:
Schwindleman, who is a complaint, contained allegations that she owned the patent.

[00:20:33] Speaker 01:
That was sufficient for the court to invoke Article III power.

[00:20:38] Speaker 01:
It wasn't necessary for the court to actually make a decision on who actually owns the patent.

[00:20:43] Speaker 04:
We have slightly different, maybe more than slightly different circumstances here.

[00:20:47] Speaker 04:
where your administrative law judge took a lot of evidence on a contested question as to who owns the patent and went very carefully through all that and reached a determination that Cosm does not own this patent.

[00:21:03] Speaker 04:
That's correct.

[00:21:03] Speaker 04:
That the patents were signed away before Cosm could ever take ownership.

[00:21:08] Speaker 04:
So we have a very real finding.

[00:21:13] Speaker 04:
And the ITC didn't adopt it, but it didn't reject it either.

[00:21:18] Speaker 04:
It, for whatever reason, just chose to completely sidestep it.

[00:21:22] Speaker 04:
And so at this point, that puts us, I think, in a bit of an uncomfortable spot as to just, should we just do what the ITC did and turn a blind eye to the ALJ's findings and assume that because COSM wants to assert that it owns the patent,

[00:21:41] Speaker 04:
We should just accept that in light of the fact that the ITC decided to ignore a highly contested issue.

[00:21:50] Speaker 01:
I mean, here, it wouldn't make any difference.

[00:21:52] Speaker 04:
The reason being that- Well, we have to decide one way or another whether we're going to reach the issue.

[00:21:57] Speaker 01:
Right.

[00:21:57] Speaker 01:
I mean, if the commission had found a violation of Section 337, the commission would have decided the ownership issue.

[00:22:06] Speaker 01:
Here, the commission determined that infringement was straightforward.

[00:22:11] Speaker 01:
Because COSM didn't really present any evidence on anyone actually practicing, using the residual thermostat, practicing these limitations.

[00:22:22] Speaker 01:
The Commission found that to be an easy determination, and so the Commission took no possession.

[00:22:28] Speaker 04:
You're not talking about constitutional standing right now, are you?

[00:22:31] Speaker 04:
You're talking about something else.

[00:22:33] Speaker 01:
What I'm trying to explain is why the Commission didn't decide the ownership issue.

[00:22:38] Speaker 04:
the concerns we have.

[00:22:39] Speaker 04:
You've been going over this now for a few minutes.

[00:22:42] Speaker 01:
I do.

[00:22:42] Speaker 01:
I appreciate the concern the Court has.

[00:22:45] Speaker 01:
The response the Commission has is that in the Commission's view, when the Commission makes a final determination on the merits, this Court has exclusive jurisdiction to...

[00:22:57] Speaker 03:
That's a different question.

[00:22:59] Speaker 01:
Right.

[00:22:59] Speaker 01:
I mean, before the commission, though, because the commission is an agency... You keep going back to before the commission.

[00:23:04] Speaker 04:
We're now all together here at the federal circuit.

[00:23:06] Speaker 01:
Yes.

[00:23:07] Speaker 04:
We now have to figure out what to do here at the federal circuit.

[00:23:10] Speaker 04:
Not what happened one or two years ago at the ITC across town.

[00:23:14] Speaker 01:
And what we see in our brief is that the constitutional standing is the injury, in fact, is for the alleged.

[00:23:20] Speaker 01:
And the injury being the commission not giving them the exclusion order.

[00:23:25] Speaker 05:
And that is... Can I just add to this?

[00:23:28] Speaker 05:
So this kind of question comes up with regularity in appeals from the patent board by unsuccessful challengers to patents.

[00:23:42] Speaker 05:
And we have said, by genetics, I think is the case that I have particularly in mind, following the DC circuit and a bunch of other circuits, that when there's a situation, as is quite common,

[00:23:55] Speaker 05:
when there's an appeal from a non-article three tribunal, and non-article three tribunals don't care about article three standing, that it frequently is an issue whether the appellant now meets the article three standard.

[00:24:14] Speaker 05:
And we have said that the test is not simply who they asserted,

[00:24:22] Speaker 05:
which is effectively the standard for judging standing at a motion to the Smith stage.

[00:24:27] Speaker 05:
But we borrowed the standard for determining standing from the summary judgment stage as articulated in the Supreme Court case of Mbuna.

[00:24:36] Speaker 05:
That requires looking at the facts, not just accepting the word.

[00:24:42] Speaker 05:
Here, that seems to come down to the simple question whether

[00:24:50] Speaker 05:
the how to read these legal documents, the assignment documents, doesn't it?

[00:24:55] Speaker 01:
Right.

[00:24:55] Speaker 01:
I mean, Judge, I mean, whether to this court said in Lone Star, right?

[00:24:58] Speaker 01:
In Lone Star, the court actually explained.

[00:25:00] Speaker 05:
Lone Star did not involve this particular question.

[00:25:04] Speaker 05:
And I don't remember the facts of Schwendeman.

[00:25:06] Speaker 05:
My great recollection is that the sentence that you read from Schwendeman is in the course of discussing something else and that that issue was not actually there.

[00:25:16] Speaker 05:
Lone Star was about how you can

[00:25:20] Speaker 05:
a Article 3, injury in fact, interest that falls short of ownership.

[00:25:26] Speaker 05:
This isn't that case.

[00:25:28] Speaker 05:
Here it's ownership or nothing at all.

[00:25:31] Speaker 01:
Judge, I mean the Commission's reading of Schwindleman, right, is that an allegation was sufficient in Schwindleman, which is what they had here before the Commission.

[00:25:42] Speaker 01:
Before the Commission, they did allege patent ownership.

[00:25:45] Speaker 01:
And Schwindlin, was it contested?

[00:25:47] Speaker 01:
It was contested.

[00:25:47] Speaker 01:
I believe it was contested.

[00:25:50] Speaker 01:
When was the case decided?

[00:25:57] Speaker 01:
Schwindlin was decided after Lone Star.

[00:25:59] Speaker 01:
I don't have the date.

[00:26:00] Speaker 01:
Did the lower court decide the issue?

[00:26:02] Speaker 01:
I believe the lower court did find that Schwindlin had asserted an assignment was assigned to she.

[00:26:12] Speaker 01:
I believe the lower court did decide the issue.

[00:26:14] Speaker 01:
But we didn't.

[00:26:15] Speaker 01:
I understand that.

[00:26:16] Speaker 01:
I understand that, Judge.

[00:26:17] Speaker 01:
Right.

[00:26:18] Speaker 01:
Yes.

[00:26:18] Speaker 01:
I appreciate that.

[00:26:19] Speaker 04:
There's a bit of a gap here with the commission's decision.

[00:26:21] Speaker 01:
Yes.

[00:26:21] Speaker 01:
I do appreciate the court's concerns.

[00:26:22] Speaker 04:
Which now creates a conundrum for us.

[00:26:24] Speaker 01:
Yes.

[00:26:24] Speaker 01:
I do appreciate the court's concerns.

[00:26:26] Speaker 01:
And I will definitely take the concerns back to the commission.

[00:26:30] Speaker 01:
But we think that here, what the commission did, because it also created a little bit of fun.

[00:26:36] Speaker 01:
a bit of a conundrum, if you will, for the Commission to make a final determination on the merit, which gives this Court exclusive jurisdiction and somehow still be able to shield that from this Court's jurisdiction by no decided ownership.

[00:26:51] Speaker 01:
It sort of puts the Commission in a little bit of a... I don't think that should be the right result.

[00:26:56] Speaker 01:
I think once the Commission makes a final determination on the merit, under 1295, this Court has exclusive jurisdiction to review that.

[00:27:05] Speaker 01:
But I do appreciate the court's concerns.

[00:27:07] Speaker 01:
I do.

[00:27:08] Speaker 05:
Can you address the, I think, sort of discuss two different aspects of the merits.

[00:27:16] Speaker 05:
I guess the one that I'm interested in hearing your view about is the issue of the identifying and controlling the controlled device.

[00:27:28] Speaker 01:
I mean, counsel for Cosum made a statement that the commission didn't make any findings.

[00:27:32] Speaker 01:
The commission did.

[00:27:34] Speaker 01:
The chief ALJ, this is at APPS 68 to 69.

[00:27:37] Speaker 05:
I guess I just want to hear about the merits of the question.

[00:27:41] Speaker 05:
Forget about what you're just about to say.

[00:27:44] Speaker 05:
Why is Cosum wrong in challenging the merits determination that that claim element is not there?

[00:27:55] Speaker 01:
Cosm is wrong on two different grounds.

[00:27:57] Speaker 01:
The first of one is its claim construction.

[00:28:00] Speaker 01:
Its proposed claim construction is not correct.

[00:28:03] Speaker 01:
It reads the and as an or.

[00:28:06] Speaker 01:
The claim limitation requires two... Okay, right.

[00:28:09] Speaker 05:
I'm going to, as I say these days, spot you that.

[00:28:13] Speaker 05:
And getting down to within that, they still have to have an identified control device, I think, that is aligned with

[00:28:23] Speaker 05:
And the determination, the sole thing I'm concerned about right now is whether the Chief ALJ was reversibly wrong in saying that the accused control device may move relays inside the thermostat are not controlled devices.

[00:28:46] Speaker 05:
That's the only thing I'm interested in right now.

[00:28:48] Speaker 01:
The chief ALJ was correct.

[00:28:50] Speaker 01:
He relied on the evidence, the testimony of the expert.

[00:28:53] Speaker 01:
The expert's name was Amundsen.

[00:28:56] Speaker 01:
And the testimony said that for a demand response, the residual does not...

[00:29:04] Speaker 01:
So when the load management server sends the power message, it does not identify any controllable devices.

[00:29:12] Speaker 01:
It does not identify a relay, which is what they claim to be the controllable device.

[00:29:19] Speaker 01:
And the testimony is, if you want the appendix number from the ALJ, it's at APPS 68 to 69.

[00:29:26] Speaker 01:
And he cites the testimony of Dr. Amundsen, which is APPX,

[00:29:31] Speaker 01:
2009 to 2010.

[00:29:34] Speaker 01:
And that testimony is what the judge relied on, which is entitled to substantial evidence review.

[00:29:41] Speaker 01:
The ALG also found that the relays cannot be their controllable device, because these relays don't have any identifiers.

[00:29:51] Speaker 01:
The relays don't have any IP addresses.

[00:29:53] Speaker 01:
They actually concede to that in their brief on page 49 of the blue brief.

[00:29:58] Speaker 01:
They concede that,

[00:29:59] Speaker 01:
the relays don't have any name or address.

[00:30:02] Speaker 01:
So there's no identification of a controllable device.

[00:30:05] Speaker 01:
I don't think that's in dispute.

[00:30:07] Speaker 01:
What they seem to claim that it's somehow implicit, that somehow it doesn't have to be identified, that a broadcast is sufficient.

[00:30:16] Speaker 01:
But within this claim, a broad broadcast is not sufficient.

[00:30:19] Speaker 01:
The claim requires an identification of a specific controllable device so you're able to determine how much power is saved per the device.

[00:30:29] Speaker 01:
So if I may briefly touch on the measurement and verification limit, I know my time is up.

[00:30:36] Speaker 04:
I think you're going to have to rely on your token.

[00:30:38] Speaker 01:
Thank you.

[00:30:38] Speaker 01:
I will.

[00:30:39] Speaker 01:
Thank you.

[00:30:39] Speaker 01:
Thank you.

[00:30:52] Speaker 02:
And may it please the court, and Judge Cheney just stole off.

[00:30:55] Speaker 02:
Speak a little bit loudly, even though we're close to each other, for the benefit of Judge Toronto.

[00:31:00] Speaker 05:
Oh, for what it's worth, the microphone problem got solved.

[00:31:04] Speaker 05:
So you can speak any way you'd like.

[00:31:07] Speaker 02:
Excellent.

[00:31:08] Speaker 02:
I may still speak loudly out of nature.

[00:31:12] Speaker 02:
So I will turn to the first claim structure that Judge Chen, you were just asking about.

[00:31:19] Speaker 02:
But first, I want to pick up where Judge Toronto, where you left off, asking about the controllable device, which Cosimo alleges is the relay.

[00:31:28] Speaker 02:
So the power control message must, that message must identify the controllable device.

[00:31:35] Speaker 02:
Here, there's no dispute that the message sent to the residual thermostats does not identify any relay, any alleged controllable device.

[00:31:44] Speaker 02:
So that's not in dispute.

[00:31:45] Speaker 02:
And what Cosm says is, well, OK, it doesn't identify the relay, but the message is sent to a thermostat.

[00:31:53] Speaker 02:
So implicitly, Cosm says, it's identifying a relay.

[00:31:58] Speaker 02:
That's wrong.

[00:31:59] Speaker 02:
The chief ALJ found and the commission affirmed that

[00:32:04] Speaker 02:
The messages do not identify any relays on the thermostat.

[00:32:08] Speaker 02:
That's supported by substantial evidence.

[00:32:11] Speaker 02:
That alone resolves the whole case, because Cosmester win all their disputes.

[00:32:17] Speaker 02:
But there's more on the same issue.

[00:32:19] Speaker 02:
As my colleague for the commission explained, the commission found that the relay does not qualify as a controllable device.

[00:32:28] Speaker 02:
The claim separately requires that the controllable device disable the electric power flow.

[00:32:34] Speaker 02:
to the HVAC in this case.

[00:32:36] Speaker 02:
That never happens.

[00:32:36] Speaker 02:
A relay within a thermostat has no knowledge of anything going on at the HVAC.

[00:32:43] Speaker 02:
The commission found that unlike a smart breaker, a relay does not sit in the direct line of power to a given appliance to interrupt the flow of current to that appliance.

[00:32:54] Speaker 02:
A relay has no ability to cut the

[00:32:58] Speaker 02:
to disable the electric power flow to an HVAC.

[00:33:01] Speaker 02:
And there are more beyond that.

[00:33:03] Speaker 02:
But any one of those reasons would kill Cosm's appeal because it impacts the power control message requirements, turning Judge Chen to the other claim term that they've disputed that my colleague at Cosm argued.

[00:33:21] Speaker 02:
That's the one that requires the measurement and verification data.

[00:33:26] Speaker 02:
an argument this morning and in their briefs, COSM is very keen to only focus on that four-word phrase of measurement and verification data, forgetting the rest of the phrase, which is that the data must correspond to the reduction in consumed power.

[00:33:41] Speaker 02:
And Judge Chen, to your questions at the beginning of the argument today, this patent is all about calculating precisely how much load is diminished on an HVAC in this case, instead of merely providing an estimate.

[00:33:59] Speaker 02:
Residios accused thermostats don't do any of this.

[00:34:04] Speaker 02:
And to be clear, only the thermostats are at issue.

[00:34:07] Speaker 02:
This is an ITC case.

[00:34:09] Speaker 02:
Only the thermostats are imported.

[00:34:12] Speaker 02:
There's a stipulation that the parties entered that the ALJ cited in listing the accused products.

[00:34:18] Speaker 02:
So all the things that happen at that backend server are not an accused product.

[00:34:22] Speaker 02:
They cannot be in front of the commission and point to those things.

[00:34:26] Speaker 02:
COSM tries to muddy the waters by mixing it all together, but they cannot do so reasonably.

[00:34:32] Speaker 04:
I guess they're trying to say the runtime data is enough, because that is at least some of the data that is needed in order to calculate the reduction in power.

[00:34:44] Speaker 02:
They do say that.

[00:34:45] Speaker 02:
The problem with that argument is for Residio's thermostats, they do not calculate runtime data.

[00:34:52] Speaker 02:
The runtime data calculations only occur at the back end server called connected savings.

[00:34:58] Speaker 03:
What do you think you want, whether claim construction-wise runtime data is sufficient?

[00:35:01] Speaker 03:
In your view, it's not sufficient, because it doesn't correspond to reduction in power.

[00:35:06] Speaker 02:
Indeed, that is correct.

[00:35:07] Speaker 02:
That is our position.

[00:35:08] Speaker 02:
But even if, for the sake of argument, runtime does count, the relays in the thermostats, I should just say the thermostats, never calculate runtime data.

[00:35:18] Speaker 02:
It's admitted, and there was evidence showing, that that only happens at the back end server, which again is not accused, because we're here in the ITC, and the back end server is resident in the United States.

[00:35:29] Speaker 02:
It's not imported.

[00:35:31] Speaker 02:
The only thing the thermostats generate, if you even want to call it that, is relay status information.

[00:35:41] Speaker 02:
Whether a relay has been opened or closed, the thermostat will send that relay status information to the backend server.

[00:35:50] Speaker 02:
The backend server can then use that information and it can infer, the ALJ found,

[00:35:59] Speaker 02:
Whether the device may have been on or off, it doesn't actually know.

[00:36:04] Speaker 02:
Because if, for example, the HVAC was already off, then flipping the relay to turn it off doesn't save any power.

[00:36:12] Speaker 02:
The thermostats that are accused have no knowledge of any of this.

[00:36:15] Speaker 02:
The whole patent, to circle back, the whole patent is about monitoring and calculating precisely in kilowatts on a per customer basis, on a per device basis, exactly how much power is being saved.

[00:36:27] Speaker 02:
instead of merely providing an estimate.

[00:36:30] Speaker 03:
I will and the first thing I'll say about that is to judge Toronto's question earlier.

[00:36:44] Speaker 02:
is if this court does affirm, as I think it should, the unpatentability finding of claim one in the IPR, which is the third argued case this morning, the Ecobee IPR, that would moot this appeal here on the ITC.

[00:37:00] Speaker 02:
And the court could avoid the question entirely.

[00:37:02] Speaker 04:
Does Residio think Cosm owns the 268 patent?

[00:37:06] Speaker 02:
Residio thinks Residio and ITRON co-own the patent.

[00:37:10] Speaker 02:
I'd be happy to walk through the history.

[00:37:13] Speaker 02:
It's what the ALJ found basically the short of it.

[00:37:17] Speaker 04:
Right, but the 2007 assignment said Mr. Forbes was assigning away a particular application in any divisionals, reissues, continuations, and extensions thereof.

[00:37:31] Speaker 04:
And the 268 patent issued off of a continuation in part

[00:37:36] Speaker 04:
So it seems to be, continuations in part seem to be missing from the 2007 assignment.

[00:37:43] Speaker 02:
A continuation in part, and we cited in our brief a case where using similar language, this court encompassed continuations in part.

[00:37:51] Speaker 04:
But a continuation in part is a- I'm just trying to understand your view.

[00:37:55] Speaker 04:
Do you think a continuation and a continuation in part are the same thing?

[00:38:00] Speaker 02:
In the patent law context, no.

[00:38:02] Speaker 02:
Of course, the CIP, a continuation in part, will include new matter.

[00:38:07] Speaker 02:
But in the licensing context and assignment,

[00:38:10] Speaker 02:
A continuation, in part, is a flavor of continuation.

[00:38:13] Speaker 02:
And it's certainly an extension, which is also included.

[00:38:16] Speaker 03:
Why, when you look at the language of the agreement as a patent lawyer, why wouldn't you look at those terms from the perspective of the patent lawyer?

[00:38:26] Speaker 03:
I mean, they're talking about patents.

[00:38:28] Speaker 03:
So why would there be a different understanding?

[00:38:31] Speaker 02:
I think if we had a time machine, we'd go back and make what is, I think, understood here, make it more explicit.

[00:38:36] Speaker 02:
But this court has held that that's not

[00:38:41] Speaker 03:
So my question was, you're a patent lawyer.

[00:38:48] Speaker 03:
So why wouldn't you understand a continuation and a continuation in part to be different things?

[00:38:56] Speaker 03:
An agreement was written that does not have the language continuation in part in it.

[00:39:01] Speaker 03:
It has every other flavor in it but that one.

[00:39:06] Speaker 02:
I would also say an extension is not a patent law term of art and you can tell by this overall phrase of all patents that may be granted therefore and... I do think that is a type of extension just as a continuation in part as a type of continuation and this court has held, I don't have the case in front of me, it's in our brief, that

[00:39:34] Speaker 02:
The language including continuations that does not mention CIPs has included a CIP, a continuation in part, before.

[00:39:43] Speaker 02:
And this language is the same.

[00:39:45] Speaker 04:
I'm sorry?

[00:39:46] Speaker 04:
Regents of the University of New Mexico versus Knight?

[00:39:48] Speaker 04:
It is that case.

[00:39:49] Speaker 04:
OK.

[00:39:49] Speaker 04:
That case dealt with multiple different documents that it said, when all read together, broadly cover the CIP in question.

[00:39:57] Speaker 04:
It didn't just say, well, the assignment said the magic word continuation.

[00:40:02] Speaker 04:
we, the Federal Circuit, are going to deem continuation to encompass not only continuations, but this other type of application called continuations in part.

[00:40:13] Speaker 02:
Yes, correct.

[00:40:14] Speaker 02:
That's the closest case that we found that could cover this sort of scenario.

[00:40:19] Speaker 04:
You're out of time.

[00:40:22] Speaker 04:
Let's hear from Mr. Weinberg.

[00:40:28] Speaker 04:
Give Mr. Weinberg three minutes.

[00:40:32] Speaker 00:
Thank you, Your Honor.

[00:40:32] Speaker 00:
We've heard a few different issues.

[00:40:35] Speaker 00:
I haven't addressed the ownership issue as of yet.

[00:40:37] Speaker 00:
If you'd like me to address that, I could.

[00:40:41] Speaker 00:
That's correct.

[00:40:42] Speaker 00:
The 2007 assignment, there's two reasons why it didn't assign away that CIP.

[00:40:47] Speaker 00:
Number one, as you've identified, it does not include CIPs.

[00:40:51] Speaker 00:
And we rely on a case van Voorhees, which uses substantially identical language as the 2007 assignment.

[00:41:00] Speaker 00:
And what the court held is that in that case, it only assigned away one generation of continuations.

[00:41:08] Speaker 00:
So that was all.

[00:41:09] Speaker 04:
That opinion's a little ambiguous about what it meant in reference to second generation patents.

[00:41:15] Speaker 04:
How so?

[00:41:17] Speaker 04:
I could explain it to you now, or I could explain it to you in three months?

[00:41:24] Speaker 00:
I did look up what second generation was.

[00:41:27] Speaker 00:
I looked up the patents themselves and whether there were continuations.

[00:41:29] Speaker 00:
And the second generation patents were continuations of the first generation patents.

[00:41:33] Speaker 00:
So I'm happy to provide that to the court in a supplemental filing.

[00:41:40] Speaker 00:
If you so wish.

[00:41:41] Speaker 00:
And that also, Van Voorhees also included the term extensions in it.

[00:41:45] Speaker 00:
That was the terminology in that contract was inventions, all patents, or reissues, or extensions in any divisional continuation, continuation in part or substitute, which is the same as in the 2007 assignment, which is said invention, all patents, all divisions, reissues, continuations, and extensions thereof.

[00:42:03] Speaker 00:
Doesn't include CIPs.

[00:42:05] Speaker 00:
So I think that's the majority of their argument, the ownership.

[00:42:08] Speaker 00:
And I think that if we interpret the contract properly there, the rest of the dominoes would fall.

[00:42:17] Speaker 00:
On the power control message, which Judge Toronto was interested in, there's a few comments about that.

[00:42:25] Speaker 00:
I just want to emphasize again, this is another issue in which the ALJ ruled the exact opposite in his domestic industry analysis.

[00:42:33] Speaker 00:
At appendix 145, he says,

[00:42:35] Speaker 00:
the controllable device in the domestic industry products may be the relay that is found within the load control switch.

[00:42:42] Speaker 00:
That wasn't adopted by this commission, but it does show that it's one of the issues that the ALJ came out the other way on.

[00:42:50] Speaker 00:
There's a lot of arguments that were created in the response briefs about how to justify that conclusion.

[00:42:57] Speaker 00:
We don't have time for all of them, but the major one was about whether or not these relays have to be IP addressable

[00:43:03] Speaker 00:
There's nothing in the specification or even a theory of disclaimer or disavowal or what in the specification would have you read such a requirement into the controllable devices.

[00:43:14] Speaker 00:
The ITC says that the specification touts the IP addresses, but the citations they provide don't show any disclaimer or disavowal.

[00:43:22] Speaker 00:
In particular, the closest they come is column 13, line 60, where it says that a controllable device can have an IP address.

[00:43:29] Speaker 00:
The other two citations deal with IP addresses of the client device.

[00:43:34] Speaker 04:
out of time so okay any other questions thank you very much