PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT GOOGLE LLC’S MOTION TO DISMISS FIRST 

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

CYWEE GROUP LTD.,

Plaintiff,

v.

GOOGLE LLC,

Defendant.

CASE NO. 6:20-cv-00128-ADA-JCM

JURY TRIAL DEMANDED

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT 

GOOGLE LLC’S MOTION TO DISMISS FIRST AMENDED COMPLAINT

Defendant Google LLC (“Defendant” or “Google”) has been covertly 

orchestrating a fraudulent conspiracy for months. Google’s Motion to Dismiss (Dkt. 

No. 11) summarily denies these allegations and their jurisdictional bases. Taking 

Plaintiff’s allegations as true—as the Court is required to do—Plaintiff CyWee Group 

Ltd. (“Plaintiff” or “CyWee”) has pled with particularity sufficient facts to support its 

fraud cause of action.1 Accordingly, Google’s Motion must be denied.

I. BACKGROUND

CyWee brings a single cause of action against Google alleging common law 

fraud under Texas law. Specifically, CyWee alleges that Google orchestrated a 

fraudulent conspiracy among members of a joint defense group (the “JDG”)2 Google 

1 As discussed herein, consideration of Google’s Motion is premature. CyWee has 

requested, and is entitled to, limited discovery related to Google’s Motion to Dismiss 

for lack of jurisdiction. (Dkt. No. 17). The Court should defer ruling on the entirety of 

the Motion to Dismiss until such discovery is completed and the briefing is 

supplemented to incorporate the jurisdictional evidence. 2 The JDG was formalized through a written Joint Defense Agreement (“JDA”) in 

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had formed comprised of the smartphone makers (the “Android Defendants”)3 CyWee 

had sued, in part, for satisfying Google’s requirements for implementations of its

Android Operating System.4 The express admitted purpose of the JDG was to allow 

Google and the Android Defendants to work together to invalidate the CyWee 

Patents. See Dkt. No. 4 (“FAC”) ¶ 37. Prior to the formation of the JDG and execution 

of the JDA, CyWee had sued Samsung in Texas on February 17, 2017.5 In the EDTX 

Litigation, one of the primary prior art references Samsung relied upon in its 

preliminary invalidity contentions was the Bachmann Reference.6 By the time the 

JDG was formed and the JDA executed, the EDTX Litigation was rapidly 

approaching the deadline for the parties to file dispositive motions—July 9, 2018.

Fearing a determination that the Bachmann Reference would prove not to be 

invalidating prior art in the EDTX Litigation through summary judgment or a trial, 

Google and Samsung conspired that Samsung drop the Bachmann Reference from the 

EDTX Litigation so Google could use it in a series of IPRs Google was planning to file 

in furtherance of the JDA.7 Consequently, Samsung dropped the Bachmann

approximately June of 2018.

3 The Android Defendants named in CyWee’s suits are Samsung, LG, Huawei, HTC,

and ZTE.

4 CyWee asserted infringement of U.S. Patent No. 8,441,438 (the “’438 patent”) and 

U.S. Patent No. 8,552,978 (the “’978 patent”) (collectively “CyWee Patents”) against 

all of the Android Defendants.

5 CyWee Group Ltd. v. Samsung Electronics Co., Ltd., No. 2:17-cv-00140 (E.D. Tex. 

Feb. 17, 2017) (the “EDTX Litigation”).

6 U.S. Patent No. 7,089,148. 7 Google LLC v. CyWee Group Ltd., No. IPR2018-01257 (P.T.A.B. June 14, 2018); 

Google LLC v. CyWee Group Ltd., No. IPR2018-01258 (P.T.A.B. June 14, 2018) 

(collectively the “Google IPRs”).

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Reference from the EDTX Litigation because Samsung and its co-conspirator Google 

did not know if the EDTX Litigation would be stayed pending the Google IPRs’

outcomes. If the EDTX Litigation had not been stayed, the determination of whether

the Bachmann Reference qualified as invalidating prior art would have been made in 

the EDTX Litigation before the Google IPRs were concluded. Google, Samsung and 

the other Android Defendants did not want the Bachmann Reference’s merits as prior 

art decided on summary judgment or by an EDTX Litigation jury before it was 

addressed in the more favorable Patent Trial and Appeal Board (“PTAB”) forum. This 

shows that Samsung and Google were in privity and coordinating the strategy for the 

Google IPRs, again making Samsung a real party-in-interest to the Google IPR.8

None of this was disclosed to CyWee or the USPTO when the Google IPRs were filed, 

not even the existence of the JDG or the contents of the JDA.

Pursuant to 35 U.S.C. § 315(b), ““[a]n inter partes review may not be instituted 

if the petition requesting the proceeding is filed more than 1 year after the date on 

which the petitioner, real party-in-interest, or privy of the petitioner is served with a 

complaint alleging infringement of the patent.” A petitioner must disclose any real 

parties-in-interest when filing an IPR petition. 35 U.S.C. § 312(a)(2); 37 C.F.R.

§ 42.8(b)(1). Samsung, LG, and Huawei are all real parties-in-interest with Google. 

FAC ¶¶ 41–42. The filing of the EDTX Litigation created a deadline for Google to file 

an IPR on February 17, 2018. 35 U.S.C. § 315(b).

8 Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 

2018), cert. denied, 139 S. Ct. 1366 (2019).

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Google failed to file an IPR petition by its one-year deadline. Realizing it had 

missed a critical deadline that would time bar its IPR petitions, Google devised a plan 

to fraudulently cover up its error by illegal means. FAC ¶ 45. Specifically, when it 

filed its IPR petitions on June 14, 2018, Google intentionally misrepresented the 

identities of the real parties-in-interest by omitting any LG9 or Samsung entity from 

its disclosures of real parties-in-interest. Id. at ¶¶ 45, 47. By fraudulently 

misrepresenting the identities of the real parties-in-interest and withholding the 

material facts that LG made the smartphones at issue in the Google Litigation, the 

existence of the JDA and Samsung’s cooperation in dropping the Bachmann Reference

from the EDTX Litigation10, Google misled the PTAB into issuing a final written 

decision invalidating CyWee’s Patents. Id. at ¶¶ 50–51. By not disclosing the real 

parties-in-interest to CyWee or any evidence inconsistent with that non-disclosure, 

Google avoided CyWee raising the issue immediately with the USPTO, seeking 

discovery and presenting evidence to establish the status of Samsung and LG as timebarred real parties-in-interest. As a result of Google’s fraudulent misrepresentations, 

CyWee has suffered injury by being forced to defend IPR petitions that are believed 

9 In addition to being a member of the JDG and a signatory to the JDA, LG literally 

manufactured some of the Google phones accused of infringing CyWee’s Patents in 

the case CyWee filed against Google. CyWee Group Ltd. v. Google, Inc., No. 1:18-cv00571-UNA, Dkt. No. 1 (D. Del. Apr. 16, 2018) (the “Google Litigation”).

10 By failing to disclose evidence contrary to its position, Google violated its duty of 

candor and good faith to the USPTO. 37 C.F.R. § 42.11 (providing duty of good faith); 

37 C.F.R. § 42.51(b)(1)(iii) (requiring that “[u]nless previously served, a party must 

serve relevant information that is inconsistent with a position advanced by the party 

during the proceeding concurrent with the filing of the documents or things that 

contains the inconsistency”).

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to have been initiated and carried out by fraudulent means and by being deprived of 

its property rights as a result of Google’s fraudulent misrepresentations. Id.

II. ARGUMENT AND AUTHORITIES

A. This Court has Specific Personal Jurisdiction Over 

Google

CyWee’s fraud claim arises, at least in part from Google’s Texas contacts. 

CyWee has pled three theories supporting the existence of jurisdiction: “[Google] (i) 

direct[ed] its fraudulent misrepresentations to Texas, (ii) knowingly and 

intentionally inject[ed] itself into litigation pending in the State of Texas, and (iii) 

conspir[ed] with Texas based entities Huawei and ZTE.” See FAC ¶¶ 5–6.

First, Google directed fraudulent misrepresentations about its real parties-ininterest to Texas, specifically to CyWee’s counsel in Dallas, Texas. FAC ¶ 54. As these 

fraudulent misrepresentations were received in Texas and relied upon in Texas, a 

substantial part of the fraudulent conduct occurred in Texas. Google intended that 

CyWee’s counsel in Texas would rely on these incomplete disclosures by, among other 

things, not alerting the PTAB to Google’s fatal omissions, not timely seeking 

discovery regarding facts surrounding the true identities of the real parties-ininterest, and not filing a motion to terminate the Google IPRs before any decision on 

the merits.

Second, Google injected itself into a lawsuit against Samsung in the Eastern 

District of Texas, the EDTX Litigation. FAC ¶ 34. Early in the EDTX Litigation, 

around September 2017, Samsung first identified the Bachmann Reference as a 

potentially invalidating prior art reference. Id. at ¶ 48. Even though CyWee had not 

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yet sued or even accused Google of patent infringement, Google conspired with 

Android device manufacturers to form the JDG and execute a JDA with the express 

purpose of invalidating CyWee’s Patents. Id. at ¶ 37. In furtherance of its conspiracy 

to invalidate the CyWee Patents, Google filed an IPR petition which primarily relied 

upon the Bachmann Reference previously identified by Samsung in the EDTX 

Litigation. Id. at ¶¶ 44–49. To ensure its IPR petition was instituted and that 

assertion of the Bachmann Reference in the Google IPRs would not be preempted or 

compromised by an earlier ruling in the fast approaching EDTX Litigation, Google 

and Samsung both conspired and agreed that Samsung would drop the Bachmann

Reference as prior art, so that it could be addressed solely in the Google IPRs. Id. By 

doing this, Google insured that the Bachmann Reference would not be considered by 

Judge Bryson on summary judgment or by an East Texas jury at trial, but rather in 

a forum much more favorable to Google—the PTAB.

Third, Huawei and ZTE both maintain their North American headquarters in 

Texas. Furthermore, Samsung’s counsel in the EDTX Litigation is based in Texas. 

Thus, CyWee has reasonable grounds to believe Google participated in meetings and 

communications occurring in Texas or which involved Texas-based counsel for 

Samsung, Huawei and ZTE, as well as in-house counsel or executives of those 

companies in furtherance of the fraud and conspiracy. Jurisdictional discovery will 

undoubtedly reveal the scope of such communications occurring in Texas or directed 

to Texas.

Accordingly, CyWee has pled that CyWee’s fraud claim arises from Google’s 

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Texas contacts.11

B. Alternatively, CyWee Should be Permitted to Take

Jurisdictional Discovery

Even if this Court were to find that CyWee has not yet made a prima facie

showing of jurisdiction, the Court should permit jurisdictional discovery. To be 

entitled to jurisdictional discovery a plaintiff “need only present ‘factual allegations 

that suggest with reasonable particularity the possible existence of the requisite 

contacts.’” Corder v. BBG Commc’ns, Inc., No. CIV.A. W-11-CA-00264, 2012 WL 

3843691, at *10 (W.D. Tex. July 30, 2012) (Smith, J.) (emphasis added) (quoting 

Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 429 (5th Cir. 2005)). As further 

described in its Motion for Jurisdictional Discovery (Dkt. No. 17), CyWee has, at a 

minimum, shown the possible existence of jurisdiction in Texas. The Court should 

grant CyWee’s Motion for Jurisdictional Discovery and allow limited discovery to be 

completed prior to any further consideration of Google’s Motion to Dismiss.

C. CyWee’s Fraud Claim May be Adjudicated by This Court

Federal law does not preempt state law causes of action for fraudulent activity 

at the USPTO. “[F]ederal patent law bars the imposition of liability for conduct before 

the PTO unless the plaintiff can show that the [] conduct amounted to fraud 

or rendered the [] process a sham.” Hunter Douglas, Inc. v. Harmonic Design, Inc., 

153 F.3d 1318, 1336 (Fed. Cir. 1998) overruled on other grounds by Midwest Indus. v. 

Karavan Trailers, Inc., 175 F.3d 1356 (Fed. Cir. 1999) (en banc) (emphasis added). 

11 For similar reasons, venue is proper in the Western District of Texas. 28 U.S.C.

§ 1391(c)(2).

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Similarly, in Dow Chem. Co. v. Exxon Corp., 139 F.3d 1470 (Fed. Cir. 1998), Dow 

brought a claim for unfair competition based on Exxon’s alleged inequitable conduct 

before the USPTO. The Federal Circuit held “that such a state law tort claim is not 

preempted by the federal patent law, even if it requires the state court to adjudicate 

a question of federal patent law, provided the state law cause of action includes 

additional elements not found in the federal patent law cause of action and is not an 

impermissible attempt to offer patent-like protection to subject matter addressed by 

federal law.” Id. at 1473. Courts must look to the conduct and “strike a balance” 

between rights and obligations owed under both federal and state law. Hunter 

Douglas, Inc., 153 F.3d at 1336.

Unlike the cases cited by Google, Google’s misconduct before the PTAB does 

not go to the substantive merits of the IPR proceeding. That is, Google’s fraudulent 

misrepresentations are not related to whether CyWee’s patents are valid or not. 

Rather, Google’s fraudulent misrepresentations were made with the intent to 

undermine the entirety of the Google IPR proceedings and render the entire process 

a sham designed to derail the EDTX Litigation where the validity of CyWee’s patents 

was set to be determined first. But for Google’s fraudulent misrepresentations, the 

PTAB would have terminated the IPR proceeding as time-barred and never issued a 

decision on the merits of the petition. Accordingly, the application of state law fraud 

claims as asserted in the instant case does not seek to disrupt the role Congress 

delegated to the PTAB in the creation of the IPR regime.

Similarly, in Columbia Sportswear North America, Inc. v. Seirus Innovative 

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Accessories, Inc. (“Columbia Sportswear”), the plaintiff brought several causes of 

action, including fraud claims under both Oregon and Virginia law, based on the 

defendants’ fraudulent conspiracy to misrepresent the identities of real parties-ininterest in an IPR proceeding. 428 F. Supp. 3d 354 (D. Or. 2019), on reconsideration

on other grounds, No. 3:19-CV-00137-MO, 2020 WL 1865858 (D. Or. Apr. 14, 2020). 

The defendants in Columbia Sportswear, similar to Google, argued that the state law 

fraud claims were preempted. Id. at 371. The Columbia Sportswear court squarely 

rejected these arguments, finding “[f]ederal patent law does not preempt state law 

causes of action for fraudulent filings provided that the state law causes of action do 

not offer patent-like protection and the state claims have additional elements not 

found in federal patent claims. . . . None of [the plaintiff’s] state law claims (fraud, 

conspiracy to commit fraud, abuse of process, and Oregon RICO) purport to offer 

patent-like protection, and all of them contain additional elements not found in 

federal patent claims.” Id. (citing Hunter Douglas, Inc., 153 F.3d at 1336).

Accordingly, federal law does not preempt CyWee’s Texas fraud claim.

D. Equitable Principles Prevent Issue Preclusion From 

Applying to a Judgment Obtained by Fraudulent Means

Issue preclusion is an equitable doctrine premised on principles of fairness. 

Nations v. Sun Oil Co. (Delaware), 705 F.2d 742, 744–45 (5th Cir. 1983) (citing 

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 331 (1979)); Copeland v. Merrill 

Lynch & Co., 47 F.3d 1415, 1423 (5th Cir. 1995); United States v. Thomas, 709 F.2d 

968, 972 (5th Cir. 1983); In re Freeman, 30 F.3d 1459, 1467 (Fed. Cir. 1994) (citing 

Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 

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349 (1971)). A court holds discretion in determining whether the exercise of 

preclusion is appropriate.12 Id. A court should decline to apply issue preclusion if it 

would work to create an injustice. Moch v. E. Baton Rouge Par. Sch. Bd., 548 F.2d 

594, 597 (5th Cir. 1977) (“[C]ourts have occasionally rejected strict application of bar 

and estoppel principles when their use would violate an overriding public policy or 

result in manifest injustice.”); see also Restatement (Second) of Judgments § 28 

(1982); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal 

Practice and Procedure § 4426 (3d ed. Apr. 2020 Update).

Equitable principles bar the application of issue preclusion in the instant case. 

CyWee’s fraud claims do not go to the substantive merits of the PTAB proceeding (i.e. 

whether CyWee’s Patents are valid), but instead relate to how Google used 

fraudulent means to secure a judgment. At the core of CyWee’s claim, CyWee alleges 

that Google made fraudulent misrepresentations to the PTAB to mislead the PTAB 

to issue a final written decision. Now, Google seeks to use its fraudulently obtained 

judgment as a sword to prevent any claims challenging the propriety of Google’s 

misconduct. Applying issue preclusion in the instant case would result in a manifest 

injustice. In fact, applying issue preclusion in the instant case would encourage 

nefarious actors like Google to obtain administrative relief through fraud, and then 

12 Unlike the doctrine of claim preclusion, or res judicata, issue preclusion is not a 

matter of legal right. Rather, it is an equitable doctrine to be applied “only when the 

alignment of the parties and the legal and factual issues raised warrant it.” Nations 

v. Sun Oil Co. (Delaware), 705 F.2d 742, 744 (5th Cir. 1983). As a principle of equity, 

“fairness to both parties must be considered when it is applied.” Id. (citing Johnson 

v. United States, 576 F.2d 606, 614 (5th Cir. 1978), cert. denied, 451 U.S. 1018 (1981)).

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hide behind the doctrine of issue preclusion to immunize them from any attack.

Google should not be permitted to invoke an equitable doctrine (issue preclusion) to 

wash its own unclean hands.

Furthermore, equitable principles disfavor the application of issue preclusion 

due to Google’s captive stranglehold upon the USPTO and the PTAB. As CyWee has 

alleged in its First Amended Complaint, Google has forged a cozy quid pro quo

relationship with Washington policymakers and regulators. FAC ¶¶ 21–28. Google is 

one of the top lobbyists and political campaign contributors in the nation, which has 

allowed it to develop a “revolving door” relationship with government administration. 

Id. Google used its deep pockets and political influence to secure the nomination of 

its former Deputy General Counsel and Head of Patents and Patent Strategy,

Michelle Lee, to serve as Director of the United States Patent and Trademark Office. 

Michelle Lee was responsible for overseeing the USPTO’s implementation of the 

America Invents Act (“AIA”), including hiring many new PTAB judges to oversee the 

new AIA proceedings, including IPR proceedings. Id. at ¶¶ 29–33. At Google’s behest, 

Michelle Lee was successful in recruiting a posse of PTAB administrative law judges 

committed to Google’s mission of annihilating patents—so much so the PTAB has 

earned itself the common moniker of “patent death squad.” Id. Principles of equity do 

not support applying issue preclusion to any decision from an administrative body 

that was handpicked to do Google’s bidding.

Furthermore, in a footnote Google argues that CyWee’s fraud claim is barred 

by claim preclusion. Not so. As Google admits, claim preclusion requires that the 

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“same claim or cause of action” be involved in both suits. CyWee never raised a Texas 

state law common law fraud claim in the IPR proceeding—nor could it. The PTAB 

lacks jurisdiction to hear any “counterclaims” by a patentee, such as a state law fraud 

claim.

Therefore, the doctrines of issue and claim preclusion are inappropriate and 

improper in this case.

E. CyWee Has Pled All Necessary Elements for a Claim for 

Common Law Fraud

CyWee has pled with particularity all of the necessary elements of a fraud 

claim. First, Google argues that its misrepresentation regarding the identified of real 

parties-in-interest is not actionable because it is a statement of opinion. Not so. A 

misstatement of fact intertwined with a statement of opinion amounts to a false 

representation of fact. Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 277 (Tex. 1995) 

(citing Trenholm v. Ratcliff, 646 S.W.2d 927, 930–31 (Tex. 1983)). Analyzing 

analogous elements of a fraud claim under Oregon and Virginia law, the court in 

Columbia Sportswear found assertions regarding “real part[ies] in interest in [an] 

IPR petition is not a pure legal opinion and is, therefore, actionable as fraud.” 

Columbia Sportswear, 428 F. Supp. 3d at 373 (citing Omnicare, Inc. v. Laborers Dist. 

Council Const. Indus. Pension Fund, 575 U.S. 175, 190–92 (2015)). Moreover, Google’s 

misrepresentation is actionable because Google had knowledge it was false. 

Trenholm, 646 S.W.2d at 930; FAC ¶ 55. Google withheld the information on purpose 

with the intent to deceive.

Furthermore, CyWee relied on Google’s misrepresentation because Google was 

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under an obligation to accurately represent real parties-in-interest under penalty of 

perjury and to disclose any contrary information. CyWee was delayed in discovering 

the truth due to Google’s misrepresentation, which allowed it to move forward with 

the IPR proceedings to CyWee’s prejudice.

For similar reasons, Google’s fraudulent misrepresentation caused CyWee’s

injuries. FAC ¶ 57. But for Google’s fraudulent misrepresentation, CyWee would not 

have had to defend itself in an IPR proceeding because the proceeding would be time 

barred. Moreover, but for Google’s fraudulent misrepresentation, the IPR would have 

been terminated and CyWee would not have been deprived of its property rights.13

F. Alternatively, CyWee Should be Given Leave to Amend

Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should freely 

give leave [to amend a pleading] when justice so requires.” To the extent the Court 

finds that CyWee has failed to sufficiently plead a claim or jurisdiction, CyWee 

respectfully requests the Court grant leave so CyWee may correct any deficiencies 

identified by the Court.

III. CONCLUSION

Accordingly, for the reasons stated herein CyWee has sufficiently pled 

jurisdiction and a claim. Therefore, this Court should deny Google’s Motion to 

Dismiss (Dkt. No. 11). Alternatively, this Court should permit CyWee to take 

jurisdictional discovery and/or amend its pleading.

13 In a footnote Google argues that CyWee lacks standing because there is no causal 

connection between CyWee’s injuries and the conduct complained of. As described 

above, CyWee’s alleged injuries were caused by Google’s fraudulent misconduct.

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Dated: June 8, 2020 Respectfully submitted,

By: /s/ Michael W. Shore

Michael W. Shore (Texas 18294915)

mshore@shorechan.com

Alfonso G. Chan (Texas 24012408)

achan@shorechan.com

Ari B. Rafilson (Texas 24060456)

(application pending)

arafilson@shorechan.com

William D. Ellerman (Texas 24007151)

wellerman@shorechan.com

Corey M. Lipschutz (Texas 24099303)

clipschutz@shorechan.com

SHORE CHAN DEPUMPO LLP

901 Main Street, Suite 3300

Dallas, Texas 75202

Tel: (214) 593-9110

Fax: (214) 593-9111

COUNSEL FOR PLAINTIFF 

CYWEE GROUP LTD.

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CERTIFICATE OF SERVICE

In accordance with Federal Rule of Civil Procedure 5 and Local Rule CV-5, I 

hereby certify that a true and correct copy of the foregoing has been served on all 

counsel of record via the CM/ECF electronic filing system on June 8, 2020.

 /s/ Michael W. Shore

Michael W. Shore

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