Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 1 of 18
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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,
`
`v.
`
`GOOGLE LLC,
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`Defendant.
`
`
`
`CIVIL ACTION NO. 6:22-cv-00031-ADA
`
`JURY TRIAL DEMANDED
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`
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`DEFENDANT GOOGLE LLC’S MOTION TO DISMISS PLAINTIFF FLYPSI, INC.’S
`PRE-SUIT INDIRECT AND WILLFUL INFRINGEMENT CLAIMS
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`

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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 2 of 18
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`TABLE OF CONTENTS
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`
`Page
`INTRODUCTION ............................................................................................................. 1
`LEGAL STANDARD ........................................................................................................ 3
`BACKGROUND ............................................................................................................... 3
`ARGUMENT ..................................................................................................................... 6
`A.
`Flyp Cannot Allege That Mr. Miner, or Google, Had Actual Knowledge of
`the Patents-in-Suit Before January 10, 2022 .......................................................... 7
`Flyp Cannot Allege That Mr. Miner, or Google, Was Willfully Blind to
`the Issuance of the Patents-in-Suit ......................................................................... 9
`Flyp Cannot Allege That Knowledge Held by Google Ventures Was
`Imputed to Google ............................................................................................... 10
`CONCLUSION ................................................................................................................ 12
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`B.
`
`C.
`
`I.
`II.
`III.
`IV.
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`V.
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`-i-
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 3 of 18
`
`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`Cases
`
`ACQIS LLC v. Lenovo Grp. Ltd.,
`No. 6:20-cv-00967, 2022 WL 2705269 (W.D. Tex. July 12, 2022) ....................................7, 12
`
`Apeldyn Corp. v. AU Optronics Corp.,
`831 F. Supp. 2d 817 (D. Del. 2011) .........................................................................................10
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................3
`
`BillJCo, LLC v. Apple Inc.,
`No. 6:21-cv-00528-ADA, 2022 WL 299733 (W.D. Tex. Feb. 1, 2022) ...................................9
`
`Commil USA, LLC v. Cisco Sys., Inc.,
`575 U.S. 632 (2015) ...................................................................................................................3
`
`DeLoach v. Woodley,
`405 F.2d 496 (5th Cir. 1968) .................................................................................................1, 3
`
`Frac Shack Inc. v. AFD Petroleum (Tex.) Inc.,
`No. 7:19-cv-00026-DC, 2019 WL 3818049 (W.D. Tex. June 13, 2019) ................................12
`
`Germanson v. Midland Mortgage,
`No. 6:22-cv-00275-JKP, 2022 WL 1157903 (W.D. Tex. Apr. 19, 2022) .............................3, 7
`
`Global-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) .............................................................................................................9, 10
`
`Hockerson-Halberstadt, Inc. v. JSP Footwear, Inc.,
`104 F. App’x 721 (Fed. Cir. 2004) ..........................................................................................12
`
`Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc.,
`892 F.3d 719 (5th Cir. 2018) .....................................................................................................8
`
`Kirsch Rsch. & Dev., LLC v. Tarco Specialty Prods., Inc.,
`No. 6:20-cv-00318-ADA, 2021 WL 4555802 (W.D. Tex. Oct. 4, 2021) ................................10
`
`Parity Networks, LLC v. Cisco Sys., Inc.,
`No. 6:19-cv-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019) ............................3, 7
`
`Proxense LLC v. Samsung Elecs. Co.,
`No. 6:21-cv-00210-ADA, Dkt. 79 (Dec. 20, 2021) ...................................................................3
`
`Shah v. Bank of Am., N.A.,
`No. 6:21-cv-01170-JKP, 2022 WL 45040 (W.D. Tex. Jan. 4, 2022) ....................................2, 3
`
`-ii-
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 4 of 18
`
`TABLE OF AUTHORITIES
`(continued)
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`Page(s)
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`SRI Int’l, Inc. v. Cisco Sys., Inc.,
`14 F. 4th 1323 (Fed. Cir. 2021) .................................................................................................3
`
`USC IP P’ship, L.P. v. Facebook, Inc.,
`No. 6:20-cv-00555-ADA, 2021 WL 3134260 (W.D. Tex. July 23, 2021) ................................9
`
`U.S. ex rel. Vavra v. Kellogg Brown & Root, Inc.,
`848 F.3d 366 (5th Cir. 2017) ...................................................................................................11
`
`VLSI Tech., LLC v. Intel Corp.,
`No. 6:19-cv-000254-ADA, 2019 WL 11025759 (W.D. Tex. Aug. 6, 2019) ............................9
`
`VoIP-Pal.com, Inc. v. Facebook, Inc.,
`No. 6:21-cv-00665-ADA, 2022 WL 1394550 (W.D. Tex. May 3, 2022) .................................7
`
`Xiros, Ltd. v. Depuy Synthes Sales, Inc.,
`No. 6:21-cv-00681-ADA, 2022 WL 3592449 (W.D. Tex. Aug. 22, 2022) ..............................9
`
`-iii-
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 5 of 18
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`I.
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`INTRODUCTION
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`Dismissal with prejudice is appropriate when an amended complaint is “subject to
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`dismissal for the same reasons as [the] original complaint.” DeLoach v. Woodley, 405 F.2d 496
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`(5th Cir. 1968). That is the situation here. The Court laid out the deficiencies in Flyp’s original
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`complaint when granting Google’s motion to dismiss, Dkt. 48 (“Order”), and Flyp filed its second
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`amended complaint, Dkt. 103 (“SAC”), in response. But Flyp’s SAC does not address the Court’s
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`concerns. Despite having the benefit of discovery, Flyp still improperly asks the Court to “entertain
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`inferential connections” to establish Google’s pre-suit knowledge of the Patents-in-Suit. Order at
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`11.
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`To begin, like in the original complaint, Flyp rests its claims on a November 2015 meeting
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`between Flyp’s founder, Peter Rinfret, and a Google Ventures partner, Rich Miner. But not once
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`during that meeting did Mr. Rinfret specifically identify any of the Patents-in-Suit, and Flyp does
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`not allege otherwise. Instead, like in the original complaint, Flyp asserts that Mr. Rinfret met with
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`Mr. Miner to generally “discuss Flyp’s technology, business, and patent filings.” SAC ¶¶ 33, 47,
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`61, 78. The Court already held in its Order that this is not enough to establish pre-suit knowledge.
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`See Order at 8 (“No facts are alleged that the discussions specifically centered on the Patents-in-
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`Suit”). In fact, the Court noted in its Order that only one of the Patents-in-Suit was even pending
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`at the time of the November 2015 meeting, making it facially implausible for Miner to have had
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`“actual knowledge” of patents that were not yet filed. Id. at 9 (“The remaining Patents-in-Suit were
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`filed about one and a half to five and a half years after the November 12 meeting. Flyp fails to
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`provide allegations regarding knowledge of the remaining Patents-in-Suit.”). Flyp’s SAC once
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`again fails to assert actual knowledge of the patents.
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`Next, like the original complaint, Flyp’s SAC fails to adequately plead Google’s willful
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`blindness. In its Order, the Court pointed out that Flyp’s original complaint did not “address any
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`-1-
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 6 of 18
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`policies or actions by Google such that it took deliberate actions to avoid learning of the issuance
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`of the Patents-in-Suit.” Order at 8. Flyp’s SAC is similarly deficient. The SAC alleges only that
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`“Mr. Miner and the Google Voice team took no affirmative steps to monitor Flyp’s patent filings
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`(including Flyp’s fast-tracked patent application) following [the November 2015 meeting].” SAC
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`¶¶ 22, 33, 47, 61, 78. Like the original complaint, the SAC asserts no policies or actions by Google.
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`This is because having deposed Mr. Miner, Flyp understands that there were no “policies” or
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`“deliberate actions” taken by Google to avoid learning of the Patents-in-Suit. Having failed even
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`with the benefit of discovery to plead Google’s willful blindness, dismissal with prejudice is
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`warranted. See Shah v. Bank of Am., N.A., No. 6:21-cv-01170-JKP, 2022 WL 45040, at *2 (W.D.
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`Tex. Jan. 4, 2022) (permitting dismissal with prejudice if “plaintiff alleged his best case or
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`amendment would be futile”).
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`Finally, like the original complaint, Flyp’s SAC fails to allege a relationship between
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`Google Ventures and Google “sufficient to create a reasonable inference for knowledge to be
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`imputed from one to another.” Order at 10. The Court criticized Flyp’s original complaint for not
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`alleging this corporate relationship, and even provided a roadmap (with caselaw) showing Flyp
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`how to adequately plead imputation. Id. But Flyp’s SAC does not, because it cannot, allege that
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`there is “common ownership and governance” of Google Ventures and Google, or that “layers of
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`corporate disguise” frustrated Flyp’s ability to provide Google notice of the Patents-in-Suit. See
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`id. Indeed, the few allegations that Flyp added to its SAC do nothing to establish the required
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`communications between Google Ventures and Google during the relevant time period. See SAC
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`¶ 20 (alleging overlap of Google Venture and Google employees around 2009–2010, rather than
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`during the time of the alleged 2015 meeting between Rinfret and Miner).
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`-2-
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 7 of 18
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`In the end, there is no “there there” in Flyp’s SAC. Accordingly, Google requests that the
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`Court dismiss with prejudice Flyp’s pre-suit claims of indirect and willful infringement.
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`II.
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`LEGAL STANDARD
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`To state a claim for indirect and willful infringement, a plaintiff must allege facts plausibly
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`showing that the accused infringer (1) knew of the patents-in-suit; and (2) knew that its conduct
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`amounted to patent infringement. Parity Networks, LLC v. Cisco Sys., Inc., No. 6:19-cv-00207-
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`ADA, 2019 WL 3940952, at *3 (W.D. Tex. July 26, 2019); Commil USA, LLC v. Cisco Sys., Inc.,
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`575 U.S. 632, 639 (2015). A plaintiff must plead facts showing that the accused infringer had
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`“actual knowledge of the patents-in-suit, or was willfully blind to the existence of the patents-in-
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`suit.” Proxense LLC v. Samsung Elecs. Co., No. 6:21-cv-00210-ADA, Dkt. 79 at 3 (Dec. 20, 2021).
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`Recovery for indirect and willful infringement claims is limited “to the time period that begins
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`when [the] defendant learns of the patent’s existence.” Parity Networks, 2019 WL 3940952, at *2;
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`SRI Int’l, Inc. v. Cisco Sys., Inc., 14 F. 4th 1323, 1329–30 (Fed. Cir. 2021).
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` A well-pleaded complaint “requires more than labels and conclusions,” and “[f]actual
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`allegations must be enough to raise a right to relief above the speculative level . . . .” Bell Atl. Corp.
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`v. Twombly, 550 U.S. 544, 555 (2007). If an amended complaint would be subject to dismissal
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`“for the same reasons” as the original complaint, dismissal with prejudice is warranted. DeLoach,
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`405 F.2d at 497; see also Shah, 2022 WL 45040, at *2 (holding courts may dismiss claims with
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`prejudice without giving further opportunity to amend “if it finds that the plaintiff alleged his best
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`case or amendment would be futile”); Germanson v. Midland Mortgage, No. 6:22-cv-00275-JKP,
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`2022 WL 1157903, at *2 (W.D. Tex. Apr. 19, 2022) (same).
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`III. BACKGROUND
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`Flyp filed its original complaint on January 10, 2022. Dkt. 1. Flyp alleged the following
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`regarding Google’s pre-suit knowledge of the Patents-in-Suit.
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 8 of 18
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`On information and belief, Google had knowledge of Flyp, its patent applications,
`and/or its issued patents at least as early as November 12, 2015. On that date, Rich
`Miner, general partner at GV (formerly Google Ventures) and co-founder of
`Android, met with Flyp to discuss its technology, business, and patent filings on
`November 12, 2015.
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`Dkt. 1 ¶¶ 33, 45, 57, 72, 86. On April 11, 2022, Google moved to dismiss Flyp’s indirect and
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`willful infringement claims. Dkt. 24. Flyp filed an opposition on April 25, 2022, Dkt. 37, to which
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`Google replied on May 2, 2022, Dkt. 38. On August 22, 2022, the Court granted Google’s motion
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`in-part, dismissing Flyp’s pre-suit indirect and willful infringement claims without prejudice.
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`Order at 15–16. Recognizing that it “may be impossible for Flyp to allege Google’s pre-suit
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`knowledge without the benefit of fact discovery,” the Court permitted Flyp to amend its complaint
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`to re-plead its pre-suit indirect and willful infringement claims. Id.
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`In its Order, the Court pointed out specific deficiencies in Flyp’s allegations. For example,
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`the Court noted how Flyp’s allegations did not establish Google’s willful blindness because they
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`did not “address any policies or actions by Google such that it took deliberate actions to avoid
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`learning of the issuance of the Patents-in-Suit.” Order at 8. The Court further recognized that Flyp
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`failed to provide any allegations regarding Google’s pre-suit knowledge of four of the five Patents-
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`in-Suit. Id. at 9 (“The remaining Patents-in-Suit were filed about one and a half to five and a half
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`years after the November 12 meeting. Flyp fails to provide allegations regarding knowledge of the
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`remaining Patents-in-Suit.”). Finally, the Court refused to impute knowledge from Mr. Miner to
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`Google—the named defendant in this action—because “the pleadings provide nothing regarding
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`the relationship between Google Ventures and Google, or how said knowledge could be imputed
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`from Mr. Miner to Google.” Id. at 10–11 (“Aside from a common name, Flyp fails to plead the
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`relationship between the two, requiring this Court to speculate beyond a reasonable inference.”).
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`-4-
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 9 of 18
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`Flyp filed its second amended complaint on March 22, 2023. 1 Like in the original
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`complaint, Flyp’s allegations of Google’s pre-suit knowledge center on the November 2015
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`meeting between Peter Rinfret and Rich Miner:
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`Google had knowledge of Flyp and its patent applications, including the fast-track
`application that was eventually issued as the [Asserted] Patent, at least as early as
`November 12, 2015. On that date, Mr. Miner met with Flyp to discuss Flyp’s
`technology, business, and patent filings. In response to a request from Mr. Miner,
`Flyp transmitted a copy of the presentation given to Mr. Miner at that meeting days
`later on November 16, 2015, which included a summary of Flyp’s technology and
`disclosed that Flyp had filed patent applications related to its technology.
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`SAC ¶¶ 33, 47, 61, 78. Flyp’s SAC expands on the November 2015 meeting by alleging that Mr.
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`Rinfret discussed Flyp’s proprietary technology developed to overcome “the flaws and
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`shortcomings” in Google Voice. Id. ¶ 21. Flyp also alleges that the presentation Mr. Rinfret
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`provided during this meeting “referenced Flyp’s efforts to seek patent protection for its technology
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`in three separate instances.” Id. Finally, Flyp alleges that the presentation showed, and Mr. Rinfret
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`explained, how Flyp’s pending application had been accepted into the U.S. Patent and Trademark
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`Office (“USPTO”) “Patent Prosecution Highway,” and would be considered “on an expedited
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`basis.” Id. In support of these allegations, Flyp attached its presentation to the SAC. Id. n.4.
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`The SAC also attempts to overcome some of the deficiencies identified by this Court in the
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`Order. For example, to establish how knowledge could be imputed from Google Ventures to
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`Google, Flyp alleges that Mr. Miner and two former Google Venture partners at some point
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`contributed to Google Voice. See id. ¶ 20 (“The Google Ventures team included key contributors
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`to Google Voice: Craig Walker, Wesley Chan, and Rich Miner, the co-founder of Android and a
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`purported co-inventor of Google Voice technology.”). Flyp also alleges that, to prepare for the
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`1 Flyp filed its first amended complaint on September 6, 2022, removing claims for pre-suit
`indirect and willful infringement. Dkt. 50 at 46–47 (“FAC”) (“Adjudge that Google’s infringement
`of the Asserted Patents after the filing of this action was willful”). Google answered the FAC on
`September 20, 2022. Dkt. 55.
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`-5-
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 10 of 18
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`November 2015 meeting, Mr. Miner “conferred with Google Voice’s co-founder, Craig Walker.”
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`Id. ¶ 21. To address the Court’s concern about pleading willful blindness, Flyp alleges that “Mr.
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`Miner and the Google Voice team took no affirmative steps to monitor Flyp’s patent filings
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`(including Flyp’s fast-tracked patent application) following [the November 2015 meeting].” Id.
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`¶¶ 22, 33, 47, 61, 78. The SAC did not attempt to overcome at least two of the Court’s concerns,
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`however: (i) Flyp did not allege that the November 2015 discussions “specifically centered on the
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`Patents-in-Suit,” Order at 8, and (ii) Flyp did not provide allegations regarding knowledge of four
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`of the five Patents-in-Suit, as “only the ’770 Patent . . . was pending” at the time of the November
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`2015 meeting. Id. at 9.
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`IV. ARGUMENT
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`The November 2015 meeting could not have served as the underlying event for Google’s
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`“actual knowledge” of the Patents-in-Suit. Flyp does not allege that the presentation once
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`identified Flyp’s pending patent application—U.S. Application No. 14/307,052 (“the ’052
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`Application”). Instead, the presentation simply stated in generic terms that Flyp was seeking a
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`patent before the USPTO. Flyp’s willful blindness theory fares no better. The willful blindness
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`doctrine requires that a defendant take “deliberate actions,” Order at 8, but Flyp can only allege
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`that Google took no action at all. And even if the Court finds that Mr. Miner had “actual
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`knowledge” of the Patents-in-Suit, Flyp’s attempt to impute knowledge from the non-party
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`(Google Ventures) to the named defendant (Google) is untethered from the facts of this case: Craig
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`Walker and Wesley Chan were no longer affiliated with either party at the time of the November
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`2015 meeting, and have remained unaffiliated since.
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`As the facts have become clearer during discovery, Flyp’s story has become less plausible.
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`With the benefit of discovery, which included the deposition of Rich Miner, it is now obvious that
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`“more careful or detailed drafting” cannot help Flyp state a plausible claim for pre-suit indirect
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 11 of 18
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`and willful infringement. Germanson, 2022 WL 1157903 at *2. Google respectfully requests that
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`the Court dismiss these claims with prejudice.
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`A.
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`Flyp Cannot Allege That Mr. Miner, or Google, Had Actual Knowledge of
`the Patents-in-Suit Before January 10, 2022
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`A defendant has actual knowledge of patents when the plaintiff notifies the defendant of
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`those patents. See, e.g., ACQIS LLC v. Lenovo Grp. Ltd., No. 6:20-cv-00967, 2022 WL 2705269,
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`at *5 (W.D. Tex. July 12, 2022) (“Importantly, the Letter lists each of the ACQIS Patents along
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`with a detailed explanation of their confirmed validity and successful litigation history. This is
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`sufficient to meet the knowledge element.”). See also Parity Networks, 2019 WL 3940952, at *2
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`(receipt of two letters “identifying the patents”); VoIP-Pal.com, Inc. v. Facebook, Inc., No. 6:21-
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`cv-00665-ADA, 2022 WL 1394550, at *3 (W.D. Tex. May 3, 2022) (“notice letters that identify
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`the ’234 Patent and a patent application that ultimately led to the ’721 Patent”).
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`The Court’s Order pointed out that Flyp’s original complaint did not meet this requirement.
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`See Order at 8 (“No facts are alleged that the discussions specifically centered on the Patents-in-
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`Suit”) (emphasis added). Flyp’s SAC did not correct this defect. In fact, the presentation that Flyp
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`attached to the SAC makes clear that Flyp did not “specifically” identify any patents or patent
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`applications at all. Flyp also does not allege that Mr. Rinfret identified the ’052 Application in his
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`conversation with Mr. Miner. Instead, Flyp alleges that the presentation “referenced Flyp’s efforts
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`to seek patent protection,” SAC ¶ 21, and that Mr. Rinfret “explained to Mr. Miner that Flyp had
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`sought patent protection.” Id. See also Exhibit A at 15–17 (“patentpendingflyptechnology,” “IP
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`Filed in 2013,” “Patent filed in July of 2013; extensive amendment filed in June of 2014”); id.
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`¶¶ 33, 47, 61, 78 (“Flyp had filed patent applications”) (“Mr. Miner met with Flyp to discuss Flyp’s
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`. . . patent filings”). This case is simply different from those where this Court has found “actual
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`knowledge” because the plaintiff notified the defendant of the specific patents at issue.
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 12 of 18
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`Flyp also alleges that Mr. Rinfret provided Mr. Miner “an overview of Flyp’s pending
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`patent applications.” SAC ¶ 21. But providing an overview of the technology disclosed in an
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`unnamed patent application does not establish “actual knowledge” of that patent application, let
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`alone the patent that eventually issues. Flyp, without support, asks the Court to infer that Mr. Miner
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`went into the USPTO database after his meeting with Mr. Rinfret to search for a pending
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`application under the name of “Flypsi, Inc.” This is “a stretch too far.” Order at 8.2 If anything, the
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`reasonable inference is that Mr. Miner never gave a second thought to Flyp’s unnamed patent
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`application.
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`Finally, notwithstanding Flyp’s allegations to the contrary, only the ’052 Application
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`existed at the time of the November 2015 meeting. Compare SAC ¶ 21 (“pending patent
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`applications”); id. ¶¶ 33, 47, 61, 78 (“Flyp had filed patent applications”). The SAC is thus
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`factually inaccurate: only one of the five Patents-in-Suit was pending at the time of the November
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`2015 meeting. Despite the Court’s warnings, Flyp’s SAC does nothing to address this facial defect
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`in alleging Google’s pre-suit knowledge. See Order at 9 (“The remaining Patents-in-Suit were filed
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`about one and a half to five and a half years after the November 12 meeting. Flyp fails to provide
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`allegations regarding knowledge of the remaining Patents-in-Suit.”). Flyp’s allegation that this
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`meeting provided knowledge of patent properties besides the ’052 application is therefore wholly
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`2 Indeed, this inference is all the more fanciful when considered with the article Flyp incorporated
`in the SAC, establishing that Mr. Miner “spends his days crisscrossing the globe, meeting with
`startups.” SAC ¶ 20 n.2 (Seifert, Dan, “Android’s Co-Founder is Spending Google’s Billions
`Hunting for the Next Big Thing,” THE VERGE (Mar. 6, 2014)). This article also articulated how
`Google Ventures was “one of Silicon Valley’s more prominent and active investors.,” id., meaning
`Mr. Miner and his colleagues may have met with “thousands of entrepreneurs every year.” Google
`respectfully requests that the Court take judicial notice of Exhibit B (Jordan, Jeff et al., 16 Startup
`Metrics, ANDREESEN HOROWITZ (Aug. 21, 2015), https://a16z.com/2015/08/21/16-metrics/). See
`Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 726
`(5th Cir. 2018).
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 13 of 18
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`conclusory. See BillJCo, LLC v. Apple Inc., No. 6:21-cv-00528-ADA, 2022 WL 299733, at *3
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`(W.D. Tex. Feb. 1, 2022) (“The Complaint establishes that the ’994 patent issued in November
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`2019, . . . so BillJCo’s allegation that the June 2019 Letter referenced that patent is conclusory and
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`accorded no weight.”).
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`In sum, Flyp again asks this Court to speculate that Mr. Miner—or Google—acquired
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`“actual knowledge” of the Patents-in-Suit before the filing of the original complaint. It is telling
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`that Flyp cannot allege a more plausible story, even with the benefit of discovery and deposing
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`Mr. Miner. Google respectfully requests that the Court dismiss Flyp’s claims for pre-suit indirect
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`and willful infringement with prejudice.
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`B.
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`Flyp Cannot Allege That Mr. Miner, or Google, Was Willfully Blind to the
`Issuance of the Patents-in-Suit
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`“A showing of willful blindness requires that (1) the defendant must subjectively believe
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`that there is a high probability that a fact exists and (2) the defendant must take deliberate actions
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`to avoid learning of that fact.” Xiros, Ltd. v. Depuy Synthes Sales, Inc., No. 6:21-cv-00681-ADA,
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`2022 WL 3592449, at *4 (W.D. Tex. Aug. 22, 2022) (citation omitted). These requirements
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`“appropriately limit the scope of willful blindness to one that ‘surpasses recklessness and
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`negligence.’” Order at 8 (citing Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 770
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`(2011)). Allegations of a specific policy or practice of not reading third-party patents are not
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`enough to establish willful blindness. See USC IP P’ship, L.P. v. Facebook, Inc., No. 6:20-cv-
`
`00555-ADA, 2021 WL 3134260, at *2 (W.D. Tex. July 23, 2021); VLSI Tech., LLC v. Intel Corp.,
`
`No. 6:19-cv-000254-ADA, 2019 WL 11025759, at *1 (W.D. Tex. Aug. 6, 2019) (“Intel’s policy
`
`that forbids its employees from reading patents held by outside companies or individuals is
`
`insufficient to meet the test of willful blindness.”).
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 14 of 18
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`Instead, willful blindness requires allegations of “deliberate actions.” Global-Tech
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`Appliances, 563 U.S. at 770; Kirsch Rsch. & Dev., LLC v. Tarco Specialty Prods., Inc., No. 6:20-
`
`cv-00318-ADA, 2021 WL 4555802, at *2 (W.D. Tex. Oct. 4, 2021) (“A plaintiff who relies on
`
`willful blindness to plead knowledge must identify in its complaint affirmative actions taken by
`
`the defendant to avoid gaining actual knowledge of the patent to escape dismissal.”). The Court
`
`made this clear to Flyp, Order at 8, yet the SAC makes no such allegation. At most, Flyp alleges
`
`that Mr. Miner and Google failed to act. SAC ¶¶ 22, 33, 47, 61, 78 (“On information and belief,
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`Mr. Miner and the Google Voice team took no steps to monitor Flyp’s patent filings . . . .”). Having
`
`already deposed Mr. Miner in this lawsuit, Flyp understands that any alleged failure to monitor
`
`Flyp’s patent filings was not a result of Google “policies or actions.” Order at 8. See also Apeldyn
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`Corp. v. AU Optronics Corp., 831 F. Supp. 2d 817, 831 (D. Del. 2011) (“At best, Apeldyn has
`
`framed AUO as a reckless or negligent defendant—not a willfully deliberate one.”). Flyp cannot
`
`allege that Google was willfully blind to the issuance of the Patents-in-Suit, and Flyp’s claims
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`should be dismissed with prejudice.
`
`C.
`
`Flyp Cannot Allege That Knowledge Held by Google Ventures Was Imputed
`to Google
`
`Even if Mr. Miner knew of the Patents-in-Suit, the SAC does not overcome the deficiency
`
`that Mr. Miner was an agent of Google Ventures and not the named defendant in this action. The
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`Court previously recognized this fundamental flaw. Order at 8–9 (“Importantly, nothing indicates
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`that Google was willfully blind to the patent filings”); id. at 9 (“Here, the deficiency lies in a failure
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`to allege Google’s actual knowledge of either the patents or the patent filings.”). And despite the
`
`Court providing Flyp a roadmap to allege the “relationship between the non-party and named
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`defendants sufficient to create a reasonable inference for knowledge to be imputed from one to
`
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 15 of 18
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`another,” id. at 10 (citing cases), the SAC does not allege how knowledge could reasonably be
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`imputed.
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`Flyp provides three allegations to overcome its imputation problem, each of which fails to
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`create a reasonable inference that knowledge was imputed from Mr. Miner to Google. First, Flyp
`
`alleges that “[t]he Google Ventures team included key contributors to Google Voice: Craig
`
`Walker, Wesley Chan, and Rich Miner, the co-founder of Android and a purported co-inventor of
`
`Google Voice technology.” SAC ¶ 20. But this allegation is not tethered to the relevant dates: Mr.
`
`Walker was at Google Ventures from September 2010 to January 2011, Mr. Chan was at Google
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`Ventures from 2009 to 2014, and the patent application listing Mr. Miner as an inventor was filed
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`in July 2009. See id. n.2 (citing articles from Sept. 2010 and Apr. 2010).3 Therefore, Flyp does not
`
`allege a relationship between Google Ventures and Google at the time of the November 2015
`
`meeting. Second, Flyp alleges that, “[t]o prepare for [the November 2015] meeting, Mr. Miner
`
`conferred with Google Voice’s co-founder, Craig Walker.” SAC ¶ 21. But by the time Mr. Miner
`
`and Mr. Walker allegedly “conferred,” Mr. Walker was already the CEO of Dialpad, Inc. See
`
`Exhibit C. Therefore, if any knowledge flowed from Mr. Miner to Mr. Walker, such knowledge
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`would have been imputed to Dialpad (not Google). Third, Flyp alleges that Mr. Miner became an
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`employee of Google “in March 2021.” SAC ¶¶ 21 n.3, 33, 47, 61, 78. But simply being an
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`employee of a company is not the test for imputation. Flyp provides no allegation of Mr. Miner’s
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`role at Google to reasonably infer that the knowledge he acquired while working for Google
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`Ventures is now imputed to Google. See U.S. ex rel. Vavra v. Kellogg Brown & Root, Inc., 848
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`F.3d 366, 374 (5th Cir. 2017) (“[K]nowledge of a mere employee of the corporation ordinarily is
`
`
`3 Google respectfully requests that the Court take judicial notice of Exhibit C (LinkedIn profiles
`of Craig Walker
`and Wesley Chan,
`https://www.linkedin.com/in/cwalker123/;
`https://www.linkedin.com/in/weschan/details/experience/). See supra n. 2.
`
`-11-
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 16 of 18
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`not imputed to the company.” (citation omitted)). Without more, Flyp asks the Court to hold that
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`knowledge held by every Google employee is imputed to the corporation.
`
`At bottom, Flyp’s allegations do not raise a plausible inference that Mr. Miner’s knowledge
`
`was imputed to Google, and its inability to address the authority cited by this Court is telling. For
`
`example, Flyp does not allege that there is “common ownership and governance” of the two
`
`companies. Frac Shack Inc. v. AFD Petroleum (Tex.) Inc., No. 7:19-cv-00026-DC, 2019 WL
`
`3818049, at *4 (W.D. Tex. June 13, 2019). Nor does Flyp allege that there are “layers of corporate
`
`disguise” such that Flyp “could not have discerned the relationship” between Google Ventures and
`
`Google at the time of the November 2015 meeting. See Hockerson-Halberstadt, Inc. v. JSP
`
`Footwear, Inc., 104 F. App’x 721, 725 (Fed. Cir. 2004). In fact, Mr. Rinfret had the benefit of
`
`“publicly available documents,” id., to understand that his November 2015 meeting was with a
`
`corporation wholly separate and apart from Google. See Dkt. 38 at 4 n.2. Finally, Flyp cannot and
`
`does not suggest that Mr. Miner is akin to “the Chairman and Chief Executive Officer” of Google
`
`Ventures and Google, such that his knowledge flows to each of them. See ACQIS LLC, 2022 WL
`
`2705269, at *7 (finding imputation where notice was “directed to Mr. Yang, the Chairman and
`
`Chief Executive Officer of Lenovo Group Ltd.”).
`
`Google Ventures and Google are separate and distinct entities, and Flyp’s allegations still
`
`require the Court to “speculate beyond a reasonable inference” that knowledge held by Google
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`Ventures imputed to Google. Order at 11. Flyp’s imputation allegations fail.
`
`V.
`
`CONCLUSION
`
`With the benefit of discovery, it is clear that neither Mr. Miner nor Google had any
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`knowledge of the Patents-in-Suit until Flyp filed the original complaint on January 10, 2022. For
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`the foregoing reasons, Google respectfully requests that the Court dismiss with prejudice Flyp’s
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`claims for pre-suit indirect and willful infringement.
`
`-12-
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`Case 6:22-cv-00031-ADA Document 109 Filed 04/12/23 Page 17 of 18
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`DATED: April 5, 2023
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`
`
`Respectfully Submitted,
`
`/s/ Robert W. Unikel
`Robert W. Unikel (Pro Hac Vice)
`robertunikel@paulhastings.com
`John A. Cotiguala (Pro H