Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC., (D/B/A FLYP),
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`CIVIL ACTION NO. 6:22-cv-00031-ADA
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`JURY TRIAL DEMANDED
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`DEFENDANT GOOGLE LLC’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS
`FLYPSI, INC.’S CLAIMS OF INDIRECT AND WILLFUL INFRINGEMENT
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`Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 2 of 16
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`TABLE OF CONTENTS
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`Page
`INTRODUCTION ............................................................................................................. 1
`ARGUMENT ..................................................................................................................... 2
`A.
`Flyp’s Pre-Suit Claims for Indirect and Willful Infringement Should Be
`Dismissed ............................................................................................................... 2
`1.
`Flyp’s Complaint Does Not Allege that Rich Miner Acted Under
`the Direction or Control of Google ............................................................ 2
`Flyp’s Complaint Does Not Allege a “Well-Pled Claim” for
`Willful Blindness ....................................................................................... 4
`Flyp’s Complaint Does Not Allege Facts to Infer “Actual
`Knowledge” ............................................................................................... 5
`Flyp’s Complaint Does Not Allege Google’s Knowledge of
`Infringement ............................................................................................... 8
`Flyp’s Post-Suit Claims for Indirect and Willful Infringement Should Be
`Dismissed ............................................................................................................... 9
`Flyp’s Claims for Contributory Infringement Should Be Dismissed .................... 9
`C.
`CONCLUSION ................................................................................................................ 10
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`I.
`II.
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`III.
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`B.
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`2.
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`3.
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`4.
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`-i-
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`Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 3 of 16
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Al Rushaid v. Nat’l Oilwell Varco, Inc.,
`757 F.3d 416 (5th Cir. 2014) .....................................................................................................3
`
`Ariad Pharms., Inc. v. Eli Lilly & Co.,
`598 F.3d 1336 (Fed. Cir. 2010)..................................................................................................7
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................5
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`BillJCo, LLC v. Apple Inc.,
`No. 6:21-cv-00528-ADA, 2022 WL 299733 (W.D. Tex. Feb. 1, 2022) .............................8, 10
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`Blitzsafe Texas, LLC v. Volkswagen Group of America, Inc.,
`No. 2:15-cv-01274-JRG-RSP, 2016 WL 4778699 (E.D. Tex. Aug. 19, 2016) .........................7
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`Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp.,
`748 F.3d 631 (5th Cir. 2014) .....................................................................................................2
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`CPC Pat. v. Apple Inc.,
`No. 6:21-cv-00165-ADA, 2022 WL 118955 (W.D. Tex. Jan. 12, 2022) ..............................2, 9
`
`Dickson Marine Inc. v. Panalpina, Inc.,
`179 F.3d 331 (5th Cir. 1999) .....................................................................................................3
`
`Innova Hosp. San Antonio v. Blue Cross & Blue Shield,
`892 F.3d 719 (5th Cir. 2018) .....................................................................................................4
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`Masimo Corp. v. Sotera Wireless,
`No. 19-cv-01100-BAS-NLS, 2020 WL 7260660 (S.D. Cal. Dec. 10, 2020) ............................4
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`Maxell Ltd. v. Apple Inc.,
`No. 5:19-cv-00036-RWS, 2019 WL 7905455 (E.D. Tex. Oct. 23, 2019) .............................2, 7
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`Modern Font Apps. LLC v. Red Lobster Hosp. LLC,
`No. 6:21-cv-00470-ADA, Dkt. 36 (W.D. Tex. Jan. 28, 2022) ................................................10
`
`Motiva Pats. v. Sony,
`408 F. Supp. 3d 819 (E.D. Tex. 2019) .......................................................................................5
`
`Plotkin v. IP Axess Inc.,
`407 F.3d 690 (5th Cir. 2005) .....................................................................................................2
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`Roche Diagnostics Corp. v. Meso Scale Diagnostics, LLC,
`30 F.4th 1109 (Fed. Cir. 2022) ..................................................................................................5
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`-ii-
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`Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 4 of 16
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`TABLE OF AUTHORITIES
`(continued)
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`Page(s)
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`SimpliVity Corp. v. Springpath, Inc.,
`No. 4:15-cv-13345-TSH, 2016 WL 5388951 (D. Mass. Jul. 15, 2016) ................................5, 6
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`Varian Med. Sys., Inc. v. Elekta AB,
`No. 15-871-LPS, 2016 WL 3748772 (D. Del. Jul. 12, 2016) ....................................................4
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`-iii-
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`Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 5 of 16
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`I.
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`INTRODUCTION
`Flypsi, Inc. (“Flyp”) filed its opposition as though it were a de facto amended complaint,
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`arguing for the first time that Google LLC (“Google”) was willfully blind to the existence of the
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`Patents-in-Suit. Flyp also now alleges that Rich Miner met Flyp’s founder at the direction of
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`Google, and that the knowledge Mr. Miner acquired should therefore be imputed to Google. Opp.
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`at 4–6. But the complaint alleges Mr. Miner was an employee of Google Ventures (“GV”). Compl.
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`¶ 20. Allegations that Mr. Miner acted at the direction of Google, or that his knowledge should be
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`imputed to Google, are entirely absent from the complaint. As with its unpled willful blindness
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`theory, Flyp cannot allege Google’s purported actions through an opposition brief. Court and party
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`resources could have been saved had Flyp given more careful consideration to the Court’s Order
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`Governing Proceedings (“OGP”) and Federal Rules of Civil Procedure. The Court should dismiss
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`Flyp’s claims for pre-suit indirect and willful infringement.
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`Flyp’s opposition does not save its claims for post-suit indirect and willful infringement,
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`either. Notwithstanding Flyp’s disregard of the Court’s OGP, Flyp also does not acknowledge the
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`split legal authority concerning claims based on post-suit knowledge. Flyp’s silence is
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`conspicuous, and perhaps explains why it cites inapposite case law about post-suit knowledge.
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`Opp. at 8 (citing Meetrix IP, LLC v. Cisco Sys., Inc., No. 1:18-cv-00309-LY, 2018 WL 8261315,
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`at *3–4 (W.D. Tex. Nov. 30, 2018)) (allowing claims for indirect infringement but dismissing
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`claims for willful infringement). If the Federal Circuit had actually “resolved this concern decades
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`ago” as Flyp suggests, Opp. at 8–9, then there would be no reason for Section VII of the Court’s
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`OGP. The Court should dismiss Flyp’s claims for post-suit indirect and willful infringement in
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`accordance with its OGP.
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`Flyp also attempts to save its contributory infringement claim by asking the Court to read
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`in allegations from the complaint’s “surrounding context.” Opp. at 9–10. But the law is clear: Flyp
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`-1-
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`Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 6 of 16
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`must allege that Google Voice is a “material” part of the claimed invention and provide supporting
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`facts for why Google Voice has “no substantial non-infringing uses.” Flyp does neither. Google
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`respectfully requests that the Court decline Flyp’s effort to tie up the complaint’s loose ends. See
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`CPC Pat. v. Apple Inc., No. 6:21-cv-00165-ADA, 2022 WL 118955, at *2 (W.D. Tex. Jan. 12,
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`2022) (dismissing complaint that “fail[s] to fully articulate” the theory in plaintiff’s opposition).
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`II.
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`ARGUMENT
`A district court “must limit itself to the contents of the pleadings” when considering a
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`motion to dismiss. Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635
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`(5th Cir. 2014); Maxell Ltd. v. Apple Inc., No. 5:19-cv-00036-RWS, 2019 WL 7905455, at *4
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`(E.D. Tex. Oct. 23, 2019). Yet Flyp asks the Court to consider a slew of allegations that are entirely
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`absent from its pleading. Google respectfully requests that the Court not accept these “unwarranted
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`factual inferences.” Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).
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`A.
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`Flyp’s Pre-Suit Claims for Indirect and Willful Infringement Should Be
`Dismissed
`Flyp’s opposition raises for the first time that Google was “willfully blind” to the existence
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`of the Patents-in-Suit. Even more, Flyp advances for the first time that Google—not GV—directed
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`or controlled Rich Miner. Compare Opp. at 5 (“[I]t is reasonable to infer that Google . . . sent a
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`high-level executive to inspect Flyp’s technology and patent applications”) with Compl. ¶ 20 (“Mr.
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`Rich Miner, general partner at GV (formerly Google Ventures) requested and scheduled a meeting
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`with Flyp’s founder”). These allegations are entirely absent from Flyp’s complaint and should not
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`be considered when evaluating Google’s motion to dismiss.
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`1.
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`Flyp’s Complaint Does Not Allege that Rich Miner Acted Under the
`Direction or Control of Google
`The linchpin of Flyp’s position is that Google acquired knowledge of the Patents-in-Suit
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`vis-a-vis Rich Miner. Setting aside that the complaint does not allege “willful blindness,” infra
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`-2-
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`Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 7 of 16
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`Section II.A.2, or facts to support an inference of “actual knowledge,” infra Section II.A.3,
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`fundamental principles of agency and corporate law, coupled with the absence of factual content
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`in Flyp’s complaint, make this an implausible inference.
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`Flyp alleges that Mr. Miner was a “general partner” at GV at the time of the November
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`2015 meeting. Compl. ¶¶ 20, 33, 45, 57, 72, 86. Flyp further alleges that Mr. Miner “requested and
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`scheduled” the meeting. Id. Therefore, at most, any alleged knowledge acquired by Mr. Miner
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`could be imputed to GV.
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`But GV is not the defendant in this action. Recognizing that its complaint fails in this
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`respect, Flyp now asks the Court to impute Mr. Miner’s knowledge to Google. Opp. at 5
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`(“Considering these facts in the light most favorable to Flyp, they support an inference that Google
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`either knew about the Asserted Patents when they issued or was willfully blind to their existence.”).
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`Even assuming Mr. Miner’s knowledge could be imputed to GV, Mr. Miner’s knowledge could
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`not have been imputed to Google unless GV was an “alter ego” of Google. See Al Rushaid v. Nat’l
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`Oilwell Varco, Inc., 757 F.3d 416, 423–24 (5th Cir. 2014) (declining to “impute to a party the
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`actions of its corporate affiliates” where “[t]here has been no showing that NOV Norway was the
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`alter ego of its affiliates or that there were grounds to pierce the defendants’ corporate veils.”); see
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`also Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 338 (5th Cir. 1999) (“Courts have long
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`presumed the institutional independence of related corporations”).
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`Flyp does not allege that GV “was the alter ego” of Google, or that there are “grounds to
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`pierce [Google’s] corporate veils.” Instead Flyp attempts a sleight of hand, subtly asking the Court
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`simply to equate GV and Google. See Opp. at 1 (“Google’s venture capital arm solicited a review
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`of Flyp’s technology and intellectual property”); Opp. at 5 (“Google . . . sent a high-level executive
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`-3-
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`Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 8 of 16
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`to inspect Flyp’s technology and patent applications”).1 But GV and Google are distinct corporate
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`entities.2 Any allegations that GV is “Google’s venture capital arm” or that Google (and not GV)
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`“sent” Mr. Miner to the alleged meeting are wholly absent from the complaint. Inferring that GV
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`is the alter ego of Google, or that Google (and not GV) directed Mr. Miner to meet with Flyp’s
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`founder, is legally improper given the complaint’s allegations and facts. Masimo Corp. v. Sotera
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`Wireless, No. 19-cv-01100-BAS-NLS, 2020 WL 7260660, at *11 (S.D. Cal. Dec. 10, 2020)
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`(“Because there is a strong presumption against disregarding corporate identities, a plaintiff must
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`allege specific facts supporting both of the necessary elements for alter ego liability; conclusory
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`allegations will not suffice.”); Varian Med. Sys., Inc. v. Elekta AB, No. 15-871-LPS, 2016 WL
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`3748772, at *6 (D. Del. Jul. 12, 2016) (“The problem with these additional allegations (even were
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`they sufficient to demonstrate the requisite pre-suit knowledge of the patent on the part of the U.S.
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`Defendants) is that they are nowhere found in the Complaint. Instead, they are raised (in some
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`detail) for the first time in Plaintiff’s answering brief.”). Flyp’s claims for pre-suit indirect and
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`willful infringement, as pled, necessarily fail.
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`2.
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`Flyp’s Complaint Does Not Allege a “Well-Pled Claim” for Willful
`Blindness
`Even if the Court finds that Flyp’s allegations somehow impute Mr. Miner’s knowledge to
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`Google, Flyp does not plead that Google was willfully blind. Opp. at 46. The cases Flyp cites to
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`support its willful blindness theory actually highlight the severe defects in its complaint. In both
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`Estech and Motiva Patents, the plaintiff affirmatively pled facts supporting allegations that the
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`1 It is less clear why Flyp brings up that Mr. Miner was a “cofounder of Android and possesses a
`Ph.D. in computer science.” Opp. at 4 n.1. Neither of these facts suggest that the knowledge Mr.
`Miner gained from the alleged November 2015 meeting was somehow imputed to Google.
`2 Google respectfully requests that the Court take judicial notice of Ex. 1 (incorporation date for
`Google LLC and GV Management Company, L.L.C., a/k/a Google Ventures). See Innova Hosp.
`San Antonio v. Blue Cross & Blue Shield, 892 F.3d 719, 726 (5th Cir. 2018) (“[A] court ruling on
`a 12(b)(6) motion may rely on . . . matters of which a court may take judicial notice.”).
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`-4-
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`defendant was willfully blind. See Ex. 2 (Estech Sys., Inc. v. Target Corp., No. 2:20-cv-00123,
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`Dkt. 20) ¶¶ 30–31 (“Furthermore, on information and belief, Defendants have a policy or practice
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`of not reviewing the patents of others (including instructing its employees to not review the patents
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`of others), and thus has been willfully blind of Plaintiff’s patent rights.”);3 Motiva Pats. v. Sony,
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`408 F. Supp. 3d 819, 833–34 (E.D. Tex. 2019) (“[Plaintiff] alleges that ‘[d]efendant has a policy
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`or practice of not reviewing the patents of others . . . .’”). Here, the complaint does not allege that
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`Google “has been willfully blind of Plaintiff’s patent rights,” much less any facts supporting such
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`an allegation. The complaint also fails to plead any facts indicating that Google undertook a
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`“specific kind of ‘deliberate action to avoid learning’ of potential infringement.” Motiva Pats., 408
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`F. Supp. 3d at 833. In fact, Flyp’s complaint does not mention willful blindness at all. Cf. Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 555 (2007) (requiring that a complaint “give the defendant fair
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`notice of what the claim is and the grounds upon which it rests” (citation omitted)). If Flyp had a
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`good-faith basis to plead willful blindness, it could and should have done so.4
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`3.
`Flyp’s Complaint Does Not Allege Facts to Infer “Actual Knowledge”
`Flyp relies heavily on SimpliVity Corp. v. Springpath, Inc., No. 4:15-cv-13345-TSH, 2016
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`WL 5388951 (D. Mass. Jul. 15, 2016) to convince the Court that its allegations support an
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`inference that Google had “actual knowledge.” Opp. at 5–8. But SimpliVity is inapposite. There,
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`the plaintiff alleged that the parties were competitors, and that the defendant’s co-founder
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`“surreptitiously investigated” plaintiff’s technology at a trade show. Id. at *9. The SimpliVity
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`plaintiff further alleged that, at the trade show, the defendant’s co-founder “affirmatively misled
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`3 Google respectfully requests that the Court take judicial notice of the First Amended Complaint
`filed in Case No. 2:20-cv-00123-JRG-RSP (E.D. Tex. Jun. 18, 2020). See supra n.2.
`4 To plead willful blindness, a party must allege the defendant’s “subjective state of mind . . .
`coupled with action to avoid learning more.” Roche Diagnostics Corp. v. Meso Scale Diagnostics,
`LLC, 30 F.4th 1109, 1118 (Fed. Cir. 2022) (citation omitted). Flyp’s complaint does neither.
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`-5-
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`[plaintiff’s] representative about his identity, and never disclosed his connection to [defendant],”
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`Id. at *2, 9. The plaintiff also alleged that the defendant’s co-founder “asked a number of specific
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`engineering-related questions about [plaintiff’s] technology.” Id.
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`None of the above facts or allegations exist here. Flyp’s complaint merely alleges that a
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`partner at GV “discussed Flyp’s technology, business and patent filings.” Compl. ¶ 20. In fact,
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`Flyp does not even allege that Google (or GV) is a competitor. Although Flyp argues it does, Opp.
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`at 1, that allegation is nowhere found in Flyp’s complaint. Compare Ex. 3 (No. 4:15-cv-13345-
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`TSH, Dkt. 38) ¶ 1 (“This is an action brought . . . against Springpath, a competitor”). And if Flyp
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`had a good-faith basis to allege that Google “tracked” Flyp’s pending applications, Opp. at 5, it
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`failed to allege as much in its complaint. Compare Ex. 3, ¶ 31 (“SimpliVity expects to find
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`evidentiary support that Springpath researched SimpliVity’s patents, including the ’799 patent, to
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`learn about SimpliVity’s technology.”).5 Flyp’s “narrative” aside, Opp. at 1, the allegations here
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`are of a vastly different nature than those found in SimpliVity.
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`Even if the Court credits Flyp’s reliance on SimpliVity, the result would be a finding that
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`Google had “actual knowledge” of only the ’770 Patent. A key allegation in SimpliVity was that
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`the pending application “could be viewed on publicly-available websites such as USPTO.gov.”
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`SimpliVity, 2016 WL 5388951, at *9. Here, at the time of the alleged November 2015 meeting,
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`U.S. Application No. 14/307,052—which eventually issued as the ’770 Patent—was Flyp’s sole
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`pending application. All of the other applications that eventually issued as the remaining Patents-
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`in-Suit were filed between April 28, 2017 and April 28, 2020—nearly one and a half to five and a
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`half years after the alleged meeting between Mr. Miner and Flyp. Thus no reasonable inference
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`5 Google respectfully requests that the Court take judicial notice of the Second Amended
`Complaint filed in Case No. 4:15-cv-13345-TSH (D. Mass. filed Feb. 5, 2016). See supra n. 2.
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`-6-
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`Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 11 of 16
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`could be drawn that Google knew of, or could have “viewed,” these yet-to-be-filed applications.
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`Flyp’s reading of Maxell also misses the mark. Maxell does not hold that situations “like
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`those in Simplivity” may give rise to knowledge of a later issued patent. Opp. at 6. Rather, Maxell
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`and the case it cites, Blitzsafe Texas, LLC v. Volkswagen Group of America, Inc., No. 2:15-cv-
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`01274-JRG-RSP, 2016 WL 4778699 (E.D. Tex. Aug. 19, 2016), shows that any “actual
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`knowledge” acquired by an accused infringer’s “exposure to a patent application” turns on notice
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`of a patent’s claims. See Maxell, 2019 WL 7905455, at *5 (“For example, if an accused infringer
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`receives notice of a patent application for which a notice of allowance has been issued, the accused
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`infringer may well be found to have knowledge of the claims when they issue.” (quoting Blitzsafe,
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`2016 WL 4778699, at *6)). A party cannot plausibly have “actual knowledge” of an invention
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`“unless the claims already exist.” Blitzsafe, 2016 WL 4778699, at *6; Ariad Pharms., Inc. v. Eli
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`Lilly & Co., 598 F.3d 1336, 1347 (Fed. Cir. 2010) (“Claims define the subject matter that, after
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`examination, has been found to meet the statutory requirements for a patent.”).
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`Here, none of the asserted claims of the ’770 Patent existed, even as proposed claims, until
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`at least a year after the alleged meeting between Mr. Miner and Flyp.6 See Ex. 4 (comparison of
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`claims as of November 2015 and issuance). Flyp fails to mention this fact. And even if the Court
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`found that Mr. Miner had notice of the then-pending application, he had no obligation to continue
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`monitoring Flyp’s patent docket. Blitzsafe, 2016 WL 4778699, at *6 (“[A] party is not obligated
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`to continually monitor every patent application to which it has been exposed.”).
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`Finally, Flyp misunderstands Google’s reliance on Kirsch Research and Finjan, Inc. Mot.
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`at 6–7. Google raises these cases as examples where, as here, a plaintiff alleges “general
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`6 While prosecuting U.S. Application No. 14/307,052, Flyp withdrew claims 1–13 and 18–26 on
`June 17, 2016 and made material changes to the remaining claims in a December 2016 amendment.
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`-7-
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`knowledge” of patent filings and technology, rather than alleging knowledge of “a particular
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`asserted patent.” Mot. at 7. Again, Flyp alleges that GV’s Rich Miner and Flyp’s founder
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`discussed Flyp’s “technology” and “patent filings.” Compl. ¶¶ 20, 33, 45, 57, 72, 86. This is no
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`different than the generalized knowledge alleged by the plaintiff in Kirsch Research. See Ex. 5
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`(Kirsch Resch. & Dev. LLC v. Tarco Specialty Prods., Inc., No. 6:20-cv-00318-ADA, Dkt. 19)
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`¶¶ 38–46 (alleging knowledge gained from discussions with plaintiff regarding plaintiff’s patented
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`products). The same is true for Finjan, Inc. There, plaintiff alleged that defendant “knew of
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`Finjan’s patent portfolio and patented technology,” but despite this knowledge “acquired”
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`technology that infringe the asserted patents. See Ex. 6 (Finjan, Inc. v. Cisco Sys., Inc., No. 5:17-
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`cv-00072-BLF, Dkt. 26 ¶ 9).7 This is no different than Flyp’s allegations. See Compl. ¶¶ 20–21
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`(alleging that Google learned of Flyp’s “technology” and “patent filings,” and thereafter “revised”
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`Google Voice to infringe the Patents-in-Suit). Contrary to Flyp’s belief, there is nothing “more”
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`in Flyp’s complaint than in Kirsch Research and Finjan, Inc. Opp. at 7.
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`4.
`Flyp’s Complaint Does Not Allege Google’s Knowledge of Infringement
`Even if Flyp’s complaint did allege Google’s pre-suit knowledge of the Patents-in-Suit, it
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`still would not satisfy the third Parity prong: knowledge of infringement. Mot. at 7 n.3. Flyp tries
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`to sweep this requirement under the rug by again asking the Court to draw a “plausible inference”
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`Opp. at 8 n.2. But knowledge of a patent and knowledge of infringement are “distinct elements.”
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`BillJCo, LLC v. Apple Inc., No. 6:21-cv-00528-ADA, 2022 WL 299733, at *4 (W.D. Tex. Feb. 1,
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`2022). And Flyp’s reliance on CPC Patent to invite the Court’s “plausible inference” is imprecise:
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`there, the plaintiff sent the defendant claim charts prior to bringing suit. See Ex. 7 (No. 6:21-cv-
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`7 Google respectfully requests that the Court take judicial notice of the First Amended Complaint
`filed in Case No. 6:20-cv-00318-ADA (W.D. Tex. Jul. 7, 2017) and the First Amended Complaint
`in Case No. 5:17-cv-00072-BLF (N.D. Cal. Mar. 27, 2017). See supra n. 2.
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`-8-
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`Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 13 of 16
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`00165 at Dkt. 1), ¶¶ 22–23, Ex. D.8 The Court therefore found that “Plaintiff provided Defendant
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`specific notice of the patents in this lawsuit months before filing this lawsuit.” CPC Pat., 2022
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`WL 118955, at *4 (emphasis added). Not so here. Flyp cannot simply plead “knowledge” of the
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`Patents-in-Suit without also pleading “knowledge of infringement.”
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`Based on the deficiencies in Flyp’s complaint, the Court should dismiss Flyp’s pre-suit
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`claims of indirect and willful infringement.
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`B.
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`Flyp’s Post-Suit Claims for Indirect and Willful Infringement Should Be
`Dismissed
`Flyp also misunderstands Google’s argument regarding Flyp’s post-suit indirect and willful
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`infringement claim, which rests on knowledge provided by the complaint. Opp. at 8. The issue is
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`not merely philosophical, but instead is quite practical: there is no good-faith basis for Flyp to
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`plead on the date of the complaint that Google’s alleged infringement “continues to be deliberate
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`and willful” when Google only learned of the Patents-in-Suit through the complaint. Compl. ¶¶ 36,
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`48, 60, 75, 89. Section VII of the Court’s OGP addresses this concern, but Flyp ignores the Court’s
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`guidance.9 The guidance in the OGP is particularly appropriate where, as here, allegations of pre-
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`suit knowledge are attenuated. Flyp’s present complaint raises only speculation that Google
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`“continues” to knowingly infringe. Google therefore respectfully requests that the Court dismiss
`
`Flyp’s claims for post-suit indirect and willful infringement.
`
`C.
`Flyp’s Claims for Contributory Infringement Should Be Dismissed
`Again Flyp treats its opposition as a de facto amended complaint. Flyp implicitly concedes
`
`that its complaint simply parrots back boilerplate legal requirements for contributory infringement
`
`by asking the Court to read in allegations from the complaint’s “surrounding context.” Opp. at 9–
`
`
`8 Google respectfully requests that the Court take judicial notice of the Original Complaint filed in
`Case No. 6:21-cv-00165-ADA (W.D. Tex. Feb. 23, 2020). See supra n.2.
`9 At the time Google filed its motion, this specific Order appeared in Section VI of the OGP. Mot.
`at 1. The Court has since amended its OGP, with the Order now appearing in Section VII.
`
`-9-
`
`

`

`Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 14 of 16
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`
`
`10. Google respectfully requests that the Court decline Flyp’s invitation.
`
`In its opposition, Flyp first alleges that the “solutions” Google allegedly copied from the
`
`Patents-in-Suit include “material functionality.” Opp. at 9. But that is not the legal standard for
`
`contributory infringement. Mot. at 8. Instead, Flyp must allege that Google Voice “is material to
`
`practicing the claimed invention.” Modern Font Apps. LLC v. Red Lobster Hosp. LLC, No. 6:21-
`
`cv-00470-ADA, Dkt. 36 at 7 (W.D. Tex. Jan. 28, 2022) (emphasis added). Flyp’s complaint does
`
`not make this allegation. Indeed, in its opposition, Flyp merely cites paragraphs in its complaint
`
`summarizing the functionality recited by the claims of the Patents-in-Suit. Opp. at 10. This is not
`
`enough. See Mot. at 9; compare Modern Font, No. 6:21-cv-00470-ADA, Dkt. 36 at 9 (“In
`
`paragraph 84 of its Complaint, [plaintiff] alleges that the ‘identified products and services
`
`constitute a material part of the invention of the ’421 patent.”).
`
`Next, Flyp argues that it met “the low threshold” for pleading the absence of substantial
`
`non-infringing uses. Flyp maintains that it meets this threshold in two ways: (1) by alleging that
`
`Google Voice solved “a long-standing problem” and (2) by including in the complaint Google’s
`
`instructions “on how to use the accused functionality.” Id. But alleging that Google Voice solves
`
`“a long-standing problem” does not mean Google Voice has “no substantial non-infringing uses.”
`
`Moreover, the fact that Google allegedly instructs its users on how to use the accused functionality
`
`does not mean Google Voice has “no substantial non-infringing uses.” See BillJCo, 2022 WL
`
`299733, at *8–9 (dismissing contributory infringement claim even where plaintiff included in the
`
`complaint defendant’s instructions on how to use the accused functionality). Google respectfully
`
`requests that the Court dismiss Flyp’s contributory infringement claims.
`
`III. CONCLUSION
`
`For the foregoing reasons, Google respectfully requests that the Court dismiss Flyp’s
`
`claims for indirect and willful infringement.
`
`-10-
`
`

`

`Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 15 of 16
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`
`
`DATED: May 2, 2022
`
`
`
`
`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
`
`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
`
`Elizabeth Brann (Pro Hac Vice)
`elizabethbrann@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
`
`Joshua Yin (Pro Hac Vice)
`joshuayin@paulhastings.com
`David M. Fox (Pro Hac Vice)
`davidfox@paulhastings.com
`Alex Rhim (Pro Hac Vice)
`alexrhim@paulhastings.co
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`
`
`-11-
`
`

`

`
`
`
`
`Case 6:22-cv-00031-ADA Document 38 Filed 05/02/22 Page 16 of 16
`
`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
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on the 2nd day of May, 2022, I electronically filed the foregoing with
`
`the Clerk of Court using the CM/ECF system which will send notification of such filing to all
`
`counsel of record.
`
`/s/ Robert W. Unikel
`Robert W. Unikel
`
`
`
`-12-
`
`