Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 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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`
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`
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`Civil Action No. 6:22-cv-31-ADA
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`
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`JURY TRIAL DEMANDED
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`Plaintiff,
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`Defendant.
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`FLYPSI, INC. (D/B/A FLYP),
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`vs.
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`GOOGLE LLC,
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`
`
`
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`
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`FLYPSI, INC.’S OPPOSED MOTION TO STRIKE DEFENDANT’S ANSWER TO
`SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`OR TO DISMISS DEFENDANT’S INEQUITABLE CONDUCT DEFENSE
`
`i
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 2 of 16
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`
`I.
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`II.
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`III.
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`IV.
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION AND SUMMARY OF THE ARGUMENT ........................................ 1
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`BACKGROUND ................................................................................................................ 1
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`A.
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`B.
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`Procedural History .................................................................................................. 1
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`Google’s New Inequitable Conduct Allegations .................................................... 2
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`STATEMENT OF THE LAW ............................................................................................ 4
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`ARGUMENT ...................................................................................................................... 5
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`A.
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`B.
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`The Court should strike Google’s answer to Flyp’s Second Amended
`Complaint because it is untimely, and Google did not seek leave to file it. ........... 5
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`The Court should dismiss Google’s inequitable conduct defense because
`its underlying allegations do not meet the pleading standard under
`Exergen. .................................................................................................................. 6
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`1.
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`2.
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`Google failed to address the “how,” “what,” and “where” elements. ......... 6
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`Google failed to allege properly a specific intent to deceive the
`USPTO. ....................................................................................................... 9
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`V.
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`CONCLUSION ................................................................................................................. 10
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 3 of 16
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`TABLE OF AUTHORITIES
`
`
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`Page(s)
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`Cases
`
`Applied Biokinetics LLC v CVS Pharmacy, Inc.,
`2022 WL 1192467 (W.D. Tex. Apr. 21, 2022) ..................................................................4, 6, 7
`
`Decapolis Sys., LLC v Epic Sys. Corp.,
`2021 WL 5908403 (W.D. Tex. Dec. 14, 2021) .....................................................................4, 5
`
`Devabhaktuni v. C.P.S.,
`2020 WL 4745048 (N.D. Tex. July 16, 2020) ...........................................................................4
`
`Exergen Corp. v. Wal-Mart Stores, Inc.,
`575 F.3d 1312 (Fed. Cir. 2009)..............................................................................................4, 6
`
`Flypsi Inc. v Dialpad, Inc.,
`2022 WL 3593132 (W.D. Tex. Aug. 22, 2022) .................................................................7, 8, 9
`
`Front Row Techs., LLC v. NBA Media Ventures,
`LLC, 163 F. Supp. 3d 938 (D.N.M. 2016).................................................................................9
`
`U.S. ex rel. Mathews v. HealthSouth Corp.,
`332 F.3d 293 (5th Cir. 2003) .....................................................................................................4
`
`Mayeaux v. La. Health Serv. & Indem. Co.,
`376 F.3d 420 (5th Cir. 2004) .....................................................................................................5
`
`Stephens v. John Bean Techs. Corp.,
`2018 U.S. Dist. LEXIS 222847 (W.D. Tex. Dec. 12, 2018) .....................................................5
`
`Tafas v. Doll,
`559 F.3d 1345 (Fed. Cir. 2009)..................................................................................................8
`
`Tafas v. Kappos,
`586 F.3d 1369 (Fed. Cir. 2009)..................................................................................................8
`
`Therasense, Inc. v. Becton, Dickinson & Co.,
`649 F.3d 1276 (Fed. Cir. 2011)..................................................................................................9
`
`Statutes
`
`MPEP § 2001.06(c) ..........................................................................................................................8
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`Other Authorities
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`Fed. R. Civ. P. 9 .......................................................................................................................4, 5, 6
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 4 of 16
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`Fed. R. Civ. P. 12(b)(6)..............................................................................................................5, 10
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`Fed. R. Civ. P. 15 .............................................................................................................................5
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`Fed. R. Civ. P. 30(b)(6)....................................................................................................................6
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 5 of 16
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`I.
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`INTRODUCTION AND SUMMARY OF THE ARGUMENT
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`Seventy-five days after the deadline to amend pleadings in this case, Google belatedly filed
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`an Amended Answer that attempts to add a new inequitable conduct defense for the very first time.
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`ECF 118. Prior to this amendment, Google had never pleaded an inequitable conduct defense.
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`Google did not seek leave from the Court to file this new defense out of time. The Court should
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`strike Google’s untimely defense.
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`Alternatively, even assuming for the sake of argument that Google’s defense was timely,
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`Google’s pleading falls far short of the heightened pleading standard for inequitable conduct.
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`Indeed, The Court dismissed similar allegations brought by Dialpad in the previously pending
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`litigation (Case No. 6:21-cv-642-ADA); Google’s late defense echoes the same inequitable
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`conduct allegations brought by Dialpad. Google’s defense is substantively deficient and should
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`likewise be dismissed.
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`II.
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`BACKGROUND
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`A.
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`Procedural History
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`In its Original Complaint, Flyp accused Google of infringing five patents (U.S. Patent
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`Nos. 9,667,770; 10,051,105; 10,334,094; 11,012,554; and 11,218,585) based on functionality in
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`Google Voice. See, e.g., ECF No. 1 (Compl.) ¶¶ 29-95. More specifically, Flyp accused Google
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`Voice of incorporating Flyp’s patented technologies that allow for users to segregate
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`communications across multiple phone numbers (e.g., a primary phone number and secondary
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`phone number) on a single device, including solutions that provide for maintaining caller
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`identification integrity when calls originate from a secondary telephone number. Id. ¶¶ 11-15.
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`The Court entered an amended schedule, agreed to by all parties, which set a March 22,
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`2023 deadline to amend pleadings. ECF No. 102. Although the Court subsequently entered two
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`1
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 6 of 16
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`more amended schedules, those schedules were entered after this March 22, 2023 deadline and did
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`not change the now-lapsed deadline for amending pleadings. ECF No. 107; ECF No. 112.
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`Flyp timely filed a Second Amended Complaint on March 22, 2023. ECF No. 103.
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`Google’s response to the Second Amended Complaint was due on April 5, and it filed a motion to
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`partially dismiss the Second Amended Complaint on that date. ECF No. 108.
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`On June 5, 2023, Google filed an amended answer to Flyp’s Second Amended Complaint,
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`asserting a new defense based on purported inequitable conduct—seventy-five days after the
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`Court’s deadline to amend pleadings and more than sixty days after Google had filed its responsive
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`motion to dismiss. ECF No. 118. Google did not seek leave from the Court for the untimely
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`pleading.
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`B.
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`Google’s New Inequitable Conduct Allegations
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`The new purported inequitable conduct defense in Google’s untimely answer to Flyp’s
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`Second Amended Complaint accuses the prosecuting attorneys and the named inventors Peter
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`Rinfret, Ivan Zhidov, and Sunir Kochhar of failing to disclose Google Voice when prosecuting the
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`asserted patents. ECF No. 118 at ¶ 13. Google concedes that Flyp identified Google Voice to the
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`USPTO on November 9, 2021, when it withdrew the application that resulted in the ’585 Patent
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`from issue and submitted a new information disclosure statement listing Google Voice as prior art.
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`Id. ¶¶ 56, 61. Google, however, alleges that Flyp should have disclosed Google Voice “[d]uring
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`the prosecution of the ’770 Patent and its parent patent applications” around July 2013 or June
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`2014 (id. ¶¶ 39-40, 19) and “during the prosecution of the ’585 Patent and its parent patent
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`applications before November 9, 2021” (id. ¶ 60). Google also generally alludes to the prosecution
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`of other asserted patents in 2018 and 2019 without any specificity. E.g., id. ¶ 39.
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`Google alleges that the Flyp inventors had knowledge about Google Voice because they
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`purportedly downloaded and installed Google Voice “at various times between 2009 and 2017”
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`and had “conduct[ed] a detailed analysis” of Google Voice by July 2013. Id. ¶¶ 16-17, 19. Google
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`bases these allegations on (1) Flyp’s response to Google’s Interrogatory No. 1 (ECF No. 118-1),
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`(2) an August 2012 presentation by Mr. Rinfret that included information about Google Voice (the
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`“2012 Flyp Presentation”) (id. ¶¶ 20-38), (3) a competitive market data document from October
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`2014 that includes information about Google Voice (the “2014 Competitive Market Data”) (id. ¶¶
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`41-43), and (4) the Google Voice invalidity charts from the then-pending Dialpad case that Dialpad
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`served in November 2021 (the “2021 GV Claim Charts”) (id. ¶ 63).
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`Flyp’s served its response to Google’s Interrogatory No. 1 on December 15, 2022 (ECF
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`No. 118-1 at 33). Flyp produced the 2012 Flyp Presentation on April 25, 2022 (Sloan Declaration
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`Ex. A at ¶ 2) and the 2014 Competitive Market Data on December 15, 2022 (id. ¶ 3). Dialpad
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`served the 2021 GV Claim Charts in November 2021. And then Dialpad included them as an
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`exhibit to Dialpad’s own insufficient inequitable conduct pleading in February 2022, which was
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`publicly filed. (ECF No. 118-4 at 27 and ECF Header.) Google’s inequitable conduct allegations
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`are accordingly based on some information it had a full year before filing its untimely defense. But
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`in any case, the last documents, Flyp’s Interrogatory responses and the 2014 Competitive Market
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`Data presentation, were produced to Google in mid-December 2022—nearly four months before
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`the deadline to amend pleadings, and nearly seven months before its untimely answer to the Second
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`Amended Complaint.
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`Google’s inequitable conduct allegations do not identify any specific claim limitations for
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`which it contends the purportedly withheld material about Google Voice was relevant. For each of
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`the 2012 Flyp Presentation, the 2014 Competitive Market Data, and the 2021 GV Claim Charts,
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`Google only identifies the documents generically and does not address how any specific
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`information in the documents relates to specific claim limitations. Nor does Google allege with
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`particularity how the prosecuting attorneys’ or inventors’ respective purported personal knowledge
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`about using Google Voice qualifies as prior art or is material to any specific claim limitations.
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` Other than conclusory statements that Flyp acted intentionally (see, e.g., ECF No. 181
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`¶¶ 47, 49, 60, 62, 65), Google does not provide any factual allegations that (if true) would show
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`Flyp acted with a specific intent to deceive the USPTO. Instead, Google relies for this purpose on
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`general allegations that Flyp knew about Google Voice but failed to disclose it. See, e.g., id. ¶ 58.
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`III.
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`STATEMENT OF THE LAW
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`Absent leave from the Court, an untimely pleading “has ‘no legal effect.’” See Decapolis
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`Sys., LLC v Epic Sys. Corp., 2021 WL 5908403 at *2 (W.D. Tex. Dec. 14, 2021) (quoting U.S. ex
`
`rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 296 (5th Cir. 2003)) (Albright, J.). Courts
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`therefore “may properly strike” untimely pleadings. See id. (quoting Devabhaktuni v. C.P.S., 2020
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`WL 4745048, at *2 (N.D. Tex. July 16, 2020)).
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`Inequitable conduct “must be pleaded with particularity under Rule 9(b)” because it “is a
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`species of fraud.” Applied Biokinetics LLC v CVS Pharmacy, Inc., 2022 WL 1192467, *1 (W.D.
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`Tex. Apr. 21, 2022) (citing Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1326 (Fed.
`
`Cir. 2009) (Albright, J.)). To satisfy this standard, “a defendant must ‘identify the specific who,
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`what, when, where and how of the material misrepresentation or omission committed before the
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`PTO.’” Id. (quoting Exergen Corp., 575 F.3d at 1328). “Moreover, ‘a pleading of inequitable
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`conduct under Rule 9(b) must include sufficient allegations of underlying facts from which a court
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`may reasonably infer that a specific individual (1) knew of the withheld material information or of
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`the falsity of the material misrepresentation, and (2) withheld or misrepresented this information
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`with a specific intent to deceive the PTO.’” Id. (quoting Exergen Corp., 575 F.3d at 1328-29).
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 9 of 16
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`IV. ARGUMENT
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`For the reasons below, the Court should either strike Google’s answer to the Second
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`Amended Complaint as untimely or, alternatively, dismiss the new inequitable conduct defense
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`set forth in that pleading under Rules 9(b) and 12(b)(6).
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`A.
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`The Court should strike Google’s answer to Flyp’s Second Amended
`Complaint because it is untimely, and Google did not seek leave to file it.
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`The Court may properly strike untimely pleadings, including untimely responsive
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`pleadings. See Decapolis Sys., 2021 WL 5908403 at *2. Google’s answer to Flyp’s Second
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`Amended Complaint was untimely under both the Court’s schedule for this case and under the
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`Federal Rules of Civil Procedure. Google filed its answer to the Second Amended Complaint on
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`June 5, setting forth for the first time in its pleadings an affirmative defense based on inequitable
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`conduct. ECF No. 118. Given that Flyp filed the Second Amended Complaint on March 22,
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`Google’s responsive pleading was due on April 5. See Fed. R. Civ. P. 15. The Court’s schedule
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`for this case required Google to seek leave from the Court to file new pleadings after March 22.
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`See ECF No. 102. Google’s Second Amended Complaint, and its assertion of an inequitable
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`conduct defense, was untimely by months.
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`Google did not seek leave from the Court for its untimely filing. If it had, it would not have
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`been entitled to leave. “[P]roper reasons for denying leave to amend include ‘undue delay, bad
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`faith, dilatory motive, repeated failures to cure deficiencies, or undue prejudice to the opposing
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`party.’” Stephens v. John Bean Techs. Corp., 2018 U.S. Dist. LEXIS 222847, at *2-3 (W.D. Tex.
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`Dec. 12, 2018) (quoting Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir.
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`2004)) (Albright, J.). However, “[t]he touchstone for denial of leave to amend under Rule 15(a) is
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`prejudice.” See id. Here, Google’s delay was plainly undue. It had the materials it relies for its
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`inequitable conduct allegations—Flyp’s response to Google’s Interrogatory No. 1, the 2012 Flyp
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 10 of 16
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`Presentation, the 2014 Competitive Market Data, and Dialpad’s invalidity charts for Google
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`Voice—months before the deadline to amend its pleadings and assert new defenses. Sloan Decl.
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`at ¶¶ 1-3; ECF No. 118-1 at 33. There is no justifiable, good faith, and non-dilatory reason for
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`Google failing to present this defense timely. And the prejudice to Flyp from Google’s untimely
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`presentation is undue: the parties have exchanged and responded to several sets of discovery
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`requests and interrogatories, several depositions have already been taken, and the parties have
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`exchanged deposition topics under Rule 30(b)(6). Moreover, for the reasons described in Section
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`IV.B, supra, the amendment would be futile because it fails to meet the heightened pleading
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`standard under Rule 9. With 10 weeks left in discovery, the parties should be focusing their energy
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`and effort on timely and well-pleaded claims and defenses.
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`The Court should accordingly strike Google’s untimely answer.
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`B.
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`The Court should dismiss Google’s inequitable conduct defense because its
`underlying allegations do not meet the pleading standard under Exergen.
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`If the Court does not strike Google’s answer to the Second Amended Complaint, it should
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`nonetheless dismiss Google’s affirmative defense of inequitable conduct. The heightened pleading
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`standard set forth in Exergen obliged Google to allege the “who, what, when, where, and how” of
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`the purported material omission to the USPTO. See Applied Biokinetics LLC, 2022 WL 1192467
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`at *1 (quoting Exergen Corp., 575 F.3d at 1326). And Google’s allegations must include sufficient
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`facts from which the Court could reasonably infer that the relevant individuals knew of the
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`withheld information and withheld the information with a specific intent to deceive the USPTO.
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`See id. (citing Exergen Corp., 575 F.3d at 1328-29).
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`1.
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`Google failed to address the “how,” “what,” and “where” elements.
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`In alleging at least “how,” “what” and “where,” Google failed its burden. See id. at *2. As
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`this Court recognized in the Dialpad case based on similarly deficient allegations as to similar
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 11 of 16
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`references, these elements “require identification of ‘which claims, and which limitations in those
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`claims, the withheld references are relevant to, and where in those references the material
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`information is found.’” Flypsi Inc. v Dialpad, Inc., 2022 WL 3593132, *6 (W.D. Tex. Aug. 22,
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`2022) (Albright, J.) (“Dialpad”). In Applied Biokinetics, for instance, the Court found that general
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`allegations about withholding the identity of a prior art product were not sufficient to allege “what”
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`was withheld—i.e., whether it was a physical sample or some specific documents. Applied
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`Biokinetics LLC, 2022 WL 1192467 *1. Likewise, implications alone that the inventor had “mental
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`knowledge” about the prior art product was not sufficient to allege “what” was withheld because
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`the pleading did not explain how mental knowledge could serve as the basis for a rejection. See id.
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`at *3 (“Unlike documents or physical prior art encompassed by 35 U.S.C. § 102, it remains unclear
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`how CVS contends an applicant's own mental knowledge serves as prior art.”).
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`Like Dialpad, Google has failed to identify the particular claims and limitations of the
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`Asserted Patents that would not have been allowed. Instead, for most patents, Google’s allegations
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`focus on whether Flyp should have generally identified the Google Voice product to the USPTO.
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`To the extent Flyp discusses specific documents—the 2012 Flyp Presentation and the 2013
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`Competitive Market Data—it does so only to suggest that the prosecuting attorneys and named
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`inventors knew about Google Voice (see ECF No. 181 ¶¶ 20-38, 41-43), and not that any particular
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`portions of those documents would potentially serve as the basis for rejecting the pending
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`applications. And as in Applied Biokinetics, Google’s allegations do not explain how the alleged
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`mental knowledge of the prosecuting attorneys or named inventors about Google Voice could
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`serve as a basis for rejection.
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`For the ’585 Patent, Google also alleges that Flyp should have submitted Dialpad’s 2021
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`GV Claim Charts to the USPTO earlier than November 2021. This, too, is deficient. First, as
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 12 of 16
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`Google concedes, Flyp did submit various references related to Google Voice to the USPTO with
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`an Information Disclosure Sheet before the ’585 Patent was issued (ECF No. 118 ¶ 56), and
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`Google has not alleged plausibly how that material would have resulted in a rejection if it had been
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`submitted earlier. Indeed, as this Court recognized in Dialpad, where the prior art itself is
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`submitted, “the Court is apprehensive to find but-for materiality [due to the failure to submit claim
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`charts] as the USPTO granted the ’585 Patent with the benefit of the disclosed underlying prior
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`art.” Dialpad , 2022 WL 3593132 at *9. This is because it is unlikely that any information Google
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`now relies on from Dialpad’s claim charts “is not cumulative of the information undisputedly
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`disclosed to the USPTO.” Id. Like Dialpad before, Google “must identify, with specificity,
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`particular portions of [the] Invalidity Claim Charts that, had they been disclosed, would have
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`precluded the USPTO from granting the ’585 Patent. Simply pointing to the prior art has already
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`proven insufficient. More must be done.” And Google has not done so here.1
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` Moreover, as the Court explained in the Dialpad case, simply pointing to invalidity charts
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`alone is insufficient because to satisfy the “where” requirement, Google must “identify the
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`particular claims and limitations [in the asserted patent] that would not have been allowed” if Flyp
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`had disclosed the 2021 GV Claim Charts. Dialpad, 2022 WL 3593132, *8. Here, Google sidesteps
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`1 Moreover, Flyp again argues that it would be legal error for the Court to impose on Flyp a disclosure burden regarding
`invalidity claim charts that that the Patent Office itself has rejected. Over a decade ago, the Patent Office proposed
`regulations requiring applicants to “explain how each independent claim is patentable over the references” in certain
`situations. Tafas v. Doll, 559 F.3d 1345, 1350 (Fed. Cir. 2009). Those proposed rules, however, were enjoined by
`the court as improper. Id. at 1350–51. And thereafter, the proposed rules were explicitly withdrawn by the Patent
`Office. Tafas v. Kappos, 586 F.3d 1369, 1371 (Fed. Cir. 2009). Now, Google’s inequitable conduct allegations
`attempt to reimpose this previously enjoined and withdrawn requirement (to disclose attorney argument mapping a
`prior art reference to a claim). Google cannot by fiat impose a disclosure burden that both the Patent Office and the
`Federal Circuit have rejected. The Court should not permit such an inequitable conduct claim and should instead rule
`consistently with the Patent Office’s actual regulations, which only specifically require disclosure of prior art but make
`no mention of claim charts. See MPEP § 2001.06(c) (“In particular, material information that is raised in trial
`proceedings that is relevant to related applications undergoing examination should be submitted on an Information
`Disclosure Statement for the examiner’s consideration. Examples of such material information include evidence of
`possible prior public use or sales, questions of inventorship, prior art, allegations of ‘fraud,’ ‘inequitable conduct,’ and
`‘violation of duty of disclosure.’” (emphasis added).
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`8
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 13 of 16
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`its obligations to plead “where” and “how” by improperly pointing the Court to the 2021 GV Claim
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`Charts as a whole. But see id. (“And if Dialpad believes that referring the Court to its 125-page
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`Invalidity Claim Charts is sufficiently specific, it is sorely mistaken.”), *10 (“If the parties alleging
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`inequitable conduct fail to cite specific claims in specific patents ‘that would be deemed
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`unpatentable in light of undisclosed information,’ they have failed to allege materiality.” (quoting
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`Front Row Techs., LLC v. NBA Media Ventures, LLC, 163 F. Supp. 3d 938, 986 (D.N.M. 2016))).
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`Given that Google has failed to identify with particularly “what” was withheld from the
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`USPTO, “where” the material information is purportedly found in what was withheld, and “how”
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`the material information withheld would have led the USPTO to reject specific claims, Google has
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`not met the pleading standard for inequitable conduct, and the Court should dismiss its defense.
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`2.
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`Google failed to allege properly a specific intent to deceive the USPTO.
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`Google has also failed to plead sufficiently a specific intent by Flyp to deceive the USPTO.
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`On this point, Google’s allegations fall into two categories. The first category comprises rote and
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`conclusory statements that Flyp omitted information with a specific intent to deceive. See, e.g.,
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`ECF No. 118 ¶¶ 47 (“On information and belief, the decision not to disclose Google Voice to the
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`PTO was made with the intent to deceive.”), 49, 60, 62, 65. The Court should disregard these
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`allegations because “mere conclusory statements . . . do not suffice.” See Dialpad, 2022 WL
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`3593132, *2. The second category has only one example: an allegation that Flyp knew about
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`Google Voice from invalidity contentions in the Dialpad case, but “intentionally waited” before
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`disclosing Google Voice to the USPTO. See ECF No. 118 ¶ 58. Yet as the Court explained in the
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`Dialpad case, “this is exactly what the Federal Circuit cautioned against: ‘Proving that the
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`applicant knew of a reference, should have known of its materiality, and decided not to submit it
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`to the PTO does not prove specific intent to deceive.’” Id. at *11 (quoting Therasense, Inc. v.
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`Becton, Dickinson & Co., 649 F.3d 1276, 1292, 1295 (Fed. Cir. 2011)). The Court should dismiss
`9
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 14 of 16
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`Google’s similarly deficient allegations for the same reasons that the Court dismissed Dialpad’s
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`inequitable conduct allegations.
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`Google has failed to allege a specific intent to deceive the USPTO plausibly, the Court
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`should dismiss Google’s inequitable conduct defense.
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`V.
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`CONCLUSION
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`For all these reasons, Flyp respectfully requests the Court either strike Google’s answer to
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`the Second Amended Complaint as untimely or dismiss the inequitable conduct defense set forth
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`therein under Rule 12(b)(6).
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`10
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 15 of 16
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`DATED: June 20, 2022
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`
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`Respectfully submitted,
`
`/s/ Michael A. Bittner
`Thomas M. Melsheimer
`Texas Bar No. 13922550
`tmelsheimer@winston.com
`M. Brett Johnson
`Texas Bar No. 00790975
`mbjohnson@winston.com
`Michael A. Bittner
`Texas Bar No. 24064905
`mbittner@winston.com
`Steven R. Laxton
`Texas Bar No. 24120639
`slaxton@winston.com
`WINSTON & STRAWN LLP
`2121 North Pearl Street, Suite 900
`Dallas, TX 75201
`Telephone: (214) 453-6500
`
`Matthew R. McCullough
`California Bar No. 301330
`mrmccullough@winston.com
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`Telephone: (650) 858-6500
`
`William M. Logan
`Texas Bar No. 24106214
`wlogan@winston.com
`WINSTON & STRAWN LLP
`800 Capitol Street, Suite 2400
`Houston, TX 77002
`Telephone: (713) 651-2766
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`ATTORNEYS FOR PLAINTIFF
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`Case 6:22-cv-00031-ADA Document 120 Filed 06/20/23 Page 16 of 16
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing document was filed electronically in
`compliance with Local Rule CV-5. Therefore, this document was served on all counsel who are
`deemed to have consented to electronic service. Administrative Policies and Procedures for
`Electronic Filing in Civil and Criminal Cases, Western District of Texas, Section 14.
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`/s/ Michael A. Bittner
`Michael A. Bittner
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`CERTIFICATE OF CONFERENCE
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`Pursuant to Local Rule CV-7(g), counsel for the parties conferred in a good-faith effort on
`June 14 and 20, 2023 to resolve the matter presented herein. No agreement could be reach and
`Google opposes this Motion.
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`/s/ Michael A. Bittner
`Michael A. Bittner
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