[00:00:03] Speaker 02: We have four arguments this morning, beginning with case number 241027, ecofactor against Google. [00:00:25] Speaker 00: Please. [00:00:25] Speaker 00: May it please the court? [00:00:27] Speaker 00: The appeal this morning challenges the patent trial and appeal board's determinations of invalidity in three IPRs concerning EcoFactor's patents. [00:00:37] Speaker 00: Across each of the final written decisions, the board relies entirely on the conclusory opinions from the petitioner's expert. [00:00:47] Speaker 00: And those conclusory opinions fall short of the substantial evidence needed to sustain the board's decision. [00:00:58] Speaker 00: Now, the first issue, and this is in our blue brief at 30, is going across all three of the IPRs. [00:01:06] Speaker 00: And the final written decisions in the 473, 475, and 538 IPRs should each be reversed because the board's determination that the Ehlers reference, that's at appendix 5078, teaches the predicted rates of change in temperature [00:01:27] Speaker 00: limitations, and all of three of Ecofactor's patents is not supported by substantial evidence. [00:01:34] Speaker 00: Now, to orient the court, I will note that this issue, this first issue, is virtually identical to the first issue in the next appeal, which you'll hear this morning. [00:01:44] Speaker 00: In both this and the 1367 appeal, the issue boils down to whether substantial evidence supports the board's determination [00:01:53] Speaker 00: that the Ehlers reference teaches predicted rates of change. [00:01:59] Speaker 00: And I'm going to emphasize a lot, predicted and predictions. [00:02:02] Speaker 02: And is this the one that very much focuses on one particular figure in Ehlers? [00:02:08] Speaker 00: It does, Your Honor. [00:02:09] Speaker 00: Figure 3D in Ehlers. [00:02:11] Speaker 00: And I expect we'll talk a fair amount about figure 3D. [00:02:16] Speaker 00: Now, the board starts off in its final written decision in the 473 IPR as an example. [00:02:22] Speaker 00: saying that, quote, Ehlers teaches a system that tracks and learns about thermal gain characteristics of the home. [00:02:32] Speaker 00: Now, tracking and learning is different than predicting. [00:02:37] Speaker 00: Tracking and learning, I would submit, is a correlation. [00:02:40] Speaker 00: You're determining a correlation between some data. [00:02:43] Speaker 00: Predicting is trying to predict the causation of how that data may change a future result. [00:02:49] Speaker 03: Could predicting be like tracking, learning, and then later using that information to predict? [00:03:00] Speaker 03: In other words, I think there's something like if it's 99 degrees, this is how the temperature will increase inside the home, the rate at which it will increase inside the home if a set point is set at 72. [00:03:18] Speaker 03: you know, later after that information is stored in a database, why wouldn't using that information in some way be predicting? [00:03:27] Speaker 03: Because, you know, you look at the temperature outside, you look at what the set point is, and you use that information. [00:03:32] Speaker 03: Why isn't that predicting? [00:03:33] Speaker 00: It certainly could, you could use that data to then later predict if the exact same conditions arose, this exact same outside temperature, exact same inside temperature. [00:03:43] Speaker 00: You could use that data to predict. [00:03:45] Speaker 00: But we submit that is not what the Ehlers reference discloses and not what the board relied on in finding that Ehlers teaches the prediction limitation. [00:03:57] Speaker 02: Can you remind me, is there a claim construction of the word predicted here? [00:04:05] Speaker 00: There was not. [00:04:05] Speaker 00: Neither party asked for a claim construction here. [00:04:10] Speaker 00: In describing figure 3D of Ehlers, [00:04:13] Speaker 00: Ehlers at paragraph 253, another paragraph that you'll probably hear a lot about today, and that's at appendix 5114, Ehlers describes figure 3D as data, quote, that the thermostat has recorded. [00:04:30] Speaker 00: So again, figure 3D, we submit, is a graph of recorded temperature, not predicted temperatures. [00:04:37] Speaker 00: And in fact, the board acknowledges this elsewhere in its opinion by saying, quote, [00:04:42] Speaker 00: Figure 3D shows a graph showing the indoor set point, parentheses, temperature versus time. [00:04:50] Speaker 00: And that's at appendix 15. [00:04:53] Speaker 02: This is, I guess, a variant of the question maybe Judge Stowell was asking. [00:05:01] Speaker 02: Once you have the figure 3D chart based on past history, then why isn't it evident that, for example, at 16 minutes past the set point, [00:05:19] Speaker 02: You look at the chart, and it tells you what's going to happen at 32, 48, et cetera. [00:05:26] Speaker 02: That's a prediction. [00:05:27] Speaker 02: As long as you're not at the right-hand edge of the figure, anything, you're predicting what is going to happen from a point to the left of the right-hand edge. [00:05:44] Speaker 00: could be considered a prediction. [00:05:45] Speaker 00: But I think what the graph in LR shows is recorded temperatures, which, again, to my point earlier, is a correlation between time and the indoor set point. [00:05:59] Speaker 00: And then to later predicting, you need to understand the causation between the indoor set point, the temperature, the outside temperature, characteristics of the home, whether or not the HVAC is off. [00:06:10] Speaker 00: You need more data than just [00:06:12] Speaker 00: The two data points that are graphed on a two-axis chart is shown in figure 3D. [00:06:22] Speaker 00: And to reiterate that point is that EcoFactor, of course, agrees that Ehlers teaches tracking and learning about the thermal gain characteristics of a home, but does not discuss predicting the rate of change of temperature in that home or location at a later date. [00:06:41] Speaker 00: Now, it's important to note, Ehlers does, in fact, four other times in the Ehlers reference, which is quite long, use the word predict. [00:06:50] Speaker 00: But none of them have anything to do with rates of change of temperatures. [00:06:53] Speaker 00: Ehlers talks about predicting fuel refills or maintenance of the HVAC system. [00:06:59] Speaker 00: Ehlers does not discuss predicting rates of change of temperatures. [00:07:05] Speaker 00: Nonetheless, the board made the leap that [00:07:09] Speaker 00: Because Ehlers records temperatures, that recorded temperature, quote, represents a predicted rate of change of the temperature inside the structure at a first location. [00:07:22] Speaker 00: That that's the board's opinion at appendix 31. [00:07:25] Speaker 03: What do you think Ehlers does with this information that it collects is discussed in paragraph 253 and shown in the figure? [00:07:34] Speaker 03: Do you think it just collects it and never uses it? [00:07:36] Speaker 03: What is your view? [00:07:37] Speaker 00: It's a little tough to know what the Ehlers application does with it, because it also discusses figure 3D as a table rather than a graph. [00:07:47] Speaker 00: And of course, it is a graph as we can see. [00:07:49] Speaker 00: It's not a table. [00:07:51] Speaker 00: But it says it uses to calculate a future offset for a thermostat that it could set if those exact parameters that were at issue in the- Does it say exact parameters? [00:08:05] Speaker 00: I do not know if it says exactly parameters. [00:08:07] Speaker 03: I don't think it does, but yeah. [00:08:09] Speaker 01: I think you directed us to 31 for the board's analysis of prediction, but don't they say some more about it on 29 as well? [00:08:18] Speaker 01: There seems to be a whole paragraph on why they don't agree with your arguments, and they explain how, in their view, Ehlers calculates the thermal gain rates so that it can make predictions. [00:08:30] Speaker 00: They do. [00:08:31] Speaker 00: It's the last part of your honor's, when you said, so that it can make predictions. [00:08:35] Speaker 00: What we submit is not what Ehlers shows. [00:08:38] Speaker 00: We believe that petitioner's expert fairly reads Ehlers. [00:08:44] Speaker 00: And then he says, I think this quote is, so that it can make predictions. [00:08:49] Speaker 00: And that, we submit, is not shown by substantial evidence in Ehlers. [00:08:53] Speaker 00: And the board's recitation of the petitioner's experts so that it can make predictions [00:08:59] Speaker 00: is likewise not supported by LRS itself or by Figure 3D. [00:09:12] Speaker 00: I'm going to have another chance to address this issue in the later appeal this morning. [00:09:16] Speaker 00: So I'm going to address to the second issue in our brief, which is a blue brief 50. [00:09:21] Speaker 00: And here, the final written decision in the 473 IPR, this is about just the 1A6 patent. [00:09:29] Speaker 00: There, the board's determination that Ehlers, again, teaches calculated a predicted rate of change of temperature in a first location conditioned by at least one HVAC system is not supported by substantial evidence. [00:09:45] Speaker 00: Now, that's because all of the thermal gain rates of Ehlers, even under petitioners and the board's reading of Ehlers, is that the thermal gain rates of Ehlers [00:10:00] Speaker 00: in the board's own opinion, are only relevant when the HVAC system is turned off. [00:10:05] Speaker 00: That's at appendix 16, appendix 17, and appendix 33, where the board states, quote, the thermal gain rate in Ehlers applies when the HVAC is off. [00:10:20] Speaker 00: But again, the claim language of claim one, the 1A6 patent, requires that the rate of change in temperature in a first location [00:10:29] Speaker 00: that first location must be, quote, conditioned by at least one HVAC system. [00:10:34] Speaker 00: And EcoFactor submits that if the HVAC system is turned off, as the board admits at least three times in its opinion, that location is not, quote, conditioned by at least one HVAC system at that time. [00:10:47] Speaker 03: Do I remember correctly that one of the parties has a view that it's just off and the other party has the view that it's cycling off and on, right? [00:10:57] Speaker 00: That some of the different figures, different figures 3E and F will show a sign pattern of when it comes on and off to maintain a solid temperature. [00:11:10] Speaker 00: But the board's opinion on 3D and petitioners on 3D, their argument that the board adopted is that it's off the entire time in 3D. [00:11:23] Speaker 00: The other graphs show different. [00:11:26] Speaker 03: circumstances, but it is true that the Can I ask you where, because I didn't think that was clear, that the board viewed it as being off the entire time or the petitioners viewed it as being off the entire time. [00:11:41] Speaker 03: Where do you see that it says that it's off the entire time? [00:11:45] Speaker 00: I believe that's at Appendix 16. [00:11:50] Speaker 00: where in discussing figure 3D, the board says, quote, the slope of the line, which represents the thermal gain rate, is the rate of change of the internal temperature over time during periods in which the HVAC is turned off. [00:12:04] Speaker 03: But what about that during periods in which it's turned off? [00:12:07] Speaker 03: That might be consistent with the idea of cycling on and off. [00:12:12] Speaker 00: I think if you look at it. [00:12:17] Speaker 00: On the next page of PINIX 17, also discussing figure 3D, the board says, because it, meaning 3D, is discussing an increase in the internal temperature, that means that the HVAC is cycled off at that time. [00:12:30] Speaker 00: It shows the rate of temperature change over time while the HVAC system is off. [00:12:36] Speaker 03: Yeah, but again, that's cycled off, right? [00:12:38] Speaker 03: So suggesting that at some point it's cycled on. [00:12:42] Speaker 00: Well, I don't think the petitioner or board ever argued or there is evidence that figure 3D shows cycling. [00:12:48] Speaker 00: Some of the other figures in the patents show cycling. [00:12:51] Speaker 00: But figure 3D, which is the entire basis for the argument that thermal gain rates are a predicted rate of change, I think the board and I think my colleague will argue that they agree that the HVAC is turned off that entire time. [00:13:06] Speaker 03: I'll ask. [00:13:07] Speaker 03: Thank you. [00:13:09] Speaker 02: You are into your rebuttal time now, so you can decide how to use your time. [00:13:14] Speaker 00: I'll keep going, Your Honor. [00:13:19] Speaker 00: I'm going to jump to the fourth issue in our brief. [00:13:21] Speaker 00: This is at the blue brief at 62. [00:13:23] Speaker 00: There, the final written decision in the 538 IPR relied upon Ehlers and Ruck. [00:13:32] Speaker 00: It's a reference we haven't discussed yet. [00:13:34] Speaker 00: It's at appendix 25134. [00:13:37] Speaker 00: The board determined that those two references teach a second automated set point at a second time as required by independent claim nine. [00:13:45] Speaker 00: Now, the issue here is, I think, kind of short. [00:13:50] Speaker 00: The reason that the board's entire opinion spans one paragraph. [00:13:54] Speaker 00: And that paragraph starts out with the board stating, quote, claims one and nine are very similar. [00:14:00] Speaker 00: Now, I agree that claims one and nine are very similar, but the petitioner [00:14:06] Speaker 00: and the board did not map the differences from claim one and nine to the prior art. [00:14:12] Speaker 00: They said that claim one and nine are very similar, so we don't need to go through what we just went through with claim one. [00:14:17] Speaker 01: Where did you preserve your argument on this point at the board? [00:14:22] Speaker 00: I believe we did that at, I don't have the citation here, Your Honor, but I can get that for you. [00:14:28] Speaker 00: But the argument was that claim nine does not, I mean, [00:14:32] Speaker 00: Claim 9 differs from 1 precisely because, of course, there are different elements at issue. [00:14:38] Speaker 00: Neither the board nor the petitioner mapped any of the references to those additional set points to the second automated set point at a second time. [00:14:49] Speaker 00: And I'll close with on this point that we're not aware of any precedent that allows the petitioner or the board [00:14:55] Speaker 00: to ignore additional claim limitations from a later claim simply because it is, as the board called, very similar to another claim already briefed. [00:15:07] Speaker 00: And unless the court has any additional questions, I'll yield the remainder of my time. [00:15:12] Speaker 02: Thank you. [00:15:13] Speaker 00: Thank you, guys. [00:15:28] Speaker 04: Good morning, Your Honours. [00:15:30] Speaker 04: May it please the Court? [00:15:31] Speaker 04: My name is Elizabeth Lawton from the law firm of Smith Belooch, and I represent the Appellee Google LLC today. [00:15:38] Speaker 04: Unless the Court has any specific questions, I'll just go ahead and address the issues that Council raised, starting with the issue of the thermal gain. [00:15:50] Speaker 04: So I was pleased to hear Council concede [00:15:54] Speaker 04: that figure 3D is directed to tracking historical data and that the temperature is changing in figure 3D because there was a brand new argument that was presented in council's opening brief that stated that the temperature was not changing in figure 3D and they seemed to back away from that in reply and so I just wanted to note that it seems now that there is an agreement that in figure 3D the system is [00:16:23] Speaker 04: Tracking historical data and I believe as Judge Stoll pointed out it's learning about the systems learning about how the structure behaves So a structure and this is the structure without the system on right so The HVAC system exactly and so it's absolutely right that under normal HVAC operation The system is going to cycle on and it's going to cycle off [00:16:49] Speaker 04: It does that in order to maintain a set point. [00:16:52] Speaker 04: That's kind of the essence of thermostatic control so it will for example have a set point that's at 72 and It will if it goes a little bit above that maybe when it hits 73 maybe when it hits 74 the system will cool will kick back on and cool it back down to 72 and that's a cycling process and so as alers alers describes this process as a whole and [00:17:16] Speaker 04: These are all consecutive paragraphs. [00:17:18] Speaker 04: It's describing what it's doing here in order to do its thermal modeling. [00:17:22] Speaker 04: And it begins with figure 3D. [00:17:24] Speaker 04: And it says the first step here in the analysis is to model the structure, right? [00:17:30] Speaker 04: Because structures behave differently. [00:17:32] Speaker 04: Maybe an older house isn't insulated very well. [00:17:36] Speaker 04: And it might warm up very, very quickly. [00:17:38] Speaker 04: And maybe something that is a newer house has great insulation. [00:17:41] Speaker 04: Or maybe something's in the basement or something like that underground. [00:17:44] Speaker 04: And it's not going to warm up as quickly. [00:17:46] Speaker 04: It wants to understand how the structure behaves when the system is off. [00:17:51] Speaker 04: And then, as Ehlers specifically says, the second step, the next step then, is to use that learned information. [00:17:58] Speaker 04: Where's that? [00:18:00] Speaker 04: Let me find that for you. [00:18:02] Speaker 04: I believe that is specifically a paragraph 0254 of Ehlers, but let me find that in the appendix. [00:18:17] Speaker 04: Right. [00:18:17] Speaker 04: So this is at Appendix Page 5114. [00:18:24] Speaker 04: You see beginning, I'll give you a minute to get there. [00:18:28] Speaker 02: I think we're all there. [00:18:29] Speaker 04: OK, great. [00:18:29] Speaker 04: So you see beginning at paragraph 0254. [00:18:33] Speaker 04: So the paragraph before that, that's where we're talking about learning the characteristics. [00:18:37] Speaker 04: And then at 0254, the second step is now that we have this information and we've gained this information about the system is then [00:18:45] Speaker 04: to learn the operational run characteristics of the HVAC system as a function of the thermal gain. [00:18:52] Speaker 04: So now we're going to figure out when the system is cycling on and it's cycling off, and then we're going to correlate that with this behavior of the system. [00:19:04] Speaker 04: And so here, Google's position, as it's stated below, is that we believe that Ehlers does track thermal gain rates, both when it's on and off, but certainly that just tracking it when it's off is sufficient to meet the claims here. [00:19:18] Speaker 04: And that's absolutely what it's doing here in figures. [00:19:20] Speaker 02: So there was a lot of emphasis on the word predicted in, I guess, the first, the 186 act. [00:19:28] Speaker 02: Where does Ehlers say something about, [00:19:31] Speaker 02: predicting rates of change in temperature as opposed to learning what they were during the tests. [00:19:40] Speaker 04: Sure, and I would just note, I would direct the court specifically to Mr. Shaw's, I'll discuss Ayler certainly in response to your question your honor, but I would just direct the court to Mr. Shaw's reply declaration that was submitted actually in all three proceedings. [00:19:55] Speaker 04: And I just want to note that he was never cross-examined on that declaration. [00:20:00] Speaker 04: EcoFactor had the opportunity to do so and to ask him all these questions about prediction and just never did so. [00:20:06] Speaker 04: So that declaration stands unrebutted in this proceeding and provides substantial evidence. [00:20:11] Speaker 04: He goes through and he explains in quite some detail how it's using these thermal gain rates to do predictions. [00:20:17] Speaker 04: But in response to your question specifically, Your Honor, I think that the board focused on, and I can certainly focus on here the example, [00:20:25] Speaker 04: 0256 of alers, which is just right on the next page there appendix page 5 1 1 5 Where it is then using? [00:20:35] Speaker 04: The so it says here another aspect of the present invention the system uses the learned thermal gain characteristics of the site Right so it's taking what what it learned all of that information collected along again with this other information is [00:20:52] Speaker 04: And it's then using that information to compute a set point, an offset to a set point, which then becomes a new set point, as the evidence shows, which will not increase HVAC runtime in the future. [00:21:06] Speaker 04: So it's modeling, for example, what's going to happen for the rest of the day. [00:21:09] Speaker 04: And it's saying, OK, well, if we assume that these rates are going to increase like this, we know that if we pick a set point, for example, a set point of 74 degrees, [00:21:22] Speaker 04: The system will not have to cycle on more than, for example, 33% of the time. [00:21:27] Speaker 04: And so the whole reason it's collecting all this information is to be able to control the system in the future. [00:21:33] Speaker 04: So it does this in the past. [00:21:37] Speaker 04: And then on any particular day when it wants to use this information, it's been using that to make a prediction regarding how the structure will behave, how the system will behave, in order to control the system. [00:21:49] Speaker 03: What is their particular portion of paragraph 256 that you would rely on for the idea that it's, you know, that it's using the thermal gain, you know, predictions of what the thermal gain will be or the thermal gain in order to predict what the set point should be or something like that? [00:22:11] Speaker 04: Well, so I would note here that it says it uses the learned thermal gain characteristics of the site. [00:22:20] Speaker 04: And it says, the system uses the thermal gain rate of the home to produce a baseline. [00:22:26] Speaker 04: So then it then manages it going forward. [00:22:29] Speaker 04: So it specifically talks about how it's using it here. [00:22:32] Speaker 03: Do you think the baseline is the predicted thermal gain? [00:22:36] Speaker 04: I think that the predicted thermal gain is that in order to know, and again, Mr. Shaw explains this in detail in his declaration. [00:22:44] Speaker 04: And so I would certainly direct the court to this for more specifics. [00:22:47] Speaker 04: But I think that the, [00:22:49] Speaker 04: But the prediction is that, so you have a whole day here, right? [00:22:53] Speaker 04: For example, in figure 3E and in figure 3G, you have a day, and you want to figure out how you can make sure that you're not running your HVAC system too much for that whole day, right? [00:23:06] Speaker 04: And so the purpose of what it's trying to do is that it will know how the house will warm up when the system is off throughout that day. [00:23:16] Speaker 04: It models that out. [00:23:17] Speaker 04: It predicts that out. [00:23:18] Speaker 04: And then it says, OK, based off of all that information, we now know that if we set our set point, for example, at 74, the system is not going to have to run any more than 33% to maintain that set point. [00:23:36] Speaker 04: And so essentially, it's using those thermal gain characteristics to say, because for example, say we knew that it was going to be an incredibly hot day. [00:23:46] Speaker 04: And we looked at all of that, and we said, OK, well, today we know it's going to be 100 degrees out. [00:23:51] Speaker 04: There's no way that we can just maintain this at 33% using these set points. [00:23:57] Speaker 04: This system's going to be running all day long to try to cool it down. [00:24:01] Speaker 04: I'm sure we've all had that experience on a hot day where the HVAC system is just running constantly. [00:24:05] Speaker 04: It's going to say that we can't do this. [00:24:08] Speaker 04: And so, for example, that talks about the instance in which the learned thermal gain of the site exhausts the loud temperature variant. [00:24:14] Speaker 04: It just can't be done. [00:24:16] Speaker 04: So it's using this information to say, on a particular day, what can we set the set points to? [00:24:21] Speaker 04: So the prediction is using past data to say what's going to happen today. [00:24:28] Speaker 04: And so how should we set the system? [00:24:30] Speaker 04: And the way it's doing that is predicting how the temperature in the structure is changing for that day. [00:24:41] Speaker 04: And it needs that information in order to, for example, do these computations. [00:24:45] Speaker 04: Because otherwise, it wouldn't know. [00:24:46] Speaker 04: It wouldn't know, for example, whether this could even be possible to set a set point there. [00:24:53] Speaker 04: That's something that it would not be able to do, that kind of computation and that kind of modeling. [00:25:00] Speaker 02: And the language of the claim when it talks about [00:25:07] Speaker 02: calculating one or more predicted rates of change in temperature at the location based on status of the HVAC system. [00:25:15] Speaker 02: Is that meant to be prediction of the rate of change dependent on the amount of on-off of the HVAC system? [00:25:31] Speaker 04: So I'll just note at the outset that this issue only relates to the 186 patent. [00:25:37] Speaker 04: So that claim language is only there. [00:25:39] Speaker 04: That isn't in the other patents. [00:25:41] Speaker 04: And so there was no construction regarding that. [00:25:46] Speaker 04: There was actually not a lot of discussion in the briefing about it. [00:25:50] Speaker 04: Google's argument was that it takes into account the rates here take into account the status of the HVAC system. [00:26:00] Speaker 04: So they apply based off of whether it's on or it's off. [00:26:03] Speaker 04: And that's sufficient to meet the claims. [00:26:06] Speaker 04: We always also argued that they take into account whether it's in heating or cooling mode and that also meets the claims and so what the board said here is that the is that Both on and off for statuses of the HVAC system And if they are based on when it's off that meets the claim language, and I would just note that Ecofactors argument here on appeal where now it's really focused on this claim language is it's something that actually is forfeited and [00:26:34] Speaker 04: and in fact the precise argument they're making here that somehow you have to have predicted rates of change both when it's on and when it's off and it [00:26:43] Speaker 04: The exact nature of the argument is unclear, but that seems to be what they're suggesting. [00:26:46] Speaker 04: They actually explicitly disclaimed that argument. [00:26:50] Speaker 02: Just focusing for a minute on the premise that the language permits a reading of status of the HVAC system to be when it's off. [00:27:01] Speaker 02: That would be included. [00:27:02] Speaker 02: Then was there argument before the board about the word predicted and whether [00:27:10] Speaker 02: The fact that the figure 3D is the recording of conditions and then preparing a figure summarizing the figures that have been recorded is not prediction. [00:27:30] Speaker 04: That was not how I recall the argument being presented, particularly in connection with this particular language relating to the status of the HVAC system. [00:27:39] Speaker 04: That was not something that [00:27:40] Speaker 04: that you're based on the status of the HVAC system. [00:27:42] Speaker 04: That was not something that was really raised, I think, by the other side. [00:27:47] Speaker 04: They did certainly challenge that these are not predictions. [00:27:49] Speaker 04: They did say that below, but not in the context of that not working as a prediction. [00:27:55] Speaker 04: But I would just note that it does. [00:27:57] Speaker 02: And why would you say that those are predictions? [00:28:01] Speaker 04: Because all it needs to do, all the claim language requires, [00:28:04] Speaker 04: that the it the system calculated predict the rate of change of the inside temperature in the structure and so it is predicting how the temperature in the structure will change and It does it based on the status of the HVAC system here according to the board's findings Because the system is off and that is a status of the HVAC system [00:28:30] Speaker 04: That's not disputed. [00:28:31] Speaker 04: Our position is that it does it when it's on, too. [00:28:33] Speaker 04: But the board relied on off, and that's certainly sufficient. [00:28:36] Speaker 04: And I would note that in the briefing. [00:28:38] Speaker 02: So does this amount to saying, so yesterday I did all these tests, and in the evening prepared this graph. [00:28:44] Speaker 02: So I predict that tomorrow, under these conditions, this is what will happen. [00:28:48] Speaker 04: Precisely. [00:28:50] Speaker 04: And so yeah, these apply for certain conditions. [00:28:52] Speaker 04: And of course, the rate of change of inside temperature would be different if there's cooling. [00:28:57] Speaker 04: That's the whole purpose of cooling, right? [00:29:00] Speaker 04: things apply under particular conditions. [00:29:02] Speaker 04: So here, these rates apply under particular conditions. [00:29:06] Speaker 04: For example, the outside temperature certainly affects it. [00:29:09] Speaker 04: And obviously, whether there's cooling or there's no cooling, that certainly affects how the temperature changes in the structure. [00:29:17] Speaker 01: One of the arguments EchoFactor makes, started with today, is that your expert is merely conclusory. [00:29:22] Speaker 01: What's your response to that? [00:29:26] Speaker 04: I would just say that our expert submitted very detailed declarations here. [00:29:30] Speaker 04: For example, a very long reply declaration that really goes into this in quite a lot of detail. [00:29:35] Speaker 04: He prepares a bunch of figures. [00:29:37] Speaker 04: He goes through exactly how the system works and how all this is being used. [00:29:43] Speaker 04: And so I would say that that's really the opposite of conclusory. [00:29:46] Speaker 01: Is the length of what the expert has said, is that sufficient for us to conclude that it's not conclusory? [00:29:53] Speaker 04: It's certainly not the length that's the substance, Your Honor. [00:29:55] Speaker 04: I mean, I just note that he spent quite some time on this. [00:29:59] Speaker 04: And it really does go into detail. [00:30:00] Speaker 04: And for example, he actually prepares graphs and gives examples and goes through the standard functioning of an HVAC system and why these particular examples that we're talking about, why this is something that some would understand Ehlers to be teaching here, that this is the type of model. [00:30:17] Speaker 03: So how a person of ordinary skill in the art would understand what Ehlers to be teaching. [00:30:21] Speaker 04: Precisely. [00:30:22] Speaker 04: And to be clear, again, the standard here is substantial evidence, of course. [00:30:27] Speaker 04: And their expert, we actually have a credibility finding against their expert here. [00:30:33] Speaker 04: Their expert's opinion, in fact, was conclusory. [00:30:36] Speaker 04: And the board found so. [00:30:37] Speaker 04: And the board also found that his opinion, I see I'm over my time. [00:30:42] Speaker 04: May I continue? [00:30:44] Speaker 02: Just a little bit. [00:30:44] Speaker 04: OK, just a little bit. [00:30:47] Speaker 04: We actually have a credibility finding and found that his opinion was [00:30:50] Speaker 04: inconsistent with Ehlers teachings, with all of Ehlers teachings, was not credible and provided absolutely no support for it. [00:30:59] Speaker 04: And so I think the idea that our expert testimony was conclusory I think is the exact opposite of what happened here below. [00:31:10] Speaker 04: OK. [00:31:10] Speaker 04: Thank you. [00:31:11] Speaker 04: Thank you. [00:31:30] Speaker 00: A very brief rebuttal, Your Honors, and this is mostly for Judge Stark's question about the preservation of the Claim 9 argument. [00:31:37] Speaker 00: That was that in EcoFactor's patented response to the board at Appendix 20171-173, EcoFactor alleged that the petition had failed to allege for all the challenge claims that the automated set points, meaning both the first and the second automated set points of Claims 1 and Claim 9, [00:31:59] Speaker 00: were not compared or used to detect changes as required by the subsequent claim elements and that, Your Honor, is the support for why that was not abandoned. [00:32:14] Speaker 02: Can I just ask, I don't remember being clear about your position on whether we have any [00:32:23] Speaker 02: live, i.e. [00:32:24] Speaker 02: non-moot, issue before us on claim 9 of the 597. [00:32:28] Speaker 02: I thought claim 9 was in the group, namely 9 to 16, that were held indefinite in district court in a, I guess, [00:32:40] Speaker 02: greed upon judgment with prejudice. [00:32:47] Speaker 02: That's not appealed. [00:32:49] Speaker 02: So those claims are invalid. [00:32:52] Speaker 02: Why should we be talking about clandestine? [00:32:56] Speaker 00: I think, Your Honor, that you don't have a response to that question here today. [00:32:59] Speaker 00: But if that is true, I think I would agree with you. [00:33:02] Speaker 00: But I would have to go look that up, Your Honor. [00:33:05] Speaker 02: OK. [00:33:05] Speaker 02: Thank you. [00:33:08] Speaker 02: That's it for this case. [00:33:12] Speaker 02: The case is submitted. [00:33:14] Speaker 02: Thanks to counsel and we will hear the next case.