A jury of seven women in Waco recently determined Google owes a communications company $12 million in damages for infringing five patents via its Google Voice internet phone service.
Flypsi, which does business as Flyp, had filed suit against the tech giant in January 2022, seeking more than $100 million in damages for infringement of the patents covering technology that allows users to use the internet to connect multiple phone numbers to a single mobile phone.
While the damages figure was lower than requested, Flyp’s lead attorney, Tom Melsheimer of Winston & Strawn, told The Lawbook the result was a total victory.
“We won on every contested issue,” he said, noting the jury also declined to invalidate any of the patents.
Google issued a statement to The Lawbook vowing to appeal.
“As we argued in court, Google Voice was developed independently before Flyp’s patents were even an idea,” the statement reads. “We’ll continue to set the record straight.”
At trial, Google had argued it had invented the technology first and therefore owed zero damages to Flyp. The tech titan also argued that because it invented the technology first Flyp’s patents were invalid.
“There were some interesting challenges in this case. One is, you’re suing Google, which is seen as this highly innovative, technologically sophisticated company,” Melsheimer said. “So the notion that they would have invented things is pretty plausible to people.”
The crux of the case was who invented the technology first, Melsheimer said.
Google told jurors its use of Google Voice dated back to 2009. Flyp filed its patent application in 2013.
Melsheimer said he tried to drive home to the jury that the product Google called Google Voice back in 2009 is not the same product that Flyp alleged infringed its technology.
“We told the story that they did have something called Google Voice in 2009, but it turned out there were challenges and problems with it that did not get fixed until 2017,” he said. “And that was how we were able to show that our patent was both infringed and valid.”
U.S. District Judge Alan D. Albright presided over the trial that began with jury selection Feb. 15. Testimony began Feb. 20 and the jury returned its verdict Monday.
Proving damages was also a challenge in the case, Melsheimer said, since Google allows users access to Google Voice for free. The jury was shown evidence about the value of a licensing agreement Flyp had entered into with another company to use its technology as part of the damages portion of trial.
But one challenge in this case stood out from the others. Google’s fact witness on Google Voice, software engineer Anthony Jawad, is blind. To accommodate him, Melsheimer gave Google in advance the documents he planned to use to cross-examine Jawad and Google gave Melsheimer the documents they intended to ask Jawad about.
“Both sides had to show their cards a week in advance,” Melsheimer said. “I’d never done that.”
Cross-examining a witness jurors could feel empathy for required an extra level of preparation.
“You’ve got to be really careful, you can’t be too aggressive,” Melsheimer said. “But the other thing is you have to formulate your language differently. The most asked question during cross-examination is ‘Do you see where I’m reading?’ or ‘Do you see that clause?’ or ‘What does that email say?’… I was extremely anxious about how this would work.”
“But there were a lot of things that we had to get out of him to win. Because the truth is, if [the jury] believed him 100 percent we were going to lose,” he said. “The moral of the story for me is being nice is fine. Because unless you’re truly cross-examining a witness that you need to prove is a liar… what you’re usually trying to prove is they don’t know something the other side wants the jury to think they know.”
“So many young lawyers do this wrong and there’s no reason not to be kind and gentle, and that’s especially true for a witness who is blind,” he said.
Google is represented by Robert W. Unikel, John A. Cotiguala, Daniel J. Blake, Grayson S. Cornwell, Alizabeth Brann, Ariell N. Bratton, Robert R. Laurenzi and Joshua Yin of Paul Hastings, Dan L. Bagatell and Andrew T. Dufresne of Perkins Coie and Paige Amstutz of Scott, Douglas & McConnico.
Flypsi is also represented by Michael A. Bittner, M. Brett Johnson, C. Charles Liu, Steven R. Laxton, John K. Myers, Matthew R. McCullough, William M. Logan and Evan D. Lewis of Winston & Strawn.
The case number is 6:22-cv-00031.