Case 6:22-cv-00031-ADA Document 133 Filed 09/13/23 Page 1 of 7
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`FLYPSI, INC., (D/B/A FLYP),
`
`Plaintiff,
`
`v.
`
`GOOGLE LLC,
`
`Defendant.
`
`
`
`CIVIL ACTION NO. 6:22-cv-00031-ADA
`
`JURY TRIAL DEMANDED
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`GOOGLE LLC’S REPLY IN SUPPORT OF ITS OPPOSED MOTION TO STAY
`PENDING INTER PARTES REVIEW
`
`
`
`

`

`Case 6:22-cv-00031-ADA Document 133 Filed 09/13/23 Page 2 of 7
`
`
`I.
`
`INTRODUCTION
`
`The balance of the factors support a stay. The IPRs are strong and have the potential to
`
`resolve all issues in this case. Plaintiff’s opposition does not meaningfully dispute that the most
`
`important factor—simplification of the issues—weighs firmly in favor of a stay. Plaintiff’s
`
`claims of prejudice due to a stay are directly contradicted by (1) Plaintiff’s delay in filing this
`
`suit, (2) Plaintiff’s decision not to seek a preliminary injunction, and (3) Plaintiff’s history of
`
`licensing the asserted patents to alleged direct competitors. Although the case is not at an early
`
`stage, the requested post-fact discovery stay is warranted given the significant case milestones
`
`that lie ahead and the significant case simplification and narrowing that will result.1
`
`II.
`
`ARGUMENT
`A.
`
`The stay will result in simplifying the case and may dispose of the case.
`
`Plaintiff argues that institution of the IPRs alone does not merit stay of the case. Plaintiff
`
`ignores, however, that Google is not relying on mere institution. Google is relying on the strength
`
`of the IPRs and, in particular, the fact that “the PTAB provided an element-by-element analysis,
`
`resolving essentially all disputes in Google’s favor.” Dkt. 127 (“Mot.”) at 5–6. Plaintiff does not
`
`dispute this. In fact, Plaintiff makes zero attempt to argue against the strength of the IPR petitions.
`
`Plaintiff is also incorrect that “[i]n order to simplify the issues in this case, all 20 currently
`
`asserted claims must fall.” Dkt. 129 (“Opp”) at 7. Indeed, as Plaintiff itself pointed out in its
`
`opposition, three outcomes are relevant to simplification of the issues: “all the asserted claims fall;
`
`
`1 Plaintiff’s response was due on August 25, 2023. See Local Rule CV-7(d)(2) (“A response to a
`discovery or case management motion shall be filed not later than 7 days after the filing of the
`motion.”). Plaintiff failed to file its response by the required deadline. Thus, the Court may
`decide the motion as unopposed. See id. (“If there is no response filed within the time period
`prescribed by this rule, the court may grant the motion as unopposed.”). In an abundance of
`caution and in the event that the Court grants Flyp an extension on its response—although the
`extension was requested two days after the response was due—Google files this reply.
`
`-1-
`
`

`

`Case 6:22-cv-00031-ADA Document 133 Filed 09/13/23 Page 3 of 7
`
`
`all the asserted claims survive; or some of the asserted claims survive.” Opp. at 7 (citations
`
`omitted). “[E]ven assuming that all the patents-in-suit survive the reexamination intact, the
`
`USPTO’s insight and expertise regarding the validity of the patents would be of invaluable
`
`assistance to this court.” E-Watch, Inc. v. Lorex Can., Inc., No. H-12-3314, 2013 WL 5425298, at
`
`*2 (S.D. Tex. Sept. 26, 2013). Moreover, as to any surviving claims, estoppel under 35 U.S.C.
`
`§ 315(e)(2) will apply. Thus, simplification of the issues is a certainty at this point.
`
`Critically, Plaintiff’s opposition ignores that the IPRs have the real potential to resolve
`
`this case in its entirety. Each of the asserted claims in this case is subject to invalidation in the
`
`IPRs. That, combined with the undisputed strength of the IPRs, supports that this most important
`
`factor weighs heavily in favor of a stay.
`
`B.
`
`The stay will not unduly prejudice Plaintiff.
`
`Plaintiff’s opposition argues that this factor weighs heavily against a stay because of
`
`Plaintiff’s interest in timely enforcement of its patent rights. Opp. at 3–4. But “because that interest
`
`is present in every case where a patent owner resists a stay, that alone is insufficient to defeat a
`
`motion to stay.” TC Tech. LLC v. T-Mobile USA, Inc., No. 6:20-cv-00899-ADA, 2021 WL
`
`8083373, at *2 (W.D. Tex. Dec. 7, 2021). Moreover, Plaintiff’s failure to file this case in a timely
`
`manner, failure to file a preliminary injunction, and
`
`
`
` belie any claim that Plaintiff must urgently
`
`resolve this litigation.
`
`Plaintiff alleged in its complaint that Google made changes to the accused product in 2017
`
`that incorporated the allegedly infringing features. Dkt. 1 ¶ 21. Yet, Plaintiff waited five years
`
`after the allegedly infringing changes (until 2022) to file this lawsuit. See Pederson v. Oracle
`
`Corp., No. 6:22-cv-00410-ADA, Dkt. 42, slip op. at 4 (W.D. Tex. Aug. 24, 2023) (noting that
`
`Plaintiff’s delay in filing the lawsuit “significantly diminishe[d] the undue prejudice a stay would
`
`-2-
`
`

`

`Case 6:22-cv-00031-ADA Document 133 Filed 09/13/23 Page 4 of 7
`
`
`cause.”). Moreover, Plaintiff chose not to seek a preliminary injunction. Although Plaintiff
`
`highlights that “there could be a variety of reasons that a patentee does not move for a preliminary
`
`injunction” (Opp. at 4 (citation omitted)), the Federal Circuit has found that “the fact that it was
`
`not worth the expense to ask for [a preliminary injunction] contradicts [plaintiff’s] assertion that it
`
`needs injunctive relief as soon as possible.” VirtualAgility Inc. v. Salesforce.com, Inc., 759 F.3d
`
`1307, 1319 (Fed. Cir. 2014).
`
`Plaintiff claims that this case is distinguishable because Plaintiff competes with Google.
`
`Yet, Plaintiff makes no claim that it will suffer harm in the form of lost market share or consumer
`
`goodwill stemming from any stay. Indeed, if such harm existed and the parties were direct
`
`competitors in any significant way, Plaintiff could have and should have moved for a preliminary
`
`injunction. Instead, Flyp delayed for years in filing the case, elected not to seek a preliminary
`
`injunction, and sought multiple extensions of the case schedule, ultimately moving the trial date
`
`by over 4 months—laying bare any suggestion that Plaintiff needs urgent resolution of its
`
`infringement claim. Dkts. 40 and 112.
`
`Tellingly, six months before filing suit against Google, Flyp filed a separate suit against
`
`DialPad in this Court on the same patents now asserted against Google. See Flypsi, Inc. v. Dialpad,
`
`Inc., No. 6:21-cv-00642-ADA, Dkt. 1 (W.D. Tex. June 21, 2021); id., Dkt. 30 (W.D. Tex. Jan. 4,
`
`2022). Despite alleging DialPad as a direct competitor and pleading a request for permanent
`
`injunction in that case, Plaintiff similarly declined to seek a preliminary injunction. And, critically,
`
`Cotiguala, Ex. 1 at 2. Thus, Plaintiff’s claim of competitive harm during any stay is belied not only
`
`by its long delay in filing the present case––including its decision to first litigate against DialPad–
`
`–but also
`
`.
`
`. Declaration of John
`
`-3-
`
`

`

`Case 6:22-cv-00031-ADA Document 133 Filed 09/13/23 Page 5 of 7
`
`
`Plaintiff finally claims the motion should be denied because Google requests that the stay
`
`extend through resolution of any appeals. Opp. at 5. This argument is unavailing. Courts have
`
`granted a stay even where the plaintiff complains there is undue prejudice “because of the likely
`
`appeal of the PTAB’s decision[.]” See VirtualAgility, 759 F.3d at 1317–18. Extending the stay
`
`though any IPR appeals would assure simplification of issues and, given the timing factors
`
`described above, would not unduly prejudice Plaintiff in any way.2
`
`C. While the case is not in early stages, a stay would save the parties and Court
`significant resources.
`
`Google does not dispute that this case is not in its earliest stages, as fact discovery is now
`
`complete. But this fact actually supports, rather than undercuts, the stay request. Because fact
`
`discovery is complete, there is no risk of evidence or memory becoming stale or lost. Yet, this
`
`case is six months from trial, and expert discovery is about to commence, followed by
`
`dispositive and Daubert motions, pre-trial practice, and then trial. Staying the case at this time
`
`will prevent the parties, experts, and Court from spinning their wheels dealing with patent claims
`
`and case issues that are likely to become moot (or materially changed) by the outcomes of the
`
`instituted IPR proceedings. Courts have stayed cases pending IPR even closer to trial. See SSL
`
`Servs., LLC v. Cisco Sys., Inc., No. 2:15-CV-433-JRG-RSP, 2016 WL 3523871, at *3 (E.D. Tex.
`
`June 28, 2016); see also CyWee Grp. Ltd. v. Samsung Elecs. Co., No. 2:17-cv-00140-WCB,
`
`2019 WL 11023976, at *6–7 (E.D. Tex. Feb. 14, 2019). Though Plaintiff attempts to divert
`
`attention from the benefits of a post-fact discovery stay by suggesting that Google delayed in
`
`filing the IPRs, it is undeniable that Google prepared and filed the instituted IPR petitions within
`
`
`2 A stay pending resolution of any appeals is the most efficient way to proceed because the result
`of the appeals will impact the scope of this case. In the alternative to a stay pending resolution of
`all appeals, however, Google proposes an initial stay until the last final written decision in the
`instituted IPR proceedings. Then, at that time, the parties can revisit any further stay.
`
`-4-
`
`

`

`Case 6:22-cv-00031-ADA Document 133 Filed 09/13/23 Page 6 of 7
`
`
`the statutory deadline. Ultimately, Plaintiff offers no substantive reason why the Court should
`
`blindly press ahead with this case, given that the entire case could be rendered moot by the
`
`pending IPR proceedings.
`
`III. CONCLUSION
`
`For the foregoing reasons, Google respectfully requests that the case be stayed at the
`
`conclusion of fact discovery and until the IPRs and any resulting appeals are finally resolved. A
`
`stay pending resolution of any appeals is the most efficient way to proceed, however, Google
`
`offers in the alternative an initial stay until issuance of the last final written decision and
`
`reevaluation of an extended stay at that time.
`
`
`
`DATED: September 6, 2023
`
`
`
`
`Respectfully Submitted,
`
`/s/ Robert W. Unikel
`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
`
`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 R. Laurenzi (Pro Hac Vice)
`robertlaurenzi@paulhastings.com
`
`-5-
`
`

`

`Case 6:22-cv-00031-ADA Document 133 Filed 09/13/23 Page 7 of 7
`
`
`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
`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 6th day of September, 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/ Robert W. Unikel
`Robert W. Unikel
`
`
`
`-6-
`
`