IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC d/b/a BRAZOS 

LICENSING AND DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC., DELL INC., 

AND EMC CORPORATION,

Defendants.

Case No. 6:20-cv-00475-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR 

FAILURE TO STATE A CLAIM

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 1 of 24
i

TABLE OF CONTENTS

Page

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

II. BACKGROUND .................................................................................................................1

A. The ’888 Patent .........................................................................................................1

B. Plaintiff’s Infringement Allegations..........................................................................4

III. LEGAL STANDARD..........................................................................................................5

A. Direct Infringement ...................................................................................................5

B. Induced and Contributory Infringement....................................................................6

IV. ARGUMENT.......................................................................................................................7

A. Plaintiff Fails to State a Claim for Direct Infringement of the ’888 Patent ..............7

1. Plaintiff Fails to Allege Actual Performance of the Claimed Method...............7

2. Plaintiff’s Untethered Factual Allegations Provide No Basis to Infer Practice 

of the Claimed Method ......................................................................................8

B. Plaintiff Fails to State a Claim for Induced and Contributory Infringement...........11

1. Plaintiff’s Indirect Infringement Claims Fail Without Direct Infringement....11

2. Plaintiff Fails to Allege the Requisite Knowledge for Indirect Infringement .12

3. Plaintiff Fails to Allege the Requisite Specific Intent for Induced

Infringement.....................................................................................................14

4. Plaintiff Fails to Allege the Requisite Lack of Substantial Non-Infringing Uses 

for Contributory Infringement .........................................................................15

V. CONCLUSION..................................................................................................................16

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 2 of 24
ii

TABLE OF AUTHORITIES

Page(s)

CASES

Addiction & Detoxification Inst. L.L.C. v. Carpenter,

620 F. App’x 934 (Fed. Cir. 2015) ......................................................................................6, 15

Affinity Labs of Texas, LLC v. Toyota Motor N. Am.,

No. W:13-CV-365, 2014 WL 2892285 (W.D. Tex. May 12, 2014) ...............................6, 7, 15

Aguirre v. Powerchute Sports, LLC,

No. SA-10-CV-0702 XR, 2011 WL 2471299 (W.D. Tex. June 17, 2011) .............................12

Artrip v. Ball Corp.,

735 F. App’x 708 (Fed. Cir. 2018) ....................................................................................15, 16

Ashcroft v. Iqbal,

556 U.S. 662 (2009)...........................................................................................................5, 8, 9

Atlas IP, LLC v. S. Co.,

No. 17-20273-CIV, 2017 WL 4993378 (S.D. Fla. June 28, 2017)..........................................11

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)...............................................................................................................5, 8

Bell v. Crawford Indep. Sch. Dist.,

No. 6:19-CV-268-ADA, 2020 WL 5370592 (W.D. Tex. Feb. 13, 2020)..................................9

Brandywine Commc’ns Techs., LLC v. T-Mobile USA, Inc.,

904 F. Supp. 2d 1260 (M.D. Fla. 2012)...................................................................................14

Chapterhouse, LLC v. Shopify, Inc.,

No. 2:18-CV-00300-JRG, 2018 WL 6981828 (E.D. Tex. Dec. 11, 2018)................................8

Commil USA, LLC v. Cisco Sys., Inc.,

135 S. Ct. 1920 (2015).........................................................................................................6, 12

Data Engine Techs. LLC v. Google LLC,

906 F.3d 999 (Fed. Cir. 2018)....................................................................................................3

De La Vega v. Microsoft Corp.,

2020 WL 3528411 (W.D. Tex. Feb. 11, 2020)......................................................................6, 8

Dodots Licensing Sols. LLC v. Lenovo Holding Co., Inc.,

No. CV 18-098 (MN), 2018 WL 6629709 (D. Del. Dec. 19, 2018)........................................15

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 3 of 24
TABLE OF AUTHORITIES (continued)

Page(s)

iii

DSU Med. Corp. v. JMS Co.,

471 F.3d 1293 (Fed. Cir. 2006)................................................................................................14

Dynamic Data Techs., LLC v. Amlogic Holdings Ltd.,

C.A. No. 19-1239-CFC, 2020 WL 4365809 (D. Del. July 30, 2020)......................................13

Enplas Display Device Corp. v. Seoul Semiconductor Co., Ltd.,

909 F.3d 398 (Fed. Cir. 2018)..............................................................................................6, 11

Ericsson, Inc. v. D-Link Sys., Inc.,

773 F.3d 1201 (Fed. Cir. 2014)..................................................................................................8

Finjan, Inc. v. Secure Computing Corp.,

626 F.3d 1197 (Fed. Cir. 2010)..................................................................................................7

Fujitsu Ltd. v. Netgear Inc.,

620 F.3d 1321 (Fed. Cir. 2010)..................................................................................................7

Global-Tech Appliances, Inc. v. SEB S.A.,

563 U.S. 754 (2011)...................................................................................................................6

Golden v. Apple Inc.,

819 F. App’x 930 (Fed. Cir. 2020) ............................................................................................8

Hypermedia Navigation LLC v. Google LLC,

No. 18-CV-06137-HSG, 2019 WL 1455336 (N.D. Cal. Apr. 2, 2019)...................................15

Insuremax Ins. Agencies, Inc. v. AEA Ins. Agencies, Inc.,

No. SA-13-CA-317-FB, 2014 WL 12481353 (W.D. Tex. Nov. 6, 2014), 

report and recommendation adopted, 2014 WL 12481354 (W.D. Tex. Dec. 3, 

2014) ..........................................................................................................................................3

Intellectual Ventures I LLC v. Motorola Mobility LLC,

870 F.3d 1320 (Fed. Cir. 2017)............................................................................................6, 11

Joy Techs., Inc. v. Flakt, Inc.,

6 F.3d 770 (Fed. Cir. 1993)........................................................................................................7

Lormand v. US Unwired, Inc.,

565 F.3d 228 (5th Cir. 2009) .....................................................................................................5

Orlando Commc’ns LLC v. LG Elecs., Inc.,

No. 6:14-CV-1017-ORL-22, 2015 WL 1246500 (M.D. Fla. Mar. 16, 2015)..........................13

Ormco Corp. v. Align Tech., Inc.,

463 F.3d 1299 (Fed. Cir. 2006)..................................................................................................8

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 4 of 24
TABLE OF AUTHORITIES (continued)

Page(s)

iv

Parity Networks, LLC v. Cisco Sys., Inc.,

No. 6:19-CV-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019)......................14, 15

Pilot Energy Sols., L.L.C. v. Oxy USA, Inc.,

No. AU-16-CA-00687-SS, 2018 WL 3014421 (W.D. Tex. Apr. 6, 2018)................................7

Proxyconn Inc. v. Microsoft Corp.,

No. SACV 11-1681 DOC ANX, 2012 WL 1835680 (C.D. Cal. May 16, 2012) ....................13

Redding v. Swanton,

No. 1-16-CV-01153-ADA, 2020 WL 4572696 (W.D. Tex. Aug. 7, 2020) ..............................9

Simplivity Corp. v. Springpath, Inc.,

No. CV 4:15-13345-TSH, 2016 WL 5388951 (D. Mass. July 15, 2016)................................14

VLSI Tech. LLC v. Intel Corp.,

C.A. No. 18-966-CFC, 2019 WL 1349468 (D. Del. Mar. 26, 2019).......................................12

RULES

Fed. R. Civ. P. 12(b)(6)....................................................................................................................5

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 5 of 24
TABLE OF ABBREVIATIONS

Abbreviation Term

’888 patent U.S. Patent No. 7,453,888 

Accused Products Force 10 Networks’ MXL switches

Amended Complaint 

or Am. Compl.

First Amended Complaint For Patent Infringement (D.I. 34)

Defendants Dell Technologies Inc., Dell Inc., and EMC Corporation

Gai U.S. Patent No. 6,678,241

Original Complaint 

or Original Compl.

Original Complaint For Patent Infringement (D.I. 1)

PVST Per-VLAN Spanning Tree 

VLAN Virtual Local Area Networks

VLAN Identifier VLAN ID

WSOU or Plaintiff WSOU Investments, LLC d/b/a Brazos Licensing and 

Development 

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 6 of 24
I. INTRODUCTION

Plaintiff has not plausibly alleged—and cannot plausibly allege—infringement in this case, 

under any theory. At the outset, the Amended Complaint does not plausibly allege that the steps 

of the claimed method have ever been performed by anyone at any time, instead alleging in the 

most conclusory terms that “upon information and belief” the method has been performed.

The direct infringement allegations also fail because they do not allege even potential

performance of several key limitations of the claims, including those relied on to distinguish prior 

art during prosecution. Plaintiff has not alleged, and cannot allege, performance of these 

limitations because the Accused Products simply do not work in the claimed manner. 

The indirect infringement allegations fare no better. Plaintiff’s Original Complaint alleged 

knowledge of the patent only as of the date of the Complaint, which this Court has repeatedly held 

is insufficient to sustain a claim of indirect infringement. The Amended Complaint tries—and 

fails—to circumvent that clear rule by alleging knowledge based on a complaint Plaintiff earlier 

filed and dismissed before filing the present case. Neither basis is sufficient; Plaintiff still has not 

adequately alleged pre-suit knowledge of the patent. The indirect allegations also fail to allege 

other requisite elements of induced and contributory infringement. 

The deficiencies in Plaintiff’s Amended Complaint go far beyond mere failure to plead 

sufficient facts. Not only has Plaintiff failed to even properly allege infringement, but its own 

allegations preclude its claim. As such, Defendants respectfully request that this case be dismissed. 

II. BACKGROUND

A. The ’888 Patent

The ’888 patent describes a method of provisioning backbone VLANS by associating 

“backbone VLAN IDs” with “stackable trunk ports.” See ’888 patent, Abstract, 10:1–12. This is 

depicted in Figure 3 (red annotations added):

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 7 of 24
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Plaintiff identifies claim 1, in the Amended Complaint (¶ 18):

1. A method of provisioning a backbone Virtual Local Area Network (VLAN) 

comprising:

a. obtaining at least one backbone VLAN Identifier (ID);

b. selecting a plurality of backbone VLAN trunks; and

c. associating each of the backbone VLAN ID with each one of the plurality of 

backbone VLAN trunks by:

c1. determining a plurality of stackable trunk ports corresponding to the plurality 

of backbone VLAN trunks; and

c2. associating the backbone VLAN ID with each one of the plurality of stackable 

trunk ports;

[d.] wherein the selection and association of at least one backbone VLAN ID with 

each one of the corresponding plurality of backbone VLAN trunks is undertaken 

irrespective of one of an in-use and a stand-by designation of each one of the 

plurality of backbone VLAN trunks and each one of the plurality of stackable trunk 

ports. 

’888 patent, Cl. 1 (bracketed reference letter added).

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 8 of 24
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As shown above, each data switching node may have “trunk ports” that connect to “trunks” 

that exist “between the data switching nodes.” Id., 3:54–56. Data switching nodes may also have 

“access ports” that connect to the edge of the network, such as a computer. Id. Certain algorithms, 

called “spanning tree algorithms,” are used to prevent loops in the backbone VLAN, and result in 

certain trunks (and trunk ports) being designated as “in-use” (shown as solid lines) and other trunks 

(and trunk ports) being designated as “stand-by” (shown as dashed lines). Id., 2:47–55. The patent 

explains that the association of a backbone VLAN ID with a particular trunk port is done 

“regardless of the in-use/stand-by designation thereof resulting from the execution of spanningtree algorithm(s).” Id., 10:9–12. The patent also explains that “backbone VLAN identifiers” are 

“extended VLAN identifiers” that are distinct from standard VLAN IDs and managed by a service 

provider. Id., 8:11–13 (“standard VLAN identifiers may be assigned by/to VLAN customers, 

while extended VLAN identifiers are managed by service providers”); see id., 8:22–27. 

During prosecution, the applicant emphasized and narrowed the requirement that the 

association of VLAN IDs with trunks must be performed “irrespective of . . . an in-use and a standby designation . . . of the plurality of backbone VLAN trunks and . . . of the plurality of stackable 

trunk ports.” Id., Cl. 1. Specifically, the claims were rejected over Gai. See Rosenthal Decl., Ex. 

A (1/8/08 Final Rejection) at 4–5.1

 The examiner explained that Gai disclosed the “irrespective” 

limitation in Figure 5C where “the trunk ports of physical VLANs associated with RED VLAN 

are undertaken irrespective of a one of an in-use or stand-by designation” (id.): 

 1 On a motion to dismiss, the Court may “consider ‘documents either attached to or incorporated 

in the complaint’ and may ‘take judicial notice of matters of public record’ that are ‘directly 

relevant to the issue at hand.’” Insuremax Ins. Agencies, Inc. v. AEA Ins. Agencies, Inc., No. 

SA-13-CA-317-FB, 2014 WL 12481353, at *8 (W.D. Tex. Nov. 6, 2014), report and 

recommendation adopted, 2014 WL 12481354 (W.D. Tex. Dec. 3, 2014). “Prosecution 

histories constitute public records.” Data Engine Techs. LLC v. Google LLC, 906 F.3d 999, 

1008 n.2 (Fed. Cir. 2018).

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 9 of 24
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(Rosenthal Decl., Ex. B, Gai, Fig. 5C). The applicant distinguished Gai stating that: 

[T]he association of a backbone VLAN ID with a corresponding plurality of 

backbone VLAN trunks is carried out without any consideration of whether the 

backbone VLAN trunks are designated as in-use or standby. The backbone VLAN 

trunks may each already have a designation of in-use or standby, but the 

provisioning methods of the present claims ignore those designations when 

associating the backbone VLAN IDs with the backbone VLAN trunks. This is 

completely contrary to the backup method taught by Gai, which during 

association of VLANs with trunks explicitly designates one of the physical 

VLANs associated with a logical VLAN as in-use and explicitly designates one or 

more other physical VLANs associated with the logical VLAN as back-up. 

Rosenthal Decl., Ex. C (6/9/08 Applicant Remarks) at 11 (underlining in original) (bolding and 

italics added). Thus, the applicant explained that the “irrespective” limitation requires not only 

that all trunk ports (whether in-use or standby) must be associated with backbone VLAN IDs, but 

also that the selection of which VLAN ID is associated with a particular trunk port is done without 

considering whether the trunk port is in-use or standby. See id.

B. Plaintiff’s Infringement Allegations

Plaintiff accuses Defendants of direct infringement of claim 1 of the ’888 patent based on 

allegedly making, using, or selling networking switches, including the Force 10 MXL switches. 

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 10 of 24
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See Am. Compl. at ¶¶ 13, 18.

2

Plaintiff’s indirect infringement allegations in its Original Complaint amounted to three 

sentences that parrot the legal elements and two website links that fail to support Plaintiff’s claims. 

See Original Compl. at ¶¶ 20–22. Those allegations completely failed to allege that Defendants 

had knowledge of the patent and knowledge of the infringement before Plaintiff filed suit. See id. 

Plaintiff’s Amended Complaint fails to fix the deficiencies in the Original Complaint. 

Plaintiff now alleges knowledge of the patent based on the filing, and dismissal, of an earlier 

complaint—which was not served—asserting the same patent. See Am. Compl. at ¶ 20. 

III. LEGAL STANDARD

A. Direct Infringement

A complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it 

“fail[s] to state a claim upon which relief can be granted.” The complaint must include more than 

“a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must allege nonconclusory facts that make liability “plausible,” meaning the facts “allow[] the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 

678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Id.; see also Lormand v. US Unwired, Inc., 565 F.3d 228, 257 (5th 

 2 Plaintiff’s direct infringement allegations in its Amended Complaint are nearly identical to its 

Original Complaint. The only difference is an addition of a conclusory sentence that “upon 

information and belief, each and every element of at least claim 1 of the ’888 Patent is 

performed or practiced by Defendants at least through Defendants’ own use and configuration 

of its own Accused Products, and/or through Defendants’ own testing and configuration of its 

own Accused Products, and/or through Defendants’ providing services for its Accused 

Products, including but not limited to providing installation, deployment, support, and 

configuration of its Accused Products.” Am. Compl. at ¶ 18; see Rosenthal Decl., Ex. D 

(Redline comparison of Original and Amended Complaint).

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 11 of 24
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Cir. 2009) (“The complaint (1) on its face (2) must contain enough factual matter (taken as true) 

(3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant evidence of 

each element of a claim.”). For a claim of patent infringement, the complaint must—at a 

minimum—plead facts that describe how the allegedly infringing product infringes. See De La 

Vega v. Microsoft Corp., 2020 WL 3528411, at *6–7 (W.D. Tex. Feb. 11, 2020).

B. Induced and Contributory Infringement

To plead indirect infringement, the complaint must first plead direct infringement by a third 

party. See Intellectual Ventures I LLC v. Motorola Mobility LLC, 870 F.3d 1320, 1329 (Fed. Cir. 

2017) (“A finding of direct infringement is predicate to any finding of indirect infringement[.]”); 

Enplas Display Device Corp. v. Seoul Semiconductor Co., Ltd., 909 F.3d 398, 407 (Fed. Cir. 2018) 

(same). 

For both induced and contributory infringement, plaintiff must also plead facts to support 

an inference of each defendant’s “knowledge of the patent in suit and knowledge of patent 

infringement.” Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1926 (2015); see Addiction 

& Detoxification Inst. L.L.C. v. Carpenter, 620 F. App’x 934, 938 (Fed. Cir. 2015). 

For induced infringement, Plaintiff additionally must plead facts showing that each 

defendant “had [a] specific intent to induce the [third party’s] patent infringement.” Affinity Labs 

of Texas, LLC v. Toyota Motor N. Am., No. W:13-CV-365, 2014 WL 2892285, at *2 (W.D. Tex. 

May 12, 2014). The “specific intent” element is “demanding” and requires more than 

“unsubstantiated assertions” or “generalized allegations” as to the intent of the alleged infringer. 

Id. at *7, *21. Specific intent requires more than knowledge of the induced acts; rather, the accused 

infringer must have “knowledge that the induced acts constitute patent infringement.” GlobalTech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011). 

For contributory infringement, Plaintiff must also plead “that the component has no 

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 12 of 24
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substantial noninfringing uses, and [] that the component is a material part of the 

invention.” Affinity Labs, 2014 WL 2892285, at *8 (citing Fujitsu Ltd. v. Netgear Inc., 620 F.3d 

1321, 1326 (Fed. Cir. 2010)). 

IV. ARGUMENT

A. Plaintiff Fails to State a Claim for Direct Infringement of the ’888 Patent 

Plaintiff has not stated, and cannot state, a claim of direct infringement for the ’888 patent 

for two fundamental reasons: (1) Plaintiff wholly fails to allege that anyone has actually performed 

the claimed method; and (2) Plaintiff’s Amended Complaint lacks any factual basis to allege that 

the Accused Products can perform key claim elements. 

1. Plaintiff Fails to Allege Actual Performance of the Claimed Method

Plaintiff’s Amended Complaint should be dismissed because it does not plausibly allege

that anyone has actually performed each and every limitation of claim 1 of the ’888 patent. 

Plaintiff alleges only that: (1) “[t]he Accused Products may configure a trunk port so that a 

numbered tag is inserted in each ethernet frame to keep the traffic of different VLANs from 

mixing”; (2) “[t]he Accused Products may configure all the trunk ports participating in VLANs 

when the port is in a standby state”; and (3) “[t]he configured trunk port may be enabled to begin 

forwarding traffic as soon as its link is active.” Am. Compl. at ¶¶ 15, 17 (emphasis added). The 

law is clear: “To infringe a method or process claim, a person must have practiced all steps of the 

claimed method.” Pilot Energy Sols., L.L.C. v. Oxy USA, Inc., No. AU-16-CA-00687-SS, 2018 

WL 3014421, at *3 (W.D. Tex. Apr. 6, 2018) (emphasis added); see also Finjan, Inc. v. Secure 

Computing Corp., 626 F.3d 1197, 1206 (Fed. Cir. 2010) (same). Allegations that a product may

be configured in a certain way do not support an inference that Defendants actually practice the 

claimed method. Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 774–75 (Fed. Cir. 1993) (“[A] method 

claim is not directly infringed by the sale of an apparatus even though it is capable of performing 

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 13 of 24
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only the patented method. The sale of the apparatus is not a sale of the method. A method claim 

is directly infringed only by one practicing the patented method.”) (emphasis added); Ormco 

Corp. v. Align Tech., Inc., 463 F.3d 1299, 1311 (Fed. Cir. 2006) (“Method claims are only 

infringed when the claimed process is performed, not by the sale of an apparatus that is capable of 

infringing use.”); see also Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1221 (Fed. Cir. 2014).

Moreover, Plaintiff’s conclusory statement that “upon information and belief, each and 

every element of at least claim 1 of the ’888 Patent is performed or practiced by Defendants” does 

not cure this failure. Am. Compl. at ¶ 18. As the Federal Circuit has held, “a court must dismiss 

a complaint if it fails to allege ‘enough facts to state a claim to relief that is plausible on its face’”; 

this “‘facial plausibility’” requires “‘more than labels and conclusions.’” Golden v. Apple Inc., 

819 F. App’x 930, 931 (Fed. Cir. 2020) (quoting Twombly, 550 U.S. at 555). Plaintiff’s allegations 

are precisely the “conclusory formulaic recitations” the law does not allow. Id. (affirming 

dismissal where the complaint “merely states that ‘at least one of the defendants named in this 

complaint has infringed . . . the ’287 patent,’” and fails to point “to any nonfrivolous allegations 

of infringement of any claim by any actual product made, used, or sold by any defendant”).

2. Plaintiff’s Untethered Factual Allegations Provide No Basis to Infer 

Practice of the Claimed Method

Plaintiff’s allegations are insufficient to plead direct infringement because they merely 

consist of a number of untethered allegations about potential configurations of the Accused 

Products, followed by conclusory allegations of infringement. See De La Vega, 2020 WL 

3528411, at *2 (“Courts ‘are not bound to accept as true a legal conclusion couched as a factual 

allegation.’”) (quoting Iqbal, 556 U.S. at 678); Chapterhouse, LLC v. Shopify, Inc., No. 2:18-CV00300-JRG, 2018 WL 6981828, at *2 (E.D. Tex. Dec. 11, 2018) (holding that conclusory 

statements without accompanying factual allegations are insufficient to pass the Iqbal/Twombly

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 14 of 24
9

standard).

In its disconnected allegations about the Accused Products, the Amended Complaint fails 

to allege that the Accused Products can—even if properly configured—meet multiple limitations 

of the claims. For example, Plaintiff fails to plausibly assert that a backbone VLAN ID is obtained 

or associated with a selected plurality of backbone VLAN trunks. See ’888 patent, Cl. 1 

(limitations 1a, 1b, and 1c). Plaintiff’s conclusory allegations only generally state that “[t]he 

Accused Products may configure a trunk port so that a numbered tag is inserted in each ethernet 

frame to keep the traffic of different VLANs from mixing.” Am. Compl. at ¶ 15 (emphasis added). 

And there is no allegation that this “numbered tag” is even a VLAN ID, let alone the required 

backbone VLAN ID—i.e., an extended VLAN identifier that is managed by a service provider and 

is independent of a standard VLAN ID. See supra § II.A; ’888 patent at 8:22–27. Plaintiff also 

fails to allege that a backbone VLAN ID is associated “with each one of the plurality of backbone 

VLAN trunks by: [] determining a plurality of stackable trunk ports corresponding to the plurality 

of backbone VLAN trunks . . . and . . . associating the” numbered tag with “each one of the plurality 

of stackable trunk ports.” ’888 patent, Cl. 1 (limitations c1 and c2). Instead, Plaintiff asserts only 

that “Accused Products running Per-VLAN Spanning Tree (PVST) configure their trunk ports 

appropriately.” Am. Compl. at ¶ 15. These general conclusory allegations are speculative and 

plainly insufficient. See Redding v. Swanton, No. 1-16-CV-01153-ADA, 2020 WL 4572696, at 

*4 (W.D. Tex. Aug. 7, 2020) (“The Supreme Court is no-nonsense about pleading specificity 

requirements. . . . Plaintiffs cannot satisfy the requirement in Iqbal to plead facts rising above the 

speculative level. . . .”); Bell v. Crawford Indep. Sch. Dist., No. 6:19-CV-268-ADA, 2020 WL 

5370592, at *5 (W.D. Tex. Feb. 13, 2020) (dismissing claim for failing to allege “right to relief 

above the speculative level as required by Twombly”). 

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Likewise, Plaintiff fails to even allege that the Accused Products can be configured to select 

and associate a “backbone VLAN ID with each one of the corresponding plurality of backbone 

VLAN trunks . . . irrespective of one of an in-use and a stand-by designation of each one of the 

plurality of backbone VLAN trunks and each one of the plurality of stackable trunk ports.” ’888 

patent, Cl. 1 (limitation 1[d]) (emphasis added). Plaintiff’s allegations that “[t]he Accused 

Products may configure all the trunk ports participating in VLANs when the port is in a standby 

state” and that “[t]he configured trunk port may be enabled to begin forwarding traffic as soon as 

its link is active” are not enough to meet this limitation for two reasons. Am. Compl. at ¶ 17. 

First, Plaintiff’s allegations imply—at most—that both in-use and standby trunk ports are 

provisioned. But the applicant argued that merely provisioning both in-use and standby ports is 

not enough to meet the “irrespective” claim limitation. See supra § II.A. Instead, the claims 

require that the selection of which backbone VLAN ID is associated with a particular trunk port 

be done without consideration of whether the trunk port is in-use or standby. Id. There is no 

allegation whatsoever in the Amended Complaint that the Accused Products assign VLAN IDs 

without consideration to whether a trunk port is in-use or standby. Plaintiff has not made such an 

allegation because it cannot—the Accused Products simply do not work that way.

Second, Plaintiff’s own allegations demonstrate non-infringement. In alleging that “[t]he 

configured trunk port may be enabled to begin forwarding traffic as soon as its link is active,” the 

Amended Complaint relies on the “spanning-tree pvst edge-port command.” Am. Compl. at ¶ 17. 

But Plaintiff’s own citation makes clear that this command cannot be used on trunk ports: “The 

‘spanning-tree pvst edge-port’ command should only be run on ports that will connect to servers 

or other end nodes and never on ports that will connect to other switches.” Id. (emphasis added). 

The patent defines trunk ports to be those that connect switching nodes to each other, and 

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 16 of 24
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distinguishes them from access ports. See ’888 patent, 3:54–56 (“The access ports are connected 

via access links to the customer LANs and the trunk ports are connected to the data transport trunks 

between the data switching nodes.”) (numerical figure references omitted). Thus, Plaintiff’s 

allegations should also be dismissed because they contradict the requirement of claim 1 that the 

provision method be performed on “trunk ports” and as a result fail to plausibly allege that the 

Accused Products can be configured to meet the “irrespective” limitation. See Atlas IP, LLC v. S. 

Co., No. 17-20273-CIV, 2017 WL 4993378, at *8 (S.D. Fla. June 28, 2017) (dismissing complaint 

where plaintiffs’ own allegations contradicted a claim limitation because “[a]s Plaintiff has 

described the Accused Products, they are either dysfunctional or incapable of practicing the [claim 

limitation]”).

B. Plaintiff Fails to State a Claim for Induced and Contributory Infringement

Plaintiff’s indirect infringement claims are deficient and should be dismissed. As an initial 

matter, Plaintiff’s failure to plausibly allege direct infringement precludes its claims of induced 

and contributory infringement. Beyond that failing, Plaintiff has further failed to adequately plead 

any pre-suit knowledge by Defendants of the patent, or pre-suit knowledge by Defendants of 

alleged infringement. Plaintiff also fails to plead a specific intent to induce infringement. And 

Plaintiff has not pled, and cannot plead, that there are no substantial non-infringing uses. Each of 

these failures independently warrants dismissal of Plaintiff’s indirect infringement allegations. 

1. Plaintiff’s Indirect Infringement Claims Fail Without Direct 

Infringement

Plaintiff’s indirect infringement allegations are insufficient as a matter of law as Plaintiff 

fails to plausibly allege direct infringement. See supra § IV.A. It is axiomatic that “‘[i]n order to 

succeed on a claim of inducement, the patentee must show, first that there has been direct 

infringement.’” Enplas, 909 F.3d at 407 (citation omitted); see also Intellectual Ventures, 870 

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F.3d at 1329 (“A finding of direct infringement is predicate to any finding of indirect 

infringement. . . .”). As a result, Plaintiff has also failed to adequately plead its claims of induced 

and contributory infringement, and these claims should be dismissed. 

2. Plaintiff Fails to Allege the Requisite Knowledge for Indirect 

Infringement

Plaintiff’s indirect infringement claims fail because they do not adequately plead the 

required “knowledge of the patent in suit and knowledge of patent infringement.” Commil USA, 

135 S. Ct. at 1926. As courts in this District have held, the knowledge requirements for indirect 

infringement require pre-suit knowledge. See Aguirre v. Powerchute Sports, LLC, No. SA-10-

CV-0702 XR, 2011 WL 2471299, at *3 (W.D. Tex. June 17, 2011) (holding that reliance “on 

knowledge of [plaintiff’s] patent after the lawsuit was filed . . . is insufficient to plead the requisite 

knowledge for indirect infringement”). Moreover, this Court has held—earlier this year—that

allegations of knowledge based on a prior filed complaint are not enough to overcome a motion to 

dismiss. See Parus Holdings Inc. v. Apple Inc., No. 6:19-cv-432, Feb. 20, 2020 Text Order 

GRANTING D.I. 54 (dismissing indirect infringement claims where plaintiff’s only allegation of 

knowledge were that “Defendant Apple has had knowledge of the ’431 Patent since at least the 

filing of the original complaint” and “[b]y the time of trial, Defendant Apple will have known 

and intended (since receiving such notice) that their continued actions would actively induce the 

infringement”) (quoting D.I. 28 (Am. Compl.) at ¶ 44 (emphasis added)).

The Amended Complaint includes an erroneous footnote that attempts to distinguish 

Aguirre by asserting that “Delaware courts have since rejected this rule.” Am. Compl. at ¶ 20, n.1. 

Plaintiff’s statement that Delaware has rejected the pre-suit knowledge requirement is incorrect. 

See, e.g., VLSI Tech. LLC v. Intel Corp., C.A. No. 18-966-CFC, 2019 WL 1349468, at *2 (D. Del. 

Mar. 26, 2019) (“[T]he complaint itself cannot serve as the basis for a defendant’s actionable 

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knowledge.”); Dynamic Data Techs., LLC v. Amlogic Holdings Ltd., C.A. No. 19-1239-CFC, 2020 

WL 4365809, at *2 (D. Del. July 30, 2020) (“‘The purpose of a complaint is not to create a claim 

but rather to obtain relief for an existing claim. For that reason, the complaint itself cannot be the 

source of the knowledge required to sustain claims of induced infringement.’” (citation omitted)). 

In any event, this Court has expressly adopted the pre-suit knowledge requirement, and continues 

to do so. See, e.g., Parus, No. 6:19-cv-432, Feb. 20, 2020 Text Order GRANTING D.I. 54. 

Despite this clear precedent, Plaintiff’s only allegations of knowledge are based on the 

filing of its prior complaint asserting the same patent, which it inexplicably dismissed: 

In May 2020, Plaintiff filed a suit against Defendants asserting 

infringement of the same patent and by the same accused products

that are asserted in this case. Plaintiff dismissed the prior suit before 

filing this suit. As a result of the prior suit, Defendants had notice 

and actual or constructive knowledge of their infringement of the 

patent-in-suit since at least May 2020, before the filing of this case.

Further, Defendants had knowledge of their infringement of the 

patent-in-suit before the filing of this Amended Complaint.

Am. Compl. at ¶ 20 (emphasis added). Like the allegations in Parus, WSOU’s allegations of 

knowledge are limited to references to a prior filed complaint and thus fail to state a claim for 

indirect infringement. See id.; Parus, No. 6:19-cv-432, Feb. 20, 2020 Text Order GRANTING 

D.I. 54.3

 To make matters worse, Plaintiff’s May 19, 2020 complaint was never served, so it 

cannot form the basis for Defendants’ knowledge. See Rosenthal Decl., Ex. E (Docket for WSOU 

v. Dell Inc., et al., No. 6-20-cv-00406) (showing dismissal prior to service of the complaint). 

 3 See also Proxyconn Inc. v. Microsoft Corp., No. SACV 11-1681 DOC ANX, 2012 WL 

1835680, at *5 (C.D. Cal. May 16, 2012) (“[A] complaint fails to state a claim for indirect 

patent infringement where the only allegation that purports to establish the knowledge element 

is the allegation that the complaint itself or previous complaints in the same lawsuit establish 

the defendant’s knowledge of the patent” (emphasis added)); Orlando Commc’ns LLC v. LG 

Elecs., Inc., No. 6:14-CV-1017-ORL-22, 2015 WL 1246500, at *9 (M.D. Fla. Mar. 16, 2015) 

(“‘Prior to suit’ does not mean prior to the current iteration of the Complaint.”). 

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Allowing Plaintiff to avoid the pre-suit knowledge requirement by filing a complaint, voluntarily 

dismissing that complaint, and refiling the same complaint two weeks later, would be at odds with 

the knowledge requirement itself.4

 And, it would elevate form over substance and encourage 

litigants to use such a tactic to essentially eviscerate the pre-suit knowledge requirement. 

Plaintiff’s failure to raise a plausible inference of pre-suit knowledge of the patent and 

knowledge of infringement is fatal to its indirect infringement claims, and as such these claims 

should be dismissed.

3. Plaintiff Fails to Allege the Requisite Specific Intent for Induced 

Infringement

Plaintiff also entirely fails to plead specific intent in support of its inducement claim. 

Allegations of specific intent require factual “‘evidence of culpable conduct, directed to 

encouraging another’s infringement, not merely that the inducer had knowledge of the direct 

infringer’s activities.’” Parity Networks, LLC v. Cisco Sys., Inc., No. 6:19-CV-00207-ADA, 2019 

WL 3940952, at *2 (W.D. Tex. July 26, 2019) (quoting DSU Med. Corp. v. JMS Co., 471 F.3d 

1293, 1306 (Fed. Cir. 2006)). Plaintiff’s allegations of specific intent amount to a single 

conclusory statement that Defendants “actively induced” others to infringe through their 

advertising, promotional materials, and two website citations. See Am. Compl. at ¶ 21. Such 

conclusory allegations fail to present facts that demonstrate: (1) Defendants knew that the alleged 

 4 See, e.g., Brandywine Commc’ns Techs., LLC v. T-Mobile USA, Inc., 904 F. Supp. 2d 1260, 

1268–69 (M.D. Fla. 2012) (“[B]ecause notice of the patent is necessarily provided by a 

complaint, finding that a complaint provides sufficient knowledge for induced infringement 

would vitiate the Supreme Court’s holding in Global-Tech that an allegation of knowledge of 

the patent is required to state a claim for induced infringement.”); Simplivity Corp. v. 

Springpath, Inc., No. CV 4:15-13345-TSH, 2016 WL 5388951, at *8 (D. Mass. July 15, 2016) 

(“The suggested ‘knowledge via filing’ framework dilutes the knowledge requirement to the 

point of meaninglessness, since by virtue of being sued for infringement, a party necessarily is 

aware of the patent-in-suit.”).

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acts would infringe, and (2) Defendants knew that the promotion of their products would induce 

or encourage others to infringe the Asserted Patent. See Addiction, 620 F. App’x at 938 (“[S]imply 

recit[ing] the legal conclusion that Defendants acted with specific intent” fails to plead “facts that 

would allow a court to reasonably infer that Defendants had the specific intent to induce 

infringement.”); Affinity Labs, 2014 WL 2892285, at *7, *21 (finding Plaintiff’s “generalized 

allegations that Toyota induced others to infringe the Asserted Patents through its marketing and 

sales tactics are [] insufficient”). To support specific intent, Plaintiff must include specific 

allegations mapping the advertisement or promotion to the performance of the claimed steps of the 

patent—i.e., “evidence of culpable conduct, direct to encouraging another’s infringement.” Parity, 

2019 WL 3940952, at *2.5

Plaintiff’s inducement claim should be dismissed because the Amended Complaint is 

entirely silent on a key requirement of induced infringement.

4. Plaintiff Fails to Allege the Requisite Lack of Substantial NonInfringing Uses for Contributory Infringement 

Plaintiff’s contributory infringement allegations also fail because Plaintiff did not “‘plead 

facts that allow an inference that the components sold or offered for sale have no substantial noninfringing uses.’” Artrip v. Ball Corp., 735 F. App’x 708, 713 (Fed. Cir. 2018) (citation omitted). 

Plaintiff has not pled a lack of substantial non-infringing uses because it cannot do so. Plaintiff’s 

only allegation on these elements is a conclusory statement that repeats the legal elements. See 

Am. Compl. at ¶ 22. As the Federal Circuit held in Artrip, conclusory allegations are not enough. 

 5 See also Hypermedia Navigation LLC v. Google LLC, No. 18-CV-06137-HSG, 2019 WL 

1455336, at *3 (N.D. Cal. Apr. 2, 2019) (“In no way does the complaint detail how an end user 

would infringe Hypermedia’s patents by following instructions in the links provided in the 

complaint.” (emphasis in original)); Dodots Licensing Sols. LLC v. Lenovo Holding Co., Inc., 

No. CV 18-098 (MN), 2018 WL 6629709, at *4 (D. Del. Dec. 19, 2018) (holding mere citations 

to websites were insufficient to plead specific intent). 

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735 F. App’x at 713 (affirming dismissal of a contributory infringement claim where the 

“complaint did not plausibly assert facts to suggest that [defendant] was aware of the patents or 

facts to suggest that the [accused product] it supplied had no substantial noninfringing use”). 

Furthermore, Plaintiff cannot plead facts to support these elements because the Accused Products 

may be configured to not use spanning tree protocols or VLAN tagging at all, both of which are 

central to Plaintiff’s infringement allegations. In fact, both these features are disabled by default. 

Plaintiff’s failure to raise a plausible inference of no substantial non-infringing uses is fatal to its 

contributory infringement claim, and as such it should be dismissed.

V. CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court grant their motion 

and dismiss Plaintiff’s Amended Complaint in its entirety for failure to plausibly state a claim for 

relief, without leave to amend. Pursuant to L.R. CV-7(h), Defendants request an oral hearing on 

the foregoing motion.

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 22 of 24
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Dated: October 30, 2020 By: /s/ Barry K. Shelton 

Barry K. Shelton

Texas State Bar No. 24055029

bshelton@sheltoncoburn.com

SHELTON COBURN LLP

311 RR 620, Suite 205

Austin, TX 78734-4775 

Telephone: 512.263.2165

Facsimile: 512.263.2166 

Benjamin Hershkowitz

bhershkowitz@gibsondunn.com

Brian A. Rosenthal

brosenthal@gibsondunn.com 

Allen Kathir

akathir@gibsondunn.com

Kyanna Sabanoglu

ksabanoglu@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166-0193 

Telephone: 212.351.4000

Facsimile: 212.351.4035 

Y. Ernest Hsin

ehsin@gibsondunn.com

Jaysen S. Chung

jschung@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105-0921

Telephone: 415.393.8200

Facsimile: 415.393.8306

Ryan K. Iwahashi

riwahashi@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

1881 Page Mill Road

Palo Alto, CA 94304-1211

Telephone: 650.849.5300

Facsimile: 650.849.5333

Attorneys for Defendants

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 23 of 24
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CERTIFICATE OF SERVICE

The undersigned certifies that on October 30, 2020, all counsel of record who are deemed 

to have consented to electronic service are being served with a copy of this document through the 

Court’s CM/ECF system under Local Rule CV-5(b)(1). 

/s/ Barry K. Shelton 

Barry K. Shelton

Case 6:20-cv-00475-ADA Document 37 Filed 10/30/20 Page 24 of 24