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-00473-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Case 6:20-cv-00473-ADA Document 31 Filed 10/05/20 Page 1 of 21
TABLE OF CONTENTS

Page

i

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

II. BACKGROUND ..............................................................................................................2

A. The ’144 Patent....................................................................................................... 2

B. The Accused Product .............................................................................................. 4

C. Plaintiff’s Infringement Allegations....................................................................... 5

III. LEGAL STANDARD.......................................................................................................6

IV. ARGUMENT....................................................................................................................8

A. Plaintiff Fails to Identify the Claimed “V mod N” Formula, and 

Instead Accuses Functionality That was Distinguished During 

Prosecution.............................................................................................................. 8

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

Infringement.......................................................................................................... 10

V. CONCLUSION...............................................................................................................14

Case 6:20-cv-00473-ADA Document 31 Filed 10/05/20 Page 2 of 21
TABLE OF AUTHORITIES

Page(s)

ii

Cases

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

620 F. App’x 934 (Fed. Cir. 2015) ......................................................................................7, 13

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

No. W:13-CV-365, 2014 WL 2892285 (W.D. Tex. May 12, 2014) ...............................7, 8, 13

Aguirre v. Powerchute Sports, LLC,

No. SA-10-CV-0702 XR, 2011 WL 2471299 (W.D. Tex. June 17, 2011) .......................11, 12

Amgen Inc. v. Coherus BioSciences Inc.,

931 F.3d 1154 (Fed. Cir. 2019)..................................................................................................9

Artrip v. Ball Corp.,

735 F. App’x 708 (Fed. Cir. 2018) ......................................................................................6, 14

Ashcroft v. Iqbal,

556 U.S. 662 (2009)...........................................................................................................6, 8, 9

Auto–Dril, Inc. v. Nat'l Oilwell Varco, L.P.,

6:15–CV–00091, 2015 WL 12868183 (W.D. Tex. June 24, 2015), report and 

recommendation adopted, 2015 WL 11004538 (W.D. Tex. July 15, 2015)............................10

Avocet Sports Tech., Inc. v. Garmin Int’l, Inc.,

C 11–04049 JW, 2012 WL 1030031 (N.D. Cal. Mar. 22, 2012).............................................12

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)...............................................................................................................6, 8

Brandywine Commc’ns Techs., LLC v. Casio Computer Co.,

912 F. Supp. 2d 1338 (M.D. Fla. 2012)...................................................................................12

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

135 S. Ct. 1920 (2015).........................................................................................................7, 11

Data Engine Techs. LLC v. Google LLC,

906 F.3d 999 (Fed. Cir. 2018)..................................................................................................10

De La Vega v. Microsoft Corp.,

2020 WL 3528411 (W.D. Tex. Feb. 11, 2020)......................................................................7, 8

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

No. CV 18-098 (MN), 2018 WL 6629709 (D. Del. Dec. 19, 2018)........................................13

DSU Med. Corp. v. JMS Co., Ltd.,

471 F.3d 1293 (Fed. Cir. 2006)................................................................................................13

Case 6:20-cv-00473-ADA Document 31 Filed 10/05/20 Page 3 of 21
TABLE OF AUTHORITIES 

(continued)

Page(s)

iii

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

909 F.3d 398 (Fed. Cir. 2018)..............................................................................................7, 11

Fujitsu Ltd. v. Netgear Inc.,

620 F.3d 1321 (Fed. Cir. 2010)..................................................................................................8

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

563 U.S. 754 (2011)...................................................................................................................7

Hypermedia Navigation LLC v. Google LLC,

No. 18-CV-06137-HSG, 2019 WL 1455336 (N.D. Cal. Apr. 2, 2019)...................................13

Intellectual Ventures I LLC v. Motorola Mobility LLC,

870 F.3d 1320 (Fed. Cir. 2017)............................................................................................7, 11

Lormand v. US Unwired, Inc.,

565 F.3d 228 (5th Cir. 2009) .....................................................................................................6

Lovelace v. Software Spectrum Inc.,

78 F.3d 1015 (5th Cir. 1996) ...................................................................................................10

Metricolor LLC v. L’Oreal S.A.,

791 F. Appx. 183 (Fed. Cir. 2019).............................................................................................9

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

No. 6:19-CV-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019)............................13

Parus Holdings Inc. v. Apple Inc.,

No. 6:19-cv-432 (W.D. Tex. Feb. 20, 2020)............................................................................12

Proxyconn Inc. v. Microsoft Corp.,

No. SACV 11-1681-DOC-ANX, 2012 WL 1835680 (C.D. Cal. May 16, 2012)....................12

Xpoint Technologies, Inc. v. Microsoft Corp.,

730 F. Supp. 2d 349 (D. Del. 2010).........................................................................................12

Statutes

35 U.S.C. § 271(a) ...........................................................................................................................6

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TABLE OF ABBREVIATIONS

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Abbreviation Term

’144 Patent U.S. Patent No. 9,137,144 

Accused Product(s) Dell SmartFabric OS and others not named in the Complaint

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

ECMP Equal Cost Multi-Path

VLAN Virtual Local Area Network

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

Development

Case 6:20-cv-00473-ADA Document 31 Filed 10/05/20 Page 5 of 21
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Plaintiff filed its Complaint alleging that Defendants infringe the ’144 Patent. D.I. 1. 

Defendants respectfully move this Court to dismiss Plaintiff’s Complaint for failure to state a 

claim.

I. INTRODUCTION

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

The ’144 Patent claims selection of a path by a specifically recited mathematical formula. The 

patentee emphasized this specific formula during prosecution to distinguish prior art that instead 

disclosed using a hash function to select the path. Plaintiff does not identify any use of the recited 

formula, and instead accuses exactly the same type of hash function that was distinguished during 

prosecution. It is thus unsurprising that Plaintiff fails to allege that the accused product selects a 

path using the formula explicitly required by every claim of the ’144 Patent, and further fails to 

provide any facts upon which this limitation could be met. Plaintiff’s Complaint demonstrates 

non-infringement on its face, and should be dismissed.

Plaintiff’s indirect allegations are also fatally deficient for several reasons. They rely 

entirely on post-Complaint knowledge of the patent, which is legally insufficient to satisfy 

pleading standards in this District. They also fail to plead specific intent for induced infringement 

and that there are no non-infringing uses for contributory infringement. Thus, beyond the complete 

failure to plausibly plead direct infringement, the failure to plausibly plead indirect infringement 

also compels dismissal of those claims. 

Plaintiff’s pleading failures are fatal to its Complaint. This is not a case in which Plaintiff’s 

pleading suffers from some technicality. Instead, the Complaint demonstrates non-infringement 

and a complete failure to plausibly allege infringement. As such, Defendants respectfully ask that 

the Court dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

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II. BACKGROUND

A. The ’144 Patent

The ’144 Patent relates to selecting a virtual Local Area Network (VLAN) path form a path 

selection table using a specific formula. That formula is defined as “V modulus N, where V is the 

sequential ID number for a given VLAN and N is the total number of available paths for selection.”

See ’144 Patent, 6:20–23.

1 The allegedly novel feature of the ’144 Patent is using that V mod N 

formula instead of a hash algorithm to assign an incoming group of communication traffic to one 

of a plurality of paths. This is confirmed by the prosecution history, where the applicant 

distinguished the claimed V mod N calculation from hashing in order to overcome the prior art. 

See Ex. A ’144 Patent File History, 2014-07-17 Applicant Response, 6 (“[W]hile the cited portions 

of Matthews may mention a modulus operation, the modulus operation is merely performed on a 

hash value to obtain a path ID. However, the cited portions of Matthews do not compare the path 

ID ‘to indices on a path selection table’ or ‘select the path associated with an index equal to’ the 

path ID.”). 

Plaintiff asserts claim 1 in the Complaint: 

1. A method of selecting, for a group of communication traffic, a 

communication path from a source node to a destination node through a 

network comprising a plurality of contiguous communication paths, the 

method comprising: 

determining lowest cost paths from the plurality of contiguous 

communication paths; 

determining V mod N, 

1 “Modulus” or “mod” is a well-known mathematical calculation that provides the remainder 

upon dividing two numbers. For example, the result of “12 mod 5” is 2, because the remainder, 

when dividing 12 by 5, is 2. 

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comparing a result of the determining to indices on a path selection table 

that associates a unique index with each of the plurality of communication 

paths, and 

selecting a path associated with an index equal to the result, wherein N is 

a number of the lowest cost paths in the plurality of communication paths 

and V is a group identifier corresponding to the group of communication 

traffic.

Tables 3 and 4 together depict an example of how the V mod N would work. Table 3 

shows the VLAN ID (i.e., “V”) for each of the VLANs: 

 

’144 Patent, 5:55-6:10. Table 4 shows each of the possible paths: 

Case 6:20-cv-00473-ADA Document 31 Filed 10/05/20 Page 8 of 21
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Id., 6:26-39. Table 4 shows that there are 9 possible paths (numbered 0 through 8), and thus “N” 

is 9. These two tables provide the information to be used with the V mod N formula to select a 

path for each VLAN. For example, VLAN1 has an ID of 99, and 99 mod 9 is 0; so VLAN1 will 

be assigned to path 0. VLAN2 has an ID of 100 and 100 mod 9 is 1; so VLAN2 will be assigned 

to path 1. This same calculation is performed for each VLAN and the path is assigned accordingly 

in a round-robin fashion. Id., 6:20-24.

B. The Accused Product

Plaintiff has accused the Dell SmartFabric Operating System of infringing claim 1 of the 

’144 Patent.2

 Among many other functions, the Accused Product can provide path mapping using 

Equal Cost Multiple Path (“ECMP”) routing. See 10.5.0 User Guide at 628.3

 “ECMP is a routing 

technique where next-hop packet forwarding to a single destination occurs over multiple best 

paths. When you enable ECMP, OS10 uses a hash algorithm to determine the next-hop.” Id 

(emphasis added). The User Guide on which Plaintiff relies explains how the hash algorithm load 

balances traffic by selecting the next port for traffic to follow: “To increase bandwidth and for load 

balancing, traffic distributes across the next hops of an ECMP group or member ports of a port 

channel. OS10 uses a hash algorithm to determine a hash key. The egress port in a port channel 

or the next hop in an ECMP group is selected based on the hash key modulo the number of ports 

2 The complaint actually identifies “augmented reality headsets and services, including but not 

limited to, the Dell EMC SmartFabric Operating System” as Accused Products. Compl. at ¶ 13. 

One can only assume this is a cut-and-paste error resulting from Plaintiff’s many complaints, as 

such products are not made by Dell EMC or relevant to the patent. The only Dell EMC product 

actually identified is the SmartFabric Operating System, so this motion addresses that product.

3 This user guide is quoted throughout the Complaint and is found at https://topicscdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf. 

Case 6:20-cv-00473-ADA Document 31 Filed 10/05/20 Page 9 of 21
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in a port channel or next hops in an ECMP group, respectively.” Id (emphasis added). Nothing 

in the Accused Product uses a “V mod N” calculation to select a path. 

C. Plaintiff’s Infringement Allegations

Plaintiff accuses Defendants of direct infringement of claim 1 of the ’144 patent based on 

making, using, or selling the Accused Product. See Compl. at ¶¶ 13, 26. 

Plaintiff’s indirect infringement allegations amount to three sentences that parrot the legal 

elements and two website links that fail to support their claims. See Compl. at ¶¶ 27–29. These 

allegations lack any factual basis and fail to even allege that Defendants had knowledge of the 

patent and knowledge of infringement before Plaintiff filed suit.4

 See id. To make matters worse, 

the two website links that Plaintiff attempts to use to support their induced infringement claim do 

not even address the Accused Products. The first website address yields a 404 error,

5 and the 

second is a website generally discussing VLAN and “Trunk” (not the Accused Products).6 See id.

at ¶ 28.

4 Plaintiff alleges that: (1) “Defendants have received notice and actual or constructive 

knowledge of the ’144 Patent since at least the date of service of this Complaint”; (2) “Since at 

least the date of service of this Complaint, through its actions, Defendants have actively induced 

[infringement of the ’144 Patent] . . .”; and (3) “Since at least the date of service of this 

Complaint, through its actions, Defendants have contributed to the infringement of the ’144 

Patent[.]” Compl. at ¶¶ 27–29 (emphasis added).

5 The Complaint cites https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0, which generates an 

error when opened.

6 The Complaint cites https://www.dell.com/community/Connectrix/An-Introduction-toVLAN-and-Trunk/td-p/7076385, which generally relates to VLAN and “Trunk” and is not 

relevant to the Accused Products. 

Case 6:20-cv-00473-ADA Document 31 Filed 10/05/20 Page 10 of 21
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III. LEGAL STANDARD

A. Direct Infringement

A complaint should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil 

Procedure 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 non-conclusory 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.” 

Ashcroft, 556 U.S. at 678 (2009). “Threadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.” Id. “Where a complaint pleads facts 

that are merely consistent with a defendant’s liability, it stops short of the line between possibility 

and plausibility of entitlement to relief.” Id. (internal quotation marks omitted). Additionally, 

“under any pleading standard, a complaint must put a defendant ‘on notice as to what he must 

defend.’” Artrip v. Ball Corp., 735 Fed. Appx. 708, 715 (Fed. Cir. 2018) (affirming district court’s 

dismissal of complaint that used broad functional language copied from patent). Only those 

complaints which state a plausible claim for relief survive a motion to dismiss, and the reviewing 

court makes this determination by drawing on its “judicial experience and common sense.” 

Ashcroft, 556 U.S. at 679; see Lormand v. US Unwired, Inc., 565 F.3d 228, 257 (5th 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 alleged infringer can only be liable if it 

“makes, uses, offers to sell, or sells” the allegedly infringing product. See 35 U.S.C. § 271(a). 

This requires that the plaintiff—at a minimum—plead facts that identify an allegedly infringing 

Case 6:20-cv-00473-ADA Document 31 Filed 10/05/20 Page 11 of 21
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product and describe how that 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 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 

substantial noninfringing uses, and [] that the component is a material part of the 

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

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

IV. ARGUMENT

Plaintiff has not alleged—and cannot allege—that the Accused Product meets the claim 

limitations because: (1) Plaintiff fails to plead that the Accused Products determine “V mod N” 

where “V is a group identifier”; and (2) the functionality that Plaintiff instead accuses—a hash 

function in ECMP—was explicitly distinguished from the claims during the prosecution of the 

’144 Patent, and therefore cannot support an allegation of infringement. In view of its failure to 

identify any functionality that allegedly meets this limitation, Plaintiff cannot satisfy the

Iqbal/Twombly standard. Twombly, 550 U.S. 544, 555 (2007); Ashcroft, 556 U.S. at 678 (2009); 

see also De La Vega, 2020 WL3528411 (W.D. Tex, 2020), at *6-7.

A. Plaintiff Fails to Identify the Claimed “V mod N” Formula, and Instead 

Accuses Functionality That was Distinguished During Prosecution

Asserted claim 1 requires the key limitation that the claimed method determine “V mod N” 

where “V is a group identifier.”7 See supra § II.A. The “V mod N” formula, where “V is a group 

identifier,” is fundamental to the alleged invention. “V mod N” is expressly asserted in claim 1,

discussed throughout the specification of the ’144 Patent, seen in multiple Figures, and described 

in various embodiments of the invention. The entire purpose of the invention is to deliver data 

from a start to a destination node by the lowest cost paths via the “V mod N” function, where “V 

is a group identifier.” See e.g., ’144 Patent, 2:33-38, 2:59-64, 3:9-14, 7:35-39, 8:11-12, 9:13-20, 

and 10:11-18.

7 All other independent claims require the same limitation.

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Plaintiff fails to provide any plausible factual basis to allege that the Accused Product 

determines “V mod N” where V is a group identifier. Nor can it. The allegations in the 

Complaint—and the quoted portions of the User Guide—definitively establish that the Accused 

Product does not use the “V mod N” formula to select a path. Plaintiff repeatedly alleges, in almost 

every paragraph related to the Accused Product, that the Accused Product performs a hash 

algorithm and uses ECMP to perform routing. See Compl. at ¶¶ 15, 17-24. The Complaint 

establishes that this formula uses a “hash key modulo the number of ports in a port channel or next 

hops in an ECMP group, respectively” to determine the egress port or next channel. Id. ¶ 21. 

While the Complaint clumsily suggests that somehow this corresponds to a “V mod N” calculation, 

that is the exact opposite of what the applicant said during prosecution. The applicant stressed that 

the claimed V is a group identifier, not a hash key, to get around the prior art during the prosecution 

of the ’144 Patent. See Ex. A ’144 Patent File History, 2014-07-17 Applicant Response, 6 

(“[W]hile the cited portions of Matthews may mention a modulus operation, the modulus operation 

is merely performed on a hash value to obtain a path ID. However, the cited portions of Matthews 

do not compare the path ID ‘to indices on a path selection table’ or ‘select the path associated with 

an index equal to’ the path ID.”). Plaintiff cannot sustain its pleading burden by accusing the exact 

same functionality that was distinguished during prosecution, and then simply adding conclusory 

statements that it meets the claim limitation. See Ashcroft, 556 U.S. at 678 (2009).

The Federal Circuit has granted motions to dismiss in these circumstances. See Amgen Inc. 

v. Coherus BioSciences Inc., 931 F.3d 1154 (Fed. Cir. 2019) (affirming grant of a motion to dismiss 

because prosecution history estoppel barred patentees from succeeding on their infringement claim 

under doctrine of equivalents); Metricolor LLC v. L’Oreal S.A., 791 Fed.Appx. 183, 188 (Fed. Cir. 

Case 6:20-cv-00473-ADA Document 31 Filed 10/05/20 Page 14 of 21
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2019) (finding that a patent claim was not sufficiently pleaded when the alleged functionality 

“plainly contradicted” the actual claim limitation).

Here, that Plaintiff accuses the same technology that was distinguished during prosecution 

is dispositive on this motion to dismiss. A court may “consider documents attached to or 

incorporated into the Complaint and matters of which judicial notice may be taken.” Auto–Dril, 

Inc. v. Nat'l Oilwell Varco, L.P., 6:15–CV–00091, 2015 WL 12868183, at *2 (W.D. Tex. June 24, 

2015), report and recommendation adopted, 2015 WL 11004538 (W.D. Tex. July 15, 2015); 

Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996). “On a motion for 

judgment on the pleadings . . . the court may consider ‘matters of public record’ . . . Prosecution 

histories constitute public records.” Data Engine Techs. LLC v. Google LLC, 906 F.3d 999, 1008 

n.2 (Fed. Cir. 2018). 

Plaintiff cannot allege that the Accused Product’s use of a hash algorithm infringes because 

that is exactly what was distinguished during prosecution. Thus, these claims should be dismissed 

in their entirety. 

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 by a third party precludes its 

claims of induced and contributory infringement. Beyond that failing, Plaintiff has failed to plead 

any knowledge by Defendants of the patent, or knowledge by Defendants of alleged infringement,

prior to the filing of this action. 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. 

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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 by a third party. 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 (citations omitted); see also Intellectual 

Ventures, 870 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 allegations fail because they do not plead the required 

“knowledge of the patent in suit and knowledge of patent infringement.” Commil, 135 S. Ct. 1920, 

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”). 

Despite this clear requirement, Plaintiff’s sole allegations of knowledge of the patent is a 

conclusory statement that “Defendants have received notice and actual or constructive knowledge 

of the ’888 Patent since at least the date of service of this Complaint.” Compl. at ¶ 27 (emphasis 

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added).8 This Court has rejected identical allegations of knowledge. For example, in Parus, this 

Court dismissed indirect infringement claims where plaintiff’s only allegation of knowledge of the 

patent was that “Defendant Apple has had knowledge of the ’431 Patent since at least the filing 

of the original complaint.” Parus, No. 6:19-cv-432, at D.I. 28 (Amended Compl.) at ¶ 44

(emphasis added); see id. at Feb. 20, 2020 Text Order GRANTING D.I. 54 (W.D. Tex. Feb. 20, 

2020) (dismissing indirect infringement claims). Like the allegations in Parus, Plaintiff fails to 

allege pre-suit knowledge and thus fails to state a claim for indirect infringement. See id.; Aguirre, 

2011 WL 2471299, at *3.9

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 

8 Plaintiff’s allegations of knowledge of infringement are likewise deficient as they allege such 

knowledge only “[s]ince at least the date of service of this Complaint.” Compl. at ¶ 27; see e.g., 

Parus Holdings Inc. v. Apple Inc., No. 6:19-cv-432, Feb. 20, 2020 Text Order GRANTING D.I. 

54 (W.D. Tex. Feb. 20, 2020) (dismissing indirect infringement claims where the only allegations 

of knowledge of infringement were that “[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 of the claims of the ’431 Patent.” (D.I. 28 (Amended Compl.) at ¶ 44)).

9 Other courts similarly have held that “knowledge after filing of the present action is not 

sufficient for pleading the requisite knowledge for indirect infringement.” Xpoint Technologies, 

Inc. v. Microsoft Corp., 730 F. Supp. 2d 349, 357 (D. Del. 2010); Avocet Sports Tech., Inc. v. 

Garmin Int’l, Inc., C 11–04049 JW, 2012 WL 1030031, at *4 (N.D. Cal. Mar. 22, 2012); 

Proxyconn Inc. v. Microsoft Corp., No. SACV 11-1681-DOC-ANX, 2012 WL 1835680, at *5 

(C.D. Cal. May 16, 2012); Brandywine Commc’ns Techs., LLC v. Casio Computer Co., 912 F. 

Supp. 2d 1338, 1345 (M.D. Fla. 2012) (“The weight of authority addressing the knowledge 

required for indirect infringement . . . requires a plaintiff to allege that defendant had pre-suit 

knowledge of the patents-in-suit.”).

Case 6:20-cv-00473-ADA Document 31 Filed 10/05/20 Page 17 of 21
iv

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., Ltd., 471 

F.3d 1293, 1306 (Fed. Cir. 2006) (emphasis added)). 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.10 See Compl. at ¶ 28. 

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

alleged 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 “Plaintiffs 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 *2.11

10 As addressed above, Plaintiff’s cited websites do not even address the Accused Product. See

supra § II.C. And as noted earlier Plaintiff never once alleges that these third parties actually 

infringed.

11 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). 

Case 6:20-cv-00473-ADA Document 31 Filed 10/05/20 Page 18 of 21
iv

Plaintiff’s inducement claim should be dismissed because the 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) (citations 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. Cf.

Compl. at ¶ 22. As the Federal Circuit held in Artrip conclusory allegations are not enough. 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”). 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 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-00473-ADA Document 31 Filed 10/05/20 Page 19 of 21
iv

Dated: October 05, 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-00473-ADA Document 31 Filed 10/05/20 Page 20 of 21
iv

CERTIFICATE OF SERVICE

The undersigned certifies that on this 5th day of October 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-00473-ADA Document 31 Filed 10/05/20 Page 21 of 21