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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.

MICROSOFT CORPORATION,

Defendant.

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CIVIL ACTION 6:20-CV-00454-ADA

PATENT CASE

JURY TRIAL DEMANDED

RESPONSE OPPOSING DEFENDANT’S MOTION TO DISMISS PURSUANT TO

FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)

There is no merit to Microsoft Corporation’s (“Microsoft’s” or “Defendant’s”) allegation 

that WSOU Investments, LLC (“WSOU”) relies on the same product features or “metrics” to 

satisfy different claim limitations. To the contrary, WSOU clearly identifies distinct features that 

satisfy each of the claim limitations challenged by Defendant.1 There is likewise no merit to 

Defendant’s allegation that WSOU fails to identify a “service indicator” that is a function of 

multiple parameters (as Defendant puts it, an omelet made of eggs and something else). Rather, 

WSOU clearly alleges the existence of service indicators that are a function of multiple parameters2

(as parameters is implicitly construed3by Defendant). Therefore, WSOU pleads factual content 

that allows the Court to draw the reasonable inference that Defendant is liable for direct 

infringement, and Defendant’s motion to dismiss WSOU’s direct infringement claim should be 

1 As one example, WSOU clearly identifies SuccessE2ELatency as a service indicator that is a 

function of Latency, a network parameter. See Complaint ¶ 33-37.

2 SuccessE2ELatency, for example, is a composite “metric” that is a function of multiple 

parameters (as parameters is implicitly construed by Defendant). See Complaint ¶ 37 (including 

chart with a description of SuccessE2ELatency that demonstrates it is a function of multiple 

parameters).

3 WSOU’s argument concerning multiple parameters also fails because it is based on an implicit 

claim construction argument that is not the proper basis for a Rule 12(b)(6) motion.

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denied. 

Defendant’s challenges to infringement under the doctrine of equivalents, induced 

infringement, and contributory infringement are based on the same arguments as its challenge to 

direct infringement and fail for the same reasons.

ARGUMENT

A. Legal Standard

In the Fifth Circuit, motions to dismiss under Rule 12(b)(6) are “viewed with disfavor and 

are rarely granted.” Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). A claim 

cannot be dismissed under Rule 12(b)(6) unless the plaintiff “would not be entitled to relief under 

any set of facts or any possible theory that [it] could prove consistent with the allegations in the 

complaint.” Muhammad v. Dallas Cnty. Cmty. Supervision & Corrs. Dep't, 479 F.3d 377, 380 (5th 

Cir. 2007) (citing Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)); Altman, 2012 WL 

4033336, at *1. In other words, it must appear beyond doubt that the plaintiff can prove no set of 

facts in support of their claim entitling them to relief. Griffith v. Kroger Co., No. 9:05-CV-76-TH, 

2008 WL 11347989, at *2 (E.D. Tex. Mar. 7, 2008) (citing Conley v, Gibson, 355 U.S. 41, 45–46 

(1957)); see also ESW HOLDINGS, INC., Plaintiff, v. ROKU, INC., Defendant., 6:19-CV-00044-

ADA, 2019 WL 10303653, at *1–2 (W.D. Tex. May 13, 2019).

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim has “facial plausibility” and 

must not be dismissed “when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (internal citations omitted). “The plausibility standard is not akin to a 

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 

unlawfully.” Id. For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual 

allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the 

nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 

2008). Dismissal under Rule 12(b)(6) is inappropriate where fact discover could affect the court’s 

analysis. See Syte - Visual Conception Ltd., 2020 WL 278481 at *6 (denying Rule 12(b)(6) motion 

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because fact discovery could affect the court’s § 101 analysis).

B. WSOU alleges a plausible claim for direct infringement.

1. WSOU does not rely on identical features to satisfy different claim limitations. 

WSOU does not rely on identical features or “metrics” to satisfy different claim limitations. 

To the contrary, WSOU’s Complaint clearly identifies distinct features that satisfy each of the 

limitations challenged by Defendant. 

Network Parameters: As examples of features that correspond to the “two or more 

parameters of a network” limitation, WSOU’s complaint identifies “loss, latency, response time, 

[and] bandwidth utilization.” Complaint ¶¶ 30-33. Defendant does not seriously dispute that these 

satisfy the “parameters of a network” limitation. 

Network Parameter Values: WSOU’s complaint explains that the “parameters of a 

network” are measured and or calculated at regular intervals. Id. ¶ 33. (citing Azure Network 

Monitor, Page 1833). Thus, the complaint identifies examples that satisfy the “measuring and/or 

calculating at two or more times values of the network parameters” limitation (or the “parameter 

values”). 

Service Indicator Values: Finally, WSOU’s complaint identifies examples of features that 

satisfy the “service indicator as a function of said measured and/or calculated parameter values”

limitation by pointing to the “Key Performance indicator (KPIs) (i.e. service indicator),” which 

monitors “metrics like SuccessE2ELatency” (a “function of Latency (i.e. network parameter))”

and “Average Bandwidth” (“a function of Bandwidth (i.e. network parameter)). Id. ¶¶ 34-37

(emphasis added). 

2. The Court should reject Defendant’s attempts to conflate distinct features 

identified by WSOU.

Defendant attempts to conflate distinct features identified by WSOU by ignoring 

allegations in WSOU’s complaint and by insisting anything labeled as a “metric” by Defendant is 

the same. For example, Defendant falsely claims WSOU “alleges that ‘Bandwidth’ is a network 

‘parameter value’ and a ‘service indicator’ value even though the claims require determining one 

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‘as a function’ of the other.” See, e.g., Dkt. 20 at 7. Defendant alleges this even though WSOU 

clearly identifies “Average Bandwidth” (a service indicator) as a function of “Bandwidth” (a 

parameter).4 Average Bandwidth and Bandwidth are not the same. 

Similarly, Defendant conflates every product feature that might be labeled as a “metric,”

insisting that “[f]or WSOU’s complaint to plausibly allege infringement, these metrics must 

somehow be both the claimed network ‘parameter values’ and the ‘service indicator’ values 

determined as a function of them.” Dkt. 20 at 9. “Metrics” is not a term used in the patent, much 

less the claim language. It is a term Defendant uses to describe features of the accused product. 

The accused product contains numerous “metrics.” Dkt. 20 at 4 (claiming “Azure Monitor can 

collect hundreds of metrics”). For infringement, it is irrelevant whether features that satisfy the 

“parameters” limitation and features that satisfy the “service indicator” limitation fall under the 

“metrics” umbrella, as “metrics” is defined within Defendant’s product. It is irrelevant, for 

example, whether “Latency” and “SuccessE2ELatency” are both “metrics.” This does not change 

the fact that, under the claim language, “Latency” satisfies the “parameters” limitation and 

“SuccessE2ELatency”—a function of Latency—satisfies the “service indicator” limitation (as 

explained in WSOU’s Complaint). The Court should reject Defendant’s attempt to conflate these

distinct features identified by WSOU. 

3. WSOU adequately alleges a “service indicator” that is a function of multiple 

“parameters.”

There is no merit to Defendant’s allegation that WSOU fails to identify a “service 

indicator” that is a function of multiple “parameters” (as Defendant puts it, an omelet made of eggs 

and something else). As one example included in the complaint, SuccessE2ELatency is a 

composite “metric” that is a function of multiple parameters (as parameters is implicitly construed 

by Defendant). Complaint ¶ 37. It measures the “end-to-end latency of successful requests made 

4 Defendant justifies this argument by citing paragraphs 38-39 of the complaint, which identify 

“metrics” like “Bandwidth and Latency.” But Defendant simply ignores earlier paragraphs of the 

Complaint explaining how functions of Latency and Bandwidth (such as SuccessE2ELatency and 

Average Bandwidth) satisfy the service indicator values limitation. 

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to a storage service or the specified API operation, in milliseconds.” Id. (see “Description” of 

“SuccessE2ELatency” in table). This value “includes the required processing time within Azure 

Storage to read the request, send the response, and receive acknowledgment of the response.” Id. 

Thus, it includes multiple parameters, including request time and response time. As a 

counter-example, the “SuccessServerLatency” metric is a single-dimensional value that is a 

measure only of the “latency used by Azure Storage to process a successful request, in 

milliseconds” but “does not include the network latency specified in SuccessE2ELatency.” Id. 

(see “Description” of SuccessServerLatency” in same chart).

As explained in WSOU’s complaint, according to Defendant’s own documentation its

metrics can have “one or more defining labels” and can be “aggregated using a variety of 

algorithms” and be “compared to other metrics.” Complaint ¶ 36 (citing Azure Network Monitor, 

Page 197) (emphasis added). This factual pleading is enough, alone, to allow the Court to draw 

the reasonable inference that metrics include “service indicator values” that are a function of 

multiple “parameters.” Combined with the example of SuccessE2ELatency as a metric that is a 

function of multiple parameters, there is no need to infer. 

To remove any doubt, WSOU’s public documentation describing the accused product 

acknowledges the existence of multi-dimensional metrics, explaining that “[s]ome metrics may 

have multiple dimensions as described in Multi-dimensional metrics. Custom metrics can have up 

to 10 dimensions.”

5 Defendant explains that a “non-dimensional metric can only answer a basic 

question, like ‘what was my network throughput at a given time?’” Id. Defendant then provides 

an example of a multi-dimensional metric (“Network Throughout + two dimensions (‘IP’ and 

‘Direction’),” explaining that this metric can answer questions such as “what was the network 

throughput for each IP address?”, and “how much data was sent versus received?” Id. Defendant 

goes on to explain: “Multi-dimensional metrics carry additional analytical and diagnostic value 

compared to non-dimensional metrics.” Id. In Defendant’s own example, Dimension “IP” and 

5

 See https://docs.microsoft.com/en-us/azure/azure-monitor/platform/data-platform-metrics. 

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Dimension “Direction” are multiple parameters even under Defendant’s implied construction of 

“parameters.” 

Not only can this Court reasonably infer Defendant’s metrics include “service indicator 

values” that are a function of multiple “parameters,” Defendant cannot reasonably deny it. 

4. Defendant’s “multiple parameters” argument is a pre-mature claim 

construction argument.

Defendant’s “two or more parameters” argument should also be rejected as a pre-mature 

claim construction argument. It is generally “inappropriate to resolve a claim construction dispute 

on a motion to dismiss for failure to state a claim of infringement[.]” Regents of Univ. of Michigan 

v. Leica Microsystems Inc., 19-CV-07470-LHK, 2020 WL 2084891, at *6 (N.D. Cal. Apr. 30, 

2020); Slyce Acquisition Inc. v. Syte - Visual Conception Ltd., W-19-CV-00257-ADA, 2020 WL 

278481, at *5 (W.D. Tex. Jan. 10, 2020) (finding Rule 12(b)(6) motion to dismiss under § 101 

should be deferred until after claim construction). Here, Defendant relies on implicit claim 

construction arguments by, for example, assuming Bandwidth (consisting of data over time) is a 

single parameter regardless of the number of times it is measured. Defendant also relies on an

assumed construction of “said measured and/or calculated parameter values.” 

5. The Court should disregard Defendant’s ancillary arguments.

In footnotes, Defendant’s motion inserts several ancillary arguments that Defendant 

acknowledges are not proper in a motion to dismiss. Dkt. 20 n. 3, 4, 7. Footnote 3, for example, 

claims near time alerts “are not based on forecasts or predictions.” Id. at 4, n. 3. Defendant admits 

this assertion is “not central to the instant motion.” Id. Indeed, it is not proper for a motion to 

dismiss because relies on a factual assertion outside the pleadings and a tacit (but undefended) 

interpretation of claim scope. It should be disregarded.

Footnote 4 should likewise be disregarded as an improper argument concerning claim 

construction. Dkt. 20 at 7 n. 4 (citing prosecution history to advance a potential claim construction 

issue that Defendant admits is not the subject of its motion). 

Footnote 7 of Defendant’s motion disputes a factual allegation and should be disregarded 

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under the basic Rule 12(b)(6) standard, which requires a Court to accept as true well pled facts. 

Further, Defendant’s factual assertion is belied by its own documentation. 

C. WSOU alleges a plausible claim for infringement under the doctrine of 

equivalents.

Defendant’s challenge to the doctrine of equivalents relies on the same 

mischaracterizations of WSOU’s allegations as its challenge to direct infringement. It also claims 

WSOU relies on boilerplate allegations. There is no merit to this claim. WSOU’s complaint 

recognizes that service indicator and parameter values are recited as claim elements and provides 

sufficient notice concerning accused features for each element (with specific examples), under 

theories of direct infringement or, alternatively, under the doctrine of equivalents.

D. WSOU alleges a plausible claim for induced infringement.

Defendant’s challenge to induced infringement is based solely on Defendant’s allegation 

that WSOU fails to allege a plausible claim for direct infringement. Because WSOU has alleged 

a plausible claim for direct infringement, Defendant’s challenge to induced infringement should 

be denied.

E. WSOU alleges a plausible claim for contributory infringement. 

Defendant’s motion to dismiss WSOU’s contributory infringement claim should be denied 

because it is based on tacit (yet undefended) interpretations of claim scope (including the same 

tacit interpretation advanced in footnote 3) and a factual assertion that is beyond the pleadings. 

CONCLUSION

WSOU pleads factual content that allows this Court to draw the reasonable inference that 

Defendant is liable for the misconduct alleged. Defendant has not shown that WSOU would not 

be entitled to relief under any set of facts or any possible theory that [it] could prove consistent 

with the allegations in the complaint, and its motion should be denied.

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Dated: September 17, 2020

James L. Etheridge

Texas State Bar No. 24059147

Ryan S. Loveless

Texas State Bar No. 24036997

Travis L. Richins

Texas State Bar No. 24061296

Brett A. Mangrum

Texas State Bar No. 24065671

Jeffrey Huang

ETHERIDGE LAW GROUP, PLLC

2600 E. Southlake Blvd., Suite 120 / 324

Southlake, Texas 76092

Telephone: (817) 470-7249

Facsimile: (817) 887-5950

Jim@EtheridgeLaw.com

Ryan@EtheridgeLaw.com

Travis@EtheridgeLaw.com

Brett@EtheridgeLaw.com

JeffH@EtheridgeLaw.com

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I certify that the foregoing document was served upon all counsel of record via email in 

accordance with the Federal Rules of Civil Procedure on September 17, 2020.

/s/ Ryan S. Loveless

Ryan S. Loveless

/s/ Travis Richins

Respectfully submitted,

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