Case 6:22-cv-00031-ADA Document 49 Filed 08/31/22 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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`Civil Action No. 6:22-cv-31-ADA
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`vs.
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`GOOGLE LLC,
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`JURY TRIAL DEMANDED
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`Defendant.
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`PLAINTIFF FLYPSI, INC.’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
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`Case 6:22-cv-00031-ADA Document 49 Filed 08/31/22 Page 2 of 10
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`I.
`Google has identified two related terms for construction: “primary telephone number” and
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`INTRODUCION
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`“secondary telephone number.” It incorrectly contends that these terms are indefinite because it
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`misapprehends them as subjective. But neither term is subjective. Rather, as explained below, the
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`“primary” and “secondary” terms merely distinguish two “telephone number” elements that appear
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`in subsequent limitations, like their respective synonyms “first” and “second.” Google has reached
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`a different (and wrong) conclusion because it is purposefully considering these terms divorced
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`from the surrounding context in the claims and is accordingly applying a myopic understanding of
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`“primary” and “secondary” that does not comport with the plain claim language. When these terms
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`are properly considered in context of the surrounding claim language, they are readily understood
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`with reasonable certainty and should be afforded their plain and ordinary meanings.
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`II.
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`ARGUMENT
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`"primary telephone number" / "secondary telephone number"
`Flyp’s Proposed Construction
`Google’s Proposed Construction
`Plain and Ordinary Meaning
`Indefinite
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`Considering “primary telephone number” and “secondary telephone number” within the
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`context of the claims shows that the terms are sufficiently definite and should be afforded their
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`plain and ordinary meanings. This is the correct approach because it is axiomatic in patent law that
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`claim construction begins with the claim language, which courts should generally construe
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`according to its ordinary meaning. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005).
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`Sometimes (like here) a term’s ordinary meaning “may be readily apparent even to lay judges,”
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`such that claim construction does not require expert testimony and “involves little more than the
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`application of the widely accepted meaning of commonly understood words.” See id.
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`1
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`Case 6:22-cv-00031-ADA Document 49 Filed 08/31/22 Page 3 of 10
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`In fact, this Court has already considered the term “primary telephone number” within the
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`context of these claims and determined that it should be afforded its plain and ordinary meaning.
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`See Ex. A (Claim Construction Order, Flypsi, Inc. v. Dialpad, Inc., 6:21-CV-00642-ADA, ECF
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`No. 73 (Aug. 22, 2022)). The Court correctly recognized that the term primary telephone number
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`“is not difficult or too technical in nature” and that “[i]t is not necessary to distinguish primary and
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`secondary telephone numbers through construction because these phrases will likely be understood
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`by a person of ordinary skill in the art and the jury will likely not be confused by the terms.” See
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`id. at 5. In other words, applying the ordinary meaning of these words as they are used in the
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`claims, this Court just over a week ago confirmed that they are not indefinite terms of subjective
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`intent but are instead simple terms that readily distinguish two telephone numbers from each other
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`in the claims in a way even a layperson would understand.
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`Google’s indefiniteness argument eschews the Court’s proper claim-language based
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`approach in Dialpad and instead posits the flawed premise that identifying the “primary” or
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`“secondary” telephone number requires a subjective determination that one telephone number is
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`“more important or relevant to something” than the other telephone number. See ECF No. 47 at 3.
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`Google only identifies two relevant claims with any specificity (claims 1 and 4 from the ’770
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`Patent) but never analyzes these phrases within the context of the claim language. See ECF No. 47
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`at 5-6. Google accordingly does not identify any context in either claim that would support its
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`contention that “primary” or “secondary” require a subjective determination about which
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`telephone number is more important. Instead, Google ignores the clear surrounding context that
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`this Court recognized in Dialpad that these terms are used in the claims to differentiate two
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`telephone number elements in much the same way that the words “first” or “second” would.
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`2
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`Case 6:22-cv-00031-ADA Document 49 Filed 08/31/22 Page 4 of 10
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`Claim 1 of the ’770 Patent introduces both “a primary telephone number” and “a secondary
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`telephone number.” It likewise recites “a first digital information” and “a second digital
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`information” that respectively provide primary call processing rules and secondary call processing
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`rules for the primary telephone number and the secondary telephone number. When an incoming
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`call is received at either the primary telephone number or the secondary telephone number, the
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`appropriate call processing rules are applied, and the call is connected according to the method
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`described in the claim. The claim language never suggests that either telephone number is more
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`important or more relevant than the other. There are simply two telephone numbers (no different
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`than a “first telephone number” and a “second telephone number”), each having its own processing
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`rules that are applied based on the telephone number to which the call was directed.
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`The plain language of claim 4 of the ’770 Patent (which depends from claim 1) is consistent
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`with this understanding. Claim 4 describes receiving an outgoing call request that includes the
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`originating telephone number as being either the primary telephone number or the secondary
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`telephone number, such that when the outgoing call is transmitted it indicates the appropriate
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`originating number. Claim 4 does not suggest any subjective requirement that either the primary
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`telephone number or the secondary telephone number are more important or relevant. As in
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`claim 1, rather, the words “primary” and “secondary” simply differentiate two telephone numbers
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`from each other.
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`Instead of applying the plain claim language (like this Court did in Dialpad), Google
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`improperly isolates these terms from the claims and contends that “primary” and “secondary” are
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`“inherently subjective and relative,” and then tries to shoehorn them into an inapt analogy to the
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`readily distinguishable phrase “aesthetically pleasing.” See ECF No. 47 at 3-4 (citing Datamize,
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`LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1345 (Fed. Cir. 2005), abrogated by Nautilus, Inc.
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`Case 6:22-cv-00031-ADA Document 49 Filed 08/31/22 Page 5 of 10
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`v. Biosig Instruments, Inc., 572 U.S. 898 (2014)). Google is wrong because its assertion that these
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`terms are subjective is contrary to the plain language of the claims and because the way these terms
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`are used in the claims is entirely different from how “aesthetically pleasing” was used in Datamize.
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`First, Google’s central premise that these terms are “inherently subjective” is unsupported
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`and flawed. The only support Google cites for this proposition (which is critical to its entire
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`argument) is the declaration of James R. Bress, who holds himself out as a technical expert. See
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`id. (citing ECF No. 47-1); ECF No. 47-1 ¶¶ 31-32. Mr. Bress’s testimony, however, is due no
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`weight on this issue because it is conclusory and contrary to well-settled claim construction
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`principles. See, e.g., Allergan Sales, LLC v. Teva Pharm. USA, Inc., No. 215CV01471JRGRSP,
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`2017 WL 4800734, at *6 (E.D. Tex. Sept. 28, 2017) (“Whether in the context of claim construction
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`or summary judgment, conclusory expert testimony is not entitled weight.”).
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`Despite Mr. Bress’s purported technical qualifications, he does not analyze the terms in the
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`context of the surrounding claim language at all. Instead, like Google, Mr. Bress simply divorces
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`the words “primary” and “secondary” from the claims and discusses those words in the abstract.
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`This is a critical error because, as explained above, analyzing these terms within the context of the
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`claims shows that they are not being used in a subjective sense but rather to distinguish between
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`two telephone numbers in the limitations that follow their introductions.
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`Nor does Mr. Bress opine that these terms are known terms of art. Instead, he departs from
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`his purported area of expertise and improperly premises his entire opinion on a bare conclusory
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`statement the plain English words “primary” and “secondary” are “inherently subjective and
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`relative”—without providing any source for this contention or any qualifications that would
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`suggest he can discern the meaning of these ordinary, non-technical terms better than this Court
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`did in Dialpad. There is accordingly nothing that suggests the Court should treat “primary” or
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`Case 6:22-cv-00031-ADA Document 49 Filed 08/31/22 Page 6 of 10
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`“secondary” as subjective terms instead of treating them exactly how they are used in the plain
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`claim language: as objective terms of differentiation, not unlike common patent constructs that
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`describe a “first” element and a “second” element.
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`Second, “primary telephone number” and “secondary telephone number” are entirely
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`unlike the phrase “aesthetically pleasing” from Datamize. The Datamize Court found that the term
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`“aesthetically pleasing” meant “‘having beauty that gives pleasure or enjoyment’ or, in other
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`words, ‘beautiful.’” 417 F.3d at 1348. But importantly, the Federal Circuit also confirmed that the
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`phrase “should be considered in the context of [the asserted] claim.” Id. In the claim, “aesthetically
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`pleasing” was describing “the look and feel of custom interface screens on kiosks.” See id. In other
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`words, the claim required a subjective inquiry into whether any accused kiosk was aesthetically
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`pleasing (i.e., beautiful). See id. The Datamize Court explicitly differentiated this from other terms
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`that may sound subjective in the abstract (e.g., “desired”) but that “do not depend on a particular
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`person’s unfettered, subjective opinion” when read within the context of the claim. Id. at 1352.
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`Google’s application of Datamize fails because it completely sidesteps the critical step of
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`considering the disputed phrases within the context of the claims.1 Unlike “aesthetically pleasing,”
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` The other cases that Google cites (without any substantive analysis) are likewise inapt because
`they either deal with relative terms of degree or do not deal with subjective claim limitations at all.
`See U.S. Well Services, Inc. v. Halliburton Co., No. 6:21-CV-00367-ADA, 2022 WL 819548, at
`*8 (W.D. Tex. Jan. 17, 2022) (finding “high pressure” subjective when “multiple subjective
`categories of pressure in the intrinsic evidence—'high,’ ‘very high,’ and medium’ pressure—
`highlight the lack of any objective boundaries”); Versata Software, Inc. v. Zoho Corp., 213 F.
`Supp. 3d 829, 834 (W.D. Tex. 2016) (finding “space-constrained display of a portable device”
`subjective because it is a term “of degree” that “necessarily calls for a comparison against some
`[undescribed] baseline”); Iqasr LLC v. Wendt Corp., No. 16-CV-01782-MSK-KMT, 2019 WL
`1075477, at *9 (D. Colo. Mar. 7, 2019) (finding “magnetic fuzz” indefinite but not treating it as a
`subjective term); Dow Chem. Co. v. Nova Chems. Corp. (Canada), 803 F.3d 620, 631 (Fed. Cir.
`2015) (finding “a slope of strain hardening coefficient greater than or equal to 1.3” indefinite
`because the record showed there were many methods of measuring the slope that could produce
`different results and no guidance as to which one applied).
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`Case 6:22-cv-00031-ADA Document 49 Filed 08/31/22 Page 7 of 10
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`the claims here are not directed to determining as a matter of subjective opinion whether any
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`telephone number is superior, as Google suggests. The claims are instead directed to providing for
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`two telephone numbers on a single handset and (as this Court recognized in Dialpad) the phrases
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`in dispute distinguish those telephone number from each other in the succeeding claim limitations.
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`Thus, whether any given accused product has both a primary and a secondary telephone number
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`does not depend on a subjective opinion but rather on objective claim application.
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`In fact, Google’s arguments suggest that objective claim application is its real concern. It
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`argues, based on a self-serving misreading of Flyp’s preliminary infringement contentions, that
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`these terms are indefinite because (according to Google) Flyp is mapping the primary telephone
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`number and the secondary telephone number to the same Google Voice number. Not so. The
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`disclosures in Google’s preliminary infringement contentions (which come from public Google
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`documents) show that Google Voice includes multiple telephone numbers (e.g., a primary
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`telephone number and a secondary telephone number) associated with a handset and call
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`processing rules that are applied to determine how calls coming to, or originating from, those
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`respective telephone numbers are handled. See, e.g., ECF No. 47-10 at 3–6 (describing Google
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`Voice settings for how calls are handled when multiple numbers are associated with a handset).
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`There is accordingly no conflict between Flyp’s preliminary infringement contentions and the
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`plain meanings of primary telephone number and secondary telephone number in the claims.
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`Setting aside that Google’s claim application concerns lack merit, whether the accused
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`product satisfies the claim limitations is not a question for claim construction. See, e.g.,
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`Promethean Insulation Tech. LLC v. Sealed Air Corp., No. 2:13-CV-1113-JRG-RSP, 2015 WL
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`Case 6:22-cv-00031-ADA Document 49 Filed 08/31/22 Page 8 of 10
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`11027039, at *1 (E.D. Tex. Oct. 25, 2015) (“it is not the purpose of claim construction to eliminate
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`all disputes about infringement; whether a particular accused instrumentality satisfies the asserted
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`claims is ultimately a question of fact for the jury”). If Google believes its product does not practice
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`any limitation in the claims, it should present those arguments at the appropriate time—not as a
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`false Hobson’s choice that Flyp must either affirmatively prove infringement at the claim
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`construction stage or the claim is indefinite.
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`Ultimately, as this Court recognized in Dialpad, terms like “primary telephone number”
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`and “secondary telephone number” are simple terms that a jury (and certainly a person of ordinary
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`skill in the art) would understand with reasonable certainty. These terms are thus not indefinite
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`and do not require construction.
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`III. CONCLUSION
`The Court should therefore find that “primary telephone number” and “secondary
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`telephone number” are not indefinite and should apply their plain and ordinary meanings.
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`Case 6:22-cv-00031-ADA Document 49 Filed 08/31/22 Page 9 of 10
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`DATED: August 31, 2022
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`Respectfully submitted,
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`/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
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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 49 Filed 08/31/22 Page 10 of 10
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`CERTIFICATE OF SERVICE
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`/s/ Michael A. Bittner
`Michael A. Bittner
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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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