Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 1 of 16
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`FLYPSI, INC., (D/B/A FLYP),
`
`Plaintiff,
`
`v.
`
`GOOGLE LLC,
`
`Defendant.
`
`
`
`CIVIL ACTION NO. 6:22-cv-00031-ADA
`
`JURY TRIAL DEMANDED
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`DEFENDANT GOOGLE LLC’S MOTION TO DISMISS PLAINTIFF FLYPSI, INC.’S
`CLAIMS OF INDIRECT AND WILLFUL INFRINGEMENT
`
`
`
`

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`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 2 of 16
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`TABLE OF CONTENTS
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`
`Page
`INTRODUCTION ............................................................................................................. 1
`STATEMENT OF FACTS ................................................................................................ 2
`LEGAL STANDARD ........................................................................................................ 3
`ARGUMENT ..................................................................................................................... 4
`A.
`Flyp Cannot State a Plausible Claim for Pre-Suit Indirect and Willful
`Infringement Because Google Did Not Have Knowledge of the Patents-in-
`Suit Until the Filing of the Complaint ................................................................... 4
`Flyp Does Not Plead Facts Sufficient to State a Plausible Claim for Post-
`Suit Indirect and Willful Infringement .................................................................. 7
`Flyp’s Generic Allegations of Post-Suit Contributory Infringement Are
`Deficient ................................................................................................................. 8
`CONCLUSION ................................................................................................................ 10
`
`B.
`
`C.
`
`I.
`II.
`III.
`IV.
`
`V.
`
`
`-i-
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`

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`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 3 of 16
`
`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`Cases
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...........................................................................................................3, 4, 8
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................7
`
`BillJCo, LLC v. Apple Inc.,
`No. 6:21-cv-00528-ADA, 2022 WL 299733 (W.D. Tex. Feb. 1, 2022) ......................... passim
`
`Commil USA, LLC v. Cisco Sys., Inc.,
`575 U.S. 632 (2015) ...........................................................................................................1, 4, 7
`
`De La Vega v. Microsoft Corp.,
`No. 6:19-cv-00612-ADA, 2020 WL 3528411 (Feb. 7, 2020) ...................................................3
`
`Finjan, Inc. v. Cisco Sys., Inc.,
`No. 5:17-cv-00072-BLF, 2017 WL 2462423 (N.D. Cal. Jun. 7, 2017) .....................................6
`
`Joao Control & Monitoring Sys., LLC v. Protect Am., Inc.,
`No. 1:14-cv-00134, 2015 WL 3513151 (W.D. Tex. Mar. 24, 2015) .........................................9
`
`Kirsch Rsch. & Dev., LLC v. Tarco Specialty Prods., Inc.,
`No. 6:20-cv-00318-ADA, 2021 WL 4555802 (W.D. Tex. Oct. 4, 2021) ..................................6
`
`Lone Star Fund V (U.S.), L.P v. Barclays Bank PLC,
`594 F.3d 383 (5th Cir. 2010) .....................................................................................................4
`
`Maxell Ltd. v. Apple Inc.,
`No. 5:19-cv-00036-RWS, 2019 WL 7905455 (E.D. Tex. Oct. 23, 2019) .................................5
`
`McZeal v. Sprint Nextel Corp.,
`501 F.3d 1354 (Fed. Cir. 2007)..............................................................................................8, 9
`
`Modern Font Apps. LLC, v. Rod Lobster Hosp. LLC,
`No. 6:21-cv-00470-ADA, Dkt. 36 (W.D. Tex. Jan. 28, 2022) ..................................................8
`
`Parity Networks, LLC v. Cisco Sys., Inc.,
`No. 6:19-cv-00207-ADA, 2019 WL 3940952 (W.D. Tex. Jul. 26, 2019) .............................4, 7
`
`Sonos, Inc. v. Google LLC,
`No. 3:21-cv-07559-WHA, 2022 WL 799367 (N.D. Cal. Mar. 16, 2022) .................................8
`
`SRI Int’l, Inc. v. Cisco Sys., Inc.,
`14 F.4th 1323 (Fed. Cir. 2021) ..............................................................................................1, 4
`
`-ii-
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`

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`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 4 of 16
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`State Indus., Inc. v. A.O. Smith Corp.,
`751 F.2d 1226 (Fed. Cir. 1985)..................................................................................................5
`
`Taylor v. Books A Million, Inc.,
`296 F.3d 376 (5th Cir. 2002) .....................................................................................................8
`
`Traxcell Techs., LLC v. Verizon Wireless Pers. Commc’ns,
`No. 6:20-cv-01175-ADA, 2022 WL 299732 (W.D. Tex. Jan. 31, 2022) ..................................9
`
`ZapFraud, Inc. v. Barracuda Networks, Inc.,
`528 F. Supp. 3d 247 (D. Del. Mar. 24, 2021) ............................................................................7
`
`Statutes
`
`28 U.S.C. § 1292 ..............................................................................................................................8
`
`35 U.S.C. § 271(b)–(c) .................................................................................................................1, 6
`
`35 U.S.C. § 284 ............................................................................................................................1, 6
`
`Other Authorities
`
`5 Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. (4th ed. 2021) ...........................7
`
`Complaint, BLACK’S LAW DICTIONARY (11th ed. 2019) .................................................................7
`
`Fed. R. Civ. P. 12(b)(6)....................................................................................................................3
`
`-iii-
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`

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`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 5 of 16
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`
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`I.
`
`INTRODUCTION
`
`To allege indirect and willful infringement, a plaintiff must allege knowledge of the
`
`Patents-in-Suit, among other things.1 Commil USA, LLC v. Cisco Sys., Inc., 575 U.S. 632, 639
`
`(2015) (indirect infringement); SRI Int’l, Inc. v. Cisco Sys., Inc., 14 F.4th 1323, 1329–30 (Fed. Cir.
`
`2021) (willful infringement). Knowledge of the underlying patent applications will not suffice. See
`
`BillJCo, LLC v. Apple Inc., No. 6:21-cv-00528-ADA, 2022 WL 299733, at *4 (W.D. Tex. Feb. 1,
`
`2022). But, in its complaint, Plaintiff Flypsi, Inc. (“Flyp”) alleges that Flyp’s founder and named-
`
`inventor, Peter Rinfret, met a “general partner at GV (formerly Google Ventures)” on November
`
`12, 2015 “to discuss [Flyp’s] technology, business, and patent filings.” See Compl. ¶¶ 20, 33, 45,
`
`57, 72, 86 (emphasis added). Flyp alleges that, by virtue of this meeting, “Google had knowledge
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`of Flyp, its patent applications, and/or its issued patents.” Id. “[K]nowledge of Flyp [and] its patent
`
`applications” is not the legal standard for establishing liability for indirect and willful
`
`infringement, though. And at the time of the November 2015 meeting, none of the Patents-in-Suit
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`had issued.2 It is therefore facially implausible for Google to have had knowledge of Flyp’s “issued
`
`patents” from the November 2015 meeting.
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`Besides the November 2015 meeting, Flyp otherwise does not (and cannot) plead facts that
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`Google acquired knowledge of the Patents-in-Suit before Flyp filed the present complaint. It
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`follows that Flyp cannot state a plausible claim for relief under 35 U.S.C. §§ 271(b)–(c) and 284
`
`for at least the time frame before filing the complaint. Google respectfully requests that the Court
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`dismiss Flyp’s pre-suit claims for indirect and willful infringement.
`
`
`1 The Patents-in-Suit in this case are U.S. Patent Nos. 9,667,770 (“’770 Patent); 10,051,105 (“’105
`Patent”); 10,334,094 (“’094 Patent”); 11,012,554 (“’554 Patent”); and 11,218,585 (“’585 Patent”).
`2 In fact, the earliest of the Patents-in-Suit did not issue until another 18-months after the November
`2015 meeting. The ’770 Patent issued on May 30, 2017; the ’105 Patent issued on August 14,
`2018; the ’094 Patent issued on June 25, 2019; the ’554 Patent issued on May 18, 2021; and the
`’585 Patent issued on January 4, 2022.
`
`-1-
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`

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`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 6 of 16
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`Flyp also fails to plead facts to support its claims for indirect and willful infringement for
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`the time frame after filing the complaint. A civil complaint provides notice of an existing claim,
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`and does not create a claim for relief. The Court’s recent Order Governing Proceedings (“OGP”)
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`recognizes this temporal constraint, and provides a mechanism for the plaintiff to plead an alleged
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`infringer’s conduct giving rise to claims for post-suit indirect and willful infringement. See
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`STANDING ORDER GOVERNING PROCEEDINGS (OGP)––PATENT CASES, § VI; BillJCo,
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`2022 WL 299733, at *6 (holding claims may be found “exclusively on post-suit . . . conduct”
`
`(citation omitted)). Flyp’s complaint, however, rests its claims for post-suit indirect and willful
`
`infringement entirely on the notice provided by the complaint’s filing. See Compl. ¶¶ 33, 45, 57,
`
`72, 86 (“Google received actual notice of the [Patents-in-Suit] at least as early as the filing of this
`
`Original Complaint”). In doing so, Flyp attempts to allege liability that might occur in the future.
`
`Google respectfully requests that the Court dismiss Flyp’s post-suit claims for indirect and willful
`
`infringement.
`
`Finally, and in the alternative, should the Court find that Flyp’s complaint adequately
`
`pleads claims for post-suit indirect and willful infringement, Flyp’s allegations supporting its
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`claims for Google’s ongoing contributory infringement are at most boilerplate recitations of
`
`statutory elements. Further, Flyp does not cite any support for its contention that Google Voice
`
`“ha[s] no substantial non-infringing uses.” See BillJCo, 2022 WL 299733, at *8–9 (citation
`
`omitted) (disregarding a nearly identical allegation as conclusory). Google respectfully requests
`
`that the Court dismiss Flyp’s post-suit claims for contributory infringement.
`
`II.
`
`STATEMENT OF FACTS
`
`Flyp filed its complaint on January 10, 2022. Dkt. 1. The complaint alleges the following
`
`regarding Google’s knowledge of the Patents-in-Suit:
`
`-2-
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`

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`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 7 of 16
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`
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`On information and belief, Google had knowledge of Flyp, its patent
`applications, and/or its issued patents at least as early as November
`12, 2015. On that date, Rich Miner, general partner at GV (formerly
`Google Ventures) and co-founder of Android, met with Flyp to
`discuss its technology, business, and patent filings on November 12,
`2015. In addition, Google received actual notice of the [Patents-in-
`Suit] at least as early as the filing of this Original Complaint.
`
`Id. ¶¶ 33, 45, 57, 72, 86. Flyp rests its claims for pre-suit and post-suit willful infringement on this
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`allegation, and pleads that, in light of this knowledge, “Google’s infringement of the [Patents-in-
`
`Suit] has been and continues to be deliberate and willful, and, therefore, this is an exceptional case
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`warranting an award of enhanced damages.” Id. ¶¶ 36, 48, 60, 75, 89.
`
`In regards to contributory infringement, Flyp makes the following boilerplate allegation:
`
`Upon information and belief, Google indirectly infringes the
`[Patents-in-Suit] by . . . contributing to infringement by others, such
`as resellers, partners, and end-user customers. Upon information and
`belief, direct infringement is (1) the result of activities performed by
`resellers, partners, and end-user customers of Google Voice, who
`perform each step of the claimed invention as directed by Google,
`or (2) the result of activities performed by resellers, partners, and
`end-user customers of Google Voice in an normal and customary
`way that infringes the [Patents-in-Suit], that has no substantial non-
`infringing uses, and that is known by Google.
`
`Id. ¶¶ 32, 44, 56, 71, 85.
`
`III. LEGAL STANDARD
`
`To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
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`complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
`
`plausible on its face.” De La Vega v. Microsoft Corp., No. 6:19-cv-00612-ADA, 2020 WL
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`3528411, at *2 (Feb. 7, 2020) (citation omitted). To meet this standard, the plaintiff must plead
`
`“factual content” that allows the court to draw the reasonable inference that the defendant is liable
`
`for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); BillJCo, 2022 WL 299733,
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`at *1 (“The court’s task is to determine whether the plaintiff has stated a legally cognizable claim
`
`-3-
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`

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`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 8 of 16
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`
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`that is plausible . . . .” (citing Lone Star Fund V (U.S.), L.P v. Barclays Bank PLC, 594 F.3d 383,
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`387 (5th Cir. 2010))). “Threadbare recitals of the elements of a cause of action, supported by mere
`
`conclusory statements, do not suffice.” Iqbal, 566 U.S. at 678; Parity Networks, LLC v. Cisco Sys.,
`
`Inc., No. 6:19-cv-00207-ADA, 2019 WL 3940952, at *1 (W.D. Tex. Jul. 26, 2019) (“A plausible
`
`claim does more than merely allege entitlement to relief; it must also demonstrate the basis for that
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`‘entitlement with its facts.’” (citation omitted)). Although courts must take all factual allegations
`
`in the complaint as true, courts “are not bound to accept as true a legal conclusion couched as a
`
`factual allegation.” Iqbal, 556 U.S. at 678 (citation omitted).
`
`IV. ARGUMENT
`A.
`
`Flyp Cannot State a Plausible Claim for Pre-Suit Indirect and Willful
`Infringement Because Google Did Not Have Knowledge of the Patents-in-Suit
`Until the Filing of the Complaint
`
`Liability for indirect and willful infringement requires that the defendant has (1) knowledge
`
`of the Patents-in-Suit and (2) knowledge that its acts constitute infringement of the Patents-in-Suit.
`
`Commil USA, 575 U.S. at 639–40 (indirect infringement); Parity Networks, 2019 WL 3940952, at
`
`*3 (willful infringement). Recovery for indirect and willful infringement claims is limited “to the
`
`time period that begins when [the] defendant learns of the patent’s existence.” See Parity
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`Networks, 2019 WL 3940952, at *2 (citation omitted); SRI Int’l, 14 F.4th at 1328 (holding “no
`
`willful infringement as a matter of law before [defendant] had notice”). Flyp does not (and cannot)
`
`plead facts showing that Google learned of the Patents-in-Suit’s existence before the filing of the
`
`complaint. Flyp therefore does not (and cannot) plead facts showing that Google knew its acts
`
`constituted infringement of the Patents-in-Suit before the filing of the complaint. Consequently,
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`Flyp does not (and cannot) establish a basis to recover damages for Google’s alleged indirect and
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`willful infringement for the time frame before the filing of the complaint.
`
`-4-
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`

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`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 9 of 16
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`
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`Flyp’s only allegation of Google’s pre-suit knowledge rests on a November 12, 2015
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`meeting between Flyp’s founder and named inventor—Peter Rinfret—and a Google Ventures
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`employee—Rich Miner. Flyp alleges that the two met regarding “Flyp’s technology, business, and
`
`patent filings.” See Compl. ¶¶ 20, 33, 45, 57, 72, 86. For at least two reasons, this allegation fails
`
`to state a claim for pre-suit indirect and willful infringement.
`
`First, a party cannot “learn[] of the patent’s existence” if that patent has not yet issued.
`
`Maxell Ltd. v. Apple Inc., No. 5:19-cv-00036-RWS, 2019 WL 7905455, at *5 (E.D. Tex. Oct. 23,
`
`2019) (“Knowledge of a patent application alone is insufficient to demonstrate knowledge of the
`
`later issued patent.”); see also State Indus., Inc. v. A.O. Smith Corp., 751 F.2d 1226, 1236 (Fed.
`
`Cir. 1985) (“To willfully infringe a patent, the patent must exist and one must have knowledge of
`
`it. A ‘patent pending’ notice gives one no knowledge whatsoever. . . . Filing an application is no
`
`guarantee any patent will issue and a very substantial percentage of applications never result in
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`patents.”). This Court recently held as much in BillJCo, LLC v. Apple Inc., where plaintiff BillJCo
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`rested its pre-suit indirect and willful infringement claims on a June 2019 letter sent to defendant
`
`Apple. See BillJCo, 2022 WL 299733 at *3–4. There, one of the patents issued in November
`
`2019—five months after BillJCo sent its notice letter. Id. The Court held that BillJCo could not
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`plausibly allege Apple’s knowledge of a patent that had not yet issued. Id.
`
`The same analysis applies here. Here, Flyp alleges that its founder met a Google Ventures
`
`employee in November 2015 to discuss Flyp’s “patent filings.” Compl. ¶¶ 33, 45, 57, 72, 86. Even
`
`drawing all reasonable inferences in favor of Flyp, this allegation does not state a “legally
`
`cognizable claim.” BillJCo, 2022 WL 299733, at *1 (citation omitted). Because Flyp’s “patent
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`filings” had not yet issued, Flyp’s claims for pre-suit indirect and willful infringement necessarily
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`fail.
`
`-5-
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`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 10 of 16
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`Second, Flyp’s allegations are facially insufficient. To state a claim to relief for indirect
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`and willful infringement, Flyp must allege facts plausibly showing that Google “knew of the
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`patent[s]-in-suit . . . .” BillJCo, 2022 WL 299733 at *3, 5. Merely alleging that Google was aware
`
`of “Flyp’s technology, business, and patent filings” is not enough.
`
`Finjan, Inc. v. Cisco Systems, Inc., No. 5:17-cv-00072-BLF, 2017 WL 2462423, at *5
`
`(N.D. Cal. Jun. 7, 2017) is illustrative. There, plaintiff Finjan alleged that defendant Cisco gained
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`knowledge of Finjan’s “patent portfolio and patented technology” before the filing of the
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`complaint. Id. The parties had a complicated business relationship—Finjan alleged that Cisco had
`
`the requisite pre-suit knowledge by virtue of making “substantial investments” in Finjan’s
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`business, sending an observer to Finjan’s board of director meetings, and attending presentations
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`where Finjan discussed its issued and pending patents. Id. These allegations, although directed to
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`Cisco’s “general knowledge of Finjan’s patent portfolio,” did not show how Cisco “specifically
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`learned of the Asserted Patents.” Id. (“Knowledge of a patent portfolio generally is not the same
`
`thing as knowledge of a specific patent.”).
`
`Similarly here, Flyp’s allegations do not plausibly show that Google knew of the Patents-
`
`in-Suit. Even construing the allegations in the light most favorable to Flyp, discussions relating to
`
`Flyp’s “technology, business, and patent filings,” e.g., Compl. ¶ 33, do not establish the
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`“knowledge” required for a claim under 35 U.S.C. §§ 271(b)–(c) and 284. Cf. Kirsch Rsch. & Dev.,
`
`LLC v. Tarco Specialty Prods., Inc., No. 6:20-cv-00318-ADA, 2021 WL 4555802, at *2 (W.D.
`
`Tex. Oct. 4, 2021) (“Even if the Court inferred from this statement that Defendant knew of the
`
`existence of Kirsch’s patent portfolio ‘general knowledge of a patent portfolio without more is
`
`-6-
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`

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`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 11 of 16
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`
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`[insufficient] even to plausibly allege knowledge of a particular asserted patent.’” (emphasis
`
`added) (citation omitted)).3
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`In sum, Flyp has not and cannot plead claims for indirect and willful infringement dating
`
`before the complaint was filed. Google respectfully requests that the Court dismiss these pre-suit
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`claims.
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`B.
`
`Flyp Does Not Plead Facts Sufficient to State a Plausible Claim for Post-Suit
`Indirect and Willful Infringement
`
`Fully understanding that it cannot establish Google’s pre-suit knowledge of the Patents-in-
`
`Suit, Flyp rests its claims for post-suit indirect and willful infringement on the “actual notice”
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`provided by the complaint. Compl. ¶¶ 33, 45, 57, 72, 86. By definition, this allegation asserts a
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`future claim, i.e., one that arises after the filing of the complaint. This runs contrary to the
`
`longstanding rule that a party may recover only when it “has a valid claim.” 5 Charles A. Wright
`
`& Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1219 (4th ed. 2021); id. § 1216 (“[T]here are certain
`
`types of cases that will be almost impossible to bring, as all of the information necessary to state a
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`plausible claim is owned or known by the defendants and not accessible to the plaintiffs until the
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`discovery phase.”). Complaints are meant to give the defendant “fair notice of what the claim is,”
`
`and not what the claim might be. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (emphasis
`
`added); Complaint, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining a complaint as stating
`
`“the basis for the plaintiff’s claim”). It follows that Flyp’s complaint cannot give Google fair notice
`
`of its liability for future conduct. See ZapFraud, Inc. v. Barracuda Networks, Inc., 528 F. Supp.
`
`3d 247, 250 (D. Del. Mar. 24, 2021) (“[T]he complaint itself cannot be the source of the knowledge
`
`
`3 Even if the Court finds that Flyp properly alleged Google’s pre-suit knowledge of the Patents-in-
`Suit, Flyp provides no allegations that Google had knowledge that its acts constituted infringement
`of the Patents-in-Suit, which is required to sustain a claim for indirect and willful infringement.
`Commil USA, 575 U.S. at 639–40 (indirect infringement); Parity Networks, 2019 WL 3940952, at
`*3 (willful infringement).
`
`-7-
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`

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`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 12 of 16
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`
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`required to sustain claims of induced infringement and willfulness-based enhanced damages.”);
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`Sonos, Inc. v. Google LLC, No. 3:21-cv-07559-WHA, 2022 WL 799367, at *7 (N.D. Cal. Mar. 16,
`
`2022) (“[T]he complaint will generally not be adequate to serve as notice for either willful or
`
`indirect infringement.”).4 The Court’s recent OGP provides Flyp a fair chance to re-plead its
`
`indirect and willful infringement allegations after it has a good-faith basis to do so. OGP; supra
`
`Section I. As such, Google respectfully requests that the Court dismiss Flyp’s claims for post-suit
`
`indirect and willful infringement.
`
`C.
`
`Flyp’s Generic Allegations of Post-Suit Contributory Infringement Are
`Deficient
`
`In the alternative, should the Court decline to dismiss Flyp’s claims for post-suit indirect
`
`and willful infringement, Google respectfully requests that the Court dismiss Flyp’s claims for
`
`post-suit contributory infringement.
`
`Legal conclusions masquerading as facts will not suffice to prevent dismissal. McZeal v.
`
`Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007); Taylor v. Books A Million, Inc., 296
`
`F.3d 376, 378 (5th Cir. 2002). Flyp’s post-suit contributory infringement allegations do not meet
`
`the pleading standard because they are mere “[t]hreadbare recitals of the elements of a cause of
`
`action.” See Iqbal, 556 U.S. at 678.
`
`To state a claim for contributory infringement, a complaint must plead that the accused
`
`infringer’s “component” is a material part of the claimed invention, and is not suitable for a
`
`substantial non-infringing use. Modern Font Apps. LLC, v. Rod Lobster Hosp. LLC, No. 6:21-cv-
`
`00470-ADA, Dkt. 36 at 6–8 (W.D. Tex. Jan. 28, 2022). Flyp’s complaint does neither.
`
`Instead, Flyp alleges the following:
`
`
`4 Judge Alsup in Sonos, Inc. v. Google LLC certified this particular issue for interlocutory appeal
`under 28 U.S.C. § 1292.
`
`-8-
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`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 13 of 16
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`
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`Upon information and belief, Google indirectly infringes the
`[Patents-in-Suit] by . . . contributing to infringement by others, such
`as resellers, partners, and end-user customers. Upon information and
`belief, direct infringement is (1) the result of activities performed by
`resellers, partners, and end-user customers of Google Voice, who
`perform each step of the claimed invention as directed by Google,
`or (2) the result of activities performed by resellers, partners, and
`end-user customers of Google Voice in a normal and customary way
`that infringes the [Patents-in-Suit], that has no substantial non-
`infringing uses, and that is known by Google.
`
`Compl. ¶¶ 32, 44, 56, 71, 85.
`
`First, Flyp does not allege that Google Voice is either a “component” or is a “material part”
`
`of the claimed invention. Flyp’s claim for contributory infringement fails for this reason alone.
`
`Traxcell Techs., LLC v. Verizon Wireless Pers. Commc’ns, No. 6:20-cv-01175-ADA, 2022 WL
`
`299732, at *4–5 (W.D. Tex. Jan. 31, 2022) (dismissing claim for contributory infringement
`
`because plaintiff “fails to allege that any identified component is a material part of the invention”).
`
`Next, Flyp lobs the bare allegation that “Google Voice . . . has no substantial non-
`
`infringing uses.” Compl. ¶¶ 32, 44, 56, 71, 85. This allegation is no more than a boilerplate
`
`recitation of an element for contributory infringement. Indeed, Flyp’s allegation resembles one
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`that this Court recently dismissed in BillJCo. There, plaintiff BillJCo alleged only that “[t]he
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`Accused Infringing Instrumentalities have no substantial non-infringing uses.” BillJCo, 2022 WL
`
`299733, at *8 (citing plaintiff’s complaint). This Court held that merely alleging that the Apple
`
`iPhone and iPad have “no substantial non-infringing uses” was not enough. Id. at *9 (“BillJCo
`
`offers nothing to support this contention.”). The Court should arrive at the same conclusion here.
`
`Like the plaintiff in BillJCo, Flyp “offers nothing” to support its contention that Google Voice
`
`“has no substantial non-infringing uses.” Flyp’s allegation is no more than a conclusory allegation
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`“masquerading” as a fact. Id. (quoting McZeal, 501 F.3d at 1356); see also Joao Control &
`
`Monitoring Sys., LLC v. Protect Am., Inc., No. 1:14-cv-00134, 2015 WL 3513151, at *5 (W.D.
`
`-9-
`
`

`

`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 14 of 16
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`
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`Tex. Mar. 24, 2015) (rejecting “the circular position that the accused product itself is infringing
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`and therefore cannot operate in a way that does not infringe”). Google respectfully requests that
`
`the Court dismiss Flyp’s claim for post-suit contributory infringement.
`
`V.
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`CONCLUSION
`
`For the foregoing reasons, Google respectfully requests that the Court dismiss Flyp’s
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`claims for indirect and willful infringement.
`
`
`
`-10-
`
`

`

`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 15 of 16
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`
`
`DATED: April 11, 2022
`
`
`Respectfully Submitted,
`
`
`
`/s/ Paige Arnette Amstutz
`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
`
`Robert W. Unikel (Pro Hac Vice pending)
`robertunikel@paulhastings.com
`John A. Cotiguala (Pro Hac Vice pending)
`johncotiguala@paulhastings.com
`Daniel J. Blake (Pro Hac Vice pending)
`danielblake@paulhastings.com
`Grayson S. Cornwell (Pro Hac Vice pending)
`graysoncornwell@paulhastings.com
`PAUL HASTINGS LLP
`71 South Wacker Drive, Suite 4500
`Chicago, IL 60606
`Telephone: (312) 499-6000
`Facsimile: (312) 499-6100
`
`Robert R. Laurenzi (Pro Hac Vice pending)
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 318-6000
`Facsimile: (212) 319-4090
`
`Elizabeth Brann (Pro Hac Vice pending)
`elizabethbrann@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
`
`Joshua Yin (Pro Hac Vice pending)
`joshuayin@paulhastings.com
`David M. Fox (Pro Hac Vice pending)
`davidfox@paulhastings.com
`
`-11-
`
`

`

`Case 6:22-cv-00031-ADA Document 24 Filed 04/11/22 Page 16 of 16
`
`
`
`Alex Rhim (Pro Hac Vice pending)
`alexrhim@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`Attorneys for Defendant Google LLC
`
`CERTIFICATE OF CONFERENCE
`
`Pursuant to Local Rule CV-7(g) and Section VI of this Court’s Standing Order Governing
`
`Proceedings 4.0, counsel for the parties to this motion conferred in a good-faith effort on March
`
`16, 2022 to resolve the matter presented herein. Counsel for Flyp opposes the instant motion.
`
`/s/ Paige Arnette Amstutz
`Paige Arnette Amstutz
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on the 11th day of April, 2022, I electronically filed the foregoing with
`
`the Clerk of Court using the CM/ECF system which will send notification of such filing to all
`
`counsel of record.
`
`/s/ Paige Arnette Amstutz
`Paige Arnette Amstutz
`
`
`
`-12-
`
`