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., 

EMC CORPORATION, AND VMWARE, 

INC.,

Defendants.

Case No. 6:20-cv-00480-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT

FOR FAILURE TO STATE A CLAIM

Case 6:20-cv-00480-ADA Document 38 Filed 10/30/20 Page 1 of 18
i

TABLE OF CONTENTS

Page

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

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

A. The ’133 Patent .........................................................................................................2

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

III. LEGAL STANDARD..........................................................................................................4

A. Direct Infringement ...................................................................................................4

B. Induced and Contributory Infringement....................................................................5

IV. ARGUMENT.......................................................................................................................6

A. Plaintiff Fails to State a Claim for Direct Infringement............................................6

B. Plaintiff Fails to State a Claim for Induced and Contributory Infringement.............7

1. Plaintiff’s Indirect Infringement Claims Fail Without Direct Infringement......8

2. Plaintiff Fails to Allege the Requisite Knowledge for Indirect 

Infringement.......................................................................................................8

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

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

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

Uses for Contributory Infringement.................................................................12

V. CONCLUSION..................................................................................................................12

Case 6:20-cv-00480-ADA Document 38 Filed 10/30/20 Page 2 of 18
ii

TABLE OF AUTHORITIES

Page(s)

CASES

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

620 F. App’x 934 (Fed. Cir. 2015) ......................................................................................5, 11

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

No. W:13-CV-365, 2014 WL 2892285 (W.D. Tex. May 12, 2014) ...............................5, 6, 11

Aguirre v. Powerchute Sports, LLC,

No. SA-10-CV-0702 XR, 2011 WL 2471299 (W.D. Tex. June 17, 2011) ...............................8

Artrip v. Ball Corp.,

735 F. App’x 708 (Fed. Cir. 2018) ..........................................................................................12

Ashcroft v. Iqbal,

556 U.S. 662 (2009)...............................................................................................................4, 5

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)...................................................................................................................4

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

904 F. Supp. 2d 1260 (M.D. Fla. 2012)...................................................................................10

Chapterhouse, LLC v. Shopify, Inc.,

No. 2:18-CV-00300-JRG, 2018 WL 6981828 (E.D. Tex. Dec. 11, 2018)................................6

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

135 S. Ct. 1920 (2015)...........................................................................................................5, 8

De La Vega v. Microsoft Corp.,

2020 WL 3528411 (W.D. Tex. Feb. 11, 2020)..........................................................................5

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

No. CV 18-098 (MN), 2018 WL 6629709 (D. Del. Dec. 19, 2018)........................................11

DSU Med. Corp. v. JMS Co.,

471 F.3d 1293 (Fed. Cir. 2006)................................................................................................11

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

C.A. No. 19-1239-CFC, 2020 WL 4365809 (D. Del. July 30, 2020)........................................9

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

909 F.3d 398 (Fed. Cir. 2018)................................................................................................5, 8

Case 6:20-cv-00480-ADA Document 38 Filed 10/30/20 Page 3 of 18
TABLE OF AUTHORITIES (continued)

Page(s)

iii

Fujitsu Ltd. v. Netgear Inc.,

620 F.3d 1321 (Fed. Cir. 2010)..................................................................................................6

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

563 U.S. 754 (2011)...................................................................................................................5

Horatio Wash. Depot Techs. LLC v. TOLMAR, Inc.,

No. 17-1986-LPS, 2018 WL 5669168 (D. Del. Nov. 1, 2018)..................................................6

Hypermedia Navigation LLC v. Google LLC,

No. 18-CV-06137-HSG, 2019 WL 1455336 (N.D. Cal. Apr. 2, 2019)...................................11

Intellectual Ventures I LLC v. Motorola Mobility LLC,

870 F.3d 1320 (Fed. Cir. 2017)..............................................................................................5, 8

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)..........................10

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

No. 6:19-CV-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019)............................11

Parus Holdings Inc. v. Apple Inc.,

No. 6:19-cv-432, D.I. 54 (W.D. Tex. Feb. 2020) ..................................................................8, 9

Proxyconn Inc. v. Microsoft Corp.,

No. SACV 11-1681 DOC ANX, 2012 WL 1835680 (C.D. Cal. May 16, 2012) ....................10

Simplivity Corp. v. Springpath, Inc.,

No. CV 4:15-13345-TSH, 2016 WL 5388951 (D. Mass. July 15, 2016)................................10

VLSI Tech. LLC v. Intel Corp.,

C.A. No. 18-966-CFC, 2019 WL 1349468 (D. Del. Mar. 26, 2019).........................................9

WSOU v. Dell Inc., et al.,

No. 6-20-cv-00417...................................................................................................................10

Case 6:20-cv-00480-ADA Document 38 Filed 10/30/20 Page 4 of 18
I. INTRODUCTION

The First Amended Complaint (“Amended Complaint”) should be dismissed because it 

fails to plausibly allege that Defendants Dell Technologies, Inc., Dell Inc., EMC Corporation, and 

VMware, Inc. (collectively, “Defendants”) have directly and indirectly infringed the claims of U.S. 

Patent No. 7,539,133 (the “’133 patent”), which involves queueing priority for transmitting 

network data packets based on whether they are destined for a congested egress node. 

Plaintiff WSOU Investments, LLC fails to plausibly state a claim for direct infringement 

because Plaintiff has not alleged that Defendants’ accused products meet each and every limitation 

of the claims. In particular, Plaintiff fails to allege that Defendants meet the following three claim 

limitations that represent practically the entirety of the claimed method: (1) “determining an egress 

node associated with each of a plurality of packets of a traffic flow received at an ingress node”; 

(2) “determining, for each packet, whether a congestion condition exists on the egress node”; and 

(3) “processing the packets . . . associated with egress nodes for which the congestion condition 

does not exist” such that those packets “have a different queueing priority . . . than packets 

associated with egress nodes for which the congestion condition exists.” Plaintiff, for instance, 

offers only conclusory assertions that “congestion conditions are detected at an edge” in general, 

and that “[w]hen [a] queue is full, packets are dropped.” D.I. 35 (“Am. Compl.”) ¶¶ 20–21. But 

that is not what is claimed. Plaintiff fails to allege what the claims actually require: that a 

“congestion condition” is “determin[ed]” for an egress node that itself has been specifically

determined to be “associated with” particular packets “at an ingress node,” and that based on that 

determination, the packets are “process[ed]” with a “different queueing priority.” 

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. D.I. 1 (“Original Complaint”). The 

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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.

II. BACKGROUND

A. The ’133 Patent

Plaintiff filed the Amended Complaint on October 19, 2020. Plaintiff asserts that 

Defendants directly and indirectly infringe at least claim 1 of the ’133 patent. Am. Compl. ¶¶ 23–

28. Claim 1 recites: 

A method for processing traffic in a load-balancing network comprising a plurality 

of nodes, comprising:

determining an egress node associated with each of a plurality of packets of a 

traffic flow received at an ingress node adapted for splitting the traffic flow into a 

plurality of traffic flow portions independent of the egress node by which each 

packet is assigned to exit the load-balancing network;

determining, for each packet, whether a congestion condition exists on the 

egress node; and

processing the packets such that packets associated with egress nodes for 

which the congestion condition does not exist have a different queuing priority 

within the load-balancing network than packets associated with egress nodes 

for which the congestion condition exists.

’133 patent, 16:28–42 (emphasis added).

The ’133 patent generally relates to “control[ling] queuing priority of packets traversing a 

load-balancing network.” Id. at 2:48–49. These data packets “enter” the network through “ingress 

nodes,” and are forwarded to “egress nodes,” from which the packets “leave” the network. Id. at 

2:52–55, 2:62–64. If the amount of traffic of packets at a particular egress node reaches a particular 

threshold, the egress node becomes “congested.” See id. at 1:43–2:2, 2:48–3:6, 15:12–44. 

Case 6:20-cv-00480-ADA Document 38 Filed 10/30/20 Page 6 of 18
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As depicted in the flowchart of Figure 6 below, the claims of the ’133 patent involve 

determining the egress node with which packets at an ingress node are “associated” (or to where 

they are “destined”), determining whether the egress node is experiencing a “congestion 

condition,” and if so, “processing” the packets with a “different queueing priority” as compared to 

packets destined for an egress node that is not congested. Id. at 12:60–14:12.

Determining the egress node to which the packets at an ingress node are associated can be 

achieved by including within “the packet header a destination MAC address indicative that the 

packet is destined for” the particular egress node. Id. at 13:24–27. In addition, a “process module” 

at the ingress node can be used to determine whether the associated egress node is congested. Id.

at 9:41–47; see also id. at 13:35–37. Packets “destined for a congested egress node” are then either 

Case 6:20-cv-00480-ADA Document 38 Filed 10/30/20 Page 7 of 18
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“dropped with a higher probability” or are given a “lower queuing priority than packets associated 

with uncongested egress nodes.” Id. at 9:61–65, 3:7–21, 13:48–64.

B. Plaintiff’s Infringement Allegations

Plaintiff alleges that Defendants’ products “incorporating VMware’s VeloCloud solutions 

and SD-WAN software, such as Dell EMC SD-WAN Edge 600 series products” (the “Accused 

Products”) infringe the ’133 patent claims. Am. Compl. ¶ 15. Plaintiff alleges that the “Accused 

Products can provide a cloud network service solution enabling sites to deploy enterprise-grade 

access to legacy and cloud applications over both private networks and Internet broadband.” Id.

¶ 16.

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

sentences that parrot the legal elements and a few website links that fail to support Plaintiff’s 

claims. See Original Compl. ¶¶ 26–27. 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. ¶ 26. 

III. LEGAL STANDARD

A. Direct Infringement

A complaint should be dismissed under Federal Rules 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 

Case 6:20-cv-00480-ADA Document 38 Filed 10/30/20 Page 8 of 18
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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 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.; 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 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 contributory and induced 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. 

Affinity Labs, 2014 WL 2892285, at *7, 21. Specific intent requires more than knowledge of the 

Case 6:20-cv-00480-ADA Document 38 Filed 10/30/20 Page 9 of 18
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induced acts; rather, the accused infringer must have “knowledge that the induced acts constitute 

patent infringement.” Global-Tech 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 

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

Plaintiff fails to plausibly allege that the Accused Products meet at least the following three 

limitations of the ’133 patent, which essentially constitute the entirety of the claimed method: 

(1) “determining an egress node associated with each of a plurality of packets of a traffic flow at 

an ingress node”; (2) “determining, for each packet, whether a congestion condition exists on the 

egress node”; and (3) “processing the packets . . . associated with egress nodes for which the 

congestion condition does not exist” such that those packets “have a different queueing priority 

. . . than packets associated with egress nodes for which the congestion condition exists.”

The Iqbal/Twombly standard requires more than a bare-bones allegation that alleged 

products, like those involving the particular technology in this case, “meet each and every element 

of at least one claim of the asserted patent.” See, e.g., Chapterhouse, LLC v. Shopify, Inc., No. 

2:18-CV-00300-JRG, 2018 WL 6981828, at *2–3 (E.D. Tex. Dec. 11, 2018) (granting dismissal 

as to patent claims involving “hardware and software” technology relating to a “transaction receipt 

system,” and holding that “[w]hile screenshots may be useful in laying out a plausible allegation 

of patent infringement, Plaintiff must further allege how the screenshots meet the text of the 

exemplary claim in order to lay out sufficient factual allegations which might permit the Court to 

find that the Iqbal/Twombly standard is met.”); see also Horatio Wash. Depot Techs. LLC v. 

Case 6:20-cv-00480-ADA Document 38 Filed 10/30/20 Page 10 of 18
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TOLMAR, Inc., No. 17-1986-LPS, 2018 WL 5669168, at *11 (D. Del. Nov. 1, 2018) (“In order to 

adequately plead direct (and indirect and willful) infringement, a plaintiff needs to have pleaded 

facts that plausibly indicate that the accused products contain each of the limitations found in the 

claim.” (emphasis added)). 

Here, the Amended Complaint offers no allegations at all that the Accused Products meet 

these three key claim limitations. The Amended Complaint is silent as to whether the Accused 

Products determine an egress node that is “associated” with packets at an ingress node. In addition, 

Plaintiff never alleges that the Accused Products determine “whether a congestion condition 

exists” on an “egress node” that specifically has been determined to be “associated” with those 

particular packets. Nor does Plaintiff allege that packets are ever dropped or “process[ed]” with a 

“different queuing priority” based on a determined congestion condition at a particular associated

egress node. 

At most, Plaintiff vaguely states that “congestion conditions are detected at an edge”

generally, rather than accusing the Accused Products of determining a congestion condition at an 

egress node that specifically has been determined to be “associated” with particular packets “at an 

ingress node.” Am. Compl. ¶ 20. Likewise, Plaintiff broadly states that “packets are dropped” 

when a “queue is full” in general, rather than what the claims require: that the packets are 

processed with “different queueing priority” based on whether it has been determined that an 

associated egress node is congested. Id. ¶ 21.

Thus, because Plaintiff fails to plausibly allege that Defendants have met each and every 

limitation of the ’133 patent claims, Plaintiff’s claim for direct infringement should be dismissed.

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 

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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 

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, D.I. 54 (W.D. Tex. Feb. 20, 

Case 6:20-cv-00480-ADA Document 38 Filed 10/30/20 Page 12 of 18
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2020) (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. ¶ 26 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 

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, D.I. 54 (W.D. Tex. Feb. 20, 2020). 

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. ¶ 26 (emphasis added). Like the allegations in Parus, WSOU’s allegations of 

Case 6:20-cv-00480-ADA Document 38 Filed 10/30/20 Page 13 of 18
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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, D.I. 54 (W.D. Tex. Feb. 20, 2020).

1

 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. A (Docket for WSOU v. Dell Inc., et 

al., No. 6-20-cv-00417) (showing dismissal prior to service of the complaint). 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.2 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. 

1 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.”). 

2 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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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 a few website citations. See Am. Compl. ¶ 27. 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 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 *2.3

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

3 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-00480-ADA Document 38 Filed 10/30/20 Page 15 of 18
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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. ¶ 28. 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 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-00480-ADA Document 38 Filed 10/30/20 Page 16 of 18
13

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-00480-ADA Document 38 Filed 10/30/20 Page 17 of 18
14

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-00480-ADA Document 38 Filed 10/30/20 Page 18 of 18