Case 6:22-cv-00031-ADA Document 218 Filed 12/12/23 Page 1 of 12
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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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`DEFENDANT GOOGLE LLC’S CORRECTED REPLY IN SUPPORT OF ITS MOTION
`FOR SUMMARY JUDGMENT OF NONINFRINGEMENT OF U.S. PATENT NOS.
`9,667,770 AND 10,051,105
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`Case 6:22-cv-00031-ADA Document 218 Filed 12/12/23 Page 2 of 12
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`TABLE OF CONTENTS
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`Page(s)
`INTRODUCTION ............................................................................................................. 1
`GOOGLE IS ENTITLED TO SUMMARY JUDGMENT BECAUSE
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`DOES
`NOT USE A “BRIDGE TELEPHONE NUMBER” ......................................................... 2
`A.
`Google’s Motion Properly Applies the Plain and Ordinary Meaning of
`“Bridge Telephone Number” ................................................................................. 2
`It Is Undisputed that the “Bridge Telephone Number” Limitations Were
`Added to the Claims to Overcome the Examiner’s Rejection ............................... 4
`There Is No Genuine Factual Dispute Material to Literal Infringement of
`the “Bridge Telephone Number” Limitations ........................................................ 6
`Flyp Cannot Resort to Doctrine of Equivalents ..................................................... 6
`D.
`CONCLUSION .................................................................................................................. 7
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`B.
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`C.
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`I.
`II.
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`III.
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`-i-
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`Case 6:22-cv-00031-ADA Document 218 Filed 12/12/23 Page 3 of 12
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Advanced Steel Recovery, LLC v. X-Body Equip., Inc.,
`808 F.3d 1313 (Fed. Cir. 2015)..................................................................................................7
`
`Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co.,
`535 U.S. 722 (2002) ...................................................................................................................7
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`Lighthouse Consulting Grp. v. BB&T Corp.,
`476 F. Supp. 3d 532 (W.D. Tex. 2020) ......................................................................................7
`
`VLSI Tech. LLC v. Intel Corp.,
`No. 2022-1906, 2023 WL 8360083 (Fed. Cir. Dec. 4, 2023) ....................................................7
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`-ii-
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`Case 6:22-cv-00031-ADA Document 218 Filed 12/12/23 Page 4 of 12
`Case 6:22-cv-00031-ADA Document 218 Filed 12/12/23 Page 4 of 12
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`L
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`INTRODUCTION
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`Google’s motion for summary judgment of non-infringement of the Incoming Call Patents
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`(Dkt. 145) presents a clear case for non-infringement. The asserted claims expressly require that a
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`“bridge telephone number”be sent to a handset and used to connect the handset to an incoming
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`call. It is undisputed that a “telephone number,”as used in the asserted patents and as conceded by
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`Flyp, hasits plain and ordinarycnn,
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`Dkt. 172-2 § 349 (quoting GOOG-FLYP-00003214). No reasonable juror could understand a
`Po to be or include a bridge telephone number, ifthat term is truly givenits
`plain and ordinary meaning. Indeed, Flyp’s own infringement expert, Dr. Nettles, admits that [ill
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`PE 2c. at 12.
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`Flyp’s Opposition raises a numberofissuesto distract the Court from the straight-forward,
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`fundamental point raised by Google’s Motion—thatPe
`P simply does not transmit or use a bridge telephone number, as required by all the
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`asserted claims. Ruling on this basis requires no additional claim construction because it is
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`undisputed and already confirmed that “telephone number,” as used in the asserted claims,hasits
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`Case 6:22-cv-00031-ADA Document 218 Filed 12/12/23 Page 5 of 12
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`ordinary meaning. Any reference to the prosecution history merely confirms that the terms
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`“telephone number”and “bridge telephone number”are used in the Incoming Call Patents in their
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`plain and ordinary way.Pe
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`Flyp’s Opposition suggests that a “telephone number” doesn’t really mean a telephone
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`number, as any reasonable juror would understand that term, and instead meansP|
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`I 1228.potence specifically added
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`the “bridge telephone number”limitations during prosecution to overcomepriorart that expressly
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`recognized thatP| are “other types of addresses” and not telephone numbers. Dkt. 145 at
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`7. Had Flyp wanted to construe “bridge telephone number” to mean something other than an
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`ordinary telephonebe
`a it could have proposed such a construction. It did not. Instead, Flyp and its experts
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`consistently contendedthat “telephone number”has its plain meaning. Dkt. 145 at 5, n.6.
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`Resolving Google’s motion simply requires examining[ia
`a. applying the ordinary meaning of “telephone number,” and recognizing thatp
`I is»2° tclepnone number”
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`Summary judgment of non-infringementis warranted.
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`Il.
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`GOOGLEIS ENTITLED TO SUMMARY JUDGMENT BECAUSE
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`DOES NOT
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`USE A “BRIDGE TELEPHONE NUMBER”
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`A.
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`Google’s Motion Properly Applies the Plain and Ordinary Meaning of
`“Bridge Telephone Number”
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`Google’s Motion does not propose untimely claim construction, as Flyp suggests. Dkt. 172
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`at S—7. The motion applies the plain and ordinary meaning ofthe terms “telephone number” and
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`“bridge telephone number.” Dkt. 145 at 5—6. There is no dispute that these terms have their
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`Case 6:22-cv-00031-ADA Document 218 Filed 12/12/23 Page 6 of 12
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`ordinary meanings. Flyp took that position during claim construction,ad
`Dkt. 145, at 5, n. 7. Dr. Nettles’ affirmation that ________
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`Po (Dkt. 145 at 5, n. 6) was not an answer to a “gotcha question” that fails to
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`capture the understanding of a person ofskill in the art. Dkt. 172 at 8. It aligns with how any person
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`(skilled in the art or otherwise) would understand the term “telephone number.” Ex. 17 § 68; Dkt.
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`152-3; Ex. 18 at 232:15—24, 233:13—234:2, 236:22—237:22, 242:11—23, 243:15—244:10.
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`Recognizing:
`ee. and not any ordinary telephone number, Flyp now suggests that
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`“telephone number” means something more than a typical ten-digit dialable number(in the US),
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`it meansee Dkt. 172 at 8. No matter how much Flyp’s
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`Opposition tries to suggest that the meaning of “telephone number”to a person of skill in the art
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`reading the Incoming Call Patents includesPe
`ee. this suggestion clearly requires a definition
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`of “telephone number”that differs from that term’s plain and ordinary meaning.! Yet, Flyp did not
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`offer such a contrary definition during claim construction, and instead consistently agreed until
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`now that “telephone number”did not have any special or unusual meaning as used in the asserted
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`claims. Dkt. 145 at 5, n.7; Dkt. 172 at 5, 8, 11. Flyp, not Google, seeks untimely construction.
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`Google’s expert did not testify that the term “telephone number” can mean any unique
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`identifier for a destination. Dkt. 172 at 9. Dr. Gottesmantestified thatPo
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`SS172 00
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`1 Tfyour neighborasks your“telephone number,” youdo not think to provide aa
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`Case 6:22-cv-00031-ADA Document 218 Filed 12/12/23 Page 7 of 12
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` In any event, the specification’s discussion of an
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`“ESN,” and whatever was meant to be referred to by that term with reference to a primary
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`telephone number has nothing to do with the relevant, and explicit, “bridge telephone number”
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`claim element, which the parties and all experts agree has its plain and ordinary meaning. Nothing
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`in the specification or the claims suggests that an ESN or
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` can be a bridge telephone number.
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`B.
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`It Is Undisputed that the “Bridge Telephone Number” Limitations Were
`Added to the Claims to Overcome the Examiner’s Rejection
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`Flyp does not deny that it added the term “bridge telephone number” to the asserted claims
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`of the ’770 patent to overcome the Examiner’s rejection of pending claims that did not originally
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`include that term. Dkt. 145 at 8–9. Flyp does not deny that it added “bridge telephone number”
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`three times in that claim amendment: “the switch being associated with a bridge telephone
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`number,” “including the bridge telephone number,” and “using the bridge telephone number.” Id.
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`Flyp does not deny that the amendment was made in response to the Examiner’s rejection based
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`on Black. Dkt. 172 at 4. Flyp does not deny that its amendment was meant to differentiate Black’s
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`teachings from the amended claims. Dkt. 172 at 3. Flyp does not deny that Black expressly taught
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`that a telephone number was distinguished from “other types of addresses, such as a
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`Dkt. 145 at 7. The prosecution history confirms that the claim term “bridge telephone number”
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`was used in accord with its ordinary meaning, which is different from a
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` The Black
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`reference makes explicit the understanding in the art at the time of the alleged invention that a
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` is one of the “other types of addresses,” different than a telephone number. Dkt. 145 at 7.
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`Flyp argues that when rejecting the pending claims (that did not include “bridge telephone
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`number”) as anticipated by Black, the Examiner “understood the term ‘telephone number’ to be
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`broader than a U.S. ten-digit number.” Dkt. 172 at 3. Flyp further argues that Flyp’s remarks
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`accompanying the claim amendments that included “bridge telephone number” responsive to the
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`Case 6:22-cv-00031-ADA Document 218 Filed 12/12/23 Page 8 of 12
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`rejection over Black merely “confirmed that the amendment was directed to differentiating Black
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`[] on how the relevant telephone numbers are used . . . without distinguishing the telephone
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`numbers in the claims in any way from the ‘alias addresses’ that the Examiner [supposedly]
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`identified as telephone numbers in Black.” Dkt. 172 at 3–4. Here, again, is an attempt by Flyp to
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`deflect the simple question of non-infringement by creating complexities where there are none.
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`Flyp’s remarks to the Examiner plainly show that the bridge telephone number limitation was
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`added to the pending claims because Black did not a teach “bridge telephone number” (Dkt. 145
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`at 8–9, Dkt. 172 at 4), and Black undeniably taught that telephone numbers were understood to be
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`different types of addresses from
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` (“that the addresses of the communications devices are
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`not limited to telephone numbers, but can include other types of addresses, such as, for example,
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`” Dkt. 145 at 7 (emphasis
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`added). It is irrelevant that the Examiner did not point to this particular paragraph of Black’s
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`teaching in the rejection. Flyp distinguished that teaching (“Black fails to disclose or suggest”)
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`when seeking allowance of the amended claim that added “bridge telephone number” as a
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`limitation three times to the claim. Id. at 8–9.
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`Though Flyp argues that there was no mention of
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` or any distinction between
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`telephone numbers and addresses in the Examiner’s initial rejection of the pending claim over
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`Black, the Examiner cited paragraphs 58 and 61 of the Black reference when rejecting the
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`“transmitting” and “processing” terms, which were thereafter amended by Flyp to include the three
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`recitations of “bridge telephone number.” Paragraph 58 of Black states that “the alias service
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`provider 180 provides a notification to the telephone (such as voice or text message) that provides
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`an indication regarding which alias number the inbound call is associated with.” Dkt. 145 at 7;
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`Dkt. 146-5 (“Black”) ¶ 58. Flyp amended claim 1 to recite a “bridge telephone number,” rather
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`than a “bridge address” or “bridge number,” to overcome Black’s teaching of pre-call information
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`in the form of an alias address using
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` Flyp’s amendment adding bridge telephone number
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`thus distinguished a telephone number from a mere “alias number.” In short, the prosecution
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`history confirms that “bridge telephone number” was added to overcome a prior art rejection, and
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`that the term was used in accord with its plain meaning, which does not include a
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`C.
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`There Is No Genuine Factual Dispute Material to Literal Infringement of the
`“Bridge Telephone Number” Limitations
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`Ultimately, Flyp raises no factual dispute material to whether
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` includes transmission and use of the required “bridge telephone
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`number.”
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` And Flyp
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`and its expert identify
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` as allegedly containing the bridge
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`telephone number. Supra, Introduction; Dkt. 145 at 11.
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` Dkt. 172 at 12.
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` Id. Flyp’s Opposition argues that because Dr. Nettles opined that
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` Id. That is not a factual dispute, it is
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`an untimely attempt to give bridge telephone number something other than its ordinary meaning.
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`D.
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`Flyp Cannot Resort to Doctrine of Equivalents
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`The amendment to the claims that added the “bridge telephone number” limitations was
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`directly related to the Examiner’s rejection based on Black, which expressly distinguished
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`telephone numbers from “other types of addresses, such as a
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` See supra § II.B. The
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`-6-
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`Case 6:22-cv-00031-ADA Document 218 Filed 12/12/23 Page 10 of 12
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`claims that Flyp amended to add the “bridge telephone number” elements had been rejected based
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`on Black’s teaching in paragraph 58 of “alias numbers.” Id. Flyp suggests that the applicant and
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`the Examiner both understood that “alias numbers” in Black encompassed telephone numbers, i.e.,
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`that an “alias number” is a broader term than a “telephone number” and a telephone number falls
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`within the meaning of an alias number. Dkt 172 at 3, 13–14. This conjecture is not supported by
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`the record of the rejection, amendment, and related arguments. And it is irrelevant anyway because
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`the amendment adding the “bridge telephone number” limitations to the claims was made to
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`overcome the rejection based on Black. This creates the legal presumption that prosecution history
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`estoppel applies. Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 740 (2002);
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`Lighthouse Consulting Grp. v. BB&T Corp., 476 F. Supp. 3d 532, 537–38 (W.D. Tex. 2020). Flyp
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`has not rebutted, and cannot rebut, the presumption.
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`Furthermore, Flyp did not respond in any way to Google’s showing that even if Flyp could
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`pursue a DOE theory, Flyp failed to present evidence that
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` is not done in the same way, and does not achieve the same result, as using the
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`required bridge telephone number. Dkt. 145 at 15–17. Summary judgment of noninfringement is
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`thus warranted even if Flyp could invoke the doctrine of equivalents. See Advanced Steel Recovery,
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`LLC v. X-Body Equip., Inc., 808 F.3d 1313, 1320 (Fed. Cir. 2015) (dismissing DOE claim on
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`summary judgment because Plaintiff failed to satisfy the “way” portion of the function-way-result
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`test); VLSI Tech. LLC v. Intel Corp., No. 2022-1906, 2023 WL 8360083, at *7 (Fed. Cir. Dec. 4,
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`2023) (finding expert’s opinion insufficient as containing “no meaningful explanation of why the
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`way in which the request is made is substantially the same as what the claim prescribes.”).
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`III. CONCLUSION
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`The Court should grant Google’s motion for partial summary judgment of noninfringement
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`of the Incoming Call Patents.
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`-7-
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`Case 6:22-cv-00031-ADA Document 218 Filed 12/12/23 Page 11 of 12
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`DATED: December 6, 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
`Ariell N. Bratton (Pro Hac Vice)
`ariellbratton@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
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`Dan L. Bagatell (Pro Hac Vice)
`dbagatell@perkinscoie.com
`PERKINS COIE LLP
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`-8-
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`Case 6:22-cv-00031-ADA Document 218 Filed 12/12/23 Page 12 of 12
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`3 Weatherby Road
`Hanover, NH 03755
`Telephone: (602) 351-8250
`Facsimile: (602) 648-7150
`
`Andrew T. Dufresne (Pro Hac Vice)
`adufresne@perkinscoie.com
`PERKINS COIE LLP
`33 E. Main St. Ste. 201
`Madison, WI 53703
`Telephone: (608) 663-7460
`Facsimile: (608) 663-7499
`
`Paige Arnette Amstutz
`State Bar No.: 00796136
`pamstutz@scottdoug.com
`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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`I hereby certify that on the 6th day of December, 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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`-9-
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