Civil Action No. 6:22-cv-31-ADA
`
`
`
`
`
`
`FLYPSI, INC. (D/B/A FLYP),
`
` Plaintiff,
`
` vs.
`
`GOOGLE LLC,
`
` Defendant.
`
`
`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 1 of 25
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`
`
`PLAINTIFF FLYPSI, INC.’S RESPONSE IN OPPOSITION TO DEFENDANT
`GOOGLE LLC’S MOTION FOR JUDGMENT AS A MATTER OF LAW
`
`
`
`
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 2 of 25
`
`
`I.
`II.
`III.
`
`IV.
`
`V.
`
`VI.
`
`
`TABLE OF CONTENTS
`
`Page
`INTRODUCTION .............................................................................................................. 1
`LEGAL STANDARDS ...................................................................................................... 1
`GOOGLE IS NOT ENTITLED TO JMOL OF INVALIDITY .......................................... 2
`A.
`Google is not entitled to JMOL of anticipation of the Incoming Call Patents ....... 2
`B.
`Google is not entitled to JMOL of anticipation of the Outgoing Call Patents ........ 4
`GOOGLE IS NOT ENTITLED TO JMOL OF NO INFRINGEMENT UNDER THE
`PRIOR-COMMERCIAL-USE EXCEPTION .................................................................... 9
`GOOGLE IS NOT ENTITLED TO JMOL OF NONINFRINGEMENT OF THE
`INCOMING CALL PATENTS ........................................................................................ 13
`A.
`Google Voice’s SIP Invite is Literally a “Bridge Telephone Number” ................ 13
`B.
`Flyp put on substantial evidence that SIP Invites are Equivalent to Bridge
`Telephone Numbers .............................................................................................. 15
`CONCLUSION ................................................................................................................. 19
`
`
`
`
`
`i
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 3 of 25
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Allfasteners USA, LLC v. Acme Operations Pty., Ltd.,
`2021 WL 4027738 (C.D. Cal. May 25, 2021) ...........................................................................9
`
`Amazon.com, Inc. v. Barnesandnoble.com, Inc.,
`239 F.3d 1343 (Fed. Cir. 2001)..................................................................................................9
`
`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
`
`BASF Corp. v. SNF Holding Co.,
`955 F.3d 958 (Fed. Cir. 2020)..................................................................................................11
`
`Boeing Co. v. Shipman,
`411 F.2d 365 (5th Cir. 1969), overruled on other grounds by Gautreaux v.
`Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997).................................................................1
`
`DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc.,
`567 F.3d 1314 (Fed. Cir. 2009)................................................................................................18
`
`Ericsson, Inc. v. D-Link Sys., Inc.,
`773 F.3d 1201 (Fed. Cir. 2014) ...............................................................................................10
`
`Hewlett-Packard Co. v. Mustek Sys., Inc.,
`340 F.3d 1314 (Fed. Cir. 2003)................................................................................................13
`
`Hilton Davis Chem. Co. v. Warner-Jenkinson Co.,
`62 F.3d 1512 (Fed.Cir.1995)....................................................................................................18
`
`Med. Care Am., Inc. v. Nat’l Union Fire Ins. Co.,
`341 F.3d 415 (5th Cir. 2003) .....................................................................................................1
`
`Niazi Licensing Corp. v. St. Jude Medical S.C., Inc.,
`30 F.4th 1339 (Fed. Cir. 2022) ...............................................................................................10
`
`Paice LLC v. Toyota Motor Corp.,
`504 F.3d 1293 (Fed. Cir. 2007)................................................................................................15
`
`Paulik v. Rizkalla,
`760 F.2d 1270 (Fed. Cir. 1985)................................................................................................11
`
`ii
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 4 of 25
`
`Pelican Int’l, Inc. v. Hobie Cat Co.,
`No. 320CV02390RSHMSB, 2023 WL 2127994 (S.D. Cal. Feb. 10, 2023) .......................9, 10
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)............................................................................................9, 14
`
`Reeves v. Sanderson Plumbing Prods., Inc.,
`530 U.S. 133 (2000) ...................................................................................................................1
`
`SIMO Holdings Inc. v. Hong Kong uCloudlink Network Tech. Ltd.,
`983 F.3d 1367 (Fed. Cir. 2021) ...............................................................................................10
`
`Stoller Enters., Inc. v. Fine Agrochemicals Ltd.,
`No. 4:20-CV-00750, 2023 WL 8283633 (S.D. Tex. Nov. 30, 2023) ......................................10
`
`Sunrise Med. HHG, Inc. v. AirSep Corp.,
`95 F. Supp. 2d 348 (W.D. Pa. 2000) ........................................................................................17
`
`Vaughan Co. v. Glob. Bio-Fuels Tech., LLC,
`2013 WL 5755389 (N.D.N.Y. Oct. 23, 2013) ...........................................................................9
`
`VLSI Tech. LLC v. Intel Corp.,
`87 F.4th 1332 (Fed. Cir. 2023) ....................................................................................13, 16, 17
`
`Wi-Lan, Inc. v. Apple, Inc.,
`811 F.3d 455 (Fed. Cir. 2016)..................................................................................................13
`
`Statutes
`
`35 U.S.C. § 102 ..........................................................................................................................1, 11
`
`35 U.S.C. § 217 ................................................................................................................................1
`
`35 U.S.C. § 273 ...................................................................................................................... passim
`
`35 U.S.C. § 287 ..........................................................................................................................9, 11
`
`Leahy-Smith Am. Invents Act, 125 Stat. 284 ................................................................................11
`
`Other Authorities
`
`Five Years Later, Google Finally Remembers Google Voice Exists,
`https://gizmodo.com/five-years-later-google-finally-remembers-google-voice-
`1791532022); ...........................................................................................................................12
`
`iii
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 5 of 25
`
`
`
`I.
`
`INTRODUCTION
`
`Plaintiff Flypsi, Inc. (“Flyp”) here responds to Defendant Google LLC’s (“Google”)
`
`motions for judgment as a matter of law regarding the invalidity of the asserted patents under 35
`
`U.S.C. § 102, no infringement of the asserted patents under 35 U.S.C. § 273, and no infringement
`
`of the Incoming Call Patents under 35 U.S.C. § 217. For the reasons detailed below, Flyp
`
`respectfully requests that this Court deny Google’s requested relief.
`
`II.
`
`LEGAL STANDARDS
`
`Judgment as a matter of law is appropriate only when “a party has been fully heard with
`
`respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have
`
`found for that party with respect to that issue.” Med. Care Am., Inc. v. Nat’l Union Fire Ins. Co.,
`
`341 F.3d 415, 420 (5th Cir. 2003). When entertaining a motion for judgment as a matter of law,
`
`“the court should review all of the evidence in the record. In doing so, however, the court must
`
`draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility
`
`determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
`
`150 (2000). A court should “give credence to evidence supporting the movant only if it is
`
`uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested
`
`witnesses.” Med. Care Am., 341 F.3d at 420 (internal quotations removed). If, after reviewing
`
`the evidence in this manner, “the facts and inferences point so strongly and overwhelmingly in
`
`favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict,
`
`granting of [JMOL] is proper.” Id. (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374–75 (5th
`
`Cir. 1969) (en banc), overruled on other grounds by Gautreaux v. Scurlock Marine, Inc., 107 F.3d
`
`331 (5th Cir. 1997) (en banc)). But “if there is substantial evidence opposed to [JMOL], that is,
`
`evidence of such quality and weight that reasonable and fair-minded men in the exercise of
`
`impartial judgment might reach different conclusions, [JMOL] should be denied.” Id.
`
`
`
`1
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 6 of 25
`
`
`
`III. GOOGLE IS NOT ENTITLED TO JMOL OF INVALIDITY
`
`Google is not entitled to a JMOL of invalidity because substantial evidence was submitted
`
`to the jury that the purported pre-2013 Google Voice did not practice the asserted claims before
`
`July 2013.
`
`A.
`
`Google is not entitled to JMOL of anticipation of the Incoming Call Patents
`
`Flyp presented substantial evidence that the limitations of the Incoming Call required
`
`transmitting pre-call information to the handset over a data channel, which included the bridge
`
`telephone and the handset-associated telephone number.
`
`For instance, Flyp presented substantial evidence that pre-2013 Google Voice used call-
`
`forwarding—
`
`. See, e.g.,
`
`Tr. at 129:18-130:5, 133:22-134:15, 414:11-415:18, 1219:8-1221:24, 1279:15-1280:5; PTX-629.
`
`Flyp also presented substantial evidence that pre-2013 Google Voice did not include transmitting
`
`the handset-associated telephone number (i.e., the Google Voice number) to the handset until the
`
`. See, e.g., Tr. at 1203:15-1204:20, 1246:6-1257:25.
`
`Likewise, the jury was justified in crediting the testimony of Dr. Conte that setting incoming calls
`
`to show a user’s Google Voice number as the caller ID would not satisfy the limitation of sending
`
`the Google Voice number over a data channel. See, e.g., id. at 1258:10-1260:16.
`
`Google argues that it “presented overwhelming evidence Google Voice has used SIP
`
`invites to receive incoming VoIP calls since 2009.” Dkt. 300 at 3. Google cites to a letter to the
`
`FCC that stated that “GrandCentral also allowed users to enter a Gizmo5 (a third-party, VoIP
`
`service) Session Initiation Protocol (‘SIP’) address as a forwarding phone” and that Google Voice
`
`also gave “users the option to forward calls to a Gizmo5 VoIP endpoint, in which case such calls
`
`would be sent directly to the Gizmo5 client via SIP.” Id. (citing DX033.005-06). But Dr. Conte
`
`explained that forwarding calls to a Gizmo5 endpoint would not anticipate the asserted claims of
`
`
`
`2
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 7 of 25
`
`
`
`the Incoming Call Patents. The Incoming Call Patents require storing secondary processing rules
`
`for handling calls directed to the secondary telephone number in a computer memory. ’770 Patent
`
`at Cl. 1; ’105 Patent at Cl. 1. Based on those secondary call processing rules, the Incoming Call
`
`Patents require transmitting pre-call information to the handset, which must include the bridge
`
`telephone number and the handset-associated telephone number.
`
`Dr. Conte explained that if a pre-2013 Google Voice user forwarded a call to a Gizmo5
`
`endpoint,
`
`because Gizmo5 was a separate VoIP solution and
`
`
`
`r. This is so
`
`
`
`. Tr. at 1249:6-1251:10, 842:3-19,
`
`1249:6-1251:10. As Dr. Conte testified, for Gizmo, the “
`
`
`
`” Id. at 1250:25-1251:1. Google argues that “the asserted claims of the Inbound
`
`Call Patents do not require call-processing rules to be stored at the same device used to connect
`
`the call.” Dkt. 300 at 5. But they do require that the pre-call information (including the bridge
`
`telephone number for connecting back to the previously recited switch) be sent to the handset.
`
`’770 Patent at Cl. 1; ’105 Patent at Cl. 1. Flyp submitted substantial evidence to the jury that
`
`Google’s asserted Gizmo5 call flow does not accomplish this.
`
`Google is also wrong that it is due JMOL based on Gmail, Google Hangouts, and other
`
`applications. The jury heard significant evidence that none of these systems transmitted the
`
`requisite data to a handset and that
`
`
`
`. See, e.g., Tr. at 823:24-829:1, 853:21-854:20, 1253:24-1254:24; DX23; DX261;
`
`PTX-107. From this, a reasonable juror could conclude that Google’s proposed combination of
`
`
`
`3
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 8 of 25
`
`
`
`systems was not a single anticipatory system that practiced each and every claim element before
`
`July 2013.
`
`For at least these reasons, Flyp presented substantial evidence to the jury from which it
`
`could reasonably determine that Google had not presented clear and convincing evidence that pre-
`
`2013 Google Voice anticipated the Incoming Call Patents.
`
`B.
`
`Google is not entitled to JMOL of anticipation of the Outgoing Call Patents
`
`Flyp presented substantial evidence that pre-2013 Google Voice did not practice the
`
`limitations of the Outgoing Call Patents, which require automatically transmitting information
`
`indicating an association of a pair of bridge and primary telephone numbers with a pair or of
`
`secondary and contact telephone numbers.
`
`First, the jury was justified in finding that Google had not satisfied its clear and convincing
`
`evidence standard. For fundamental limitations (e.g., transmitting the pre-call information over a
`
`data channel), Google depended on
`
`
`
`. See Tr. at 1231:8-1232:1. The jury also heard from Mr. Ford, an engineer who
`
`helped launch Google Voice and was there through the patents’ priority dates, that
`
`
`
`. Id. at 1198:4-1201:15.
`
`The jury also heard from Mr. Rinfret that while Google used access numbers in 2009, those access
`
`numbers were used like pre-paid calling cards—they required the user to dial the access number
`
`and then manually dial the number the user wanted to reach. See, e.g., id. at 128:11-19, 1532:2-
`
`14. Considering the contradictory opinions of Dr. Conte and Dr. Gottesman, and the testimony of
`
`Mr. Rinfret and Mr. Ford, the jury was entitled to find, as they did, that Google did not meet its
`
`burden of showing that pre-2013 Google Voice included this limitation.
`
`Similarly, the jury heard testimony from Dr. Conte and saw a document, PTX-385,
`
`
`
` (Tr. at 1056:11-14) was
`
`
`
`4
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 9 of 25
`
`
`
` (id. at 1039:2-1043:21). Id. at 1037:18-1057:25.
`
`
`
`. The jury was
`
`thus entitled to believe that testimony and make the reasonable inference from the document that
`
`the pre-2013 Google Voice
`
`.
`
`Google argues that it is entitled to a JMOL of anticipation of the Outgoing Call Patents
`
`because it presented evidence that “Google Voice used an access number back in October 2009,”
`
`and that “pre-2013 Google Voice used a number pairing for making outgoing calls.” Dkt. 300 at
`
`6-7. But the mere use of an access number or bridge telephone number alone is not enough to
`
`anticipate the claims. Tr. at 1223:4-6. Thus, Google incorrectly suggests the Court should reweigh
`
`competing testimony and overrule the jury’s conclusion.
`
`For instance, Google posits that “Dr. Gottesman explained, based on the underlying source
`
`code, that the pre-2013 Google Voice System associated a paired primary telephone number and
`
`access number with a paired Google Voice number and contact number when making an outgoing
`
`call.” Dkt. 300 at 7 (citing Tr. at 974:18-977:10, 959:6-961:13). And it dismisses Dr. Conte’s
`
`
`
`
`
` Id. at 8 (citing Tr. at 1230:3-1232:1). This is an
`
`understatement. Dr. Conte detailed how
`
` Id. Dr. Conte testified that he believed that
`
`
`
`
`
`
`
`
`
`
`
`5
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 10 of 25
`
`
`
` Id.; PTX-646. It was the jury’s prerogative to weigh this testimony, and Google is not
`
`due JMOL simply because it does not like the jury’s reasonable conclusion.
`
`Google next complains that Dr. Conte only addressed
`
` But this is
`
`misdirection—Dr. Conte was rebutting Google’s expert’s (Dr. Gottesman’s) testimony, and
`
`Dr. Gottesman only addressed
`
`. Tr. at 957:14-16; see also Dkt. 300 at 8
`
`(admitting Dr. Conte addressed “
`
`
`
`”). Google had the burden of persuasion on anticipation, not Flyp.
`
`Nor is Google correct regarding the “automatically associating” limitations. First, it
`
`remarks that the document underlying some of the testimony on this issue, PTX-385, was not
`
`admitted into evidence. This is of no consequence because the jury heard extensive testimony
`
`regarding the document, from both Google’s expert and Flyp’s. Tr. at 1037:18-1059:16, 1077:12-
`
`18, 1083:23-1285:6, 1234:3-1242:2, 1299:13-1309:22, 1310:19-1311:25, 1343:16-1344:5,
`
`1346:12-1347:12.
`
`Second, it argues that “no asserted claim from the Outgoing Call Patents requires more
`
`than ‘a’ secondary number, so pre-2013 Google Voice configured with one secondary telephone
`
`number met the ‘associating’ limitation.” Dkt. 300 at 9. However, this argument is misdirection.
`
`As Dr. Conte explained, the claims require a specific pairing, and pre-2013 Google Voice did not
`
`use that pairing. Tr. at 1234:3-1242:2.
`
`Third, Google confuses infringement with invalidity. It argues that “Flyp used its
`
`,” and argues that PTX-385 does not, in fact, show
`
`
`
`
`
`
`
`. Dkt. 300 at 9. But relitigating credibility questions that the jury resolved against
`
`it—PTX-385 was put before both parties’ experts and the jury was entitled to weigh their testimony
`
`
`
`6
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 11 of 25
`
`and decide what reasonable inferences to make based upon the document. Tr. at 1037:18-1059:16,
`
`1077:12-18, 1083:23-1285:6, 1234:3-1242:2, 1299:13-1309:22, 1310:19-1311:25, 1343:16-
`
`1344:5, 1346:12-1347:12. But even ifPTX-385 did not demonstrate thai
`
`Finally, Google incorrectly argues that Dr. Conte “confirmed” that a
`I 2:21tose Fyp cited t
`
`show infringement of the ‘automatically associating’ limitation.” Dr. Conte did no suchthing.
`
`See Dkt. 300 at 9 (citing Tr. at 1309:19-1310:15). Just prior to the cited portion ofthe transcript,
`
`Dr. Conte was asked about the below diagram:
`
`PTX-385.0002.
`
`Dr. Conte testified as following regarding this diagram:
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 12 of 25
`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 12 of 25
`
`Tr. at 1309:12-18. Google now argues that this matchesi
`S200 2: 9. Tris is fatsfor
`
`reasons.
`
`First, nowhere in the diagram on PTX-385.0002 (seen below) does it showa
`
`ES
`
`
`
`PTX-385.0002. Using the example Google’s counsel elicited during Dr. Conte’s cross-
`
`ee. Nowhere does PTX-385 disclose this as a prior-art association.
`
`Nordoes Google present any other evidence of that prior-art association today.
`
`Thus, the jury could have—and did—teasonably determine that Google failed to present
`
`clear and convincing evidence that pre-2013 Google Voice anticipated the Outgoing Call Patents.
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 13 of 25
`
`
`
`IV. GOOGLE IS NOT ENTITLED TO JMOL OF NO INFRINGEMENT UNDER
`THE PRIOR-COMMERCIAL-USE EXCEPTION
`
`First, for the above reasons, pre-2013 Google Voice does not anticipate the asserted
`
`patents. Google tries to avoid this by incorrectly suggesting that the prior-use defense does not
`
`require it was actually practicing the invention before the priority date. Google’s argument that
`
`“Section 273 does not expressly require that the prior commercial user practice every claim
`
`limitation of the asserted patents” but only “act in good faith and commercially use the allegedly
`
`infringing subject matter in the United States before the specified date” (Dkt. 300 at 10) (emphasis
`
`in original) ignores the plain language of the statute. The statute states that “[a] person shall be
`
`entitled to a defense under section 282(b) with respect to subject matter . . . that would otherwise
`
`infringe a claimed invention if [qualifying prior commercial use existed].” 35 U.S.C. § 273(a)
`
`(emphasis added). Thus, commercial use of related subject matter that did not actually practice
`
`the claimed invention would not entitle a defendant to a defense under section 273, and Google
`
`cites no contrary authority. In fact, other courts have construed the “otherwise infringe”
`
`requirement to prohibit applying the defense where less than the complete invention is used.
`
`Pelican Int’l, Inc. v. Hobie Cat Co., No. 320CV02390RSHMSB, 2023 WL 2127994, at *18 (S.D.
`
`Cal. Feb. 10, 2023); Allfasteners USA, LLC v. Acme Operations Pty., Ltd., 2021 WL 4027738, at
`
`*15 (C.D. Cal. May 25, 2021) (analyzing a prior-use defense under section 273(a) based on the
`
`specific asserted claims in the action); Vaughan Co. v. Glob. Bio-Fuels Tech., LLC, 1:12–CV–
`
`1292, 2013 WL 5755389, at *11-12 (N.D.N.Y. Oct. 23, 2013) (same).
`
`As stated in Pelican:
`
`When Section 273 uses the term “claimed invention,” it describes it
`as the “claimed invention being asserted against the person” that the
`person “would otherwise infringe.” 35 U.S.C. § 273(a). “It is a
`‘bedrock principle’ of patent law that the ‘claims of a patent define
`the invention to which the patentee is entitled the right to exclude.’”
`Phillips, 415 F.3d at 1312. As such, an infringement analysis
`9
`
`
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 14 of 25
`
`
`
`requires a comparison of the properly construed claims to the
`allegedly infringing device or act. Niazi, 30 F.4th at 1350. And an
`infringement analysis is performed on a claim-by-claim basis.
`Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343,
`1351 (Fed. Cir. 2001). Thus, a person can only “otherwise infringe”
`a particular claimed invention if the person’s accused product or act
`meets each and every limitation in a particular claim or claims
`asserted against it. See SIMO, 983 F.3d at 1380; Ericsson, 773 F.3d
`at 1215.
`
`2023 WL 2127994, at *19 (citing Niazi Licensing Corp. v. St. Jude Medical S.C., Inc., 30 F.4th
`
`1339 (Fed. Cir. 2022), SIMO Holdings Inc. v. Hong Kong uCloudlink Network Tech. Ltd., 983
`
`F.3d 1367 (Fed. Cir. 2021), Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201 (Fed. Cir. 2014).
`
`What is identified to satisfy the “prior commercial use” requirement of section 273 must
`
`meet all the limitations of the claim for which the defense is asserted. Id. at *18 (holding the
`
`defendant’s prior-use defense based on its “development and prototyping of two interfaces prior
`
`to the relevant date of July 9, 2017” failed as a matter of law because defendant failed to offer any
`
`evidence that interface prototypes could satisfy the “watercraft” and “rigid body” limitations in the
`
`asserted claims). Consequently, the use of only a component of the invention, even if the
`
`component is the most material aspect of the claimed invention, will not trigger the defense. Id.
`
`Consistent with the statute’s plain language, case law is clear the “good faith” requirement
`
`is in addition to—not a substitute for—the language of “that would otherwise infringe”:
`
`Under 35 U.S.C. § 273, a party is entitled to a non-infringement
`defense with respect to a “composition of matter used in a
`manufacturing or other commercial process, that would otherwise
`infringe a claimed invention.” A party claiming the non-
`infringement defense must have acted
`in good faith and
`commercially used the subject matter at least one year before the
`earliest effective date of the allegedly infringed patent. 35 U.S.C.
`§ 273(a)(1). “Commercial use,” for the purposes of this defense,
`includes premarketing regulatory review. 35 U.S.C. § 273(c)(1).
`
`Stoller Enters., Inc. v. Fine Agrochemicals Ltd., No. 4:20-CV-00750, 2023 WL 8283633, at *13
`
`(S.D. Tex. Nov. 30, 2023).
`
`
`
`10
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 15 of 25
`
`
`
`The jury found, based on substantial evidence, that pre-2013 Google Voice did not
`
`anticipate—i.e., that it did not practice the claimed inventions. Substantial evidence shows that
`
`infringing subject matter—e.g., the pairings for outbound calls and the transmission of the bridge
`
`telephone number and the handset-associated number for inbound calls—was implemented well
`
`after the priority date. See supra Section III. Because Google did not practice the claimed
`
`invention prior to at least July 2013, this alone means that it is not entitled to a defense under
`
`section 273.
`
`Moreover, Google is not entitled to JMOL on prior use because it abandoned its purported
`
`commercial use under section 273(e)(4), and substantial evidence was presented to the jury to
`
`support such a finding. Google’s arguments to the contrary fail for the following reasons.
`
`First, Google attempts to manufacture a burden of production for Flyp by arguing that prior
`
`use is analogous to the burden-shifting framework of interferences under Pre-AIA section 102(g)
`
`and marking under section 287. Dkt. 300 at 11; see also Apotex USA, Inc. v. Merck & Co., 254
`
`F.3d 1031, 1037 (Fed. Cir. 2001); Arctic Cat Inc. v. Bombardier Recreational Prods. Inc., 876
`
`F.3d 1350, 1368 (Fed. Cir. 2017). But this analogy fails because a defense under section 273 is an
`
`affirmative defense for which Google initially bore the burden of pleading (which it did not).
`
`In the 102(g) context, the challenger of a patent bears the initial clear and convincing
`
`burden to prove that the invention was made in this country by another. Apotex, 254 F.3d at 1037.
`
`And a four-year delay from reduction to practice to the filing date is considered “prima facie
`
`suppression or concealment.” Paulik v. Rizkalla, 760 F.2d 1270, 1272 (Fed. Cir. 1985. Similarly,
`
`in the marking context, Arctic Cat provides that the defendant bears the initial burden of
`
`production—a low bar—to identify products it believes are unmarked “patented articles” subject
`
`to 35 U.S.C. § 287. Arctic Cat, 876 F.3d at 1368.
`
`
`
`11
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 16 of 25
`
`
`
`In the context of section 273, the Federal Circuit recognizes as follows:
`
`Congress has considered the implications of patenting secret
`processes, which prior innovators might often choose to conceal as
`trade secrets, and addressed the issue. As part of the AIA, § 5, 125
`Stat. 284, 297-99, Congress revised 35 U.S.C. § 273 to create a
`prior-use defense for a defendant that “commercially used” a
`claimed “process” or “machine, manufacture, or composition of
`matter used in a manufacturing or other commercial process” “at
`least 1 year” before the earlier of the effective filing date of the
`claimed invention or a previous disclosure thereof.
`
`BASF Corp. v. SNF Holding Co., 955 F.3d 958, 968 n.8 (Fed. Cir. 2020).
`
`But even if Flyp did any initial burden of production (it did not), Flyp indisputably satisfied
`
`any such burden based on its Complaint, its briefing on summary judgment, and its 30(b)(6)
`
`deposition notice. For instance, in its Complaint, Flyp cited a Gizmodo article that was later
`
`admitted at trial to demonstrate that Google abandoned pre-2013 Google Voice. Dkt. 1 ¶ 19
`
`(“From 2012 until early 2017, Google made no major revision to Google Voice. Instead, according
`
`to industry observers, Google let Google Voice languish in disrepair for five years.”) (citing Five
`
`Years Later, Google Finally Remembers Google Voice Exists, https://gizmodo.com/five-years-
`
`later-google-finally-remembers-google-voice-1791532022); Tr. at 133:15-24 (admitting PTX-
`
`629).
`
`Likewise, on cross-examination, Google’s witness. Mr. Matt Reilly. admitted that Google
`
`“turned off the servers that were running the Gizmo service.” Tr. at 867:10-14. And because
`
`“Gmail, Google Hangouts, and other apps” did not send data to the handset, as explained above,
`
`any inbound VOIP calling that Google alleges Gizmo possessed was abandoned by at least 2011.
`
`And there is substantial evidence, including testimony, that
`
`
`
`. Id.
`
`at 1037:18-1059:16, 1077:12-18, 1083:23-1285:6, 1234:3-1242:2, 1299:13-1309:22, 1310:19-
`
`1311:25, 1343:16-1344:5, 1346:12-1347:12.
`
`
`
`12
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 17 of 25
`
`
`
`Therefore, sufficient evidence was presented to the jury to support a finding that Google
`
`did not fulfill the requirements of the prior commercial use defense under section 273.
`
`V.
`
`GOOGLE IS NOT ENTITLED TO JMOL OF NONINFRINGEMENT OF THE
`INCOMING CALL PATENTS
`
`Flyp offered substantial evidence to the jury from which they could reasonably conclude
`
`that a SIP invite literally fulfilled the respective “bridge telephone number” limitations of the
`
`Incoming Call Patents. Flyp also presented substantial evidence in the alternative that Google’s
`
`use of a SIP infringed via the doctrine of equivalents.
`
`A.
`
`Google Voice’s SIP Invite Is Literally a “Bridge Telephone Number”
`
`Google improperly attempts to engage in belated claim construction regarding the plain
`
`and ordinary meaning of “bridge telephone number” when it argues that “[a] phone number is a
`
`sequence of digits formatted according to some convention—currently ten digits in the U.S.” Dkt.
`
`300 at 14; but see Wi-Lan, Inc. v. Apple, Inc., 811 F.3d 455, 465 (Fed. Cir. 2016) (“[I]t is too late
`
`at the JMOL stage to argue for or adopt a new and more detailed interpretation of the claim
`
`language and test the jury verdict by that new and more detailed interpretation.” (citing Hewlett-
`
`Packard Co. v. Mustek Sys., Inc., 340 F.3d 1314, 1321 (Fed. Cir. 2003)). “At the JMOL stage, the
`
`question for the trial court is limited to whether substantial evidence supports the jury's verdict
`
`under the issued construction.” Wi-Lan, Inc., 811 F.3d at 465.
`
`Moreover, Google’s proposed construction is wrong. Dr. Nettles testified that a POSITA
`
`would have understood the bridge telephone number to be an address that the handset can use to
`
`connect to the switch and is not limited to a ten-digit telephone number. Tr. at 287:10-23, 304:22-
`
`305:5. So did Dr. Conte. Id. at 1244:8-1245:14. Even Google’s expert, Dr. Gottesman, conceded
`
`on cross-examination that telephone numbers are not necessarily limited in the manner that Google
`
`proposes now. Id. at 1012:18-1022:19.
`
`
`
`13
`
`

`

`Case 6:22-cv-00031-ADA Document 312 Filed 04/23/24 Page 18 of 25
`
`
`
`Nonetheless, Google mistakenly claims that the Court construed the term “bridge telephone
`
`number.” Dkt. 300 at 12. To the contrary, neither party proposed this term for construction. In
`
`such situations “[w]hen a claim phrase is not construed, [a court] defer[s] to the jury’s view of the
`
`claim element unless that view is contrary to the only reasonable view of the claim element.” VLSI
`
`Tech. LLC v. Intel Corp., 87 F.4th 1332, 1341 (Fed. Cir. 2023). Then, the only question is one of
`
`substantial evidence. See Hewlett-Packard, 340 F.3d at 1321.
`
`Apart from the above evidence that a bridge telephone number is not limited in the manner
`
`Google demands, there is also substantial evidence that the accused SIP invite was literally a bridge
`
`telephone number.
`
` Google argues that “[t]here was no evidence that ‘
`
`
`
`’ is literally a phone number as ordinary people or
`
`skilled artisans understand the term.” Dkt. 300 at 14. First, lay understanding or how “ordinary
`
`people” would understand a claim term is of no moment because “the ordinary and customary
`
`meaning of a claim term is the meaning that the term would have to a person of ordinary skill in
`
`the art in question at the time of the invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed.
`
`Cir. 2005). And in fact, both Flyp’s expert who offered an opinion on infringement, Dr. Nettles,
`
`and Flyp’s expert who offered an opinion on validity, Dr. Conte, testified that they would have
`
`under