GOOGLE’S REPLY TO MOT. TO DISMISS Case No. 6:20-cv-00128-ADA-JCM 

 

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 

DEFENDANT GOOGLE LLC’S REPLY 

IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT 

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TABLE OF CONTENTS

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I. INTRODUCTION ............................................................................................................. 1

II. THIS COURT LACKS PERSONAL JURISDICTION .................................................... 2

III. CYWEE’S STATE LAW FRAUD CLAIM IS PREEMPTED AND NOT 

SUBJECT TO COLLATERAL REVIEW BY THIS COURT.......................................... 4

IV. CYWEE’S FRAUD CLAIM IS BARRED BY PRECLUSION DOCTRINES ................ 6

V. CYWEE HAS FAILED TO PLEAD A FRAUD CLAIM ................................................. 8

VI. CONCLUSION ................................................................................................................ 10

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TABLE OF AUTHORITIES

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CASES

Abbott Labs. v. Brennan, 

952 F.2d 1346 (Fed. Cir. 1991)............................................................................................. 2, 4 

Allred v. Moore & Peterson, 

117 F.3d 278 (5th Cir. 1997) .................................................................................................... 3 

Bradberry v. Jefferson Cty., Tex., 

732 F.3d 540 (5th Cir. 2013) .................................................................................................... 7 

Buckman v. Plaintiffs’ Legal Comm., 

531 U.S. 341 (2001) .................................................................................................................. 4 

Chaudhary v. Chubb & Son, 

2018 WL 8966965 (S.D. Tex. Dec. 20, 2018) ........................................................................ 10 

Chavez-Mercado v. Barr, 

946 F.3d 272 (5th Cir. 2020) .................................................................................................... 8 

Columbia Sportswear N.A. v. Seirus Innovative Accessories, 

2020 WL 1865858 (D. Or. Apr. 14, 2020) ........................................................................... 3, 9 

Columbia Sportswear N.A. v. Seirus Innovative Accessories, 

428 F. Supp. 3d 354 (D. Or. 2019), on reconsideration, 2020 WL 1865858 (D. 

Or. Apr. 14, 2020) ............................................................................................................. 5, 6, 9 

Copeland v. Merrill Lynch, 

47 F.3d 1415 (5th Cir. 1995) .................................................................................................... 7 

Dow Chem. Co. v. Exxon, 

139 F.3d 1470 (Fed. Cir. 1998)............................................................................................. 4, 5 

Halliburton Energy Servs. v. Ironshore Specialty Ins., 

921 F.3d 522 (5th Cir. 2019) .................................................................................................... 3 

Hunter Douglas, Inc. v. Harmonic Design, Inc., 

153 F.3d 1318 (Fed. Cir. 1998)................................................................................................. 5 

In re Freeman, 

30 F.3d 1459 (Fed. Cir. 1994)................................................................................................... 7 

Javery v. Lockheed Martin, 

765 F. App’x 98 (5th Cir. 2019) ............................................................................................... 8 

Kertesz v. Korn, 

2006 WL 8436262 (W.D. Tex. Nov. 21, 2006) ........................................................................ 3 

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TABLE OF AUTHORITIES 

(continued) 

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Lockwood v. Sheppard Mullin, 

2009 WL 9419499 (C.D. Cal. Nov. 24, 2009) .......................................................................... 6 

Moch v. East Baton Rouge Parish Sch. Bd., 

548 F.2d 594 (5th Cir. 1977) ................................................................................................ 7, 8 

Nations v. Sun Oil Co. (Del.), 

705 F.2d 742 (5th Cir. 1983) .................................................................................................... 7 

Reactive Surfaces v. Toyota, 

2015 WL 4876810 (W.D. Tex. Aug. 13, 2015) ........................................................................ 4 

RecoverEdge L.P. v. Pentecost, 

44 F.3d 1284 (5th Cir. 1995), rev’d on other grounds as recognized by In re 

Ritz, 832 F.3d 560 (5th Cir. 2016) ............................................................................................ 7 

Rougeux v. Int’l Bank of Commerce, 

2014 WL 12872429 (W.D. Tex. Apr. 14, 2014) ....................................................................... 7 

Thryv, Inc. v. Click-To-Call Techs., 

140 S. Ct. 1367 (2020) ...................................................................................................... 2, 4, 6 

Tinnus Enters. v. Telebrands Corp., 

2019 WL 2757243 (E.D. Tex. Apr. 16, 2019) .......................................................................... 7 

Transp. Ins. Co. v. Faircloth, 

898 S.W.2d 269 (Tex. 1995) ..................................................................................................... 9 

Trenholm v. Ratcliff, 

646 S.W.2d 927 (Tex. 1993) ..................................................................................................... 9 

United States v. Thomas, 

709 F.2d 968 (5th Cir. 1983) .................................................................................................... 7 

STATUTES

35 U.S.C. § 315(b) ...................................................................................................................... 4, 6 

OTHER AUTHORITIES

18 Fed. Prac. & Proc. Juris. (3d ed. Apr. 2020) .......................................................................... 7, 8

RULES

Fed. R. Civ. P. 9(b) ....................................................................................................................... 10 

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I. INTRODUCTION 

In an effort to salvage its fraud claim, CyWee weaves a narrative that misstates indisputable 

facts that, even accepted as true, would not save the claim from dismissal. For example, CyWee’s 

opposition constructs from thin air a theory that Google coordinated with Samsung about the 

“Bachmann reference,” and says CyWee was prevented from “presenting evidence” to the PTAB 

on this and other issues related to the parties-in-interest. In addition to being completely untrue, 

in its motion to terminate the IPR, CyWee already raised the Bachmann issue and other alleged 

evidence pled in the FAC; the PTAB expressly rejected that evidence as showing party-in-interest 

status and denied CyWee’s motion, finding Google’s list of parties-in-interest was correct. Dkt. 

11 (“Mot.”) at 6; Dkt. 11-1 at 11-37. More importantly, even if CyWee disagrees with the PTAB’s 

decision, it may not relitigate—and the Court should not collaterally review—that decision here. 

CyWee’s opposition confirms that its fraud claim fails for numerous reasons. 

First, the Court lacks personal jurisdiction. CyWee cannot dispute that the core challenge 

in this case relates to events that occurred in the PTAB proceedings outside of Texas. CyWee 

offers no support for its bare assertion that jurisdiction nevertheless exists simply because (i) it 

was allegedly served with IPR petitions in Texas, (ii) Google allegedly discussed strategy with 

Samsung related to a separate Texas litigation against Samsung, and (iii) non-parties Huawei and 

ZTE have their alleged U.S. headquarters in Texas. CyWee’s alternative request for jurisdictional 

discovery is a wasteful fishing expedition that, as Google explained in response to CyWee’s prior 

motion for the same relief, would not help resolve any issues here. Dkts. 17, 18. 

Second, federal law preempts CyWee’s state fraud claim, and no “fraud or sham” exception 

applies. Moreover, binding Supreme Court authority from April 2020, as well as authority from 

the Federal Circuit, firmly bar collateral review of the PTAB’s party-in-interest ruling—the central 

issue underlying CyWee’s fraud claim. Thryv, Inc. v. Click-To-Call Techs., 140 S. Ct. 1367, 1373-

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74, 1376 (2020); Abbott Labs. v. Brennan, 952 F.2d 1346, 1357 (Fed. Cir. 1991). 

Third, CyWee admits the elements for issue preclusion are met, but argues for an equitable 

exception based on “manifest injustice.” Fifth Circuit law is clear, however, that such an exception 

applies only to offensive collateral estoppel, where a plaintiff seeks to estop a defendant from 

contesting an issue the defendant previously litigated and lost. That does not apply here. Even if 

it did, CyWee does not come close to showing the type of manifest injustice that could give rise to 

any equitable exception to preclusion. 

Fourth, CyWee articulates no plausible theory of fraud. Its own cited authority confirms 

that legal opinions, such as Google’s judgment about the legal status of LG and Samsung, are 

generally not actionable for fraud; CyWee identifies no false statement of fact that could support 

its fraud claim. In addition, CyWee’s cursory assertions of reliance and injury have no legal basis 

and should be rejected out of hand, particularly since CyWee acknowledges it conducted its own 

investigation into the party-in-interest issue, and premises its claim of “injury” on conduct that the 

PTAB conclusively held was correct and lawful. 

II. THIS COURT LACKS PERSONAL JURISDICTION 

CyWee argues without a single supporting case that specific jurisdiction exists here, while 

repeating its request for jurisdictional discovery to the extent the Court disagrees. Opp. at 5-7; 

Dkt. 17. As Google explained in its opening brief and in response to CyWee’s motion for 

jurisdictional discovery, CyWee’s own allegations demonstrate the lack of personal jurisdiction, 

and no amount of discovery could change that fact. Mot. at 9-12; Dkt. 18. 

To prop up its jurisdictional argument, CyWee contends that Google “directed fraudulent 

misrepresentations” to CyWee’s counsel in Texas by filing its IPR petition in the PTAB “with the 

intention that [it] reach CyWee” via service. Opp. at 5; FAC ¶ 54. According to CyWee, Google 

intended to prevent CyWee from “alerting the PTAB” to the allegedly incomplete parties-inCase 6:20-cv-00128-ADA-JCM Document 24 Filed 07/06/20 Page 6 of 16
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interest, “timely seeking discovery,” and filing a “motion to terminate the Google IPR before any 

decision on the merits.” Opp. at 5. But CyWee indisputably did all this—it requested additional 

discovery into the parties-in-interest (the PTAB denied that request, Mot. at 4 n.2), and it moved 

to terminate the IPR based on the party-in-interest issue (which the PTAB likewise denied, id. at 

4-7). CyWee offers no legal support (and could not) for the notion that mere service of an IPR 

petition filed in the PTAB—without more—confers jurisdiction here. E.g., Allred v. Moore & 

Peterson, 117 F.3d 278, 287 (5th Cir. 1997) (service alone insufficient for personal jurisdiction); 

Kertesz v. Korn, 2006 WL 8436262, at *8 (W.D. Tex. Nov. 21, 2006). It is CyWee’s burden to 

establish jurisdiction, and it has failed. 

CyWee also argues that Google “injected itself” into Samsung’s separate litigation in the 

Eastern District of Texas by allegedly participating in a joint defense group and coordinating with 

Samsung about the “Bachmann reference.” Opp. at 5-6. CyWee does not allege Google appeared 

in that Texas litigation, only that it discussed strategy with defense counsel. Under Fifth Circuit 

law, participating in litigation cannot itself subject Google to the Court’s jurisdiction. Mot. at 11 

(citing Halliburton Energy Servs. v. Ironshore Specialty Ins., 921 F.3d 522, 541 (5th Cir. 2019)). 

CyWee offers no contrary authority. Indeed, Columbia Sportswear N.A. v. Seirus Innovative 

Accessories (cited elsewhere in CyWee’s brief) reinforces that no jurisdiction exists here. 2020 

WL 1865858, at *5 (D. Or. Apr. 14, 2020) (conduct furthering litigation strategy does not provide 

necessary contacts for personal jurisdiction). 

Finally, CyWee points to Huawei’s and ZTE’s U.S. headquarters in Texas, and Samsung’s 

Texas counsel, as alleged grounds for personal jurisdiction. Opp. at 6. But CyWee ignores that 

Huawei and ZTE are not parties or otherwise alleged to have a meaningful connection to this 

lawsuit. Mot. at 11-12. And as Google explained in response to CyWee’s motion for jurisdictional 

discovery, CyWee’s bald speculation about “meetings” between Google and Samsung counsel to 

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allegedly coordinate regarding Samsung’s strategy in its litigation to drop Bachmann—which 

never happened and for which CyWee offers no evidence—is irrelevant; the PTAB already held 

that Samsung’s treatment of Bachmann did not prove party-in-interest status. Dkt. 18 at 6-7.1 This 

issue is a red herring with no bearing on this case. 

III. CYWEE’S STATE LAW FRAUD CLAIM IS PREEMPTED AND NOT SUBJECT 

TO COLLATERAL REVIEW BY THIS COURT 

Federal law preempts CyWee’s fraud claim, and the PTAB’s party-in-interest ruling central 

to that claim is not subject to collateral judicial review. As Google explained in its motion, the 

Supreme Court in Buckman v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001), held that state tort 

“fraud on the agency” claims are federally preempted, and courts have repeatedly applied Buckman

to reject fraud and other tort claims challenging conduct in IPRs. Mot. at 12-13. The Federal 

Circuit likewise has held that proceedings before PTO boards are “not subject to collateral review,” 

as “[a]n additional state action would be an inappropriate collateral intrusion on the regulatory 

procedures of the PTO, under the guise of a complaint sounding in tort, ... and is contrary to 

Congress’ preemptive regulation in the area of patent law.” Abbott Labs., 952 F.2d at 1357; 

Reactive Surfaces v. Toyota, 2015 WL 4876810, at *5 (W.D. Tex. Aug. 13, 2015); cf. Dow Chem. 

Co. v. Exxon, 139 F.3d 1470, 1477 (Fed. Cir. 1998) (claims for alleged “bad faith misconduct 

before the PTO” are preempted). Moreover, in April 2020—after Google filed its motion but well 

before CyWee filed its opposition—the Supreme Court definitively held that PTAB party-ininterest determinations under 35 U.S.C. § 315(b) are not judicially reviewable, as “Congress 

entrusted [that] decision to the [PTAB].” Thryv, 140 S. Ct. at 1373-74, 1376 (rejecting argument 

 

1

 CyWee’s alternative request for jurisdictional discovery (Opp. at 7) rehashes its arguments in its 

motion for the same relief (Dkt. 17). Google explained in response to that motion (Dkt. 18) why 

the request would serve no benefit. Rather than repeat those arguments, Google incorporates by 

reference its response to that motion. 

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that Congress would limit “agency’s institution authority in § 315(b) without ensuring judicial 

supervision”; “AIA’s purpose and design strongly reinforce our conclusion,” as a contrary ruling 

would “tug against the objective” of Congress and “wast[e] the resources spent resolving 

patentability”). 

CyWee does not mention Thryv, Buckman, or any other decision barring judicial review of 

its fraud claim. Instead, CyWee admits patent law generally “bars the imposition of liability for 

conduct before the PTO,” but argues its claim should survive because it “can show that the [] 

conduct amounted to fraud or rendered the [] process a sham.” Opp. at 7-8 (quoting Hunter 

Douglas, Inc. v. Harmonic Design, Inc., 153 F.3d 1318, 1336 (Fed. Cir. 1998), and Dow, 139 F.3d 

at 1473). But Hunter Douglas and Dow predate Thryv by decades. CyWee also mischaracterizes 

the cases it cites: the conspicuous brackets that CyWee adds in the excerpted quote from Hunter 

Douglas (Opp. at 7) camouflage that it is a patentholder’s conduct that may not be preempted 

from state law claims if the conduct amounts to fraud or renders the patent application process a 

sham. Hunter Douglas, 153 F.3d at 1335-36. This exception “strike[s] a balance” between 

advancing the objectives of patent law (e.g., to “foster and reward invention”) by protecting 

patentholders’ rights and carving out conduct that “could expose [patentholders] to liability” in the 

non-adversarial patent application process. Id. at 1333, 1336. These same competing interests do 

not apply to claims against a patent challenger in an adversarial IPR, where the challenger does 

not obtain the same rights as a patentholder and any alleged “fraud” can be addressed in the IPR 

itself (as it was here with CyWee’s unsuccessful motion to terminate). 

The other case CyWee cites—Columbia Sportswear—is similarly inapposite. 428 F. Supp. 

3d 354 (D. Or. 2019), on reconsideration, 2020 WL 1865858 (D. Or. Apr. 14, 2020). In that case, 

which was transferred and dismissed on reconsideration for lack of jurisdiction, the court held that 

state tort claims were not preempted based on allegations that one defendant (Seirus) conspired 

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with another (Ventex) to delay trial in a related federal litigation by funding Ventex’s IPRs without 

disclosing Seirus as a party-in-interest; the PTAB ultimately held that Seirus was a party-in-interest 

and terminated Ventex’s IPRs as untimely under § 315(b). Id. at 363-64. Columbia Sportswear 

does not apply for several reasons. First, it predates Thryv, which, again, bars judicial review of 

PTAB party-in-interest determinations. Second, the court permitted Columbia’s claims to proceed 

mainly because it found Ventex’s institution of the IPR to be a “fraud and a sham,” given that the 

PTAB terminated the IPR as untimely under § 315(b) when presented with the omitted evidence 

of Seirus’s involvement. Id. at 368-71. The opposite is true here: the PTAB denied CyWee’s 

motion to terminate after carefully considering the evidence CyWee presented, finding that it did 

not establish that LG or Samsung were parties-in-interest—far from the alleged “fraud or sham” 

in Columbia Sportswear. Mot. at 3-7 & Ex. A at 11-37.2

IV. CYWEE’S FRAUD CLAIM IS BARRED BY PRECLUSION DOCTRINES 

CyWee’s arguments against preclusion are frivolous. CyWee concedes that the elements 

for collateral estoppel are met: the party-in-interest issue is identical to the issue actually litigated 

in the IPR, and the PTAB’s ruling on it was necessary to its judgment. Mot. at 13-16. But CyWee 

argues for a “fairness” exception because, in its view, barring its claim would “result in a manifest 

injustice.” Opp. at 9-10. Nonsense. 

The Fifth Circuit has made clear a “fairness” exception applies only when a plaintiff uses 

collateral estoppel offensively—i.e., when “a plaintiff seeks to estop a defendant from relitigating 

 

2

 CyWee argues that “[u]nlike the cases cited by Google,” the challenged conduct here “does not 

go to the substantive merits” of “whether CyWee’s patents are valid or not,” but instead relates to 

the party-in-interest issue which supposedly “render[ed] the entire [IPR] a sham.” Opp. at 8. But, 

again, Google’s party-in-interest disclosures were hardly a sham, given the PTAB found Google’s 

disclosures were correct. CyWee’s attempted distinction also is misguided: the party-in-interest 

issue, like the patentability issue, is a core statutory component of federal patent law, and collateral 

judicial review would disrupt that carefully constructed statutory framework. Thryv, 140 S. Ct. at 

1370, 1374-75; Lockwood v. Sheppard Mullin, 2009 WL 9419499, at *7 (C.D. Cal. Nov. 24, 2009). 

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issues that the defendant previously litigated and lost against another plaintiff.” RecoverEdge L.P. 

v. Pentecost, 44 F.3d 1284, 1290 n.12 (5th Cir. 1995), rev’d on other grounds as recognized by In 

re Ritz, 832 F.3d 560, 565 n.3 (5th Cir. 2016); Bradberry v. Jefferson Cty., Tex., 732 F.3d 540, 

548-49 (5th Cir. 2013) (“[T]he district court erred in relying on equitable factors in concluding 

that collateral estoppel did not apply,” as “[t]hese equitable considerations apply only to offensive 

collateral estoppel.”) (emphasis added); Rougeux v. Int’l Bank of Commerce, 2014 WL 12872429, 

at *3 & n.2 (W.D. Tex. Apr. 14, 2014). CyWee’s own authority confirms as much. See Nations 

v. Sun Oil Co. (Del.), 705 F.2d 742, 744 (5th Cir. 1983) (analyzing “offensive collateral estoppel”); 

Copeland v. Merrill Lynch, 47 F.3d 1415, 1423 (5th Cir. 1995) (same); 18 Fed. Prac. & Proc. Juris. 

§ 4426 (3d ed. Apr. 2020) (statements that issue preclusion “should not be exercised in such a 

manner as to work an injustice” should “be approached with great caution” to avoid “destroy[ing]” 

the “very values served by preclusion”); cf. Tinnus Enters. v. Telebrands, 2019 WL 2757243, at 

*5 (E.D. Tex. Apr. 16, 2019) (offensive collateral estoppel applies because the “parties across both 

litigations are the same” and had a “full and fair opportunity to litigate” the issue). Here, as the 

defendant, Google’s preclusion arguments are defensive—not offensive—and thus CyWee’s 

entire equitable argument crumbles as a matter of law.3

Even if a “fairness” exception applied (it does not), CyWee offers nothing but bluster to 

try to engineer “manifest injustice.” It claims Google has a “stranglehold” over the U.S. PTO and 

PTAB, and also argues Google misled the PTAB about the parties-in-interest. Opp. at 10-11. But 

CyWee offers no support for this false allegation (nor could it). And the notion that Google 

 

3

 Other cases CyWee cites held issue preclusion applied. E.g., United States v. Thomas, 709 F.2d 

968 (5th Cir. 1983); In re Freeman, 30 F.3d 1459 (Fed. Cir. 1994)). And in Moch v. East Baton 

Rouge Parish Sch. Bd., 548 F.2d 594, 597-98 (5th Cir. 1977) (Opp. at 10), the court did not apply 

preclusion when there was a significant change in a constitutional voting law that would result in 

a manifest injustice. Nothing close to the facts in Moch is alleged here. 

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“misled” the PTAB on the parties-in-interest to “secure a judgment” by fraud is unsound: in its 

unsuccessful motion to terminate, CyWee presented to the PTAB the same evidence that it alleges 

here to contest the same party-in-interest issue, and the PTAB rejected that challenge, finding 

Google’s party-in-interest disclosures were correct. Thus, CyWee has hardly been deprived of a 

“full and fair opportunity” to litigate the party-in-interest issue or otherwise been subjected to the 

type of “manifest injustice” that could give rise to a “fairness” exception. 18 Fed. Prac. & Proc. 

Juris. § 4426; Moch, 548 F.2d at 597-98 (manifest injustice where intervening change in law, if 

left unaddressed, would allow school board “to continue ad infinitum a constitutionally infirm 

system outlawed everywhere else”). 

Finally, CyWee argues that while the related res judicata doctrine (claim preclusion) is not 

based in equity, it does not apply here because it requires the “same claim or cause of action,” and 

CyWee “never raised a Texas state law common law fraud claim in the IPR proceeding.” Opp. at 

11-12 & n.12. CyWee misses the point: the Fifth Circuit has “for over three decades” interpreted 

“same claim or cause of action” to mean the two suits “are based on the same nucleus of operative 

facts.” Javery v. Lockheed Martin, 765 F. App’x 98, 99 (5th Cir. 2019) (collecting cases); ChavezMercado v. Barr, 946 F.3d 272, 275-76 (5th Cir. 2020) (“same claim or cause of action” turns on 

“whether the two cases ... are based on the same nucleus of operative facts”); Mot. at 16 n.7. The 

“type of relief requested or the substantive theories advanced” is immaterial. Chavez-Mercado, 

946 F.3d at 276. This case indisputably involves the same nucleus of operative facts on the partyin-interest issue. Mot. at 4-8. CyWee’s lone argument against res judicata is meritless. 

V. CYWEE HAS FAILED TO PLEAD A FRAUD CLAIM 

Finally, the FAC does not articulate a cognizable fraud claim. CyWee acknowledges in its 

opposition that a Texas fraud claim requires a known false statement of fact, reliance, and resulting 

injury. Opp. at 12-13. But CyWee fails to plausibly show any of these elements. 

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No known false representation. CyWee admits that opinions and statements about legal 

status are not actionable as fraud, but argues a “misstatement of fact intertwined with a statement 

of opinion amounts to a false representation of fact.” See Opp. at 12 (citing Transp. Ins. Co. v. 

Faircloth, 898 S.W.2d 269, 277 (Tex. 1995)). CyWee’s authority, however, supports Google. In 

Faircloth, the Court rejected a fraud claim based on an opinion about the monetary value of a 

wrongful death action because “there [was] no evidence that the statement was a false statement 

of fact, or that the agent knew it was false when made,” particularly given the opinion was based 

on many factors about which “experts can sincerely disagree.” Faircloth, 898 S.W.2d at 276-77. 

The Court in Faircloth noted that while an opinion may be treated as an actionable statement of 

fact if “based on or buttressed with false facts,” citing Trenholm v. Ratcliff, 646 S.W.2d 927, 930-

31 (Tex. 1993), it held the case involved no such circumstances. Faircloth, 898 S.W.2d at 277 

(distinguishing Trenholm as involving opinion by developer who induced homebuilders to buy 

property next to trailer park by “falsely stating that the trailer park had been sold” and would “be 

gone in a matter of months”). Much like the facts in Faircloth, Google’s position about the legal 

status of LG and Samsung was based on the law and facts at the time it filed the IPR; as in 

Faircloth, nothing plausibly suggests that Google’s position was “based on or buttressed with false 

facts”—to the contrary, CyWee presented its alleged “evidence” in its motion to terminate, but the 

PTAB resoundingly rejected it, conclusively holding that Google had identified the correct partiesin-interest. Mot. at 4-8.4

 

4 Columbia Sportswear does not apply. See Opp. at 12. As noted above, that case was dismissed 

on reconsideration for lack of personal jurisdiction, 2020 WL 1865858, at *6, and the portion of 

the original order on fraud applied Virginia and Oregon law, not Texas law, 428 F. Supp. 3d at 

374. Further, the case involved deliberate concealment of a fact (a contract between the defendants 

about funding of the IPR) that the PTAB held, after learning of that contract, showed party-ininterest status. Id. at 372, 374. Here, the PTAB held—based on the same facts and evidence 

alleged in the FAC—that Google’s disclosures were correct and that LG and Samsung were not 

parties-in-interest. See Mot. at 4-8. 

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No reliance. CyWee devotes just two sentences and no legal authority to argue it “relied 

on Google’s misrepresentations” and was “delayed in discovering the truth.” Opp. at 12-13. But 

CyWee never explains—much less with the specificity required by Rule 9(b)—how it relied on 

Google’s statements or how it was “delayed” in discovering the “truth.” Mot. at 18-19; Fed. R. 

Civ. P. 9(b). CyWee cannot do so, of course, having admitted it “conducted its own investigation” 

and filed an unsuccessful motion to terminate based on the same supposed evidence that it alleges 

in the FAC to support its fraud claim. Mot. at 18-19. CyWee’s conclusory assertion of reliance is 

implausible on its face and deficient as a matter of law. 

No injury caused by Google. Finally, CyWee says it suffered injury “caused” by Google 

because it “would not have had to defend itself” in the IPR and “would not have been deprived of 

its property rights” since the IPR “would have been terminated.” Opp. at 13. But it defies common 

sense that Google’s lawful party-in-interest disclosures (as the PTAB held) caused any cognizable 

harm. Mot. at 18. Because CyWee has articulated no injury caused by any allegedly unlawful or 

fraudulent conduct, its fraud claim fails on this basis too. 

VI. CONCLUSION 

CyWee’s opposition confirms that the deficiencies in its FAC are incurable on their face. 

Since amendment would be futile and would waste the resources of the Court and the parties, this 

matter should be closed—the Court should exercise its discretion and dismiss the FAC without 

leave to amend. Mot. at 8-9; Chaudhary v. Chubb & Son, 2018 WL 8966965, at *4 (S.D. Tex. 

Dec. 20, 2018) (dismissal with prejudice because amendment would be futile). 

Case 6:20-cv-00128-ADA-JCM Document 24 Filed 07/06/20 Page 14 of 16
GOOGLE’S REPLY TO MOT. TO DISMISS -11- Case No. 6:20-cv-00128-ADA-JCM 

 

Dated: July 6, 2020 /s/ Paige Arnette Amstutz 

Luann L. Simmons (Pro Hac Vice) 

lsimmons@omm.com 

Adam M. Kaplan (Pro Hac Vice) 

akaplan@omm.com 

Bill Trac (Pro Hac Vice) 

btrac@omm.com 

O’MELVENY & MYERS LLP 

Two Embarcadero Center, 28th Floor 

San Francisco, CA 94111-3823 

Telephone: 415-984-8700 

Facsimile: 415-984-8701 

Paige Arnette Amstutz 

State Bar No. 00796136 

SCOTT DOUGLASS & McCONNICO LLP 

303 Colorado Street, Suite 2400 

Austin, Texas 78701-2589 

(512) 495-6300 

(512) 495-6399 (fax) 

Attorneys for Defendant Google LLC 

 

Case 6:20-cv-00128-ADA-JCM Document 24 Filed 07/06/20 Page 15 of 16
GOOGLE’S REPLY TO MOT. TO DISMISS -12- Case No. 6:20-cv-00128-ADA-JCM 

 

CERTIFICATE OF SERVICE 

Pursuant to the Federal Rules of Civil Procedure and Local Rule CV-5, I hereby certify 

that, on July 6, 2020, all counsel of record who have appeared in this case are being served with a 

copy of the foregoing via the Court’s CM/ECF system. 

/s/ Paige Arnette Amstutz 

 Paige Arnette Amstutz 

Case 6:20-cv-00128-ADA-JCM Document 24 Filed 07/06/20 Page 16 of 16