Case 6:22-cv-00031-ADA Document 57 Filed 09/28/22 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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` Civil Action No. 6:22-cv-31-ADA
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` JURY TRIAL DEMANDED
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`FLYPSI, INC. (D/B/A FLYP),
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` Plaintiff,
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` vs.
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`GOOGLE LLC,
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` Defendant.
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`PLAINTIFF FLYPSI, INC.’S SUR-REPLY CLAIM CONSTRUCTION BRIEF
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`Case 6:22-cv-00031-ADA Document 57 Filed 09/28/22 Page 2 of 11
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`I.
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`INTRODUCTION
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`Google’s position ignores the “bedrock principle” of claim construction—that “the claims
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`of a patent define the invention to which the patentee is entitled the right to exclude.” Phillips v.
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`AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc). Contrary to this now well-established
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`axiom, Google divorces the terms “primary telephone number” and “secondary telephone number”
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`from the surrounding context of the claims in which they appear. Even though it was invited to
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`do so by Flyp, Google’s Reply Brief (Dkt. No. 52) fails to include any discussion of the claim
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`language in which the terms “primary telephone number” and “secondary telephone number” are
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`found. When these terms are properly considered in context of the surrounding claim language,
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`they are readily understood with reasonable certainty and should be afforded their plain and
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`ordinary meanings. Google’s self-serving expert declaration, which lacks any technical merit and
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`provides only basic linguistic opinions, cannot overcome the plain language of the claims
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`themselves, which is unambiguous and definite.
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`II.
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`ARGUMENT
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`As an initial matter, Google ignores settled principles of claim construction. Here, the
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`analysis can begin and end with the claims themselves, which Google ignores.
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`Google’s arguments in Reply do not salvage its position and should be rejected. Google
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`first argues that Flyp is attempting to re-write the claims. This argument ignores Flyp’s actual
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`position—that the claims should be given their plain and ordinary meaning. Second, Google
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`attempts to analogize the terms “primary telephone number” and “secondary telephone number”
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`to inapposite caselaw considering subjective terms or terms of degree—like “high pressure” or
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`“aesthetically pleasing.” Google’s analogies are ineffective. The terms in dispute here are not
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`subjective and are not terms of degree—they are readily understandable terms delineating two
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`Case 6:22-cv-00031-ADA Document 57 Filed 09/28/22 Page 3 of 11
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`subjects that the remainder of the claim language properly contextualizes. Third, Google attempts
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`to sidestep this Court’s prior consideration of the term “primary telephone number.” Google,
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`however, fails to address the substance of this Court’s reasoning—that the term primary telephone
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`number “is not difficult or too technical in nature” and that “[i]t is not necessary to distinguish
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`primary and secondary telephone numbers through construction because these phrases will likely
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`be understood by a person of ordinary skill in the art and the jury will likely not be confused by
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`the terms.” Dkt. No. 49, Ex. A at 5.
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`A.
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`Google Ignores the Intrinsic Records and Rests Its Argument on the
`Declaration of Its Paid Expert.
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`Google’s approach separates the claim terms from all intrinsic evidence, rejecting the most
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`basic principle of claim construction. When read within the context of the rest of the claim and
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`the dependent claims, it is exceedingly clear that “primary” and “secondary” are terms used to
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`distinguish between two “telephone number” elements without conflating them with other
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`“bridge” telephone numbers and “contact” telephone numbers.
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`Looking just at claim 1 of the ’770 Patent (directed to receiving inbound calls to the
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`secondary number) and claim 1 of the ’094 Patent (directed to placing outbound calls from a
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`secondary number), the following claim limitations provide context for the difference between the
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`claimed primary and secondary numbers:
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`• “associating a secondary telephone number with a primary telephone number in at
`least one computer memory device, the primary telephone number being assigned
`to a handset,” (’770 Patent, cl. 1);
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`• “the first digital information indicating primary call processing rules for handling
`calls directed to the primary telephone number,” (id.);
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`• “the second digital information indicating secondary call processing rules for
`handling calls directed to the secondary telephone number,” (id.);
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`• “receiving an incoming call . . . the incoming call being directed to a handset-
`associated telephone number, the handset-associated telephone number being the
`primary telephone number or the secondary telephone number,” (id.);
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`• “transmitting pre-call information to the handset over the at least one data channel
`the pre-call information including the bridge telephone number and the handset-
`associated telephone number, such that the handset is capable of displaying the
`handset-associated telephone number to a user,” (id.);
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`• “automatically storing electronic information that indicates an association of a
`secondary telephone number and a primary telephone number with a telephone
`handset,” (’094 Patent, cl. 1);
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`• “automatically associating each primary telephone number and bridge or access
`telephone number pairing with a corresponding secondary telephone number and
`contact telephone number pairing,” (id.);
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`• “receiving, at the server, information from the switch indicating the outgoing call
`is being made to the bridge or access telephone number from the primary telephone
`number,” (id.); and
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`• “receiving, at the switch, information from the server directing the switch to: (a)
`connect the outgoing call to a contact telephone number associated with the primary
`telephone number and bridge or access telephone number pairing, and (b) identify
`a telephone number from which the outgoing call is being made as the secondary
`telephone number,” (id.).
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`Google’s briefs in this case fail to account for any of this context (not to mention similar
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`context in the dependent claims of the ’770 and ’094 Patents, and all claims of the ’105 Patent, the
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`’554 Patent, and the ’585 Patent). Rather than account for this claim language, Google relies on
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`its expert’s declaration, parading James Bress’s purported technical qualifications within electrical
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`engineering, telecommunications systems, and software design. Dkt. No. 52 at 6. Mr. Bress’s
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`declaration, however, presents a purely linguistic and conclusory statement about the meaning of
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`“primary” and “secondary,” without expressing a technical opinion as to “primary telephone
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`number” and “secondary telephone number.” See Dkt. No. 47-1 at 10–11. Bress does not so much
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`as point to English or technical dictionary definitions of the words “primary” and “secondary,” but
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`rather expects that supposed technical expertise is a functional stand-in for linguistic knowledge
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`without leveraging such expertise for his opinion.
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`Google’s approach thus separates the claim terms from all intrinsic evidence, rejecting the
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`most basic principle of claim construction. The general rule is that claim terms are given their
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`plain and ordinary meaning. Phillips, 415 F.3d at 1312. Extrinsic evidence is “less significant
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`than the intrinsic record in determining the legally operative meaning of claim language.” Id. at
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`1317 (quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)). An
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`expert’s conclusory or unsupported assertions as to the meaning of a term are not helpful. Id.
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`The plain and ordinary meanings of primary and secondary telephone numbers naturally
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`contrast with each other—especially when considered in the full context of the claim in which they
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`appear. Google has not shown how a person of ordinary skill in the art would be unable to ascertain
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`the meaning of these terms within the context of the claims. Google also has not shown how a
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`person of ordinary skill in the art would be unable to ascertain the meaning of these terms within
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`the context of the rest of the intrinsic record—including portions of the specification providing
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`explanations of these terms within the preferred embodiment. E.g., ’770 Patent at 5:2-4 (“The
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`primary telephone number, preferably, may be a SIM number or ESN which is assigned to the
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`handset 340 at the time of activation.”) and 5:4-14 (“Once selected, the handset 340 may
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`automatically transmit information which to the server 100 over the data channel which requests
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`that the secondary telephone numbers be associated with the primary telephone number. In
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`response, the server 100 may store (i.e., reference) information indicating the association of the
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`one or more selected secondary telephone numbers in computer memory associated with the server
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`such as the database 120. In an alternative embodiment, 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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`As the Court previously found with respect to “primary telephone number,” these terms
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`are not difficult or too technical in nature such that a construction would aid the jury in
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`understanding. Kroy IP Holdings, LLC v. Safeway, Inc., No. 2:12-cv-800-WCB, 2014 WL
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`3735222, at *2 (E.D. Tex., July 28, 2014). Similarly, these terms do not fit within any of the
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`exceptions of lexicography or disclaimer to warrant a departure from the plain and ordinary
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`meaning. See Thorner v. Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).
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`As long as one understands the meaning of “telephone number,” which is not in dispute here, the
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`meanings of “primary telephone number” and “secondary telephone number” are simple to
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`understand. These phrases will be easily understood by a person of ordinary skill in the art and
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`the jury will not be confused by the terms.
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`When read within the context of the claims and the specification, it is exceedingly clear
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`that “primary” and “secondary” are terms used to distinguish between two “telephone number”
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`elements without conflating them with the plural and numbered “bridge” telephone numbers and
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`“contact” telephone numbers. Accordingly, the Court should reject Google’s request that the terms
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`“primary telephone number” and “secondary telephone number” be found indefinite.
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`B.
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`Google’s Reply Misrepresents Flyp’s Position
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`In its reply, Google spends a significant amount of time misrepresenting Flyp’s position.
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`Google misrepresents Flyp’s position by asserting that Flyp argued that “primary” means “first”
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`and “secondary” means “second.” See Dkt. No. 52 at 2. Flyp’s position is more nuanced. As Flyp
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`stated in its response, “the ‘primary’ and ‘secondary’ terms merely distinguish two ‘telephone
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`number’ elements that appear in subsequent limitations, like their respective synonyms ‘first’ and
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`‘second.’” Dkt. No. 49 at 2. In doing so, Flyp did not equate primary with first and secondary
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`with second. Instead, Flyp correctly illustrated that the use of primary and secondary within the
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`full context of the claims are “objective terms of differentiation, not unlike common patent
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`constructs that describe a ‘first’ element and a ‘second’ element.” Id. at 5. Contrary to Google’s
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`suggestion, Flyp is not rewriting the claims here and is instead merely requesting that the claim
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`terms be given their plain and ordinary meaning. The Court need not engage with Google’s straw
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`man regarding “first” and “second.”
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`C.
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`Google’s Attempt to Analogize This Case to Terms of Degree or Subjective
`Terms Fails.
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`Next, Google attempts to analogize the disputed terms to other subjective terms or terms
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`of degree. Google stretches to compare the terms “high pressure” in U.S. Well Services and
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`“aesthetically pleasing” in Datamize to “primary telephone number” and “secondary telephone
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`number.” See Dkt. No. 52 at 4–6 (citing U.S. Well Services, Inc. v. Halliburton Company, No.
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`6:21-cv-00367-ADA, 2022 WL 819548 (W.D. Tex. Jan. 17, 2022), and citing Datamize, LLC v.
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`Plumtree Software, Inc., 417 F.3d 1342 (Fed. Cir. 2005)). Google’s analogies are inapposite.
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`Neither “high pressure” nor “aesthetically pleasing” are used to distinguish between numbers of
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`subjects like the disputed terms do. “High pressure” is a term of degree, while “aesthetically
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`pleasing” is plainly subjective. Both refer to a single subject and are incomparable to the terms in
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`dispute.
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`In U.S. Well Services, the term “high pressure” was found indefinite for failing to inform,
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`with reasonable certainty, those skilled in the art about the scope of the invention. U.S. Well
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`Services, 2022 WL 819548, at *9. In U.S. Well Services, the Court made its reasoning clear:
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`The Court finds that the intrinsic and extrinsic evidence does not
`provide any “objective baseline”
`to enable a POSITA
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`differentiate “high pressure” from non-high pressure. “Terms of
`degree are problematic if their baseline is unclear to those of
`ordinary skill in the art.” See Liberty Ammunition, Inc. v. United
`States, 835 F.3d 1388, 1395 (Fed. Cir. 2016) (explaining that a term
`of degree “necessarily calls for a comparison against some
`baseline,” but finding the claim term “reduced area of contact” not
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`Case 6:22-cv-00031-ADA Document 57 Filed 09/28/22 Page 8 of 11
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`indefinite because the specification identified two examples to
`compare with one another. The specifications of the Asserted
`USWS Patents do not provide guidance that would clarify the
`meaning of the term “high pressure,” or provide a baseline of
`comparison to allow skilled artisans to differentiate a pump that is
`“high pressure” from a pump that is “not high pressure.”
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`U.S. Well Services, Inc. at *6–7.
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`“[P]rimary telephone number” and “secondary telephone number” are plainly not terms of
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`degree. Google has not presented any argument that the terms “primary telephone number” and
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`“secondary telephone number” are terms of degree, only that a “primary telephone number” and
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`“secondary telephone number” are not differentiated from each other. See Dkt. No. 52 at 4–5.
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`Indeed, Google dances right around the core point: “primary” and “secondary” are the very words
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`that distinguish between the “primary telephone number” and “secondary telephone number.”
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`Google’s analogy conflates this concept of distinction with terms of degree.
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`Google, in its reply, attempts to defend its analogy of the terms in the present case to the
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`term “aesthetically pleasing” in Datamize. See Dkt. No. 52 at 5–6. Google repeats its assertion
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`that the “ordinary and customary meaning” of the limitations is “quite subjective” and contends a
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`need to “remove these limitations from ‘a matter of subjective opinion.’” Id. But Google’s
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`premise that the terms are “inherently subjective” is unsupported, flawed, and contrary to the plain
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`language of the claims. As discussed in Flyp’s response, the only support that Google provides
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`for this proposition is the declaration of Mr. Bress, which is conclusory and contrary to well-settled
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`claim construction principles. See, e.g., Allergan Sales, LLC v. Teva Pharm. USA, Inc., No. 2:15-
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`cv-01471-JRG-RSP, 2017 WL 4800734, at *6 (E.D. Tex. Sept. 28, 2017) (“Whether in the context
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`of claim construction or summary judgment, conclusory expert testimony is not entitled weight.”)
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`In the Datamize case, “aesthetically pleasing” meant “‘having beauty that gives pleasure
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`or enjoyment’, or in other words, ‘beautiful.’” Datamize., 417 F.3d at 1348. In the same opinion,
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`Case 6:22-cv-00031-ADA Document 57 Filed 09/28/22 Page 9 of 11
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`the Federal Circuit confirmed that the phrase “should be considered in the context of [the asserted]
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`claim.” Id. Google has done no such thing here, instead opting to segregate the terms “primary”
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`and “secondary.” The Datamize court explicitly differentiated this from other terms that may
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`sound subjective in the abstract (e.g., “desired”), but that “do not depend on a particular person’s
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`unfettered, subjective opinion” when read within the context of the claim. Id. at 1352.
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`“[P]rimary telephone number” and “secondary telephone number” do not depend on a
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`particular person’s unfettered, subjective opinion. Rather, the phrases distinguish those telephone
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`numbers from each other in the succeeding claim limitations. Once properly taken within the
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`context of the claims, rather than pulled into a vacuum, it is plainly clear that whether any given
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`accused product has both a primary and a secondary telephone number does not depend on a
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`subjective opinion but rather on objective claim application. Accordingly, like the other terms in
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`Datamize, “primary telephone number” and “secondary telephone number” are not subjective, but
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`rather reflect their plain and ordinary meaning.
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`D.
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`Google Fails to Engage With the Substance of This Court’s Prior Ruling.
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`Finally, Google attempts to sidestep this Court’s prior consideration of the term “primary
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`telephone number.” Google relies on the fact that indefiniteness was not previously raised for this
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`term in the earlier Dialpad claim construction. In doing so, Google fails to engage whatsoever
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`with the substance of this Court’s prior ruling.
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`While this Court admittedly did not consider whether the term is indefinite, the Court very
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`much did consider whether the term (a) required construction or (b) was readily understood by
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`persons of ordinary skill within the context of the intrinsic record. Google’s present argument
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`cannot be squared with the Court’s prior reasoning that the term “is not difficult or too technical
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`in nature” and that “[i]t is not necessary to distinguish primary and secondary telephone numbers
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`through construction because these phrases will likely be understood by a person of ordinary skill
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`Case 6:22-cv-00031-ADA Document 57 Filed 09/28/22 Page 10 of 11
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`in the art and the jury will likely not be confused by the terms.” Dkt. No. 49, Ex. A at 5. The
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`Court’s consideration of these issues and the Court’s ultimate conclusion is fatal to Google’s
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`current argument.
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`III. CONCLUSION
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`For the foregoing reasons, Flyp respectfully requests the Court apply to “primary telephone
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`number” and “secondary telephone number” their plain and ordinary meanings.
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`DATED: September 28, 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
`Steven R. Laxton
`Texas Bar No. 24120639
`slaxton@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
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`Case 6:22-cv-00031-ADA Document 57 Filed 09/28/22 Page 11 of 11
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`ATTORNEYS FOR PLAINTIFF
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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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