Case 6:22-cv-00031-ADA Document 52 Filed 09/14/22 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 REPLY CLAIM CONSTRUCTION BRIEF
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`Case 6:22-cv-00031-ADA Document 52 Filed 09/14/22 Page 2 of 10
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`Flyp implicitly admits that the patents-in-suit provide no criteria (objective or otherwise)
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`for a POSITA to distinguish between the claimed primary and secondary telephone numbers. To
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`avoid this fatal defect, Flyp argues that the explicit limitations “primary telephone number” and
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`“secondary telephone number” do not mean what they say, and instead mean nothing more than
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`“first telephone number” and “second telephone number.” This argument ignores the patents’
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`intentional use of “first” and “second” only where those simple modifiers were appropriate, and
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`the deliberate use of the more specific modifiers “primary” and “secondary” for describing
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`different types of telephone numbers. Flyp cannot avoid indefiniteness by rewriting claim
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`elements, or by rendering meaningless the words “primary” and “secondary,” which the patentee
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`expressly included in the claims. Because even Flyp recognizes that a POSITA cannot ascertain
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`with reasonable certainty when a telephone number is primary, secondary, neither or both, the
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`challenged claim terms are indefinite.
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`I.
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`The “Primary Telephone Number” and “Secondary Telephone Number” Are
`Different Types of Numbers in the Claimed Invention
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`Flyp drafted the Asserted Patents to include and require at least four different types of
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`telephone numbers: (i) primary telephone number; (ii) secondary telephone number; (iii) bridge
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`telephone number; and (iv) contact telephone number. Dkt. 47 at 2. Flyp purposefully selected the
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`claim language to differentiate these separately required telephone numbers from each other. See
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`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1119 (Fed. Cir. 2004)
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`(“[W]hen an applicant uses different terms in a claim it is permissible to infer that he intended his
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`choice of different terms to reflect a differentiation in the meaning of those terms.”). Flyp now
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`asks the Court to turn a blind eye to the drafting decisions it made nearly a decade ago. The Court
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`should decline this invitation. The claims, specification, and prosecution history of the Asserted
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`Patents demonstrate that the “primary telephone number” is a different type of number than the
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`Case 6:22-cv-00031-ADA Document 52 Filed 09/14/22 Page 3 of 10
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`“secondary telephone number.” Flyp is mistaken that these two telephone numbers are “no
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`different than a ‘first telephone number’ and a ‘second telephone number.’” Dkt. 49 at 3.
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`To begin, the claims use the words “first” and “second” to describe multiple “bridge”
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`telephone numbers and “contact” telephone numbers. For example, the ’105 Patent recites “a first
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`bridge telephone number” and a “second bridge telephone number.” ’105 Patent, Claims 2, 8; id.
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`Claims 8, 12 (“first contact telephone number”; “second contact telephone number”). It is therefore
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`incorrect to suggest that the words “primary” and “secondary” differentiate two telephone numbers
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`“in much the same way the words ‘first’ or ‘second’ would.” See Dkt. 49 at 2. Claim 1 of the ’770
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`Patent further demonstrates how Flyp intentionally chose “different terms to reflect a
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`differentiation in the meaning of those terms.” Innova/Pure Water, Inc., 381 F.3d at 1119. There,
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`Flyp used the words “first” and “second” to refer to two sets of digital information that a handset
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`acquires in the claimed invention, but the words “primary,” “secondary,” and “bridge” to refer to
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`the different types of telephone numbers in the claim. In sum, had Flyp wanted to claim merely a
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`“first telephone number” and “second telephone number,” it would have done so. It did not.
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`Next, the specification suggests that there is only one “primary telephone number.” See,
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`e.g., ’105 Patent, Col. 5:21–25 (“the primary telephone number and the one or more secondary
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`telephone numbers”). But the specification describes embodiments using multiple “secondary
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`telephone numbers.” See ’770 Patent, Abstract; id., Col. 4:67–5:2 (“one or more secondary
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`telephone numbers”); id., Col. 5:35–39 (“activation of additional secondary telephone numbers”).
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`Flyp’s argument that the primary and secondary telephone numbers are nothing more than a “first”
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`and “second” telephone number makes no sense in this context: like the bridge or contact telephone
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`numbers, there can be multiple secondary telephone numbers (i.e., a “first” secondary telephone
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`number; a “second” secondary telephone number).
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`Case 6:22-cv-00031-ADA Document 52 Filed 09/14/22 Page 4 of 10
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`Finally, the prosecution history confirms that the “primary” and “secondary” telephone
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`numbers are different types of numbers in the claimed invention. U.S Application No. 13/944,853
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`(“’853 Application”)—to which the Asserted Patents claim priority—refers to the “primary
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`telephone number” as a “user telephone number” and the “secondary telephone number” as an
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`“alternative telephone number.” Compare ’853 Application with ’770 Patent application (Ex. 8).
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`The prosecution history thus makes clear that one telephone number in the claimed invention is
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`“primary,” (i.e., the “user telephone number”) and at least one (but perhaps multiple) telephone
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`number in the claimed invention is “secondary” (i.e., “alternative”).
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`Flyp’s argument that “primary” and “secondary” are synonymous with “first” and “second”
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`should thus be rejected. See Dkt. 49 at 1. As used in the Asserted Patents, a primary telephone
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`number and secondary telephone number “are distinct terms that are not interchangeable” with a
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`first telephone number and second telephone number. See Digital Retail Apps, Inc. v. H-E-B, LP,
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`No. 6:19-cv-00167-ADA, 2020 WL 376664, at *8 (W.D. Tex. Jan. 23, 2020). Simply put,
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`“primary” and “secondary” cannot be substituted with “first” and “second,” as Flyp urges. Doing
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`so would not only ignore the patentee’s deliberate selection and emphasis of the words “primary”
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`and “secondary” (as opposed to “first” and “second,” which were selected for use in other
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`limitations), it would render the express “primary telephone number” and “secondary telephone
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`number” terms effectively meaningless.
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`II.
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`The Asserted Patents Provide No Objective Criteria to Determine When a
`Telephone Number Is “Primary” or “Secondary”
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`Nothing in the intrinsic record provides an objective standard for a POSITA to determine
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`when a telephone number is “primary” or “secondary.” Dkt. 47 at 3–4. The present dispute is
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`strikingly similar to that in U.S. Well Services. There, the defendant argued that the term “high
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`pressure” was indefinite because what might be considered “high pressure” to one POSITA may
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`Case 6:22-cv-00031-ADA Document 52 Filed 09/14/22 Page 5 of 10
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`not be “high” enough to another POSITA. U.S. Well Servs., Inc. v. Halliburton Co., No. 6:21-cv-
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`00367-ADA, 2022 WL 819548, at *5 (W.D. Tex. Jan. 17, 2022). Similarly here, a telephone
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`number that one user (or POSITA) considers “primary” might be considered “secondary” or
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`“alternative” to another user (or POSITA). In U.S. Well Services, this Court held that the intrinsic
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`and extrinsic record did not enable a POSITA to differentiate “‘high pressure’ from non-high
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`pressure.” Id. at *6. Here, too, the record provides no “objective baseline” for a POSITA to
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`differentiate a primary telephone number from a secondary number. Finally, the plaintiff in U.S.
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`Well Services sought a plain and ordinary meaning construction that wholly ignored the disputed
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`claim term. Id. at *9 (“The overarching problem with USWS’s understanding of the plain and
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`ordinary meaning of the term is that it completely reads the term ‘high pressure’ out of the
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`claims.”). So too here. Flyp’s argument that the disputed limitations are “no different than a ‘first
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`telephone number’ and a ‘second telephone number’” render the asserted claim language wholly
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`superfluous. See also Versata Software, Inc. v. Zoho Corp., 213 F. Supp. 3d 829, 837 (W.D. Tex.
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`2016) (“”[M]eaning must be separately given to ‘space-constrained display.’”); Datamize, LLC v.
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`Plumtree Software, Inc., 417 F.3d 1342, 1346 (Fed. Cir. 2005) (affirming district court’s
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`conclusion that the disputed term “must be given meaning and cannot be read out of the claim”).
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`Just like the limitations at issue in U.S. Well Services, “primary telephone number” and “secondary
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`telephone number” are indefinite.
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`Flyp’s attempt to distinguish Datamize falls short. Dkt. 49 at 5–6. Under Datamize, this
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`Court may properly conclude that the “ordinary and customary meaning” of the limitations is
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`“quite subjective”—one telephone number is more important or relevant (“primary”) than the other
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`one (“secondary” or “alternative”). See Datamize, 417 F.3d at 1346. Like the plaintiff in Datamize,
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`Flyp cannot point to anything in the intrinsic record that removes these limitations from “a matter
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`Case 6:22-cv-00031-ADA Document 52 Filed 09/14/22 Page 6 of 10
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`of subjective opinion.” Dkt. 49 at 6. There is simply no way to objectively determine whether a
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`telephone number is primary or secondary. Datamize, 417 F.3d at 1352 (“[N]either these
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`statements nor any others in the written description set forth an objective way to determine whether
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`an interface screen is ‘aesthetically pleasing.’”).
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`Rather than address the subjective nature of these limitations, Flyp resorts to ad hominem
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`attacks on Google expert James Bress’s “purported technical qualifications.” Dkt. 49 at 4. But,
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`with an M.S. in electrical engineering and over 35 years of experience in telecommunications
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`systems and software design, Mr. Bress is well-positioned to attest to the “subjective and relative”
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`nature of the limitations. Dkt. 47 at 3. Further, contrary to Flyp’s assertion, Mr. Bress did not
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`“divorce[]” the limitations from the asserted claims, or discuss the limitations “in the abstract.”
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`Dkt. 49 at 4. Instead, he reviewed the limitations in the context of the Asserted Patents and their
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`prosecution histories. Dkt. 47-1, ¶ 23. After that review, he determined that, to a POSITA
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`analyzing the asserted claims, “it is impossible to know, as between a personal telephone number
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`and a business telephone number utilized by a user, which might be the ‘primary telephone
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`number’ and which might be the ‘secondary telephone number’ . . . .” Id., ¶ 37.
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`Ultimately, Flyp’s Response does not actually contend that the patents provide a POSITA
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`with any standards or criteria to use in determining when a particular telephone number is primary,
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`secondary, or both. Dkt. 49 at 3 (conceding that “either” telephone number performs the same
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`function).1 Indeed, other than suggesting that the claims be rewritten—to replace “primary” and
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`“secondary” with the words “first” and “second”—Flyp offers no evidence whatsoever to dispute
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`1 Flyp’s failure to raise any distinction between the “primary telephone number” and “secondary
`telephone number” forecloses its right to do so on sur-reply. See Liberty Mut. Fire Ins. Co. v.
`Fowlkes Plumbing, LLC, 850 F. App’x 213, 217 (5th Cir. 2021) (holding “arguments raised in a
`sur-reply are not properly preserved” when not articulated in the opposition brief).
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`Case 6:22-cv-00031-ADA Document 52 Filed 09/14/22 Page 7 of 10
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`the reality that a POSITA, reading the claim elements in the context of the intrinsic record, would
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`not be able to determine with reasonable certainty whether or not a particular telephone number
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`was “primary” or not, or “secondary” or not. Dkt. 49 at 5 (asking Court to treat the disputed
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`limitations like the “common patent constructs that describe a ‘first’ element and a ‘second’
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`element”). The claim terms “primary telephone number” and “secondary telephone number” are
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`thus indefinite. See Infinity Comput. Prods., Inc. v. OKI Data Ams., Inc., 987 F.3d 1053, 1062
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`(Fed. Cir. 2021) (“[T]he indefiniteness here does not reside in the term ‘passive link’ or ‘computer’
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`on its own but rather in the relationship between the two in the context of these claims.”); TEVA
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`Pharms. USA, Inc. v. Sandoz, Inc., 789 F.3d 1335, 1341 (Fed. Cir. 2015) (holding limitation
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`indefinite where “the claim on its face offers no guidance” and where “[t]here is no express
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`definition [of the disputed limitation] in the ’808 patent specification”); Interval Licensing LLC v.
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`AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014) (“The claims, when read in light of the
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`specification and the prosecution history, must provide objective boundaries for those of skill in
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`the art.”).
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`III. The Court’s Claim Construction Ruling in the Dialpad Case Does Not Support Flyp
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`Faced with Google’s indefiniteness arguments, Flyp relies heavily on an earlier case where
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`the indefiniteness of the “primary” and “secondary” limitations was not even at issue. Dkt. 49 at
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`2–3 (discussing Flypsi, Inc. v. Dialpad, Inc., No. 6:21-cv-00642-ADA, Dkt. 73 (W.D. Tex. Aug.
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`22, 2022) (“Dialpad Markman”). In that case, Dialpad sought a particular construction of “primary
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`telephone number,” and did not allege indefiniteness of that term. Here, both the primary and
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`secondary telephone number limitations are at issue, and Google has demonstrated the
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`indefiniteness of those terms in the context of the Asserted Patents. Additionally, while Dialpad
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`argued for a specific construction of “primary telephone number,” namely that it is a “telephone
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`number or identifier that is assigned to a handset or mobile device” (Dialpad Markman at 3–4),
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`Case 6:22-cv-00031-ADA Document 52 Filed 09/14/22 Page 8 of 10
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`here, Google points out that the intrinsic evidence discloses that both the primary and secondary
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`telephone numbers can be assigned to a handset or mobile device. Dkt. 47 at 5.
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`At bottom, the questions presented here were neither raised nor resolved in the Dialpad
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`Markman. As such, this Court is not bound by the inapposite (and interim) construction proposed
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`by Dialpad, and may alter “its interpretation of the claim terms as its understanding of the [Asserted
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`Patents] evolves.” Pfizer, Inc. v. Teva Pharms., USA, Inc., 429 F.3d 1364, 1377 (Fed. Cir. 2005)
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`(citation omitted) (“Indeed, a conclusion of law such as claim construction is subject to change
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`upon the development of the record”). And a plain and ordinary meaning construction is simply
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`not a workable solution. Cf. O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351,
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`1360 (Fed. Cir. 2008). As discussed above, Flyp’s proposed understanding of the plain and
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`ordinary meaning (a first and second telephone number) runs contrary to the intrinsic record.
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`Moreover, the typical meaning of “primary” suggests greater importance or relevance for some
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`reason or purpose; while the typical meaning of “secondary” implies lesser importance or
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`relevance for some rationale. But, the determination of a telephone number’s primacy (i.e., its
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`relative importance or relevance to a user) is necessarily subjective and unguided by any criteria
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`in the Asserted Patents. The Dialpad claim construction does not resolve the core issue here.
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`IV. Conclusion
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`For the foregoing reasons, Google respectfully requests that the Court find “primary
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`telephone number” and “secondary telephone number” indefinite.
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`Case 6:22-cv-00031-ADA Document 52 Filed 09/14/22 Page 9 of 10
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`DATED: September 14, 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
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`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
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`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
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`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 52 Filed 09/14/22 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 14th day of September, 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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