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-00485-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 1 of 18
TABLE OF CONTENTS

Page

i

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

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

A. The ’309 Patent....................................................................................................... 2

B. The Accused Products............................................................................................. 3

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

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

B. Induced and Contributory Infringement ................................................................. 4

IV. ARGUMENT.......................................................................................................................5

A. Plaintiff Fails to State a Claim for Direct Infringement ......................................... 5

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

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

1. Plaintiff’s Indirect Infringement Claims Fail Without Direct 

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

2. Plaintiff Fails to Allege the Requisite Knowledge for Indirect 

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

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

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

4. Plaintiff Fails to Allege the Requisite Lack of Substantial 

Noninfringing Uses for Contributory Infringement.................................. 11

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

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 2 of 18
TABLE OF AUTHORITIES

Page(s)

ii

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, 11

Aguirre v. Powerchute Sports, LLC,

No. SA-10-CV-0702 XR, 2011 WL 2471299 (W.D. Tex. June 17, 2011) .........................9, 10

Artrip v. Ball Corp.,

735 F. App’x 708 (Fed. Cir. 2018) ....................................................................................11, 12

Ashcroft v. Iqbal,

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

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

C 11–04049 JW, 2012 WL 1030031 (N.D. Cal. Mar. 22, 2012).............................................10

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)...........................................................................................................4, 9

De La Vega v. Microsoft Corp.,

2020 WL 3528411 (W.D. Tex. Feb. 11, 2020)..........................................................................4

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

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

DSU Med. Corp. v. JMS Co.,

471 F.3d 1293 (Fed. Cir. 2006)................................................................................................10

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

909 F.3d 398 (Fed. Cir. 2018)................................................................................................4, 8

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 3 of 18
TABLE OF AUTHORITIES

(continued)

Page(s)

iii

Fujitsu Ltd. v. Netgear Inc.,

620 F.3d 1321 (Fed. Cir. 2010)..................................................................................................5

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)..............................................................................................4, 8

Irons v. City of Dallas,

2012 WL 1986585 (N.D. Tex. Apr. 4, 2012) ............................................................................7

Lormand v. US Unwired, Inc.,

565 F.3d 228 (5th Cir. 2009) .....................................................................................................4

O’Malley v. Brown Bros. Harriman & Co.,

No. SA-19-CV-0010-JKP, 2020 WL 1033658 (W.D. Tex. Mar. 3, 2020)................................7

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

No. 6:19-CV-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019)......................10, 11

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)...................................................................................................9, 10

Proxyconn Inc. v. Microsoft Corp.,

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

Tuchman v. DSC Commc’ns Corp.,

14 F.3d 1061 (5th Cir. 1994) .....................................................................................................7

Xpoint Technologies, Inc. v. Microsoft Corp.,

730 F. Supp. 2d 349 (D. Del. 2010).........................................................................................10

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 4 of 18
1

I. INTRODUCTION

The 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. 7,636,309 (the “’309 patent”), 

which relates to splitting traffic flows in a network according to a “split ratio vector.”

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

because it has not alleged that Defendants’ accused products meet each and every limitation of the 

claims. For instance, the claims specify that the “split ratio vector” used to split the traffic flows 

is “at least based in part on a ratio between a mean traffic rate of a cumulative flow on the 

respective corresponding path and a sum of mean traffic rates of cumulative flows on the plurality 

of paths.” Plaintiff, however, merely alleges “on information and belief” that the accused products

“use a split ratio vector.” D.I. 1 ¶ 21. But Plaintiff offers only a conclusory sentence and a website 

screenshot that in no way hint, let alone support a plausible inference, that the products split flows 

specifically according to the “split ratio vector,” or any other ratio relating to the “mean traffic 

rates” of “cumulative flows.” Furthermore, Plaintiff fails to allege that the accused products 

thereafter “combin[e] at least one of the sub-flows of each of at least two of the plurality of traffic 

flows” and “rout[e] the combined packets or bytes on one of the paths.” Instead, Plaintiff simply 

alleges without any explanation that “packets can be combined.” Id. ¶ 19 (emphasis added).

Plaintiff’s conclusory indirect infringement allegations also should be dismissed. For 

instance, they are based on Defendants’ purported knowledge of the patent only as of the date of 

service of the Complaint, which repeatedly has been held insufficient to meet the Iqbal/Twombly

standard. Plaintiff also fails to allege other key legal requirements, including specific intent for 

induced infringement and the lack of substantial noninfringing uses for contributory infringement.

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 5 of 18
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II. BACKGROUND

A. The ’309 Patent

Plaintiff filed the Complaint on June 2, 2020. Plaintiff asserts that Defendants directly and 

indirectly infringe at least claim 1 of the ’309 patent. D.I. 1 ¶¶ 22–23, 25–26. Claim 1 recites:

A method of processing traffic flows at a node in a network, comprising the steps 

of:

obtaining by the node a plurality of traffic flows, each of the traffic flows 

comprising multiple packets or bytes;

splitting by the node each of the plurality of traffic flows into at least two sub-flows, 

wherein each of the at least two sub-flows comprises a portion of the multiple 

packets or bytes from its respective traffic flow; and

routing by the node the packets or bytes of the at least two sub-flows respectively 

on at least two paths in the network;

wherein the routing step further comprises combining at least one of the sub-flows 

of each of at least two of the plurality of traffic flows and routing the combined 

packets or bytes on one of the paths;

wherein each traffic flow between the node and a given destination node is split 

based on a given split ratio vector into a plurality of sub-flows corresponding to 

respective ones of a plurality of paths between the node and the given destination 

node, and further wherein the given split ratio vector is configured such that the 

portion of the multiple packets or bytes assigned to each of the plurality of subflows is based at least in part on a ratio between a mean traffic rate of a 

cumulative flow on the respective corresponding path and a sum of mean 

traffic rates of cumulative flows on the plurality of paths.

’309 patent, 15:30–56 (emphasis added).

The ’309 patent relates to splitting traffic flows onto multiple paths of a network. Id. at 

3:5–8. A “traffic flow” “refers to a group (e.g., two or more) of packets that are to be routed in [a] 

network.” Id. at 2:63–65. A “path” “refers to a set of two or more nodes and one or more links 

between the nodes,” “nodes” are “elements in the network [that are] capable of transferring 

packets,” and “links” are “connections between the nodes.” Id. at 1:67–3:4. 

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 6 of 18
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The specification states that the claims involve “intra-flow splitting,” which is depicted 

below in Figure 1B. Id. at 4:8–30. X1 and X2 represent traffic flows that are to be split onto one 

of two paths (R1-R2-R3-R6 or R1-R4-R5-R6). Id. at 4:9–12, 4:15–19. Each traffic flow is split 

according to a “split ratio vector,” which is a mathematical equation represented as “q1” and “1-

q1.” Id. at 4:15–19. Claim 1 recites that the “split ratio vector” is “based at least in part on a ratio 

between [1] a mean traffic rate of a cumulative flow on the respective corresponding path and [2] a 

sum of mean traffic rates of cumulative flows on the plurality of paths.” Id. at 15:51–56.

After the traffic flows are split into “sub-flows,” “at least one of the sub-flows of each of 

at least two of the plurality of traffic flows” are “combin[ed],” and then the “combined” sub-flows 

are “rout[ed]” together “on one of the paths” in the network. Id. at 15:38–45. 

B. The Accused Products

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

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

Products”) infringe the ’309 patent claims. D.I. 1 ¶ 15. Plaintiff alleges that the Accused Products 

“have a variety of features and capabilities including Dynamic Multipath Optimization (DPMO) 

technology,” and can “process[] . . . traffic flows at a node in a network.” Id. ¶ 16. 

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 7 of 18
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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 they “allow[] the court to draw 

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

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 8 of 18
5

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 

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 each and every limitation

of the ’309 patent claims, including the following key claim limitations: (1) splitting traffic flows 

according to a “split ratio vector,” which is “based at least in part on a ratio between a mean traffic 

rate of a cumulative flow on the respective corresponding path and a sum of mean traffic rates of 

cumulative flows on the plurality of paths”; and (2) “combining at least one of the sub-flows of 

each of at least two of the plurality of traffic flows and routing the combined packets or bytes on 

one of the paths.”

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 9 of 18
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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. 

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)). 

Split Ratio Vector. Here, the “split ratio vector” limitation is particularly significant 

because, during prosecution, the applicant overcame an obviousness rejection and obtained 

allowance specifically by following the examiner’s suggestion to amend the claim to add the 

limitation. Rosenthal Decl., Ex. A (6/5/09 Response and Amendment) at 2, 8 (“Applicants believe 

that this amendment alone is sufficient to overcome the present § 103 rejections . . . Applicants 

have further amended the independent claims in the manner suggested by the examiner in the 

aforementioned telephone interviews.”); see also Ex. B (8/12/09 Examiner Interview Summary)

at 1–5.

In the Complaint, however, Plaintiff fails to set forth any plausible basis that the Accused 

Products meet this key claim limitation. Plaintiff simply alleges “[o]n information and belief” that 

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 10 of 18
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the “Accused Products use a split ratio vector.” D.I. 1 ¶ 21. But Plaintiff offers no facts at all to 

support this assertion. “[B]asing a claim on information and belief,” however, “does not permit

[such] reliance ‘on speculation and conclusory allegations.’” O’Malley v. Brown Bros. Harriman 

& Co., No. SA-19-CV-0010-JKP, 2020 WL 1033658, at *8 (W.D. Tex. Mar. 3, 2020) (quoting 

Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994)); see also Irons v. City of 

Dallas, 2012 WL 1986585, at *4 (N.D. Tex. Apr. 4, 2012) (holding that allegations made on 

“information and belief,” “[w]ithout any facts to support” them, are “no more than conclusory 

allegations” that are insufficient under the Iqbal/Twombly standard).

Instead, Plaintiff vaguely states that the Accused Products “take into account the real-time 

WAN performance, such as which paths are in use, automatically decide which paths should be 

used for the flow, and then perform resequencing at the destination to ensure the packets reach the 

destination in a sequential manner.” D.I. 1 ¶ 21. But neither this bare assertion nor Plaintiff’s 

website screenshot provides even a hint that the Accused Products split traffic flows according to 

anything resembling a “split ratio vector,” or a “ratio between” (1) “a mean traffic rate of a 

cumulative flow on the respective corresponding path” and (2) “a sum of mean traffic rates of 

cumulative flows on the plurality of paths.” Plaintiff merely assumes without any basis that,

simply because Plaintiff believes the Accused Products may “decide which paths should be used 

for the flow,” they must be doing so by using this specific “split ratio vector” that is claimed. Id.

¶ 21. This is nothing more than a conclusory allegation that cannot possibly satisfy the 

Iqbal/Twombly standard.

Combining Sub-Flows. Plaintiff also fails to allege that, after any such flow splitting 

(using the split ratio vector or otherwise), the Accused Products specifically “combin[e] at least 

one of the sub-flows of each of at least two of the plurality of traffic flows” that have been split 

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 11 of 18
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“and rout[e] the combined packets or bytes on one of the paths.” At most, Plaintiff broadly 

concludes that “packets can be combined,” without any additional explanation. Id. ¶ 19 (emphasis 

added). But Plaintiff does not allege that the Accused Products actually split traffic flows into 

“sub-flows” (by using a split ratio vector or otherwise), “combin[e]” those “sub-flows of each of 

at least two . . . traffic flows,” and then “rout[e]” those “combined packets . . . on one of the 

paths”—as the ’309 patent claims require. And neither of the two screenshots on which Plaintiff 

relies even suggests that the Accused Products carry out any one of these steps. Id.

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

limitation of the ’309 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 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 

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 there are no substantial noninfringing 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 (“A finding of direct infringement is predicate to any finding of indirect infringement 

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 12 of 18
9

. . . .”). 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 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 ‘309 Patent since at least the date of service of this Complaint.” D.I. 1 ¶ 24 (emphasis 

added).1

 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.) (emphasis 

added), ¶ 44; see id., at Feb. 20, 2020 Text Order GRANTING D.I. 54 (W.D. Tex. Feb. 20, 2020) 

1 Plaintiff’s allegation of knowledge of infringement is likewise deficient as it alleges such 

knowledge only “[s]ince at least the date of service of this Complaint.” D.I. 1 ¶¶ 25–26; 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)).

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 13 of 18
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(dismissing indirect infringement claims). Like the allegations in Parus, Plaintiff fails to allege 

pre-suit knowledge and thus fails to state a claim for indirect infringement. See id.; Aguirre, 2011 

WL 2471299, at *3; 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.”).2

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., 471 F.3d 

1293, 1306 (Fed. Cir. 2006)) (emphasis added). Plaintiff’s allegations of specific intent amount 

to a single conclusory statement that Defendants “actively induced” others to infringe through their 

advertising and promotional materials and some website citations. See D.I. 1 ¶ 25. Such 

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

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

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

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

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

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

(C.D. Cal. May 16, 2012); Brandywine, 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-00485-ADA Document 32 Filed 10/05/20 Page 14 of 18
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acts infringed, and (2) Defendants knew that the promotion of their products would induce or 

encourage others to infringe the ’309 patent. See Addiction, 620 F. App’x at 938 (“[S]imply 

recit[ing] the legal conclusion that Defendants acted with specific intent” fails to plead “facts that 

would allow a court to reasonably infer that Defendants had the specific intent to induce 

infringement.”); Affinity Labs, 2014 WL 2892285, at *7, *21 (finding “Plaintiffs generalized 

allegations that Toyota induced others to infringe the Asserted Patents through its marketing and 

sales tactics are [] insufficient”). To support specific intent, Plaintiff must include specific 

allegations mapping the advertisement or promotion to the performance of the claimed steps of the 

patent—i.e., “evidence of culpable conduct, direct to encouraging another’s infringement.” Parity, 

2019 WL 3940952, at *2.3

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

on a key requirement of induced infringement.

4. Plaintiff Fails to Allege the Requisite Lack of Substantial 

Noninfringing Uses for Contributory Infringement 

Plaintiff’s contributory infringement allegations also fail because Plaintiff did not “‘plead 

facts that allow an inference that the components sold or offered for sale have no substantial noninfringing uses.’” Artrip v. Ball Corp., 735 F. App’x 708, 713 (Fed. Cir. 2018) (citations omitted). 

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

conclusory statement that repeats the legal elements. See D.I. 1 ¶ 26. As the Federal Circuit held 

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-00485-ADA Document 32 Filed 10/05/20 Page 15 of 18
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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 

noninfringing 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, 

without leave to amend. Pursuant to L.R. CV-7(h), Defendants request an oral hearing on the 

foregoing motion.

Case 6:20-cv-00485-ADA Document 32 Filed 10/05/20 Page 16 of 18
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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-00485-ADA Document 32 Filed 10/05/20 Page 17 of 18
14

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-00485-ADA Document 32 Filed 10/05/20 Page 18 of 18