Case 6:22-cv-00031-ADA Document 47 Filed 08/10/22 Page 1 of 10
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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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`DEFENDANT GOOGLE LLC’S OPENING CLAIM CONSTRUCTION BRIEF
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`Case 6:22-cv-00031-ADA Document 47 Filed 08/10/22 Page 2 of 10
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`I.
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`INTRODUCTION
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`The claims of the Asserted Patents recite methods for managing telephone calls. Central to
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`these methods is the use of multiple telephone numbers by a single user, including a “primary
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`telephone number” and “secondary telephone number.” But as used in the claims, the terms
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`“primary telephone number” and “secondary telephone number” are indefinite because they are
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`subjective—when is a given telephone number primary, and when is it secondary? The intrinsic
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`evidence provides no objective criteria to make this determination, rendering the limitations
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`meaningless and the scope of the claimed invention uncertain.
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`II.
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`BACKGROUND
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`Flyp alleges infringement of U.S. Patent Nos. 9,667,770 (“’770 Patent”), 10,051,105
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`(“’105 Patent”), 10,334,094 (“’094 Patent”), 11,012,554 (“’554 Patent”), and 11,218,585 (“’585
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`Patent”) (collectively, “Asserted Patents”). The five Asserted Patents are all in the same patent
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`family, and each claims priority to the same parent application. See Exs. 1–5. The Asserted Patents
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`share a common specification.1
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`In describing the supposed advantages of the Asserted Patents, Flyp notes that personal
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`and professional communications “coalesced around the smartphone” over the past two decades,
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`giving rise to a technological need to “segregate such communications within a single device and
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`to manage multiple numbers in a clean, centralized environment.” Dkt. 1 (Compl.) ¶ 11; id. ¶ 13
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`(“The need for alternative numbers that identified calls as originating from the secondary phone
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`number was a long-felt need and unique technological problem . . . .”). Flyp alleges that the
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`Asserted Patents solve this problem by providing “a particular way for mobile-phone users to
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`create and own multiple phone numbers on a single mobile device while maintaining the integrity
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`1 For ease of reference, Google will cite to the ’770 Patent specification.
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`Case 6:22-cv-00031-ADA Document 47 Filed 08/10/22 Page 3 of 10
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`of caller-identification functions.” Id. ¶¶ 12–13. Flyp alleges that it “developed a unique and
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`inventive technology that enables a particular way for a user to gain access to an additional,
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`alternative phone number on his or her mobile devices—as opposed to the single carrier-assigned
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`number on a mobile device.” Id. ¶ 15.
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`The asserted claims recite a number of different telephone numbers in the call management
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`system that are needed to effectuate the alleged inventive method. These recited telephone
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`numbers serve different purposes. For example, a bridge and/or access telephone number is used
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`to route incoming and outgoing calls across the telecommunications network,2 and a contact
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`telephone number is the number designated by the user to be called in an outgoing call.3 The
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`claimed “primary” and “secondary” telephone numbers are both used to receive and make calls.4
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`The Asserted Patents’ specification states that “[t]he primary telephone number, preferably, may
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`be a SIM number or ESN which is assigned to the handset 340 at the time of activation.” Ex. 1,
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`Col. 5:2-4. The specification separately refers to “secondary telephone numbers” that can also be
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`assigned to the handset. Id., Col. 5:12–14.
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`III. ARGUMENT
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`Because there is no way to objectively distinguish between the “primary telephone
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`number” and “secondary telephone number” in the claimed call management system, the claims
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`fail to inform a person of ordinary skill in the art (“POSITA”), with reasonable certainty, about
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`“the scope of the invention.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901 (2014);
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`see also Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 730 (2002) (“The
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`2 See Ex, 1, Col. 5:67–6:2 (incoming calls), id., Col. 8:15–22 (outgoing calls); id., Col. 9:32–35
`(conference calls).
`3 See, e.g., id., Col. 7:33–35.
`4 See, e.g., id., Col. 10:5–15 (calls directed to the primary or secondary telephone number); id.,
`Col: 10:46–52 (calls originating from the primary or secondary telephone number).
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`Case 6:22-cv-00031-ADA Document 47 Filed 08/10/22 Page 4 of 10
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`monopoly is a property right; and like any property right, its boundaries should be clear.”).
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`Although Flyp contends that the Court need only find that these terms have their plain and ordinary
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`meaning, such meaning, which is undefined and unexplained by Flyp, provides a POSITA no
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`reasonable or objective basis to determine whether or when a telephone number is “primary,”
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`“secondary,” neither, or both. Indeed, it is the highly subjective and variable plain meanings of the
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`terms “primary telephone number” and “secondary telephone number” that leave a POSITA
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`hopelessly unclear as to when a group of telephone numbers are covered by the asserted claims
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`and when they are not.5
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`The terms “primary telephone number” and “secondary telephone number” are inherently
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`subjective and relative. Bress Decl. ¶ 34. “Primary” implies that a given telephone number is more
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`important or relevant to something (perhaps to a user, device, or technological goal) than a
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`“secondary” telephone number, which implicitly is less important or relevant to the desired user,
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`device, or technological goal. Id. ¶ 35. Yet the specification offers no objective or defined criteria
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`for determining the primacy of particular telephone numbers relative to each other. For example,
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`it is impossible to know, as between a personal telephone number and a business telephone number
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`utilized by a user, which might be the “primary telephone number” and which might be the
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`“secondary telephone number,” or whether both are considered “primary” or “secondary.” One
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`user might treat their personal telephone number as primary, while another might treat their
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`business telephone number as primary, while a third user might view and treat both numbers as
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`“primary.” Id. ¶¶ 36–38. To further complicate the inquiry, a user could deem the business
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`5 “Primary telephone number” and “secondary telephone number” can be found in Claims 1, 2,
`and 4 of the ’770 Patent; Claims 1, 2, 4, 6, 8, 10, 11 12, 13, 14, 22, 24, 26, 32, 35, and 36 of the
`’105 Patent; Claims 1, 5, and 9 of the ’094 Patent; Claims 1, 5, and 9 of the ’554 Patent; and Claims
`1, 5, and 9 of the ’585 Patent.
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`Case 6:22-cv-00031-ADA Document 47 Filed 08/10/22 Page 5 of 10
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`telephone number “primary” during business hours, but the personal number “primary” in the
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`evening and on weekends. Id. ¶ 39. Such subjective and potentially shifting meanings (and
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`resulting claim scopes) are precisely what the patent definiteness requirement is meant to avoid.
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`See Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1350 (Fed. Cir. 2005) (finding a
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`claim indefinite that “is completely dependent on a person’s subjective opinion”), abrogated on
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`other grounds by Nautilus, 572 U.S. 898; see also Interval Licensing LLC v. AOL, Inc., 766 F.3d
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`1364, 1371 (Fed. Cir. 2014) (holding indefinite a claim term that “depends on the preferences of
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`the particular user and the circumstances under which any single user interacts with the display”
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`(citation omitted)).
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`As a matter of law and logic, subjective limitations are indefinite unless the intrinsic
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`evidence provides an objective definition or defined criteria that fix and limit the potential claim
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`scope. For example, in Datamize, the Federal Circuit affirmed a finding of indefiniteness where
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`the meaning of a claim term—“aesthetically pleasing”—depended on the “unpredictable vagaries
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`of any one person’s opinion.” 417 F.3d at 1350. There, the patentee argued that the boundaries of
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`what constitutes “aesthetically pleasing” could be determined from the vantage point of the
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`“system creator.” Id. at 1349–50. The Federal Circuit rejected this argument, holding that “[t]he
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`scope of claim language cannot depend solely on the unrestrained, subjective opinion of a
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`particular individual purportedly practicing the invention.” Id. at 1350. Instead, “[s]ome objective
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`standard must be provided in order to allow the public to determine the scope of the claimed
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`invention.” Id.
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`Here, like in Datamize, “primary telephone number” and “secondary telephone number”
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`are subjective because they may depend on the opinion of the individual practicing the claimed
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`method. Bress Decl. ¶ 40. Therefore, to avoid indefiniteness, the intrinsic evidence must provide
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`Case 6:22-cv-00031-ADA Document 47 Filed 08/10/22 Page 6 of 10
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`a POSITA a “way to determine” which of these telephone numbers is “primary” or “secondary.”
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`Datamize, 417 F.3d at 1349 (“Merely understanding that ‘aesthetically pleasing’ relates to the look
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`and feel of interface screens . . . fails to provide one of ordinary skill in the art with any way to
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`determine whether an interface screen is ‘aesthetically pleasing.’”). See also Dow Chem. Co. v.
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`Nova Chems. Corp. (Can.), 803 F.3d 620, 633–34 (Fed. Cir. 2015); U.S. Well Servs., Inc. v.
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`Halliburton Co., No. 6:21-cv-00367-ADA, 2022 WL 819548, at *6–9 (W.D. Tex. Jan. 17, 2022);
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`Versata Software, Inc. v. Zoho Corp., 213 F. Supp. 3d 829, 838 (W.D. Tex. 2016) (“Thus, whether
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`a certain user is infringing the asserted claims is context-dependent, and a context-dependent
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`infringement determination is likely indefinite.”); Iqasr LLC v. Wendt Corp., No. 16-cv-01782-
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`MSK-KMT, 2019 WL 1075477, at *7 (D. Col. Mar. 7, 2019), aff’d 825 F. App’x 900 (Fed. Cir.
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`2020) (“The lack of a meaningful description of what constitutes [the disputed claim term]
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`prevents a person skilled in the art from knowing when it is present and how to address it.”).
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`But the intrinsic evidence provides no such guidance and instead confuses the issue. For
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`example, the claims and specification confusingly teach that both “primary” and “secondary”
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`telephone numbers can be assigned to, and/or associated with, a single handset. Claim 1 of the
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`’770 Patent first recites “associating a secondary telephone number with a primary telephone
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`number in at least one computer memory device, the primary telephone number being assigned to
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`a handset,” and then later references “the incoming call being directed to a handset-associated
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`telephone number, the handset-associated telephone number being the primary telephone number
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`or the secondary telephone number . . . .” Ex. 1, Claim 1 (emphasis added). The specification
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`similarly references embodiments where the primary and secondary numbers are assigned to the
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`same handset. For example, the specification discloses both that “[t]he primary telephone number,
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`preferably, may be a SIM number or ESN which is assigned to the handset 340 at the time of
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`Case 6:22-cv-00031-ADA Document 47 Filed 08/10/22 Page 7 of 10
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`activation” (id., Col. 5:2–11 (emphasis added)) and that “the server 100 may automatically assign
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`one or more secondary telephone numbers to the handset 340, as opposed to them being selected.”
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`Id., Col. 5:12–14 (emphasis added); Bress Decl. ¶ 41. So, assignment to a handset alone cannot be
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`a differentiating criteria between “primary” and “secondary” numbers. Moreover, the asserted
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`claims recite that either the primary or secondary telephone numbers could be the “originating
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`telephone number” that makes an outgoing call. See, e.g., Ex. 1, Claim 4 (“the originating
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`telephone number being the primary telephone number or the secondary telephone number”
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`(emphasis added)). Thus, the fact that a particular number makes or receives a call similarly fails
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`to provide any basis for determining whether that number is “primary,” “secondary,” or both.6
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`Flyp has resisted any effort to place appropriate bounds on the meaning of a “primary” and
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`“secondary” telephone number, thereby demonstrating that they are indefinite. For example, in
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`other litigation related to the Asserted Patents, Flyp successfully opposed an argument (offered by
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`a different defendant) that “primary telephone number” should be construed to mean “a telephone
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`number or identifier that is assigned to a handset or a mobile device.” Ex. 7 at 2. Flyp offered no
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`explanation as to what criteria a POSITA might use, according to the patents, to assess whether
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`particular telephone numbers are primary, secondary, both or neither. See, e.g., id. (“The modifiers
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`‘primary’ and ‘secondary’ as used throughout the patents provide a simple and readily
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`ascertainable delineation—one number is primary, and the other is secondary.”) Flyp’s position
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`effectively strips “primary” and “secondary” of any definable meaning or scope, and leaves a
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`6 In this case, it appears that Flyp accuses a Google Voice number as being both the “primary” and
`“secondary” telephone number in the accused system. Ex. 6 at 8, 12. This demonstrates the
`indefiniteness of the disputed terms. See HZNP Meds. LLC v. Actavis Labs., UT, Inc., 940 F.3d
`680, 695 (Fed. Cir. 2019) (“The goal of the definiteness requirement is ‘to guard against
`unreasonable advantages to the patentee and disadvantages to others arising from uncertainty.’”
`(citation omitted)).
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`Case 6:22-cv-00031-ADA Document 47 Filed 08/10/22 Page 8 of 10
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`POSITA without any criteria with which to determine with reasonable certainty whether and when
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`a telephone number is “primary,” “secondary,” neither, or both. See U.S. Well Servs.,, 2022 WL
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`819548, at *9 (“The overarching problem with USWS’s understanding of the plain and ordinary
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`meaning of the term is that it completely reads the term ‘high pressure’ out of the claims.”). In
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`short, Flyp “completely reads the term [‘primary’ and ‘secondary’] out of the claims.” Id. The
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`limitations “primary telephone number” and “secondary telephone number,” as used in the
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`Asserted Patents, are indefinite.
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`IV. CONCLUSION
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`The Asserted Patents confusingly commingle the primary and secondary telephone
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`number, and the intrinsic record provides no discernable definition for the two limitations. The
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`public notice function at the heart of Section 112 would be wholly defeated were these limitations
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`allowed to stand. Google therefore respectfully requests that the Court find the “primary telephone
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`number” and “secondary telephone number” limitations indefinite under 35 U.S.C. § 112(b).
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`Case 6:22-cv-00031-ADA Document 47 Filed 08/10/22 Page 9 of 10
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`DATED: August 10, 2022
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`Respectfully Submitted,
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`/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
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`Paige Arnette Amstutz
`State Bar No.: 00796136
`pamstutz@scottdoug.com
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`-8-
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`Case 6:22-cv-00031-ADA Document 47 Filed 08/10/22 Page 10 of 10
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`SCOTT, DOUGLASS & MCCONNICO, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`Telephone: (512) 495-6300
`Facsimile: (512) 495-6399
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`Attorneys for Defendant Google LLC
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the 10th day of August, 2022, a true and correct copy of the
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`foregoing document was filed electronically with the Clerk of Court using the CM/ECF system.
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`As of this date, all counsel of record have consented to electronic service and are being served
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`with a copy of this document through the Court’s CM/ECF system.
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`/s/ Robert W. Unikel
`Robert W. Unikel
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`-9-
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