Case 6:22-cv-00031-ADA Document 47-11 Filed 08/10/22 Page 1 of 6
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`Exhibit 7
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`Case 6:22-cv-00031-ADA Document 47-11 Filed 08/10/22 Page 2 of 6
`Case 6:21-cv-00642-ADA Document 37 Filed 01/28/22 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC. (D/B/A FLYP),
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`Plaintiff,
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`Civil Action No. 6:21-cv-642-ADA
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`vs.
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`DIALPAD, INC.,
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`Defendant.
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`JURY TRIAL DEMANDED
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`PLAINTIFF FLYPSI, INC.’S
`REPLY CLAIM CONSTRUCTION BRIEF
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`Pursuant to the Court’s Order Governing Proceedings – Patent Cases (“OGP”) (Dkt.
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`No. 20), and the Court’s Amended Scheduling Order (Dkt. No. 29), Flyp submits this Reply Claim
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`Construction Brief. Here, the disputed terms of the Asserted Patents do not require construction
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`and should be given their plain-and-ordinary meaning to a person of ordinary skill in the art.
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`A.
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`Primary Telephone Number
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`Dialpad has conceded that it was not accurate to construe “primary” to mean “assigned …
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`at activation” as such a construction would be contrary to established law and the common
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`understanding of a POSITA1 (as well as lay jurors). As previewed in Flyp’s responsive brief, the
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`remaining question is whether the remainder of Dialpad’s proposed construction—now its revised
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`construction—is necessary. It is not.
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`1 Dialpad has not submitted any argument regarding the level of ordinary skill in the art. Accordingly, the
`Court should adopt Flyp’s unrebutted proposal.
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`1
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`Case 6:22-cv-00031-ADA Document 47-11 Filed 08/10/22 Page 3 of 6
`Case 6:21-cv-00642-ADA Document 37 Filed 01/28/22 Page 2 of 11
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`Dialpad’s revised construction—“a telephone number or identifier that is assigned to a
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`handset or mobile device”—does nothing to distinguish “primary telephone number” from
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`“secondary telephone number.” Indeed, both numbers are used to connect to a handset or mobile
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`device as discussed throughout the specification and the claims. Dialpad’s revised construction
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`has reached a level of abstraction such that it no longer defines the term in dispute but rather applies
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`equally to nearly any “telephone number.” Dialpad’s revised construction is thus not only
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`unhelpful but now invites possible juror confusion.
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`As established in Flyp’s response brief, both a POSITA and lay jurors are already familiar
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`with the common meaning of a “telephone number.” The modifiers “primary” and “secondary” as
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`used throughout the patents provide a simple and readily ascertainable delineation—one number
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`is primary, and the other is secondary. Where, as here, “there is nothing about the claim term that
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`is confusing … the term requires no construction.” Pisony v. Commando Constr., Inc., Case No.
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`W-17-cv-55, 2019 WL 928406, at *5 (W.D. Tex. Jan. 23, 2019) (Albright, J.)
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`Dialpad concedes the argument that “secondary telephone number” and other similar terms
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`in the claims need no construction. As argued in Flyp’s response and left unaddressed in Dialpad’s
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`reply, if “secondary telephone number” needs no construction, then “primary telephone number”
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`likewise requires no construction.
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`Finally, Dialpad’s revised construction is also impermissibly limiting. Just as a user may
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`change his or her primary phone number at some point after activation, a user may also carry a
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`primary telephone number from one mobile phone to a different mobile phone. Both a POSITA
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`and lay jurors would be familiar with the basic process of phone upgrades, which often involves
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`porting an existing number from an old phone to the upgraded phone. A “primary telephone
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`number” thus may be assigned to a particular mobile phone or handset for only a limited time but
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`2
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`Case 6:22-cv-00031-ADA Document 47-11 Filed 08/10/22 Page 4 of 6
`Case 6:21-cv-00642-ADA Document 37 Filed 01/28/22 Page 3 of 11
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`be assigned to a particular account for a longer period. Dialpad’s revised construction fails to
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`account for this well-understood arrangement and thus impermissibly limits the claims.
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`Because the term “primary telephone number” is a readily understandable term by both a
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`POSITA and lay jurors, the Court should decline to rewrite this simple, three-word term into a
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`complicated and confusion-causing 14-word construction.
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`B.
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`Voice Channel
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`Dialpad also confusingly argues for a construction of “voice channel” while conceding that
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`“data channel” needs no construction, as it would be readily understood by a POSITA. While
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`Dialpad argues that the specification is definitional as to “voice channel,” it concedes that parallel
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`statements related to “data channel” are not definitional.
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`In truth, the specification passage on which Dialpad’s entire argument rests is not
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`definitional but rather exemplary and permissive. As quoted in full in Dialpad’s reply, the
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`specification states:
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`The communications between the server 100 and the handset 340
`over the Internet 316 may utilize IP as a protocol opposed to
`protocols used to establish communications according to CDMA,
`GSM, or like standards. Such IP governed communications are
`referred to herein as being conducted over a “data channel.”
`Conversely, communications between the Switch 110 and the
`handset over the PSTN 310 may be transmitted and received in
`accordance with CDMA, GSM or like standards as opposed to using
`IP. Such CDMA, GSM or like governed communications, when
`used to carry voice information, are referred to herein as being
`conducted over a “voice channel.
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`’770 Patent at 4:35-46 (emphasis added). By not seeking a construction, Dialpad concedes that the
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`specification’s statements on “data channel”—that it “may utilize IP as a protocol”—are not
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`definitional. But similarly, the specification’s parallel statements on “voice channel” are also not
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`definitional. Indeed, the specification’s treatment of “voice channel” is more exemplary and more
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`permissive than its treatment of “data channel.” Regarding “voice channel,” the specification states
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`3
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`Case 6:22-cv-00031-ADA Document 47-11 Filed 08/10/22 Page 5 of 6
`Case 6:21-cv-00642-ADA Document 37 Filed 01/28/22 Page 10 of 11
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`DATED: January 28, 2022
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`Respectfully submitted,
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`/s/ Thomas M. Melsheimer
`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
`Chad Walker
`Texas Bar No. 24056484
`cbwalker@winston.com
`WINSTON & STRAWN LLP
`2121 North Pearl Street, Suite 900
`Dallas, TX 75201
`Telephone: (214) 453-6500
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`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
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`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
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`ATTORNEYS FOR PLAINTIFF
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`Case 6:22-cv-00031-ADA Document 47-11 Filed 08/10/22 Page 6 of 6
`Case 6:21-cv-00642-ADA Document 37 Filed 01/28/22 Page 11 of 11
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`CERTIFICATE OF SERVICE
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`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.
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`/s/ Michael A. Bittner
`Michael A. Bittner
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`11
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