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-00474-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 1 of 21
TABLE OF CONTENTS

Page

i

CONTENTS

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

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

A. The Asserted Patent Is Directed to Connection-Based Networks ....................................2

B. The Accused Products Interface with Connectionless Networks.....................................4

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

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

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

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

A. Plaintiff Has Not Plausibly Alleged That The Accused Products 

Interface With “Connection-Based Networks”.................................................................7

B. Plaintiff Has Not Plausibly Alleged That The Accused Products Map 

“Priorities” To “Service Interfaces”..................................................................................8

C. Plaintiff Fails To State A Claim For Induced And Contributory 

Infringement......................................................................................................................9

1. Plaintiff’s indirect infringement claims fail without direct 

infringement.......................................................................................................... 10

2. Plaintiff fails to allege the requisite knowledge for indirect 

infringement.......................................................................................................... 10

3. Plaintiff fails to allege the requisite specific intent for induced 

infringement.......................................................................................................... 12

4. Plaintiff fails to allege the requisite lack of substantial noninfringing uses for contributory infringement....................................................... 13

V. CONCLUSION.............................................................................................................. 13

Case 6:20-cv-00474-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) ......................................................................................6, 12

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

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

Aguirre v. Powerchute Sports, LLC,

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

Amgen Inc. v. Coherus BioSciences Inc.,

931 F.3d 1154 (Fed. Cir. 2019)..................................................................................................7

Artrip v. Ball Corp.,

735 Fed. Appx. 708 (Fed. Cir. 2018)...................................................................................5, 13

Ashcroft v. Iqbal,

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

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

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

Bell Atl. Corp. v. Twombly,

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

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

904 F. Supp. 2d 1260 (M.D. Fla. 2012)...................................................................................11

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

135 S. Ct. 1920 (2015).........................................................................................................6, 10

De La Vega v. Microsoft Corp.,

2020 WL 3528411 (W.D. Tex. Feb. 11, 2020)......................................................................6, 7

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

No. CV 18-098 (MN), 2018 WL 6629709 (D. Del. Dec. 19, 2018)........................................12

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

471 F.3d 1293 (Fed. Cir. 2006)................................................................................................12

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

909 F.3d 398 (Fed. Cir. 2018)..............................................................................................6, 10

Fujitsu Ltd. v. Netgear Inc.,

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

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 3 of 21
TABLE OF AUTHORITIES 

(continued)

Page(s)

iii

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

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

Hypermedia Navigation LLC v. Google LLC,

No. 18-CV-06137-HSG, 2019 WL 1455336 (N.D. Cal. Apr. 2, 2019)...................................12

Intellectual Ventures I LLC v. Motorola Mobility LLC,

870 F.3d 1320 (Fed. Cir. 2017)............................................................................................6, 10

Lormand v. US Unwired, Inc.,

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

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

No. 6:19-CV-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019)............................12

Parus Holdings Inc. v. Apple Inc.,

No. 6:19-cv-432 (W.D. Tex. Feb. 20, 2020)............................................................................11

Proxyconn Inc. v. Microsoft Corp.,

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

The B.V.D. Licensing Corp. v. Body Action Design, Inc.,

846 F.2d 727 (Fed. Cir. 1988)....................................................................................................4

Xpoint Technologies, Inc. v. Microsoft Corp.,

730 F. Supp. 2d 349 (D. Del. 2010).........................................................................................11

Statutes

35 U.S.C. § 271(a) ...........................................................................................................................5

Rules

Fed. R. Evid. 201(b).........................................................................................................................4

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 4 of 21
TABLE OF ABBREVIATIONS

iv

Abbreviation Term

’536 patent U.S. Patent No. 7,212,536

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

IP Internet Protocol

QoS Quality of Service

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

Development

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 5 of 21
1

I. INTRODUCTION

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

The ’536 patent describes and explicitly claims a connection-based network technology. The 

complaint alleges infringement based on fundamentally different connectionless network 

technology. Plaintiff fails to allege that the accused products interface with a “connection-based 

network” as explicitly required by every claim of the ’536 patent and further fails to provide any

facts upon which this limitation could be met. This is unsurprising, as the very documents upon 

which Plaintiff relies directly contradict any such attempted allegation; instead, the documents

make clear that the accused products operate on connectionless protocols. Plaintiff’s efforts to fit 

a round (connection-based) peg into a square (connectionless) hole should be rejected. 

Similarly, the sole identified claim in the Complaint requires a mapping between a user 

priority from an incoming frame and a specific outgoing channel (in the connection-based 

network). Plaintiff fails to even allege that such a mapping exists; nor could it, as the concepts 

recited in the claims have no meaning in a connectionless network. Again, the documents upon 

which Plaintiff rely flatly contradict any such attempted allegation. 

Plaintiff’s indirect infringement claims are also fatally flawed. It is axiomatic if there is no 

direct there cannot be indirect infringement. Moreover, the indirect infringement allegations fail 

for additional reasons, including that they are based entirely on knowledge of the patent only as of 

the date of filing the Complaint, and that they fail to plead the requirements of induced and 

contributory infringement. 

This is a textbook case for dismissal on the pleadings under Iqbal and Twombly. Plaintiff’s 

failure goes beyond mere failure to plead sufficient facts. Not only has Plaintiff failed to plausibly 

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 6 of 21
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allege infringement, but its factual allegations, including the very documents upon which it relies,

actually preclude its allegations of patent infringement. This case should be dismissed. 

II. BACKGROUND

A. The Asserted Patent Is Directed to Connection-Based Networks

The ’536 patent, which is entitled “User priority mapping in bridged VLANs,” relates to 

user priorities in a connection-based networks. ’536 patent, Abstract. The patent purports to 

provide different service levels by assigning different channels in a connection-based network. 

Id. According to the patent, channels in the connection-based network may be assigned by 

providing a mapping between user priorities and channels. Id. 

Plaintiff asserts claim 1 in the Complaint:

1. Data handling apparatus for handling data frames which are each associated with one 

of a plurality of priorities, the apparatus comprising: 

[a] a bridge having a plurality of bridge ports, a first one of the bridge ports having a 

plurality of service interfaces, each of the service interfaces associated with a 

channel in a connection-based network; 

[b] a map associated with the first one of the bridge ports, the map providing a 

correspondence between each of the plurality of priorities and one of the service 

interfaces; 

[c] a forwarding system configured to read a priority of a data frame to be forwarded 

onto the connection-based network by way of the first one of the ports, identify a 

service interface which the map indicates corresponds to the read user priority and 

forward the data frame over the channel in the connection-based network 

associated with the identified service interface.

Id., cl. 1 (emphases added).

As explained in the “Background” section of the ’536 patent, networking protocols “permit 

priorities (sometimes called ‘user priorities’) to be assigned to data. Through the use of such 

networking protocols, data having different priority levels can be treated differently.” Id., 1:48–

51. For example, the ’536 patent explains that the prior art IEEE 802.1D protocol describes how 

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 7 of 21
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to map user priorities to different egress queues. Id., 1:54–56. According to the patent, such an 

approach was not known for virtual Local Area Networks (VLANs), and there “is a need for ways 

to accommodate user priorities in VLANs.” Id., 2:1–2. 

The patent describes a VLAN as “a data communication network which comprises a 

number of segments which are connected together by links which operate according to a network 

protocol different from that of the network segments.” Id., 1:17–22. In the case of the claims, 

these links are bridges. Id., 1:26–27; cls. 1, 12, 17. According to the patent, bridges “provide 

interfaces between ethernet segments [] and connection-based networks.” Id., 3:44–45 (emphasis 

added). A “[c]onnection based network 14 provides channels (which may be virtual circuits) 

capable of carrying data between bridges.” Id., 3:46–48. Indeed, the term “connection-based 

network” is used over 40 times in the patent, including in every independent claim. See generally 

id. 

Figure 2 depicts the described bridge that interfaces with a connection-based network. 

As depicted in Figure 2, for each bridge port (26A, 26B, and 26C), there are multiple different 

“service interfaces 30.” Each of these interfaces is associated with a different channel 24 in a 

connection based network. Id., 4:54–57. Based on the incoming priority, the bridge will assign a 

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 8 of 21
4

frame to a particular channel in the connection-based network, and thus to a different service 

interface. Id., 6:22–25. 

B. The Accused Products Interface with Connectionless Networks

Plaintiff has accused the Dell PowerConnect 5500 Series switches (“Accused Products”) 

of allegedly infringing claim 1 of the ’536 patent. Compl. ¶ 13. As described by the document

cited in the Complaint, the Accused Products are network switches that support traffic using the 

Internet Protocol (“IP”). Rosenthal Decl., Ex. A (Dell Power Connect 5500 Series System User 

Guide) at 14–15. IP is universally known to be the quintessential connectionless protocol. See

Rosenthal Decl., Ex. B (Dictionary of Networking 2000) at 199 (distinguishing between 

“connectionless IP and connection-oriented ATM”).

1

 

The Accused Products provide Quality of Service (“QoS”) functionality to optimize 

network performance at a particular network interface. Ex. A at 14–15. QoS is used to assign a 

packet to a particular egress queue within an interface, but not to assign a packet to a particular 

interface. Ex. A at 641. Each interface has up to eight egress queues. Id. at 646 (“The switch 

supports eight queues for each interface.”). The QoS functionality classifies the incoming traffic 

based on several different attributes, including device configuration, ingress interface, and packet 

contents. Id. at 641. After the Accused Products assign a packet to a specific interface, the 

Accused Products can assign each packet to a particular egress queue within the interface based 

1 See Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to 

reasonable dispute because it . . . (2) can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned.”); The B.V.D. Licensing Corp. v. Body Action Design, 

Inc., 846 F.2d 727, 728 (Fed. Cir. 1988) (“Courts may take judicial notice of facts of universal 

notoriety, which need not be proved, and whatever is generally known within their jurisdiction. 

To that end, dictionaries and encyclopedias may be consulted.” (citations omitted)).

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 9 of 21
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on that classification. Id. (“Assigns incoming packets to forwarding queues. Packets are sent to a 

particular queue for handling as a function of the traffic class to which they belong.”). 

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 that they “allow[] the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Ashcroft, 556 U.S. at 678. “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 F. App’x 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 

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 10 of 21
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plaintiff—at a minimum—plead facts that identify an allegedly infringing 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 

“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 the 

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 

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 11 of 21
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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 that the Accused Products meet the claim limitations because: (1) 

the Accused Products do not have “service interfaces associated with a channel in a connectionbased network”; and (2) the Accused Products do not have a “map providing correspondence 

between each of the plurality of priorities and one of the service interfaces.” In view of its failure 

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

Iqbal/Twombly standard. See Amgen Inc. v. Coherus BioSciences Inc., 931 F.3d 1154 (Fed. Cir. 

2019) (affirming dismissal on the pleadings based on failure to state a plausible infringement 

theory); De La Vega, 2020 WL 3528411, at *6–7.

A. Plaintiff Has Not Plausibly Alleged That The Accused Products Interface

With “Connection-Based Networks”

Plaintiff does not allege that the Accused Products meet the “connection-based network” 

limitation of asserted claim 1 (and required in every independent claim).

2

 “Connection-based 

networks” are fundamental to the alleged invention. The limitation is recited in every independent 

claim, including multiple separate claim limitations in the sole Asserted Claim, claim 1. ’536 

patent, cl. 1, elements [a] and [c]. Further underscoring the importance of a connection-based 

network, the term is used over 40 times throughout the specification. See generally id. Indeed, 

the entire purpose of the purported invention is to accommodate user priorities in a bridge to a 

connection-based network. ’536 patent, Abstract, 2:6–25, 3:44–48. As the patent recognized, 

there were already methods accommodating user priorities in, for example, IEEE standards (such 

2 The same “connection-based network” limitation is in every other claim.

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 12 of 21
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as IEEE 802.1D), which were not for connection-based networks and instead mapped “user 

priorities to service queues.” See ’536 patent, 1:48–57.3

In its Complaint, however, Plaintiff completely ignores the “connection-based network” 

limitations of the Asserted Claim. Nowhere in the Complaint does Plaintiff allege that the Accused 

Products have “service interfaces associated with a channel in a connection-based network.” See, 

e.g., Compl. ¶¶ 14–21. Nor can it. The Accused Products undisputedly do not interface with 

connection-based networks. As is evident from the documents cited in the Complaint, the Accused 

Products are IP network switches. Ex. A at 14–15. IP is a connectionless protocol for 

connectionless networks—i.e., the exact opposite of the “connection-based network” required by 

the claims. Ex. B at 199. As such, Plaintiff did not allege, and cannot plausibly allege, that the 

accused connectionless switches meet the “connection-based network” limitation. This alone 

mandates dismissal of the Complaint.

B. Plaintiff Has Not Plausibly Alleged That The Accused Products Map 

“Priorities” To “Service Interfaces”

Plaintiff has not alleged—and cannot allege—that the Accused Products map priorities to 

service interfaces. Asserted claim 1 requires a “map providing a correspondence between each of 

the plurality of priorities and one of the service interfaces.” ’536 patent, cl. 1, element [b]. The 

claim further recites that the accused apparatus must “identify a service interface which the map 

3 See Rosenthal Decl., Ex. C (IEEE 802.1Q-1998) at Annex D (describing traffic between 

VLAN aware bridges across a “trunk link”); Rosenthal Decl., Ex. D (IEEE 802.1D-1998) at § 7.7.3 

(“The Forwarding Process may provide more than one transmission queue for a given Bridge Port. 

Frames are assigned to storage queue(s) on the basis of their user_priority using a traffic class table 

that is part of the state information associated with each Port. The table indicates, for each possible 

value of user_priority, the corresponding value of traffic class that shall be assigned. Values of 

user_priority range from 0 through 7. Queues correspond one-to-one with traffic classes.”). These 

prior art references are incorporated into the ’536 patent, and thus are part of the pleadings. ’536 

patent, 1:38–57.

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 13 of 21
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indicates corresponds to the read user priority and forward the data frame over the channel in the 

connection-based network associated with the identified service interface.” Id., cl. 1, element [c]. 

In other words, the map must identify a correspondence between (A) the alleged priority and (B) 

a specific “service interface,” which is associated with a “channel in the connection-based 

network.” See id., Fig. 3 (depicting the channels associated with a service interface that extend to 

the next bridge).

There is a fundamental difference between the required mapping and the accused QoS 

functionality. The claims map priority to specific interfaces, whereas QoS maps priority to a 

queue within an interface. In other words, the accused QoS has no effect on which interface is 

used; it can affect only which queue within a given interface is used. The User Guide upon which 

Plaintiff relies in the Complaint explains that each interface has multiple queues. Ex. A at 646. 

The QoS—which is the alleged priority—is used by the Accused Products to assign incoming 

packets “to a particular queue” after the packet has already been assigned to a particular interface. 

Ex. A at 641. QoS is therefore used to assign a packet to a particular egress queue within a single

interface. This is just like IEEE 802.1D—which the patent acknowledges as prior art—that 

“map[s] user priorities to service queues.” ’536 patent, 1:56–57 (emphasis added). The claims, 

on the other hand, plainly require that the map link the user priority with a specific service 

interface, not a queue within a service interface. See ’536 patent, cl. 1. As a result, Plaintiff has 

not alleged and cannot plausibly allege that the required mapping is met, requiring dismissal of the 

Complaint.

C. Plaintiff Fails To State A Claim For Induced And Contributory Infringement

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

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

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

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 14 of 21
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knowledge of the patent or knowledge of 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 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 (citations omitted); see also Intellectual Ventures, 870 

F.3d at 1329 (Fed. Cir. 2017) (“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 also fail because they do not plead the required 

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

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

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

of the ’536 Patent since at least the date of service of this Complaint.” Compl. ¶ 23 (emphasis 

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 15 of 21
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added).4 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.) ¶ 44; 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 fail to state a claim for indirect infringement. See id.; Aguirre, 2011 WL 2471299, at *3; 

Brandywine Commc’ns Techs., LLC v. T-Mobile USA, Inc., 904 F. Supp. 2d 1260, 1268–69 (M.D. 

Fla. 2012) (“Also, because 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.”).

5

4 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. ¶ 24; 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.) ¶ 44)).

5 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, *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, 912 F. Supp. 2d at 1345 (“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-00474-ADA Document 31 Filed 10/05/20 Page 16 of 21
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3. Plaintiff fails to allege the requisite specific intent for induced 

infringement

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

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

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

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

WL 3940952, at *2 (W.D. Tex. July 26, 2019) (quoting DSU Med. Corp. v. JMS Co., 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 it advertising and promotional materials and website citations. See Compl. ¶ 24. Such 

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

acts infringed, 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, directed to encouraging another’s infringement.” 

Parity, 2019 WL 3940952, at *2.6

6 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. 

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 17 of 21
13

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 non-infringing 

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 done so and cannot do so. Plaintiff’s only allegation on these elements is a 

conclusory statement that repeats the legal elements. See Compl. ¶ 25. 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”). Furthermore, Plaintiff cannot plead facts to support these 

elements because the Accused Products may not be configured to use SNMP traps, which are 

central to Plaintiff’s allegations. Plaintiff’s failure to raise a plausible inference of no substantial 

non-infringing uses and materiality 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, 

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-00474-ADA Document 31 Filed 10/05/20 Page 18 of 21
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without leave to amend. Pursuant to L.R. CV-7(h), Defendants request an oral hearing on the 

foregoing motion.

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 19 of 21
15

Dated: October 5, 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-00474-ADA Document 31 Filed 10/05/20 Page 20 of 21
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 5th day of October 2020, the foregoing was filed 

electronically in compliance with Local Rule CV-5(b)(1) and served via the Court’s electronic 

filing system on all counsel who have consented to electronic service: 

Brett Aaron Mangrum, Attorney for WSOU

brett@etheridgelaw.com

Jeffrey Huang, Attorney for WSOU

jhuang@etheridgelaw.com 

Ryan Scott Loveless, Attorney for WSOU 

ryan@etheridgelaw.com

Travis Lee Richins, Attorney for WSOU

travis@etheridgelaw.com 

James L. Etheridge, Attorney for WSOU

jim@etheridgelaw.com 

/s/ Barry K. Shelton 

Barry K. Shelton 

Case 6:20-cv-00474-ADA Document 31 Filed 10/05/20 Page 21 of 21