Case 6:22-cv-00031-ADA Document 314 Filed 05/07/24 Page 1 of 13
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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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`
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`CIVIL ACTION NO. 6:22-cv-00031-ADA
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`DEFENDANT GOOGLE LLC’S REPLY IN SUPPORT OF ITS 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 314 Filed 05/07/24 Page 2 of 13
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`TABLE OF CONTENTS
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`Page
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`I.
`II.
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`III.
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`IV.
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`V.
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`INTRODUCTION ............................................................................................................. 1
`GOOGLE IS ENTITLED TO JMOL OF INVALIDITY OF THE ASSERTED
`CLAIMS ............................................................................................................................ 1
`A.
`Google Is Entitled to JMOL of Anticipation of the Incoming Call Patents ........... 1
`B.
`Google Is Entitled to JMOL of Anticipation of the Outgoing Call Patents ........... 3
`GOOGLE IS ENTITLED TO JMOL OF NO INFRINGEMENT UNDER THE
`PRIOR-COMMERCIAL-USE EXCEPTION OF 35 U.S.C. § 273 .................................. 6
`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”............................... 7
`A.
`Google Voice’s SIP Invite Is Not Literally a “Bridge Telephone Number” ......... 7
`B.
`Flyp Failed to Show That SIP Invites Are Equivalent to Bridge Telephone
`Numbers, and Flyp’s Equivalence Theory Was Legally Improper As Well ......... 8
`CONCLUSION .................................................................................................................. 9
`
`i
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`Case 6:22-cv-00031-ADA Document 314 Filed 05/07/24 Page 3 of 13
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`I.
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`INTRODUCTION
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`Flyp contends that substantial evidence supported the jury’s liability verdict, but it did not.
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`To be sure, Flyp’s experts presented conclusory assertions that prior art Google Voice differed
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`from the post-2018 Google Voice and therefore did not anticipate the asserted claims, that the
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`prior commercial use defense of 35 U.S.C. § 273 did not apply, and that post-2018 Google Voice
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`infringed the Incoming Call Patents. But conclusory expert testimony is insufficient to support a
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`verdict, and none of the other evidence Flyp cites supports the liability verdict here. The
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`uncontroverted evidence warrants judgment as a matter of law on each ground in Google’s
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`motion.
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`II.
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`GOOGLE IS ENTITLED TO JMOL OF INVALIDITY OF THE ASSERTED
`CLAIMS
`A.
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`Google Is Entitled to JMOL of Anticipation of the Incoming Call Patents
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`Flyp argues that prior art Google Voice did not anticipate the asserted claims of the Incoming
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`Call Patents when connecting VoIP calls through a Gizmo5 endpoint because the SIP invite sent
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`to the handset allegedly did not contain the correct “bridge telephone number” (
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`). Flyp does not dispute that the SIP
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`invite generated by
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` contained the requisite “bridge telephone
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`number” information under Flyp’s view of that term’s plain meaning; it contends that that
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`information was not sent to the handset. According to Flyp,
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`.
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`But Flyp’s position is supported by nothing but attorney argument. Dr. Conte provided no
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`testimony about the contents of a SIP invite sent to the handset when using a Gizmo5 endpoint
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`1
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`Case 6:22-cv-00031-ADA Document 314 Filed 05/07/24 Page 4 of 13
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`for a VoIP call. Flyp cites testimony from Dr. Conte regarding
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`testified that “
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`. Dr. Conte
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`” Tr. 1250:25-1251:1.
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`But nowhere did Dr. Conte testify that any required pre-call information (including the bridge
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`telephone number
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`) was
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`. Dr. Conte was silent on the contents of the SIP
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`invite (or any other information) sent to the handset, including, e.g., whether the SIP invite
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`contains information
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`. The same
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`is true for the testimony of Tom Ford cited by Flyp.
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`The only other evidence Flyp cites was from Mr. Reilly regarding the operation of Gizmo5
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`with Google Voice before Gizmo5 was acquired by Google in 2009. But Mr. Reilly testified that
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`the Google Voice server would send a SIP invite to the Gizmo5 server, and that Gizmo5 would
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`send that same SIP invite to the Gizmo5 software on the handset. Tr. 842:3-843:5; 843:18-
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`846:13. Mr. Reilly’s testimony thus contradicts Flyp’s unsupported assertion that “Gizmo5 . . .
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`. The uncontroverted evidence showed that the SIP invite generated by
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`,
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`,
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`was sent to the handset along with the handset-associated telephone number (i.e. the Google
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`Voice number). See Tr. 842:3-843:5, 843:18-846:13; 852:18-853:17 (Google Voice number sent
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`to the handset). Other Google witnesses confirmed that prior art Google Voice used the same SIP
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`transmission that Flyp accused of satisfying the “transmitting pre-call information” limitations
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`when alleging infringement of the Incoming Call Patents. Tr. 735:13-16.
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`2
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`Flyp also ignores that Gizmo5 was not a separate VoIP solution after it was acquired by
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`Google in 2009. Mr. Reilly testified that Gizmo5 was fully integrated into Google Voice in 2010
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`and was therefore part of a single VoIP solution for Google Voice. Tr. 846:14-848:21, 851:1-10.
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`Dr. Gottesman also provided testimony to this effect,
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`.
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`Tr. 910:19-912:15; see also DX-945. Thus, the uncontroverted evidence showed that Gizmo5
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`VoIP calling
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`.
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`Even if the SIP invite sent to the handset from a Gizmo5 switch did not include an address
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`for connecting the call to
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`, Flyp and Dr. Conte admitted that
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`. Nothing in the
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`claims precluded
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` from satisfying the switch limitation. Thus,
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`
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` satisfied the switch limitation.
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`Finally, as discussed in Google’s motion, even ignoring VoIP calls to Gizmo endpoints, both
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`parties’ technical experts agreed that Google Voice supported receiving incoming VoIP calls
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`using Gmail, Google Hangouts, and other apps. Tr. 912:16-914:7; 914:25-916:13; 1321:11-
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`1322:2; see also Dkt. 300 (“Mot.”) at 4. Whether Google Voice was integrated into those other
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`apps does not matter because Google Voice itself anticipated the asserted claims.
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`B.
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`Google Is Entitled to JMOL of Anticipation of the Outgoing Call Patents
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`As discussed in Google’s motion, Flyp’s reliance on Mr. Ford’s testimony is irrelevant (see
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`Mot. at 7-8), and Dr. Conte’s testimony regarding PTX-385 is a red herring (see Mot. at 9).
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`Flyp’s reliance on Mr. Rinfret’s testimony to support how Google Voice used access numbers in
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`2009 should be given no weight given that he is not an expert witness, he did not analyze any
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`code or internal Google documents relating to 2009 or any other prior art version of Google
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`3
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`Voice (e.g., from 2010-2013), and he did not provide any technical testimony related to any
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`version of prior art Google Voice. See, e.g., Tr. 130:6-15.
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`Dr. Conte testified about
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`Google’s motion, he provided no testimony about
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`, but as discussed in
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`
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`. Flyp accuses Google of misdirection because
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`“Dr. Conte was rebutting Google’s expert’s (Dr. Gottesman’s) testimony, and Dr. Gottesman
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`only addressed
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`.” Dkt. 311 (“Opp.”) at 6. Not true. Dr. Gottesman expressly
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`discussed his analysis of
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`. Tr. 976:11-977:10, 895:15-19, 896:15-897:6; see Mot. at 7. Thus, the testimony of
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`Google’s engineers and Dr. Gottesman regarding
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` stands
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`unrebutted. Mot. at 8.
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`Contrary to Flyp’s suggestion, Dr. Conte confirmed that the prior art association of paired
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`numbers in Google Voice shown in PTX-385 matched those Flyp cited in asserting infringement
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`of the “automatically associating” limitation. Tr. 1309:19-1310:15. Dr. Conte admitted that
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`.
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`Id.
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`4
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`PTX-385.0002 (annotated). Dr. Nettles used the same pairing in his infringement analysis.
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`Nettles Demonstratives at 75 (annotations in original).
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`Flyp attempts to muddy Dr. Conte’s admission by arguing that
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`. But as Dr. Conte confirmed,
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`. In fact, Dr. Nettles relied on
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`.
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`5
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`Nettles Demonstratives at 76 (annotations in original; modified with clearer images from the
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`underlying exhibit, PTX-414), Tr. 276:2-11; PTX-385.0002-4 (explaining
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`). And the claims do not recite
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`any limitations relating to how the pairs are associated.
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`III. GOOGLE IS ENTITLED TO JMOL OF NO INFRINGEMENT UNDER THE
`PRIOR-COMMERCIAL-USE EXCEPTION OF 35 U.S.C. § 273
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`As discussed in Section II.A above and in Google’s previous briefing, Google Voice
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`supported and continues to support receiving incoming VoIP calls using Gmail, Google
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`Hangouts, and other apps
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`. As discussed in Section II.B above and in Google’s
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`previous briefing,
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`. Flyp’s abandonment claims are thus unfounded.
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`6
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`Case 6:22-cv-00031-ADA Document 314 Filed 05/07/24 Page 9 of 13
`Case 6:22-cv-00031-ADA Document 314 Filed 05/07/24 Page 9 of 13
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`Asfor all other arguments raised in Flyp’s opposition, Google will stand on its previous
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`briefing.
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`IV.
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`GOOGLE IS ENTITLED TO JMOL OF NONINFRINGEMENT OF THE
`
`INCOMING CALL PATENTS BECAUSETHE SIP INVITE USED BY
`
`GOOGLEVOICEIS NOT A “BRIDGE TELEPHONE NUMBER”
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`A.
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`Google Voice’s SIP Invite Is Not Literally a “Bridge Telephone Number”
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`Flyp’s argumentfor literal infringement of the Incoming Call Patents depended on the
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`premise that any address for a switch where twocall legs are bridged qualifies as a “bridge
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`telephone number,” regardless of whether that address is a telephone numberas ordinarily
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`understood. In particular, Flyp argued that theP| ofthe SIP invite used in Google Voice
`provides the “bridge telephone number” becauseit suppliesPo accused of
`being the claimed switch. It was undisputed that thea is formatted like this:
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`The question is thus whether the jury could reasonably conclude that
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`ee
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`is a phone numberunderthe plain and ordinary meaning of that term. As Google’s motion
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`explained, it could not. And none of Flyp’s counter-arguments carries the day.
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`Flyp first accuses Google (Opp. at 13) of engagingin belated claim construction. Notso.
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`Google simply contendsthat the plain and ordinary meaning of “phone number”is a sequence of
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`digits formatted according to a convention. Google has never contendedthatall phone numbers
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`musthave ten digits—thatis just the current U.S. convention. But underthe plain language of
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`the term, phone numbers must be numbers.
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`Flyp’s citations (id.) to expert testimony are unavailing. At Tr. 287:10-13, Dr. Nettles only
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`said that a SIP invite “says .
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`.
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`. you have an incoming phonecall.” It does not follow that a SIP
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`

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`Case 6:22-cv-00031-ADA Document 314 Filed 05/07/24 Page 10 of 13
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`invite is a telephone number. At Tr. 304:22-305:5, Dr. Nettles testified that “SIP invites and . . .
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`SIP addresses match literally with the requirements of the bridge telephone number” limitation.
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`But that was just conclusory ipse dixit. At Tr. 1244:8-1245:14, Dr. Conte asserted that
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` is a
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`phone number because it can be used to ring cellphones. But what something does and what it is
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`are two different things. Dr. Conte added that his mother-in-law grew up with the phone number
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`“100.” But 100 is a number. “
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`” is
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`not. Flyp says Dr. Gottesman conceded at Tr. 1012:18-1022:19 that telephone numbers are not
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`limited as Google asserts. He did no such thing: he agreed that telephone numbers need not have
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`ten digits, and that “PL4-3511” and “1-800-HURT” could be phone numbers. But Google’s
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`motion explained why that is fully consistent with Google’s position: the letters represent digits.
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`Flyp next notes (Opp. at 14-15) that the specification says a “primary telephone number”
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`may be a SIM number or Electronic Serial Number (ESN) assigned to a handset at the time of
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`activation. But both are numbers, so this is fully consistent with Google’s position. Again,
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`Google is not contending that all phone numbers must have ten digits. The fact that ESNs can be
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`written in hexadecimal format proves nothing: they are still numbers even though written in
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`base-16. “
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`” is not written in
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`hexadecimal or any other numerical format, so it is not a telephone number, much less a bridge
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`telephone number, as a matter of law.
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`B.
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`Flyp Failed to Show That SIP Invites Are Equivalent to Bridge Telephone
`Numbers, and Flyp’s Equivalence Theory Was Legally Improper As Well
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`Flyp also argued the doctrine of equivalents (DOE) at trial, but its evidence did not satisfy
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`the standard of proof required by Federal Circuit precedent. Moreover, Flyp should not have
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`been allowed to try a DOE theory in the first place due to prosecution history estoppel and the
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`prohibition on ensnarement of prior art.
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`8
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`Case 6:22-cv-00031-ADA Document 314 Filed 05/07/24 Page 11 of 13
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`Google’s motion explained why Dr. Nettles’s conclusory assertion that the SIP invite
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`performs substantially the same function in substantially the same way to achieve substantially
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`the same result was insufficient under decades of Federal Circuit precedent requiring
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`particularized testimony and linking argument. Flyp’s attempt to backfill now fails.
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`Even assuming Dr. Nettles sufficiently testified that the functions of SIP invites and bridge
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`telephone numbers were the same, he did not testify that SIP invites and bridge telephone
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`numbers operate in substantially the same way. Testimony that receiving a SIP invite indicates
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`an incoming call was not testimony that that SIP invites and bridge telephone numbers operate in
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`substantially the same way. That testimony at best went to one function of a SIP invite, not how
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`that function is performed. Similarly, testimony that the SIP invite is used to connect the call at
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`best went to the ultimate result, not how the result is achieved. Beyond that, Dr. Nettles simply
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`hand-waved and asserted overall equivalence between SIP invites and bridge telephone numbers,
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`and that was not enough as a matter of law.
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`As for prosecution history estoppel and the prohibition on ensnarement, Google will stand on
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`its previous briefing.
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`V.
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`CONCLUSION
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`The Court should grant judgment to Google as a matter of law.
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`9
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`Case 6:22-cv-00031-ADA Document 314 Filed 05/07/24 Page 12 of 13
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`DATED: May 1, 2024
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`
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`Respectfully submitted,
`
`/s/Robert W. Unikel
`Robert W. Unikel (Pro Hac Vice)
`robertunikel@paulhastings.com
`John A. Cotiguala (Pro Hac Vice)
`johncotiguala@paulhastings.com
`Daniel J. Blake (Pro Hac Vice)
`danielblake@paulhastings.com
`Grayson S. Cornwell (Pro Hac Vice)
`graysoncornwell@paulhastings.com
`PAUL HASTINGS LLP
`71 South Wacker Drive, Suite 4500
`Chicago, IL 60606
`Telephone: (312) 499-6000
`Facsimile: (312) 499-6100
`
`Elizabeth Brann (Pro Hac Vice)
`elizabethbrann@paulhastings.com
`Ariell N. Bratton (Pro Hac Vice)
`ariellbratton@paulhastings.com
`PAUL HASTINGS LLP
`4655 Executive Drive, Suite 350
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
`
`Robert R. Laurenzi (Pro Hac Vice)
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 318-6000
`Facsimile: (212) 319-4090
`
`Joshua Yin (Pro Hac Vice)
`joshuayin@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`Dan L. Bagatell (Pro Hac Vice)
`dbagatell@perkinscoie.com
`PERKINS COIE LLP
`
`10
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`Case 6:22-cv-00031-ADA Document 314 Filed 05/07/24 Page 13 of 13
`
`
`3 Weatherby Road
`Hanover, NH 03755
`Telephone: (602) 351-8250
`Facsimile: (602) 648-7150
`
`Andrew T. Dufresne (Pro Hac Vice)
`adufresne@perkinscoie.com
`PERKINS COIE LLP
`33 E. Main St. Ste. 201
`Madison, WI 53703
`Telephone: (608) 663-7460
`Facsimile: (608) 663-7499
`
`Paige Arnette Amstutz
`State Bar No.: 00796136
`pamstutz@scottdoug.com
`SCOTT, DOUGLASS & MCCONNICO, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`Telephone: (512) 495-6300
`Facsimile: (512) 495-6399
`
`Attorneys for Defendant Google LLC
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`CERTIFICATE OF SERVICE
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`
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`I hereby certify that on the 1st day of May, 2024, a true and correct copy of the foregoing
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`document was filed electronically with the Clerk of Court using the CM/ECF system. As of this
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`date, all counsel of record have consented to electronic service and are being served with a copy
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`of this document through the Court’s CM/ECF system and by email.
`
`
`
`/s/Robert W. Unikel
`Robert W. Unikel
`
`
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`11
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