Ecofactor, Inc. v. Google LLC

Case: 24-1027 Document: 66 Page: 1 Filed: 07/08/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

______________________

ECOFACTOR, INC.,

Appellant

v.

GOOGLE LLC,

Appellee

______________________

2024-1027, 2024-1032, 2024-1033

______________________

Appeals from the United States Patent and Trademark

Office, Patent Trial and Appeal Board in Nos. IPR2022-

00473, IPR2022-00475, IPR2022-00538, IPR2022-01460,

IPR2022-01461.

______________________

Decided: July 8, 2025

______________________

MATTHEW AICHELE, Russ August & Kabat, Washing-

ton, DC, argued for appellant. Also represented by

KRISTOPHER DAVIS, REZA MIRZAIE, JAMES PICKENS, PHILIP

WANG, Los Angeles, CA.

ELIZABETH LAUGHTON, Smith Baluch LLP, Washing-

ton, DC, argued for appellee. Also represented by

MATTHEW A. SMITH.

______________________

Case: 24-1027 Document: 66 Page: 2 Filed: 07/08/2025

2 ECOFACTOR, INC. v. GOOGLE LLC

Before TARANTO, STOLL, and STARK, Circuit Judges.

TARANTO, Circuit Judge.

EcoFactor, Inc. owns U.S. Patent Nos. 8,740,100,

8,751,186, and 9,194,597, which relate to heating, ventila-

tion, and air conditioning (HVAC) systems. On inter partes

review, the Patent Trial and Appeal Board of the Patent

and Trademark Office determined that the challenged

claims of the patents are unpatentable for obviousness un-

der 35 U.S.C. § 103. Google LLC v. EcoFactor, LLC,

IPR2022-00475, 2023 WL 5167492 (P.T.A.B. Aug. 7, 2023)

(’100 Patent Decision); Google LLC v. EcoFactor, LLC,

IPR2022-00473, 2023 WL 5153642 (P.T.A.B. Aug. 1, 2023)

(’186 Patent Decision); Google LLC v. EcoFactor, Inc.,

IPR2022-00538, 2023 WL 5166414 (P.T.A.B. Aug. 1, 2023)

(’597 Patent Decision). EcoFactor appeals, and we now af-

firm.

I

A

The ’100 patent is titled “System, Method and Appa-

ratus for Dynamically Variable Compressor Delay in Ther-

mostat to Reduce Energy Consumption.” The specification

explains that HVAC systems generally are used to main-

tain the temperature of the areas they serve within a “dead

zone” around the desired “setpoint.” ’100 patent, col. 1,

lines 60–62; id., col. 2, lines 48–53. For example, if the set-

point is 70°F, the dead zone might range from 68 to 72°F.

When the measured area temperature reaches an outer

limit of the dead zone, the HVAC system cycles on to either

heat or cool the structure until the temperature returns to

the dead zone, at which point the system cycles off. Id., col.

1, lines 62–67.

HVAC systems typically use a “compressor delay” in

order to prevent damage to the system caused by users rap-

idly changing the setpoint. Id., col. 2, lines 22–29. The

Case: 24-1027 Document: 66 Page: 3 Filed: 07/08/2025

ECOFACTOR, INC. v. GOOGLE LLC 3

compressor delay prevents the compressor (and, by exten-

sion, the system), once it is switched off, from being

switched back on for a specified interval of time. Id., col. 2,

lines 25–29. The ’100 patent describes varying the com-

pressor delay based on the predicted rate of change in area

temperature in order to optimize user comfort and energy

efficiency. Id., col. 5, lines 1–6, 27–45.

The independent claims of the ’100 patent recite as fol-

lows:

1. A system for reducing the usage of a ventilation

system comprising:

a thermostatic controller having at least two set-

tings for a delay enforced by said thermostatic con-

troller after said thermostatic controller turns said

ventilation system off prior to allowing said ther-

mostatic controller to signal said ventilation sys-

tem to turn on again, one setting being for a first

interval, and at least a second setting for a second

interval that is longer than said first interval; and

a computer processor in communication with said

thermostatic controller, the processor configured

to:

access stored data comprising a plurality of

internal temperature measurements taken

within a structure and a plurality of out-

side temperature measurements relating

to temperatures outside the structure;

use the stored data to predict a rate of

change of temperatures inside the

structure in response to at least

changes in outside temperatures; and

evaluate one or more parameters including

at least the outside temperature measure-

ments and the predicted rate of change,

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4 ECOFACTOR, INC. v. GOOGLE LLC

and to determine whether to adopt said

first interval or said second interval based

upon the values of said parameters.

Id., col. 9, line 61, through col. 10, line 17 (emphasis added).

9. A process for optimizing the delay enforced by a

thermostatic controller after said thermostatic con-

troller turns a ventilation system off prior to allow-

ing said thermostatic controller to signal said

ventilation system to turn on again comprising:

evaluating, with at least one computer processor,

one or more parameters relating to the operation of

the said ventilation system, wherein the computer

processor:

accesses stored data comprising a plurality

of internal temperature measurements

taken within a structure and a plurality of

outside temperature measurements relat-

ing to temperatures outside the structure;

uses the stored data to predict a rate

of change of temperatures inside the

structure in response to at least

changes in outside temperatures; and

wherein evaluating the one or more param-

eters comprises evaluating at least the out-

side temperature measurements and the

predicted rate of change;

determining which of at least a first interval and a

second interval is to be enforced as a delay by said

thermostatic controller in light of at least the out-

side temperature measurements and the predicted

rate of change, wherein said second interval is

longer than said first interval;

communicating said delay from said computer pro-

cessor to said thermostatic controller; and

Case: 24-1027 Document: 66 Page: 5 Filed: 07/08/2025

ECOFACTOR, INC. v. GOOGLE LLC 5

adopting said delay by said thermostatic controller.

Id., col. 10, lines 36–61 (emphasis added).

B

The ’186 patent is titled “System and Method for Cal-

culating the Thermal Mass of a Building.” “Thermal

mass,” as the term is used within the patent, refers to the

degree to which a given structure (e.g., a house) responds

to changes in external temperature. ’186 patent, col. 2, line

54, through col. 3, line 2. The specification describes an

HVAC system that calculates the effective thermal mass of

a building using outside and inside temperature measure-

ments. Id., col. 3, line 64, through col. 4, line 15.

The independent claims recite as follows:

1. A system for controlling a heating, ventilation

and air conditioning (HVAC) system comprising:

one or more server computers comprising computer

hardware, the one or more server computers con-

figured to receive inside temperature measure-

ments from at least a first location conditioned

by at least one HVAC system;

one or more databases that store the inside

temperature measurements over time, the one

or more databases accesses by the one or more

server computers;

wherein the one or more server computers are lo-

cated remotely from the first location, the one or

more server computers configured to receive out-

side temperature measurements from at least one

source other than the HVAC system,

wherein the one or more server computers

are configured to calculate one or more pre-

dicted rates of change in temperature at the

first location based on status of the HVAC

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6 ECOFACTOR, INC. v. GOOGLE LLC

system, and based on the outside temperature

measurements, wherein the one or more predicted

rates of change predict a speed a temperature in-

side the first location will change in response to

changes in outside temperature; and

wherein the one or more server computers are fur-

ther configured to determine whether to direct the

HVAC control system to pre-cool the first structure

based on the one or more predicted rates of change

prior to directing the HVAC control system to re-

duce electricity demand.

Id., col. 13, lines 31–57 (emphases added).

8. A method for controlling a heating, ventilation

and air conditioning (HVAC) system that com-

prises:

receiving inside temperature measurements from

at least a first location conditioned by at least

one HVAC system;

storing in one or more databases the inside

temperature measurements over time;

receiving outside temperature measurements from

at least one source other than the HVAC system;

calculating with one or more server comput-

ers comprising computer hardware, one or

more predicted rates of change in tempera-

ture at the first location based on the status

of the HVAC system, and based on outside tem-

perature measurements, wherein the one or more

predicted rates of change predicts a speed a tem-

perature inside the first location will change in re-

sponse to changes in outside temperature; and

determining with the one or more server computers

whether to direct the HVAC control system to pre-

cool the first structure based on the one or more

Case: 24-1027 Document: 66 Page: 7 Filed: 07/08/2025

ECOFACTOR, INC. v. GOOGLE LLC 7

predicted rates of change prior to directing the

HVAC control system to reduce electricity demand.

Id., col. 14, lines 19–39 (emphases added).

C

The ’597 patent is titled “System, Method and Appa-

ratus for Identifying Manual Inputs to and Adaptive Pro-

gramming of a Thermostat.” The specification explains

that, with typical programmable thermostats, a mismatch

between scheduled settings and the actual preferences of

the occupants can prompt occupants to manually override

the programmed settings. ’597 patent, col. 1, line 45,

through col. 2, line 8. It would be desirable, the patent

states, for a system to adapt its programming in response

to such manual changes and “take into account both out-

side weather conditions and the thermal characteristics of

individual homes in order to . . . achieve the best possible

balance between comfort and energy savings.” Id., col. 2,

lines 9–17.

The patent states that manual overrides are generally

not recorded by the thermostat (or communicated to the

system), but must be detected by calculating the difference

between the setpoint as recorded by the thermostat and the

scheduled setpoint. Id., col. 5, lines 44–47; id., col. 5, line

54, through col. 6, line 19. The system can use manual

override data to determine whether a change in baseline

programming is warranted, i.e., if the occupants’ prefer-

ences (as evidenced by the manual override) do not align

with the scheduled programming. Id., col. 7, lines 3–43.

The independent claims recite as follows:

1. A method for detecting manual changes to the

setpoint for a thermostatic controller comprising:

providing a thermostatic controller operatively

connected to a heating ventilation and air condi-

tioning system, the temperature set point of the

Case: 24-1027 Document: 66 Page: 8 Filed: 07/08/2025

8 ECOFACTOR, INC. v. GOOGLE LLC

heating ventilation and air conditioning system be-

ing manually changeable;

accessing stored data comprising a plurality of in-

ternal temperature measurements taken within a

structure and a plurality of outside temperature

measurements;

using the stored data to predict changes in

temperature inside the structure in response

to at least changes in outside temperatures;

calculating with at least one computer, scheduled

programming of the thermostatic controller for one

or more times to control the heating ventilation and

air conditioning system, the scheduled program-

ming comprising at least a first automated setpoint

at a first time;

recording, with the thermostatic controller, actual

setpoints of the heating ventilation and air condi-

tion system;

communicating the actual setpoints from the one

or more thermostatic controllers to the at least one

computer;

generating with the at least one computer, a differ-

ence value based on comparing at least one of the

an [sic] actual setpoints at the first time for the

thermostatic controller to the first automated set-

point for the thermostatic controller;

detecting a manual change to the first auto-

mated setpoint by determining whether the

at least one of the actual setpoints and the

first automated setpoint are the same or dif-

ferent based on the difference value; and

logging the manual change to a database.

Id., col. 8, lines 8–38 (emphases added).

Case: 24-1027 Document: 66 Page: 9 Filed: 07/08/2025

ECOFACTOR, INC. v. GOOGLE LLC 9

9. A method for incorporating manual changes to

the setpoint for a thermostatic controller, the

method comprising:

providing a thermostatic controller operatively

connected to a heating ventilation and air condi-

tioning system, the temperature set point of the

heating ventilation and air conditioning system be-

ing manually changeable;

accessing stored data comprising a plurality of in-

ternal temperature measurements taken within a

structure and a plurality of outside temperature

measurements;

using the stored data to predict changes in

temperatures inside the structure in re-

sponse to at least changes in outside temper-

atures;

calculating scheduled programming of setpoints in

the thermostatic controller based on the predicted

rate of change, the scheduled programming com-

prising at least a first automated setpoint at a first

time and a second automated setpoint at a second

time to control the heating ventilation and air con-

ditioning system;

recording, with the thermostatic controller, actual

setpoints of the heating ventilation and air condi-

tion system;

communicating the actual setpoints from the ther-

mostatic controller to the at least one computer;

comparing at least one of the actual setpoints at the

first time for the thermostatic controller to the first

automated setpoint for the thermostatic controller;

detecting a manual change to the first auto-

mated setpoint by determining whether the

at least one of the actual setpoints and the

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10 ECOFACTOR, INC. v. GOOGLE LLC

first automated setpoint are the same or dif-

ferent; and

changing the operation of the heating ventilation

and air conditioning system by changing the second

automated setpoint at the second time based on at

least one rule for the interpretation of the manual

change.

Id., col. 8, line 56, through col. 9, line 21 (emphases added).

17. An apparatus for detecting manual changes to

one or more setpoints for a thermostatic controller,

the apparatus comprising:

a programmable communicating thermostat opera-

tively connected to a heating ventilation and air

conditioning system, the temperature set point of

the heating ventilation and air conditioning system

being manually changeable;

at least an electronic storage medium comprising

stored data of a plurality of internal temperature

measurements taken within a structure and a plu-

rality of outside temperature measurements;

computer hardware configured to communicate

with the electronic storage medium and with the

programmable communicating thermostat, the

computer hardware configured to use the

stored data to predict a rate of change of tem-

peratures inside the structure in response to

changes in outside temperatures;

the computer hardware further configured to cal-

culate a scheduled setpoint programming of the

programmable communicating thermostat for one

or more times to control the heating ventilation and

air conditioning system based on the predicted rate

of change, the scheduled programming comprising

one or more automated setpoints;

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ECOFACTOR, INC. v. GOOGLE LLC 11

wherein the programmable communicating ther-

mostat records actual setpoints of the heating ven-

tilation and air condition system;

wherein the computer hardware is further config-

ured to store in the electronic storage medium, the

one or more automated setpoints associated with

the scheduled programming for the programmable

communicating thermostat;

wherein the programmable communicating ther-

mostat records actual setpoints of the heating ven-

tilation and air condition system;

wherein the computer hardware is further config-

ured to obtain the actual setpoints from the pro-

grammable communicating thermostat and store

the actual setpoints in the electronic storage me-

dium;

wherein the computer hardware is further config-

ured to compare the one or more automated set-

points associated with the scheduled setpoint

programming with at least one of the actual set-

points; and

wherein the computer hardware is further

configured to detect a manual change to the

one or more automated setpoints by deter-

mining whether the at least one of the actual

setpoints and the one or more automated set-

points are the same or different based on the

difference value.

Id., col. 9, line 40, through col. 10, line 34 (emphases

added).

D

Google petitioned for inter partes reviews of the ’100

and ’186 patents on February 2, 2022, and of the ’597 pa-

tent the next day. Google argued that claims 1–16 of the

Case: 24-1027 Document: 66 Page: 12 Filed: 07/08/2025

12 ECOFACTOR, INC. v. GOOGLE LLC

’100 patent; claims 1–13 of the ’186 patent; and claims 1–

24 of the ’597 patent were unpatentable for obviousness.

See 35 U.S.C. § 103.

The primary reference cited by Google for the three pa-

tents was U.S. Patent Pub. No. 2004/0117330 (“Ehlers”).

Ehlers discloses an energy management system that

“learns from the user’s inputs or adjustments to the system

to change or modify indoor air temperature” and modifies

system settings accordingly. ’100 Patent Decision, at *6

(citing J.A. 5098 ¶ 20; J.A. 5113 ¶¶ 242–43); ’597 Patent

Decision, at *6 (same); see also ’186 Patent Decision, at *5.

For the ’100 patent, Google relied on the combination of

Ehlers and another reference not relevant on appeal. For

the ’186 patent, Google relied on the combination of Ehlers

and U.S. Patent No. 6,868,293 (“Schurr”). Schurr describes

a “load curtailment system” for managing energy use. ’186

Patent Decision, at *5 (citing J.A. 5142, col. 3, lines 55–59;

id., col. 3, line 65, through col. 4, line 6). For the ’597 pa-

tent, Google argued that Ehlers “could be applied in a

standalone § 103 challenge,” but that another reference,

U.S. Patent Pub. No. 2005/0040250 (“Wruck”), “reinforce[s]

the obviousness” of certain limitations. Wruck describes

remote configuring of programmable thermostats. ’597 Pa-

tent Decision, at *10 (citing J.A. 25134, Abstract).

The Board issued final written decisions for the ’186

and ’597 patents on August 1, 2023, and for the ’100 patent

on August 7, 2023. ’100 Patent Decision, at *1; ’186 Patent

Decision, at *1; ’597 Patent Decision, at *1. The Board

agreed with Google that all challenged claims of the three

patents were unpatentable for obviousness. ’100 Patent

Decision, at *1; ’186 Patent Decision, at *1; ’597 Patent De-

cision, at *1. EcoFactor timely appealed to this court, and

we have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).

II

We review the Board’s legal conclusions without defer-

ence and its factual determinations for substantial-

Case: 24-1027 Document: 66 Page: 13 Filed: 07/08/2025

ECOFACTOR, INC. v. GOOGLE LLC 13

evidence support. In re Jolley, 308 F.3d 1317, 1320 (Fed.

Cir. 2002); In re Lister, 583 F.3d 1307, 1311 (Fed. Cir.

2009). Obviousness is an issue of law whose resolution de-

pends on underlying findings of fact. Corephotonics, Ltd.

v. Apple Inc., 84 F.4th 990, 1003 (Fed. Cir. 2023); Graham

v. John Deere Co., 383 U.S. 1, 17–18 (1966). The Board’s

ultimate obviousness conclusion is subject to de novo re-

view, but “the subsidiary factual findings are reviewed for

substantial evidence.” Intelligent Bio-Systems, Inc. v. Illu-

mina Cambridge Ltd., 821 F.3d 1359, 1366 (Fed. Cir. 2016)

(citing In re Gartside, 203 F.3d 1305, 1312, 1316 (Fed. Cir.

2000)). What the prior art discloses is a question of fact, so

the Board’s findings about such disclosures are reviewed

for substantial-evidence support. Corephotonics, 84 F.4th

at 1003. Substantial evidence is “such relevant evidence

as a reasonable mind might accept as adequate to support

a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229 (1938).

EcoFactor challenges four aspects of the Board’s deci-

sions. First, EcoFactor argues that Ehlers does not disclose

calculating “predicted rates of change in temperature,” as

recited in all independent claims of the three patents at is-

sue here.1 EcoFactor Opening Br. at 30–50. Second, Eco-

Factor argues that Ehlers does not disclose calculating the

predicted rate of change “based on [the] status of the HVAC

system,” as recited in the independent claims of the ’186

patent. Id. at 50–57. Third, EcoFactor argues that the

Board erred in finding that the combination of Ehlers and

Schurr teaches storing inside temperature measurements,

as recited in the independent claims of the ’186 patent. Id.

at 57–61. Fourth, EcoFactor argues that Google’s petition

1 Although there are slight variations in the phras-

ing of this limitation among the patents, the parties do not

argue that such differences matter here. See EcoFactor

Opening Br. at 31.

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14 ECOFACTOR, INC. v. GOOGLE LLC

for an inter partes review of the ’597 patent did not disclose

a sufficient obviousness theory for “detecting a manual

change to the first automated setpoint” because Google re-

lied on “general concepts” rather than a “particular exam-

ple.” Id. at 62–73. We reject these arguments.

A

For the “predicted rates of change in temperature” lim-

itation, the Board found that figure 3D in Ehlers (below)

“graphs the change of temperature over time based on a

given starting internal temperature (set point) and an ex-

ternal temperature.” ’100 Patent Decision, at *7.2 In par-

ticular, the Board found that “the slope of the line [in figure

3D], which represents the thermal gain rate, is the rate of

change of the internal temperature over time during peri-

ods in which the HVAC is turned off.” Id. For example,

the Board found that lines 3.12A, 3.12B, and 3.12C show

thermal gain (and the slopes the thermal gain rates) start-

ing at an indoor temperature of 72°F (despite the “setpoint”

label on the vertical axis) when outdoor temperatures are

99°F, 90°F, and 77°F, respectively. Id. (citing J.A. 5114

¶ 253).

2 The Board’s discussion of Ehlers is materially the

same in the three decisions, so we cite primarily to the de-

cision for the ’100 patent for this subsection. See ’100 Pa-

tent Decision, at *6–10; ’186 Patent Decision, at *6–9; ’597

Patent Decision, at *6–10.

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ECOFACTOR, INC. v. GOOGLE LLC 15

J.A. 5085.

The Board explained that “Ehlers calculates the ther-

mal gain rate so that it can make predictions about future

inside temperatures, including predictions based on

changes in outside temperatures.” ’100 Patent Decision, at

*15 (citing J.A. 15062–64 ¶¶ 138–39; J.A. 16286 ¶ 26). The

thermal gain rate is used to “manage costs and comfort” by,

for example, increasing the indoor setpoint if the thermal

gain rate is relatively high in order to maintain a desirable

cycle run time (i.e., a desirable ratio of off to on time for the

HVAC system). Id. (discussing J.A. 5114–16 ¶¶ 252, 256).

These findings are supported by substantial evidence, and

EcoFactor’s arguments to the contrary are not convincing.

EcoFactor argues that the thermal gain rates disclosed

by Ehlers are not predictions of the rate of change in tem-

perature, but rather the warming force acting upon the

structure “given a fixed differential between indoor and

outdoor temperature.” EcoFactor Opening Br. at 35. The

thermal gain rates are not predictions of the rate of change

in temperature, EcoFactor argues, because the system in

Ehlers “does not predict that the indoor temperature will

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16 ECOFACTOR, INC. v. GOOGLE LLC

change in accordance with the thermal gain rates.” Id. at

5 (emphasis added). The basis for this argument is that

figure 3E of Ehlers recites thermal gain rates ranging from

1–3°F/hour, while the Board found that the actual “rate of

change of inside temperature [is] at or near zero.” Id. at 30

(alteration in original) (citing ’100 Patent Decision, at *9).

Accordingly, in EcoFactor’s view, it cannot be true that Eh-

lers discloses a positive predicted rate of change of the in-

side temperature if the inside temperature remains

constant.

We are not convinced by EcoFactor’s arguments. The

Board’s thermal gain rate finding is supported by the ex-

plicit statement in Ehlers that figure 3D depicts “a thermal

gain table” and illustrates a “rate [o]f thermal gain

change.” J.A. 5114 ¶ 253. Ehlers also indicates that ther-

mal gain rate is a measure of change of temperature over

time, as it teaches that in one embodiment, “the rate of

thermal gain per hour would be set at 3 degrees F. per

hour.” J.A. 5115 ¶ 255.

More broadly, we agree with the Board that EcoFac-

tor’s argument “does not account for how an HVAC system

operates,” i.e., by cycling between on and off in order to

keep the temperature close to the setpoint. ’100 Patent De-

cision, at *9. The Board explained:

The percentage of time the system is on “increases

or decreases to balance the thermal gain rate of the

structure—e.g., to keep the net rate of change in in-

door temperature over time at or close to zero.”

That is, in the cooling context, although there is a

gain in temperature when the HVAC is off, this is

balanced by a negative gain (or decrease) in tem-

perature when the HVAC is on. A person having

ordinary skill in the art would recognize that the

positive and negative gain balance to keep the in-

ternal temperature at or near the set point.

Id. (internal citations omitted).

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ECOFACTOR, INC. v. GOOGLE LLC 17

The Board also reasonably credited the testimony of

Google’s expert, Mr. Shah. Id. at *7 (citing J.A. 15058–60

¶¶ 134–35); id. at *9 (citing J.A. 16280–84 ¶¶ 16–21). Mr.

Shah explained that the relevant artisan would under-

stand that the thermal gain rates of figure 3D show the

rate of temperature change over time while the HVAC sys-

tem is off, and that the thermal gain rates disclosed in fig-

ure 3E of 1–3°F/hour “would substantially increase the

actual inside temperature itself over time,” in the manner

asserted by EcoFactor, “if it were not for the HVAC system

delivering sufficient cooling during the periods of time in

which it is [on].” J.A. 16282 ¶ 19; see also J.A. 15058–60

¶¶ 134–35; J.A. 16280–84 ¶¶ 16–21. But because the

HVAC system cycles on after the periods of positive ther-

mal gain (i.e., those in which the HVAC system is off), the

temperature remains relatively constant around the indoor

setpoint. Accordingly, in light of the express disclosures of

Ehlers coupled with the expert testimony credited by the

Board, we conclude that EcoFactor has not demonstrated

reversible error in the determination that Ehlers renders

obvious calculating predicted rates of change in tempera-

ture, as recited in all claims of the ’100, ’186, and ’597 pa-

tents.

B

EcoFactor argues that the Board implicitly, and incor-

rectly, “construed claim 1 [of the ’186 patent] in holding

that the ‘effect of turning the HVAC system’ on does not

need to be accounted for in the prediction, despite the lan-

guage in claim 1 requiring that the prediction be for the

‘first location’ that is ‘conditioned by at least one HVAC

system.’” EcoFactor Opening Br. at 52 (citing ’186 Patent

Decision, at *14). Under the correct construction, EcoFac-

tor asserts, the predicted rate of change should “account for

the effects of conditioning by the HVAC system,” i.e., apply

Case: 24-1027 Document: 66 Page: 18 Filed: 07/08/2025

18 ECOFACTOR, INC. v. GOOGLE LLC

to periods during which the HVAC system is on. EcoFactor

Opening Br. at 51.3

The Board found, with respect to the ’186 patent, that

the predicted rates of change in temperature in Ehlers are

“based on [the] status of the HVAC system,” as required by

claims 1 and 8. The Board’s discussion is as follows:

Claim 1 simply requires that the predicted rate of

change be based upon that “status of the HVAC

system.” As discussed in Section II.E.3, the ther-

mal gain rate in Ehlers applies when the HVAC is

off, which is a status of the HVAC system. Nothing

in claim 1 requires it to calculate a predicted rate

of change for all statuses of the HVAC system.

’186 Patent Decision, at *14.

On the merits, EcoFactor’s claim construction argu-

ment is not convincing. The requirement that the first lo-

cation be “conditioned” does not demand that the predicted

rate of change of temperature at the first location be calcu-

lated for when the HVAC system is on, as EcoFactor argues

here. The specification of the ’186 patent states that the

rate of change of temperature at the first location is calcu-

lated both for “periods during which the status of the

HVAC system is ‘on’” and “periods during which the status

of the HVAC system is ‘off.’” ’186 patent, col. 4, lines 32–

35; see also id., col. 4, lines 19–20 (stating that the first lo-

cation is “conditioned by said HVAC system” in the same

embodiment). Accordingly, the status of the first location

being “conditioned” is separate from the “status of the

HVAC system,” which can be on or off, and does not support

requiring that the predicted rate of change in temperature

3 Because we affirm the Board’s treatment of this

claim limitation on the merits, we do not address Google’s

argument that EcoFactor forfeited this argument. See

Google Response Br. at 47–49.

Case: 24-1027 Document: 66 Page: 19 Filed: 07/08/2025

ECOFACTOR, INC. v. GOOGLE LLC 19

be calculated for periods in which the status of the HVAC

system is on.

C

EcoFactor argues that the Board erred in finding that

the combination of Schurr and Ehlers teaches “one or more

databases that store the inside temperature measurements

over time,” as recited in the ’186 patent. EcoFactor Open-

ing Br. at 57–61; see ’186 Patent Decision, at *10–12. In

particular, EcoFactor asserts that Ehlers does not disclose

storing individual temperature measurements, but rather

taking average temperatures. Id. at 59–60. This argument

is not convincing in light of the Board’s findings, which are

supported by substantial evidence.

The Board found that Schurr teaches a database but

does not expressly disclose that the database is used to

store inside temperature measurements. ’186 Patent Deci-

sion, at *10 (citing J.A. 5141, col. 2, lines 25–27; J.A. 5142,

col. 4, lines 4–6; J.A. 5040 ¶¶ 98, 99). The Board explained

that the relevant artisan, “in order to have a reasonable

expectation of success in using Ehlers’ thermal gain rate

computations,” would have modified Schurr to store inside

temperature measurements in the database. Id. (citing

J.A. 5040–42 ¶¶ 99–101). Ehlers states that the system

can generate “[d]aily temperature reports displaying tem-

perature and setpoints in, e.g., 15-minute intervals,” J.A.

5103 ¶ 124, and the Board credited EcoFactor’s expert’s ad-

mission that the Ehlers system could not generate such a

report if inside temperature measurements were not

stored, ’186 Patent Decision, at *11 (citing J.A. 5755, 30:20–

31:1 (“[Ehlers] would not be able to display temperature

measurements without storing those temperature meas-

urements.”).

D

EcoFactor argues that Google’s petition for an inter

partes review of the ’597 patent did not provide an

Case: 24-1027 Document: 66 Page: 20 Filed: 07/08/2025

20 ECOFACTOR, INC. v. GOOGLE LLC

obviousness theory for “‘detecting a manual change to the

first automated setpoint’ through a setpoint comparison

and determination involving an actual setpoint and this

same ‘first automated setpoint.’” EcoFactor Opening Br. at

67–73 (emphasis omitted).4

The Board rejected that argument:

[Google] does discuss application of Ehlers[’] teach-

ing of detecting a manual change of a setpoint to

the automated setpoints in Ehlers and in view of

the combination of Ehlers and Wruck. The Petition

refers to the automated setpoints generally and

does not refer to a particular example, however we

see no need to discuss more than the general con-

cept as applied to automated setpoints.

’597 Patent Decision, at *15 (citing J.A. 20019–20). The

Board’s finding is supported by the petition itself, which

explains why it would have been obvious based on either

Ehlers alone, or Ehlers in combination with Wruck, to com-

pare an actual setpoint to the automated setpoint in order

to determine whether a manual change occurred. J.A.

20019–20. EcoFactor’s related argument that the Board’s

discussion of “general concept[s]” was insufficient, EcoFac-

tor Opening Br. at 69, is similarly unpersuasive, as

4 EcoFactor also argues that the Board’s treatment

of claim 9 of the ’597 patent was “fundamentally flawed.”

EcoFactor Opening Br. at 62–67. Claims 9–16, however,

were held to be invalid for indefiniteness in EcoFactor, Inc.

v. ecobee, Inc., No. 6:21-cv-00428 (W.D. Tex. Mar. 22, 2022).

J.A. 20306–09. Google asserts, and EcoFactor does not con-

test, that EcoFactor is estopped from challenging the inva-

lidity of those claims before this court. Google Response

Br. at 56 n.26; Oral Arg. at 32:18–33:06,

https://oralarguments.cafc.uscourts.gov/default.aspx?fl=24

-1027_06042025.mp3.

Case: 24-1027 Document: 66 Page: 21 Filed: 07/08/2025

ECOFACTOR, INC. v. GOOGLE LLC 21

EcoFactor does not point out any particular deficiency in

the Board’s conclusion that Ehlers and Wruck render this

claim element obvious.

III

We have considered the remainder of EcoFactor’s argu-

ments and find them unpersuasive. For the foregoing rea-

sons, we affirm the Board’s unpatentability determinations

for the ’100, ’186, and ’597 patents.

AFFIRMED