Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 1 of 25
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC., (D/B/A FLYP),
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`
`
`CIVIL ACTION NO. 6:22-cv-00031-ADA
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`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`DEFENDANT GOOGLE LLC’S MOTION FOR
`JUDGMENT AS A MATTER OF LAW UNDER FED. R. CIV. P. 50(b)
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`

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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 2 of 25
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES .......................................................................................................... ii
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`INTRODUCTION ................................................................................................................. 1
`I.
`II. LEGAL STANDARD ............................................................................................................ 1
`III. GOOGLE IS ENTITLED TO JMOL OF INVALIDITY OF THE ASSERTED CLAIMS .. 2
`A. Google is entitled to JMOL of anticipation of the Incoming Call Patents .................... 2
`B. Google is entitled to JMOL of anticipation of the Outgoing Call Patents .................... 5
`IV. GOOGLE IS ENTITLED TO JMOL NO INFRINGEMENT UNDER THE
`PRIOR-COMMERCIAL-USE EXCEPTION OF 35 U.S.C. § 273 .................................... 10
`V. GOOGLE IS ENTITLED TO JMOL OF NONINFRINGEMENT OF THE INCOMING
`A “BRIDGE TELEPHONE NUMBER” ............................................................................. 12
`A. Google Voice’s SIP invite is not literally a “bridge telephone number” .................... 13
`B. Flyp failed to show that SIP invites are equivalent to bridge telephone numbers,
`and Flyp’s equivalence theory was legally barred anyway ........................................ 15
`VI. CONCLUSION .................................................................................................................... 19
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`CALL PATENTS BECAUSE THE SIP INVITE USED BY GOOGLE VOICE IS NOT
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`i
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 3 of 25
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`TABLE OF AUTHORITIES
`
`
`
`Cases
`
`Alice Corp. v. CLS Bank Int’l,
`573 U.S. 208 (2014) ..................................................................................................................2
`Apotex USA, Inc. v. Merck & Co.,
`254 F.3d 1031 (Fed. Cir. 2001) ...............................................................................................11
`Arctic Cat Inc. v. Bombardier Recreational Prods. Inc.,
`876 F.3d 1350 (Fed. Cir. 2017) ...............................................................................................11
`Depuy Spine, Inc. v. Medtronic Sofamor Danek,
`567 F.3d 1314 (Fed. Cir. 2009) .........................................................................................18, 19
`Dow Chem. Co. v. Astro-Valcour, Inc.,
`267 F.3d 1334 (Fed. Cir. 2001) ...............................................................................................11
`Flex-Rest, LLC v. Steelcase, Inc.,
`455 F.3d 1351 (Fed. Cir. 2006) ...............................................................................................11
`Fox Grp., Inc. v. Cree, Inc.,
`700 F.3d 1300 (Fed. Cir. 2012) ...............................................................................................11
`Jang v. Boston Sci. Corp.,
`872 F.3d 1275 (Fed. Cir. 2017) .........................................................................................18, 19
`Lear Sigler, Inc. v. Sealy Mattress Co.,
`873 F.3d 1422 (Fed. Cir. 1989) ...............................................................................................15
`Malta v. Schulmerich Carillons, Inc.,
`952 F.2d 1320 (Fed. Cir. 1991) ...............................................................................................15
`Med. Care Am., Inc. v. Nat’l Union Fire Ins. Co.,
`341 F.3d 415 (5th Cir. 2003) ....................................................................................................1
`nCube Corp. v. Seachange Intl, Inc.,
`436 F.3d 1317 (Fed. Cir. 2006) ...............................................................................................18
`Tex. Instruments Inc. v. Cypress Semiconductor Corp.,
`90 F.3d 1558 (Fed. Cir. 1996) .................................................................................................15
`Vanmoor v. Wal-Mart Stores, Inc.,
`201 F.3d 1363 (Fed. Cir. 2000) .............................................................................................3, 5
`VLSI Tech. LLC v. Intel Corp.,
`87 F.4th 1332 (Fed. Cir. 2023) .........................................................................................15, 16
`
`-ii-
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 4 of 25
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`Statutes and Rules
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`35 U.S.C. § 101 ...............................................................................................................................2
`35 U.S.C. § 102 ...............................................................................................................................1
`35 U.S.C. § 102(a) ..........................................................................................................................4
`35 U.S.C. § 102(g)(2) (pre-AIA) ..................................................................................................10
`35 U.S.C. § 112(b) ..........................................................................................................................2
`35 U.S.C. § 271 ...............................................................................................................................1
`35 U.S.C. § 273 .........................................................................................................................1, 10
`35 U.S.C. § 273(b) ..........................................................................................................................4
`35 U.S.C. § 273(e)(4) ....................................................................................................................10
`35 U.S.C. § 287 .............................................................................................................................11
`Fed. R. Civ. P. 50(a) .......................................................................................................................1
`Fed. R. Civ. P. 50(b) .......................................................................................................................1
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`-iii-
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 5 of 25
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`I.
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`INTRODUCTION
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`Google renews its in-trial motions for judgment as a matter of law under Rule 50(a) on
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`the following liability issues:
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`
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`invalidity of the asserted claims of the Incoming Call Patents (U.S. Patent Nos.
`9,667,770 and 10,051,105) and the Outgoing Call Patents (U.S. Patent Nos.
`10,334,094, 11,012,554, and 11,218,585) under 35 U.S.C. § 102;
` no infringement of the Incoming Call Patents or the Outgoing Call Patents due to
`prior commercial use by Google protected by 35 U.S.C. § 273; and
` no infringement of the Incoming Call Patents under 35 U.S.C. § 271 because (a) the
`accused Google Voice product lacks the “bridge telephone number” required by all
`asserted claims; (b) Flyp did not present the requisite particularized testimony and
`linking argument that the “SIP invite” used by Google Voice is equivalent to the
`claimed “bridge telephone number”; and (c) even if Flyp had presented substantial
`evidence of equivalence, prosecution history estoppel and/or the doctrine precluding
`ensnarement of prior art legally bar Flyp from asserting infringement by equivalents.
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`Because the Court granted Google’s motion for JMOL of no willful infringement and the jury
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`awarded a lump sum rather than a running royalty, this motion does not address those issues.
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`Google files this motion now, rather than waiting until after judgment is entered, because the
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`jury did not reach the doctrine of equivalents and Fed. R. Civ. P. 50(b) requires any motion
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`addressing a jury issue not decided by a verdict to be filed within 28 days after the jury was
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`discharged.
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`II. LEGAL STANDARD
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`JMOL is warranted when “a party has been fully heard on an issue during a jury trial and
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`the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find
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`for the party on that issue.” Fed. R. Civ. P. 50(a). JMOL should be granted “[i]f ... the facts and
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`inferences point so strongly and overwhelmingly in favor of one party that the Court believes
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`that [a] reasonable [jury] could not arrive at a contrary verdict.” Med. Care Am., Inc. v. Nat’l
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`Union Fire Ins. Co., 341 F.3d 415, 420 (5th Cir. 2003).
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`1
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 6 of 25
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`III. GOOGLE IS ENTITLED TO JMOL OF INVALIDITY OF THE ASSERTED
`CLAIMS
`Assuming post-2018 Google Voice practices the asserted claims as Flyp contends, the
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`claims are invalid for anticipation by the Google Voice product that Google offered before 2013
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`because Google Voice did not change in any material respect between 2012 and 2019.1
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`A. Google is entitled to JMOL of anticipation of the Incoming Call Patents
`Google’s expert explained in detail why pre-July 17, 2012, Google Voice anticipated
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`every element of the asserted Incoming Call claims. Tr. 924:6-933:13 (walking through the
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`elements of exemplary ’770 claim 1 other than the “bridge telephone number”); Tr. 940:3-21,
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`946:20-949-1 (explaining that if a SIP invite infringes the “bridge telephone number” limitation,
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`then Google Voice used the same functionality from 2009 on); Tr. 950:7-952:9 (explaining
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`anticipation of the other Incoming-Call claims). Flyp disputed only the limitations related to
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`transmitting pre-call information to the handset over the data channel:
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`1 Separate from anticipation, Google (1) explained in its motion for judgment on the
`pleadings why the claims of both sets of patents are invalid under 35 U.S.C. § 101 for claiming
`abstract ideas without any saving inventive concept, Dkt. 142; and (2) argued during Markman
`proceedings that the asserted claims are invalid for indefiniteness under § 112(b), Dkt. 47. The
`Court rejected Google’s § 101 defense on grounds that the claims were directed to patent-eligible
`subject matter under step one of the Alice test, Dkt. 260 at 2, and held that the asserted claims
`were not invalid for indefiniteness, Dkt. 78 at 2. Google disagrees with those rulings and reserves
`the right to appeal them, but this motion will not address these issues because they were not tried
`to the jury.
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`-2-
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 7 of 25
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`As discussed below, Google denies that a SIP invite can satisfy the “bridge telephone
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`number” limitation, either literally or under the doctrine of equivalents. But even if it could,
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`Flyp’s allegation that SIP invites infringe is binding for anticipation purposes, see Vanmoor v.
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`Wal-Mart Stores, Inc., 201 F.3d 1363, 1366 (Fed. Cir. 2000), and Google Voice has used the
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`same SIP-invite-based process for receiving incoming VoIP calls since before Flyp’s effective
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`filing date in 2013.
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`Google presented overwhelming evidence Google Voice has used SIP invites to receive
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`incoming VoIP calls since 2009. Google presented the October 2009 letter to the FCC explaining
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`that “GrandCentral also allowed users to enter a Gizmo5 (a third-party, VoIP service) Session
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`Initiation Protocol (‘SIP’) address as a forwarding phone” and that Google Voice also gave
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`“users the option to forward calls to a Gizmo5 VoIP endpoint, in which case such calls would be
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`sent directly to the Gizmo5 client via SIP.” DX033.005-06. Google engineers described in detail
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`how Google Voice could receive an incoming VoIP call using a SIP invite since Google Voice
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`-3-
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`launched in 2009. Tr. 728:2-732:16; 840:14-845:20; 850:23-851:23; 852:18-853:17. So did
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`Google’s expert. Tr. 903:25-921:16.
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`Flyp asserted for the first time during trial that Google abandoned its commercial use of
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`its VoIP incoming call process by turning off the servers running Gizmo in 2011. See Tr. 883:22-
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`884:6. But even if that undermined Google’s § 273(b) defense—and as explained below, it did
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`not—it is irrelevant to anticipation. Under post-AIA 35 U.S.C. § 102(a), a claimed invention is
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`anticipated if it was “patented, described in a printed publication, or in public use, on sale, or
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`otherwise available to the public before the effective filing date of the claimed invention.” There
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`is no abandonment exception. Moreover, even ignoring VoIP calls to Gizmo endpoints, Google
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`presented unrebutted evidence that Google Voice supported receiving incoming VoIP calls using
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`Gmail, Google Hangouts, and other apps. See, e.g., Tr. 210:17-212:32, 575:22-25, 726:17-727-
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`22, 728:15-732:2, 825:18-826:14, 853:22-856:22. Flyp’s expert admitted this. Tr. 1321:11-
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`1322:2.
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`Through Dr. Conte, Flyp asserted that prior-art Google Voice used a TDM channel rather
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`than a data channel for the “last mile” of an incoming call flow between the carrier pathway and
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`the user’s device. Tr. 1247:12-1248:25. But on cross-examination, Dr. Conte acknowledged that
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`Google Voice also used an alternative, non-TDM, SIP-based pathway for the “last mile” in 2009.
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`Tr. 1318:14-1319:11. Anticipation for only part of the time is still anticipation.
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`Dr. Conte further suggested that prior-art Google Voice did not anticipate when
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`connecting VoIP calls through the Gizmo5 endpoint because the call-processing rules for doing
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`so were “in the wrong place.” Tr. 1250:24-25. Specifically, Dr. Conte asserted that VoIP calls
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`using Google Voice and Gizmo5 did not satisfy the claims because the call-processing rules
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`would have been stored in one switch while the call ultimately ended up connecting through
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`-4-
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`another. See Tr. 12:49:22-1251:1. But the asserted claims of the Inbound Call Patents do not
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`require call-processing rules to be stored at the same device used to connect the call. Claim 1 of
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`the ’770 patent simply recites storing call-processing rules in “at least one computer memory
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`device,” with no requirement that the recited computer memory device be coincident with the
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`recited switch used for connecting the call. Claim 1 of the ʼ105 patent also contains no “same
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`device” requirement—it calls only for storing call processing rules in a memory “associated
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`with” a server and connecting the call back to a switch “associated with” the server.
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`Flyp also asserted that prior-art Google voice did not anticipate because it did not use a
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`push notification containing call information recited in the claims. Tr. 1423:3-18. But the
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`asserted claims do not recite a push notification, and in any event Google’s witnesses confirmed
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`that prior-art Google Voice used the same SIP transmission that Flyp accused of satisfying the
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`“transmitting” limitations when alleging infringement of the Incoming Call Patents. Tr. 735:13-
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`16; see Vanmoor, 201 F.3d at 1366.
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`Flyp’s asserted distinctions thus could not support a verdict finding the asserted claims
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`not anticipated. Google is entitled to JMOL of invalidity as to the Incoming Call Patents.
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`B. Google is entitled to JMOL of anticipation of the Outgoing Call Patents
`Google’s expert also explained why pre-July 17, 2012, Google Voice anticipated each of
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`the asserted Outgoing Call claims. Tr. 967:16-980:3. Flyp disputed only the limitations regarding
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`transmitting information that indicates an access telephone number to the mobile device via a
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`data channel and associating the access number with specified telephone numbers in memory:
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`-5-
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 10 of 25
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`Unrebutted evidence showed that pre-July 17, 2012, Google Voice satisfied these
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`limitations. Google Voice used an access number back in October 2009: “The mobile application
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`will then call a Google Voice access number which will be routed to the CLEC vendor who
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`provided the Google Voice access number, converted to SIP and sent to the Google Voice
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`softswitch, where it will be answered.” DX033.008. Craig Walker testified about what this
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`meant, Tr. 668:21-671:6, and about his personal involvement in preparing the October 2009
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`letter to ensure its accuracy, Tr. 660:10-17; 663:1-8. Google also presented a January 2010 video
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`showing a Google Voice user making an outgoing call on an Apple iPhone using an access
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`number while the voiceover explained that “[t]he page will confirm that you want to dial a
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`Google Voice access number. Accepting will connect you via that access number and show your
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`Google Voice number as the outbound caller ID.” DX805; see also Tr. 682:13-683:13 (Mr.
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`Walker testifying about the video); 688:9-14. A January 2010 Google Voice blog post similarly
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`explained that the Google Voice app would “make a request to the Google Voice server” to make
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`-6-
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 11 of 25
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`an outgoing call, and that the call would be “connected via a Google Voice access number.”
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`DX547. Tr. 760:6-23. The January 2010 post went to explain that the request to the Google
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`Voice server needed “to use your data network to access the server ....” DX547. Google
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`engineers further corroborated that Google Voice access numbers were transmitted over a data
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`channel to the handset before July 17, 2012. See, e.g., Tr. 761:7-763:16; 763:20-764:21; see also
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`Tr. 765:7-771:8 (discussing source code).
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`As for pairing of the access number, the evidence showed that prior-art Google Voice
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`used a number pairing for making outgoing calls. Tr. 974:18-977:10. Dr. Gottesman explained,
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`, that the prior-art Google Voice system associated a paired
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`primary telephone number and access number with a paired Google Voice number and contact
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`number when making an outgoing call. Tr. 974:18-977:10, 959:6-961:13.
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`Flyp presented no evidence sufficient to support the jury’s contrary verdict on
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`anticipation of the Outgoing Call Patents. Regarding the “automatically transmitting” limitations
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`from the asserted claims, Flyp first suggested that testimony from a Google engineer (Tom Ford)
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`showed that Google Voice had “no need for data to be sent separately from the call records.” Tr.
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`1229:12-20 (Conte). But Mr. Ford’s cited testimony was limited to a specific use case: a Google
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`Voice user calling someone back after missing a call placed to the user’s Google Voice number.
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`Tr. 1197:13-21. In that circumstance, Mr. Ford explained that the prior-art Google Voice system
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`would have mapped the caller’s number to an associated shadow number and used that shadow
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`number to pass the initial (missed) incoming call to the user’s device. Tr. 1197:22-1198:15. In
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`the case of a missed incoming call, the user’s device thus would already have the necessary
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`shadow number due to the missed incoming call and could use that same shadow number to call
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`back, and the Google Voice system would likewise already have mapped the association
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`between the shadow number and the outside caller’s actual phone number. Tr. 1197:17-1198:15.
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`Accordingly, when Mr. Ford was asked whether the prior-art Google Voice system would have
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`sent shadow-number pairing data in the scenario “where the user has the missed call,” he
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`answered: “In the – that example, there was no need for data to be sent separately from the call
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`records.” Tr. 1198:25-1199:6 (emphasis added). That testimony could not support a broad
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`conclusion that prior-art Google Voice never transmitted information regarding an access
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`number through a data channel to a user’s mobile device in other outgoing-call scenarios,
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`including in the much more common circumstances where there has not been a missed call.
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`Indeed, as explained above, other Google engineers described exactly that functionality.
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`Dr. Conte also briefly suggested that there
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` Dr. Gottesman discussed when explaining how prior-art Google Voice transmitted an
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`access number to the handset through a data channel. See Tr. 1230:3-1232:1. But that was
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`entirely speculative. Dr. Conte’s testimony addressed whether
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`” Tr. 1231:9, 1231:18, and he at most offered a conclusory
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`statement that he
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`basis for that subjective belief or confirming
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` without explaining any
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`, Tr. 1231:14-17.
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`Moreover, Dr. Conte’s discussion of a potential problem addressed
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`. See Tr. 1231:8-1231:11 (
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`), Tr. 957:14-16 (
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`). Dr. Conte
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`. Tr. 1282:22-1283:2 (Dr. Conte confirming he did not
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`), Tr. 763:20-770:25 (Google engineer discussing
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`).
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 13 of 25
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`Regarding the “automatically associating” limitations, Dr. Conte asserted that prior-art
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`Google Voice did not anticipate due
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`385); see also Tr. 1235:20-23 (“
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`. Tr. 1237:4-24 (discussing PTX-
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`.” (emphasis added)). That was a
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`red herring for several reasons. First, the document underlying that entire opinion, PTX-385, was
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`never admitted into evidence. Second, no asserted claim from the Outgoing Call Patents requires
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`more than “a” secondary number, so prior-art Google Voice configured with one secondary
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`telephone number met the “associating” limitation. Tr. 1290:5-19. Third, Flyp used its
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`1307:9. The asserted claims require pairing a secondary telephone number with the contact
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`telephone number, and Dr. Conte testified
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`. Tr. 1305:22-
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`.
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`Tr. 1300:8-1301:22; Tr. 1306:23-1307:4. That testimony certainly did not rebut Google’s
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`anticipation case. Fourth, Dr. Conte confirmed that the prior-art association of paired numbers in
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`Google Voice shown in PTX-385 matched those Flyp cited to show infringement of the
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`“automatically associating” limitation. Tr. 1309:19-1310:15.
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`Because Google explained how prior-art Google Voice met every limitation in the
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`asserted claims of the Outgoing Call Patents, and Flyp presented no contrary evidence regarding
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`the only two limitations it disputed, Google is entitled to JMOL of anticipation as to the
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`Outgoing Call Patents and respectfully requests that the Court enter judgment accordingly.
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`-9-
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 14 of 25
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`IV. GOOGLE IS ENTITLED TO JMOL NO INFRINGEMENT UNDER THE
`PRIOR-COMMERCIAL-USE EXCEPTION OF 35 U.S.C. § 273
`35 U.S.C. § 273 provides:
`
`(a) In General.—A person shall be entitled to a defense under section 282(b) with respect
`to subject matter consisting of a process, or consisting of a machine, manufacture, or
`composition of matter used in a manufacturing or other commercial process, that
`would otherwise infringe a claimed invention being asserted against the person if—
`(1) such person, acting in good faith, commercially used the subject matter in the
`United States, either in connection with an internal commercial use or an actual
`arm’s length sale or other arm’s length commercial transfer of a useful end result
`of such commercial use; and
`(2) such commercial use occurred at least 1 year before the earlier of either—
`(A) the effective filing date of the claimed invention; or
`(B) the date on which the claimed invention was disclosed to the public in a
`manner that qualified for the exception from prior art under section 102(b).
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`Section 273 does not expressly require that the prior commercial user practice every
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`claim limitation of the asserted patents. The statutory language requires only that the prior
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`commercial user act in good faith and commercially use the allegedly infringing subject matter in
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`the United States before the specified date. Here, Google presented overwhelming evidence of
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`prior commercial use in good faith before July 17, 2012, entitling Google to JMOL of no
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`infringement of all the Asserted Patents. Even assuming that a prior commercial user must have
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`practiced every claim limitation of the asserted patents, Google is still entitled to JMOL of no
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`infringement under § 273 because, as shown above, prior-art Google Voice practiced every
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`limitation of the asserted claims of each patent.
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`Flyp’s reliance on the “abandonment” of section 273(e)(4) fails a matter of law. To begin
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`with, Flyp bore the initial burden of coming forward with evidence of abandonment and trigger-
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`ing Google’s burden to prove non-abandonment. Such burden-shifting frameworks apply in other
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`aspects of patent law, most notably the prior-invention defense of pre-AIA § 102(g)(2). Under
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`that statute, a plaintiff must satisfy a preliminary burden of producing evidence of abandonment,
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 15 of 25
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`suppression, or concealment negating prior invention even though the defendant bears the
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`ultimate burden of persuasion once the plaintiff has carried its initial burden. Apotex USA, Inc. v.
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`Merck & Co., 254 F.3d 1031, 1037 (Fed. Cir. 2001); Fox Grp., Inc. v. Cree, Inc., 700 F.3d 1300,
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`1304 (Fed. Cir. 2012); Flex-Rest, LLC v. Steelcase, Inc., 455 F.3d 1351, 1360 (Fed. Cir. 2006);
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`Dow Chem. Co. v. Astro-Valcour, Inc., 267 F.3d 1334, 1339 (Fed. Cir. 2001). Similarly, a
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`defendant bears an initial burden of identifying articles that were not marked as patented in
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`compliance with § 287 before the plaintiff is required to prove that it sufficiently marked and can
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`claim damages. Arctic Cat Inc. v. Bombardier Recreational Prods. Inc., 876 F.3d 1350, 1368
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`(Fed. Cir. 2017).
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`Here, Flyp raised only a single abandonment theory before trial: that Google let Google
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`Voice grow stale before embarking on an overhaul of the interface and various features between
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`2015 and 2017. That argument was absurd. The undisputed evidence was that Google continued
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`to have millions of active Google Voice users from 2009 onward. PTX633; Tr. 574:12-15,
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`1281:11-21. Even if the product had gone years without updates before it was refreshed, it
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`certainly was not abandoned.
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`At trial, Flyp asserted—for the first time—a new and different abandonment theory: that
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`Google abandoned VoIP calling by turning off server support for Gizmo products in 2011. No
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`such theory was raised before trial, and the Court erred by allowing Flyp to raise it belatedly. But
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`even if Flyp had timely raised the theory, it would still fail as a matter of law because Google
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`never abandoned the VoIP calling capability in Google Voice. As discussed above, Google
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`continued to support VoIP calling over GMail, Google Hangouts, and other apps.
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`-11-
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 16 of 25
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`V. GOOGLE IS ENTITLED TO JMOL OF NONINFRINGEMENT OF THE
`INCOMING CALL PATENTS BECAUSE THE SIP INVITE USED BY
`GOOGLE VOICE IS NOT A “BRIDGE TELEPHONE NUMBER”
`The asserted claims of the Incoming Call Patents all require using a “bridge telephone
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`number” to connect calls. For example, claim 1 of the ’770 Patent recites:
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`1. A method of providing telephone service, the method comprising:
`[a] associating a secondary telephone number with a primary telephone number in
`at least one computer memory device, the primary telephone number being assigned to a
`handset;
`[b] acquiring first digital information from the handset over at least one data
`channel, the first digital information indicating primary call processing rules for handling
`calls directed to the primary telephone number;
`[c] storing the primary call processing rules in the at least one computer memory
`device;
`[d] acquiring second digital information from the handset over the at least one
`data channel, the second digital information indicating secondary call processing rules for
`handling calls directed to the secondary telephone number;
`[e] storing the secondary call processing rules in the at least one computer
`memory device;
`[f] receiving an incoming call over at least one voice channel at a switch, the
`switch being associated with a bridge telephone number such that calls directed to the
`bridge telephone number are automatically routed to the switch, the incoming call being
`directed to a handset-associated telephone number, the handset-associated telephone
`number being the primary telephone number or the secondary telephone number, and;
`[g] based on the primary call processing rules or the secondary call processing
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`rules:
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`[h] transmitting pre-call information to the handset over the at least one data
`channel the pre-call information including the bridge telephone number and the handset-
`associated telephone number, such that the handset is capable of displaying the handset-
`associated telephone number to a user and, based on user input, accepting the incoming
`call by connecting with the switch over the at least one voice channel using the bridge
`telephone number.
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`’770 Patent Claim 1 (emphasis added); see also ’105 Patent Claim 1 element [g] (requiring “pre-
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`call information including a bridge telephone number for connecting the handset to the incom-
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`ing call at the switch”) (emphasis added). The Court construed “bridge telephone number” as
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`having its plain and ordinary meaning. Dkt. 78.
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`-12-
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 17 of 25
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`The only Google Voice communication that Flyp alleged included “a bridge telephone
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`number” was a SIP invite:
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`Q. Your opinion about infringement of the [Voice over IP (“VoIP”)] leg for incoming
`calls, that is based on the SIP invite including the bridge telephone number, correct?
`A. Yes, sir. And also the push notification.
`Q. And it's your opinion that the SIP invite contains the bridge telephone number that the
`claims require, correct?
`A. Yes, sir.
`Q. Now, you mentioned a push notification, but you don't believe that the push
`notification includes the bridge telephone number?
`A. That's correct.
`Tr. 377:19-378:5.
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`In particular,
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`PTX-108 at 120. He testified:
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`Q. And you’re pointing to this as the transmission that in your view contains the bridge
`telephone number, right?
`A. The version of the SIP invite that is sent from IVR to the cell phone. Yes, sir.
`Q. Okay. And here, you have highlighted, for example, the line here for
` right?
`A. Yes, sir.
`Q. And
`right?
`A. Yes, sir.
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` we see is a line in the exemplary invite above from the RFC standard,
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`Tr. 386:14-24.
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`As a matter of law, however, such a SIP invite is not literally a “bridge telephone
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`number,” and Flyp could not and did not show infringement under the doctrine of equivalents.
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`A. Google Voice’s SIP invite is not literally a “bridge telephone number”
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`A “bridge telephone number” must be a telephone number, and the SIP invite accused by
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`Flyp is not literally a “telephone number” under the plain and ordinary meaning of the term.
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`Case 6:22-cv-00031-ADA Document 302 Filed 04/01/24 Page 18 of 25
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`A phone number is a sequence of digits formatted according to some convention—currently ten
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`digits in the U.S., although formats have changed over time and differ in some other countries.
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`There was no evidence that “
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`” is
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`literally a phone number as ordinary people or skilled artisans understand the term.
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`To be sure, U.S. telephone buttons show both letters and numbers: A, B, and C
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`correspond to 2; D, E, and F correspond to 3; and so forth. This allows helpful mnemonic
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`devices: mid-20th-century Americans may have remembered PL4-3511 more easily than 754-
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`3511, and accident victims may find it easier to remember 1-800-I-AM-HURT than 1-800-426-
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`4878. See Tr. 1013:4-1014:5. But those letters still represent numbers and are processed as such.
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`There was no evidence that “
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`” is
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`processed as a number. The only evidence showed that SIP invites are Uniform Resource
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`Indicators (URIs) that identify a resource, such as a computer, over the Internet. Tr. 934:4-935:4.
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`Flyp’s cross-examination of Google’s noninfringement expert regarding hexadecimal
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`(base-16) numbers, Tr. 1022:7-13, proved nothing because no one suggested that SIP invites use
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`hexadecimal numbers. Hexadecimal numbers run from 0 to F, with F representing sixteen, so
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`“
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`” plainly is not in hexadecimal format.
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`The fact that the specification mentions SIM numbers or ESNs (electronic serial
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`numbers), Tr. 1021:9-102