Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 1 of 17
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC., (D/B/A FLYP),
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`Plaintiff,
`
`v.
`
`GOOGLE LLC,
`
` CIVIL ACTION NO. 6:22-cv-00031-ADA
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`JURY TRIAL DEMANDED
`
`Defendant.
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`DEFENDANT GOOGLE LLC’s MOTION FOR SUMMARY JUDGMENT OF
`NON-INFRINGEMENT OF U.S. PATENT NOS. 10,334,094; 10,125,554; AND 11,218,585
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`

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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 2 of 17
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`TABLE OF CONTENTS
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`Page
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`THERE IS NO EVIDENCE THAT THE ACCUSED OUTGOING PROXY CALL
`PROCESS HAS MATERIALLY CHANGED SINCE MORE THAN ONE YEAR
`BEFORE THE PRIORITY DATE OF THE ASSERTED PATENTS, AND AS A
`RESULT, THE ACCUSED PROCESS CANNOT INFRINGE THE ASSERTED
`
`INTRODUCTION & SUMMARY OF ARGUMENT ....................................................... 1
`PATENTS UNDER SECTION 273 ................................................................................... 2
`A. The Asserted Claims and the Accused Outgoing Proxy Calling System ................... 4
`B. The Accused Outgoing Proxy Call Process Has Been in Commercial Use and
`Unchanged Since at Least 2009 .................................................................................. 5
`C. Flyp Has Presented No Expert Opinion or Other Evidence Regarding any Supposed
`Changes to the Google Voice Outgoing Call Flow From 2009 to Today .................. 9
`CONCLUSION ................................................................................................................. 12
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`I.
`II.
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`III.
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`
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`i
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`

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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 3 of 17
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`TABLE OF AUTHORITIES
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`
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`
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`Page(s)
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`Cases
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`Encyclopaedia Britannica, Inc. v. Alpine Elecs. of Am., Inc.
`643 F. Supp. 2d 874 (W.D. Tex. 2009) ......................................................................................4
`
`Flowers v. Wal-Mart Inc.,
`79 F.4th 449 (5th Cir. 2023) ......................................................................................................4
`
`Jones v. Gulf Coast Rest. Grp., Inc.,
`8 F.4th 363 (5th Cir. 2021) ........................................................................................................4
`
`Viazis v. Am. Ass’n of Orthodontists,
`182 F. Supp. 2d 552 (E.D. Tex. 2001) .......................................................................................4
`
`Statutes
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`35 U.S.C.A.
`§ 273(a) ......................................................................................................................................3
`§ 273(e)(3) .................................................................................................................................3
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`35 U.S.C.
`§ 271(a) ................................................................................................................................1, 12
`§ 273................................................................................................................................. passim
`§ 282(b) ......................................................................................................................................3
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`Rules
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`R. 56(c) ............................................................................................................................................4
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`
`
`ii
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`

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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 4 of 17
`Case 6:22-cv-00031-ADA Document170 Filed 11/21/23 Page 4 of 17
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`I.
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`INTRODUCTION & SUMMARY OF ARGUMENT
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`35 U.S.C. § 273 precludes infringement when an accused product was in commercial use
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`at least one year before the effective filing date of the asserted patent. This Court should now grant
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`summary judgment of non-infringement because Google indisputably used and offered to its
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`customers the same Google Voice telephony call processing services accused ofinfringing three
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`of the five asserted patents—U.S. Patent Nos. 10,334,094 (the “’094 patent”) (Ex. 1), 10,125,554
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`(the “’554 patent”) (Ex. 2), and 11,218,585 (the “’585 patent”) (Ex. 3)—atleastthree years before
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`the earliest priority date of the asserted patents in 2013. Flypsi, Inc. (“Flyp”) has failed to, and
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`cannot, identify any evidence from which a reasonable jury could find that the accused product
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`(and, in particular, the outgoing call processes implemented by that product) has changed in any
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`way material to the asserted claims since Google Voice waslaunched in 2009.
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`Section 273 is a rarely used defense at the summary judgmentstage in patentlitigation
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`because it is unusual for a plaintiff to persist in alleging infringementof a process after fact and
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`expert discovery have so clearly shown that the accused process is the same as what the defendant
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`has been using since well before the priority date of the asserted patents.! Flyp is on the horns of
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`an inescapable dilemma. The Google Voice call process that Flyp accuses of infringementis the
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`sameprocessthat wasin use before the relevant Section 273 date. If Flyp is correct that the accused
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`processpracticesall the asserted claim elements, then, because the process has not changed since
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`2009, the claims are subject to the Section 273 defense and summary judgmentofno infringement
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`is appropriate under that section. Alternatively, if Flyp cannot provethat all of the elements read
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`on the accused Google Voice outgoing call process—the same process that has been in use by
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`Google Voice since 2009—then axiomatically there can be no infringement under 35 U.S.C.
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`1
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`See, e.g., Ex. 4.
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`

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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 5 of 17
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`§ 271(a). Either way, Google is now entitled to summary judgment of non-infringement on at least
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`the ’094 Patent, ’554 Patent, and ’585 Patent.
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`ARGUMENT
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`II.
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`THERE IS NO EVIDENCE THAT THE ACCUSED OUTGOING PROXY CALL
`PROCESS HAS MATERIALLY CHANGED SINCE MORE THAN ONE YEAR
`BEFORE THE PRIORITY DATE OF THE ASSERTED PATENTS, AND AS A
`RESULT, THE ACCUSED PROCESS CANNOT INFRINGE THE ASSERTED
`PATENTS UNDER SECTION 273
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`Flyp asserts five patents. All share the same specification and describe a telephone system
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`that allows a “secondary telephone number” to be associated with a user’s mobile telephone having
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`a “primary telephone number.” Once a secondary telephone number has been assigned to the user’s
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`mobile telephone device, calls placed to either the primary or secondary telephone number will
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`ring at the telephone device. The patents generally refer to this process as the “incoming call”
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`process. In addition, outgoing calls made by the user from the mobile telephone device can be set
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`to show caller ID information for either the primary telephone number or the secondary telephone
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`number, depending on the user’s preference. The patents generally refer to this process as an
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`“outgoing call” process. This motion concerns the three asserted patents relating to the outgoing
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`call process (“the Outgoing Call Patents”): the ’094 patent, the ’554 patent, and the ’585 patent.2
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`The Outgoing Call Patents have an effective filing date of July 16, 2013. As detailed below,
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`it is undisputed that Google Voice launched in 2009 and, at all times from 2009 to today, allowed
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`for outgoing calls to be placed and processed from mobile devices. There is no record evidence
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`that Google Voice’s outgoing call process has changed in any material respect since 2009.
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`Section 273 protects an accused infringer from allegations of infringement where the
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`allegedly infringing product or process was already in use by the accused infringer more than one
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`2 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.
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`2
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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 6 of 17
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`year before the effective filing date of the asserted patents. Improvements to the product or process
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`that “do not infringe additional specifically claimed subject matter of the patent” cannot change
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`that result. The relevant portions of the statute read as follows:
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`(a) In General.—A person shall be entitled to a defense under section 282(b)3 with respect
`to subject matter consisting of a process. . . . that would otherwise infringe a claimed
`invention being asserted against the person if—
`(1) such person, acting in good faith, commercially used the subject matter in the
`United States, either in connection with an internal commercial use or an actual
`arm’s length sale or other arm’s length commercial transfer of a useful end result
`of such commercial use; and
`(2) such commercial use occurred at least 1 year before the earlier of either—
`(A) the effective filing date of the claimed invention. . . .
`(3) Not a general license.—
`The defense asserted by a person under this section is not a general license under
`all claims of the patent at issue, but extends only to the specific subject matter for
`which it has been established that a commercial use that qualifies under this section
`occurred, except that the defense shall also extend . . . to improvements in the
`claimed subject matter that do not infringe additional specifically claimed subject
`matter of the patent.
`35 U.S.C.A. §§ 273(a), 273(e)(3).
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`The accused Google Voice outgoing call process, known as the outgoing proxy call
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`process, cannot infringe under Section 273 because it indisputably was in commercial use by
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`
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`, well before the relevant Section 273 date of
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`July 16, 2012, i.e., one year before the July 16, 2013 effective filing date of the Outgoing Call
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`Patents.
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` (Ex. 5 at 24; Ex. 6 at 111:22–114:19; 155:16–156:13), and those Flyp experts have presented
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`no evidence that there has been any material change in the Google Voice outgoing call process
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`over the past 14 years. Nor have they shown, nor can they show, any improvement in the Google
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`Voice outgoing call process that would infringe additional specifically claimed subject matter of
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`the Outgoing Call Patents.
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`3 35 U.S.C. § 282(b) establishes the patent defenses of non-infringement and invalidity.
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`3
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`

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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 7 of 17
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`Google’s Section 273 defense as to the Outgoing Call Patents is thus unrebutted and
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`summary judgment is appropriate. Flowers v. Wal-Mart Inc., 79 F.4th 449, 452 (5th Cir. 2023)
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`(“[T]he nonmovant must go beyond the pleadings and designate specific facts that prove that a
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`genuine issue of material fact exists.”); Jones v. Gulf Coast Rest. Grp., Inc., 8 F.4th 363, 368 (5th
`
`Cir. 2021) (“A full trial on the merits is only warranted when there is sufficient evidence favoring
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`the nonmoving party for a jury to return a verdict for that party.” (citations and internal quotation
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`marks omitted)); Encyclopaedia Britannica, Inc. v. Alpine Elecs. of Am., Inc. 643 F. Supp. 2d 874,
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`876–77 (W.D. Tex. 2009) (“Rule 56(c) requires the nonmovant to go beyond the pleadings and
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`show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible
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`evidence that specific facts exist creating a genuine issue for trial. The non-movant’s burden may
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`not be satisfied by conclusory allegations, unsubstantiated assertions, or only a scintilla of
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`evidence.” (citations and internal quotation marks omitted)); Viazis v. Am. Ass’n of Orthodontists,
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`182 F. Supp. 2d 552, 557 (E.D. Tex. 2001) (“Even if the evidence is more than a scintilla . . . some
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`evidence may exist to support a position which is yet so overwhelmed by contrary proof as to yield
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`a directed verdict.” (citations and internal quotation marks omitted)).
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`A.
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`The Asserted Claims and the Accused Outgoing Proxy Calling System
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`Claim 1 of each of the Outgoing Call Patents recites establishing an outgoing call by
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`bridging together two legs of a call where the first leg of the call is connected by an access or
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`bridge number associated with a switch. Claim 1 of the ’554 patent is representative of claim 1 of
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`each of the Outgoing Call Patents:
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`1. A method of providing telephone service, comprising:
`automatically storing electronic information that indicates an association of a secondary
`telephone number and a primary telephone number with a mobile device in a computer
`memory associated with a server;
`automatically transmitting information that indicates an access telephone number to the
`mobile device via a data channel;
`automatically associating the telephone access number with a switch associated with the
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`4
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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 8 of 17
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`server;
` receiving, at the switch associated with the server, an outgoing call from the mobile device
`to the access telephone number via a second channel;
`receiving, at the server, information from the switch indicating the outgoing call is being
`made to the access telephone number from the primary telephone number; and
` receiving, at the switch, information from the server directing the switch to:
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`(a) connect the outgoing call to a contact telephone number indicated by the mobile
`device, and
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`(b) identify a telephone number from which the outgoing call is being made as the
`secondary telephone number.
`The accused Google Voice service assigns a unique Google Voice telephone number to
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`each of its users. Ex. 7 at GOOG-FLYP-00000183–84.
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` Id. at GOOG-FLYP-00000186.
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` Id.
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`GOOG-FLYP-00000184.
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` Id.
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` Id. at
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`B.
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`The Accused Outgoing Proxy Call Process Has Been in Commercial Use and
`Unchanged Since at Least 2009
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` Ex. 5 at 24, citing Ex. 24; Ex. 6 at 111:22–114:19; 155:16–
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`
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`156:13. That same year, the high-level Google Voice outgoing proxy call process that provided
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`for caller identification of the Google Voice number was also publicly disclosed. Specifically, in
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`October 2009, the basic premises and high-level flow of the Google Voice outgoing call process
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`5
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`Case 6:22-cv-00031-ADA Document170 Filed 11/21/23 Page 9 of 17
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`for Google Voice apps were described in response to an FCC inquiry:
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`Oneof the most requested features has been for Google Voice users to show their Google
`Voice numberas their outboundcaller ID so that called parties may return calls to the
`user's Google Voice number. In orderto facilitate this request, Google Voice allows users
`to place calls from the Google Voice .
`.
`. mobile applications... .
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`Google Voice also has calling applications for the Android and Blackberry platformsthat
`are currently in the market, and has developed a similar application for the iPhoneplatform.
`With these mobile applications, a Google Voice user places an outboundcall by using the
`Google Voice application to enter the numberto be called. Zhe mobile application will
`then call a Google Voice access number which will be routed to the CLEC vendor who
`provided the Google Voice access number, converted to SIP and sent to the Google Voice
`softswitch, where it will be answered. The Google Voice softswitch will then originate a
`call via SIP through a CLEC vendor who will then convert the call to TDM and connect
`to the number entered by the user. When answered, the two calls are bridged by the
`Google Voice softswitch.*
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`Ex. 7 at GOOG-FLYP-00000184, 86 (emphasis added). In 2010, a public blog post explaining that
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`Google Voice used “access numbers” permanently assigned (cached) for each user’s contacts for
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`making outboundcalls on Google Voice was made:
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`Until today, the Google Voice app had to make a request to the Google Voice server every
`time you wanted to makea call to send us the phone numberyouwantedto dial. Then the
`call would be connected via a Google Voice access number. With direct access numbers,
`we assign a unique phone numberto every person you call. This meansthat we no longer
`need to use your data network to access the server each time you makea call, so calls will
`be placed muchfaster.
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`Ex. 11 (emphasis added); Ex. 12 § 216. At no time from 2009 until today has this Google Voice
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`outgoing proxy call process changed materially, not even in 2017TOY
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`See Ex. 9 at 32:1—33:12. Ex. 9 at 32:13-19, 33:2-6,
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`69:15—22: Ex. 8 at 55:23-56:18, Ex. 10 at 96:17-24, 98:9-18.
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`Ex. 8 at 96:7—15.
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`

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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 10 of 17
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`GOOG-FLYP-000786.R.
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`Flyp deposed eight Google engineers and managers with first hand knowledge of the
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`operation of the Google Voice outgoing proxycall process between 2010 and the present. All
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`testified consistently that the outgoing proxy call process has the same process throughout
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`Ex. 9 at 19:5—24.
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`
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`Td. at 66:3-68:4: see also id. at 12:3-8, 19:7—24, 20:6—21:8, 22:7—23:15, 28:1—12, 31:5—7, 37:11-
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`38:4, 75:4—79:25, 90:12—93:15, 145:5—14, 148:8-19; Ex. 15 at 16:17—-19
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`a. 10:7-17, 17:17-19:21, 50:4-12, 51:6-24, 106:2-18: Ex. 8 at 11:4-12:8, 21:19-22:16.
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`30:23-31:14, 45:15-47:20, 50:11-21, 55:23-56:19 (describing Ex.
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`16 at GOOGL-FLYP-
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`0000264445), 58:7-25, 67:2-15; Ex. 13 at 12:4-8, 35:2-38:13, 39:8-25, 40:25-41:15, 48:17-
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`21, 52:5—10, 100:24—102:1 (discussing Ex. 14 at GOOG-FLYP-0000786.R), 107:24—109:4; Ex.
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`10 at 14:6—14, 16:6—13, 23:37, 23:20-22, 24:12—22, 28:9-17, 61:16—62:2, 62:12—14, 71:8-74:14,
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`76:19-77:3, 78:8-79:22, 82:7-84:2, 86:19-89:10, 92:3—7, Ex. 17 at 11:7—12:5, 14:14—-15:7, 64:2-
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`65:15; Ex. 18 at 17:8-10, 37:16-25, 46:25—-48:12, 161:8-15, Ex. 19 at 34:10-18, 37:20-38:6,
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`40:19-41:2nn). 31:20-33:20, 60:6-61:8.
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`Expert testimony confirms that the Google Voice outgoing proxycall process has remained
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`unchanged since 2009. Google’s invalidity and non-infringement expert, Dr. Oded Gottesman,
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`presented detailed evidence and opinionsbased on his extensive review of Google Voice source
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`code and documents dating from 2009 to present that the Google Voice outgoing proxycall process
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`invalidates the asserted claims of the Outgoing Call Patents. See, e.g., Ex. 12, Table T2 (element-
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`by-element source code analysis). In that same report, he opined that, after reviewing the source
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`code and other descriptive evidence for Google Voice from 2010 through the present, he saw no
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`difference or material change as betweenthe earlier and present operation of Google Voice for the
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`outgoing proxy call process:.
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`Ex. 12 § 229 and see §§ 191 and 193. In responding to opinions from Flyp’s expert on purported
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`infringement by Google Voice’s outgoing proxy call process, Dr. Gottesman explained, with
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`supporting evidence, that the accused outgoing proxycall process has not materially changed since
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`2010 and operates the same today as the 2010-2013 prior art system that he determined to be
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`

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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 12 of 17
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`invalidating:
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`
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`Ex: 239 52.
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`i.
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`Flyp Has Presented No Expert Opinion or Other Evidence Regarding any
`Supposed Changes to the Google Voice Outgoing Call Flow From 2009 to
`Today
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`Flyp has failed to rebut the uncontroverted fact that the accused Google Voice outgoing
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`proxy call process launched in 2009 (more than fouryears before the earliest effective filing date
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`of the Outgoing Call Patents) and has not changed since. Unlike Google, Flyp designated two
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`technical experts, one to opine on purported infringement (Dr. Scott Nettles) and one to opine on
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`issues of validity (Dr. Thomas Conte). Although Google raised its Section 273 defense in response
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`to Flyp’s interrogatories and in Dr. Gottesman’s expert report on invalidity, and made Google’s
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`source code available to Flyp during the expert discovery period, neither of Flyp’s experts
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`presented evidence or opinions on whether and/or how the Google Voice outgoingcall process has
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`materially changed before and after July 16, 2012. Ex. 20 at 14; Ex. 12 § 229.[
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`3: 6p
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`presented any opinion on whetherandhow,if at all, the Google Voice outgoing proxy call process
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`changed from 2009 to today. Google’s Section 273 defense thus stands unrebutted.
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`

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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 13 of 17
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`185:11-23
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`187:4—13, 188:15—190:25.
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`186:6-15,
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`Id. at 73:5—17; 82:4—
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`19;
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`186:6—-15; 187:4-13; 188:15—190:25; 245:11-246:25; 247:11-248:24.
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`Id. at 98:20-101:1; 104:16—111:3
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`; 187:4-13; 188:15—190:25; 243:4-17.°
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`Ex. 6 at 103:9-13; 158:2-9.
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`10
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`

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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 14 of 17
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`14, 143:16-21, 145:6-12, 221:7—222:2, 232:6-235:20, 246:17—25, 249:12-19, 251:4-252:14,
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`256:21-24, 257:23-258:21, 259:14-261:11. Thus, neither of Flyp’s experts affirmatively
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`reviewedthe source code for Google Voicefor the time period before July 2013; neither of Flyp’s
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`experts reviewed the source code for Google Voice for the time period 2013 through 2018; and
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`neither of Flyp’s experts offered any opinion as to whether or how the Google Voice outgoing
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`proxycall process changed,if at all, from 2009 until today.
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`Indeed, Flyp’s proffered experts apparently went out of their way to avoid having any
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`opinion onthis critical point. Dr. Conte carefully opined only that the pre-2013 version of Google
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`LT
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`Id. at 13:10-14:24.
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`Ex. 21 at 21:7—22:10.
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`Id. at 24:23-26:3.
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`11
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`

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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 15 of 17
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` Ex. 22 ¶¶ 313–316. Dr. Conte’s report
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`and testimony did not even attempt to identify any changes between the outgoing call flow used
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`in the 2009 version of Google Voice and the same call flow used in Google Voice in the 14 years
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`that followed—because there were no material changes.
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`Of course, if Dr. Conte is right that Google Voice’s pre-2013 outgoing call flow does not,
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`and cannot, practice the claim elements of the Outgoing Call Patents, then there can be no
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`infringement under Section 271(a) because it is established that the same outgoing call flow is
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`used today. If by contrast Dr. Nettles is right that the Google Voice outgoing call flow does practice
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`the claim elements, then the same is true of pre-2013 prior art Google Voice and Google cannot
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`infringe under Section 273 Either way, Google is now entitled to summary judgment of non-
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`infringement. Given the evidentiary record and the positions of Flyp’s experts, no reasonable jury
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`could find that Google infringes the Asserted Claims.
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`III. CONCLUSION
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`For all the foregoing reasons, Google respectfully requests that the Court grant this motion
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`for summary judgment of non-infringement.
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`12
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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 16 of 17
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`DATED: November 14, 2023
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`
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`
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`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
`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
`
`13
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`Case 6:22-cv-00031-ADA Document 170 Filed 11/21/23 Page 17 of 17
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`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
`
`
`
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`CERTIFICATE OF SERVICE
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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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`14
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