Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 1 of 15
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`
`FLYPSI, INC. (D/B/A FLYP),
`
`
`
`
`
`
`
`Plaintiff,
`
`Civil Action No. 6:22-cv-31-ADA
`
`vs.
`
`GOOGLE LLC,
`
`Defendant.
`
`
`
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`
`
`
`
`FLYPSI, INC.’S RESPONSE IN OPPOSITION TO
`GOOGLE LLC’S MOTION TO DISMISS CLAIMS OF
`INDIRECT AND WILLFUL INFRINGEMENT
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 2 of 15
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`Introduction ..........................................................................................................................1
`
`Legal Standard .....................................................................................................................2
`
`A.
`
`B.
`
`C.
`
`The Rule 12(b)(6) standard is a low threshold—it only requires sufficient
`allegations that, if taken as true, would support finding in its favor. .......................2
`
`Indirect infringement and willfulness require pleadings that, if true, would support
`finding the infringer had actual knowledge of the patents, or was willfully blind. .2
`
`Contributory infringement requires pleadings that, if true, would support finding
`the accused functionality is not a staple article or commodity suitable for
`substantial non-infringing use. .................................................................................3
`
`III.
`
`Argument .............................................................................................................................3
`
`A.
`
`B.
`
`C.
`
`Flyp’s well-pleaded allegations are sufficient to support its claim for indirect
`infringement and willful infringement. ....................................................................4
`
`Google had actual notice at least by service of the Complaint, which is sufficient
`to support claims for post-suit indirect and willful infringement. ...........................8
`
`Flyp’s allegations are sufficient to state a claim for contributory infringement. .....9
`
`
`
`
`
`
`
`i
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 3 of 15
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`BillJCo, LLC v. Apple Inc.,
`No. 6:21-CV-00528-ADA, 2022 WL 299733 (W.D. Tex. Feb. 1, 2022) ............................7, 10
`
`Content Guard Holdings, Inc. v. Google Inc.,
`No. 2:14-CV-61-JRG, 2015 WL 1432208 (E.D. Tex. Mar. 30, 2015) .....................................10
`
`CPC Patent Techs. Pty. v. Apple Inc.,
`No. 6:21-CV-00165-ADA, 2022 WL 118955 (W.D. Tex. Jan. 12, 2022) .................................8
`
`Estech Sys., Inc. v. Target Corp.,
`No. 2:20-CV-123, 2020 WL 6534094 (E.D. Tex. Aug. 27, 2020), report and
`recommendation adopted, No. 2:20-CV-123, 2021 WL 966017 (E.D. Tex.
`Mar. 12, 2021) ....................................................................................................................2, 3, 4
`
`Finjan, Inc. v. Cisco Sys., Inc.,
`No. 5:17-cv-00072-BLF, 2017 WL 2462423 (N.D. Cal. Jun. 7, 2017) .................................7, 8
`
`IOENGINE, LLC v. PayPal Holdings, Inc.,
`No. CV 18-452-WCB, 2019 WL 330515 (D. Del. Jan. 25, 2019) .............................................9
`
`Kirsch Rsch. & Dev., LLC v. Tarco Specialty Prods., Inc.,
`No. 6:20-cv-00318-ADA, 2021 WL 4555802 (W.D. Tex. Oct. 4, 2021) ..............................7, 8
`
`Maxell Ltd. v. Apple Inc.,
`No. 5:19-cv-00036-RWS, 2019 WL 7905455 (E.D. Tex. Oct. 23, 2019) ..............................6, 7
`
`Meetrix IP, LLC v. Cisco Sys., Inc.,
`No. 1-18-CV-309-LY, 2018 WL 8261315 (W.D. Tex. Nov. 30, 2018) ..................................8, 9
`
`Motiva Patents, LLC v. Sony Corp.,
`408 F. Supp. 3d 819 (E.D. Tex. 2019)........................................................................................6
`
`Nalco Co. v. Chem-Mod, LLC,
`883 F.3d 1337 (Fed. Cir. 2018) ..............................................................................................3, 4
`
`Pall Corp. v. Micron Separations, Inc.,
`66 F.3d 1211 (Fed. Cir. 1995) ....................................................................................................9
`
`RightQuestion, LLC v. Samsung Elecs. Co.,
`No. 2:21-CV-00238-JRG, 2022 WL 507487 (E.D. Tex. Feb. 18, 2022)
`(Gilstrap, J.) ...........................................................................................................................8, 9
`
`ii
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 4 of 15
`
`Simplivity Corp. v. Springpath, Inc.,
`No. CV 4:15-13345-TSH, 2016 WL 5388951 (D. Mass. July 15, 2016) ........................ passim
`
`State Indus., Inc. v. A.O. Smith Corp.,
`751 F.2d 1226 (Fed. Cir. 1985) ..................................................................................................6
`
`USC IP P’ship, L.P. v. Facebook, Inc.,
`No. 6:20-CV-00555-ADA, 2021 WL 3134260 (W.D. Tex. July 23, 2021) ...............................2
`
`WCM Indus., Inc. v. IPS Corp.,
`721 F. App’x 959 (Fed. Cir. 2018) .........................................................................................3, 6
`
`Statutes
`
`35 U.S.C. § 271(c) ...........................................................................................................................3
`
`Other Authorities
`
`Fed. R. Civ. P. 12 .........................................................................................................................2, 4
`
`
`
`iii
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 5 of 15
`
`I.
`
`INTRODUCTION
`
`Flyp’s Complaint sets forth a sufficient and compelling narrative of how Google pirated
`
`technology from Flyp under the guise of a potential venture capital investment. It explains how
`
`Google’s venture capital arm solicited a review of Flyp’s technology and intellectual property only
`
`to incorporate, months later, Flyp’s inventions into its own mothballed commercial product
`
`(Google Voice) to address its long-standing shortcomings. Flyp’s Complaint goes on to detail direct
`
`infringement and to show how Google Voice infringes its patents and provides written and video
`
`evidence showing how Google instructs its users to use the infringing functionality.
`
`Despite these robust allegations, Google incorrectly contends that Flyp has not stated a
`
`claim for relief of indirect or willful infringement because Google did not have knowledge of the
`
`Asserted Patents before service. As Flyp’s Complaint alleges, however, Google is a sophisticated
`
`competitor that copied inventions from Flyp’s patent applications that subsequently issued as the
`
`Asserted Patents. This is sufficient to reasonably infer either that Google would have tracked those
`
`pending applications, and thus had actual knowledge of when they issued, or that Google made
`
`the deliberate decision not to track those patent applications, in which case Google was willfully
`
`blind. Either inference is sufficient to satisfy the pleading required for pre-suit knowledge.
`
`Moreover, setting aside pre-suit knowledge, Google plainly had knowledge from service of the
`
`Complaint in this case, and its attempts to argue otherwise are contrary to the prevailing law in this
`
`district.
`
`Google also contends that Flyp has not adequately pleaded contributory infringement
`
`because Flyp did not sufficiently allege that the accused functionality was a “material part” of the
`
`invention or that the accused functionality did not have substantial non-infringing uses. Neither
`
`contention is true. Flyp pleaded that the accused functionality that Google copied was a key
`
`advancement and that its implementation, including into the Google Voice application and its
`1
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 6 of 15
`
`server-side components, like the servers and switches for routing calls, was a material part of that
`
`advancement. This, coupled with Flyp’s allegations of direct infringement and incorporation of
`
`video and written instructions from Google that only show its users how to use the accused
`
`functionality in infringing ways, is sufficient at the pleading stage to raise a plausible inference
`
`that there are no substantial non-infringing uses of the accused functionality.
`
`II.
`
`LEGAL STANDARD
`
`A.
`
`The Rule 12(b)(6) standard is a low threshold—it only requires sufficient allegations
`that, if taken as true, would support finding in its favor.
`
`Rule 12 requires Flyp’s Complaint to “contain sufficient factual matter, if accepted as true,
`
`to ‘state a claim to relief that is plausible on its face.’” USC IP P’ship, L.P. v. Facebook, Inc.,
`
`No. 6:20-CV-00555-ADA, 2021 WL 3134260, at *1 (W.D. Tex. July 23, 2021). To satisfy this
`
`standard, Flyp need only “plead ‘factual content that allows the court to draw the reasonable
`
`inference that the defendant is liable for the misconduct alleged.’” Id. “[I]n resolving a motion to
`
`dismiss for failure to state a claim, the question is ‘not whether [Flyp] will ultimately prevail, . . .
`
`but whether [the] complaint was sufficient to cross the federal court’s threshold.’” Id. Hence, “[t]he
`
`court’s task is to determine whether [Flyp] has stated a legally cognizable claim that is plausible,
`
`not to evaluate [Flyp’s] likelihood of success.” Id.
`
`B.
`
`Indirect infringement and willfulness require pleadings that, if true, would support
`finding the infringer had actual knowledge of the patents, or was willfully blind.
`
`For induced infringement, stating a cognizable claim requires Flyp to plead facts that
`
`plausibly show knowledge of the Asserted Patents, which “can be shown directly or through
`
`evidence of willful blindness on the part of the alleged infringer.” Estech Sys., Inc. v. Target Corp.,
`
`No. 2:20-CV-123, 2020 WL 6534094, at *4 (E.D. Tex. Aug. 27, 2020), report and recommendation
`
`adopted, 2021 WL 966017 (Mar. 12, 2021). To plead a cognizable claim for willful infringement,
`
`Flyp need only allege facts that plausibly show “that the risk [of infringement] was either so known
`
`2
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 7 of 15
`
`or so obvious that it should have been known to the accused infringer.” Id. at *6 (quoting WCM
`
`Indus., Inc. v. IPS Corp., 721 F. App’x 959, 969 (Fed. Cir. 2018)). Accordingly, “a well-pled claim
`
`for willful blindness is sufficient to state a claim for willful infringement.” Id.
`
`C.
`
`Contributory infringement requires pleadings that, if true, would support finding
`the accused functionality is not a staple article or commodity suitable for substantial
`non-infringing use.
`
`“Contributory infringement occurs if a party sells, or offers to sell, ‘a component of a
`
`patented ... combination, ... or a material ... for use in practicing a patented process, constituting a
`
`material part of the invention, knowing the same to be especially made or especially adapted for
`
`use in an infringement of such patent, and not a staple article or commodity of commerce suitable
`
`for substantial noninfringing use.’” Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1356 (Fed. Cir.
`
`2018) (quoting 35 U.S.C. § 271(c)). “A substantial noninfringing use is any use that is ‘not unusual,
`
`far-fetched, illusory, impractical, occasional, aberrant, or experimental.’” Id. at 1357.
`
`When a patentee “alleges that the [accused functionality] has no substantial noninfringing
`
`uses,” then the court “must presume these allegations are true at the pleading stage.” Id. “To the
`
`extent [accused infringers] dispute these allegations, that is a factual inquiry not suitable for
`
`resolution on a motion to dismiss.” Id.
`
`III. ARGUMENT
`
`Google’s Motion improperly demands that Flyp describe its factual evidence of each key
`
`claim element at the pleading stage, including specific details about the extent of Google’s pre-suit
`
`knowledge (for indirect and willful infringement) and specific details negating any potential
`
`non-infringing uses of the accused functionality that Google might contend apply. But that is not
`
`Flyp’s burden at the pleading stage. Instead, Flyp only needs to have provided sufficient allegations
`
`in the Complaint that, if taken as true, would support finding Google liable for indirect, willful,
`
`and contributory infringement. Flyp has easily met that burden.
`
`3
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 8 of 15
`
`A.
`
`Flyp’s well-pleaded allegations are sufficient to support its claim for indirect
`infringement and willful infringement.
`
`Google’s assertion that Flyp has not sufficiently pleaded indirect or willful infringement is
`
`wrong. Flyp’s indirect and willful infringement claims require that Google had knowledge of the
`
`Asserted Patents. See, e.g., Estech Sys., Inc., 2020 WL 6534094, at *3. Two types of allegations
`
`are sufficient to show this knowledge: (1) those that support finding Google had actual knowledge
`
`of the Asserted Patents and (2) those that support a reasonable inference that Google was willfully
`
`blind to the Asserted Patents’ existence. See id. at *4 (“Knowledge of the patent [for indirect
`
`infringement] can be shown directly or through evidence of willful blindness on the part of the
`
`alleged infringer.”), *6 (“[A] well-pled claim for willful blindness is sufficient to state a claim for
`
`willful infringement.”).
`
`Flyp’s Complaint contains sufficient allegations to support finding actual knowledge or, in
`
`the alternative, willful blindness. As the Complaint explains, in 2015 Mr. Rich Miner, general
`
`partner at GV (then Google Ventures),1 requested a meeting with Flyp’s founder, Peter Rinfret, a
`
`named inventor on the Asserted Patents. Compl. ¶ 20. At the time, Google Voice had been
`
`languishing for several years, and Google had failed to address a critical flaw in the product: the
`
`inability to maintain Caller ID integrity for outbound calls. Compl. ¶¶ 18–19. During their meeting,
`
`Messrs. Rinfret and Miner discussed Flyp’s technology, including its patent filings. Compl. ¶ 20.
`
`After that meeting, Google Voice released a revamped version incorporating Flyp’s technology
`
`(including inventions claimed in the Asserted Patents), which mirrored Flyp’s inbound method and
`
`also allowed Google Voice to now maintain the Caller ID integrity for outbound calls.
`
`
`
`1 While Google coyly positions Mr. Miner as a mere “employee” (Mot. at 5), Mr. Miner was a cofounder
`of Android and possesses a Ph.D. in computer science. In addition, Mr. Miner is on the board of directors
`of Dialpad, Inc., which has been sued on the same Asserted Patents in another case pending in this district
`(Case No. 6:21-cv-642-ADA).
`
`4
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 9 of 15
`
`Compl. ¶¶ 21–23.
`
` Considering these facts in the light most favorable to Flyp, they support an inference that
`
`Google either knew about the Asserted Patents when they issued or was willfully blind to their
`
`existence. This is evident from the outcome of the analogous Simplivity Corp. v. Springpath, Inc.,
`
`No. CV 4:15-13345-TSH, 2016 WL 5388951 (D. Mass. July 15, 2016). As here, the parties in
`
`Simplivity were competitors, the accused infringer had at least once investigated the patentee’s
`
`technology before the patents issued, and after that investigation, the accused infringer had
`
`released a commercial product that incorporated features from the patentee’s commercial product
`
`and patented technology. See id. *9. The patents had not yet issued when the accused infringer
`
`investigated the patentee’s technology, but applications were pending. See id.
`
`Simplivity correctly reasoned that when there are plausible allegations that an accused
`
`infringer and competitor has investigated the patented technology and developed a product that
`
`mimics the claimed inventions, “this narrative lends support to a reasonable inference that [the
`
`accused infringer] knew of the [asserted patents] before this litigation.” Id. This is particularly true
`
`when the accused infringer is a “sophisticated party” that could have, after investigating and
`
`copying Flyp’s technology, tracked the pending applications using publicly available resources:
`
`Indeed, it is difficult to envision the alternative scenario: a
`sophisticated party, after allegedly investigating and in some
`regard—the extent to which likely will become clear through
`discovery—copying a competitor’s technology, being oblivious to
`the patent reflecting that technology. While such a situation is
`possible, it certainly is not likely enough to render implausible an
`inference to the contrary.
`
`Id. The same reasoning applies here. Taking Flyp’s allegations as true, it is reasonable to infer that
`
`Google, a sophisticated party that sent a high-level executive to inspect Flyp’s technology and
`
`pending applications, and then incorporated Flyp’s technology into its Google Voice product,
`
`would have tracked those pending applications and been aware of the Asserted Patents—or it was
`5
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 10 of 15
`
`willfully blind to their existence if it buried its head in the sand after copying the technology
`
`disclosed in them. See Motiva Patents, LLC v. Sony Corp., 408 F. Supp. 3d 819, 833–38 (E.D. Tex.
`
`2019) (finding a deliberate decision not to review patents sufficient for willful blindness pleading).
`
`As Simplivity explained, it does not matter that the relevant allegations are from before the
`
`Asserted Patents issued because “knowledge of the patents may be proven by either direct or
`
`circumstantial evidence.” Id. at *10. Thus, having established a reasonable inference that the
`
`accused infringer had actual knowledge of the Asserted Patents, or was willfully blind to their
`
`existence, the patentee is due the opportunity to reveal supporting evidence through discovery. See
`
`id. (“It is entirely plausible that discovery will reveal that [the accused infringer], relying upon
`
`information concerning [the patentee’s] technology gleaned through [the accused infringer’s]
`
`investigation, learned of the patent once it issued….”).
`
`Despite Google’s contrary suggestions, State Industries, Inc. v. A.O. Smith Corp., 751 F.2d
`
`1226, 1236 (Fed. Cir. 1985), and Maxell Ltd. v. Apple Inc., No. 5:19-cv-00036-RWS, 2019 WL
`
`7905455, at *5 (E.D. Tex. Oct. 23, 2019), do not stand for a bright-line rule against patent
`
`applications supporting a reasonable inference of knowledge about the subsequently issued patent.
`
`Google neglects to mention that the Federal Circuit has already rejected its contention regarding
`
`State Industries: “this court has already held that State Industries does not establish a per se rule,
`
`. . . but rather, ‘is in harmony with our prior and subsequent case law, which looks to the totality
`
`of the circumstances presented in the case.’” WCM Indus., Inc., 721 F. App’x at 970. For its part,
`
`Maxell merely says that “[k]nowledge of a patent application alone is insufficient to demonstrate
`
`knowledge of the later issued patent.” 2019 WL 7905455, at *5 (emphasis added). It also explicitly
`
`allows that there may be situations (like those in Simplivity and, by analogy, here) “where a party’s
`
`exposure to a patent application may give rise to knowledge of a later issued patent.” Id.
`
`6
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 11 of 15
`
`Nor is it the case, as Google suggests, that this Court has adopted a bright-line rule that
`
`knowledge from before a patent issues can never be sufficient to support claims of indirect
`
`infringement or willfulness. In BillJCo, LLC v. Apple Inc., which Google cites for that proposition,
`
`this Court simply gave “no weight” to an implausible allegation that a June 2019 letter referenced
`
`“a patent” that did not issue until November 2019. No. 6:21-CV-00528-ADA, 2022 WL 299733,
`
`at *3 (W.D. Tex. Feb. 1, 2022). This does not imply that knowledge of patent applications can
`
`never provide a reasonable inference about knowledge of the later-issued patent; it simply means
`
`that allegations must be plausible to warrant being given weight. And Google has not identified
`
`any allegations in Flyp’s Complaint that are implausible.
`
`Google is also wrong that Finjan, Inc. v. Cisco Systems, Inc., No. 5:17-cv-00072-BLF,
`
`2017 WL 2462423, at *5 (N.D. Cal. Jun. 7, 2017), suggests this Court should reach a different
`
`conclusion. Unlike here or Simplivity, there was no allegation in Finjan that the accused infringer
`
`had solicited a meeting with the patentee, at which it reviewed the patentee’s technology and
`
`pending patent applications, and then within months thereafter incorporated the patentee’s
`
`inventions into its commercial product to solve a long-standing shortcoming. To the contrary, the
`
`Finjan court explained that the allegations in that case failed to pass muster because they lacked
`
`those sorts of details: it was unable to “circumstantially infer” knowledge because there were “not
`
`enough factual allegations to make this plausible.” Id.
`
`Similar afflictions affect Google’s reliance on Kirsch Research & Development, LLC v.
`
`Tarco Specialty Products, Inc., No. 6:20-cv-00318-ADA, 2021 WL 4555802, at *2 (W.D. Tex.
`
`Oct. 4, 2021). Like Finjan, Kirsch stands for the proposition that knowledge of a patent portfolio
`
`“without more” may not be sufficient. See id. But as described above, there is significantly “more”
`
`here. See, e.g., Compl. ¶¶ 18–23, 33, 45, 57, 72, 86. Finjan and Kirsch thus do not suggest a
`
`7
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 12 of 15
`
`different conclusion from Simplivity. This Court should, accordingly, find that Flyp has pleaded
`
`sufficient allegations to establish a plausible claim for relief of indirect and willful infringement.2
`
`B.
`
`Google had actual notice at least by service of the Complaint, which is sufficient to
`support claims for post-suit indirect and willful infringement.
`
`Google primarily relies on treatises and dictionaries to erect a flawed legal fiction that—
`
`despite all evidence to the contrary, given its actual participation in this case—it does not have
`
`knowledge of the Asserted Patents based on service of the Complaint. But to advance this fiction,
`
`Google necessarily omits the wealth of contrary authority. The Western District has rejected similar
`
`arguments in the past. See, e.g., Meetrix IP, LLC v. Cisco Sys., Inc., No. 1-18-CV-309-LY, 2018
`
`WL 8261315, at *3 (W.D. Tex. Nov. 30, 2018) (holding pleading notice based on service of the
`
`complaint “sufficiently alleges post-suit knowledge”). The Eastern District has done the same, as
`
`recently as several weeks ago. See RightQuestion, LLC v. Samsung Elecs. Co.,
`
`No. 2:21-CV-00238-JRG, 2022 WL 507487, at *3 (E.D. Tex. Feb. 18, 2022) (Gilstrap, J.) (“The
`
`Complaint—and the service thereof—therefore provides Samsung the requisite notice of the
`
`Asserted Patents to support a claim of induced infringement at least as of the time the Complaint
`
`was filed.”).
`
`Google nonetheless posits that notice by complaint raises philosophical concerns: “this
`
`allegation [of knowledge based on service of the complaint] asserts a future claim, i.e., one that
`
`arises after the filing of the complaint.” Mot. at 7. But the Federal Circuit resolved this concern
`
`
`
`2 Google contends in a footnote (without any substantive analysis) that even if Flyp has sufficiently alleged
`pre-suit knowledge, it “provides no allegations that Google had knowledge that its acts constituted
`infringement.” Mot. at 7 n.3. However, coupling this pre-suit knowledge with Flyp’s well-pleaded
`allegations that Google copied its inventions to address long-standing problems in the Google Voice product
`is more than adequate to create a reasonable inference that Google had knowledge that its acts constituted
`infringement. See, e.g., CPC Patent Techs. Pty. v. Apple Inc., No. 6:21-CV-00165-ADA, 2022 WL 118955,
`at *4 (W.D. Tex. Jan. 12, 2022) (noting pre-suit knowledge “allows for a plausible inference of Defendant’s
`intent thereafter”).
`
`8
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 13 of 15
`
`decades ago: “patent infringement is a continuing tort,” and as such, “[t]he filing of a lawsuit does
`
`not stop the clock insofar as culpability may arise from continuing disregard of the legal rights of
`
`the patentee.” Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1222 (Fed. Cir. 1995); see also
`
`IOENGINE, LLC v. PayPal Holdings, Inc., No. CV 18-452-WCB, 2019 WL 330515, at *4 (D.
`
`Del. Jan. 25, 2019) (“As to PayPal’s post-suit activities, however, knowledge of the patents was
`
`clearly conveyed to PayPal by the service of the complaint.”), n.1 (“The Court sees no purpose
`
`that would be served by the formality of requiring IOENGINE to file an amended complaint in
`
`order to be allowed to assert knowledge of the patents….”).
`
`In sum, Google has provided no authority that requires a different conclusion from that of
`
`the courts in Meetrix, RightQuestion, or IOENGINE. This Court should, accordingly, find service
`
`of the Complaint sufficient to satisfy the knowledge requirement for indirect and willful
`
`infringement.
`
`C.
`
`Flyp’s allegations are sufficient to state a claim for contributory infringement.
`
`Google incorrectly argues that Flyp’s contributory infringement allegations are deficient
`
`because Flyp purportedly (1) does not sufficiently allege that the accused functionality is either a
`
`“component” or a “material part” of the claimed invention and (2) does not sufficiently allege that
`
`the accused functionality has no substantial non-infringing uses. Mot. at 9.
`
`First, Flyp provides robust allegations that support a reasonable inference that the accused
`
`functionality is a component or material part of the claimed invention. For instance, Flyp describes
`
`the inventions at length, explaining how they solved endemic problems in the art, including by
`
`providing solutions that would allow a single mobile device to utilize multiple phone numbers
`
`while maintaining the integrity of caller-identification functions. See, e.g., Compl. ¶ 12. Google
`
`copied these solutions into its Google Voice product to address critical shortcomings in that
`
`commercial offering. Compl. ¶¶ 20–21. Those solutions include material functionality that Google
`9
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 14 of 15
`
`provides, including server-side functionality through hardware and software that route calls
`
`according to the patents through switches and servers that Google provides or controls. See, e.g.,
`
`Compl. ¶¶ 39–40, 51–52, 65–66, 78–79. Coupled with the direct infringement allegations in the
`
`Complaint, these allegations are sufficient to give rise to a reasonable inference that the accused
`
`functionality is a component or material part of the claimed invention. See, e.g., Content Guard
`
`Holdings, Inc. v. Google Inc., No. 2:14-CV-61-JRG, 2015 WL 1432208, at *4 (E.D. Tex. Mar. 30,
`
`2015) (rejecting similar arguments from Google).
`
`Second, Flyp’s allegation creates a reasonable inference that the accused functionality has
`
`no substantial non-infringing uses. Google contends (incorrectly) that Flyp’s only relevant
`
`pleading is “the bare allegation” that the accused functionality “has no substantial non-infringing
`
`uses.” Mot. at 9. But Google ignores all surrounding context. Flyp alleges that Google copied its
`
`patented inventions, including to solve a long-standing problem with the Google Voice product.
`
`Compl. ¶¶ 20–21. Those inventions were aimed at particular problems in the art, to which the
`
`inventions were customized and specially adapted. See, e.g., Compl. ¶ 12. Flyp’s Complaint
`
`incorporates instructions from Google to its users on how to use the accused functionality, all of
`
`which are directed to infringing use. See, e.g., Compl. ¶¶ 22–23, 37–40, 49–50, 52, 61–62, 65, 67,
`
`76–77, 80, 90–91, 94. These allegations distinguish this case from those like BillJCo, where
`
`Google admits that the patentee “offer[ed] nothing” to support its contention. Mot. at 9 (quoting
`
`BillJCo, 2022 WL 299733, at *8). This case is instead more like Simplivity Corp., 2016 WL
`
`5388951, at *12, where videos and written instructions identified in the complaint from the
`
`accused infringer describing the infringing use, without any mention of non-infringing use, were
`
`sufficient to satisfy the pleading requirement. See id. The Court should reach the same conclusion
`
`and find that Flyp has met the low threshold for pleading contributory infringement.
`
`10
`
`

`

`Case 6:22-cv-00031-ADA Document 37 Filed 04/25/22 Page 15 of 15
`
`DATED: April 25, 2022
`
`Respectfully submitted,
`
`/s/ Michael A. Bittner
`Thomas M. Melsheimer
`Texas Bar No. 13922550
`tmelsheimer@winston.com
`M. Brett Johnson
`Texas Bar No. 00790975
`mbjohnson@winston.com
`Michael A. Bittner
`Texas Bar No. 24064905
`mbittner@winston.com
`WINSTON & STRAWN LLP
`2121 North Pearl Street, Suite 900
`Dallas, TX 75201
`Telephone: (214) 453-6500
`
`Matthew R. McCullough
`California Bar No. 301330
`mrmccullough@winston.com
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`Telephone: (650) 858-6500
`
`William M. Logan
`Texas Bar No. 24106214
`wlogan@winston.com
`WINSTON & STRAWN LLP
`800 Capitol Street, Suite 2400
`Houston, TX 77002
`Telephone: (713) 651-2766
`
`ATTORNEYS FOR PLAINTIFF
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a copy of the foregoing document was filed electronically in
`compliance with Local Rule CV-5. Therefore, this document was served on all counsel who are
`deemed to have consented to electronic service. Administrative Policies and Procedures for
`Electronic Filing in Civil and Criminal Cases, Western District of Texas, Section 14 § 14 (W.D.
`Tex.) (revised Dec. 1, 2016).
`
`
`
`
`/s/ Michael A. Bittner
`Michael A. Bittner
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`11
`
`
`
`