[00:00:00] Speaker 03:
You don't even need to sit down unless you want to rest.

[00:00:11] Speaker 03:
Can I start off with a similar kind of question that I just asked you about 597, but this is about 550.

[00:00:19] Speaker 03:
So do I understand right that the district court litigation that you brought against Google on 550 sometime in 2023 you resolved?

[00:00:30] Speaker 03:
so that that suit's no longer pending.

[00:00:33] Speaker 00:
I believe this actually stayed in California right now.

[00:00:37] Speaker 03:
I thought there was a...

[00:00:45] Speaker 03:
I guess I'm reading from a joint status report from May 8, 2025, saying on July 26, 2023, eco-factor covenant and not to sue Google on the 550 patent.

[00:01:02] Speaker 03:
Do I have that wrong?

[00:01:05] Speaker 00:
That is correct, Your Honor, but that was not a

[00:01:09] Speaker 00:
an admission of invalidity or not?

[00:01:11] Speaker 03:
No, no, no, no.

[00:01:12] Speaker 03:
I'm not suggesting that it was.

[00:01:14] Speaker 03:
But then the question is, I think I kind of know the answer.

[00:01:18] Speaker 03:
I just want to confirm.

[00:01:20] Speaker 03:
This patent, if it were revived, would have a lot of life left in it, and you care about it, even though you stopped paying maintenance fees?

[00:01:29] Speaker 00:
Yes, Your Honor.

[00:01:30] Speaker 03:
OK.

[00:01:34] Speaker 00:
And may it please the Court.

[00:01:36] Speaker 00:
particularly because of other recent developments between Ecofactor and Google before this honorable court.

[00:01:44] Speaker 00:
We have some interest in reviving other patents, maintaining our patents.

[00:01:50] Speaker 03:
I think I get the reference.

[00:01:55] Speaker 00:
All right.

[00:01:55] Speaker 00:
May I please record?

[00:01:58] Speaker 00:
Again, this appeal is very similar to the one we just talked about.

[00:02:01] Speaker 00:
And the main issue in this one is the exact same one that my colleague and I just discussed.

[00:02:05] Speaker 00:
about errors in figure 3D, and predictions, and recording, and learning, and tracking.

[00:02:11] Speaker 00:
I'm going to.

[00:02:12] Speaker 03:
Yeah, I wouldn't.

[00:02:14] Speaker 03:
Don't just repeat yourself.

[00:02:16] Speaker 00:
Yes.

[00:02:16] Speaker 03:
You do have some new insight.

[00:02:18] Speaker 00:
I'm going to skip almost all my notes about that part that we already went over.

[00:02:21] Speaker 00:
I will say that when what my colleague said is a little bit different than what EcoFactor concedes

[00:02:34] Speaker 00:
is that figure 3D shows a graph showing the indoor set point, parentheses, temperature, in parentheses, versus time.

[00:02:43] Speaker 00:
So if you look at figure 3D, in the x-axis is time.

[00:02:47] Speaker 00:
On the y-axis, it says indoor set point.

[00:02:50] Speaker 00:
It doesn't say the temperature of the house.

[00:02:53] Speaker 00:
And so to judge Stoll's question, it's not clear what figure 3D shows.

[00:03:00] Speaker 00:
It's not clear if it shows

[00:03:02] Speaker 00:
If you're measuring an increase in the actual temperature of the house or a temperature of the or someone's Slowly moving the set point up in a linear fashion as you see in figure 3d and I think part of that is because The board said that it was the temperature of the house, right?

[00:03:22] Speaker 00:
The board did say that yes.

[00:03:23] Speaker 04:
Yes, and would you agree that there's a

[00:03:28] Speaker 04:
at least substantial evidence in the written description describing figure 3D to support that?

[00:03:35] Speaker 00:
We would argue that there is a scintilla of evidence supporting that, but nothing more than that.

[00:03:40] Speaker 04:
Well, there's substantial evidence, right?

[00:03:42] Speaker 00:
Well, a scintilla is not substantial evidence.

[00:03:45] Speaker 04:
It depends on the case you're looking at, but OK.

[00:03:50] Speaker 04:
So you would say a reasonable fact finder couldn't find that.

[00:03:53] Speaker 00:
Certainly.

[00:03:54] Speaker 00:
And to briefly address my colleague's point about the experts at issue in this, let me be clear that Ecofactor is not asking you to listen to our expert's declaration or read our expert's declaration.

[00:04:10] Speaker 00:
We're not even challenging Google's expert's declaration.

[00:04:14] Speaker 00:
We're submitting that the court, under the substantial evidence standard, must look at all the evidence that both justifies and detracts from

[00:04:23] Speaker 00:
the agency's opinion.

[00:04:25] Speaker 00:
And justifying it, in that column, we submit is almost entirely just petitioner's expert opinion.

[00:04:34] Speaker 00:
And detracting from that, he go back to submits, is the reference itself, Eller's figure 3D, paragraph 253, 254, 256, as my colleague discussed.

[00:04:47] Speaker 00:
And we believe that when viewed as an entire record,

[00:04:52] Speaker 00:
The substantial evidence does not support the board's decision there.

[00:04:58] Speaker 00:
I will move on to a unique issue in this 1367 appeal.

[00:05:05] Speaker 00:
And this is from EcoFactor's Blue Brief at 40.

[00:05:08] Speaker 00:
The board's final written decision in both the 969 and 983 IPRs, which both dealt with a 550 patent, just different sets of claims, but combined the entire set of claims,

[00:05:22] Speaker 00:
In there, the board determined that the combination of Ehlers, which we see again, and a new reference, Ruck, that's at appendix 5148, teach the limitation, quote, to compare the one or more automated set points with said actual set point programming, end quote.

[00:05:41] Speaker 00:
Now, Ecofactor's position, not surprisingly, is that that is not shown by substantial evidence.

[00:05:46] Speaker 00:
It is only shown by petitioner's expert's opinion

[00:05:51] Speaker 00:
as to a single table in RUC rather than any of the specification or the written words in the specification.

[00:06:07] Speaker 00:
So as the petition and the board note, the fifth column of table 28, so we're looking at another picture and a patent here, the fifth column labeled comments, there's a comment that states, quote,

[00:06:21] Speaker 00:
display actual temporary set point data if delta value is less than or greater than 0.

[00:06:32] Speaker 00:
Now that quotation from table 28 of Ruck is the only place that the phrase delta value is used in Ruck.

[00:06:42] Speaker 00:
And we think it's important to note that delta value is capitalized.

[00:06:46] Speaker 00:
At least the word delta is capitalized in that.

[00:06:49] Speaker 00:
Nothing else in table 28.

[00:06:52] Speaker 00:
and nothing else in the Ruck reference ever describes or defines what this delta value means, what it's comparing, what it's doing.

[00:07:02] Speaker 00:
And in fact, neither the petition nor the board cite to anything else in Ruck other than that line in table 28.

[00:07:13] Speaker 00:
And so here, Ecofactor's position is that the board, or more specifically petitioner's expert,

[00:07:21] Speaker 00:
looked at table 28 almost like a Rorschach test.

[00:07:25] Speaker 00:
And what he saw is what he says it means.

[00:07:30] Speaker 00:
And we do not believe that is substantial evidence.

[00:07:34] Speaker 00:
Now, the petitioner's expert points to the single portion, the single line in table 28, and then offers his opinion that because table 28 has these words that, again, are not defined within Ruck, because table 28 has these words,

[00:07:51] Speaker 00:
Therefore, it must teach.

[00:07:53] Speaker 00:
And then he quotes the claim limitation itself.

[00:07:57] Speaker 00:
But I will note, at the deposition of petitioner's expert, he was unable to provide any support from the specification of Ruck for his assertion beyond the single note that we just discussed in table 28.

[00:08:15] Speaker 00:
And that deposition is at appendix 7532,

[00:08:21] Speaker 00:
pages 23, lines 1 through 19.

[00:08:27] Speaker 00:
Now, EcoFactor argued before the board, as we're now arguing before this court, that Ruck does not disclose any automated set points.

[00:08:36] Speaker 00:
And an automated set point is, of course, different than a manual set point.

[00:08:41] Speaker 00:
And it's important that Ruck does not disclose automated set points, because the claim language at issue here in the 550 patent is

[00:08:51] Speaker 00:
to compare the one or more automated set points with said actual set point programming.

[00:08:58] Speaker 00:
So we submit that it is very crucial here that Ruck does not disclose automated set points.

[00:09:06] Speaker 00:
At the bottom of the board's opinion on this claim limitation, the board simply adopted petitioner's expert's opinion.

[00:09:18] Speaker 00:
And yes, we submit conclusory opinion.

[00:09:21] Speaker 00:
about what he believed table 28 to mean.

[00:09:24] Speaker 02:
If it's not conclusory, the board can adopt as long as it clearly considers all the evidence.

[00:09:31] Speaker 02:
It can adopt their expert in that substantial evidence, right?

[00:09:34] Speaker 00:
Certainly.

[00:09:35] Speaker 00:
And if they did adopt it and this court agrees that that was substantial evidence, I lose.

[00:09:43] Speaker 00:
And so my job here today is to prove that that is not substantial evidence.

[00:09:48] Speaker 00:
And if I'm unable to do that, I fail.

[00:09:51] Speaker 00:
And on that point, there is no evidence, let alone substantial evidence, that the, quote, delta value listed in table 28 in that one little column is the claimed difference between two set points, let alone between an automated set point and a manual set point as required by the claim limitation.

[00:10:19] Speaker 00:
My last issue in this

[00:10:21] Speaker 00:
1367 appeal is that the board's final written decisions in these two IPRs determined that a person have an ordinary skill in the art would have been motivated to combine the teachings of Ehlers and Rock, but we submit that is not supported by, again, substantial evidence.

[00:10:43] Speaker 00:
And this point is actually very closely related to the table 28 I just had because

[00:10:50] Speaker 00:
Because table 28 does not disclose what delta value means, what delta is comparing, we're not disagreeing that in mathematical terms and technical terms, delta generally means a comparison of two things.

[00:11:07] Speaker 00:
What we're arguing is that it's not clear what two things are being compared in Ruck.

[00:11:12] Speaker 00:
So Ruck compares a comparison of something, but we submit it does not compare an automated set point to an actual set point.

[00:11:20] Speaker 04:
What about, I mean, you're looking at a combination, right?

[00:11:24] Speaker 04:
I mean, it's a combination reference as Ehlers and view of Ruck.

[00:11:28] Speaker 00:
Correct.

[00:11:29] Speaker 04:
So what about the combination and whether the combination does that comparison?

[00:11:33] Speaker 04:
Is Ruck just being relied on to modify Ehlers to make sure it's very clear that Ehlers is making a comparison of an automated set-point?

[00:11:44] Speaker 00:
Well, we think because Ruck is not concerned with

[00:11:49] Speaker 00:
automated set points.

[00:11:50] Speaker 00:
Ehlers does discuss automated set points based on the learned and tracked behavior of historical thermal characteristics.

[00:12:01] Speaker 00:
So Ehlers does discuss automated set points.

[00:12:04] Speaker 00:
But I guess what my argument is here is that if someone wanted to figure out a further way to modify Ehlers,

[00:12:15] Speaker 00:
They would not look to Ruck because Ruck does not use those types of automated set points to begin with.

[00:12:20] Speaker 00:
So there is no reasonable bridge between Ruck and Ehlers that would motivate a person of skill and the art to do so.

[00:12:30] Speaker 00:
And we don't believe that the board or the petitioner showed that.

[00:12:39] Speaker 00:
So another way of saying that that I have is that a person looking at Ruck

[00:12:44] Speaker 00:
would only see manual set points, that people have set point here, someone changes set point here.

[00:12:50] Speaker 00:
And then a single unexplained use in table 28 of the term delta value.

[00:12:57] Speaker 00:
Neither of those disclosures of Ruck nor the combination of them, frankly, provide any evidence, let alone substantial evidence, that a person of skill in the art would have a reason or motivation to combine the teachings of Ruck

[00:13:13] Speaker 00:
with the teachings of Ehlers to specifically teach the comparison of one or more automated set points with the said actual set point programming as required by the claims at issue here.

[00:13:32] Speaker 00:
And unless the court has further questions, I yield the remainder of my time.

[00:13:36] Speaker 03:
Thank you.

[00:13:37] Speaker 00:
Thank you.

[00:13:48] Speaker 01:
Good morning again, Your Honours.

[00:13:52] Speaker 01:
May it please the Court?

[00:13:53] Speaker 01:
Again, Elizabeth Lawton on behalf of Google.

[00:13:57] Speaker 01:
This case is very closely related to the case that we just heard and unless the Court has any specific questions... Why don't you move to the new issues?

[00:14:07] Speaker 01:
The table 28 sure you'd like me to ask that um I so with respect to the new issue table 28 and the motivation to combine right and so the first thing I'd like to note is that Those issues were also in the prior appeal.

[00:14:25] Speaker 03:
We just didn't discuss.

[00:14:26] Speaker 01:
We just didn't look I would submit your honor It's not just that we didn't discuss them is that they weren't argued

[00:14:32] Speaker 01:
They were not raised so the board had findings on those issues in terms of in the in the five nine seven IPR the board made findings regarding the combination of alers and rock and Specifically that it specifically for their very similar claim limitations specifically for the very similar claim language And no arguments were actually presented on this issue in that case So this is something that they argued here only for the 550 patent, but they never argued it for the five nine seven patent and

[00:15:01] Speaker 03:
And I'm not quite sure what the bottom line point is you want us to draw from that.

[00:15:06] Speaker 01:
The bottom line point, Your Honor, is issue preclusion.

[00:15:09] Speaker 01:
So once this court affirms, if this court were to affirm it, once this court affirms in this morning's appeal, that decision would actually have issue preclusive effect in this appeal.

[00:15:24] Speaker 01:
Because there is a final determination by the board on those exact issues as to the same claim elements.

[00:15:31] Speaker 01:
And in fact, in the XY LLC versus trans-opogenetic.

[00:15:37] Speaker 03:
Can you talk a little bit about the merits of it anyways?

[00:15:40] Speaker 03:
Absolutely.

[00:15:41] Speaker 03:
Because I think in your brief, you made an argument about issued reclusion that I don't remember your saying what I'm saying.

[00:15:54] Speaker 03:
I don't remember you saying, I'm making an anticipatory issue preclusion argument that is anticipatory if we win on the first claim.

[00:16:02] Speaker 03:
And it certainly would not be issue preclusion just because it's an unappealed issue, because they could win the other case, and then it wouldn't be necessary to the judgment.

[00:16:11] Speaker 01:
The issue preclusion argument here assumes that this court would affirm.

[00:16:17] Speaker 01:
OK.

[00:16:18] Speaker 03:
Let's get to the merits, then, of those two points.

[00:16:21] Speaker 01:
Of course.

[00:16:24] Speaker 01:
Specifically with respect to the merits, I want to note that there are actually two theories at issue here.

[00:16:29] Speaker 01:
There's a theory as to this claim element that's only based on Aylers.

[00:16:34] Speaker 01:
And then there's also a theory that's based off of the combination of Aylers and Ruck.

[00:16:38] Speaker 01:
And so what I heard today was a lot of focus on the combination of Aylers and Ruck.

[00:16:43] Speaker 01:
But I do just want to note that there was a separate independent basis for the board's decision.

[00:16:48] Speaker 04:
And the board did rely on Aylers.

[00:16:50] Speaker 04:
Do you think the board relied on Aylers alone?

[00:16:53] Speaker 01:
I do believe that the board relied on Ehlers-Alone.

[00:16:55] Speaker 01:
I think it said that very clearly in its decision.

[00:16:59] Speaker 01:
I think it was very clear in the petition that multiple theories were being presented.

[00:17:04] Speaker 01:
I think it was clear in the institution decision that multiple theories were being presented.

[00:17:08] Speaker 01:
In our briefing, we called out all of the places and quoted all the places where it was very clear that the petition was arguing that Ehlers-Alone was sufficient, but that rock was really just being added for an abundance of caution here.

[00:17:21] Speaker 01:
And so I think the board, consistent with those arguments, made independent alternative findings.

[00:17:27] Speaker 04:
So is it the finding on page A37 where it says, petitioner demonstrates that a person born near a scale nearer would have known to compare the actual set point with the automated set point in discussing errors alone?

[00:17:40] Speaker 04:
I just want to make sure I have the right place.

[00:17:42] Speaker 04:
It's a paragraph bridging pages A36 and 37.

[00:18:01] Speaker 04:
Apologize and you said 836 and 837 That's right the paragraph that bridges it the paragraph that bridges those two pages Yes, I mean there's paragraphs above to start.

[00:18:16] Speaker 04:
I think that that paragraph Right where I was thought that the board was making its finding with respect to alers alone I think that's correct.

[00:18:25] Speaker 01:
I would also just note also and pay on appendix page 39 and

[00:18:29] Speaker 01:
specifically says that Ehlers teaches or suggests different mutations.

[00:18:33] Speaker 01:
So I think that it's certainly addressing the finding there as to Ehlers alone, and specifically talking about it being obvious from Ehlers teachings.

[00:18:43] Speaker 01:
And then, again, as Your Honor points out, at the end of that paragraph going into appendix 37, then it says as to the combined teachings of Ehlers and Ruck, then it's now talking about the alternative theory about the combined teachings.

[00:18:58] Speaker 01:
And so I think that because no argument has been presented challenging the theory based on Ehlers alone, this court can certainly affirm based on that theory here.

[00:19:08] Speaker 01:
And again, I think that perhaps the reason an APA argument or something like that was not made is that there was just very clear notice that that was the theory throughout, both in the petition and the institution decisions, and that there was just how Ecofactor chose to argue it.

[00:19:24] Speaker 01:
So then moving on specifically to the combined teachings of Ehlers and Ruck, this court may certainly affirm based off of that basis as well.

[00:19:33] Speaker 01:
So I'd like to just emphasize the very limited nature in which the petitions actually relied on Ruck here.

[00:19:41] Speaker 01:
Basically saying, look, if you have two things, if you have two set points, and you want to know whether or not they are different, the most obvious thing to do would be to compare them.

[00:19:51] Speaker 01:
Is 72 different from 76?

[00:19:54] Speaker 01:
make a comparison.

[00:19:55] Speaker 01:
What's the magnitude of the difference for?

[00:19:58] Speaker 01:
That's obvious.

[00:19:59] Speaker 01:
And I think what the petitions were doing is saying, and here's an example of this exact kind of thing in Ruck.

[00:20:07] Speaker 01:
And I would submit that there certainly is substantial evidence regarding Ruck of how a person of ordinary skill in the art would understand Ruck.

[00:20:15] Speaker 01:
So specifically, Ruck talks about that this is a delta value, and as

[00:20:23] Speaker 01:
I think we all understand that that means a change, a comparison.

[00:20:26] Speaker 01:
That's what the evidence here showed as well.

[00:20:29] Speaker 01:
And it talks about it being an actual, a temporary set point.

[00:20:33] Speaker 01:
So we know it's talking about a set point.

[00:20:35] Speaker 01:
And it's deciding whether or not to display that set point.

[00:20:39] Speaker 01:
And so a person of ordinary skill in the art would, looking at this, the evidence demonstrates a person of ordinary skill in the art looking at this would say,

[00:20:48] Speaker 01:
What this is showing me is that we're looking at whether or not there's a change, a difference, a comparison between this actual temporary set point and some other comparable value.

[00:20:58] Speaker 01:
What would that comparable value be?

[00:20:59] Speaker 01:
What would a person of ordinary skill in the art think that is?

[00:21:02] Speaker 01:
Another set point.

[00:21:04] Speaker 01:
And so that's how we know we're going to display the temporary set point as opposed to, for example, this other set point that is in play.

[00:21:12] Speaker 01:
And so the evidence demonstrates here, and there's certainly substantial evidence that a person of ordinary skill and error would understand that this is exactly the kind of thing that you could do, and that this would be a way that this could be done in ALRs.

[00:21:24] Speaker 01:
Because there was not a lot in the briefing about ALRs, but there was below, and the boards of findings on this go into this.

[00:21:32] Speaker 01:
ALR system is all about learning the user's manual changes to set points.

[00:21:37] Speaker 01:
That's what it wants to do.

[00:21:39] Speaker 01:
It doesn't want to have a system where if you want the temperature to change throughout the day, you have to go up and constantly fiddle with it.

[00:21:46] Speaker 01:
It wants to, over time, learn what temperature you like it to be at all these various times, and then just do that automatically.

[00:21:54] Speaker 01:
That's the goal.

[00:21:54] Speaker 01:
It says it wants to free the user from having to come and make all of these manual changes.

[00:21:59] Speaker 01:
And as we saw, Ehlers computes automated set points by the system.

[00:22:03] Speaker 01:
It isn't just the user setting them.

[00:22:05] Speaker 01:
The system is setting it.

[00:22:09] Speaker 01:
in order to figure out what set point is in play here or what set point to use, the most obvious thing to do would be to compare the manual set point by the user.

[00:22:20] Speaker 01:
I'd like it now to be 70 degrees because I'm very warm and I'm working out in my apartment or something in my house and I'd like it to be extra cool.

[00:22:29] Speaker 01:
And what the system has set it at, for example, the system wants it to be 75 because it's trying to save energy or something like that.

[00:22:36] Speaker 01:
So Ruck is relied on in a very limited manner here.

[00:22:40] Speaker 01:
And it certainly supports the obviousness of doing a comparison of set points.

[00:22:46] Speaker 01:
And again, I just want to back up that that really is the issue here.

[00:22:48] Speaker 01:
It's just do we compare to comparable numbers to find out whether or not they are the same or different?

[00:22:54] Speaker 01:
That's the obviousness question.

[00:22:56] Speaker 01:
And the testimony and the evidence is certainly more than sufficient to support the obviousness of that.

[00:23:12] Speaker 01:
And then turning back to the predicted rates of change, I just wanted to respond very briefly to something that counsel stated regarding it being only Google's experts testimony or something like that.

[00:23:26] Speaker 01:
I believe, I don't want to mischaracterize it, but I believe he said something along those lines supporting the determination.

[00:23:31] Speaker 01:
The board specifically relied on EcoFactor's experts testimony throughout in its decision.

[00:23:40] Speaker 01:
And in fact, both experts' testimony supported this understanding of Ehlers' thermal gain rates.

[00:23:47] Speaker 01:
And Dr. Palmer's testimony was either unsupported and inconsistent, or in fact supported the idea that these are rates of change of temperature.

[00:23:56] Speaker 01:
And the board specifically called that out here.

[00:23:58] Speaker 01:
And so I just want to note that it's not just like Google's expert had a particular interpretation of this, but that in fact all of the evidence was consistent.

[00:24:06] Speaker 01:
regarding the thermal gain rates.

[00:24:08] Speaker 01:
And that's what the board was, in fact, trying to do, was trying to understand Ehlers as a person of ordinary skill in the art would do, and look at it as a whole, try to make sense of the disclosure, look at it from the perspective of somebody who understands these things, and to come to an interpretation that is consistent with all of the teachings of Ehlers.

[00:24:26] Speaker 01:
And only Google's and only Google's experts testimony here offers that.

[00:24:32] Speaker 01:
The EcoFactor certainly does not.

[00:24:35] Speaker 02:
You may be responding to the comment that caught my ear, too.

[00:24:39] Speaker 02:
But at the beginning of this argument, Mr. Ankeli said something about what 3D of Ehlers shows or doesn't show.

[00:24:48] Speaker 02:
Is that consistent with what you said he conceded in the first argument?

[00:24:53] Speaker 02:
Or has he gone back to now challenging what 3D shows?

[00:24:57] Speaker 02:
What's your understanding?

[00:25:00] Speaker 01:
To be frank, Your Honor, I don't

[00:25:03] Speaker 01:
really understand at this point anymore.

[00:25:05] Speaker 02:
I've heard many, many different things regarding what... You did have confidence in the first argument that he was no longer fighting something.

[00:25:14] Speaker 02:
Do you have that confidence now?

[00:25:15] Speaker 01:
I thought I heard that pretty clearly in the first argument.

[00:25:20] Speaker 01:
It seems like he now wants to walk that back.

[00:25:23] Speaker 01:
I would just say his briefing concedes it as well, concedes it in reply.

[00:25:27] Speaker 01:
In this one?

[00:25:29] Speaker 01:
Yeah, in this one and also in the other one as well.

[00:25:32] Speaker 01:
So if I could find the particular page number here.

[00:25:42] Speaker 01:
I believe I'm looking at the reply in particular.

[00:25:55] Speaker 01:
So on page nine of the reply brief, he says, Google invites the court to repeat the board's error, which was only to look for evidence of tracking historical rate of change.

[00:26:08] Speaker 01:
He talks about figure 3D, and he says, but this is a description of measuring a historical change in temperature.

[00:26:14] Speaker 01:
The temperature is changing in figure 3D.

[00:26:21] Speaker 01:
That is what their own expert stated in his declaration and at deposition.

[00:26:28] Speaker 03:
And for what it's worth, I guess I thought maybe what he was saying in this argument about the figure 3D that the label on the y-axis uses set point, which is

[00:26:47] Speaker 03:
I don't know, perhaps an odd label for that axis if you just mean if the temperature in the house starts at 72 or 74 or 78, this is what's going to happen if it's 99, 90, or 77 degrees outside, which is what these curves are showing.

[00:27:07] Speaker 03:
The label set point on the y-axis is

[00:27:12] Speaker 03:
Odd for that you would use the label set point if you maybe are talking about an active system Not an off system.

[00:27:25] Speaker 01:
So I think certainly they've seen I think that that's what I took his point to be Your honor that that makes sense to me.

[00:27:30] Speaker 01:
I think that's certainly what they seized on

[00:27:33] Speaker 01:
And I think that as the testimony makes clear here, and I think his own expert's testimony makes clear, what it's talking about is that it's controlling it to an initial starting set point.

[00:27:42] Speaker 01:
So we're talking about, where are we starting?

[00:27:43] Speaker 01:
We're at the set point of 72, 76.

[00:27:46] Speaker 01:
That's where we are.

[00:27:47] Speaker 01:
And now we're going to see how it behaves.

[00:27:50] Speaker 03:
And really it now is the house and not the HVAC system.

[00:27:55] Speaker 01:
The temperature.

[00:27:56] Speaker 03:
Yes.

[00:27:56] Speaker 03:
The temperature.

[00:27:57] Speaker 03:
The temperature, just the house doing what the house does with the system off.

[00:28:01] Speaker 01:
Right.

[00:28:02] Speaker 01:
And I would just note that the patents that issue here do the same thing.

[00:28:06] Speaker 01:
And we've pointed that out in the briefing.

[00:28:09] Speaker 01:
Yeah, I do think that's what they're seizing on.

[00:28:11] Speaker 01:
But I think certainly if you have the system on, the figure just wouldn't make sense.

[00:28:18] Speaker 01:
Because it's talking about how the thermal gain differential is decreasing until the inside temperature reaches the outside temperature.

[00:28:27] Speaker 01:
If the system is on and driving it down to the set point,

[00:28:30] Speaker 01:
You're not going to see that.

[00:28:31] Speaker 01:
And again, Ehlers makes clear, it says that it is a rate of change of temperature and time.

[00:28:37] Speaker 01:
Ehlers says that in paragraph 255.

[00:28:41] Speaker 01:
And also, Dr. Palmer testified that it's tracking temperature and time there.

[00:28:48] Speaker 01:
So if it's tracking temperature and time, you wouldn't see it reaching the outside temperature right if you have the HVAC system going on and driving it back down to the set point.

[00:28:57] Speaker 01:
And so I think what it's trying to do there is just collect all of this different data for all these different data points so that, again, it can use that data to model future conditions.

[00:29:08] Speaker 01:
And I say I'm over my time.

[00:29:11] Speaker 01:
Unless your honors have anything further, I thank you very much.

[00:29:14] Speaker 03:
Thank you.

[00:29:36] Speaker 00:
Thank you, Your Honors.

[00:29:38] Speaker 00:
I actually wasn't even going to give her a bottle, but I wanted to address one thing that my counselor just said.

[00:29:43] Speaker 00:
I think she just said, if the system is on, figure 3D doesn't make sense.

[00:29:49] Speaker 00:
And on that, we agree.

[00:29:51] Speaker 00:
And I think that runs headfirst into our argument specifically about the 1A6 patent, which has a claim limitation requiring that the location be, quote, conditioned by an HVAC system.

[00:30:03] Speaker 00:
And if the system is not on,

[00:30:05] Speaker 04:
We submit that is not a six patent at issue.

[00:30:09] Speaker 04:
In this case, you're arguing right now.

[00:30:11] Speaker 04:
It is not.

[00:30:12] Speaker 04:
OK, thank you.

[00:30:14] Speaker 02:
Do you acknowledge that issue preclusion is in front of us and right in this case if we were to affirm in the first case you argued today?

[00:30:25] Speaker 00:
I certainly believe that is very likely, unless you decide this case first in that case.

[00:30:32] Speaker 00:
However, this court's wishes proceed.

[00:30:34] Speaker 00:
Thank you, Your Honor.

[00:30:35] Speaker 03:
Thank you.

[00:30:36] Speaker 03:
Thanks to all counsel.

[00:30:37] Speaker 03:
The case is submitted.