Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 1 of 7
`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE WESTERN DISTRICT OF TEXAS
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`WACODIVISION
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`FLYPSI, INC. (D/B/A FLYP),
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`Plaintiff,
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`vs.
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`GOOGLE LLC,
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`Defendant.
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`Civil Action No. 6:22-cv-31-ADA
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`JURY TRIAL DEMANDED
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`es
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`PLAINTIFF FLYP’S REPLY IN SUPPORT OF ITS MOTION
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`FOR PARTIAL SUMMARY JUDGMENT CONCERNING
`GOOGLE’S AFFIRMATIVE DEFENSES (ECF NO. 149)
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`

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`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 2 of 7
`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 2 of 7
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`I.
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`ARGUMENT
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`A.
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`Google Does Not Have a Valid Prosecution History Estoppel Defense.
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`Google misstates the prosecution history for the ’770 patent in its Motion. Whether a
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`“bridge telephone number” could encompass a SIP URI was nevera topic of discussion during
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`prosecution, and Flyp never amended anyclaims to distinguish the bridge telephone numberin the
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`claims from SIP URIs in 2008/0008105 (“Black”). This is evident from the examiner’s rejection,
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`as set forth below:
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`Claims 14-17, 27, and 28 are rejected under 35 U.S.C. 102(a)(1) as
`being anticipated by Black et al. (US 2008/0008105).
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`Regarding claim 14, Black teaches a method of providing
`telephone service, comprising:
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`associating a telephone handset(telephone) with primary and
`secondary telephone numbers(first and secondalias telephone
`numbers) in a database (telephoneis associated with alias
`telephone numbersin the alias service provider) [paragraphs 52-
`53];
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`receiving, from the telephone handsetvia a data channel, digital
`information indicating primary call processing rules(filters/rules
`for a first alias telephone number) for handling calls to the primary
`telephone number(filters are received for handling incomingcalls
`to a first alias telephone number) [paragraphs 61, 64];
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`storing the primary call processingrules digitally (filters/rules are
`stored for the first alias telephone numberinafilter database)
`[paragraph 64];
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`receiving, from the telephone handsetvia the data channel, digital
`information indicating secondary call processingrules(filters/rules
`for a second alias telephone number) for handling calls to the
`secondary telephone number(filters/rules are received for handling
`incomingcallsto a first alias telephone number) [paragraphs61,
`64];
`
`storing the secondary call processing rulesdigitally (filters/rules
`are stored for the second alias telephone numberin a filter
`database) [paragraph 64];
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`

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`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 3 of 7
`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 3 of 7
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`receiving a call request to the secondary telephone number(alias
`service provider may receive call to a second alias telephone
`number) [paragraph 54];
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`transmitting pre-call information (notification) to the telephone
`handsetvia the data channel responsiveto receipt of the call
`request, wherein said pre-call information is based on the
`secondary call processing rules (telephone receives notification
`based onfilters/rules for processing inboundcalls) [paragraphs 58,
`61];
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`responsive to the pre-call information, receiving information
`indicative of a user input to the telephone handset over the data
`channel (user may take the inboundcall) [paragraph 58]; and
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`processing the call based on the stored secondary call processing
`tules and user input to the telephone handset, wherein said
`processing includes an option of connecting the call over a voice
`channel (inboundcall is processed accordingto filters/rules and
`user input which mayresult in taking the call which means
`connecting the call over a voice channel) [paragraphs 58, 61].
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`(ECF No. 146-3 at 7-8 (emphasis added).) There is no mention in this rejection of SIP URIs, or of
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`any purported distinction between telephone numbers and addresses, as Google contends. Rather,
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`as Google admits, the alias addresses in Black (which the examiner applied above as the primary
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`and secondary telephone numbers) were addresses, not 10-digit PSTN telephone numbers. (See
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`ECF No. 145at 7 (“Black taught the use of “alias numbers’ or an “alias address,” as opposed to a
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`telephone number, associated with a subscriber telephone.”).) The examiner thus well understood
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`the term “telephone number”to be broader than a U.S. ten-digit number, as Google argues now.
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`In response, Flyp amended the claims to clarify, among other things, that its invention
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`includes transmitting pre-call information overthe at least one data channelthat includes the bridge
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`telephone numberandthe handset-associated telephone number, such that the handset can display
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`the handset-associated telephone numberto a user. (See ECF No. 146-3 at 17.) Nowhere in this
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`amendmentor the remarks accompanyingit did Flyp dispute the examiner’s application ofBlack’s
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`addresses as telephone numbers. Nor did Flyp’s amendment limit bridge telephone numbers to
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`

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`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 4 of 7
`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 4 of 7
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`exclude addresseslike those used in Black, such asbystating “a 10-digit, U.S. telephone number,”
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`as Google now proposes. Flyp’s remarks instead simply confirmed that its amendment was
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`directed to differentiating Black based on how the relevant telephone numbers are used (e.g.,
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`transmitting pre-call information to the handset that includes the bridge telephone numberand the
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`handset-associated number), without distinguishing the telephone numbers in the claims in any
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`way from the alias addresses that the examineridentified as telephone numbers in Black. (ECF
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`No. 146-3 at 22-23.) Absent in Flyp’s remarks is any suggestion that Flyp’s amendment was
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`narrowing the meaning of telephone numberin a way that would exclude the addresses in Black.
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`Moreover, Google’s extensive citations to Black’s disclosures (most of which were never
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`substantively discussed during prosecution) are contrary to its position. Google admits that the
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`alias addresses in Black can be SIP URIs: “Black taught that a subscriber callee device address
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`could be any kindofidentifier, including a SIP URIEO
`© CF 0.45 21 7) As
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`explained above, the examiner applied Black’s addresses (e.g., SIP URIs) as telephone numbers
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`in forming the relevant rejection. (ECF No. 146-3 at 7-8.) Flyp never challenged that application
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`of addresses as telephone numbers. It is accordingly evident from the prosecution history and
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`Black that both the examiner and patentee understand the term “telephone number” to be broader
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`than Google now suggests, including broad enough to encompassthe alias addresses (e.g., SIP
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`URIs) in Black. Thus, there is no viable prosecution history estoppel argument based on “bridge
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`telephone number.”
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`B.
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`Google Does Not Have a Valid Prosecution Laches Defense.
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`Google’s prosecution laches defense is only supported by allegations and conclusory
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`statements. Google only outlines that Flyp followed routine continuation practice. Google has
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`presented no evidence that Flyp “refil[ed] an application solely containing previously allowed
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`

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`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 5 of 7
`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 5 of 7
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`claims for the business purpose of delaying their issuance.” Symbol Techs., Inc. v. Lemelson Med.,
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`Educ. & Rsch. Found., LP, 422 F.3d 1378, 1385 (Fed. Cir. 2005) (“Symbol IT’). The present
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`proceeding is similar to Seagen Inc. v. Daiichi Sankyo Co., No. 2:20-CV-00337-JRG, 2022 WL
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`2789901 (E.D. Tex. July 15, 2022). In Seagen, the court differentiates Hyatt v. Hirshfeld, 998 F.3d
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`1347, 1360 (Fed. Cir. 2021), which Google cites as support. Jd. at *6. For example, comparing
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`Seagen to Hyatt,
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`the Court determined that “Seagen did not bulk-file hundreds of patent
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`applications with hundreds of thousands of claims to unduly increase the administrative burden on
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`the PTO in an effort to artificially inflate the life of its patents.” Jd. (citation omitted). The Court
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`also noted that “DSC doesnot point to any ‘unexplained gap’ in the prosecution history of the ’039
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`Patent family because Seagen continuously filed patent applications between 2004 to the present
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`day—.e., Seagen wasnot‘sitting on its hands.’” Jd. Lastly, the Court noted that “Seagen sought,
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`and was granted, expedited prosecution for the ’309 Patent, which resulted in issuance just over a
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`year after Seagen filed its application.” Jd. Similarly, the evidence Google cites shows Flyp was
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`diligent in patenting its inventions, did not bulk-file hundreds of patents, and wasnot“sitting on
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`its hands.” Additionally, excluding the ’770 Patent, each asserted patent issued around a year after
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`they were filed. This was due, in part, to Flyp electing “Track One”prioritized examination for
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`multiple patents as shown in Google’s own attachments. (Resp. Ex. 12 at 2, and Ex. 13 at 2). Thus,
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`Google has presented no evidence that Flyp’s delay in prosecution was unreasonable and
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`inexcusable.
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`II.
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`CONCLUSION
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`For these reasons and on the basis of foregoing authorities, Flyp respectfully requests that
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`the Court enter an Order granting Flyp’s Motion for Partial Summary Judgment of Google’s
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`Affirmative Defenses on all grounds.
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`

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`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 6 of 7
`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 6 of 7
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`DATED:December5, 2023
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`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
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`

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`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 7 of 7
`Case 6:22-cv-00031-ADA Document 213 Filed 12/12/23 Page 7 of 7
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`CERTIFICATE OF SERVICE
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`I hereby certify that on December 5, 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
`
`