Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC. (D/B/A FLYP),
`
`
`Plaintiff,
`
`
`
`Civil Action No. 6:21-cv-642-ADA
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`
` JURY TRIAL DEMANDED
`
`
`
`
`v.
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`DIALPAD, INC.,
`
`
`Defendant.
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`
`
`
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`DEFENDANT DIALPAD, INC.’S REPLY CLAIM CONSTRUCTION BRIEF
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`Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 2 of 14
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`Table of Contents
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`Page
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`INTRODUCTION ......................................................................................................................... 1
`I.
`ARGUMENT ..................................................................................................................... 1
`A.
`Claim Terms For Construction .............................................................................. 1
`1.
`“primary telephone number” ...................................................................... 1
`2.
`“voice channel” .......................................................................................... 3
`Indefiniteness ......................................................................................................... 6
`1.
`The terms “switch” and “switch … associated with” are indefinite .......... 6
`CONCLUSION .................................................................................................................. 9
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`B.
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`II.
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`-i-
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`Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 3 of 14
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`
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`Cases
`
`Astrazeneca AB v. Mut. Pharm. Co.,
`384 F.3d 1333 (Fed. Cir. 2004)..................................................................................................6
`
`Dynamic Applet Techs., LLC v. Mattress Firm, Inc.,
`2018 U.S. Dist. LEXIS 216894 .................................................................................................8
`
`GPNE Corp. v. Apple, Inc.,
`830 F.3d 1365, 1370 (Fed. Cir. 2016)........................................................................................3
`
`Greenberg v. Ethicon Endo-Surgery, Inc.,
`91 F.3d 1580, 1583 (Fed. Cir. 1996)..........................................................................................9
`
`ICU Med., Inc. v. Alaris Med. Sys., Inc.,
`558 F.3d 1368 (Fed. Cir. 2009)..................................................................................................3
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`134 S. Ct. 2120, 2124 (2014) .....................................................................................................8
`
`Thorner v. Sony Computer Entertainment America LLC,
`669 F.3d 1362 (Fed.Cir.2012)....................................................................................................5
`
`Trs. of Columbia Univ. in the City of N.Y. v. Symantec Corp.,
`811 F.3d 1359 (Fed. Cir. 2016)..............................................................................................5, 6
`
`VirnetX, Inc. v. Cisco Sys., Inc.,
`767 F.3d 1308 (Fed. Cir. 2014)..................................................................................................3
`
`Watts v. XL Sys., Inc.,
`232 F.3d 877 (Fed.Cir.2000)......................................................................................................9
`
`Williamson v. Citrix Online, LLC,
`792 F.3d 1339 (Fed. Cir. 2015)..................................................................................................9
`
`Other Authorities
`
`Dictionary of Computing (6th ed. 2008)..........................................................................................8
`
`ii
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`Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 4 of 14
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`INTRODUCTION
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`In its brief, Flypsi provides background on itself, sets forth in entirety two patent claims,
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`and asserts that all meaning is self-evident from the claims. Flypsi also provides a “rebuttal”
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`declaration from its expert that does not provide constructions, but instead argues that claim
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`terms in dispute are “not limited” and do not require construction because a POSITA, not a jury,
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`knows the meaning. Flypsi provided no extrinsic evidence in the form of an expert declaration
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`when extrinsic evidence was due.
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`As explained in the opening brief and below, the claim terms “primary telephone
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`number” and “voice channel” that Dialpad put forward for construction should be construed
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`because their specific meaning is established by the intrinsic record.
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`With respect to “switch” and “… associated with,” identified by Dialpad as indefinite
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`during the claim construction process, Flypsi has not proposed a construction. Without settling
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`on a single meaning, Dr. Nettles identifies wide ranging definitions of “switch” from hardware to
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`software. He does not identify or define what the “associations” are. By leaving both terms
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`undefined, there is an indefiniteness problem with identifying what is the “switch” in any given
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`network and what the nature of the association is during an infringement analysis.
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`
`
`I.
`
`ARGUMENT
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`A.
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`Claim Terms For Construction
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`1.
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`“primary telephone number”
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`‘770 Patent claim 1, 4
`‘105 Patent claims 1, 2, 10 and 11
`‘094 patent claims 1
`‘554 patent claims 1
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`Dialpad’s Modified Proposed
`Construction
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`Flypsi’s Proposed Construction
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`1
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`Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 5 of 14
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`A telephone number or identifier that is
`assigned to a handset or mobile device at
`activation.
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`Undefined plain and ordinary meaning.
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`Flypsi argues that “primary telephone number” should not be construed as “assigned… at
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`activation” because while, “quite often, a primary telephone number is assigned at the time of
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`activation,” “[a]ll major carriers, however, allow a user to change his or her primary phone
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`number at some point after activation.” Flypsi Responsive Br. at 10. “It would be
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`impermissible to limit the claims only to the number assigned the time of activation.” Id.
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`Flypsi recognizes that the telephone number assigned at activation by a carrier, such as
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`Verizon, is a primary telephone number, but quarrels with the construction because a primary
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`telephone number can be assigned by the carrier at times other than “activation.” To
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`accommodate primary telephone number assignments after activation, the construction can be
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`revised to: “A telephone number or identifier that is assigned to a handset or mobile device.”
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`The patent specifications use the term “primary telephone number” 28 times and
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`“secondary telephone number” 63 times to carefully distinguish one from the other. Not
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`construing the term would eliminate any difference between primary telephone numbers and
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`secondary telephone numbers, as those terms are used in the claims. Flypsi fails to address this
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`point, and asserts that “primary telephone number” does not need to be construed because the
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`patentee did not act as a lexicographer.
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`Contrary to Flypsi’s assertion, the patentees’ extensive usage of the term “primary
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`telephone number” is consistent only with a telephone number assignment to a handset or
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`mobile device. The secondary telephone numbers are “added” to a primary telephone number,
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`see U.S. Patent No. 9,667,770 (Exhibit 1 to Dialpad Opening Br.) at Figure 2, which is also
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`2
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`described as one or more secondary telephone numbers being “referenced to a primary
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`telephone number for the handset,” Id. at 5:1-2. This formulation is consistent throughout.
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`Courts have recognized that when a patent “repeatedly and consistently” characterizes a
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`claim term in a particular way, it is proper to construe the claim term in accordance with that
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`characterization. See, e.g. , VirnetX, Inc. v. Cisco Sys., Inc. , 767 F.3d 1308, 1318 (Fed. Cir.
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`2014) ; ICU Med., Inc. v. Alaris Med. Sys., Inc., 558 F.3d 1368, 1374–75 (Fed. Cir. 2009). See
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`also GPNE Corp. v. Apple, Inc., 830 F.3d 1365, 1370 (Fed. Cir. 2016) (Prost, C.J.) (affirming a
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`construction of “device” as being a “pager” in view of consistent disclosure in the specification
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`where “the words ‘pager’ and ‘pager units’ appear in the specification over 200 times, and, apart
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`from the Abstract, the specification repeatedly and exclusively uses these words to refer to the
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`devices in the patented system.”). Here, likewise, primary telephone number repeatedly and
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`consistently is used in the specification to refer to the telephone number assigned to the mobile
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`device or handset, and it should be construed accordingly.
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`2.
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`“voice channel”
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`‘770 Patent claim 1, 4, and 6
`‘105 Patent claims 1, 2, 4, 5 and 8
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`Dialpad’s Proposed Construction
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`Flypsi’s Proposed Construction
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`A communications path used for voice
`information and voice calls.
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`Undefined plain and ordinary meaning.
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`
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`Flypsi argues in its responsive brief that no construction of “voice channel” is needed
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`and that the specification should not be used to inform the meaning of the term. Yet, it
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`acknowledges that the specification “makes clear that such channels [CDMA, GSM, and like
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`governed standards (like LTE and the more recent 5G)] are considered voice channels when
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`used to carry voice.” Fypsi Responsive Br. at 13. In fact, the specification evidences an explicit
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`Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 7 of 14
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`definition of “voice channel.” And, the repeated use of voice channel reinforces that definition
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`by implication.
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`In the specification, a full paragraph is devoted to data and voice channels, which
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`includes language that both parties quote:
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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). This paragraph distinguishes between a data channel
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`and a voice channel. Flypsi’s expert argues that usage of “may” in the above paragraph means
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`that voice channel is “not limited.” Nettles Decl. at ¶ 35. But, neither Flypsi nor its expert
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`addresses the definitional nature of the last sentence. The last sentence is definitional and uses
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`voice channel to refer to a communications path (such as CDMA, GSM or like governed
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`communications) when used to carry voice information.
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`Similarly, there are dozens of statements in the specification that calls are made and
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`connected using a voice channel:
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`• “incoming and outgoing calls, which are ultimately connected using a voice
`channel.” ’770 Patent, at Abstract.
`• “transmitting a voice call associated with the call handling information between the
`handset and the Switch using a voice channel provided in accordance with a Voice
`channel protocol, e.g., in accordance with CDMA or GSM, 3G, 4G, LTE or like
`future protocol channels standards.” Id. at 1:45-50.
`• “If the call is accepted in step 414, however, the handset application may
`automatically cause the handset 340 to call the bridge telephone number in step
`422 over a voice channel.” Id. at 6:62-65.
`• See also Id. at 6:62-65, 6:65-67, 6:67-7:6, 8:6-8:8, 8:8-8:11, 8:12-8:15, 9:32-35, 9:35-
`37, 9:40-42, 9:49-51.
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`4
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`Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 8 of 14
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`The specification thus makes clear by definition and implication that the voice channel is
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`used for calls and voice information. By contrast, the data channel carries information that may
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`be used to make telephone calls using the voice channel. See Id. at Abstract (“A data channel
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`connection with the telephone handset may provide pre-call information to set up incoming and
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`outgoing calls which are ultimately connected using a voice channel.” This is entirely consistent
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`with the claims. See ‘770 Patent, claim 1 (“likewise accepting the incoming call by connecting
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`with the switch over the at least one voice channel”), ‘105 Patent (Exhibit 2 to Dialpad Opening
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`Br.), claim 1 (“establishing a voice channel connection between the handset and the switch as a
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`result of the handset calling the switch using the bridge telephone number.”)
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`Flypsi cites Thorner v. Sony Computer Entertainment America LLC, 669 F.3d 1362
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`(Fed.Cir.2012) for the proposition that “‘only two exceptions to [the] general rule’ that claim
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`terms are construed according to their plain-and-ordinary meaning are when the patentee (1) acts
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`as his/her own lexicographer or (2) disavows the full scope of the claim term either in the
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`specification or during prosecution.” Flypsi Responsive Br. at 12. However, as recently
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`explained in, The Trustees Of Columbia University In The City Of New York v. Symantec
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`Corporation, “[o]ur case law does not require explicit redefinition or disavowal.” Trs. of
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`Columbia Univ. in the City of N.Y. v. Symantec Corp., 811 F.3d 1359, 1363 (Fed. Cir. 2016).
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`“Thus, we reject Columbia's argument that the presumption of plain and ordinary meaning ‘can
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`be overcome in only two circumstances: [when] the patentee has expressly defined a term or has
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`expressly disavowed the full scope of the claim in the specification and the prosecution history.’”
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`Id. at 1364. “As our en banc opinion in Phillips made clear, ‘a claim term may be clearly
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`redefined without an explicit statement of redefinition’ and ‘even when guidance is not provided
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`in explicit definitional format, the specification may define claim terms by implication such that
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`Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 9 of 14
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`the meaning may be found in or ascertained by a reading of the patent documents.’” Id. at 1363.
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`See also Astrazeneca AB v. Mut. Pharm. Co., 384 F.3d 1333 (Fed. Cir. 2004) (The patentee
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`“seems to suggest that lexicography requires a statement in the form ‘I define __ to mean _ ,’
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`but such rigid formalism is not required.”).
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`Here, the specifications provide an explicit definition of voice channel and define it by
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`implication. Dialpad’s proposed construction most closely captures the meaning of the term in
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`the specification and claims.
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`The “rebuttal” expert declaration provided does not address the explicit definition in the
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`specification as such, or the many instances in which voice channel is defined by implication.
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`Thus, it is exactly the type of extrinsic evidence that is not helpful to claim construction.
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`B.
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`Indefiniteness
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`1.
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`The terms “switch” and “switch … associated with” are indefinite
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`‘770 Patent Clam 1
`‘105 Patent Claim 1, 2
`‘994 Patent Claim 1
`‘554 Patent Claim 1
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`Dialpad’s Proposed Construction
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`Flypsi’s Proposed Construction
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`Undefined plain and ordinary meaning.
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`Indefinite.
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`6
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`Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 10 of 14
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`Flypsi has not provided itself, or via its expert, any construction of “switch” or “switch
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`… associated with” claim language. Dialpad asserts that the “switch” and “switch …
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`associated with” claim language is indefinite.
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` The “switch … associated with” claim language is indefinite because (a) it is unclear
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`structurally what the switch is and (b) it is unclear where or how an association is made. ‘770
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`patent, claim 1 (“the switch being associated with a bridge telephone number”); ‘105 patent and
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`‘094 patent, claim 1 (“a switch associated with the server”); and ‘554 patent, claim 1:
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`(“automatically associating the telephone access number with a switch associated with the
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`server”).
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`Plaintiff argues that “switch” refers to a class of structures and that “those structures are
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`ordinarily associated with other elements on the network, including bridges, servers, and
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`telephone numbers. Flypsi Responsive Br. at 23. Flypsi further asserts that associated with is a
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`common phrase not needing construction. Id. at 20.
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`Rather than ascribing a definite construction to “switch” and “switch … associated
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`with,” Plaintiff and its expert cite a variety of extrinsic references seeking to show a switch is a
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`class of structures which covers a variety of elements from mechanical devices, to electrical
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`devices to software. Nettles Decl. at ¶¶ 48-49. Some example descriptions provided by Flypsi
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`include “Ex. O at FLYP0004336 (‘Switches flexibly connect transmitters and receivers across
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`networks of interconnected links, thereby allowing network resources to be shared by large
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`numbers of end users. … There are a number of types of switches.’)”, “Ex. P (describing time-
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`division digital switching systems)”, “Ex. Q at 0042 (describing call routing as employing ‘any
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`number of network elements including routers, switches, hubs, etc.’)”, and “Any of various
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`communication techniques that provide point to point transmission between dynamically
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`Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 11 of 14
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`changing data sources and sinks.” – A Dictionary of Computing (6th ed. 2008) (FLYP0004338).
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`Flypsi Responsive Br. at 18; Nettles Decl. at ¶ 49. After listing various descriptions of switches
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`from the various sources without further explanation, Plaintiff’s expert Dr. Nettles draws a
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`conclusion that “a POSITA would be familiar with the concept of a switch.” Nettles Decl. at ¶
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`51. He does not explain which “switch” description would fit his understanding of the switch
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`from the asserted patents. He identifies no exemplary switch structure in the patent
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`specifications. And, he identifies no language explaining how any association is made described
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`in the patent specification, or what the nature of it is.
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`Claims are indefinite under 35 U.S.C. § 112 (b) when they “fail to inform, with
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`reasonable certainty, those skilled in the art about the scope of the invention.” Nautilus, Inc. v.
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`Biosig Instruments, Inc., 134 S. Ct. 2120, 2124 (2014). The “switch … associated with” claim
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`language is indefinite because a POSITA has no way of determining the true association or the
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`type of network device Flypsi allges is the switch. This is similar to Dynamic Applet Techs.,
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`LLC v. Mattress Firm, Inc. 2018 U.S. Dist. LEXIS 216894 (“[T]he claim scope is not reasonably
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`certain because nothing prevents Plaintiff from strategically drawing boundaries in its analysis of
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`an accused system.”). Accordingly, the claims should be found indefinite.
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`There is a separate question of indefiniteness under section 112. The standard is
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`“whether the words of the claim are understood by persons of ordinary skill in the art to have a
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`sufficiently definite meaning as the name for structure.” Williamson v. Citrix Online, LLC, 792
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`F.3d 1339, 1348 (Fed. Cir. 2015) (citing Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580,
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`1583 (Fed. Cir. 1996)). “When a claim term lacks the word ‘means,’ the presumption can be
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`overcome and § 112, para. 6 [or § 112(f)] will apply if the challenger demonstrates that the claim
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`term fails to ‘recite sufficiently definite structure’ or else recites ‘function without reciting
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`Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 12 of 14
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`sufficient structure for performing that function.’” Williamson, 792 F.3d at 1348 citing (Watts v.
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`XL Systems, Inc., 232 F.3d 877, 880 (Fed. Cir. 2001)).
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`Here, Flypsi’s expert has identified possible definitions of “switch” from a mechanical
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`actuator, to a network element, to a piece of software. This matches Dialpad’s extrinsic
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`evidence, and establishes that switch does not have a definite meaning for conveying structure.
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`Accordingly, the “switch … associated with” claim language requires reference to the patent
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`specification to identify structure corresponding to the “associated with” function pursuant to 35
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`U.S.C. § 112. Neither Flypsi nor its expert undertook to identify where the “associated with”
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`function is described in the specification. It is not. Similarly, neither Flypsi nor its expert
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`identified the corresponding switch structure in the specification, or any description in the
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`specification, of where or how the association takes place.
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`Accordingly, the “switch … associated with” claim language should be treated as means
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`plus function claim language that is indefinite because it lacks structure corresponding to the
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`“associated with” function in the specification.
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`II.
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`CONCLUSION
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`For the foregoing reasons, Dialpad’s claim constructions should be adopted.
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`
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`Dated: January 14, 2021
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`
`
`/s/ Elizabeth M. Chiaviello
`Elizabeth M. Chiaviello
`Texas Bar No. 24088913
`elizabeth.chiaviello@morganlewis.com
`MORGAN, LEWIS & BOCKIUS LLP
`1717 Main Street, Suite 3200
`Dallas, Texas 75201-7347
`T. (214) 466-4000
`F. (214) 466-4001
`
`Robert C. Bertin*
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`9
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`Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 13 of 14
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`D.C. Bar No. 469582
`robert.bertin@morganlewis.com
`MORGAN, LEWIS & BOCKIUS LLP
`1111 Pennsylvania Avenue, NW
`Washington, D.C. 20004
`Telephone: (202) 739-3000
`Facsimile: (202) 739-3001
`*Admitted pro hac vice
`Attorneys for Dialpad, Inc.
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`Case 6:21-cv-00642-ADA Document 33 Filed 01/14/22 Page 14 of 14
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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
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`compliance with Local Rule CV-5. Therefore, this document was served on all counsel who are
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`deemed to have consented to electronic service. Administrative Policies and Procedures for
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`Electronic Filing in Civil and Criminal Cases, Western District of Texas, Section 14.
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`/s/ Elizabeth M. Chiaviello
`Elizabeth M. Chiaviello
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