[00:00:00] Speaker 03: Okay, our next appeal is docker number 23-2410, Cosm Enterprises Incorporated versus Unified Patents, LLC. [00:00:35] Speaker 03: Thank you. [00:00:38] Speaker 03: Thank you. [00:00:49] Speaker 00: Please begin. [00:00:50] Speaker 00: Thank you, Your Honor. [00:00:52] Speaker 00: Please reserve three minutes for rebuttal, Your Honor. [00:00:56] Speaker 00: May it please the Court, Your Honor, as the final written decision from the PTAB on the 592 patent incorrectly construed the term [00:01:04] Speaker 00: of what we call element 1.4, such that it eliminated the requirement for confirmation, confirmation of a value by measurement and verification. [00:01:14] Speaker 00: Before I get into the claim construction problem here, I wonder if Your Honors would like to speak about standing, because the 592 patent is sort of unfortunately sandwiched between two cases dealing with the 268 patent, which has this ITC cloud lingering over it. [00:01:33] Speaker 03: Are you saying this patent is also implicated? [00:01:36] Speaker 00: Well, Your Honor, the 592 was dropped from the ITC case, as I understand it, prior to the ALJ reaching a decision on ownership. [00:01:47] Speaker 00: Whether it is also part of that agreement, to be honest with you, Your Honor, we don't have a record in this case. [00:01:53] Speaker 00: Unified has never raised an ownership issue. [00:01:55] Speaker 00: We've maintained that we do own it. [00:01:57] Speaker 00: Unlike the 268 patent case, which we're going to hear next, the 592 is in a little bit of an odd duck here. [00:02:05] Speaker 00: We would submit that Article III standing is satisfied, frankly. [00:02:10] Speaker 02: Has ownership of the 592 patent been challenged at all? [00:02:13] Speaker 00: No, Your Honor. [00:02:15] Speaker 00: OK. [00:02:15] Speaker 00: No. [00:02:15] Speaker 02: Not in this proceeding, nor in the ITC. [00:02:18] Speaker 02: And you don't know whether it's part of an agreement or not. [00:02:21] Speaker 00: I would agree with the latter part, Your Honor. [00:02:23] Speaker 00: So there was a challenge to ownership of the cause of patents. [00:02:27] Speaker 00: It was during the time that the 592 was involved with the ITC, but it was dropped from that ITC. [00:02:32] Speaker 00: So I would be pressed to say, is the 592 part of that same agreement? [00:02:38] Speaker 00: I would think it probably would be, to be honest. [00:02:41] Speaker 04: So the way that I guess I've been thinking about this in all three cases is to go back to what we have said in trigenics following five other circuits [00:02:57] Speaker 04: We're basically making a kind of summary judgment type of standard, something like substantial probability or something. [00:03:08] Speaker 04: What we have is an assertion by the petitioner that, in this case, as in fact as the next case, that Fawson is the [00:03:27] Speaker 04: patent owner, I guess, on the records of the PTO as the assignee, and no contrary evidence. [00:03:37] Speaker 04: So that easily meets the summary judgment standard for Article III sin in the absence of anything else. [00:03:47] Speaker 04: Don't. [00:03:48] Speaker 04: Isn't that right? [00:03:49] Speaker 00: So, Your Honor, I think for the 592 patent, I think you're 100% right. [00:03:53] Speaker 00: And Judge Sol, as you said before about continuation is in part, we would agree that once again we do have a continuation in part in the 592 patent relative to the earlier filings. [00:04:04] Speaker 00: Judge Toronto, I want to hesitate. [00:04:07] Speaker 04: I don't want to get into the argument for the next case. [00:04:11] Speaker 04: We're going to get to that in the next case about whether that is in fact sufficient. [00:04:17] Speaker 04: But if the standard is the summary judgment of the standard, that is enough to [00:04:22] Speaker 04: the fact that you are named in the PTO records as the assignee, in both cases, you assert that you are, in fact, the patent owner. [00:04:39] Speaker 04: And there's no contrary evidence in these cases. [00:04:42] Speaker 04: How could that not pass the summary judgment test? [00:04:45] Speaker 00: I would agree with you, Your Honor. [00:04:46] Speaker 00: I would agree with you on it, especially for the 512, absolutely. [00:04:51] Speaker 00: Your Honor, I'll move on to the claim instruction issue. [00:04:53] Speaker 00: As I mentioned a few moments ago, the board interpreted element 1.4, which requires a power-consuming device, to both have an actual value of power reduced that is based on revenue-grade metrology and that is confirmed by measurement and verification. [00:05:12] Speaker 00: Now, the board, in effect, looked for no confirmation of values. [00:05:16] Speaker 00: They did look for confirmation of instructions, confirmation that instructions had been set [00:05:20] Speaker 00: sent to devices, presumably the devices had reacted to those instructions. [00:05:26] Speaker 00: But there is not a confirmation of a value. [00:05:28] Speaker 00: Now we can go back to [00:05:30] Speaker 00: Petition pages 118 and 120 of the appendix and one that's dealing with the others reference and 1.4 and in their unified focus heavily on figure 1 C of elders which takes all of its measurements and values a demand-response event prior to the event occurring and Then they also looked at some of the other language about the fact that there is a measurement and verification process [00:06:00] Speaker 02: just based on the disclosure in your patent specification. [00:06:05] Speaker 02: How does it teach this limitation? [00:06:09] Speaker 00: So Your Honor, verbatim, column 9 does talk about the power supply value, as Judge Chen alluded to before. [00:06:16] Speaker 00: In column 9, and this is beginning around line 27, there is a statement, thus the PSV, which is the power supply value, [00:06:25] Speaker 00: Provides an actual value that is confirmed by measurement and or verification thereby providing for a curtailment value as a requirement providing for providing supply to the power grid so we're getting in So [00:06:50] Speaker 00: So the measurement and verification, Your Honor, this is a process and I think... I'm just trying to understand. [00:06:55] Speaker 02: I read that language that you're talking about. [00:06:57] Speaker 02: I want you to talk to me plainly about what it means. [00:07:00] Speaker 00: Absolutely. [00:07:01] Speaker 00: So Your Honor, in the energy industry, there's this idea, do we want to build more plants or do we want to make use of available supply from other plants? [00:07:08] Speaker 02: Well, what I'm trying to say is... [00:07:10] Speaker 02: It says the value of power reduced based on revenue grade metrology. [00:07:14] Speaker 02: What refers to that in what you just referred to in the spec? [00:07:17] Speaker 02: What corresponds to it? [00:07:18] Speaker 02: And then it says, and confirmed by measurement and verification, what in the specification that you just read to me corresponds to that? [00:07:25] Speaker 00: So, Your Honor, the first part, the revenue grade metrology, I mean, there was a dispute about that in the IPR as well. [00:07:31] Speaker 00: Metrology is a science. [00:07:33] Speaker 00: And revenue grade is something that usually is referring to a meter. [00:07:36] Speaker 00: But the idea is, from our perspective, revenue grade metrology, it isn't here in this column 9. [00:07:41] Speaker 00: And we really have to tie it in, I think, from the bottom of column 19, where we start to get into the types of data that the utilities and these systems are gathering in order to value and to predict. [00:07:53] Speaker 03: Metrology is not used in this spec. [00:07:56] Speaker 03: Is that right? [00:07:56] Speaker 00: You're right, Your Honor, except for the claim. [00:07:58] Speaker 00: That's 100% correct. [00:08:00] Speaker 00: OK. [00:08:02] Speaker 00: So the way, and Your Honor, I apologize, I want to make sure I answered your question. [00:08:06] Speaker 00: I think what we really have to do is take the metrology from the bottom of column 19 and the confirm by measurement verification in column 9. [00:08:14] Speaker 00: And I think those concepts are combined in element 1.4 to really create a cohesive idea. [00:08:20] Speaker 00: Now, if we get into figure 12, we do have the predicted curves, right? [00:08:25] Speaker 00: And I think the prediction is really this idea of revenue-grade metrology. [00:08:28] Speaker 00: We're going to compute what we think we can get. [00:08:30] Speaker 03: Can you just get away from the claim language and just translate it in plain English? [00:08:37] Speaker 03: I hope so, Your Honor. [00:08:39] Speaker 03: Using these words from the claims, what do you think it's actually requiring? [00:08:45] Speaker 00: Your honor, what I think it's requiring is a prediction of how much you're going to save. [00:08:48] Speaker 00: Send the data that you actually collect, probably during the event, maybe before, but you're going to collect that data. [00:08:54] Speaker 00: Send it to an algorithm. [00:08:56] Speaker 00: Maybe it's a server, maybe it's a meter. [00:08:57] Speaker 00: I think there is some disclosure in 592 that a meter can run this calculation. [00:09:01] Speaker 00: Say, did you get what you expected? [00:09:04] Speaker 04: I'm sorry, what data? [00:09:06] Speaker 00: I'm sorry, Your Honor. [00:09:07] Speaker 00: So there's data that's being disclosed, especially in Column 19. [00:09:12] Speaker 04: Be concrete, please. [00:09:13] Speaker 00: Certainly. [00:09:14] Speaker 00: So I think we can talk about timestamps. [00:09:18] Speaker 00: I think it's Block 816 of Figure 7 timestamp data during this period. [00:09:24] Speaker 04: I think I, like my colleagues, am just trying to understand this in very simple, concrete terms. [00:09:31] Speaker 04: You can't, as ever, [00:09:33] Speaker 04: in some sense, measure an actual saving. [00:09:36] Speaker 04: Because any kind of notion of actual savings is a comparison to a counterfactual, something that did not happen. [00:09:47] Speaker 04: So you need to have some figures taken from somewhere, presumably historical experience or something, about what you would expect to happen if you don't do something, and then compare that [00:10:01] Speaker 04: to what has actually happened after you did something like turn the device off. [00:10:07] Speaker 04: So, translate that very simple picture into what you think the claim requires. [00:10:14] Speaker 04: But you have to, when you turn the device off, you have to what, measure that it's not drawing any power? [00:10:24] Speaker 04: Why would you have to measure that? [00:10:26] Speaker 04: I mean, if you've actually turned it off, you know it's not drawing it. [00:10:29] Speaker 04: and then you need some historical or other information about what it would have drawn had it not been turned off. [00:10:38] Speaker 00: Judge, you're 100% correct. [00:10:40] Speaker 00: So duty cycle, for example, if you were to say that an air conditioner from 6 to 7 p.m. [00:10:45] Speaker 00: runs 50% of the time and you turn it off for the entire hour, you're not saving a full hour of use. [00:10:51] Speaker 00: You're saving 50%, half of the time, right? [00:10:54] Speaker 00: So the duty cycle, for example, for that system, given [00:10:57] Speaker 00: the ambient temperatures, the thermostat setting. [00:11:00] Speaker 00: There are a lot of things that, as Your Honor correctly said, you're trying to compare against a counterfactual. [00:11:05] Speaker 00: There's a lot of data that can say, well, how much would that AC unit have really been running in that hour that you said it's going to stay off? [00:11:13] Speaker 00: And so all of that data, I believe, can go into this algorithm. [00:11:17] Speaker 00: It can go into this computation of what would we have saved. [00:11:20] Speaker 00: And it's important because, [00:11:24] Speaker 00: Again, as we're talking about energy companies, utilities, do we want to buy a new plant? [00:11:29] Speaker 00: Do we want to build a new plant? [00:11:30] Speaker 00: Do we want to say the plant next door in the next county over has 100 megawatt hours available from six to seven? [00:11:39] Speaker 04: So sticking with that very simple-minded picture of what's going on, what do you think the claim requires when it says confirmed values using measurement and verification? [00:11:52] Speaker 00: So in that part, Your Honor, the confirmation, which is what we're focusing on for the claim term, we think that there is a prediction going on. [00:12:01] Speaker 00: That's the revenue grade metrology. [00:12:03] Speaker 00: And the confirmed by measurement verification is saying, let's take all the data that actually occurred. [00:12:08] Speaker 00: Maybe we thought it was going to be a very hot day. [00:12:09] Speaker 00: It was a cold day instead. [00:12:11] Speaker 00: You crunch the numbers at the server, at the algorithm. [00:12:15] Speaker 00: Again, there is a disclosure of a meter being able to crunch this data. [00:12:19] Speaker 00: And you say, does A match B? [00:12:22] Speaker 00: Now this came up during deposition of [00:12:24] Speaker 00: Unified's expert, actually upon questioning from Unified's own counsel, and he said, confirmation is about finding out whether you got what you asked for. [00:12:34] Speaker 00: And we 100% agree with that. [00:12:37] Speaker 00: It's about finding out whether you got what you asked for. [00:12:41] Speaker 03: Now, doesn't Ehlers do the measurement after the control event and determine the amount of power that was actually consumed? [00:12:51] Speaker 03: So, Your Honor, then also, [00:12:54] Speaker 03: had already done measurement or measurements before the control event and then looks at the difference between the two. [00:13:00] Speaker 00: So your honor, I think what you're referring to which is this whole house meter theory. [00:13:05] Speaker 03: Yes, but it's also the HVAC example that the board recounted as part of the petitioner's argument that the board then said it agreed with. [00:13:15] Speaker 00: So again, if we go back to the petition, this is not something that was developed in the petition. [00:13:21] Speaker 00: This was something the HVAC argument, as developed more, was really, I think, later on, maybe in the reply. [00:13:27] Speaker 00: In the petition, they were focusing on Ehlers figure 1C, which purely takes a measurement before the event. [00:13:33] Speaker 00: It doesn't do any comparison. [00:13:35] Speaker 00: there is a disclosure again and I think it's paragraph page 119, 120 of the appendix where they do look at this the phrase again I concede Ellers does say measured and verified but Ellers doesn't talk about comparing that figure 1c pre-event measurement with what you get afterwards there's no comparison there's no confirmation that you got what you asked for but the board [00:13:59] Speaker 03: obviously read it differently. [00:14:02] Speaker 03: Figure 1C, when it talked about you have to calculate an actual power savings at the end of figure 1C, right, in order to give the customer his or her rebate. [00:14:15] Speaker 00: Well, they do say actual, and Ehlers is actual. [00:14:18] Speaker 00: And we said in figure 1C, Ehlers is actual, but it's talking about a pre-event measurement. [00:14:23] Speaker 03: Then even there is a passage in Ehlers that talks about actual parentheses [00:14:28] Speaker 03: measured and verified, close parentheses. [00:14:32] Speaker 03: I guess it feels like Ehlers is echoing what's going on in this claim in terms of measured and verified and doing measurements both before and after. [00:14:45] Speaker 00: so i i i would disagree at least in the parts that the petitioner brought to the border on her but i think it when we get into this whole house meter theory which the board came up with on their own this is not something that unified presented they were leaning into the load control node one point ten c which is a device pacific no they said let's make that a revenue-grade meter the board came in and said actually you know what paragraph one thirty six here's a whole house me you can take a measurement of the whole house before the event you can take a measurement of the whole house after events and compute [00:15:15] Speaker 00: the savings. [00:15:17] Speaker 00: But even that is not confirming. [00:15:19] Speaker 00: I mean, Ehlers never ties those paragraph 136 to 142 examples, which sort of runs you through a demand response effect. [00:15:27] Speaker 03: Never ties that into this pre... Just to create a hypothetical, what extra sentence would Ehlers need to say in your view that would match what you believe confirming requires in the claim? [00:15:42] Speaker 00: I think it's something as simple, Your Honor, as you have to make sure you got what you asked for. [00:15:47] Speaker 00: Predictions are not enough. [00:15:48] Speaker 03: I need a little bit more. [00:15:51] Speaker 03: I've already gone through what I think is relevant content in Ehlers that matches up with the claim. [00:15:58] Speaker 03: You don't think it's enough. [00:15:59] Speaker 03: You think Ehlers needed to say something more on top of what it already says. [00:16:04] Speaker 03: What is that sentence that would, in your view, finally satisfy the confirming? [00:16:10] Speaker 03: aspect. [00:16:11] Speaker 00: It's really a big picture concept, Your Honor, which it is. [00:16:13] Speaker 03: I mean, it already talks about measurement and verification. [00:16:15] Speaker 03: True. [00:16:16] Speaker 03: It already talks about doing measurements both before and after and taking account the difference between the two. [00:16:23] Speaker 03: I realize you're talking, you're thinking it was impermissible to talk about the whole house example, but it also did that same difference analysis with respect to the HVAC example, which was something the petitioner raised. [00:16:37] Speaker 03: So what I'm telling you right now is it feels like there's substantial evidence here. [00:16:42] Speaker 03: What more, in your view, did Ehlers need to say than what it already said? [00:16:48] Speaker 03: Because I don't understand what the gap is in your mind that needed to be filled by Ehlers that was not filled. [00:16:57] Speaker 00: Your Honor, it's tying what you asked for and what you got. [00:17:03] Speaker 00: From 1.4, I think those two have to be [00:17:06] Speaker 00: looked at together. [00:17:07] Speaker 00: Did you get what you asked for? [00:17:08] Speaker 00: Because you can predict what the value of this was, and you can compute it afterwards. [00:17:13] Speaker 00: But those are two pieces of the puzzle. [00:17:16] Speaker 00: And what I think the 592 brings to the table is not only are we going to predict, but we're going to compute afterwards. [00:17:22] Speaker 00: We're going to put it together. [00:17:22] Speaker 00: Now we've got a better data picture. [00:17:24] Speaker 00: And now we can refine maybe even better. [00:17:27] Speaker 00: So I know I'm way out of time. [00:17:28] Speaker 00: Thank you. [00:17:29] Speaker 03: We'll give you a little bit of a rebuttal. [00:17:31] Speaker 03: Thank you. [00:17:53] Speaker 01: Good morning. [00:17:54] Speaker 01: May it please the court. [00:17:55] Speaker 01: I'm Laura Vu on behalf of Unified Patents. [00:17:58] Speaker 01: Before I turn to claim construction, I'd like to reframe the issue in this case. [00:18:03] Speaker 01: The board found that the prior art teaches. [00:18:05] Speaker 01: Would you mind speaking up just a little bit? [00:18:07] Speaker 01: Yes. [00:18:08] Speaker 01: Thank you. [00:18:08] Speaker 01: Yes, Your Honor. [00:18:09] Speaker 01: The board found that the prior art teaches an actual value of power reduced that is confirmed by measurement and verification in both the Ehlers and the Chen grounds. [00:18:19] Speaker 01: And that finding is supported by substantial evidence. [00:18:23] Speaker 01: Now, Cosm argues that there is an implicit claim construction issue in this case, but there's not under eco factor, which affects the standard of review. [00:18:31] Speaker 01: And even if there's a claim construction issue, their construction is wrong. [00:18:37] Speaker 01: So starting with the, OK, maybe it would help if I would put this claim into context with the board's construction. [00:18:45] Speaker 01: So the entire limitation says you have an actual value of power reduced [00:18:51] Speaker 01: that is based on revenue grade metrology and confirmed by measurement and verification. [00:18:56] Speaker 01: The board construed the term based on revenue grade metrology, and that construction did not require measurement. [00:19:04] Speaker 01: It just required using a meter with sufficient accuracy for billing. [00:19:10] Speaker 01: And COSM does not challenge that aspect of the board's construction. [00:19:15] Speaker 01: So the only issue in this case is the construction of confirmed by measurement and verification and what that term means. [00:19:23] Speaker 01: The board's decision did not implicitly construe that term because the board was simply applying the claims to the prior art. [00:19:33] Speaker 01: EcoFactor tells us the test for implicit claim construction and that test says to look at the board's analysis and determine whether the board's analysis is determining the scope or boundaries of the claim [00:19:45] Speaker 01: or if it's simply applying the claims to the prior ARC. [00:19:48] Speaker 01: And that's what the board did here. [00:19:50] Speaker 01: It looked at the claim language confirmed by measurement and verification. [00:19:55] Speaker 01: It looked to similar language in ELRs, the actual measured and verified contribution. [00:20:02] Speaker 01: And it found that the ELRs reference teaches that limitation. [00:20:09] Speaker 02: Turning to their implicit word point two for teaching revenue grade metrology, you know, value of power reduced based on revenue grade metrology. [00:20:20] Speaker 01: So again, that term means using a meter. [00:20:24] Speaker 01: Yes. [00:20:24] Speaker 01: What in the others reference, for example, at the board relied on, I believe it was sorry, the load control device unit one point 10 C. [00:20:35] Speaker 01: Rely on that for using a meter and it also relied on the rose reference which teaches a revenue grade meter So those references are the meter on the and then provided confirmation by other information for that limitation the board relied on Ella's teaching of an actual measured and verified contribution of the power savings and [00:21:06] Speaker 01: Sorry. [00:21:07] Speaker 01: It also relied on the actual value of power reduced that was determined by measurement. [00:21:13] Speaker 01: And those are at the board's opinion at appendix 21 through 24 and appendix 27. [00:21:20] Speaker 03: So would you say that just getting the measurement from the meter is enough to satisfy this limitation? [00:21:30] Speaker 03: Or does something more need to be done? [00:21:33] Speaker 01: Yes. [00:21:34] Speaker 01: The confirmed by measurement and verification limitation, you only need to get the measurement and calculate the actual value of power reduced. [00:21:42] Speaker 01: There's no requirement in the claim for determining an initial value or a predicted value. [00:21:49] Speaker 01: And there is no requirement of comparing. [00:21:51] Speaker 01: That language isn't in the claims. [00:21:53] Speaker 01: And Judge Stoll, as you observed, there's nothing in the specification that would support that construction. [00:21:59] Speaker 03: What about at 827, where the board says, towards the top, starting at line three, we need not determine how measurement relates to metrology to the extent that metrology is limited to estimates and projections based on information stored in a database. [00:22:24] Speaker 03: Ehlers discloses such features. [00:22:27] Speaker 03: Paragraph 113. [00:22:31] Speaker 03: So are you looking at 827? [00:22:34] Speaker 01: Yes. [00:22:35] Speaker 03: I'm trying to understand how this observation or this finding fits in with the board's other findings. [00:22:45] Speaker 03: Is this an alternative finding? [00:22:47] Speaker 01: To be honest, Your Honor, I'm not sure exactly what this statement says. [00:22:54] Speaker 01: I think it just means that [00:22:59] Speaker 01: Metrology is not limited to determining measurements. [00:23:06] Speaker 01: COSM, I think, was trying to constrain their characterization of unified claim construction arguments as being only related to measurements. [00:23:18] Speaker 01: But unified claim construction arguments were broader. [00:23:21] Speaker 01: And their position was that revenue grade metrology includes using meters. [00:23:28] Speaker 01: to take those measurements. [00:23:33] Speaker 01: So it's not doing the measurement itself. [00:23:35] Speaker 03: What I'm trying to understand is, if I understand Cosm's argument correctly, they believe this claim limitation requires some usage of stored historical data about power consumption of particular device or devices. [00:23:58] Speaker 03: and then use that in comparison with what actually got consumed by a device during a control event. [00:24:10] Speaker 03: And so therefore, the board is trying to address that part. [00:24:13] Speaker 03: If historical usage data is required, then Ehlers has that too. [00:24:20] Speaker 01: I think COSM has suggested that Ehlers does disclose some historical data. [00:24:27] Speaker 01: There's the measurement taken before the power is shut off and before the calculation of the actual value, the actual savings. [00:24:38] Speaker 01: So in that sense, maybe Ehlers discloses this historical data and calculating some [00:24:49] Speaker 01: power savings based at least in part on some historical data. [00:24:53] Speaker 01: But Ehlers also discloses taking measurements after the power savings event and determining additional calculations to determine the power savings as well. [00:25:05] Speaker 01: And so that would satisfy the confirmation by measurement and verification aspect of the limitation. [00:25:10] Speaker 03: Does unified patents agree that COSM owns this patent? [00:25:17] Speaker 01: That issue was not briefed and unified and there's nothing in the record about ownership, but we agree that it is their burden to establish standing. [00:25:32] Speaker 01: I just want to briefly address the extrinsic evidence that they rely on. [00:25:42] Speaker 01: It's the testimony of unified expert that [00:25:46] Speaker 01: Evidence does not support their construction because it doesn't relate to the confirmed by measurement and verification limitation. [00:25:54] Speaker 01: It relates to the revenue grade metrology limitation which was at issue before the board. [00:26:02] Speaker 01: And just to briefly touch on the whole house meter theory, the court can affirm the board's decision even without relying on the whole house meter. [00:26:15] Speaker 01: Discussion, Judge Chen, as you mentioned, the board did agree with Unified's analysis and arguments, and that is at Appendix 21 through 27. [00:26:27] Speaker 01: The board also made an additional finding regarding measurement and verification at Appendix 27. [00:26:37] Speaker 01: If the court has no further questions, Unified respectfully asked the court to affirm the board's decision. [00:26:50] Speaker 03: Just curious, in the next IPR appeal we're about to hear, the record includes a document called AEIC document. [00:27:01] Speaker 03: Is that document part of this record? [00:27:02] Speaker 01: Not that I'm aware of. [00:27:05] Speaker 03: All right. [00:27:10] Speaker 03: OK. [00:27:11] Speaker 03: Thank you. [00:27:16] Speaker 00: Give Mr.. Helgi two minutes, please Thank you for entertaining a brief rebuttal your honor your honor I think appendix page 27 is a great example of where the board really didn't know what to do with the metrology term But I'm going to go back three more pages to page 24 appendix 24 and this is a [00:27:45] Speaker 00: where Unified tells the board in its reply what confirmation means. [00:27:51] Speaker 00: And unfortunately, they don't really do anything. [00:27:53] Speaker 00: They punt. [00:27:54] Speaker 00: So this is the very first sentence that the board relies on from the reply page 7. [00:27:58] Speaker 00: And it reads, petitioner points out that limitation 1.4 does not require the actual value of power reduced to be measured, and instead only requires that the actual value be confirmed by measurement. [00:28:11] Speaker 00: That's from the reply page 7. [00:28:12] Speaker 00: which is appendix page 439. [00:28:14] Speaker 00: And that's exactly what petitioners said, is you confirm by measurement. [00:28:19] Speaker 00: But that's how you determine. [00:28:20] Speaker 00: So what they've done is they've blurred this concept of confirm by measurement verification with the initial concept of determining what the power savings is in the first place. [00:28:29] Speaker 00: We see this in appendix page 157 and 158 in their petition, where they talk about the Chen reference, where they say that there is a control that goes to a power-consuming device that leads to an actual value of power reduced. [00:28:43] Speaker 00: So even in the Chen reference, there's no concept of this prediction and then measuring the actual and matching them up. [00:28:49] Speaker 00: That's what's missing from the petition. [00:28:55] Speaker 00: What they've done, when we think about Judge Chen as you talk about [00:28:58] Speaker 00: appendix page 27, the board doesn't need to determine how measurement relates to metrology. [00:29:05] Speaker 00: So they rely purely on, as they say here, estimates and projections based on information in a database for revenue grade metrology. [00:29:13] Speaker 00: The problem is what that means is that there is only one measurement that the board is looking to to satisfy both the actual value and a confirmation of the actual value. [00:29:24] Speaker 00: And we think that's simply inconsistent with the plain meaning of the term confirmed. [00:29:29] Speaker 02: Which is saying... Just to clarify, your view is because the claim says it has an actual value, that doesn't mean the claim requires determining it, right? [00:29:37] Speaker 00: Yes, Your Honor. [00:29:38] Speaker 00: Correct. [00:29:38] Speaker 00: Correct. [00:29:39] Speaker 00: We think that the abstract idea of just turning off the light and knowing you're using less energy is not what we're talking about here. [00:29:45] Speaker 00: We're saying the actual value is based on revenue-grade metrology, and that's the prediction. [00:29:50] Speaker 02: What about the point that some of this language was, in this first phrase, has an actual value of power reduced based on revenue-grade metrology, was defined [00:30:00] Speaker 02: right, and did not require an actual measurement. [00:30:04] Speaker 02: And who didn't dispute that? [00:30:07] Speaker 02: That's what I think I heard. [00:30:08] Speaker 00: I think to be clear, Your Honor, what our position was below was that metrology was, in effect, the predictive science of this all. [00:30:18] Speaker 00: But you needed to have a value. [00:30:20] Speaker 00: And I think that goes back to figure 12 of the 592 patent, where you have these charts. [00:30:26] Speaker 00: We're going to have a graph that predicts where we're supposed to be and a graph that predicts where we actually are. [00:30:32] Speaker 00: And the comparison of that is important. [00:30:34] Speaker 00: So I think my time is up, Your Honor, but thank you very much. [00:30:36] Speaker 03: Thank you very much. [00:30:37] Speaker 03: The case is submitted.