Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 1 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE WESTERN DISTRICT OF TEXAS
`
`WACODIVISION
`
`FLYPSI, INC. (D/B/A FLYP),
`
`Plaintiff,
`
`vs.
`
`GOOGLE LLC,
`
`Defendant.
`
`Civil Action No. 6:22-cv-31-ADA
`
`JURY TRIAL DEMANDED
`
`es
`
`
`
`BURNER, OBVIOUSNESS AND GOOGLE’S35 U.S.C.§112 ARGUMENTS
`
`FLYP’S MOTION FOR PARTIAL SUMMARY JUDGMENT CONCERNING
`
`

`

`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 2 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 2 of 20
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`TABLE OF CONTENTS
`
`T.
`
`ARGUMENT 0... eecccecccccceccceccesceescesceesceseeseeseesaeessesecaecsaeesecaecsseeseeeaeseaeeseeeaeesaeeeeeaeeeseeseeeaes 1
`
`A._The Asserted Patents are Not Anticipated nor Rendered Obvious by Burnet................. 1
`
`1.
`
`2.
`
`3.
`
`Burmer’s Operation ..............cccecceecceecceesceeseeeseceseeesseceseeesaecesceeeeeeseeeaeceaeeeseeeeseeesseeeeeees 2
`
`Outbound Patents ............ cee cee ceecceceeeccesseceseecsaeeesceesseceseeceseceseeseseeeseeceaeeeseeeeseeeseeeeseees 2
`
`Inbound Patents 22.0.2... ....ceecccecceecceecceesccesceeeeceseecsaecesceesaeceseceseeceseeeeeceaecesseeeeeeseeeeseees 5
`
`B.
`
`Google Has NotIdentified Any Motivation to Combine.....................:cccccceeeeeeseeeeeeeeeeees 7
`
`Google Has Not Shown that a POSITA Would be Motivated to Modify Any Single
`C.
`Reference to Render the Asserted Patents ODVIOUS...................:ccccesceeceeseeeseeeeceseeeseeeeeseenseeneeeaes 9
`
`There is No Dispute of Material Fact that the Asserted Patents Possess Adequate
`D.
`Written Description and Enablement.................0...cccecceeccesceeeceeeseeeseeceseeeseeceseeeseeceseeeseeeeseeesees 10
`
`TT. CONCLUSION.00..eececccccececccescceseesceeseeseeeeeseesseseesseseeesecaeesseeseeeseeeseseeaeeseeeeeeseenseeseeeseess 14
`
`

`

`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 3 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 3 of 20
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`
`ALZA Corp. v. Andrx Pharm., LLC,
`603 F.3d 935 (Fed. Cir. 2010)... cccccccecccccesccescceseeeseeesscesecessecesecesseceseceseeceseeesseenseeesseeess 11
`
`Andersonv. Liberty Lobby, Inc.,
`ATT U.S. 242 (1986)... ccccccccccccccecccceseceseeesseeesecesseesecessecsecessecesecessecesseesseeeseeesaeeeseeeseceeseeesaes 1
`
`Ariad Pharms., Inc. v. Eli Lilly & Co.,
`598 F.3d 1336 (Fed. Cir. 2010). 2.0... ..ccccecccccccesccescceeseeeseeeeseeeseeesecesseesseceseeeesecesseesseeeseeeees 11
`
`Celotex Corp. v. Catrett,
`ATT U.S. 317 (1986)... ccccccecccccecceseccsseceseeesseceseeesseeesecessecesecessecseeesseceaeeeseecesecesseeeseeeseeeeseeesees 1
`
`Eli Lilly and Co. v. Zenith Goldline Pharmaceuticals, Inc.,
`471 F.3d 1369 (Fed. Cir. 2006).........00ccccccccccccccesceeseeeesecesecessecesecesseceseeeseeceseeeeeceseeesecesseeesees 7
`
`Forest Laboratories, LLC v. SigmapharmLaboratories, LLC,
`918 F.3d 928 (Fed. Cir. 2019).......0cccccccccecccccescceeseceseeeeseceseecacceseeesseeeseeseseeeseeceseeesesenseeesees 7
`
`SIBIA Neurosciences, Inc. v. Cadus Pharm. Corp.,
`225 F.3d 1349 (Fed. Cir. 2000)... ...0cccccccccccecccescceesseceesseceessceesssecesseceesseecesseecesseseesseeees 9,10
`
`Smiths Indus. Med. Sys., Inc. v. Vital Signs, Inc.,
`183 F.3d 1347 (Fed. Cir. 1999)... occ ccccccccccccccsceesccesseeesseesscesecessecesecesseeesecesseeesesesseeeeeenaee 7
`
`Tec Air, Inc. v. Denso Mfg. MichiganInc.,
`192 F.3d 1353, 52 U.S.P.Q.2d 1294 (Fed. Cir. 1999) .......cccccccecceccceseeseceseeeeeeseeeseenseeeeesees 8
`
`VLSI Tech. LLC v. Intel Corp.,
`2021 WL 2773013 (W.D. Tex. Apr. 12, 2021).......0ccccccceccecccecceecceseceseeseteseeeeeseseaeenseeseeesees 1
`
`STATUTES
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`35 U.S.C. § VQ ooeccccccccccccccescescceseeseeesecseesscsecseeesecsecsaescsecssecsasesecsaeessesseceseceatesseeseesseeeeeaeesaseesaes 1
`
`OTHER AUTHORITIES
`
`Fed. R. Civ. P. 56(a) ......cecccccccccccceccceescceseeeseeceseecseecsecesaeceseecsseceseecsaeeeseeceaeeeseeceseeeeeeeseesseeesseeeseeenes 1
`
`i
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`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 4 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 4 of 20
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`TABLE OF EXHIBITS!
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`No.
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`Brief Description
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`AdHoc_000104
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`AdHoc_000054
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`Expert Report of Dr. Oded Gottesman on Invalidity (dated September 12, 2023)
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` 12
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`1
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`2
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`3
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`4
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`5
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`6
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`7
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`8
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`9
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`10
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`11
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`AdHoc000097
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`AdHoc_000114
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`AdHoc_000106
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`U.S. Patent No. 9,332,128 (“Backhaus”)
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`AdHoc_000018
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`GOOG-FLYP-PA-00004636
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`Deposition Transcript ofFo (dated August 15, 2023)
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`Deposition Transcript of Oded Gottesman, Day 2 (dated October 31, 2023)
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`Claim Construction Hearing Transcript (dated November 22, 2022)
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`' The undersigned herebystates that true and correctcopies of the exhibits noted here are attached
`to this Motion.
`
`ill
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`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 5 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 5 of 20
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`One of the two primary references advanced by Google—the Bumer phone system
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`(“Burmer”’)—fails to invalidate the Asserted Patents under any standard of proof, muchless a clear
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`and convincing one. Flyp is thus entitled to summary judgementas to validity over the Burner
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`phonesystem. In addition, for all proposed obviousness combinations, Google has failed to show
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`sufficient motivation to combine any reference with any other reference. And for single reference
`
`obviousness, Google has not shown sufficient motivation for a person of ordinary skill in the art
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`(“POSITA”) to modify any single reference. Finally, Google’s arguments for invalidity under 35
`
`U.S.C. § 112 either attempt to advance arguments that this Court rejected during claim construction
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`or its expert disavowed during his deposition.
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`As the Court is familiar with general summary judgment standards and related legal
`
`precedents, Flyp will refrain from reciting them here. See VLSI Tech. LLC v. Intel Corp., Case
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`No. 6:21-CV-299-ADA, 2021 WL 2773013 at *2 (W.D. Tex. Apr. 12, 2021) (citing, interalia,
`
`Fed. R. Civ. Pro. 56(a), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and Celotex
`
`Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Rather, Flyp will focus on the legal precedents
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`specific to this Motion.
`
`L
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`ARGUMENT
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`A.
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`The Asserted Patents are Not Anticipated nor Rendered Obvious by Burner
`
`The Asserted Patents are neither anticipated nor rendered obvious by the Burner system.
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`Google’s expert, Dr. Gottesman, bases his conclusion that Burner invalidates the asserted claims
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`on a severe misunderstanding of Burner.
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`In the ’094, ’554, and ’585 Patents (the “Outbound
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`Patents”), Google can poit to no analog in Burnerto the claim elements “bridge or access
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`telephone number.” Additionally, nowhere does Google produce any evidence—in Dr.
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`Gottesman’s report, in his testimony, or otherwise—that Burnerpracticed a server associated with
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`a switch that (1) stores an association of primary and secondary number, (2) stores an association
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`1
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`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 6 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 6 of 20
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`of a bridge or access number with a secondary number, or (3) stores an association ofa pair primary
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`numberand bridge number with a pair of secondary number and contact number.
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`Similarly, the °770 and °105 Patents (the “Inbound Patents”) require that the pre-call
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`information be transmitted over the data channel to the handset, but the BurnerPo
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`1.
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`Burner’s Operation
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`Ad Hoc Labsreleased the Burnerapplication on August 8, 2012. Ex. 1, AdHoc000104.
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`In its initial press release, the company described the application as one that “issues disposable
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`phone numbersat the touch of a button.” Jd. Ad Hoc Labs’ CEO, Greg Cohn, explained that the
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`application was targeted to those who value their privacy. Jd. The Burnerapplication allowed
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`users to provision temporary numbers that they could use for phone calls and text messages and
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`then “burn” when they were ready to deactivate the number. Jd. These temporary numbers are
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`referred to as “Burner Numbers.” See id. According to the press release, for outgoing calls, the
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`user’s Burner Number would showasthe caller ID whena userplaced the call. See id.; see also
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`ee
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`2.
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`Outbound Patents
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`Google fundamentally misunderstands Burner,
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`the patent claims, or both, when it
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`incorrectly applies the term “proxy calling”in relation to the OutboundPatents.
`
`In Dr. Gottesman’s opening report, he opines that Ad Hochl
`RE©. 3, oresRep. at $113(iting Bx. 4
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`AdHoc_000097at 98). However, this cannot be the case, and the same evidencethat he cites for
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`this proposition makes that clear. The email Dr. Gottesman cites describes a conference-calling
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`2
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`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 7 of 20
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`Ex. 4 at 98.
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`In this conference-calling approach, a userwould
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`The Bummer conference calling solution is distinct from the invention claimed in the
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`Outbound Patents. The ’094 Patentis illustrative. The ’094 Patent recites four distinct telephone
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`numbers: primary telephone numbers (e.g., the carrier-assigned handset number); secondary
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`telephone numbers(e.g., the Google Voice number, or analogously, the “Burner” number); bridge
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`or access telephone numbers (e.g., the proxy number or shadow numberin Google Voice); and
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`contact telephone numbers(i.e., the intended destination for the outgoing call). See ’094 Patent at
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`claim 1; see also ’554 Patent at claim 1 (reciting the same elements).
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`These numbers perform specific and distinct roles in the claimed invention. For instance,
`
`in the asserted independent claims from both Outbound Patents, the primary and secondary
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`numbers must be associated with the handset, while it is the bridge or access telephone number
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`(i.e., the proxy number) that must receive the outgoing call from the mobile device. See ’094
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`Patent at claim 1 (“receiving, at a switch associated with the server, an outgoing call from the
`
`3
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`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 8 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 8 of 20
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`handset to the bridge or access telephone number via a second channel”); see also °554 Patent at
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`claim | (“receiving, at the switch associated with the server, an outgoing call from the mobile
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`device to the access telephone number via a second channel”).
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`In his deposition, Dr. Gottesman identifiedTe
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`I 1. otesion iceniica
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`ee). However, he was unable to point to any other
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`component of Burner that would serve as the bridge or access telephone numberother than the
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`Burner numberagain. See id. at 314:25-318:25. When pressed, he stated thai
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`Dr. Gottesman could not point to an example of bridge telephone number from Bummerfor
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`the simple fact that the Burner conference calling solution has no analog to the bridge or access
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`ae). This mostclosely aligns to the secondary telephone numberin the claims. See,
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`e.g., 094 claim 1 (“identify a telephone numberfrom whichthe outgoingcall is being madeas the
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`secondary telephone number”). Accordingly, in the Duneit
`
`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 9 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 9 of 20
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`ee
`
`ee
`es
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`Separately and independently, Google has produced no evidence regarding the backend
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`structure of Bumer. Google has offered no evidence regarding a “switch” in Burner. Also absent
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`is any evidence regarding a server associated with such a switch that (1) stores an association of
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`primary and secondary number, (2) stores an association of a bridge or access number with a
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`secondary number, or (3) stores an association of a pair primary numberand bridge numberwith
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`a pair of secondary numberand contact number.
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`Therefore, there is no genuine dispute of material fact as to whether Burner discloses a
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`bridge or access telephone number. Accordingly, on either of these bases, Flyp is entitled to
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`summary judgmentof validity of the Outbound patents over Burner.
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`3.
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`InboundPatents
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`Further, Burner’sPo does not anticipate the asserted claims in the
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`Inbound Patents because it omits the recited pre-call information and accordingly routes the call
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`in a distinct way. The ’770 Patentis illustrative. Independent claim 1 from the ’770 Patent requires
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`“transmitting pre-call information to the handset overthe at least one data channel,” with the pre-
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`call information including the bridge telephone numberand the handset-associated telephone
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`number, such that the handset is “capable of displaying the handset-associated telephone number
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`to a user and, based on user input, accepting the incoming call by connecting with the switch over
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`the at least one voice channel using the bridge telephone number.”
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`Whereas the claims require that the pre-call information transmitted over the data channel
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`includesa bridge telephone numberthat the handset can use to connect with the switch, the Burner
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`5
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`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 10 of 20
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`ee. Thus, while the claims require sending a bridge
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`telephone numberovera data channel that makes the handset capable of connecting with the server
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`Exhibit 5 (AdHoc_000114) is an April 2013 email fromP| confirming that a
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`6 2:01s:
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`a T
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`his further confirms that Burner was not using the inventions described in the InboundPatents.
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`8 6 (2500000106) is
`November2015 email fomi. Onthis chain is another November2015 email from
`contr
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`
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`Nowhere has Google produced any evidence to the contrary on this point. Consequently,
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`Flyp is entitled to summary judgment onthe validity of the Inbound Patents over Burner.
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`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 11 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 11 of 20
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`B.
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`Google Has Not Identified Any Motivation to Combine
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`Google has only produced the most conclusory evidence that any motivation to combine
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`existed. The only evidence Google could muster is Dr. Gottesman’s opinionin his report that it is
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`the “natural evolution of systems is to integrate more and more networks, in order to offer more
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`versatile features and seamless overall internetwork solutions, especially when there are already
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`pre-existing standards and competitive markets. Such a natural progression provides a POSITA
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`with further motivation to combine the prior art GV and the systems disclosed in Backhaus and
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`Saksena. Therefore POSITA [sic] would be motivated and would find it trivial and obvious to
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`combine them.” Gottesman Rep. at §§ 103-04. This contravenes the law for two reasons and
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`ignores the facts for two other reasons.
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`First, this is not the proper legal inquiry. “An invention is not obvious simply becauseall
`
`of the claimed limitations were known in the priorart at the tume of the invention. Instead, we ask
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`‘whetherthere is a reason, suggestion, or motivation in the priorart that would lead one of ordinary
`
`skill in the art to combine the references, and that would also suggest a reasonable likelihood of
`
`success.’” Forest Laby’s, LLC v. Sigmapharm Laby’s, LLC, 918 F.3d 928, 934 (Fed. Cir. 2019)
`
`(citing and quoting Smiths Indus. Med. Sys., Inc. v. Vital Signs, Inc., 183 F.3d 1347, 1356 (Fed.
`
`Cir. 1999)). And the inquiry also requires an accused infringer to show why a POSITA would
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`select specific references and combine those together. See Eli Lilly and Co. v. Zenith Goldline
`
`Pharms., Inc., 471 F.3d 1369, 1379, (Fed. Cir. 2006) (“the law requires a motivation to select the
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`references and to combine them in the particular claimed mannerto reach the claimed invention.”).
`
`Dr. Gottesman does not specifically identify why a POSITA would be motivated to combine
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`Burneror prior art Google Voice with any of the other referenceshelisted.
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`Second, allowing Google to argue that a motivation to combine exists becauseit is the
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`“natural evolution” of telephony systems to include more systems and more features would
`
`7
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`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 12 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 12 of 20
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`swallow the law and be a holding that a motivation to combine a/waysexists in this technical field.
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`Google has offered no legal authority on that position, nor offered any testimony from its fact
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`witnesses that this could even betrue.
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`Additional facts show that such a motivation to combine wasa factual impossibility. For
`
`instance, asa tic! facta ar,a
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`at (65). If it was not actually available to a POSITAasofthe priority date of the patent, it would
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`not as a practical matter be on the “table” of prior art references for a POSITA to choose from
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`whendeciding whichpriorart references to combine together. Therefore, as a practical and factual
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`matter, a POSITA could not have been motivated to combinePY Also
`for this same reason, a POSITA would not have been motivated to combineii
`a.
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`Further, Burner taught away from such a combination. The point of Burnerwasthat the
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`numbers it created were meant to beee
`GE.. See Ex. 8 AdHoc000018 at 24Gs
`DEES20.0000:
`ES 9. c006-Fv"-
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`PA-00004636 at 4638 (“““The person who has burmedthe numberis not reachable on that number,’
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`Cohn added. ‘We think ofit as a temporary social network. You’re just giving them a path to you
`
`that works for nght now. When you burn that number, that path dissolves. As well, we wipe the
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`history from your phone.’”; id. at 4637 (“Get a burner numbervalid for 7 days or 20 talk minutes
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`or 60 texts”). References that teach away cannot be combined. See Tec Air, Inc. v. Denso Mfg.
`
`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 13 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 13 of 20
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`MichiganInc., 192 F.3d 1353, 1360, 52 U.S.P.Q.2d 1294 (Fed. Cir. 1999) (citations omitted—
`
`affirming jury verdict that patent was not invalid and denial of JMOL of invalidity because jury
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`could reasonably have foundthat prior art patent that taught placing adjustable screwsin the non-
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`cavity side of a mold taught away from the claimed invention of placing the screws in the cavity
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`side ofthe mold as the conventional wisdomasofthe application filing date was that screws placed
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`in the cavity side of the mold would inevitably fill up with plastic and be moperative for their
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`intended purpose).
`
`Accordingly, Flyp is entitled to summary judgmentthat Google has not demonstrated any
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`motivation to combine any reference with any other.
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`Google Has Not Shown that a POSITA Would be Motivated to Modify Any
`Cc.
`Single Reference to Render the Asserted Patents Obvious
`
`Google offers insufficient evidence or explanation as to how or why a POSITA would be
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`motivated to modify the teachings of either Google Voice or Bummerto render the Asserted Claims
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`obvious overeither one of those references individually. While “[i]n appropriate circumstances,
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`a single prior art reference can render a claim obvious,” there must however “be a showing of a
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`suggestion or motivation to modify the teachings of that reference to the claimed invention in order
`
`to support the obviousness conclusion.” SJBIA Neurosciences, Inc. v. Cadus Pharm. Corp., 225
`
`F.3d 1349, 1356 (Fed. Cir. 2000) (emphasis added).
`
`Google has not offered any evidenceas to this motivation to modify the teachings of either
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`Google Voice or Burner except Dr. Gottesman’s expert report and testimony. In his expert report,
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`Dr. Gottesman relies on only vague and conclusory statements such as stating that it would be
`
`ee
`ee
`GRE” Gottesman Opening Rep.at #¥ 196, 200, 205.
`
`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 14 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 14 of 20
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`For example, Dr. Gottesmanstatesthat:
`
`
`
`Id. at 205.
`
`This conclusory appeal to “common sense” has been explicitly rejected by the Federal
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`Cireuit. See, e.g., SIBIA, 225 F.3d at 1356 (reversing a finding of unpatentability for obviousness
`
`because the Board erred in relying on “common sense” to supply a claim limitation that was
`
`missing from the oneprior art reference relied on to show obviousness).
`
`Further, even if this explanation were adequate,
`
`it
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`is unsupported except by Dr.
`
`Gottesman’s ipse dixit testimony. Google’s own corporate designee contradicts Dr. Gottesman.
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`Modifying the purported prior-art Google Voice in the manner Dr. Gottesman suggests would have
`
`been unduly complex and would not have had a reasonable expectation of success. At the relevant
`
`5,
`PE. See, c.c., Ex. 10,J Dep.Tr. at 34:21-363
`ee
`eee
`ee. Consequently, Google has not
`
`shown the requisite suggestion or motivation to modify either single reference, and Flyp is entitled
`
`to summary judgmentonthis issue.
`
`There is No Dispute of Material Fact that the Asserted Patents Possess
`D.
`Adequate Written Description and Enablement
`
`The Asserted Patents have adequate written description because the specification
`
`reasonably conveys “to those skilled in the art that the inventor had possession of the claimed
`
`10
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`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 15 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 15 of 20
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`invention as ofthe filling date.” Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed.
`
`Cir. 2010). Further, the specification is enabling becauseit teaches “those in the art to make and
`
`use the full scope of the claimed invention without undue experimentation.” ALZA Corp. v. Andrx
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`Pharm., LLC, 603 F.3d 935, 940 (Fed. Cir. 2010). There is no dispute of material fact on this issue
`
`because Google’s invalidity expert, Dr. Gottesman, admitted in his deposition that he wasable to
`
`understand,in light of the specification, each of the claim terms Google contends is invalid under
`
`section 112.
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`Google contends that four sets of terms are invalid due to a lack of written description
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`and/or enablement. First, Google argues that the claim terms “primary” and “secondary”telephone
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`numbersare invalid under section 112. In his opening report on invalidity, Dr. Gottesman opines
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`that “[a]ny two numbers within a phone handset or a phoneservice can be picked and labeled
`
`primary or secondary numbers. The specification provides no clear guidance to a POSITAasto
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`what characterizes such numbers as being primary or secondary, and what would distinguish
`
`them.” Gottesman Inv. Rep. at para. 231. However, in Dr. Gottesman’s deposition, when asked
`
`how he applied the term “primary” telephone number in his invalidity report, the following
`
`exchangetookplace:
`
`Q. What about primary telephone number, how have you applied
`that in your invalidity analysis?
`
`A. The primary telephone numberis used basically in the patent
`primarily to associate certain elements in the database.- And I
`believe, you know,that a telephone number such as a SIM telephone
`numberthat is described in the claim in the specification is such a
`telephone number.
`
`Ex. 9, Gottesman Oct. 31 Dep. at 279:14-23.
`
`When describing Burner, Dr. Gottesman also stated he had no difficulty understanding the terms
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`“primary” and “secondary telephone number”in light of the patent and the specific system at issue:
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`11
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`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 16 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 16 of 20
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`Id. at 314:11-19.
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`Not only does Dr. Gottesman admit that he understands the term “primary telephone
`
`number”in light of the specification and by virtue ofits relationship to the system and whatset of
`
`tules applies to it, but this is exactly the understanding that Dr. Conte opines upon in his report.
`
`See Conte Rep. at para. 76 (“The specification and claims do not use the words “primary” and
`
`“secondary” in a subjective sense, but rather to distinguish between two telephone numbers that
`
`follow a specific set of rules.”). Further, Google’s argument regarding these terms is simply
`
`patroting its failed claim construction argument regarding indefiniteness of the same terms, which
`
`this Court rejected. See Ex. 12, Nov. 22, 2022 MarkmanTr. at 5-6, 8, 13 (Google arguing that the
`
`terms are indefinite, and the Court rejecting that argument, stating “This isn’t a tiny little thing in
`
`something like I usually get, where it’s, you know,[. .
`
`.] wherein the node will do X, and you don’t
`
`know maybewhich nodeitis. I get that. But this is theje ne sais quoi ofthe patent.” (emphasis added)).
`
`Second, Dr. Gottesman admitted that a POSITA would have been familiar with VoIP at
`
`the time the patents werefiled:
`
`Q. Wediscussed quite a bit today VoIP, and I believe I understand
`your opinion to be that well before the earliest prior dates of these
`patents VoIP was well known in theart; is that fair?
`
`A. Yes.
`
`Ex. 11, Gottesman Oct. 31 Dep. Tr. at 497:5-10.
`
`12
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`

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`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 17 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 17 of 20
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`Third, Dr. Gottesman admitted that a voice channel and a data channel may be transmitted
`
`overIP.
`
`Q. And the question I'm asking youis: In paragraph 151, right in
`the middle of paragraph 150 where you're talking about
`the
`specification and the rest of paragraph 151, where you're talking
`about the understandings you're going to adopt in the report, you
`say, “Both voice channel and data channel may be using IP, so IP is
`not a useful way to distinguish between them.” Do youagree with
`that statement or disagree? That's all I'm asking.
`
`in
`A. Generally speaking — generally speaking, voice channel
`general and data channel in general may be transmitted in general
`over IP. And whenthey are transmitted over IP, they are transmitted
`in the same way.
`
`Id. at 434:19-435:9.
`
`Fourth andfinally, the Asserted Patents possess adequate written description for the terms
`
`“switch” and “server,” including as those terms relate to VoIP in the patent. Dr. Gottesman admits
`
`that a POSITA would have understood how the term “switch” operated with regards to VoIP in
`
`2013:
`
`Q.Is it correct that a person ofordinary skill in the art in 2013 would
`have known about these VoIP software switches?
`
`A. Yes.
`
`Td. at 283:22-25.
`
`He likewise admits that it could have run on a server:
`
`Q. Could it run on a server, for instance?
`
`A. Yes.
`
`Id. at 286:15-17.
`
`Therefore, there is no dispute of material fact regarding whether the Asserted Patents
`
`possess adequate written description and enablement for each of these terms. Alternatively, Flyp
`
`is concurrently moving to strike Dr. Gottesman’s opinions and testimony regarding written
`
`13
`
`

`

`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 18 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 18 of 20
`
`description and enablementin a separately filed Motion to Strike. If such motionis granted, then
`
`no dispute of material fact exists because Google has produced no other evidencein its favor.
`
`Therefore, under either basis, Flyp is entitled to summary judgmenton this issue in its favor.
`
`I.
`
`CONCLUSION
`
`For the reasons stated above,there is no dispute of material fact regarding: (1) the Asserted
`
`Claim’s validity over Burner; (2) that there is no motivation to combine any of the references
`
`Google relies upon; (3) there is no adequate motivation to modify any single reference to render
`
`obvious the Asserted Claims; and (4) that the Asserted Patents possess adequate written description
`
`and enablement under 35 U.S.C. §112. Therefore, Flyp respectfully requests summary judgment
`
`in its favor on these issues.
`
`14
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`

`

`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 19 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 19 of 20
`
`DATED: November 14, 2023
`
`Respectfully submitted,
`
`/s/ Thomas M. Melsheimer
`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
`C. Charles Liu
`Texas Bar No. 24100410
`ccliu@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
`mrecullough@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
`Evan D. Lewis
`Texas Bar No. 24116670
`edlewis@winston.com
`WINSTON & STRAWN LLP
`800 Capitol Street, Suite 2400
`Houston, TX 77002
`Telephone: (713) 651-2766
`
`ATTORNEYS FOR PLAINTIFF
`
`15
`
`

`

`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 20 of 20
`Case 6:22-cv-00031-ADA Document 165 Filed 11/21/23 Page 20 of 20
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on November 14, 2023, a true and correct copy of the foregoing
`documentwasfiled electronically with the Clerk of Court using the CM/ECFsystem. As ofthis
`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. Administrative Policies and
`Procedures for Electronic Filing in Civil and Criminal Cases, Western District of Texas,
`Section 14.
`
`/s/ Michael A. Bittner
`Michael A. Bittner
`
`16
`
`