Case 6:21-cv-00642-ADA Document 37 Filed 01/28/22 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC. (D/B/A FLYP),
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`Plaintiff,
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`Civil Action No. 6:21-cv-642-ADA
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`vs.
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`DIALPAD, INC.,
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`Defendant.
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`JURY TRIAL DEMANDED
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`PLAINTIFF FLYPSI, INC.’S
`REPLY CLAIM CONSTRUCTION BRIEF
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`Pursuant to the Court’s Order Governing Proceedings – Patent Cases (“OGP”) (Dkt.
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`No. 20), and the Court’s Amended Scheduling Order (Dkt. No. 29), Flyp submits this Reply Claim
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`Construction Brief. Here, the disputed terms of the Asserted Patents do not require construction
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`and should be given their plain-and-ordinary meaning to a person of ordinary skill in the art.
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`A.
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`Primary Telephone Number
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`Dialpad has conceded that it was not accurate to construe “primary” to mean “assigned …
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`at activation” as such a construction would be contrary to established law and the common
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`understanding of a POSITA1 (as well as lay jurors). As previewed in Flyp’s responsive brief, the
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`remaining question is whether the remainder of Dialpad’s proposed construction—now its revised
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`construction—is necessary. It is not.
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`1 Dialpad has not submitted any argument regarding the level of ordinary skill in the art. Accordingly, the
`Court should adopt Flyp’s unrebutted proposal.
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`GOOGLE EXHIBIT 1010
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`Dialpad’s revised construction—“a telephone number or identifier that is assigned to a
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`handset or mobile device”—does nothing to distinguish “primary telephone number” from
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`“secondary telephone number.” Indeed, both numbers are used to connect to a handset or mobile
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`device as discussed throughout the specification and the claims. Dialpad’s revised construction
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`has reached a level of abstraction such that it no longer defines the term in dispute but rather applies
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`equally to nearly any “telephone number.” Dialpad’s revised construction is thus not only
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`unhelpful but now invites possible juror confusion.
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`As established in Flyp’s response brief, both a POSITA and lay jurors are already familiar
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`with the common meaning of a “telephone number.” The modifiers “primary” and “secondary” as
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`used throughout the patents provide a simple and readily ascertainable delineation—one number
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`is primary, and the other is secondary. Where, as here, “there is nothing about the claim term that
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`is confusing … the term requires no construction.” Pisony v. Commando Constr., Inc., Case No.
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`W-17-cv-55, 2019 WL 928406, at *5 (W.D. Tex. Jan. 23, 2019) (Albright, J.)
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`Dialpad concedes the argument that “secondary telephone number” and other similar terms
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`in the claims need no construction. As argued in Flyp’s response and left unaddressed in Dialpad’s
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`reply, if “secondary telephone number” needs no construction, then “primary telephone number”
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`likewise requires no construction.
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`Finally, Dialpad’s revised construction is also impermissibly limiting. Just as a user may
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`change his or her primary phone number at some point after activation, a user may also carry a
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`primary telephone number from one mobile phone to a different mobile phone. Both a POSITA
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`and lay jurors would be familiar with the basic process of phone upgrades, which often involves
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`porting an existing number from an old phone to the upgraded phone. A “primary telephone
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`number” thus may be assigned to a particular mobile phone or handset for only a limited time but
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`be assigned to a particular account for a longer period. Dialpad’s revised construction fails to
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`account for this well-understood arrangement and thus impermissibly limits the claims.
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`Because the term “primary telephone number” is a readily understandable term by both a
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`POSITA and lay jurors, the Court should decline to rewrite this simple, three-word term into a
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`complicated and confusion-causing 14-word construction.
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`B.
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`Voice Channel
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`Dialpad also confusingly argues for a construction of “voice channel” while conceding that
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`“data channel” needs no construction, as it would be readily understood by a POSITA. While
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`Dialpad argues that the specification is definitional as to “voice channel,” it concedes that parallel
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`statements related to “data channel” are not definitional.
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`In truth, the specification passage on which Dialpad’s entire argument rests is not
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`definitional but rather exemplary and permissive. As quoted in full in Dialpad’s reply, the
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`specification states:
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`The communications between the server 100 and the handset 340
`over the Internet 316 may utilize IP as a protocol opposed to
`protocols used to establish communications according to CDMA,
`GSM, or like standards. Such IP governed communications are
`referred to herein as being conducted over a “data channel.”
`Conversely, communications between the Switch 110 and the
`handset over the PSTN 310 may be transmitted and received in
`accordance with CDMA, GSM or like standards as opposed to using
`IP. Such CDMA, GSM or like governed communications, when
`used to carry voice information, are referred to herein as being
`conducted over a “voice channel.
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`’770 Patent at 4:35-46 (emphasis added). By not seeking a construction, Dialpad concedes that the
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`specification’s statements on “data channel”—that it “may utilize IP as a protocol”—are not
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`definitional. But similarly, the specification’s parallel statements on “voice channel” are also not
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`definitional. Indeed, the specification’s treatment of “voice channel” is more exemplary and more
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`permissive than its treatment of “data channel.” Regarding “voice channel,” the specification states
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`(1) that communications may be transmitted in accordance with CDMA/GSM, (2) that
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`communications may also be transmitted via undefined and future released “like governed
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`standards,” and (3) that such governed standards are only considered to be a voice channel “when
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`used to carry voice information.” Id. Contrary to being definitional, the specifications treatment of
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`“voice channel” is at best exemplary.
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`For that reason, Dialpad’s reliance on The Trustees of Columbia University v. Symantec
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`Corporation is misplaced. (Dkt. No. 33 (“Reply”) at 5 (citing Trs. of Columbia Univ. in the City
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`of N.Y. v. Symantec Corp., 811 F.3d 1359, 1363 (Fed. Cir. 2016)). That case stands for the
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`unremarkable proposition that disavowal or lexicography need not necessarily be explicit or follow
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`some rigid formalism but may instead be found implicitly in the whole of the intrinsic record. Trs.
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`of Columbia Univ, 811 F.3d at 1363. Here, however, the language in the specification is explicitly
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`exemplary in nature such that it cannot be read to be definitional either explicitly or implicitly.
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`Moreover, even if Dialpad’s definitional arguments are accepted by this Court (they should
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`not be), Dialpad’s proposed construction is improper. Dialpad’s proposed construction strays too
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`far from the specification’s alleged definition. None of the specification’s language regarding
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`permissible standards, “like standard or “like governed communications,” or “when used to carry
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`voice information” is found in Dialpad’s proposed construction. And the phrase “communications
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`path” appears nowhere in the patent—a fact on which Dialpad has no response. Dialpad’s proposed
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`construction is thus completely removed from the portion of the specification on which its
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`arguments rely.
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`Dialpad’s proposed construction strays far from that actual language in the specification
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`because, contrary to its definitional arguments, Dialpad is really attempting to rewrite the term to
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`suit its own argumentative purposes. As previewed in Flyp’s response, Dialpad’s proposed
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`construction could be read to suggest that voice channels only carry voice. (Dkt. No. 26
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`(“Response”) at 13). Dialpad’s reply does not disavow this argument, which suggests its real
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`motivation. Because the specification clearly envisions telecom standards that may carry both data
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`and voice but are considered voice channels “when used to carry voice information,” Dialpad’s
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`proposed construction and the arguments that stem from it are contrary to the intrinsic evidence.
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`C.
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`Switch and Associated With
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`Dialpad’s response underscores that its indefiniteness contention is based on three flawed
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`premises: (1) a mistaken belief that a POSITA with the requisite experience and education in
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`telecommunications would not understand what the term “switch” means; (2) the misapprehension
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`that a POSITA possessing the requisite experience and education would not understand with
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`reasonable certainty how a switch may be associated with other elements on a telecommunications
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`network; and (3) the misguided contention that “switch” is merely a nonce term that lacks
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`sufficient structure and should be given means-plus-function treatment. As explained below,
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`Dialpad is wrong on each of these points, and the Court should thus find the term “switch”
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`sufficiently definite and apply its plain-and-ordinary meaning in the art.
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`First, a POSTA would understand with reasonable certainty what a switch is and what kind
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`of structure it represents. A switch is a well-known term of art that describes a long-understood
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`structure in telecommunications. Dialpad accordingly admits (as it must) that the evidence in the
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`record shows that “a switch is a class of structures.” (Reply at 7). Yet Dialpad incorrectly argues
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`that the term is indefinite because it “covers a variety of elements from mechanical devices, to
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`electrical devices to software.” Id. But “breadth is not indefiniteness.” BASF Corp. v. Johnson
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`Matthey Inc., 875 F.3d 1360, 1367 (Fed. Cir. 2017) (quoting SmithKline Beecham Corp. v. Apotex
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`Corp., 403 F.3d 1331, 1341 (Fed. Cir. 2005)). The fact that a switch describes a class of structures
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`accordingly does not render it indefinite.
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`Dialpad suggests the Court should ignore this clear guidance from the Federal Circuit
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`because this case is “similar to” Dynamic Applet Techs., LLC v. Mattress Firm, Inc., 4:17-CV-
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`860-ALM-KPJ, 2018 WL 6816068, at *8 (E.D. Tex. Dec. 27, 2018) (Johnson, J.). Dialpad,
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`however, misstates Dynamic Applet. Dialpad suggests that Judge Johnson found a claim indefinite
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`because “the claim scope [was] not reasonably certain because nothing prevents Plaintiff from
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`strategically drawing boundaries in its analysis of an accused system.” (Reply at 8 (quoting
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`Dynamic Applet, 2018 WL 6816068 at *8)). Dialpad is wrong on both the quote and the holding.
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`Glaringly, Dialpad omits the quote’s beginning, where it is clear Judge Johnson was characterizing
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`the defendant’s argument, not agreeing with it. The quote reads in full:
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`At the December 18, 2018, hearing, Defendants urged that the
`claim scope is not reasonably certain because nothing prevents
`Plaintiff from strategically drawing boundaries in its analysis of an
`accused system so as to avoid any “links” that resemble what the
`patentee distinguished.
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`Dynamic Applet, 2018 WL 6816068, at *8 (emphasis added). Dialpad also omits that the court
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`then immediately “expressly rejects” that argument and instead finds the disputed term sufficiently
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`definite. See id. (“The Court therefore hereby expressly rejects Defendants’ indefiniteness
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`argument.”) (emphasis added); see also SmithKline Beecham Corp., 403 F.3d at 1340–41 (“The
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`test for indefiniteness does not depend on a potential infringer's ability to ascertain the nature of
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`its own accused product to determine infringement, but instead on whether the claim delineates to
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`a skilled artisan the bounds of the invention.”). Dialpad is thus correct that this case is “similar to”
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`Dynamic Applet—but only because this Court should likewise reject Dialpad’s arguments and find
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`the term “switch” sufficiently definite.
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`Second, a POSITA would understand with reasonable certainty how a switch is “associated
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`with” other claim elements in any given system. Dialpad contends that the specification does not
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`explain how the switch may be associated with other network elements. Not so. Figures 1–6
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`illustrate how switches associate with other elements in certain embodiments, and the specification
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`is likewise replete with discussions about how switches may associate with other elements in
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`telecommunications networks. See, e.g., ’770 patent at 1:40–50, 1:61–2:13, 2:29–39, 2:40–45,
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`4:13–34, 4:40–46, 4:47–52, 5:55–6:4, 6:65–5, 7:50–8:32, 8:49–53, 8:57–61, 9:35–42, 9:51–54.
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`Moreover, as Dr. Nettles explains, this information is “consistent with the background knowledge
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`[a POSITA] would have regarding switches,” which “are a well-known type of device that has
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`been used in telephony for decades.” (Nettles Decl. at ¶ 45). In other words, Dialpad’s mere
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`attorney argument that a POSITA would not understand with reasonable certainty how a switch is
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`associated with other elements in a telecommunications network ignores both the written
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`description from the patents and the background knowledge of a POSITA. Its argument should
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`accordingly be rejected.
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`Third, the term switch is not a means-plus-function term. The claims do not recite “means.”
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`Dialpad admits (as it must) that there is a presumption that claim terms lacking the word “means”
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`should not be treated as means-plus-function terms. (Reply at 8–9 (citing Williamson v. Citrix
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`Online, LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015))). Williamson explains that this presumption
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`stands unless the challenger can show “that the claim term fails to ‘recite sufficiently definite
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`structure’ or else recites ‘function without reciting sufficient structure for performing that
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`function.’” 792 F.3d at 1348. Dialpad has failed to show either is the case here. Dialpad admits
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`that “a switch is a class of structures.” (Reply at 7). It simply argues that class is too broad because
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`it “covers a variety of elements.” Id. But a claim can recite sufficiently definite structure even if it
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`refers to a broad class of structures. See R2 Sols. LLC v. Deezer S.A., 4:21-CV-122, 2022 WL
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`36240, at *30 (E.D. Tex. Jan. 4, 2022).
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`The R2 Solutions court found the term “server” did not warrant means-plus-function
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`treatment under Williamson. The R2 Solutions inquiry began with recognizing that the claims do
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`not use the words “means” and that there is accordingly a presumption that § 112, ¶ 6 does not
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`apply. See id. at *29. The claims did not use any terms identified in Williamson as potential nonce
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`words (e.g., module) that lack structure. See id. at *30. The R2 Solutions court considered the fact
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`that the term “server” represents a broad class of structures but concluded that this did not justify
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`its treatment as a means-plus-function term: “Although the term ‘server’ may refer to a broad class
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`of structures, this breadth does not necessarily render the term non-structural.” Id.; see also Skky,
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`Inc. v. MindGeek, s.a.r.l., 859 F.3d 1014, 1019 (Fed. Cir. 2017) (“To determine whether a claim
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`recites sufficient structure, ‘it is sufficient if the claim term is used in common parlance or by
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`persons of skill in the pertinent art to designate structure, even if the term covers a broad class of
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`structures and even if the term identifies the structures by their function.’” (quoting TecSec, Inc.
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`v. Int’l Bus. Machs. Corp., 731 F.3d 1336, 1347 (Fed. Cir. 2013))).
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`The same reasoning from R2 Solutions and Skky Inc. holds here. The disputed terms
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`“switch” and “associated with” do not recite the word “means.” Nor do they incorporate nonce
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`terms like “module.” Instead, like “server” in R2 Solutions, the term “switch” refers to a class of
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`structures. That this class of structures may be broad, as Dialpad contends, does not mean “switch”
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`lacks sufficient structure. Instead, as Flyp has shown through the intrinsic and extrinsic record, and
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`through the testimony of Dr. Nettles, the term switch is a well-known term that designates structure
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`to those of skill in the art. (See, e.g., Nettles Decl. at ¶¶ 45–48). This is sufficient to exclude it from
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`treatment as a mean-plus-function term and to find it connotes sufficient structure.
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`The Court should therefore find that Dialpad has not met its burden of showing by clear
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`and convincing evidence that the term “switch” is indefinite and should accordingly give the term
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`its plain-and-ordinary meaning as understood by one of skill in the art.
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`D.
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`Conclusion
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`For the reasons above, Dialpad’s claim construction positions should be rejected. The terms
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`of the Asserted Patents do not require construction and should be given their plain-and-ordinary
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`meaning to a person of ordinary skill in the art.
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`DATED: January 28, 2022
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`Respectfully submitted,
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`/s/ Thomas M. Melsheimer
`Thomas M. Melsheimer
`Texas Bar No. 13922550
`tmelsheimer@winston.com
`M. Brett Johnson
`Texas Bar No. 00790975
`mbjohnson@winston.com
`Michael A. Bittner
`Texas Bar No. 24064905
`mbittner@winston.com
`Chad Walker
`Texas Bar No. 24056484
`cbwalker@winston.com
`WINSTON & STRAWN LLP
`2121 North Pearl Street, Suite 900
`Dallas, TX 75201
`Telephone: (214) 453-6500
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`Matthew R. McCullough
`California Bar No. 301330
`mrmccullough@winston.com
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`Telephone: (650) 858-6500
`
`William M. Logan
`Texas Bar No. 24106214
`wlogan@winston.com
`WINSTON & STRAWN LLP
`800 Capitol Street, Suite 2400
`Houston, TX 77002
`Telephone: (713) 651-2766
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`ATTORNEYS FOR PLAINTIFF
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`/s/ Michael A. Bittner
`Michael A. Bittner
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing document was filed electronically in
`compliance with Local Rule CV-5. Therefore, this document was served on all counsel who are
`deemed to have consented to electronic service. Administrative Policies and Procedures for
`Electronic Filing in Civil and Criminal Cases, Western District of Texas, Section 14.
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