Case 6:22-cv-00031-ADA Document 168 Filed 11/21/23 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC., (D/B/A FLYP),
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`v.
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`GOOGLE LLC,
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`CIVIL ACTION NO. 6:22-cv-00031-ADA
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`JURY TRIAL DEMANDED
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`Plaintiff,
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`Defendant.
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`GOOGLE LLC’S MOTION FOR SUMMARY JUDGMENT OF NO WILLFULNESS
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`Case 6:22-cv-00031-ADA Document 168 Filed 11/21/23 Page 2 of 15
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`TABLE OF CONTENTS
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`Page
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`I.
`INTRODUCTION .............................................................................................................. 1
`II.
`SUMMARY OF FACTS .................................................................................................... 1
`III.
`LEGAL STANDARD ......................................................................................................... 1
`IV.
`FLYP CANNOT ESTABLISH PRE-SUIT KNOWLEDGE ............................................. 2
`A.
`Patents ..................................................................................................................... 2
`B.
`Flyp Cannot Show that Google Was Wilfully Blind .............................................. 5
`C.
`Google Ventures’ Knowledge Cannot Be Imputed to Defendant Google .............. 6
`V.
`FLYP CANNOT ESTABLISH DELIBERATE OR INTENTIONAL INFRINGEMENT 6
`VI.
`THERE IS NO EVIDENCE OF EGREGIOUS BEHAVIOR ............................................ 8
`VII. CONCLUSION ................................................................................................................... 9
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`There Is No Genuine Dispute that Google Lacked Knowledge of the Asserted
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`i
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`Case 6:22-cv-00031-ADA Document 168 Filed 11/21/23 Page 3 of 15
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Bayer Healthcare LLC v. Baxalta Inc.,
`989 F.3d 964 (Fed. Cir. 2021)............................................................................................2, 6, 7
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`Blitzsafe Tex., LLC v. Volkswagen Grp. of Am. Inc.,
`No. 2:15-cv-1274-JRG-RSP, 2016 WL 4778699 (E.D. Tex. Aug. 19, 2016) ...........................5
`
`Celotex Corp. v. Catrett,
`477 U.S. 317 (1986) ...................................................................................................................1
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`Duffy v. Leading Edge Prods.,
`44 F.3d 308 (5th Cir. 1995) ...................................................................................................2, 5
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`Firtiva Corp. v. Funimation Global Grp., LLC,
`No. 2:21-cv-00111-JRG-RSP, R & R, No. 163 (E.D. Tex. June 1, 2022) ................................7
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`Fractus, S.A. v. TCL Corp.,
`No. 2:20-cv-00097-JRG, 2021 WL 2483155 (E.D. Tex. June 2, 2021) ....................................7
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`Global-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) ...................................................................................................................5
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`Gustafson, Inc. v. Intersys. Indus. Prods., Inc.,
`897 F.2d 508 (Fed. Cir. 1990)....................................................................................................7
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`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`579 U.S. 93 (2016) .................................................................................................................2, 8
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`Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
`475 U.S. 574 (1986) ...................................................................................................................1
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`Maxell Ltd. v. Apple Inc., No. 5:19-CV-00036-RWS,
`2019 WL 7905455 (E.D. Tex. Oct. 23, 2019) ...........................................................................3
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`State Indus. v. A.O. Smith Corp.,
`751 F.2d 1226 (Fed. Cir. 1985)..................................................................................................3
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`U.S. ex rel. Vavra v. Kellogg Brown & Root, Inc.,
`848 F.3d 366 (5th Cir. 2017) .....................................................................................................6
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`Statutes
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`35 U.S.C. § 273 ................................................................................................................................8
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`ii
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`Case 6:22-cv-00031-ADA Document 168 Filed 11/21/23 Page 4 of 15
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`Rules
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`Fed. R. Civ. P.
`R. 56(a) ......................................................................................................................................1
`R. 56(c)(1) ..................................................................................................................................2
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`iii
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`Case 6:22-cv-00031-ADA Document 168 Filed 11/21/23 Page 5 of 15
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`I.
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`INTRODUCTION
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`Google has challenged Flyp’s deficient willful infringement allegations since the start of
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`this case, filing two motions to dismiss (one of which is pending). The Court noted that Flyp’s
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`complaint told a “compelling story” regarding willful infringement but nevertheless granted in part
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`Google’s first motion to dismiss. Dkt. 48. The Court also allowed Flyp an opportunity to amend.
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`Id. at 16. Now, with the benefit of discovery, Flyp still has nothing more than a “story” devoid of
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`any supporting facts. Summary judgment should be granted to prevent Flyp from perpetuating its
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`baseless and highly prejudicial charge at trial.
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`II.
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`SUMMARY OF FACTS
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`Flyp alleges that Google has willfully infringed five of Flyp’s U.S. patents. Dkt. 103
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`(Second Amended Complaint) (“SAC”). Flyp’s original allegations that Google had pre-suit
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`knowledge of the asserted patents were tied entirely to a meeting between Flyp’s founder (Peter
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`Rinfret) and a Google Ventures partner
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`on November 12, 2015. Dkt. 1 ¶¶ 33, 45, 57,
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`72, 86. After a motion to dismiss Flyp’s willful infringement claims that was granted in part, Flyp
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`filed its SAC. Google moved to dismiss the SAC as still failing to allege willfulness. Dkt. 108;
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`Dkt. 114. That motion is pending. Because the Court is well aware of the underlying facts, Google
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`will not repeat them here and instead hereby incorporates by reference the facts and arguments
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`previously raised in the briefing on dismissal of the SAC.
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`III. LEGAL STANDARD
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`Summary judgment is appropriate when there is no genuine dispute as to any material fact
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`and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex
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`Corp. v. Catrett, 477 U.S. 317, 322–25 (1986). Once the court determines that the movant has
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`presented sufficient evidence that no genuine dispute of material fact exists, the burden of
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`production shifts to the party opposing summary judgment. Matsushita Elec. Indus. Co. v. Zenith
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`1
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`Radio Corp., 475 U.S. 574, 586–87 (1986). The non-moving party must demonstrate a genuinely
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`disputed fact by citing admissible materials in the record or by showing that the materials cited by
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`the movant do not establish the absence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). “Conclusory
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`allegations unsupported by concrete and particular facts will not prevent an award of summary
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`judgment.” Duffy v. Leading Edge Prods., 44 F.3d 308, 312 (5th Cir. 1995).
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`To prove willfulness, the plaintiff must establish 1) knowledge of the asserted patent and
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`2) intentional and deliberate conduct. Bayer Healthcare LLC v. Baxalta Inc., 989 F.3d 964, 987–
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`88 (Fed. Cir. 2021). In particular, a plaintiff must show that an infringer’s conduct has been
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`“wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or—indeed—
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`characteristic of a pirate.” Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93, 103–04 (2016).
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`IV.
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`FLYP CANNOT ESTABLISH PRE-SUIT KNOWLEDGE
`A.
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`There Is No Genuine Dispute that Google Lacked Knowledge of the Asserted
`Patents
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`Knowledge of the asserted patents is a requirement for finding willful infringement. Flyp
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`has not and cannot establish this foundational fact. As the Court noted in its opinion granting in
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`part Google’s first motion to dismiss: “Here, the deficiency lies in a failure to allege Google’s
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`actual knowledge of either the patents or the patent filings.” Dkt. 48 at 9. Over a year later, Flyp
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`still cannot show that Google knew of the patents or patent filings. Flyp’s SAC introduced an
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`allegation that Flyp sent a presentation
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` around the time of the November 2015
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`meeting, “which included a summary of Flyp’s technology and disclosed that Flyp had filed patent
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`applications related to its technology.” SAC ¶¶ 33, 47, 61, 78. Critically, the presentation only
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`referred generally to one patent filing and never identified it with any specificity. It did not contain
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`the application number: U.S. Application No. 14/307,052 (“the ’052 Application”). Ex. 1 at 4087–
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`2
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`89. And Mr. Rinfret admits that he did not
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` Ex. 2 at
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`284:2–11.
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`Indeed, Flyp cannot establish that
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` or anyone else at Google or Google Ventures
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`was aware of or reviewed the specific patent application.
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`Ex. 3 at 70:23–71:8.
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`Id. at 71:4–8. Flyp has no evidence to the contrary.
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`Even if it did, “knowledge of a patent application alone is insufficient to demonstrate
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`knowledge of the later issued patent.” Maxell Ltd. v. Apple Inc., No. 5:19-CV-00036-RWS, 2019
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`WL 7905455, at *5 (E.D. Tex. Oct. 23, 2019). “A ‘patent pending’ notice gives one no knowledge
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`whatsoever.” State Indus. v. A.O. Smith Corp., 751 F.2d 1226, 1236 (Fed. Cir. 1985). Flyp will
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`likely rely on the idea that “a party’s exposure to a patent application may give rise to knowledge
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`of a later issued patent.” Maxell, 2019 WL 7905455, at *5 (citing Blitzsafe Tex., LLC v.
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`Volkswagen Grp. of Am. Inc., No. 2:15-cv-1274-JRG-RSP, 2016 WL 4778699, at *6 (E.D. Tex.
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`Aug. 19, 2016)). But the Court in Maxell dismissed a willful infringement claim where defendant
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`Apple interacted with Maxell up until months before the patent issued. Maxell, 2019 WL 7905455,
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`at *4–5. The facts here are even less compelling where Flyp interacted with Google Ventures years
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`(not months) before the patents issued. See Dkt. 48 at 9. There was no notice of allowance at that
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`time, nor would one issue until nearly fourteen months after the November 2015 meeting. Ex. 4.
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`Thus, the existence of a specific patent application—even if identified to Google—cannot establish
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`knowledge of any later-issued patent.
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`3
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`Importantly, only the ’052 Application was pending at the time of the November 2015
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`meeting. See Dkt. 48 at 9. That application relates to only one issued patent in this case. The
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`applications that issued as the remaining asserted patents were filed between “one and a half to
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`five and a half years after the November 12 meeting.” Id. The Court previously raised this
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`deficiency. Id. Accordingly, Flyp also fails to present any facts that Google had knowledge of the
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`remaining asserted patents.
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`Flyp can present no other evidence to support its claim of actual knowledge. This is
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`evidenced by Flyp’s interrogatory responses, updated as recently as August 22, 2023. When asked
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`to identify facts supporting its willful infringement claims, Flyp
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`Id. Flyp has uncovered no such evidence because none exists.
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` Ex. 5 at 45–47.
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`Flyp merely claims that Google was “aware of Flyp’s plans for continuation applications”
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`and “retrieved” each of the asserted patents after they issued. Dkt. 110 at 6. As support, Flyp cites
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`only its own SAC which asserts only that “on information and belief, Google was . . . aware of
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`each of Flyp’s patents shortly after each issued as they were analyzed and incorporated into
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`patents.google.com, a website owned and operated by Google LLC.” SAC ¶ 22 (emphasis added).
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`This “information and belief” is woefully deficient in creating a material dispute for the reasons
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`outlined in Google’s reply in support of its motion to dismiss. Dkt. 114 at 6. Flyp offers no
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`evidence regarding this theory at all. Once again, it cites no evidence in response to an
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`interrogatory regarding willful infringement. Ex. 5 at 45–47. Flyp offers no evidence that Google
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`does anything other than automatically add patents to the Google Patents website. There is no
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`evidence that anyone at Google Voice analyzed the patents at all. There also is no evidence of
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`overlap in the personnel of Google Patents and Google Voice. Moreover, the Google Patents
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`4
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`website is publicly available. If the Court accepts this argument, this claim of willfulness would
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`then apply to any party accused of patent infringement, eviscerating the high bar for willful
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`infringement. To avoid summary judgment Flyp must put forth more than “[c]onclusory
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`allegations unsupported by concrete and particular facts[.]” Duffy, 44 F.3d at 312. But, as
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`demonstrated by Flyp’s interrogatory responses, Flyp cannot do so.
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`In sum, there was no pre-suit knowledge of the asserted patents and that lack of evidence
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`mandates summary judgment of no pre-suit willful infringement.
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`B.
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`Flyp Cannot Show that Google Was Wilfully Blind1
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`To the extent Flyp alleges that Google was willfully blind to the existence of the asserted
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`patents, Flyp’s arguments also fail. The Supreme Court identified two basic requirements to show
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`willful blindness: “(1) The defendant must subjectively believe that there is a high probability that
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`a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.”
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`Global-Tech, 563 U.S. at 769–70. To the extent Flyp asserts willful blindness by alleging Google
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`“knew about Flyp’s patent prosecution plans,” (Dkt. 110 at 13), Mr. Rinfret
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`(Ex. 2 at 284:2–11). And even if he
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`had, that still would not show that Google had actual knowledge of the later applications. Dkt. 48
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`at 9. To the extent Flyp argues that Google failed to “monitor Flyp’s patent filings” (SAC ¶ 22),
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`that does not constitute willful blindness. See Blitzsafe Tex., LLC, 2016 WL 4778699, at *6
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`(acknowledging that the Federal Circuit has implied that “a party is not obligated to continually
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`1 In Global-Tech, the Supreme Court held that willful blindness can substitute for actual knowledge
`in the induced infringement context. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766
`(2011). Some courts have proposed further extending willful blindness as a substitute for actual
`knowledge into the willful infringement context. Google disputes that premise and addresses
`willful blindness only to the extent the Court considers it relevant here.
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`5
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`Case 6:22-cv-00031-ADA Document 168 Filed 11/21/23 Page 10 of 15
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`monitor every patent application to which it has been exposed”). There is no evidence to support
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`Flyp’s allegation that Google took deliberate actions to avoid confirming wrongdoing.
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`C.
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`Google Ventures’ Knowledge Cannot Be Imputed to Defendant Google
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`Even if the Court finds that
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`had “actual knowledge” of the Asserted Patents,
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`Flyp has provided no evidence supporting that this knowledge can be imputed from non-party
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`Google Ventures to Defendant Google. See Ex. 5 at 45–47; Dkt. 108 at 10–12; Dkt. 114 at 8–10.2
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`The complete facts show that the timeline of events forecloses any information flow. For example,
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`although
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`later became an employee of Defendant Google, that was not until March
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`2021, well after even the latest dates that Flyp contends Google began infringing
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`.
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`Dkt. 108 at 11–12; Ex. 6 ¶¶ 80–81, 86–87, 116. Regardless, “knowledge of a mere employee of
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`the corporation ordinarily is not imputed to the company.” U.S. ex rel. Vavra v. Kellogg Brown &
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`Root, Inc., 848 F.3d 366, 374 (5th Cir. 2017) (citation omitted).
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`V.
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`FLYP CANNOT ESTABLISH DELIBERATE OR INTENTIONAL
`INFRINGEMENT
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`To support a claim for willful infringement, Flyp needs to show not only knowledge, but
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`also “deliberate or intentional infringement.” Bayer Healthcare, 989 F.3d at 987–88 (citation
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`omitted). Flyp has not provided evidence Google is intentionally infringing. Flyp baldly claims in
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`its SAC that Google’s infringement of the asserted patents “continues to be deliberate and willful.”
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`SAC ¶¶ 38, 52, 66, 83, 97. Months later and after full discovery, Flyp cannot add to its unsupported
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`belief. Flyp’s interrogatory responses, updated as recently as August 22, 2023, fail to provide any
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`evidence of intentional infringement. See Ex. 5 at 45–47. This is insufficient to prove a claim of
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`2 Google incorporates its recitation of the facts and arguments relevant to this point from its motion
`to dismiss Flyp’s SAC.
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`6
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`Case 6:22-cv-00031-ADA Document 168 Filed 11/21/23 Page 11 of 15
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`willful infringement. See Bayer HealthCare, 989 F.3d at 987–88; Fractus, S.A. v. TCL Corp., No.
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`2:20-cv-00097-JRG, 2021 WL 2483155, at *4 (E.D. Tex. June 2, 2021).
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`To the extent Flyp claims that Google’s infringement is intentional because Google
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`continued to offer the allegedly infringing product after this lawsuit began, such post-complaint
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`activity alone is insufficient as a matter of law to support a claim of willful infringement. See, e.g.,
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`Gustafson, Inc. v. Intersys. Indus. Prods., Inc., 897 F.2d 508, 511 (Fed. Cir. 1990) (“Exercising
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`due care, a party may continue to manufacture and may present what in good faith it believes to
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`be a legitimate defense without risk of being found on that basis alone a willful infringer.”)
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`(citation omitted); Firtiva Corp. v. Funimation Global Grp., LLC, No. 2:21-cv-00111-JRG-RSP,
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`R & R, No. 163 at 3 (E.D. Tex. June 1, 2022) (“Here, Firtiva fails to provide evidence of any
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`deliberate or intentional action and simply argues that [sic] jury could infer willfulness based on
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`Funimation continuing to offer the accused product. Based on Bayer, this is necessary but not
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`sufficient for a finding of willfulness.”) (citations omitted).
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`Moreover, to the extent Flyp claims that Google intentionally infringed the patents once
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`the complaint was filed, such an argument also fails as Google was not even made aware of Flyp’s
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`actual infringement allegations until fact discovery closed. Specifically, Flyp’s original complaint
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`alleged that Google infringed upon release of a redesign of Google Voice in January 2017. See
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`Dkt. 1 ¶¶ 21–23. But Flyp abandoned that theory in its September 2023 expert reports, claiming
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`that the incoming call patents infringe based on the
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`. Ex. 6 ¶¶ 80–81, 86–87, 116. Indeed, Google
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`informed Flyp repeatedly in late 2022 that Flyp had failed to set forth a plausible theory of
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`infringement—see Ex. 7—and, apparently realizing that indisputable reality, Flyp changed course
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`on its infringement theories in its expert reports.
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`7
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`Case 6:22-cv-00031-ADA Document 168 Filed 11/21/23 Page 12 of 15
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`Underscoring the impossibility that Google intentionally or deliberately infringed Flyp’s
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`patents is the fact that Google Voice was in commercial use in 2009, well before the meeting with
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`Rinfret (Ex. 8 at 24; Ex. 9 at 111:22–114:19; 155:16–156:13); MSJ under Section 273.3
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`Importantly, 35 U.S.C. § 273 precludes infringement of the outgoing call patents because Google
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`Voice used the accused functionality four years before the priority date of the patents. See MSJ
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`under Section 273. This timeline makes clear that there could be no intentional infringement.
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`Moreover, Flyp’s infringement allegations are now focused on
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` in direct contrast to
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`Flyp’s claim that the 2015 meeting triggered intentional infringement. Ex. 6 ¶¶ 80–81, 86–87,
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`116. And finally, Flyp cannot meet the legal requirement to show that Google infringes the
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`incoming call patents. See MSJ regarding Bridge Telephone Number.4
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`The court should grant summary judgment of no pre- or post-suit willfulness because Flyp
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`cannot show intentional infringement.
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`VI.
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`THERE IS NO EVIDENCE OF EGREGIOUS BEHAVIOR
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`Last, Flyp cannot show conduct that has been “willful,” or “wanton, malicious, bad-faith,
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`deliberate, consciously wrongful, flagrant, or—indeed—characteristic of a pirate.” Halo, 579 U.S.
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`at 103–04. Flyp claims: “Google’s meeting with Flyp under the false pretense of funding through
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`Google Ventures and then incorporating Flyp’s inventions into Google Voice despite knowing
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`about Flyp’s patent application was wrongful and piratelike.” Dkt. 110 at 8. The reality is,
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`however, Flyp has no evidence whatsoever that Google, through Google Ventures or otherwise,
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`3 Google is filing concurrently herewith a Motion for Summary Judgment of Non-Infringement of
`U.S. Patent Nos. 10,334,094; 10,125,554; and 11,218,585 (“MSJ under Section 273”).
`4 Google is filing concurrently herewith a Motion for Summary Judgment of Non-Infringement on
`the two patents concerning the incoming call process, U.S. Patent Nos. 9,966,770 and 10,051,105
`(“MSJ regarding Bridge Telephone Number”).
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`8
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`Case 6:22-cv-00031-ADA Document 168 Filed 11/21/23 Page 13 of 15
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`met with Flyp under false pretenses or that Google, three years later, allegedly incorporated Flyp’s
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`alleged invention into its own, pre-existing product.5 See Dkt. 108 at 10–12; Dkt. 114 at 8–10.
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`Thus, summary judgment of no pre- or post-suit willfulness is appropriate.
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`VII. CONCLUSION
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`Google respectfully requests that the Court grant summary judgment of no willful
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`infringement.
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`5 In fact, the record indicates that it is Flyp who filed its patent applications under false pretenses
`because Flyp downloaded, installed, and used Google Voice before the alleged priority date. See
`Dkts. 118, 123. This is, in part, the basis for Google’s inequitable conduct claims. Id. To date, Flyp
`has refused to provide discovery on this issue. See Dkt. 123.
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`9
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`Case 6:22-cv-00031-ADA Document 168 Filed 11/21/23 Page 14 of 15
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`DATED: November 14, 2023
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`Respectfully Submitted,
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`/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
`4655 Executive Drive, Suite 350
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
`
`Robert R. Laurenzi (Pro Hac Vice)
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 318-6000
`Facsimile: (212) 319-4090
`
`Joshua Yin (Pro Hac Vice)
`joshuayin@paulhastings.com
`David M. Fox (Pro Hac Vice)
`davidfox@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`Paige Arnette Amstutz
`State Bar No.: 00796136
`pamstutz@scottdoug.com
`
`10
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`Case 6:22-cv-00031-ADA Document 168 Filed 11/21/23 Page 15 of 15
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`SCOTT, DOUGLASS & MCCONNICO, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`Telephone: (512) 495-6300
`Facsimile: (512) 495-6399
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`Attorneys for Defendant Google LLC
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`CERTIFICATE OF SERVICE
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`
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`I hereby certify that on the 14th day of November, 2023, a true and correct copy of the
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`foregoing document was filed electronically with the Clerk of Court using the CM/ECF system.
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`As of this date, all counsel of record have consented to electronic service and are being served
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`with a copy of this document through the Court’s CM/ECF system and by email.
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`/s/ Robert W. Unikel
`Robert W. Unikel
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`11
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