Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 1 of 11
`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 1 of 11
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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
`FOR PARTIAL SUMMARY JUDGMENT CONCERNING BURNER,
`OBVIOUSNESS, AND GOOGLE’S35 U.S.C. § 112 ARGUMENTS(ECF NO. 151)
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`

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`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 2 of 11
`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 2 of 11
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`In its Response (ECF No. 183), Google fails to rebut the arguments contained in Flyp’s
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`Motion on the topics of obviousness and written description and enablement. The new arguments
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`Google presents also fail as a matter of law for the reasons discussed below. Because no genuine
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`dispute of material fact exists on whether there was sufficient motivation to combine, motivation
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`to modify Google Voice, or whether the Asserted Patents contain adequate written description and
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`enablement, Flyp is entitled to summary judgmentas a matter of law.
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`L
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`ARGUMENT
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`A.
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`Google Provides No Legally Sufficient Evidence of Motivation to Combine
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`Google has offered no evidence that there existed a motivation to combine any ofits
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`proposed references with legacy Google Voice.’ In its Response, Googleonlyrestates conclusory
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`arguments from Dr. Gottesman’s report and boilerplate language from its invalidity contentions
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`while ignoring Flyp’s arguments and on-point, controlling Federal Circuit law. (Resp. at 1-4.)
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`Each of the four arguments Google makes fails and Flyp is entitled to summary judgment on this
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`matter.
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`First, in its Response, Google argues that “Dr. Gottesman provided detailed opinions on
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`the motivation to combine GV with other prior references.” (/d. at 2.) But the only opinions
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`Google cites to are Dr. Gottesman’s ipse dixit argumentthat “the natural evolution of systemsis
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`to integrate more and more networks,in order to offer more versatile features and seamless overall
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`internetwork solutions, especially when there are already pre-existing standards and competitive
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`markets.” (/d. (quoting Res., Ex. 2 at §§ 200, 205).) But there is nothing “detailed”in this analysis.
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`! Flyp also believes, and detailed in its Motion, that Google has likewise failed to show a
`motivation to combine any proposed reference with Burner, or to modify Burner in a way that
`would render the asserted claims obvious. See, e.g., ECF No. 151 at 8-10. However, on the
`understanding that Google is no longer relying upon Burner, Flyp does not address Burnerin this
`Reply.
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`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 3 of 11
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`Google does not explain why a skilled artisan would be motivated to combine any particular
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`reference with legacy Google Voice to achieve the claimed invention. See Eli Lilly and Co.v.
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`Zenith Goldline Pharms., Inc., 471 F.3d 1369, 1379, (Fed. Cir. 2006) (“the law requires a
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`motivation to select the references and to combine them in the particular claimed manner to reach
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`the claimed invention.”). Further, as explained in Flyp’s Motion, accepting this standard would
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`swallow the entire motivation to combine analysis for telephony systems. If it were true that the
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`“natural evolution” of telephony systems is to include more systems and more features, then the
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`logical conclusion of Google’s argumentis that there is a/ways a motivation to combine. Google
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`cites no authority for this proposition, nor explains how this could not be the case in its Response.
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`Second, Google doubles down and argues that “Flyp also ignores that Dr. Gottesman
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`farther relies on the fcta
`|| before the Asserted Patents effective filing date.” (Resp. at 2.) This again misunderstands
`the relevant standard. Evenifit were true thatBD
`| any alleged motivation to combine legacy Google Voice with|| is not simply
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`transferable to all other pieces of alleged prior art. Each piece of alleged prior art to be combined
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`with legacy Google Voice has different technical characteristics and is directed to different
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`technological aims. Google then argues that “Flyp’s request for summary judgment therefore
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`would require the Court to find there was no motivation[nn
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`even in the face of evidence that the combination wasactually made.” (/d.) Again, this misses the
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`mark. It is Google’s burden to prove that a POSITA would be motivated to combine a specific
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`reference with Google Voice, and it is not enough to allege that in general a Google Voicdil
`|| combination could be made. If there is a combination that would render obvious the
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`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 4 of 11
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`Asserted Claims, Google has not identified why a POSITA would choose and make that
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`combination.
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`Third, Google then relies on boilerplate language included in its invalidity contentions.
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`Google argues that such broad and conclusory language as stating that Google “may rely upon
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`documents, products, testimony, and other evidenceto establish bases for, and motivations to make
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`combinationsof, certain cited references that render the Asserted Claims obvious.” (/d. at 2.) But
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`language about what Google “may rely upon”is different from actual evidence. Google argues
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`that its contentions “list the references that underly its obviousness defenses,” note that each of the
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`references “would have been further enhanced and augmented bythe otherprior art references and
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`systems,” and concludethat the alleged priorart references “disclose similar steps and components
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`that are highly compatible with each other [and therefore] it would be natural for one of ordinary
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`skill in the art to [combine them].” (/d.) But this cannot be enough to fulfill the obviousness test
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`set forth in KSR. While Googleis correct that “a patent’s subject matter can be proven obvious by
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`showing that there was a known problem with an obvious solution encompassed by the patent’s
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`claims,” (KSR Int’] Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007)), that does not relieve Google of
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`its burden to identify “whether there is a reason, suggestion, or motivation in the prior art that
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`would lead one of ordinary skill in the art to combine the references, and that would also suggest
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`a reasonable likelihood of success” (Forest Laby’s, LLC v. Sigmapharm Laby’s, LLC, 918 F.3d
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`928, 934 (Fed. Cir. 2019)). There is no genuine dispute of material fact on this issue because
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`Google has presented no evidence that a POSITA would be motivated to combine any particular
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`set of references beyond arguing that it would “be natural.”
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`Finally, Google has failed to explain how a POSITA would havein fact been motivated to
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`combine legacy Google Voice with Backhaus when Backhaus would not have actually been
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`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 5 of 11
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`available to a POSITA on the July 17, 2013 priority date because it was unavailable to a POSITA
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`until its publication date of November2013.
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`For each of these reasons, there is no genuine dispute of material fact that a motivation to
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`combine any reference with legacy Google Voice existed. Consequently, Flyp is entitled to
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`summary judgmentonthis issue.
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`Finally, Google misunderstands Flyp’s argument on the outdated state of Google Voice at
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`the time of the priority dates of the Asserted Patents. It argues that “the modernity or robustness
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`ofa particular implementation of such art when determining obviousness”is no factor,
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`an engineer at Google who worked on Google Voice and one of Google’s corporate
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`representatives,testified that there was a needto ‘
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`v
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`EN” (Mot. Ex. 10 at 34:21-36:3,)
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`B.
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`Flyp is Entitled to Summary Judgment that a POSITA Would Not Have Been
`Motivated to Modify Google Voice
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`Flyp is entitled to summary judgment that a POSITA would not have been motivated to
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`modify legacy Google Voice in a way that would have rendered obvious the Asserted Claims for
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`many of the same reasons discussed above. Google’s argument to the contrary relies on the same
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`conclusory opinions contained in Dr. Gottesman’s report and a mischaracterization of the case law.
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`—_
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`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 6 of 11
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`So there is no genuine dispute of material fact and Flyp is entitled to summary judgmenton this
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`issue.
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`First, Google attempts to rehabilitate Dr. Gottesman’s report by comparing the opinions he
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`proffered with those of an expert in SJBIA Neurosciences, Inc. v. Cadus Pharm. Corp. 225 F.3d
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`1349 (Fed. Cir. 2000).” In SIBIA, the Federal Circuit found that sufficient motivation to modify a
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`single reference existed when teachings ofthe prior art “filtered through the knowledge of one
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`skilled in the art and the nature ofthe problemto be solved, provided a suggestion and motivation
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`to modify” that single reference. Jd. at 58 (emphasis added). The Federal Circuit characterized
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`these other pieces of prior art the POSITA relied on as addressing “the identical problems that
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`were being addressed by the” asserted patent and contained “express teachings” to modify the
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`single reference. Jd. at 1357-58. Google attempts to argue that its expert opined similarly, and that
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`references such as Backhaus would have taught an expert to modify Google Voice.
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`But the portion of the Backhaus reference Google says is analogous to the assisting
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`references in SJBIA only describescall processing in general. The paragraph evenstarts by stating
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`that “/i/n general, any call directed to either of the primary phone number or the SLS phone
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`numberare transmitted .
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`.
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`. by way of communication network 125.” (Mot. Ex. 7). Paragraph 32
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`of Backhaus references SIP as a “protocol” that is “understood by those of ordinary skill in the
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`a :)
`In reference to this disclosure in Backhaus, Dr. Gottesman opines without evidencethati
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`? Google points out that S/BIA does not explicitly address the “common sense” ofa POSITA. This
`appears to be a mis-cite in Flyp’s Motion. Thecorrect citation is Arendi S.A.R.L. v. Apple, Inc.,
`832 F.3d 1355, 1366-67 (Fed. Cir. 2016) (reversing Board’s finding of unpatentability “[b]ecause
`the Board’s presumption that adding a search for phone numbers to Pandit would be ‘common
`sense’ was conclusory and unsupported by substantial evidence’).
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`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 7 of 11
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`P25:219196) Bur Dr. Gottesman and
`Google’s analysis ends there. Thereis no identification ofee
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`a. Instead, Google again falls back on Gottesman’s conclusory opinion that it is
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`simply “the natural evolution of systems” to integrate additional features. For the same reasons
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`described above, this analysis-free opinion fails as a matter of law.
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`Consequently, Flyp is entitled to summary judgmentin its favor on this issue.
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`Cc.
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`Flyp is Entitled to Summary Judgment that the Asserted Patents Possess
`Adequate Written Description and Enablement
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`Finally, Flyp is entitled to summary judgment that the Asserted Patents possess adequate
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`written description and enablement becausethe specification reasonably conveys“to those skilled
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`in the art that the inventor had possession of the claimed invention as of the filing date.” Ariad
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`Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010).?
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`First, Google ignoresthat its own expert admitted that a POSITA would have been familiar
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`with VoIP at the time the Asserted Patents were filed. For example, in his deposition, Dr.
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`Gottesmantestified as follows:
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`Q. Wediscussed quite a bit today VoIP, and I believe I understand
`youropinion to be that well before the earliest priority dates of these
`patents VOIP waswell known in theart; is that fair?
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`A. Yes.
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`(Mot. at 12 (citing Ex. 11 at 497:5-10).)
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`3 Google has withdrawn its written description arguments for “primary telephone number” and
`“secondary telephone number.” ECF No. 183 at 1 n.1,6n. 4. Consequently, Flyp does not address
`them here.
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`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 8 of 11
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`The specifications of the Asserted Patents likewise makeclear that some embodiments of
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`the claimed invention can use non-conventional voice channels, such as IP channels. For example,
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`the specification of the ’770 Patentstates:
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`in connection with the described
`should be noted that
`It
`embodiments, reference is madeto a data channel. A preferred data
`channel may be an Internet Protocol (IP) channel, which is not a
`conventional telephone voice channel. However, other data, non-
`conventional voice, channels over which information may be
`transmitted between a telephone handset and a server may be used
`in alternative embodiments of the invention.
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`(°770 Patent at 4:5-12.)
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`Dr. Gottesman admitted that a POSITA would have known about VoIP asof the priority
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`date, and the specifications of the Asserted Patents make clear that other voice channels, such as
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`VoIP, known to a POSITA could be used. Therefore, there can be no genuine dispute of material
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`fact that the specification reasonably conveys to those skilled in the art that the inventors of the
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`Asserted Patents had possession of the claimed VoIP functionality as of the priority date.
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`Google’s arguments on “voice channel” and “data channel” fail for the same reason. Dr.
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`Gottesman admitted in his deposition that both a voice channel and a data channel may be
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`transmitted over IP. (Mot. at 13 (citing Ex. 11 at 434:19-435:9).) Google argues that this does not
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`contradict his opinion that the Asserted Patents do not possess adequate written description and
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`enablement “as interpreted by Flyp” (Resp. at 7 (emphasis removed)), in part because “Dr.
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`Gottesman opined in his report and maintained at his deposition that the Asserted Patents’
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`specification referred to data channels as IP channels and voice channels as conventional voice
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`related channels between a switch, the PSTN, and the handset.” (/d. (emphasis added).) If this is
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`his proper opinion, then it fails as a matter of law becausethe specifications of the Asserted Patents
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`also describe “non-conventional” data and voice channels. (See, e.g., 770 Patent at 4:5-12.) Even
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`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 9 of 11
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`if Dr. Gottesman’s opinion is correct, Google has failed to present any evidence on the
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`specification’s written description and enablementof non-conventional voice and data channels.
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`Finally, Google argues that the Asserted Patents contain inadequate written description and
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`enablement for the terms ““switch’ and ‘server’ to the extent Flyp reads the terms to cover VoIP
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`calling.” (Resp. at 8.) As shown above, however, VoIP wassufficiently described and enabled by
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`the specifications of the Asserted Patents. Further, Dr. Gottesman admitted in his deposition that
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`a POSITA would have known how the terms “switch” and “server” would relate to VoIP at the
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`time of invention. (See Mot. at 13 (citing Ex. 11 at 283:22-25, 286:15-17).) Therefore, there can
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`be no genuine dispute of material fact that the specification reasonably conveysto those skilled in
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`the art that the inventors of the Asserted Patents had possession of a “server” and a “switch”asit
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`related to VoIP as ofthe priority date.
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`Consequently, Flyp is entitled to summary judgment regarding Google’s remaining written
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`description and enablement arguments.
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`Il.
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`CONCLUSION
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`Because no genuine issue of material fact exists regarding Google’s arguments on its
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`motivation to combine references, motivation to modify Google Voice, or its written description
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`and enablement arguments, Flyp is entitled to summary judgment on these issues.
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`

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`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 10 of 11
`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 10 of 11
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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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`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 11 of 11
`Case 6:22-cv-00031-ADA Document 215 Filed 12/12/23 Page 11 of 11
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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
`
`10
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`