EXHIBIT 1

Case 6:20-cv-00128-ADA-JCM Document 25-1 Filed 07/14/20 Page 1 of 7
PLAINTIFF’S SUR-REPLY IN OPPOSITION TO DEFENDANT GOOGLE LLC’S MOTION TO DISMISS FIRST

AMENDED COMPLAINT PAGE 1 

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 SUR-REPLY IN OPPOSITION TO DEFENDANT 

GOOGLE LLC’S MOTION TO DISMISS FIRST AMENDED COMPLAINT 

Defendant Google LLC’s (“Defendant” or “Google”) Reply Brief (Dkt. No. 24), 

contains multiple legal arguments not included in its original Motion to Dismiss (Dkt. 

No. 11). First, Google incorrectly argues the Supreme Court’s recent decision in 

Thryv, Inc v. Click-To-Call Techs., LP (“Thryv”)1 bars Plaintiff CyWee Group Ltd.’s 

(“Plaintiff” or “CyWee”) fraud claim. Second, Google mistakenly claims that this 

Court must consider equitable factors only in cases of offensive issue preclusion. Both 

of these arguments are as fundamentally flawed as they are new. Accordingly, CyWee 

files this Sur-Reply to respond to these two new arguments.2

I. THE THRYV DECISION DOES NOT ADDRESS THE ISSUES OF

THIS CASE

The Thryv case did not address fraudulent conduct before the PTAB. Rather, 

the Thryv case addressed the direct appealability of the PTAB’s decision to institute 

1 140 S. Ct. 1367 (2020). 

2 Google also raises several other arguments that have already been addressed in CyWee’s Response 

(Dkt. No. 23). Accordingly, CyWee does not rehash them. 

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an IPR proceeding. Id. at 1366. The instant case is not a direct appeal of the PTAB’s 

institution decision, nor is the instant case a collateral attack on the PTAB’s decision. 

Rather, this case is about Google’s fraudulent conduct and misrepresentations it 

made to the PTAB and CyWee in order to literally hijack a case from a judge and jury 

in Texas in order to have it heard instead by an unconstitutionally appointed panel 

of administrative patent judges, where Google felt it enjoyed an advantage because 

its former in-house counsel created the system and hired the APJs. 

As discussed in CyWee’s Response, a party may be subject to state law tort 

liability for conduct before the USPTO when its “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). Nothing in the Thryv

decision overturned or abrogated the “fraud or sham” exception created under Hunter 

Douglas. Intentionally leaving out time-barred real parties-in-interest from its 

mandatory disclosures to CyWee and the PTAB is such a fraud or sham. 

The Thryv decision further supports the need for this Court to exercise 

jurisdiction. Without any direct review of the PTAB’s institution decision, Google 

seeks to reap the benefits of its intentional fraudulent conduct, while also seeking to 

evade any culpability for its fraud. CyWee does not ask this Court to adjudicate a 

question of patent law. Rather, CyWee seeks to hold Google liable for its fraudulent 

misrepresentations. Therefore, CyWee’s claim fits squarely within the Hunter 

Douglas “fraud or sham” exception. 

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AMENDED COMPLAINT PAGE 3 

II. THE COURT IS REQUIRED TO CONSIDER EQUITABLE 

FACTORS PRIOR TO INVOKING ISSUE PRECLUSION 

Google’s attempt to distinguish offensive and defensive issue preclusion is 

without merit. Federal courts have long abandoned the requirement of mutuality and 

distinctions between offensive and defensive issue preclusion. Allen v. McCurry, 449 

U.S. 90, 94–95 (1980); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 n.16 

(1979) (“[T]here is no intrinsic difference between ‘offensive’ as distinct from 

‘defensive’ issue preclusion.”). Instead of focusing on rigid rules of mutuality or 

parsing offensive issue preclusion from defensive issue preclusion, “one general 

limitation the Court has repeatedly recognized is that the concept of collateral 

estoppel cannot apply when the party against whom the earlier decision is asserted 

did not have a ‘full and fair opportunity’ to litigate that issue in the earlier case.” 

Allen, 449 U.S. at 95; see also Fin. Acquisition Partners LP v. Blackwell, 440 F.3d 278, 

284 (5th Cir. 2006) (citing Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 

391 (5th Cir. 1998)). The fundamental concept of fairness is consistent with issue 

preclusion’s roots as an equitable doctrine. Nations v. Sun Oil Co. (Delaware), 705 

F.2d 742, 744 (5th Cir. 1983). “[T]his Court need not determine whether offensive or 

defensive collateral estoppel is involved here because precedent illustrates that 

fairness is always an appropriate factor when considering collateral 

estoppel.” Watts v. XL Sys., L.P., No. CIV.A. 1:06-CV-653LY, 2008 WL 5731945, at 

*11 (W.D. Tex. July 2, 2008). 

Due to Google’s fraudulent misconduct, CyWee did not have a “full and fair 

opportunity” to litigate any issues regarding Google’s real parties-in-interest before 

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the PTAB because if Google had told the truth as it was statutorily required to do, 

there would have been nothing for the PTAB to litigate. Google made fraudulent 

misrepresentations to the PTAB to trick the PTAB into conducting the IPR in the 

first instance. If Samsung and LG had been named as real parties-in-interests, or the 

facts had been fully disclosed as required by statute, no IPR would have been 

instituted, and no final written decision would have ever been issued. Google now 

seeks to use issue preclusion as a shield to prevent any claims that challenge Google’s 

knowing, intentional misconduct which the PTAB chose to ignore. Applying issue 

preclusion in this case is fundamentally unfair, and equitable principles weigh 

heavily against its application. Issue preclusion is intended to be a tool for judicial 

economy, not a weapon to immunize fraudulent misconduct from judicial review. 

Accordingly, this Court should exercise its discretion to decline to apply issue 

preclusion. 

III. CONCLUSION 

Google’s Motion to Dismiss is without merit and should be denied. 

Alternatively, CyWee resurges its request to conduct jurisdictional discovery. The 

discovery CyWee seeks will not only reveal where Google committed and directed its 

fraud—Texas—but the fraud itself. That is why Google is seeking to smother this 

case in its crib. The Court should not allow it.

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AMENDED COMPLAINT PAGE 5 

Dated: July 14, 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 July 14, 2020. 

 /s/ Michael W. Shore 

Michael W. Shore 

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