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.

CIVIL ACTION 6:20-CV-00473-ADA

CIVIL ACTION 6:20-CV-00474-ADA

CIVIL ACTION 6:20-CV-00475-ADA

CIVIL ACTION 6:20-CV-00476-ADA

CIVIL ACTION 6:20-CV-00477-ADA

CIVIL ACTION 6:20-CV-00478-ADA

CIVIL ACTION 6:20-CV-00479-ADA

CIVIL ACTION 6:20-CV-00482-ADA

PATENT CASE

JURY TRIAL DEMANDED

WSOU INVESTMENTS, LLC D/B/A

BRAZOS LICENSING AND 

DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC., DELL INC., 

EMC CORPORATION, AND VMWARE, 

INC.,

 Defendants.

CIVIL ACTION 6:20-CV-00480-ADA

CIVIL ACTION 6:20-CV-00481-ADA

CIVIL ACTION 6:20-CV-00485-ADA

CIVIL ACTION 6:20-CV-00486-ADA

PATENT CASE

JURY TRIAL DEMANDED

DEFENDANTS’ REPLY IN SUPPORT OF ITS MOTION FOR DENIAL OF 

PLAINTIFF’S REQUEST FOR RECONSIDERATION OF 

ENTRY OF ACQUISITION BAR

Case 6:20-cv-00475-ADA Document 148 Filed 12/21/21 Page 1 of 9
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Defendants have shown good cause to prevent individuals with access to Defendants’ 

highly sensitive technical information from participating in the acquisition of patents in the same 

field of invention that are asserted or to be asserted against Defendants. Not once does WSOU 

contest that allowing such recipients to participate in a competitive decisionmaking activity such 

as acquisition creates a high risk of inadvertent disclosure. And, the Court’s acquisition bar is 

tailored to prevent that risk: Plaintiff has sought discovery of Defendants’ highly sensitive 

technical information related to the field of invention of the asserted patents, and recipients should 

not use that information, even if inadvertently, to inform decisions regarding the acquisition of 

patents to assert against Defendants in that very same field. That is sufficient under Federal Circuit 

standards to support entry of the Court’s acquisition bar, as other courts have repeatedly held.

Plaintiff fails to address the Federal Circuit’s framework articulated in Deutsche Bank, 

conflating Defendants’ proposal—a bar that conditions access to confidential information on the 

proscription of future competitive decisionmaking conduct—with one that bars access to 

confidential information on the basis of an individuals’ status as a “competitive decisionmaker.” 

While Plaintiff’s counsel has a long record of representing entities in the business of acquiring and 

asserting patents, including against Dell, the acquisition bar adopted here does not depend on any 

characterization of Plaintiff’s counsel or of any other recipients. Just as with the prosecution bar 

that Plaintiff has accepted, the Court’s acquisition bar is conduct specific rather than person

specific. Plaintiff is free to seek exceptions on a concrete basis where it can demonstrate no 

competitive decisionmaking concerns will arise, as contemplated by Deutsche Bank. 

Plaintiff’s brief instead attacks a strawman acquisition bar—that Defendants have not 

proposed and the Court has not adopted—describing the bar as precluding activity well beyond its 

actual scope. Rather than seeking to modify, clarify, or otherwise request individual exceptions

Case 6:20-cv-00475-ADA Document 148 Filed 12/21/21 Page 2 of 9
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as contemplated by the Federal Circuit, Plaintiff instead argues that the acquisition bar should be 

denied in its entirety. Plaintiff (and its counsel) protests too much. Tellingly, Plaintiff never once 

asserts that its outside litigation counsel with access to Defendants’ confidential technical 

information will not participate in what is indisputably competitive decisionmaking activity. 

Plaintiff’s smoke-screen approach attempts to distract from the concrete risk that Defendants’ 

highly sensitive technical material will be inadvertently used against Defendants. The Court 

should accordingly deny Plaintiff’s request for reconsideration and enter the Court’s acquisition 

bar.

Plaintiff applies the wrong legal framework. In “[p]araphrasing” Deutsch Bank and U.S. 

Steel (id.), Plaintiff ignores the distinction between a provision barring specific counsel from 

receiving information and a provision barring recipients of that information from specific conduct. 

Cf. U.S. Steel Corp. v. United States, 730 F.2d 1465, 1466 (Fed. Cir. 1984) (evaluating protective 

order with blanket denial of access to confidential information by “in-house counsel”). To sustain 

a bar against a group such as “in-house counsel,” the proponent of that protective order must 

demonstrate that their role as in-house counsel is one of competitive decisionmaking. Id. The 

other citations in Plaintiff’s opposition likewise address this inapposite structure. (See Opp. at 4, 

quoting MedImmune, Inc. v. Centocor, Inc., 271 F. Supp. 2d 762 (D. Md. 2003) (protective order 

dispute concerned “whether counsel for MedImmune ... should be allowed to view confidential 

and highly-confidential materials during the course of the litigation” because of status as 

“competitive decisionmaker”); id. at 5, quoting In re Dell Inc., 498 F. App'x 40, 41 (Fed. Cir. 

2012) (rejecting prohibition against access to confidential materials by entire law firm based on 

conflict presented by lead partner’s status as competitive decisionmaker).) 

Here, no such blanket prohibition is requested by Defendants. The Court’s acquisition bar 

Case 6:20-cv-00475-ADA Document 148 Filed 12/21/21 Page 3 of 9
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does not apply to “any attorney” because of their status as a competitive decisionmaker (Opp. at 

4)—it applies to everyone who accesses Defendants’ highly sensitive technical information and 

who would otherwise subsequently participate in competitive decisionmaking activities impacting 

Defendants. Defendants lack the discovery necessary to determine whether any of Plaintiff’s 

counsel 1 will participate in such competitive decisionmaking going forward. Whether any 

recipient of Defendants’ sensitive technical information is “subject to” the bar is up to that 

individual. Just as attorneys regularly make choices in representation that result in conflicts, 

potential recipients may choose whether to receive and/or review Defendants’ sensitive technical 

information or whether they would like to participate in competitive decisionmaking (adverse to 

Defendants) during the limited period of the acquisition bar. Defendants’ proposal is agnostic to 

their choice, but as Plaintiff does not dispute, no individual should be permitted to do both.

Plaintiff misquotes Deutsche Bank to suggest (at 1) that Defendants must show that the 

recipients of Defendants’ sensitive technical information pose a “heightened risk of inadvertent 

disclosure.” But in Deutsche Bank, the “heightened risk” is that presented by the competitive 

decisionmaking activities and the confidential information that is received, not the propensity of 

counsel to trigger the bar. In re Deutsche Bank Tr. Co. Americas, 605 F.3d 1373, 1380-81 (Fed. 

Cir. 2010). Use of Defendants’ “HIGHLY SENSITIVE TECHNICAL INFORMATION” in 

acquisition of patents in the same field to be asserted against Defendants poses such a heightened 

risk, as other courts have held. See, e.g., Google LLC v. Sonos, Inc., C.A. No. 20-03845-EMC-

 1 Plaintiff misunderstands the import of having nine additional law firms as trial counsel—

ten including the counsel from a new firm who appeared after Defendants’ brief was filed. (Opp. 

at 2-3.) Defendants’ point is that Plaintiff has numerous litigation counsel available without any 

need for those same counsel to participate in competitive decisionmaking against Defendants. 

Despite Plaintiff’s counsel’s protestations, Plaintiff suffers no prejudice, which does not appear to 

be disputed. Deutsche Bank, 605 F.3d at 1380 (instructing consideration of “harm to the opposing 

party from restrictions imposed on that party’s right to have the benefit of counsel of its choice”).

Case 6:20-cv-00475-ADA Document 148 Filed 12/21/21 Page 4 of 9
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TSH, 2021 WL 1621875, at *2 (N.D. Cal. Apr. 27, 2021); Intell. Ventures I, LLC v. Lenovo Grp. 

Ltd., C.A. No. 16-10860-PBS, 2019 WL 343242, at *4 (D. Mass. Jan. 25, 2019), reconsideration 

denied, 392 F. Supp. 3d 138 (D. Mass. 2019); EPL Holdings, LLC v. Apple Inc., No. C-12-04306 

JST JSC, 2013 WL 2181584, at *4 (N.D. Cal. May 20, 2013).

WSOU mischaracterizes the scope of the Court’s acquisition bar. The acquisition bar 

adopted here was copied (and now further narrowed) from this Court’s prior order in Multimedia 

Content Mgmt. LLC v. Dish Network L.L.C., C.A. No. 6:18-00207-ADA, D.I. 93 (W.D. Tex. Sept.

25, 2019) and is tailored to preclude only “acquisition” activities. The language is self-explanatory

and does not prohibit advising clients about the assertion of patents against “unrelated parties.” 

(Br. at 4-5 (Court’s acquisition bar limited to patents “to be asserted against Defendants”).) Nor 

do Defendants intend that the acquisition bar prohibit Plaintiff’s counsel from advising clients with 

respect to patents already at issue in these cases. If helpful to clarify the scope of the acquisition

bar, Defendants propose the following underlined addition:

... (c) directly or indirectly advise a patent holder, patent owner, company, or investor, or 

any of its subsidiaries or affiliates, on the selection or valuation (for potential acquisition)

of any patent or claim pertaining to the field of the invention of the patents-in-suit 

asserted or to be asserted against Defendants ....

To the extent “technical experts” and “document vendors” who have access to Defendants’ 

highly sensitive technical information would otherwise intend to participate in the acquisition or 

valuation of patents to be asserted against Defendants—an unlikely and unsupported conjecture 

(Opp. at 3.)—they too should be precluded from doing so. The touchstone is whether they will be 

engaged in “competitive decisionmaking” (against Defendants), not who they are. See Deutsche 

Bank, 605 F.3d at 1378. Regarding WSOU’s conjecture about document vendors being prohibited 

from “participating” in acquisition by hosting data rooms related to an acquisition deal, similar

creative hypotheticals can be contrived with respect to a prosecution bar. That is why the Federal 

Case 6:20-cv-00475-ADA Document 148 Filed 12/21/21 Page 5 of 9
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Circuit’s legal framework has a mechanism for Plaintiff to seek exceptions on an individual basis 

where non-competitive-decisionmaking conduct is swept in scope. Id. at 1381 (allowing 

exemptions on individual basis upon showing that individual’s conduct “does not and is not likely 

to implicate competitive decisionmaking related to the subject matter of the litigation”); Intell. 

Ventures I, 392 F. Supp. 3d at 141 (“IV is always free to seek exemptions from the bar on a counselby-counsel basis.”). That is no reason for the acquisition bar to be denied in its entirety. (See Opp. 

at 7 (quoting Google LLC v. Sonos, Inc., C.A. No. 20-03845-EMC-TSH, 2021 WL 1621875, at *2 

(N.D. Cal. Apr. 27, 2021) (emphatically confirming importance of acquisition bar but directing 

the parties to confer on narrowing to exclude certain administrative activities from the scope).)2

The scope of the bar is already narrower than the scope of the highly sensitive technical 

information that WSOU has requested. WSOU admits that “pertaining to the field of the 

invention”3 is appropriate for prosecution bars “where the scope of pending claims is in flux” 

(Opp. at 3), but offers no explanation for distinguishing patents and claims yet to be obtained by 

acquisition, including of pending applications, which is at least as “in flux” and as vast in scope. 

Plaintiff’s objection to an acquisition bar, but not a prosecution bar, confirms that recipients of 

Defendants’ sensitive technical information will participate in acquisition activities and thus 

underscores the importance of maintaining the acquisition bar.

For these reasons and those already set forth in Defendants’ prior briefing and oral 

argument, the Court should deny Plaintiff’s request for reconsideration.

 2 To the extent the Court considers the list of cases Plaintiff incorporates by reference to its 

December 9, 2021 email to the Court, the Court should give them little, if any, weight. Plaintiff

offers no comparison to the particular facts of this case, and many of the citations are simply 

protective order entries with no opinion, much less any analysis.

3 Defendants see no meaningful distinction between “field of the invention” and “subject 

matter of the litigation,” and Plaintiff provides none. (Opp. at 4.)

Case 6:20-cv-00475-ADA Document 148 Filed 12/21/21 Page 6 of 9
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Dated: December 21, 2021 By: /s/ Barry K. Shelton

Barry K. Shelton

Texas State Bar No. 24055029

bshelton@sheltoncoburn.com

SHELTON COBURN LLP

311 RR 620, Ste. 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 Ave.

NY, 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 St., Ste. 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 Rd.

Palo Alto, CA 94304-1211

Telephone: 650.849.5300

Facsimile: 650.849.5333

Emily M. Whitcher

ewhitcher@gibsondunn.com

Andrew P. Blythe

ablythe@gibsondunn.com

Case 6:20-cv-00475-ADA Document 148 Filed 12/21/21 Page 7 of 9
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Nathaniel R. Scharn

nscharn@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

3161 Michelson Drive

Irvine, CA 92612-4412

Telephone: 949.451.3800

Facsimile: 949.451.4220

Attorneys for Defendants

Case 6:20-cv-00475-ADA Document 148 Filed 12/21/21 Page 8 of 9
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 21st day of December, 2021, I caused the following 

parties and counsel to be served by electronic means by filing this document with the Court’s ECF 

system. 

/s/ Barry K. Shelton

Barry K. Shelton

Case 6:20-cv-00475-ADA Document 148 Filed 12/21/21 Page 9 of 9