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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC d/b/a 

BRAZOS LICENSING AND 

DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC., DELL 

INC., EMC CORPORATION, AND 

VMWARE, INC.

Defendants.

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CIVIL ACTION NO. 6:20-cv-486

JURY TRIAL DEMANDED

ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT

Plaintiff WSOU Investments, LLC d/b/a Brazos Licensing and Development (“Brazos” or 

“Plaintiff”), by and through its attorneys, files this Complaint for Patent Infringement against Dell 

Technologies Inc., Dell Inc., EMC Corporation, and VMWare, Inc. (collectively, “Defendants”) 

and alleges:

NATURE OF THE ACTION

1. This is a civil action for patent infringement arising under the Patent Laws of the 

United States, 35 U.S.C. §§ 1, et seq., including §§ 271, 281, 284, and 285.

THE PARTIES

2. Brazos is a limited liability corporation organized and existing under the laws of 

Delaware, with its principal place of business at 605 Austin Avenue, Suite 6, Waco, Texas 76701.

3. On information and belief, defendant Dell Technologies Inc. (“Dell”) is a Delaware 

corporation with a principal place of business at One Dell Way, Round Rock, Texas 78682.

Case 6:20-cv-00486 Document 1 Filed 06/02/20 Page 1 of 15
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4. On information and belief, defendant Dell Inc. is a Delaware corporation with a 

principal place of business at One Dell Way, Round Rock, Texas 78682. Dell Inc. is wholly owned 

by its corporate parent, Dell.

5. On information and belief, defendant EMC Corporation (“EMC”) is a 

Massachusetts corporation with a principal place of business at One Dell Way, Round Rock, Texas 

78682. EMC Corporation is wholly owned by its corporate parent, Dell Technologies Inc.

6. Upon information and belief, VMware, Inc. (“VMWare”) is a Delaware corporation 

with two established places of business in this District, including two in Austin, Texas with over 

700 employees. 

7. Upon information and belief, VMWare was acquired by EMC in 2004 and 

conducted an initial public offering of Class A common stock in August 2007. On or around 

September 2016, Dell acquired by EMC. As a result, EMC became a wholly-owned subsidiary of 

Dell, and VMWare became an indirectly-held, majority-owned subsidiary of Dell. Under the rules 

of the New York Stock Exchange, VMWare is a controlled company. As of January 31, 2020, Dell 

controlled approximately 80.9% of VMWare’s outstanding common stock, including 31 million 

shares of its Class A common stock and all of it Class B common stock.

JURISDICTION AND VENUE

8. This is an action for patent infringement which arises under the Patent Laws of the 

United States, in particular, 35 U.S.C. §§ 271, 281, 284, and 285.

9. This Court has jurisdiction over the subject matter of this action under 28 U.S.C.

§§ 1331 and 1338(a).

10. This Court has specific and general personal jurisdiction over each defendant

pursuant to due process and/or the Texas Long Arm Statute, because each defendant has committed 

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acts giving rise to this action within Texas and within this judicial district. The Court’s exercise of 

jurisdiction over each defendant would not offend traditional notions of fair play and substantial 

justice because each defendant has established minimum contacts with the forum. For example, 

on information and belief, each defendant has committed acts of infringement in this judicial 

district, by among other things, selling and offering for sale products that infringe the asserted 

patent, directly or through intermediaries, as alleged herein.

11. Venue in the Western District of Texas is proper pursuant to 28 U.S.C. §§1391

and/or 1400(b). Each defendant has established places of business in the Western District of Texas. 

Each defendant is registered to do business in Texas. Upon information and belief, each defendant 

has transacted business in this District and has committed acts of infringement in this District. 

COUNT ONE - INFRINGEMENT OF 

U.S. PATENT NO. 7,092,360

12. Brazos re-alleges and incorporates by reference the preceding paragraphs of this 

Complaint.

13. On August 15, 2006, the United States Patent and Trademark Office duly and 

legally issued U.S. Patent No. 7,092,360 (“the ‘360 Patent”), entitled “Monitor, System and 

Method for Monitoring Performance of a Scheduler.” A true and correct copy of the ‘360 Patent

is attached as Exhibit A to this Complaint.

14. Brazos is the owner of all rights, title, and interest in and to the ‘360 Patent, 

including the right to assert all causes of action arising under the ‘360 Patent and the right to any 

remedies for the infringement of the ‘360 Patent.

15. Defendants make, use, sell, offer for sale, import, and/or distribute in the United 

States, including within this judicial district, products such as, but not limited to, cloud-related

solutions, including but not limited to, devices incorporating VMware’s VeloCloud solutions and 

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vSphere software, such as Dell’s PowerEdge servers and VxRail appliances (collectively, the 

“Accused Products”).

https://www.dell.com/learn/us/en/15/solutions/vmware-vcloud

https://www.dell.com/downloads/global/power/ps3q07-20070562-hanson.pdf

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https://www.delltechnologies.com/en-us/solutions/vmware/servers-for-vmware.htm

https://www.dell.com/downloads/global/vectors/dell_and_vmware_drs_ha_solutions.pdf

https://www.dellemc.com/resources/en-us/asset/technical-guides-supportinformation/products/converged-infrastructure/vxrail-vcenter-server-planning-guide.pdf

16. The Accused Products provide functions for resource management, designated as 

Network I/O Control (NetIOC), including scheduling.

Case 6:20-cv-00486 Document 1 Filed 06/02/20 Page 5 of 15
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https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/network-iocvsphere6-performance-evaluation-white-paper.pdf

...

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/products/vsphere/vmwar

e-vsphere-feature-comparison-datasheet.pdf

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/performance/

vsphere-esxi-vcenter-server-67-performance-best-practices.pdf

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/network-iocvsphere6-performance-evaluation-white-paper.pdf

Case 6:20-cv-00486 Document 1 Filed 06/02/20 Page 6 of 15
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17. In NetIOC, each resource-pool flow can have a dedicated software queue inside the 

scheduler.

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/vmware_netio

c_bestpractices-white-paper.pdf

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18. The NetIOC scheduler in the Accused Products tracks each network port and 

decides which network port to pick for scheduling the dispatch of data traffic. The NetIOC 

scheduler is based on the hClock Scheduler.

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/network-iocvsphere6-performance-evaluation-white-paper.pdf

19. Various tags are in use in the hClock scheduler to help in monitoring the status of 

different states of an element in hClock Scheduler. For example, Reservation tags (Rq), Limit tags 

(Lq) and Shares tags (Sq) are used to track the allocation based on reservation values (rq), limit 

values (lq), and shares values (sq) respectively, and these elements track different metrics 

associated with a transmit queue. These tags are in a real-time domain to track the fulfillment of 

reservations and limits by comparing the corresponding tags with the real-time values. Comparison 

is made regarding the previous values and the real-time value, which helps in determining the 

output.

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... 

https://dl.acm.org/doi/abs/10.1145/2465351.2465382

20. The hClock scheduler checks the status of each queue. There are pointers associated 

at the end of each queue to track the status. The next step is based on the output of the status of the 

queue. 

https://dl.acm.org/doi/abs/10.1145/2465351.2465382

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21. The Accused Products are programmed to handle transmit queues. 

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/vmware_netio

c_bestpractices-white-paper.pdf

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/vmware_netio

c_bestpractices-white-paper.pdf

22. The Accused Products provide the impact of NetIOC Scheduler on a vSphere host 

and have a separate scheduler queue for each virtual port. The NetIOC scheduler picks up 

packets from the network port queues. It dispatches them for transmitting over the network 

adapter while making sure that bandwidth, shares, and limit settings are provided to each 

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network port in NetIOC. 

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/network-iocvsphere6-performance-evaluation-white-paper.pdf

23. As noted above, the NetIOC scheduler decides which network port to pick for 

scheduling at a given amount of time among the plurality of ports and queues. It can use one 

transmit queue of a port from the available ports.

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/network-ioc-vsphere6-

performance-evaluation-white-paper.pdf

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/network-iocvsphere6-performance-evaluation-white-paper.pdf

24. The Accused Products may also use HClock Multiqueue to distribute traffic 

across multiple transmit queues on a single physical NIC.

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/performance/

Perf_Best_Practices_vSphere65.pdf

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25. The hClock scheduler in the Accused Products has an algorithm based on whether 

a transmit queue is empty or occupied.

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/network-iocvsphere6-performance-evaluation-white-paper.pdf

26. Various decisions for a scheduler in the Accused Products are based on the 

number of packets in a queue, which is calculated based on “packet length.”

https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/network-iocvsphere6-performance-evaluation-white-paper.pdf

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27. In view of preceding paragraphs, each and every element of at least claim 26 of the 

‘360 Patent is found in the Accused Products.

28. Defendants continue to directly infringe at least one claim of the ‘360 Patent, 

literally or under the doctrine of equivalents, by making, using, selling, offering for sale, importing, 

and/or distributing the Accused Products in the United States, including within this judicial district,

without the authority of Brazos.

29. Defendants have received notice and actual or constructive knowledge of the ‘360

Patent since at least the date of service of this Complaint.

30. Since at least the date of service of this Complaint, through its actions, Defendants

have actively induced product makers, distributors, retailers, and/or end users of the Accused 

Products to infringe the ‘360 Patent throughout the United States, including within this judicial 

district, by, among other things, advertising and promoting the use of the Accused Products in 

various websites, including providing and disseminating product descriptions, operating manuals, 

and other instructions on how to implement and configure the Accused Products. Examples of 

such advertising, promoting, and/or instructing include the documents at:

• https://www.dell.com/learn/us/en/15/solutions/vmware-vcloud

• https://www.dell.com/downloads/global/power/ps3q07-20070562-hanson.pdf

• https://www.delltechnologies.com/en-us/solutions/vmware/servers-for-vmware.htm

• https://www.dell.com/downloads/global/vectors/dell_and_vmware_drs_ha_solutions.pd

f

• https://www.dellemc.com/resources/en-us/asset/technical-guides-supportinformation/products/converged-infrastructure/vxrail-vcenter-server-planning-guide.pdf

• https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/netw

ork-ioc-vsphere6-performance-evaluation-white-paper.pdf

• http://fileapi.it.hactcm.edu.cn/yjsyxnh/file/2019/3/1/131959260611073796.pdf

Case 6:20-cv-00486 Document 1 Filed 06/02/20 Page 13 of 15
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• https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/perfo

rmance/Perf_Best_Practices_vSphere65.pdf

• https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/vmw

are_netioc_bestpractices-white-paper.pdf

• https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/products/vspher

e/vmware-vsphere-feature-comparison-datasheet.pdf

• https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/techpaper/perfo

rmance/vsphere-esxi-vcenter-server-67-performance-best-practices.pdf

31. Since at least the date of service of this Complaint, through its actions, Defendants

have contributed to the infringement of the ‘360 Patent by having others sell, offer for sale, or use 

the Accused Products throughout the United States, including within this judicial district, with

knowledge that the Accused Products infringe the ‘360 Patent. The Accused Products are 

especially made or adapted for infringing the ‘360 Patent and have no substantial non-infringing 

use. For example, in view of the preceding paragraphs, the Accused Products contain functionality 

which is material to at least one claim of the ‘360 Patent.

JURY DEMAND

Brazos hereby demands a jury on all issues so triable.

REQUEST FOR RELIEF

WHEREFORE, Brazos respectfully requests that the Court:

(A) Enter judgment that Defendants infringe one or more claims of the ‘360 Patent

literally and/or under the doctrine of equivalents;

(B) Enter judgment that Defendants have induced infringement and continue to induce 

infringement of one or more claims of the ‘360 Patent;

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(C) Enter judgment that Defendants have contributed to and continue to contribute to 

the infringement of one or more claims of the ‘360 Patent;

(D) Award Brazos damages, to be paid by Defendants in an amount adequate to 

compensate Brazos for such damages, together with pre-judgment and post-judgment interest for 

the infringement by Defendants of the ‘360 Patent through the date such judgment is entered in 

accordance with 35 U.S.C. § 284, and increase such award by up to three times the amount found 

or assessed in accordance with 35 U.S.C. § 284;

(E) Declare this case exceptional pursuant to 35 U.S.C. § 285; and

(F) Award Brazos its costs, disbursements, attorneys’ fees, and such further and 

additional relief as is deemed appropriate by this Court.

Dated: June 2, 2020 Respectfully submitted,

/s/ James L. Etheridge

James L. Etheridge

Texas State Bar No. 24059147 

Ryan S. Loveless

Texas State Bar No. 24036997 

Travis L. Richins

Texas State Bar No. 24061296

ETHERIDGE LAW GROUP, PLLC

2600 E. Southlake Blvd., Suite 120 / 324

Southlake, Texas 76092

Telephone: (817) 470-7249

Facsimile: (817) 887-5950

Jim@EtheridgeLaw.com

Ryan@EtheridgeLaw.com

Travis@EtheridgeLaw.com

COUNSEL FOR PLAINTIFF

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