Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 1 of 20
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`
`
` Civil Action No. 6:22-cv-31-ADA
`
`
`
` JURY TRIAL DEMANDED
`
`FLYPSI, INC. (D/B/A FLYP),
`
` Plaintiff,
`
` vs.
`
`GOOGLE LLC,
`
` Defendant.
`
`
`
`
`RESPONSE IN OPPOSITION TO 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 116 Filed 04/28/23 Page 2 of 20
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`TABLE OF CONTENTS
`
`C.
`
`D.
`
`B.
`
`Page
`INTRODUCTION AND SUMMARY OF THE ARGUMENT ......................................... 1
`FACTS ALLEGED IN THE COMPLAINT ....................................................................... 2
`A.
`Flyp invented key technologies that solved problems with using multiple
`numbers on a single mobile device while maintaining caller identification for
`outgoing calls and identifying the intended destination for incoming calls. .......... 2
`B. When Flyp’s ’718 Application published in January 2015, Google Voice was
`struggling with the technological problems that Flyp’s inventions solved. ............ 3
`Shortly after Flyp launched its Android application, Google’s capital venture
`arm, Google Ventures, asked Flyp for a meeting about its technology—with
`the coordination (unknown to Flyp) of key Google Voice figures. ........................ 3
`After Google Ventures’ meeting with Flyp, Google incorporated many of the
`technical solutions discussed in that meeting, and described in Flyp’s pending
`patent application, into its long-struggling Google Voice product. ........................ 5
`STATEMENT OF THE LAW ............................................................................................. 6
`A.
`The Fifth Circuit disfavors motions to dismiss—courts should not grant them
`if the claim crosses the line from conceivable to plausible when considering
`all allegations true and drawing reasonable inferences in the nonmovant’s
`favor. ....................................................................................................................... 6
`Pleading requisite knowledge for willful or indirect infringement requires
`only creating a reasonable inference that the accused infringer knew about the
`patent right or was willfully blind to its existence. ................................................. 7
`ARGUMENT ...................................................................................................................... 7
`A.
`Google’s meeting with Flyp under the false pretense of funding through
`Google Ventures and then incorporating Flyp’s inventions into Google Voice
`despite knowing about Flyp’s patent application was wrongful and piratelike. ..... 8
`Google Ventures’ knowledge of Flyp’s pending and public patent application
`is enough to plausibly allege Google’s knowledge for willful infringement. ......... 9
`Google’s actual knowledge of the pending ’710 Application and its
`purposeful effort to avoid learning about its direct continuations and the later-
`issued patents-in-suit create a reasonable inference of sufficient knowledge. ..... 12
`Google has waived any challenge to the sufficiency of Flyp’s allegation that it
`had actual knowledge of the asserted patents through Google Patents. ............... 14
`CONCLUSION ................................................................................................................. 15
`
`B.
`
`C.
`
`D.
`
`i
`
`
`
`I.
`II.
`
`III.
`
`IV.
`
`V.
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`

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`Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 3 of 20
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`
`
`
`
`Cases
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................6
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................6
`
`Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp.,
`748 F.3d 631 (5th Cir. 2014) ......................................................................................................6
`
`Dropbox, Inc. v. Motion Offense, LLC,
`No. 6:20-CV-251-ADA, 2022 WL 174519 (W.D. Tex. Jan. 18, 2022) ...................................14
`
`FHE USA LLC v. Lee Specialties Inc.,
`No. 5:18-CV-715-OLG, 2018 WL 11347193 (W.D. Tex. Nov. 27, 2018) .................................7
`
`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`579 U.S. 93 (2016) .....................................................................................................................7
`
`Maxell Ltd. v. Apple Inc.,
`No. 5:19-CV-00036-RWS, 2019 WL 7905455 (E.D. Tex. Oct. 23, 2019) ................................7
`
`Mobile Telecomms. Techs., LLC v. Blackberry Corp.,
`No. 3:12-CV-1652-M, 2016 U.S. Dist. LEXIS 55206 (N.D. Tex. Apr. 26,
`2016) ........................................................................................................................................10
`
`SimpliVity Corp. v. Springpath, Inc.,
`No. 4:15-13345-TSH, 2016 WL 5388951 (D. Mass. July 15, 2016) .................................12, 13
`
`Soverain IP, LLC v. Microsoft Corp.,
`No. 217-cv-00204-RWS-RSP, 2018 WL 1465792 (E.D. Tex. Mar. 26, 2018) ..........................7
`
`Turner v. Pleasant,
`663 F.3d 770 (5th Cir. 2011), as revised (Dec. 16, 2011) ....................................................6, 14
`
`United States v. Jackson,
`426 F.3d 301 (5th Cir. 2005) ....................................................................................................14
`
`
`
`
`
`
`
`
`
`ii
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`

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`Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 4 of 20
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`TABLE OF EXHIBITS
`
`Brief Description
`
`U.S. Patent Publ. 2011/0026468
`
`Google’s Newest Venture, Google’s Official Blog (Mar. 30, 2009)
`
`Google Voice Co-Founder Joins Google Ventures
`
`Scott Austin, Google Ventures’ Entire Investment Team Finally Revealed, WALL ST. J.
`(Apr. 30, 2010).
`
`Dan Seifert, Android’s Co-Founder Is Spending Google’s Billions Hunting for the Next
`Big Thing, THE VERGE (Mar. 6, 2014).
`
`iii
`
`No.
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`1
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`2
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`3
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`4
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`5
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`Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 5 of 20
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`
`
`I.
`
`INTRODUCTION AND SUMMARY OF THE ARGUMENT
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`Flyp’s Second Amended Complaint paints a striking picture of how Google surreptitiously
`
`used its captive venture capital arm to investigate a small upstart competitor and obtain knowledge
`
`about its pending patent application that is sufficient to support a claim for willful infringement.1
`
`Google’s telephony application, Google Voice, had struggled since its launch in 2009 and was
`
`abandoned and in disrepair by 2012 because Google had been unable to solve fundamental
`
`telecommunication problems inherent to hosting multiple phone numbers on a single mobile
`
`device. Flyp solved those problems and launched a competing telephony application in 2015.
`
`In November 2015, Google’s captive venture capital arm, Google Ventures, solicited a
`
`meeting with Flyp to learn more about its technology under the auspices of venture funding. The
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`Google Ventures team responsible for that meeting included key Google Voice figures. Google
`
`Venture’s representative was Rich Miner, a Google Voice inventor. And Craig Walker, Google
`
`Voice’s co-founder, helped Mr. Miner prepare. During the meeting, Mr. Miner learned details
`
`about Flyp’s technical solutions and pending patent application and learned how Flyp had solved
`
`the problems that had plagued Google Voice since its launch. After the meeting, Google
`
`incorporated Flyp’s solutions into Google Voice, erasing important competitive advantages for
`
`Flyp overnight. Google then retrieved and analyzed each asserted patent shortly after it issued for
`
`its own Google Patents service (an allegation of actual knowledge that Google does not challenge
`
`in its Motion). Nonetheless, Google continued using Flyp’s claimed inventions in Google Voice.
`
`These allegations raise a reasonable inference Google had sufficient pre-suit knowledge of
`
`the asserted patents to support a claim for willfulness, and the Court should deny Google’s Motion.
`
`
`1 Google also moves to dismiss purported pre-suit indirect-infringement claims. However, Flyp’s indirect-
`infringement claims are based on post-suit conduct. ECF No. 103 ¶¶ 30, 44, 58, 75, 91. As Google has not challenged
`the sufficiency of those post-suit allegations, the Court should deny that part of its Motion as moot.
`1
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`

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`Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 6 of 20
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`
`
`II.
`
`FACTS ALLEGED IN THE COMPLAINT
`
`At this case’s heart are technologies that allow users to manage secondary telephone
`
`numbers on a mobile device See ECF No. 103 (2d Am. Compl.) ¶ 11. As internet-connected mobile
`
`devices proliferated, many users wanted to segregate their communications on one mobile device,
`
`such as by having separate personal and business telephone numbers. See id. This presented
`
`substantial technological challenges, particularly for maintaining the integrity of the secondary
`
`telephone number caller identification as with a primary telephone number. See id. While call
`
`forwarding could route calls from a secondary telephone number to the mobile device, any such
`
`calls sent from the mobile device would show its carrier-assigned telephone number. See id. And
`
`when receiving a call on the mobile device, the user would not know whether the call was intended
`
`for the carrier-assigned telephone number or the secondary telephone number. See id.
`
`A.
`
`Flyp invented key technologies that solved problems with using multiple
`numbers on a single mobile device while maintaining caller identification for
`outgoing calls and identifying the intended destination for incoming calls.
`
`Flyp has developed telephony applications that allow users to manage multiple telephone
`
`numbers on a single mobile device. See id. ¶ 12. While developing those applications, Flyp
`
`invented systems and methods for setting up and connecting telephone calls, and providing
`
`information related to those telephone calls using an Internet Protocol (IP) or other data channel,
`
`while delivering the voice portion of the call using telecom voice channel delivery standards. See
`
`id. This is distinct from preexisting call-forwarding solutions because Flyp’s inventive systems
`
`and methods enable a particular way for mobile-phone users to create and own multiple phone
`
`numbers on a single mobile device while maintaining the integrity of caller-identification
`
`functions. See id. Thus, from a single mobile device utilizing Flyp’s systems and methods, users
`
`can add new telephone numbers and control various streams of outbound and inbound calls to
`
`2
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`

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`Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 7 of 20
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`
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`those telephone numbers. See id. Users can accordingly create alternative and dedicated numbers
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`for business, social activities, shopping, dating, and other aspects of their lives. See id.
`
`Consistent with the policies underlying the U.S. patent system, Flyp filed a patent
`
`application disclosing its technological advancements and ultimately received patent protection
`
`for various aspects of those advancements. See id. ¶¶ 20, 24–28. One such application was
`
`U.S. Patent Application No. 2015/0024718, which the U.S. Patent and Trademark Office published
`
`in January 2015. Id. ¶ 20 n.2. In March 2015, Flyp launched an application embodying the
`
`inventions it described in the ’718 Application for Android devices on the Google Play Store. Id.
`
`¶ 20. In May 2017, the USPTO issued U.S. Patent No. 9,667,770 from the ’718 Application.
`
`B. When Flyp’s ’718 Application published in January 2015, Google Voice was
`struggling with the technological problems that Flyp’s inventions solved.
`
`Google Voice launched as a mobile application for Android in 2009. See id. ¶ 18. As
`
`of 2015, Google Voice still used call forwarding for multiple phone numbers. See id. It accordingly
`
`could not maintain caller-identification integrity for outcoming calls. See id. At least in part
`
`because of these shortcomings, Google essentially abandoned Google Voice in 2012, with the
`
`application having fallen into what industry publications described as “disrepair.” Id. ¶ 19. This
`
`remained so until after Flyp launched its competing application and the USPTO published Flyp’s
`
`solutions to Google Voice’s technological problems in the ’718 Application. See id.
`
`C.
`
`Shortly after Flyp launched its Android application, Google’s capital venture
`arm, Google Ventures, asked Flyp for a meeting about its technology—with
`the coordination (unknown to Flyp) of key Google Voice figures.
`
`After Flyp
`
`launched
`
`its Android application and
`
`the USPTO published
`
`the
`
`’718 Application, Rich Miner from Google Ventures asked to meet with Flyp and learn more about
`
`its technology. Id. ¶ 20. Rich Miner is a co-founder of Google’s mobile-device operating system,
`
`3
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`Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 8 of 20
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`Android, and a purported co-inventor of Google Voice technology. Id. ¶ 20 n.2 (citing Ex. 1);
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`Ex. 1 at [0005]. He was also a managing partner of Google Ventures from its launch. Ex. 2.
`
`Contrary to Google’s attempts to separate Google from Google Ventures in the Motion,
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`public documents from the time show that Google closely controlled Google Ventures as its in-
`
`house, captive venture-funding arm. See ECF No. 103 ¶ 20 n.2 (citing Ex. 2); Ex. 2 (“Today we’re
`
`excited to announce Google Ventures, Google’s new venture capital fund.” (emphasis added)).
`
`Rich Miner, writing on Google’s official blog, described Google Ventures as “Google’s effort to
`
`take advantage of our resources” and as a conduit for “bringing to bear Google’s unique technical
`
`expertise and brand.” Ex. 2 (emphases added). The integration between Google and Google Voice
`
`was extensive. Part of Google Ventures’ directive was to coordinate directly with Google
`
`employees (“Googlers”) on new technologies: “Central to our effort will be our fellow Googlers,
`
`whom we view as a critically important resource to help educate us about potential investments
`
`areas and evaluate specific companies.” Id. (emphasis added). To this end, beyond Android co-
`
`founder Mr. Miner, Google embedded “select advisors” into Google Ventures representing a
`
`virtual Who’s Who of Google heavy hitters, “such as YouTube co-founders Steve Chen and Chad
`
`Hurley, and early employee Georges Harik, Chief Economist Hal R. Varian and Chief Technology
`
`Advocate Michael Jones.” Ex. 4.
`
`The flow of information between Google Ventures and Google went both ways:
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`“Companies in the portfolio also have close access to Google engineers and processes around
`
`managing products and setting goals.” Ex. 5; ECF No. 103 ¶ 20 n.2 (citing Ex. 5). Google’s mobile
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`products teams, for instance, provided insights to Google Ventures for its portfolio companies “that
`
`other competitors might not be privy to,” including about “the future of Android.” Ex. 5.
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`4
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`The overlap between Google Ventures and Google Voice was particularly significant.
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`Beyond Mr. Miner, a Google Voice inventor (Ex. 1), Google Voice co-founder Craig Walker and
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`Google Voice veteran Wesley Chan were key personnel that Google embedded into Google
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`Ventures. See ECF No. 103 ¶ 20 n.2 (citing Ex. 3; Ex. 4); Ex. 3 (identifying Mr. Walker as Google
`
`Voice co-founder and Google Ventures’ “entrepreneur-in-residence”); Ex. 4 (identifying Mr. Chan
`
`as “an early employee responsible for Google Analytics and Google Voice”).
`
`Before meeting with Flyp, Mr. Miner conferred with Mr. Walker, Google Voice’s co-
`
`founder. See ECF No. 103 ¶ 20. At the subsequent meeting in November 2015, Mr. Miner
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`discussed with Flyp’s Peter Rinfret the existing problems that had long plagued Google Voice, and
`
`Mr. Rinfret explained how Flyp had overcome those same problems using the inventions disclosed
`
`in its pending patent applications. See id. ¶ 21. Mr. Rinfret and Mr. Miner discussed Flyp’s pending
`
`patent applications in significant detail, including the inventions claimed in the ’718 Application
`
`that the USPTO had published earlier in 2015. Id. The depth of Mr. Miner’s discussions with
`
`Mr. Rinfret about Flyp’s pending patent application included minutiae about their prosecution,
`
`including about planned continuations and how Flyp was proceeding under a USPTO program that
`
`allowed for expedited examination. See id. After the meeting, Mr. Miner requested, and received,
`
`a copy of the slide deck that guided the meeting. Id.
`
`D.
`
`After Google Ventures’ meeting with Flyp, Google incorporated many of the
`technical solutions discussed in that meeting, and described in Flyp’s pending
`patent application, into its long-struggling Google Voice product.
`
`After his meeting with Flyp, Mr. Miner took what he had learned about the company’s
`
`technical solutions and its patent application back to the Google Ventures team. Id. ¶ 22. Google
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`Ventures did not offer Flyp funding. Id. Instead, Google incorporated many of the inventions that
`
`Mr. Rinfret and Mr. Miner had discussed during their meeting into Google Voice, including
`
`inventions disclosed in the published and pending ’718 application. See id. ¶¶ 22–23. Google then
`5
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`Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 10 of 20
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`
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`launched an updated version of Google Voice in January 2017 (in direct competition with Flyp’s
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`application) wherein Google finally solved Google Voice’s long-standing problems by
`
`incorporating the exact solutions that Mr. Rinfret had described to Mr. Miner and that Flyp had
`
`disclosed in its pending patent applications. See id. ¶¶ 17–23. Having incorporated inventions from
`
`Flyp’s published patent application into Google Voice, and being aware of Flyp’s plans for
`
`continuation applications, Google knew, or should have known, about each asserted patent,
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`especially considering that Google retrieved and analyzed each asserted patent through its Google
`
`Patents database shortly after it issued. Id. ¶ 22.
`
`III.
`
`STATEMENT OF THE LAW
`A.
`
`The Fifth Circuit disfavors motions to dismiss—courts should not grant them
`if the claim crosses the line from conceivable to plausible when considering
`all allegations true and drawing reasonable inferences in the claimant’s favor.
`
`The Fifth Circuit has long disfavored dismissals on the pleadings and has explained that
`
`district courts should rarely grant them. See Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011),
`
`as revised (Dec. 16, 2011) (reversing dismissal) (“[A] motion to dismiss under 12(b)(6) ‘is viewed
`
`with disfavor and is rarely granted.’” (quoting Harrington v. State Farm Fire & Cas. Co., 563 F.3d
`
`141, 147 (5th Cir. 2009))). This remains true after Iqbal and Twombly. See id. (applying Bell Atl.
`
`Corp. v. Twombly, 550 U.S. 544, 570 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
`
`The Fifth Circuit’s disfavor of motions to dismiss underpins how it requires courts to
`
`approach them. Courts should consider the underlying allegations “in the light most favorable to
`
`the nonmoving party” and should assume the allegations in the pleading are true. See id. at 775,
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`779. A court’s review is not limited strictly to the allegations in the pleadings, however: courts may
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`also consider materials referenced in the pleading and may apply judicial experience and common
`
`sense to draw reasonable inferences in favor of the party opposing dismissal. See id.; Brand
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`Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014) (“The court
`
`6
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`Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 11 of 20
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`
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`may also consider documents attached to either a motion to dismiss or an opposition to that motion
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`when the documents are referred to in the pleadings and are central to a plaintiff’s claims.”).
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`Considering the pertinent allegations and materials in the light most favorable to the nonmovant,
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`if a claim has at least moved “across the line from conceivable to plausible,” then a court should
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`not dismiss it. See Turner, 663 F.3d at 775 (quoting Twombly, 550 U.S. at 570).
`
`B.
`
`Pleading requisite knowledge for willful infringement requires only creating
`a reasonable inference that the accused infringer knew about the patent right
`or was willfully blind to its existence.
`
`At the pleading stage, the question is whether, assuming the allegations are true, it is
`
`plausible that the accused infringer knew about the patent right or was willfully blind to its
`
`existence. See, e.g., Soverain IP, LLC v. Microsoft Corp., No. 217-cv-00204-RWS-RSP, 2018
`
`WL 1465792, at *2 (E.D. Tex. Mar. 26, 2018) (finding infringer’s use of related technology and
`
`citations to the patents-in-suit in other applications sufficient). “But ‘[a]ctual knowledge of
`
`infringement or the infringement risk is not necessary to plead a claim for willful infringement[.]’”
`
`FHE USA LLC v. Lee Specialties Inc., No. 5:18-CV-715-OLG, 2018 WL 11347193, at *3 (W.D.
`
`Tex. Nov. 27, 2018) (quoting Soverain IP, LLC, 2018 WL 1465792, at *2). And “a party’s exposure
`
`to a patent application may give rise to knowledge of a later issued patent.” Maxell Ltd. v. Apple
`
`Inc., No. 5:19-CV-00036-RWS, 2019 WL 7905455, at *5 (E.D. Tex. Oct. 23, 2019).
`
`IV. ARGUMENT
`
`The Patent Act’s mechanisms for enhanced damages intend to punish infringers for conduct
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`beyond typical infringement—behavior that is “willful, wanton, malicious, bad-faith, deliberate,
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`consciously wrongful, flagrant, or—indeed—characteristic of a pirate.” Halo Elecs., Inc. v. Pulse
`
`Elecs., Inc., 579 U.S. 93, 103–04 (2016). Flyp’s Second Amended Complaint (ECF No. 103) tells
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`a striking story about Google’s wrongful and piratelike behavior.
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`7
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`Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 12 of 20
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`
`
`A.
`
`Google’s meeting with Flyp under the false pretense of funding through
`Google Ventures and then incorporating Flyp’s inventions into Google Voice
`despite knowing about Flyp’s patent application was wrongful and piratelike.
`
`Flyp’s pleading alleges that Google sought a meeting with Flyp under the pretense of
`
`venture funding and sailed into Flyp’s offices under the false flag of Google Ventures in 2015 to
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`parlay with its much-smaller competitor and learn about the technology it needed to fix Google
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`Voice, despite being aware that Flyp had a published patent application covering that technology.
`
`By 2015, Google’s telephony application, Google Voice, was abandoned and in disrepair.
`
`See ECF No. 103 ¶¶ 18–19. Google Voice offered users a secondary telephone number for their
`
`mobile devices but relied on an antiquated call-forwarding mechanism that could not maintain
`
`caller identification integrity. See id. Google had tried but failed to solve this problem since 2009.
`
`See id. In January 2015, the USPTO published the solution to Google’s problems in the
`
`’718 Application. See id. ¶ 20. In March 2015, the assignee, Flyp, launched its own telephony
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`application on the Google Play Store, competing directly with Google Voice. See id. Flyp’s
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`application was an immediate success, in part because it leveraged the inventions in the
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`’718 Application and—unlike Google Voice—could maintain caller-identification integrity for
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`multiple secondary numbers (up to five). See id. ¶¶ 20, 24–28.
`
`After Flyp’s success, Mr. Rich Miner, the co-founder of Android, asked for a meeting under
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`the pretext of offering funding through Google’s captive, in-house venture capital fund, Google
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`Ventures. Id. ¶ 20. Unknown to Flyp, Google Ventures’ leadership was closely affiliated with
`
`Google Voice. Id. Its founding members included Mr. Miner (a Google Voice inventor), Mr. Craig
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`Walker (a Google Voice co-founder), and Mr. Wesley Chan (a Google Voice veteran). See id. Also
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`unbeknownst to Flyp, Mr. Miner had conferred with Mr. Walker before the meeting, and
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`Mr. Walker had asked him to report back with what he was able to uncover. See id.
`
`8
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`Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 13 of 20
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`
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`During the meeting, Flyp’s representative, Peter Rinfret, explained Flyp and its
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`technologies to its new potential benefactor, including by describing in technical detail how this
`
`small upstart company had solved the long-standing problems plaguing Google Voice and
`
`stumping Google’s engineers. See id. Mr. Rinfret and Mr. Miner also discussed the details of Flyp’s
`
`efforts to protect those inventions with patents, including specifics of its patent prosecution plans
`
`and the status of its published and pending ’718 Application. See id.
`
`After the meeting, Mr. Miner asked for, and received, a copy of a short presentation that
`
`Mr. Rinfret used to guide the discussion.2 See id. Mr. Miner then had meetings with the Google
`
`Ventures team and briefed them on what he had learned about Flyp and its technologies. See id.
`
`Google Venture never offered Flyp funding. See id. But not long after meeting with Flyp, Google
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`began incorporating the exact solutions that Mr. Miner and Mr. Rinfret had discussed—and that
`
`Flyp had claimed in its published and pending ’718 Application—into Google Voice. See id.
`
`B.
`
`Google Ventures’ knowledge of Flyp’s pending and public patent application
`is enough to plausibly allege Google’s knowledge for willful infringement.
`
`Google is wrong that its alleged wrongful behavior via Google Ventures is not sufficient to
`
`support a claim for willful infringement. In considering Google’s first motion to dismiss, the Court
`
`recognized that Flyp’s (then less detailed) allegations about Mr. Miner’s meeting with Flyp about
`
`its technology and pending patent application “tell a compelling story” and “could typify a
`
`sufficient inference of actual knowledge [based on a patent application] if the actual defendant
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`was aware of the patent filings.” ECF No. 48 at 9. Since then, Flyp has added significant details
`
`about the coordination, communication, and personnel overlap among Google, Google Ventures,
`
`
`2 Google is wrong that the Court should infer that only the information specifically written on the face of this slide
`deck was discussed at the meeting. At this stage, inferences are due in Flyp’s favor. A reasonable inference here is that
`in accord with Flyp’s allegations, the slide deck guided Mr. Rinfret and Mr. Miner through a presentation wherein
`Mr. Rinfret discussed Flyp’s pending patent application, the ’718 Application, and its plans to prosecute further
`applications, including continuations. See ’718 Application; ECF No. 103 ¶ 21.
`9
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`Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 14 of 20
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`
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`and Google Voice that more than warrant a reasonable inference at the pleading stage that Google
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`knew about Flyp’s patent filings through Google Ventures and that it used that knowledge to
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`benefit Google Voice. See, e.g., ECF No. 103 ¶¶ 20–23.
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`First, Google is wrong to suggest that Google Ventures and the Google Voice team did not
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`have a close relationship in 2015. Mr. Miner, Google Ventures’ representative for the 2015 meeting
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`with Flyp, was a putative Google Voice inventor. See id. ¶ 20 (citing Ex. 1); Ex. 1 (listing Rich
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`Miner as inventor). Before the meeting, Mr. Miner coordinated with Mr. Walker, Google Voice’s
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`co-founder, who asked Mr. Miner to report back about what he learned from Flyp. See id. ¶¶ 21–
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`22. After the meeting, Mr. Miner did in fact confer with the Google Ventures team about what he
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`had learned, and shortly thereafter, the Google Voice team began implementing the exact solutions
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`that Flyp had disclosed to Mr. Miner and in the ’718 Application. See id. ¶ 20. Given these facts,
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`the inference that Mr. Miner and the Google Ventures team were communicating and coordinating
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`with the Google Voice team before and after the 2015 meeting and that Google had actual
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`knowledge of Flyp’s pending patent application as a result is more than reasonable.
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`Second, based on the allegations in the complaints and the documents they incorporate, the
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`relationship between Google Ventures and Google in 2015 was more than sufficient to create a
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`reasonable inference for knowledge to be imputed from one to another. As the Court noted by
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`citation in considering Google’s first motion to dismiss, “‘the specific facts establishing that
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`knowledge may be imputed’ [do] not need to ‘be alleged in order to avoid dismissal at the pleading
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`stage.’” ECF No. 48 (quoting Mobile Telecomms. Techs., LLC v. Blackberry Corp., No. 3:12-CV-
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`1652-M, 2016 U.S. Dist. LEXIS 55206, at *7–8 (N.D. Tex. Apr. 26, 2016)). Nonetheless, Flyp’s
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`pleading and the documents it incorporates describe a close integration of Google and Google
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`Ventures, and the Google Voice team, and shows how information flowed between them.
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`Case 6:22-cv-00031-ADA Document 116 Filed 04/28/23 Page 15 of 20
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`For instance, Google Ventures was “Google’s venture capital fund,” and its core team
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`overlapped significantly with Google Voice, including Mr. Miner, Mr. Walker, and Mr. Chan. See
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`ECF No. 103 ¶ 20. Several public documents incorporated into the pleading further explain the
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`close relationship among Google, Google Ventures, and Google Voice. See id. ¶ 20 n.2 (citing
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`Ex. 2, Ex. 3, Ex. 4, Ex. 5). In one, Mr. Miner writes on behalf of Google that Google Ventures is
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`“Google’s new venture capital fund” and is “Google’s effort to take advantage of our resources.”
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`Ex. 2. Mr. Miner goes on to describe the need for technical information about targets to flow
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`between Google and Google Ventures, including for Google Ventures to “have close access to
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`Google engineers and processes” and for Google’s technical teams “to help educate us about
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`potential investments areas and evaluate specific companies.” Id.
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`Other documents explain that this integration between Google Ventures and Google was a
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`key differentiator from other venture funds because communication between the two could provide
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`portfolio companies with access to information “that other competitors might not be privy to,”
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`including about “the future of Android.” See Ex. 5. Yet more documents create a reasonable
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`inference that one of those technical teams Google Ventures was closely integrated into and
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`exchanging information with was Google Voice. They describe key foundational personnel for
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`Google Ventures as including Mr. Miner (a Google Voice inventor), id., Ex. 1; Mr. Walker (a
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`Google Voice co-founder), Ex. 3; and Mr. Chan (a Google Voice veteran), Ex. 4.
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`This remarkably close relationship between Google and Google Ventures (its captive
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`venture capital arm tasked with spending Google’s money)—coupled with the tight integration
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`between Google Ventures and the technical teams at Google, especially Google Voice—
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`demonstrates how knowledge flowed readily between the two companies and creates a reasonable
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`inference for knowledge to be imputed from Google Ventures onto Google.
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`C.
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`Google’s actual knowledge of the pending ’710 Application and its purposeful
`effort to avoid learning about its continuations and the later-issued patents-
`in-suit create a reasonable inference of sufficient knowledge.
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`It is not true, as Google suggests, that it can use its captive venture-funding arm to extract
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`technological details from a smaller competitor about a pending patent application, incorporate its
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`competitor’s innovations into its product, and then purposefully bury its head in the sand to avoid
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`a finding that it has willfully infringed later-issued patents.
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`Other courts have found similar behavior sufficient to support willfulness claims. For
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`instance, the court considering SimpliVity Corp. v. Springpath, Inc., No. 4:15-13345-TSH, 2016
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`WL 5388951, at *9 (D. Mass. July 15, 2016), found a sophisticated infringer’s surreptitious
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`investigation into its competitor’s technology and incorporation of that technology into its own
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`product was enough to support a reasonable inference that the infringer knew about the asserted
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`patent, even though the asserted patent had not yet issued from its then-pending application:
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`The court infers from the SAC Springpath’s pre-suit knowledge of
`the ’799 Patent. SimpliVity has alleged that Springpath—a
`sophisticated entity and SimpliVity competitor—surre