Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC., (d/b/a FLYP),
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`CIVIL ACTION NO. 6:22-cv-00031-ADA
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`JURY TRIAL DEMANDED
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`DEFENDANT GOOGLE LLC’S REPLY IN SUPPORT OF MOTION TO
`DISMISS PLAINTIFF FLYPSI, INC.’S CLAIMS FOR
`PRE-SUIT INDIRECT AND WILLFUL INFRINGEMENT
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`
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`-1-
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`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 2 of 16
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`TABLE OF CONTENTS
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`
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`INTRODUCTION .................................................................................................................. 1
`I.
`II. ARGUMENT .......................................................................................................................... 3
`A.
`Flyp Did Not Notify Mr. Miner, or Google, of the Patents-in-Suit ................................. 3
`1.
`Knowledge “About the Patent Right” is Not Enough .................................................. 4
`2.
`“Exposure” to a Patent Application is Not Enough ...................................................... 4
`3.
`“Google Patents” Cannot Give Rise to Actual Knowledge .......................................... 6
`B.
`Flyp Does Not Plead Willful Blindness ........................................................................... 6
`C.
`Flyp’s Imputation Argument Fails ................................................................................... 8
`D.
`Dismissal With Prejudice is Appropriate ....................................................................... 10
`III. CONCLUSION ..................................................................................................................... 10
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`-i-
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`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 3 of 16
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
`
`Al Rushaid v. Nat’l Oilwell Varco, Inc.,
`757 F.3d 416 (5th Cir. 2014) .....................................................................................................9
`
`BillJCo, LLC v. Apple Inc.,
`583 F. Supp. 3d 769 (W.D. Tex. Feb. 1, 2022)..........................................................................4
`
`Blitzsafe Texas, LLC v. Volkswagen Grp. of Am., Inc.,
`No. 2:15-cv-01274-JRG-RSP, 2016 WL 4778699 (E.D. Tex. Aug. 19, 2016) .....................5, 7
`
`Commil USA, LLC v. Cisco Sys., Inc.,
`575 U.S. 632 (2015) ...................................................................................................................4
`
`DeLoach v. Woodley,
`405 F.2d 496 (5th Cir. 1968) ...................................................................................................10
`
`Germanson v. Midland Mortgage,
`No. 6:22-cv-00275-JKP, 2022 WL 1157903 (W.D. Tex. Apr. 19, 2022) ...............................10
`
`Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc.,
`892 F.3d 719 (5th Cir. 2018) .....................................................................................................5
`
`Masimo Corp. v. Wireless,
`No. 3:19-cv-01100-BAS, 2020 WL 7260660 (S.D. Cal. Dec. 10, 2020) ..................................8
`
`Maxell Ltd. v. Apple Inc.,
`No. 5:19-cv-00036-RWS, 2019 WL 7905455 (E.D. Tex. Oct. 23, 2019) .........................4, 5, 6
`
`McRO, Inc. v. Namco Bandai Games Am., Inc.,
`23 F. Supp. 3d 1113 (C.D. Cal. 2013) .......................................................................................9
`
`Mobile Telecomms. Techs., LLC v. Blackberry Corp.,
`No. 3:12-cv-01652-M, 2016 U.S. Dist. LEXIS 55206 (N.D. Tex. Apr. 26,
`2016) ..........................................................................................................................................8
`
`Parity Networks, LLC v. Cisco Sys., Inc.,
`No. 6:19-cv-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019) ................................3
`
`Plotkin v. IP Axess Inc.,
`407 F.3d 690 (5th Cir. 2005) .....................................................................................................6
`
`SimpliVity Corp. v. Springpath, Inc.,
`No. 4:15-cv-13345-TSH, 2016 WL 5388951 (D. Mass. July 15, 2016) ...................................7
`
`-ii-
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`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 4 of 16
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`Soverain IP, LLC v. Microsoft Corp.,
`No. 2:17-cv-00204-RWS-RSP, 2018 WL 1465792 (E.D. Tex. Mar. 26, 2018)........................4
`
`U.S. v. Bestfoods,
`524 U.S. 51 (1998) .....................................................................................................................9
`
`Varian Med. Sys., Inc. v. Elekta AB,
`No. 1:15-cv-00871-LPS, 2016 WL 3748772 (D. Del. July 12, 2016) .......................................8
`
`Other Authorities
`
`Restatement (Second) Agency § 278, cmt. a ...................................................................................9
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`-iii-
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`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 5 of 16
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`I.
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`INTRODUCTION
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`After months of discovery, Flyp still cannot state a claim for pre-suit indirect and willful
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`infringement because Flyp never put Google on notice of the Patents-in-Suit. Flyp alleges only
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`that its founder, Peter Rinfret, notified a Google Ventures employee, Rich Miner, about “Flyp’s
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`technology” and that Flyp had a pending patent application relating to this technology. Dkt. 103
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`(“SAC”) ¶¶ 33, 47, 61, 78. The law requires more. A patentee must place the alleged infringer on
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`notice of the patents asserted in the case. Dkt. 48 (“Order”) at 8 (“No facts are alleged that the
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`discussions specifically centered on the Patents-in-Suit”); Mot. at 7 (citing cases where plaintiff
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`notified the defendant by “identifying the patents”). Flyp understands this legal quagmire and now
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`argues that knowledge “about the patent right” is enough. It is not.
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`It is also not enough that Mr. Miner was allegedly “exposed” to Flyp’s pending patent
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`application. At the time of the November 2015 meeting, Flyp had nothing more than a single
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`pending patent application, U.S. Application No. 14/307,052 (“the ’052 Application”).1 Whether
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`knowledge of an application can give rise to knowledge of a later-issued patent turns on notice of
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`a patent’s claims. Flyp does not (and cannot) allege that the November 2015 meeting notified
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`Google of the claims of the Patents-in-Suit; the notice of allowance for the ’770 Patent claims did
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`not issue until January 2017, fourteen months later. Even more, the applications that issued as the
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`remaining Patents-in-Suit were filed between April 2017 and April 2020—nearly one and a half
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`to five and a half years after the November 2015 meeting. Flyp ignores this legal issue, which the
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`Court previously raised. See Order at 9.
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`1 In its opposition, Flyp refers to the ’052 Application as “the ’718 Application.” See, e.g., Opp. at
`3. It appears Flyp is referring to U.S. Publication No. 2015/0024718. For consistency and accuracy,
`Google will refer to Flyp’s “pending patent application,” Opp. at 5, as the ’052 Application.
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`-1-
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`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 6 of 16
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`Further, Flyp does not allege any “deliberate actions” undertaken by Google to avoid
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`learning of the Patents-in-Suit, which is required to plead willful blindness. Order at 8. Rather,
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`Flyp asks the Court to infer that Mr. Miner or Google searched for the claims of the ’052
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`Application and then incorporated into Google Voice the alleged inventions claimed in that
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`application. Flyp also manufactures facts to support its willful blindness theory, claiming that
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`Google was “aware of Flyp’s plans for continuation applications” and “retrieved” each of the
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`Patents-in-Suit after they issued. Opp. at 6. Yet none of these facts are alleged in the SAC. This
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`absence is telling. Even after months of discovery, Flyp still cannot in good faith plead that anyone
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`at Google had knowledge of the claims in the ’052 Application—or of the remaining Patents-in-
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`Suit—and incorporated that technology into its products.2 Like in its original complaint, Flyp
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`cannot plead that Google was willfully blind to the issuance of the Patents-in-Suit.
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`Finally, Flyp’s opposition does nothing to address the legal requirements for imputation.
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`Although Flyp now argues that Google Ventures is a “captive” and “closely controlled” subsidiary
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`of Google, Opp. at 4, these facts are nowhere in the SAC because they are not supported by any
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`evidence. But even if Flyp were correct, Flyp does not plead that there is “common ownership and
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`governance” between Google Ventures and Google, or that “layers of corporate disguise”
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`frustrated Flyp’s ability to provide Google notice of the Patents-in-Suit. Order at 10; Mot. at 12.
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`At most, Flyp argues that Google Ventures relied on other Google employees for subject-matter
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`expertise. But imputation requires more than mere “coordination, communication, and personnel
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`overlap.” Opp. at 9. And Flyp’s opposition does nothing to resolve the threshold problem that any
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`possible imputation is untethered to the relevant dates: the alleged “Google Ventures team” of
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`2 In fact, the accused Google Voice functionality well predates the priority dates of the Patents-in-
`Suit.
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`-2-
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`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 7 of 16
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`Craig Walker and Wesley Chan was no longer employed by Google as of November 2015. See
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`SAC ¶ 20; Mot. at 11 (Unikel Decl., Ex. C). Allegations that Mr. Miner conferred with Mr. Walker
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`are therefore a red herring and legally irrelevant to pleading imputation here.
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`At bottom, Flyp’s claims for pre-suit indirect and willful infringement fail as a matter of
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`law. The Court previously dismissed these claims, and nothing has changed since. Discovery has
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`not uncovered any facts bolstering Flyp’s desired willfulness claim, so Flyp instead resorts to
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`fabricating a connection between Mr. Rinfret’s meeting with Google Ventures and the accused
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`Google product. Flyp still does not (and cannot) allege Google’s actual knowledge of the Patents-
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`in-Suit before Flyp filed its original complaint on January 10, 2022. Because Flyp’s SAC suffers
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`from the same legal deficiencies as its original complaint, dismissal with prejudice is appropriate.3
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`II.
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`ARGUMENT
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`A.
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`Flyp Did Not Notify Mr. Miner, or Google, of the Patents-in-Suit
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`In its Order, the Court outlined two legal issues that Flyp fails to address: (i) Flyp does not
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`allege that the November 2015 presentation “specifically centered” on the ’052 Application; and
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`(ii) Flyp did not provide allegations regarding knowledge of four of the five Patents-in-Suit,
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`because “only the ’770 Patent . . . was pending” at the time of the November 2015 meeting. Order
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`at 8-9. Because these facts are not (and cannot) be alleged, “no reasonable inferences can be drawn
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`that Google knew of the ’770 Patent, much less the remaining Patents-in-Suit.” Id. at 9.
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`3 Curiously, Flyp concedes that its pre-suit indirect infringement claims are “based on post-suit
`conduct.” Opp. at 1 n.1. But recovery for indirect infringement claims, like willful infringement
`claims, attaches only to the period after the accused infringer “learns of the patent’s existence.”
`Parity Networks, LLC v. Cisco Sys., Inc., No. 6:19-cv-00207-ADA, 2019 WL 3940952, at *2-3
`(W.D. Tex. July 26, 2019). Flyp’s admission alone should result in the Court dismissing Flyp’s
`pre-suit indirect infringement claim with prejudice.
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`-3-
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`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 8 of 16
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`1.
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`Knowledge “About the Patent Right” is Not Enough
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`Flyp argues that it need only allege knowledge “about the patent right” to plead pre-suit
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`indirect and willful infringement. Opp. at 7. But a defendant has actual knowledge of patents only
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`when the plaintiff identifies an actual patent or application number. Mot. at 7 (citing cases where
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`plaintiff notified defendant by “identifying the patents”); Order at 8 (“No facts are alleged that the
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`discussions specifically centered on the Patents-in-Suit”) (emphasis added).
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`Flyp cites Soverain IP, LLC v. Microsoft Corp., No. 2:17-cv-00204-RWS-RSP, 2018 WL
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`1465792 (E.D. Tex. Mar. 26, 2018), but it is inapposite. Opp. at 7. There, the plaintiff alleged that
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`its “patents and published applications have been cited in over 6000 issued United States patents
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`and published applications as prior art, including by [defendant] AT&T.” Soverain IP, 2018 WL
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`1465792 at *1-2. The plaintiff in Soverain IP thus alleged that the defendant actually knew of the
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`patent number at issue. Id. Therefore, Flyp incorrectly asserts that knowledge of an esoteric “patent
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`right” establishes indirect and willful infringement. See Commil USA, LLC v. Cisco Sys., Inc., 575
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`U.S. 632, 639 (2015) (requiring “knowledge of the patent in suit”); BillJCo, LLC v. Apple Inc.,
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`583 F. Supp. 3d 769, 775 (W.D. Tex. Feb. 1, 2022) (requiring that the accused infringer “knew of
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`the patent-in-suit”). Put simply, a patentee must identify the patent at issue to put an alleged
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`infringer on notice. There is no dispute that Flyp failed to do this. Flyp’s pre-suit willful and
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`indirect infringement claims fail on this basis alone.
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`2.
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`“Exposure” to a Patent Application is Not Enough
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`Flyp also argues that “exposure to a patent application” may give rise to knowledge of a
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`later-issued patent, citing Maxell Ltd. v. Apple Inc., No. 5:19-cv-00036-RWS, 2019 WL 7905455
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`(E.D. Tex. Oct. 23, 2019), as authority. Opp. at 7. But there, the court found that Maxell’s
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`interactions with Apple regarding the patents continued “only until . . . months before the ’586
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`Patent issued.” Maxell Ltd., 2019 WL 7905455 at *5. The court therefore held that Maxell failed
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`to “plausibly allege that Apple had knowledge of the ultimately issued ’586 patent.” Id. The facts
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`here are even less compelling than in Maxell. Here, Flyp interacted with Google Ventures about
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`the patents years (not months) before the Patents-in-Suit issued. It follows that Flyp, in basing its
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`theory on a single November 2015 meeting, does not “plausibly allege that [Google] had
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`knowledge of the ultimately issued [’770 Patent],” let alone the remaining Patents-in-Suit. Id.
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`The proposition in Maxell derives from Blitzsafe, where the court held that knowledge
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`acquired by “exposure to a patent application” turns on notice of a patent’s claims. See Blitzsafe
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`Texas, LLC v. Volkswagen Grp. of Am., Inc., No. 2:15-cv-01274-JRG-RSP, 2016 WL 4778699 at
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`*6-7 (E.D. Tex. Aug. 19, 2016). Here, the U.S. Patent and Trademark Office did not issue its notice
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`of allowance for the ’770 Patent claims until January 23, 2017, nearly fourteen months after the
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`November 2015 meeting where Mr. Miner was allegedly “exposed” to the ’052 Application. Ex.
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`D (Notice of Allowance for ’770 Patent). And the claims for the remaining Patents-in-Suit were
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`not allowed until May 23, 2018 (’105 Patent), April 19, 2019 (’094 Patent), January 22, 2021 (’554
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`Patent), and December 9, 2021 (’585 Patent). Ex. E (Notice of Allowance for remaining Patents-
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`in-Suit).4 See Blitzsafe, 2016 WL 4778699, at *6 (holding that an accused infringer may have
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`knowledge of a patent’s claims if it received notice of a patent application “for which a notice of
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`allowance has been issued”). Mr. Miner’s alleged “exposure” to the ’052 Application thus did not
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`give rise to knowledge of the ’770 Patent (or the remaining Patents-in-Suit) under either Maxell or
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`Blitzsafe.5 Google’s motion should be granted on this additional basis.
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`4 Google respectfully requests that the Court take judicial notice of Exhibits D and E (Notices of
`Allowance). See Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc.,
`892 F.3d 719, 726 (5th Cir. 2018).
`5 This is especially true considering the ’770 Patent claims had not been added to the underlying
`’052 Application as of November 2015. See Ex. F (comparison of claims as of November 2015
`and January 2017 allowance).
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`-5-
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`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 10 of 16
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`3.
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`“Google Patents” Cannot Give Rise to Actual Knowledge
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`Flyp alleges that Google was aware of the Patents-in-Suit because “they were analyzed and
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`incorporated into patents.google.com, a website owned and operated by Google LLC.” SAC ¶ 22.
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`“Google Patents” is a publicly available index of full-text documents from 100+ patent offices
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`around the world, and includes over 120 million patent publications. Ex. G (“About Google
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`Patents”).6 In its opposition, Flyp takes this allegation a step further, arguing that Google, capable
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`of “tracking patents and applications[,] . . . retrieved” the Patents-in-Suit through Google Patents.
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`See, e.g., Opp. at 13. Because this argument is not included in Flyp’s SAC, however, “the Court
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`may not consider it in evaluating the motion to dismiss.” Maxell Ltd., 2019 WL 7905455 at *4.
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`Moreover, because Google Patents is publicly available, Flyp’s argument would apply to
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`any party accused of patent infringement, making all infringement willful. No party can have actual
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`knowledge of the nearly 120 million patent and patent applications across the world simply
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`because it has access to a database of these documents. Flyp cites no authority for its argument,
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`which would shift the burden from the patentholder to give notice of its patents and instead require
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`an accused infringer to affirmatively search for a potential plaintiff’s patents. Flyp’s allegations
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`regarding the Google Patents index and Flyp’s subsequent “unwarranted factual inferences”
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`deserve no credit. Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).
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`Flyp Does Not Plead Willful Blindness
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`B.
`Flyp uses its opposition to allege facts that it failed to plead in the SAC to argue that Google
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`was willfully blind. But facts in support of a claim for relief must be in the operative complaint,
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`and not conjured in response to a motion to dismiss. Maxell Ltd., 2019 WL 7905455, at *4. For
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`6 About Google Patents, Coverage, GOOGLE HELP, https://support.google.com/faqs/answer/
`7049585?hl=en (last visited April 25, 2023). Google respectfully requests that the Court take
`judicial notice of Exhibit G. See supra n. 4.
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`-6-
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`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 11 of 16
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`example, Flyp argues for the first time in its opposition that, during the November 2015 meeting,
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`Mr. Rinfret discussed Flyp’s “plans to prosecute further applications, including continuations.”
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`Opp. at 9 n.2; see also Opp. at 13 (asserting that Google knew about “Flyp’s patent prosecution
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`plans”). There are no such allegations in the SAC. But even if Flyp had alleged that the 2015
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`meeting included Flyp’s “plans to prosecute further applications,” this still would not support a
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`reasonable inference that Google had actual knowledge of those later-in-time applications. Order
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`at 9 (“The remaining Patents-in-Suit were filed about one and a half to five and a half years after
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`the November 12 meeting.”); Blitzsafe, 2016 WL 4778699, at *6 (“a party is not obligated to
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`continually monitor every patent application to which it has been exposed”).
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`And while Flyp leans heavily on SimpliVity—a non-controlling case—the plaintiff there
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`alleged what Flyp has not. There, plaintiff SimpliVity alleged that defendant Springpath
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`“researched SimpliVity’s patents,” and that “[t]his patent research resulted in Springpath’s pre-
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`suit knowledge of SimpliVity’s ’799 patent.” Ex. H at ¶ 31 (SimpliVity’s complaint).7 Also,
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`SimpliVity alleged how its patent application “could be viewed on publicly-available websites.”
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`SimpliVity Corp. v. Springpath, Inc., No. 4:15-cv-13345-TSH, 2016 WL 5388951, at *9 (D. Mass.
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`July 15, 2016). Here, unlike the plaintiff in SimpliVity, Flyp makes no allegation of Google’s
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`“research” into the Patents-in-Suit, and certainly cannot allege that four of the five Patents-in-Suit
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`“could be viewed.” SimpliVity is further distinguishable insofar as it was “the founder of the
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`defendant” who was alleged to have asked a number of specific engineering-related questions at a
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`trade show without disclosing his identity. Order at 9 (emphasis in original). Here, Flyp does not
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`allege similar facts. Flyp is simply twisting a routine business meeting with Google Ventures (a
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`7 Google respectfully requests that the Court take judicial notice of the Second Amended
`Complaint filed in Case No. 4:15-cv-13345-TSH (D. Mass. Feb. 5, 2016). See supra n.4.
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`-7-
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`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 12 of 16
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`non-party) into the basis for its willful infringement claim to mask its inability to plead Google’s
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`actual knowledge of the Patents-in-Suit.
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`In sum, nothing in the SAC raises a plausible inference that Google had a policy or took
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`deliberate action to avoid learning of the issuance of the Patents-in-Suit, as the case law requires.
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`Order at 8-9; Mot. at 9-10. This is because Flyp understands that there were none. Having failed
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`even with the benefit of discovery to plead Google’s willful blindness, dismissal with prejudice is
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`appropriate.
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`C.
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`Flyp’s Imputation Argument Fails
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`The linchpin of Flyp’s position is that Google acquired knowledge of the Patents-in-Suit
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`from Mr. Miner, a Google Ventures employee as of November 2015. Flyp fails to plead facts that
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`make this a plausible inference under principles of agency and corporate law. And notwithstanding
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`Flyp’s arguments to the contrary, Flyp must plead facts to establish that knowledge was plausibly
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`imputed from Google Ventures to Google. Flyp cites Mobile Telecomms. to avoid this pleading
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`requirement, Opp. at 10, but Mobile Telecomms. found that the defendant did not identify “any
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`authority” to support its motion to dismiss, and that in “the absence of such authority,” dismissal
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`was inappropriate. Cf. Mobile Telecomms. Techs., LLC v. Blackberry Corp., No. 3:12-cv-01652-
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`M, 2016 U.S. Dist. LEXIS 55206, at *7-8 (N.D. Tex. Apr. 26, 2016). Here, by contrast, Google
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`has ample authority that plaintiffs must allege imputation at the pleading stage. See Masimo Corp.
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`v. Wireless, No. 3:19-cv-01100-BAS, 2020 WL 7260660, at *10-11 (S.D. Cal. Dec. 10, 2020)
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`(“Because there is a strong presumption against disregarding corporate identities, a plaintiff must
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`allege specific facts supporting both of the necessary elements for alter ego liability; conclusory
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`allegations will not suffice.”); Varian Med. Sys., Inc. v. Elekta AB, No. 1:15-cv-00871-LPS, 2016
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`WL 3748772, at *5 (D. Del. July 12, 2016) (“Plaintiff needs to set out more than just the bare fact
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`of the parent/subsidiary relationship in order to make out a plausible claim that the U.S. Defendants
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`-8-
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`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 13 of 16
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`had the requisite knowledge of the patent-in-suit as of April 2006 or thereafter.”); McRO, Inc. v.
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`Namco Bandai Games Am., Inc., 23 F. Supp. 3d 1113, 1125 (C.D. Cal. 2013) (requiring allegations
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`of imputation).
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`Flyp does not (and cannot) plead that Mr. Miner’s knowledge from the November 2015
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`meeting was imputed to Google. In its opposition, Flyp argues that “coordination, communication,
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`and personnel overlap” between Google Ventures and Google is enough to plead imputation. Opp.
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`at 9. It is not. See Order at 10-11; Al Rushaid v. Nat’l Oilwell Varco, Inc., 757 F.3d 416, 423-24
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`(5th Cir. 2014) (requiring a showing that an affiliate is an “alter ego” or that there are “grounds to
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`pierce the defendants’ corporate veils”). Flyp has no authority supporting its claim that imputation
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`could be plead by merely alleging that “knowledge flowed readily between the two companies.”
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`Opp. at 11. This would belie a “fundamental principle of corporate law, applicable to the parent-
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`subsidiary relationship.” U.S. v. Bestfoods, 524 U.S. 51, 61 (1998). Flyp at most alleges that
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`Google Ventures relied on Google LLC employees for subject-matter expertise. Opp. at 4, 11
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`(“Google’s effort to take advantage of our resources”). But corporations are not liable for each
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`other’s obligations “merely because of centralized control, mutual purposes, and shared finances.”
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`Al Rushaid, 757 F.3d at 424.
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`Flyp also does not address a threshold problem. Flyp alleges that Mr. Miner’s interactions
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`with Craig Walker and Wesley Chan, who both worked on Google Voice, support imputing Mr.
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`Miner’s knowledge to Google. SAC ¶ 20. Flyp ignores that Messrs. Walker and Chan were no
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`longer affiliated with either Google or Google Ventures as of November 2015. Id. n.2 (alleging a
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`relationship between Mr. Miner and Google employees around 2009-2010); Mot. at 11 (Unikel
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`Decl., Ex. C). Therefore, any “remarkably close relationship” that Flyp wants the Court to infer,
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`Opp. at 11, is untethered to the relevant period of time. See Restatement (Second) Agency § 278,
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`-9-
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`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 14 of 16
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`cmt. a (“Knowledge by one who has no opportunity to act because of his knowledge . . . does not
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`affect legal liability.”). Indeed, Craig Walker was already the CEO of Dialpad, Inc. as of November
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`2015. Mot. at 11 (Unikel Decl., Ex. C).
`
`D.
`
`Dismissal With Prejudice is Appropriate
`
`Fact discovery opened on October 13, 2022, over five months before Flyp filed its SAC.
`
`During that time, Flyp deposed both Mr. Miner and Mr. Walker in this action. Flyp does not once
`
`cite the documents produced, or the testimony received, from either. That is because that discovery
`
`has uncovered no evidence of Google’s pre-suit knowledge of the Patents-in-Suit. Flyp also argues
`
`that Google “has not provided any corporate testimony” on this issue while ignoring the fact that
`
`it deposed Mr. Miner, the only person who Flyp alleges attended the November 2015 meeting so
`
`central to its claims. Moreover, Flyp has not identified any additional discovery that it requires to
`
`support its allegations, nor any reason why it has failed to take such discovery in over five months
`
`since discovery has been open. Flyp has “alleged [its] best case,” and the Court should dismiss the
`
`SAC for the same reasons it dismissed Flyp’s original complaint. Germanson v. Midland
`
`Mortgage, No. 6:22-cv-00275-JKP, 2022 WL 1157903, at *2 (W.D. Tex. Apr. 19, 2022).
`
`Dismissal with prejudice is therefore appropriate. DeLoach v. Woodley, 405 F.2d 496 (5th Cir.
`
`1968).
`
`III.
`
`CONCLUSION
`
`For the foregoing reasons, Google respectfully requests that the Court dismiss Flyp’s pre-
`
`suit indirect and willful infringement claims with prejudice.
`
`-10-
`
`

`

`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 15 of 16
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`
`
`DATED: April 26, 2023
`
`Respectfully Submitted,
`
`/s/ Elizabeth Brann
`Elizabeth Brann (Pro Hac Vice)
`elizabethbrann@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
`
`Robert W. Unikel (Pro Hac Vice)
`robertunikel@paulhastings.com
`John A. Cotiguala (Pro Hac Vice)
`johncotiguala@paulhastings.com
`Daniel J. Blake (Pro Hac Vice)
`danielblake@paulhastings.com
`Grayson S. Cornwell (Pro Hac Vice)
`graysoncornwell@paulhastings.com
`PAUL HASTINGS LLP
`71 South Wacker Drive, Suite 4500
`Chicago, IL 60606
`Telephone: (312) 499-6000
`Facsimile: (312) 499-6100
`
`Robert R. Laurenzi (Pro Hac Vice)
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 318-6000
`Facsimile: (212) 319-4090
`
`Joshua Yin (Pro Hac Vice)
`joshuayin@paulhastings.com
`David M. Fox (Pro Hac Vice)
`davidfox@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`Paige Arnette Amstutz
`State Bar No.: 00796136
`pamstutz@scottdoug.com
`
`-11-
`
`

`

`Case 6:22-cv-00031-ADA Document 117 Filed 05/02/23 Page 16 of 16
`
`
`
`SCOTT, DOUGLASS & MCCONNICO,
`LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`Telephone: (512) 495-6300
`Facsimile: (512) 495-6399
`
`Attorneys for Defendant Google LLC
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on the 26th day of April, 2023, a true and correct copy of the foregoing
`
`document was filed electronically with the Clerk of Court using the CM/ECF system. As of this
`
`date, all counsel of record have consented to electronic service and are being served with a copy
`
`of this document through the Court’s CM/ECF system and by email.
`
`/s/ Paige Arnette Amstutz
`Paige Arnette Amstutz
`
`-12-
`
`