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. 

 

Civil Action No. 6:20-cv-454 

DEFENDANT MICROSOFT CORPORATION’S MOTION TO DISMISS 

THE FIRST AMENDED COMPLAINT’S INDUCED INFRINGEMENT CLAIM 

PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) 

Case 6:20-cv-00454-ADA Document 77 Filed 04/21/21 Page 1 of 9
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INTRODUCTION 

A colorable induced infringement claim requires plausible allegations that a third party 

directly infringes the asserted claims, the accused infringer specifically intended that third party 

to infringe, and the accused infringer knew that the third party’s acts would constitute 

infringement. 

WSOU’s amended complaint fails to satisfy these requirements. It does not allege any

action taken by a third party—not the accused software itself—to perform the asserted claims’ 

steps, or how a third party could even perform the steps using the accused software. The 

amended complaint also does not allege that Microsoft specifically intended for a third party to 

infringe the claims by directing or instructing it to practice the claims’ steps knowing that the 

third party’s actions would constitute infringement. Rather, the amended complaint generically 

references Microsoft documentation, pointing to a several thousand-page document without any 

specificity. 

Microsoft therefore respectfully requests that the Court dismiss WSOU’s claim of 

induced infringement. 

FACTUAL AND PROCEDURAL BACKGROUND 

On March 30, 2021, the Court heard argument on Microsoft’s motion to dismiss the 

original complaint. At that hearing, Microsoft argued that WSOU had failed to allege direct 

infringement because its infringement theory improperly erased the distinction between the 

“network parameters” and “service indicator” limitations of the claims. See, e.g., Dkt. No. 72 

(“2021-03-30 Hr’g Tr.”), at 20-21; Dkt. No. 20, at 6. At the close of the hearing, the Court 

afforded WSOU two weeks to amend its complaint. 2021-03-30 Hr’g Tr., at 26. WSOU filed its 

amended complaint (Dkt. No. 73, “FAC”) on April 5, 2021. 

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The amended complaint, like the original, starts with a general allegation that “network 

parameters” are “select[ed]” by Microsoft’s Network Performance Monitor software. FAC, at 

¶40. The main change in the amended complaint is an enumeration of purported “network 

parameters” and “service indicator[s],” which appears to rely on functions in Microsoft’s 

confidential source code made available for inspection after this suit was filed. 

The complaint then flags specific purported “network parameters” alleged to be 

“select[ed]” according to the claimed methods. For example, it identifies (1) “network 

parameters” such as “request time, response time, acknowledgement time, etc.” FAC, at ¶48, (2) 

“network parameters” that are dimensions such as “Direction” and “IP,” FAC, at ¶49, and (3) 

“network parameters” that are apparent source code functions, see FAC, at ¶¶50, 52-53. 

The amended complaint then alleges the “values” of these “network parameters” are used 

to determine various purported “service indicator[s],” which include metrics like 

“SuccessE2ELatency,” “multi-dimensional metrics,” and other apparent source code functions. 

FAC, at ¶¶48-50. The amended complaint also alleges that “Network Performance Monitor 

monitors . . . features that at least satisfy the ‘service indicator’ term,” FAC, at ¶44, and that 

“Azure Monitor determines a trend of a metric (including, for example, those metrics which 

satisfy the ‘service indicator’ claim term),” FAC, at ¶54. 

Despite these new allegations, the amended complaint, never alleges that any of these 

purported “network parameters” or “service indicator” “values” or “trend[s]” is or even can be 

“select[ed]” or “determin[ed]” by a third party. ’160 patent, at claim 1. 

ARGUMENT 

WSOU fails to plead induced infringement because it has neither asserted direct 

infringement by a third party, see C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc., 911 

F.2d 670, 675 (Fed. Cir. 1990); Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 553 

Case 6:20-cv-00454-ADA Document 77 Filed 04/21/21 Page 3 of 9
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(Fed. Cir. 1990), nor sufficiently plead specific intent by Microsoft to induce that third party’s 

direct infringement, see Joao Control & Monitoring Sys., LLC v. Protect Am., Inc., No. 14-cv134, 2015 WL 3513151, at *4 (W.D. Tex. Mar. 24, 2015). 

A. Failure to allege direct infringement by a third party. 

The amended complaint never plausibly alleges that a third party performs any of the 

steps required by the asserted claims. This is most evident with the claimed “selecting” and 

“determining” steps. At most, the amended complaint alleges that Microsoft’s Network 

Performance Monitor “selects” the alleged “network parameters,” and that Microsoft’s Azure 

Monitor “determines” the “service indicator” “trend.” FAC, at ¶¶40, 54. 

But nowhere does the amended complaint allege or attempt to show that a third party

uses Network Performance Monitor or Azure Monitor to “select[]” the identified “network 

parameters” or “determin[e]” the identified “service indicator” “values” or “trend[s],” as required 

by the claim. All the amended complaint alleges is that Microsoft’s software has purportedly 

infringing functionalities. 

The amended complaint’s allegations with respect to the “selecting” limitation illustrates 

its own deficiency. The claims require “selecting two or more parameters of a network” and 

using them to “determin[e]” a “service indicator” “value.” ’160 patent, at claim 1. On this 

limitation, the amended complaint alleges that the “selecting” step is performed when, for 

example, an unknown entity presumably “select[s]” one set of source code functions (alleged 

“network parameters”) and uses them to “determine[]” another source code function (an alleged 

“service indicator” “value”). FAC, at ¶50. Even if accepted as true, it is not plausible to allege 

that a third party “select[s]” these source code functions. And there is no allegation that 

Microsoft instructs or directs a user to “select[]” the source code. At best, the amended 

complaint points generically to a 3,300+ page Microsoft document, which covers countless 

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aspects of Microsoft’s software. FAC, at ¶62. It never explains where this document instructs a 

user to select the identified source code functions. 

The amended complaint’s allegations as to the steps for “determining” a “service 

indicator” “value” and “trend” also illustrate its deficiency in alleging direct infringement by a 

third party. 

With respect to “determining” a “service indicator” “value,” the asserted claims require 

“determining . . . the value of a service indicator as a function of . . . parameter values.” ’160 

patent, at claim 1. But the closest allegation in the amended complaint alleges that “Network 

Performance Monitor” “monitors” “service indicators.” FAC, at ¶44. That does not identify any 

instance where Microsoft instructs a user to “determin[e]” any of the identified “service 

indicator[s]” based on any of the identified “network parameters.” See, e.g., FAC, at ¶50. 

With respect to “determining” a “service indicator” “trend,” the asserted claims require 

“determining a trend of the [service] indicator as a function of said determined indicator values.” 

’160 patent, at claim 1. Nowhere does the amended complaint identify how Microsoft instructs 

or directs a user to “determin[e]” a trend of any “service indicator.” Rather, as explained above, 

the amended complaint alleges Microsoft’s “Azure Monitor determines a trend of a metric.” 

FAC, at ¶54 (emphasis added). 

B. Failure to allege specific intent. 

The complaint also fails to allege any specific intent in connection with its induced 

infringement charge. See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011) 

(“we now hold that induced infringement under § 271(b) requires knowledge that the induced 

acts constitute patent infringement”). Paragraph 62 is the sole paragraph that mentions induced 

infringement, and it provides no evidence of any specific intent by Microsoft. It contains a link 

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to Microsoft’s website, but does not point to anything that instructs or directs a user to “select[]” 

“network parameters” or “determin[e]” “service indicator” “values” or “trend[s].” 

For the amended complaint to sufficiently allege specific intent, it must do more than 

hand-wave at product literature. It must identify where the accused infringer “advocate[s] for 

‘use in an infringing manner’ for the court to reasonably infer specific intent. Where defendants 

have not touted the benefits of the accused products in ways that track the asserted patents, 

courts generally do not infer specific intent.” CyWee Group Ltd. v. HTC Corp., 312 F. Supp. 3d 

974, 979 (W.D. Wash. 2018) (internal quotations and citations omitted). 

The bottom line: WSOU cannot accuse Microsoft of induced infringement but refuse to 

identify the conduct by which it believes Microsoft is instructing or directing a third party to 

directly infringe, and by which Microsoft allegedly knows that such conduct constitutes direct 

infringement of the asserted claims. See also Core Wireless Licensing S.A.R.L. v. Apple Inc., No. 

6:14-cv-752, 2015 WL 12850550, at *4 (E.D. Tex. July 15, 2015) (“[G]eneric allegations that 

an alleged infringer provides instructional materials along with the accused products, without 

more, are insufficient to create a reasonable inference of specific intent for the purposes of an 

induced infringement claim.”), report and recommendation adopted, No. 6:14-cv-752, Dkt. No. 

100 (Aug. 15, 2015); see also Affinity Labs of Texas, LLC v. Blackberry Ltd., No. 13-cv-362, 

2014 WL 12551207, at *6 (W.D. Tex. Apr. 30, 2014) (“The complaint generally alleges that 

Blackberry induced its customers to use its own devices, but fails to allege how Blackberry 

induced its customers to use the devices in a manner that would violate the ’641 patent.”); Joao 

Control & Monitoring Sys., LLC v. Protect Am., Inc., No. 14-cv-134, 2015 WL 3513151, at *5 

(W.D. Tex. Mar. 24, 2015) (“In light of the complexity of the patents-in-suit and the exceedingly 

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broad nature of Joao’s induced-infringement pleadings, the court concludes that Joao’s claims 

for induced infringement do not rise to the level of plausibility required to withstand dismissal.”). 

CONCLUSION 

For the above reasons, Microsoft respectfully requests the Court dismiss WSOU’s 

induced infringement claim. 

 Respectfully submitted, 

 

Date: April 21, 2021 /s/ John W. McBride 

 

 Barry K. Shelton 

 Texas State Bar No. 24055029 

 SHELTON COBURN LLP 

 311 RR 620 S, Suite 205 

 Austin, TX 78734 

 Telephone: (512) 263-2165 

 Fax: (512) 263-2166 

bshelton@sheltoncoburn.com

 

Of Counsel 

 

 Michael J. Bettinger 

 Irene Yang 

 SIDLEY AUSTIN LLP 

 555 California St., Suite 2000 

 San Francisco, CA 94104 

 Telephone: (415) 772-1200 

 Fax: (415) 772-7400 

mbettinger@sidley.com 

irene.yang@sidley.com 

 

 Richard A. Cederoth 

 John W. McBride 

 Richard M. Chen (admitted pro hac vice) 

 Kevin R. Oliver (admitted pro hac vice) 

 SIDLEY AUSTIN LLP 

 1 South Dearborn St. 

 Chicago, IL 60603 

 Telephone: (312) 853-7000 

Case 6:20-cv-00454-ADA Document 77 Filed 04/21/21 Page 7 of 9
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 Fax: (312) 853-7036 

rcederoth@sidley.com 

jwmcbride@sidley.com 

 

 Brooke S. Boll (admitted pro hac vice) 

 SIDLEY AUSTIN LLP 

 555 West Fifth St. 

 Los Angeles, CA 90013 

 Telephone: (213) 896-6000 

 Fax: (213) 896-6600 

brooke.boll@sidley.com 

Attorneys for Defendant Microsoft 

Corporation

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CERTIFICATE OF SERVICE 

I certify that on April 21, 2021, I electronically filed the foregoing with the Clerk of 

Court using the CM/ECF system, which will send notification of such filing to all counsel of 

record as identified below. 

/s/ John W. McBride 

 John W. McBride 

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