Case 6:22-cv-00031-ADA Document 327 Filed 05/31/24 Page 1 of 6
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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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`Civil Action No. 6:22-cv-00031-ADA
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`vs.
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`GOOGLE LLC,
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`Defendant.
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`JURY TRIAL DEMANDED
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`ORDER ON PROTECTIVE ORDER DISPUTE
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`Before the Court is a dispute submitted by the parties via an email on April 30, 2024,
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`regarding Defendant Google LLC’s (“Google”) request that the patent prosecution and patent
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`acquisition bars of the Protective Order (Dkt. 98) should apply to Plaintiff Flypsi, Inc.’s (“Flyp”)
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`corporate representative at trial, Mr. Peter Rinfret. The Court conducted a hearing on May 20,
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`2024, and after considering arguments of counsel and the parties positions as submitted via email
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`and summarized below, the Court rules as follows:
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`Google’s Position
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`The Court should deny Flyp’s request to excuse Mr. Rinfret from his obligations under the
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`Protective Order (Dkt. 98) that was jointly prepared by the parties and entered by this Court. Mr.
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`Rinfret read the terms of the PO and explicitly agreed to be bound by them. Mr. Rinfret reaffirmed
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`his commitment to be bound by the terms of the PO by remaining in the courtroom each and every
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`time the Court instructed that anyone not bound by the PO leave the courtroom when the trial
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`proceedings were sealed. Mr. Rinfret was repeatedly exposed to Google’s Highly Sensitive
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`Case 6:22-cv-00031-ADA Document 327 Filed 05/31/24 Page 2 of 6
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`Material (Dkt. 98 at paragraph 13), including highly technical information and source code related
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`to the functionality of the accused product, during the sealed trial proceedings. Thus, Mr. Rinfret’s
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`obligations relating to the patent prosecution and acquisition activities discussed in paragraphs 13
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`and 14 of the PO are in effect. Google is likely to suffer severe prejudice if Mr. Rinfret is allowed
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`to prosecute and/or acquire additional patent assets armed with highly confidential knowledge of
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`the inner workings and economics of Google’s products, particularly where prosecution is ongoing
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`for the asserted patent family. This is precisely why the limitations were agreed to by the parties
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`and the Court up front.
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`After the trial concluded, Flyp contended for the first time that only the obligations in
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`paragraphs 13 and 14 do not apply to Mr. Rinfret because he attended trial as Flyp’s corporate
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`representative. Flyp’s untimely and arbitrary position should not be countenanced. If Flyp
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`believed that Mr. Rinfret should have been excused from any or all of his obligations under the
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`PO, it could have and should have raised the issue before or during trial. Even more troubling,
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`when Google reminded Flyp of Mr. Rinfret’s obligations after trial, Flyp contended that it was
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`Google’s burden to show Mr. Rinfret had any such obligations. Flyp cannot unilaterally––and
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`silently––pick and choose which obligations Mr. Rinfret will honor.
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`Moreover, Mr. Rinfret should not be excused from his obligations under the PO simply
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`because he was a corporate representative at trial. As the Court explicitly noted, being bound by
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`the obligations in the PO was the price of admission to the sealed trial proceedings in order to
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`protect the confidential information of all parties. And the detailed technical and source code
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`information Mr. Rinfret was exposed to during the sealed trial proceedings is precisely the type of
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`exposure that the parties contemplated warranted limitations on patent prosecution and acquisition
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`activity. Flyp’s ongoing prosecution of the asserted patent family, including potential amendments
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`Case 6:22-cv-00031-ADA Document 327 Filed 05/31/24 Page 3 of 6
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`to the asserted patents themselves via reexamination/reissue following the pending IPRs, could
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`result in further litigation against Google. Mr. Rinfret’s participation in those efforts prejudices
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`Google in further litigation, and risks public disclosure of Google’s confidential technical
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`processes even without further litigation. Mr. Rinfret should remain bound to all of his obligations
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`under the PO, including paragraphs 13 and 14, just like all attorneys, staff, experts, and consultants
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`in this case.
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`Relief Requested: Find that good cause does not exist to excuse Mr. Rinfret from his
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`obligations in paragraphs 13 and 14 of the Protective Order, and deny Flyp’s request.
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`Flyp’s Position
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`The Protective Order uses a 4-tier system and permits one corporate representative to
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`receive the lowest tier. (PO at 6(d)). Mr. Rinfret was designated to receive this lowest-level
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`information. But Google designated none of its production under this tier. Google’s entire
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`production was public or designated under higher tiers.
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` Thus before trial, Rinfret had zero information designated by Google and no right
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`whatsoever to information triggering the bars under ¶¶ 13-14, which explicitly are limited to the
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`highest 3-tiers. Paragraph 13 in particular requires that an individual be “permitted to receive”
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`such material, and Rinfret had no such right before trial.
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` Once the jury was empaneled, Flyp was permitted, as a matter of due process and
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`constitutional right, to be present at trial. Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 81
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`(1919); Preferred Prop., Inc. v. Indian River Estates, Inc., 276 F.3d 790, 797 (6th Cir. 2002). Flyp
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`exercised this through Rinfret. Fed. R. Evid. 615, Note (“As the equivalent of the right of a natural-
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`person party to be present, a party which is not a natural person is entitled to have a representative
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`present.”).
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` Google now seeks to punish Flyp by using Flyp’s exercise of its constitutional rights and
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`affirmatively seeks to apply the bars in paragraphs 13 and 14 to Rinfret. But, pursuant to paragraph
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`21, the PO is explicitly limited to pretrial discovery and does not abrogate either party’s rights at
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`trial. Similarly, paragraph 31, states that “[n]othing in this Order shall be construed to effect an
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`abrogation, waiver, or limitation of any kind on the rights of each of the Parties to assert any
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`applicable . . . trial privilege.” By the PO’s own terms, Flyp’s exercise of its trial rights should not
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`limit Rinfret going forward. The bars under paragraphs 13-14 cannot attach to Rinfret based only
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`on his trial participation.
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` Even if the Court finds otherwise, good cause exists to excuse Rinfret. Rinfret did not
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`receive any triggering material before trial and still has no access to any demonstratives or exhibits
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`(or even notes) containing such. There is no prejudice to Google. Google already infringes Flyp’s
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`patents. No further prosecution is necessary vis-à-vis Google. Flyp is a small organization and
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`Rinfret is the only employee who can both effectively participate in trial and guide Flyp’s ongoing
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`patent campaign; barring Rinfret from participating in his Company’s patent prosecution could
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`materially damage Flyp. Google’s position thus threatens Flyp’s business, curtails future patent
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`rights, and harms future litigation against other infringers. Google was aware that Rinfret had only
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`been designated for the lowest tier of information, and yet did not seek his exclusion from
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`proceedings. Rinfret would have willfully vacated the courtroom when it asked the public to do
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`so had Google taken this position or made this request during trial. Google has waived the
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`arguments it now presents, which is compounded by Google’s one-month delay to bring this issue
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`to the Court.
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`Relief Requested: The Court should reject Google’s attempt to impose the burdens of
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`paragraphs 13 and 14 of the PO on trial representatives based on nothing more than their rightful
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`participation in trial. Alternatively, the Court should find that good cause exists to excuse Flyp’s
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`trial representative for the bars imposed by those paragraphs.
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`The Court has considered the parties’ positions and is of the opinion Google’s request
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`ORDER
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`should be DENIED and Flyp’s alternative request to excuse Mr. Rinfret from paragraphs 13 and
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`14 of the Protective Order should be GRANTED.
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`In the Court’s view, the Protective Order by its terms, both the provisions cited by Flyp as
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`well as the whereas clause at the beginning of it, evidences the parties’ belief that the Protective
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`Order is intended to cover discovery. The Court agrees that the plain language of the Protective
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`Order makes it applicable to discovery. Further, the Court sees no evidence that the trial court
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`engaged in the more arduous process required for carrying these additional patent prosecution and
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`acquisition restrictions into trial. See Bin Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 420 (5th Cir.
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`2021) (cautioning against allowing confidentiality that is permissible during the discovery stage
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`to carry over to the adjudicative stage without a more arduous analysis of the need for
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`confidentiality).
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`Alternatively, because of Mr. Rinfret’s background as a businessman rather than the
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`technical expert, to the extent that these bars would apply to information gleaned by him at trial,
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`and because Mr. Rinfret only received information through the testimony at trial rather than having
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`received actual documents pre- or post-trial, the Court finds there is good cause to excuse him
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`from the requirements in paragraphs 13 and 14 of the Protective Order.
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`For clarity, the Court further orders that Mr. Rinfret is still bound by all provisions of the
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`Protective Order (for pretrial, trial, and post-trial proceedings), except paragraphs 13 and 14,
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`including the confidentiality obligations, and that Mr. Rinfret cannot use any “Confidential”
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`Google information that he learned during this case, including during the sealed trial proceedings,
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`in his patent prosecution and acquisition activities.
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`Accordingly, the Court ORDERS that paragraphs 13 and 14 of the Protective Order (Dkt.
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`98) do not apply to the information Mr. Rinfret received during trial and, as such, he is not barred
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`from any patent prosecution as well as acquisition activities.
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`SIGNED this 31st day of May, 2024.
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`DEREK T. GILLILAND
`UNITED STATES MAGISTRATE JUDGE
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