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-475-ADA

Case No. 6:20-cv-477-ADA

Case No. 6:20-cv-478-ADA

Case No. 6:20-cv-479-ADA

NOTICE OF SUBPOENA DIRECTED TO THIRD-PARTY BERNARD ZUCKER

PLEASE TAKE NOTICE that, pursuant to Rule 45 of the Federal Rules of Civil 

Procedure, Defendants intend to serve the attached subpoena on Bernard Zucker on or after May 

27, 2021. The subpoena requests that Mr. Zucker produce all documents and things requested in 

Appendix A to the attached subpoena. The documents and things are to be produced on or before 

5:00 p.m. on June 18, 2021, or on another mutually agreeable date, at the offices of Shelton Coburn

LLP, 311 Ranch Road 620 S, Suite 205, Austin, Texas 78734-4775 USA, or at another mutually 

agreeable location. The deposition shall be upon oral examination before an officer authorized to 

administer oaths and shall be recorded by audio, videographic, and/or stenographic means. The 

deposition will take place on one day. Defendants will take up to 7 hours of deposition testimony.

Dated: May 27, 2021 By: /s/ Barry K. Shelton

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 1 of 103
2

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

Attorney for Defendants

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 2 of 103
AO 88A (Rev. /) Subpoena to Testify at a Deposition in a Civil Action 

UNITED STATES DISTRICT COURT

for the

__________ District of __________

)

)

)

)

)

)

Plaintiff

v. Civil Action No.

Defendant

SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION

To:

(Name of person to whom this subpoena is directed)

u 7HVWLPRQ\<28$5(&200$1'('WRDSSHDUDWWKHWLPHGDWHDQGSODFHVHWIRUWKEHORZWRWHVWLI\DWD

GHSRVLWLRQWREHWDNHQLQWKLVFLYLODFWLRQ,I\RXDUHDQRUJDQL]DWLRQ\RXPXVWSURPSWO\FRQIHULQJRRGIDLWKZLWKWKH

SDUW\VHUYLQJWKLVVXESRHQDDERXWWKHIROORZLQJPDWWHUVRUWKRVHVHWIRUWKLQDQDWWDFKPHQWDQG\RXPXVWGHVLJQDWHRQH

RUPRUHRIILFHUVGLUHFWRUVRUPDQDJLQJDJHQWVRUGHVLJQDWHRWKHUSHUVRQVZKRFRQVHQWWRWHVWLI\RQ\RXUEHKDOIDERXW

WKHVHPDWWHUV

Place: Date and Time:

The deposition will be recorded by this method:

u Production: You, or your representatives, must also bring with you to the deposition the following documents, 

electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the

material:

The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;

Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to

respond to this subpoena and the potential consequences of not doing so.

Date:

CLERK OF COURT

OR

Signature of Clerk or Deputy Clerk Attorney’s signature

The name, address, e-mail address, and telephone number of the attorney representing (name of party)

, who issues or requests this subpoena, are:

Notice to the person who issues or requests this subpoena

If this subpoena commands the production of documents, electronically stored information, or tangible things before

trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to

whom it is directed. Fed. R. Civ. P. 45(a)(4).

'HYHORSPHQW

FY

FY

FY

FY

 Western District of Texas

WSOU Investments, LLC d/b/a Brazos Licensing &

Dell Technologies Inc., Dell Inc., and EMC

Corporation

Bernard Zucker

General Counsel, Bell Labs and Special Projects, Nokia of America Corporation

✔

See Appendix A, attached hereto.

Location of deposition

to be determined. 06/25/2021 9:00 am

Stenographic and videotape

✔

See Appendix A, attached hereto. Please produce documents on or before June 18, 2021 to

Barry Shelton, Shelton Coburn LLP, 311 Ranch Road 620 S, Suite 205, Austin, Texas

78734-4775; bshelton@sheltoncoburn.com.

/s/ Barry Shelton

Dell Technologies

Inc., Dell Inc., and EMC Corporation

Barry Shelton | Shelton Coburn LLP, 311 Ranch Rd 620 S, Ste 205, Austin, Texas 78734-4775 | (512) 263-2165

bshelton@sheltoncoburn.com

5/27/2021

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 3 of 103
AO 88A (Rev. 2/) Subpoena to Testify at a Deposition in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)

I received this subpoena for (name of individual and title, if any)

on (date) .

u I served the subpoena by delivering a copy to the named individual as follows:

on (date) ; or

u I returned the subpoena unexecuted because:

.

Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also

tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of

$ .

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:

Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc.:

FY

FY

FY

FY

0.00

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 4 of 103
AO 88A (Rev. 2/) Subpoena to Testify at a Deposition in a Civil Action (Page 3)

Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)

(c) Place of Compliance.

(1) For a Trial, Hearing, or Deposition. A subpoena may command a

person to attend a trial, hearing, or deposition only as follows:

(A) within 100 miles of where the person resides, is employed, or

regularly transacts business in person; or

(B) within the state where the person resides, is employed, or regularly

transacts business in person, if the person

(i) is a party or a party’s officer; or

(ii) is commanded to attend a trial and would not incur substantial

expense.

(2) For Other Discovery. A subpoena may command:

(A) production of documents, electronically stored information, or

tangible things at a place within 100 miles of where the person resides, is

employed, or regularly transacts business in person; and

(B) inspection of premises at the premises to be inspected.

(d) Protecting a Person Subject to a Subpoena; Enforcement.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney

responsible for issuing and serving a subpoena must take reasonable steps

to avoid imposing undue burden or expense on a person subject to the

subpoena. The court for the district where compliance is required must

enforce this duty and impose an appropriate sanction—which may include

lost earnings and reasonable attorney’s fees—on a party or attorney who

fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance Not Required. A person commanded to produce

documents, electronically stored information, or tangible things, or to

permit the inspection of premises, need not appear in person at the place of

production or inspection unless also commanded to appear for a deposition,

hearing, or trial.

(B) Objections. A person commanded to produce documents or tangible

things or to permit inspection may serve on the party or attorney designated

in the subpoena a written objection to inspecting, copying, testing, or

sampling any or all of the materials or to inspecting the premises—or to

producing electronically stored information in the form or forms requested.

The objection must be served before the earlier of the time specified for

compliance or 14 days after the subpoena is served. If an objection is made,

the following rules apply:

(i) At any time, on notice to the commanded person, the serving party

may move the court for the district where compliance is required for an

order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the

order must protect a person who is neither a party nor a party’s officer from

significant expense resulting from compliance.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the court for the district where

compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person to comply beyond the geographical limits

specified in Rule 45(c);

(iii) requires disclosure of privileged or other protected matter, if no

exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a

subpoena, the court for the district where compliance is required may, on

motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development,

or commercial information; or

(ii) disclosing an unretained expert’s opinion or information that does

not describe specific occurrences in dispute and results from the expert’s

study that was not requested by a party.

(C) Specifying Conditions as an Alternative. In the circumstances

described in Rule 45(d)(3)(B), the court may, instead of quashing or

modifying a subpoena, order appearance or production under specified

conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be

otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(e) Duties in Responding to a Subpoena.

(1) Producing Documents or Electronically Stored Information. These

procedures apply to producing documents or electronically stored

information:

(A) Documents. A person responding to a subpoena to produce documents

must produce them as they are kept in the ordinary course of business or

must organize and label them to correspond to the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified.

If a subpoena does not specify a form for producing electronically stored

information, the person responding must produce it in a form or forms in

which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The

person responding need not produce the same electronically stored

information in more than one form.

(D) Inaccessible Electronically Stored Information. The person

responding need not provide discovery of electronically stored information

from sources that the person identifies as not reasonably accessible because

of undue burden or cost. On motion to compel discovery or for a protective

order, the person responding must show that the information is not

reasonably accessible because of undue burden or cost. If that showing is

made, the court may nonetheless order discovery from such sources if the

requesting party shows good cause, considering the limitations of Rule

26(b)(2)(C). The court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information

under a claim that it is privileged or subject to protection as trial-preparation

material must:

(i) expressly make the claim; and

(ii) describe the nature of the withheld documents, communications, or

tangible things in a manner that, without revealing information itself

privileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a

subpoena is subject to a claim of privilege or of protection as

trial-preparation material, the person making the claim may notify any party

that received the information of the claim and the basis for it. After being

notified, a party must promptly return, sequester, or destroy the specified

information and any copies it has; must not use or disclose the information

until the claim is resolved; must take reasonable steps to retrieve the

information if the party disclosed it before being notified; and may promptly

present the information under seal to the court for the district where

compliance is required for a determination of the claim. The person who

produced the information must preserve the information until the claim is

resolved.

(g) Contempt.

The court for the district where compliance is required—and also, after a

motion is transferred, the issuing court—may hold in contempt a person

who, having been served, fails without adequate excuse to obey the

subpoena or an order related to it.

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 5 of 103
APPENDIX A

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 6 of 103
EXHIBIT 1

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 7 of 103
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DOCUMENTS REQUESTED

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

“Defendants”) request the production of the documents described below.

DEFINITIONS

The following definitions are applicable to terms employed in responding to this request:

1. “Accused Product” or “Accused Products” shall refer to any device, product, or other thing 

that Plaintiff is permitted to accuse of infringing the Asserted Patent in this Action. A copy 

of the Complaint in case numbers 6:20-cv-00475-ADA, 6:20-cv-00477-ADA, 6:20-cv00478-ADA, 6:20-cv-00479-ADA is attached as Exhibit 3. In referring to any device, 

product, or other thing as an “Accused Product,” Defendants in no way communicate their 

agreement that it infringes the Asserted Patent.

2. “Action” shall refer to the above-captioned proceeding in the United States District Court 

for the Western District of Texas, with case numbers 6:20-cv-00475-ADA, 6:20-cv-00477-

ADA, 6:20-cv-00478-ADA, 6:20-cv-00479-ADA.

3. “Asserted Claim” shall refer to each claim of the Asserted Patent that Plaintiff contends 

Defendants infringe. 

4. “Asserted Patent(s)” shall refer individually and collectively to U.S. Patent Nos. 7,126,921; 

7,453,888; 8,402,129; 8,913,489 and any patent applications related thereto. 

5. “Communication” shall mean, without limitation, any written, oral, or other transmission 

of information, including but not limited to emails.

6. “Complaint” shall refer to the Complaint (including exhibits) that Plaintiff filed on June 2, 

2020 as docket number 1 in this Action, the Amended Complaint filed on October 19, 

2020, and any other amended complaints thereafter. 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 8 of 103
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7. “Concerning,” “refer(s) to,” “related to,” “reflecting,” and “relating to” shall mean directly 

or indirectly relating to, referring to, mentioning, reflecting, pertaining to, evidencing, 

illustrating, involving, describing, discussing, commenting on, embodying, responding to, 

supporting, contradicting, or constituting (in whole or in part), as the context makes 

appropriate.

8. “Defendants” or “Defendant” shall refer to Dell Technologies Inc., Dell Inc., and EMC 

Corporation, and any and all of their then-current or prior subsidiaries, parents, affiliates, 

divisions, successors, predecessors, agents, employees, representatives, directors, officers, 

trustees, and attorneys, or any other person or entity acting in whole or in part in concert 

with any of the foregoing, directly or indirectly. 

9. “Document” shall include, without limitation, all documents, electronically stored 

information, and tangible things within the scope of the Federal Rules of Civil Procedure, 

including Rule 34. Federal Rules of Civil Procedure 34 permits discovery of: “(A) 

documents or electronically stored information—including writings, drawings, graphs, 

charts, photographs, sound recordings, images, and other data or data compilations—stored 

in any medium from which information can be obtained either directly or, if necessary, 

after translation by the responding party into a reasonably usable form; or (B) any 

designated tangible things.” 

10. “Earliest Priority Date” shall refer to: Mar. 20, 2002 for U.S. Pat. No. 7,126,921; August 

27, 2002 for U.S. Pat. No. 7,453,888; March 21, 2001 for U.S. Pat. No. 8,402,129; August 

4, 2010 for U.S. Pat. No. 8,913,489.

11. “Employee” shall refer to any officer, director, partner, employee, representative, or agent.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 9 of 103
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12. “Licensee(s)” shall refer to any entity having a license, assignment, covenant not to sue, or 

other understanding, written, oral or implied, that the entity has any rights to the Asserted 

Patent, any Related Patents, or any Related Applications, may practice one or more claims 

of the Asserted Patent and/or that Plaintiff will not file suit or otherwise enforce against 

that entity one or more claims of the Asserted Patent or any Related Patent or Related 

Application.

13. “Named Inventor” shall refer to any individual who is listed as an inventor on the Asserted 

Patent or any Related Patent or Related Application thereof.

14. “Person” shall refer to any natural person, firm, association, partnership, government 

agency, corporation, proprietorship, or other entity and its officers, directors, partners, 

employee, representatives, and agents.

15. The terms “Plaintiff,” and/or “WSOU” shall refer to the responding Plaintiff WSOU 

Investments, LLC d/b/a Brazos Licensing and Development, and any and all of its thencurrent or prior subsidiaries, parents, affiliates, divisions, successors, predecessors, agents, 

employees, representatives, directors, officers, trustees, and attorneys, or any other person 

or entity acting in whole or in part in concert with any of the foregoing, directly or 

indirectly.

16. “Prior Art” encompasses, without limitation, the subject matter described in each and every 

subdivision of 35 U.S.C. §§ 102 and 103, and includes, but is not limited to, memoranda, 

notes, manuals, interviews, testing data, disclosures, prototypes, correspondence, 

drawings, papers, articles, patents, printed publications, public uses, demonstrations, offers 

for sale or license, and sales.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 10 of 103
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17. “Product(s)” means a machine, manufacture, apparatus, device, instrument, mechanism, 

appliance, software, service, process, or an assemblage of components/parts (either 

individually or collectively) that are designed to function together electronically, 

mechanically, or otherwise, including any offered for sale or under development.

18. “Related Application(s)” means any and all applications related to the Asserted Patent, 

including any provisional or non-provisional applications, continuations, continuations- inpart, divisions, interferences, reexaminations, re-issues, parents, foreign counterpart 

applications, and any other applications disclosing, describing or claiming any invention 

disclosed, described or claimed in the Asserted Patent, or claiming the benefit of the filing 

date of any application whose benefit is claimed in the Asserted Patent, whether or not 

abandoned and whether or not issued.

19. “Related Patent(s)” means any and all U.S. or foreign patents based upon or related to any 

Related Application(s) or Asserted Patent, including any patents or applications that may 

have been opposed, reexamined, re-issued or subjected to any validity or nullity 

proceeding.

20. “Third Party” shall refer to any person other than Plaintiff or Defendants.

21. “You,” “Your,” “Yours” shall refer to Bernard Zucker (General Counsel - Bell Labs and 

Special Projects at Nokia Bell Labs), and any and all of its then-current or prior 

subsidiaries, parents, affiliates, divisions, successors, predecessors, agents, employees, 

representatives, directors, officers, trustees, and attorneys, or any other person or entity 

acting in whole or in part in concert with any of the foregoing, directly or indirectly.

22. Any pronouns shall be construed to refer to the masculine, feminine, or neutral gender, in 

singular or plural, as in each case is most appropriate.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 11 of 103
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23. The singular form of any word shall be construed to also include the plural, and vice-versa.

24. The word “each” shall be construed to mean “each and every.”

25. The words “and” and “or” shall be construed conjunctively or disjunctively, whichever 

makes the request more inclusive.

26. The words “any” and “all” shall be construed to mean “any and all.”

INSTRUCTIONS

1. In responding to the document requests set forth below, please furnish all responsive and 

non-privileged information that is available to You.

2. If production of any responsive Documents are being withheld on the ground of the 

attorney-client privilege, attorney work product, or any other privilege, immunity, or 

protection, please provide a privilege log with the following information for each such 

Document: (a) the name of the Document; (b) the name of the person(s) who prepared the 

Document; (c) the name of the person(s) to whom the Document was directed or circulated; 

(d) the date(s) on which the Document was prepared or transmitted; (e) the name of the 

person(s) now in possession of the Document; (f) a description of the subject matter of the 

Document; and (g) the specific nature of the privilege or protection claimed with respect 

to the Document.

3. The Court’s interim protective order in the Order Governing Proceedings shall govern the 

disclosure of confidential information in this Action. See Exhibit 4 at pp. 3–4.

4. Upon entry of a final protective order in this matter that protective order shall govern the 

disclosure of confidential information in this Action.

DOCUMENT REQUESTS

1. Documents and Communications concerning the preparation, filing, or 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 12 of 103
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prosecution of any of the patent applications related to the Asserted Patent. This includes, but is 

not limited to:

a. A complete copy of the prosecution history and prosecution files for the 

Asserted Patent;

b. Drafts of the patent applications, drawings, and documents in the 

possession, custody, or control of You or any attorney or agent involved 

in the prosecution of the Asserted Patent, except to the extent these 

documents are entitled to attorney-client privilege or work product 

protection;

c. Patents, patent applications, or other publications reviewed in connection 

with the prosecution by anyone who participated in the prosecution of the 

Asserted Patent; 

d. Prior Art cited or considered in connection with the prosecution of the 

Asserted Patent;

e. Internal memoranda and internal Communications regarding the 

prosecution of the Asserted Patent; and

f. Documents referring or relating to or evidencing any decision by You, on 

Your behalf, or that You are aware of regarding what documents 

(including without limitation patents or printed publications) to cite 

during prosecution of the Asserted Patent.

2. Documents and Communications concerning the preparation, filing, or 

prosecution of any of the patent applications related to Related Patents and Related Applications. 

This includes, but is not limited to:

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 13 of 103
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a. A complete copy of the prosecution histories and prosecution files for 

any Related Patents and Related Applications;

b. Drafts of patent applications, drawings, and documents in the possession, 

custody, or control of You or any attorney or agent involved in the 

prosecution of any Related Patents or Related Applications, except to the 

extent these documents are entitled to attorney-client privilege or work 

product protection;

c. Patents, patent applications, or other publications reviewed in connection 

with the prosecution by anyone who participated in the prosecution of 

any Related Patents or Related Applications; 

d. Prior Art cited or considered in connection with the prosecution of any 

Related Patents or Related Applications;

e. Internal memoranda and internal Communications regarding the 

prosecution of any Related Patents or Related Applications; and

f. Documents referring or relating to or evidencing any decision by You, on 

Your behalf, or that You are aware of regarding what documents 

(including without limitation patents or printed publications) to cite 

during prosecution of any Related Patents or Related Applications.

3. Documents and Communications concerning the preparation, filing, or 

prosecution of any of the patent applications related to U.S. Pat. App. No. 10/227,872.

1

 This 

includes, but is not limited to:

 1 U.S. Pat. App. No. 10/227,872 is a related application to the ’888 patent that forms the basis 

for an improper inventorship defense.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 14 of 103
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a. A complete copy of the prosecution history and prosecution files for U.S. 

Pat. App. No. 10/227,872;

b. Drafts of the patent applications, drawings, and documents in the 

possession, custody, or control of You or any attorney or agent involved 

in the prosecution of U.S. Pat. App. No. 10/227,872, except to the extent 

these documents are entitled to attorney-client privilege or work product 

protection;

c. Patents, patent applications, or other publications reviewed in connection 

with the prosecution by anyone who participated in the prosecution of 

U.S. Pat. App. No. 10/227,872; 

d. Prior Art cited or considered in connection with the prosecution of U.S. 

Pat. App. No. 10/227,872;

e. Internal memoranda and internal Communications regarding the 

prosecution of U.S. Pat. App. No. 10/227,872; and

f. Documents referring or relating to or evidencing any decision by You, on 

Your behalf, or that You are aware of regarding what documents 

(including without limitation patents or printed publications) to cite 

during prosecution of U.S. Pat. App. No. 10/227,872.

4. Documents and Communications concerning the conception, diligence, research, 

testing, design, development, and reduction to practice (actual or constructive), or any other 

development of any element and/or limitation of any of the inventions described and/or claimed 

in the U.S. Pat. App. No. 10/227,872, covering the period of alleged conception of each invention 

through the last action taken by, or on behalf of any inventor or any assignee in connection with 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 15 of 103
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the prosecution of the Asserted Patent or any Related Patent or Related Application. This 

includes, but is not limited to:

a. Communications, studies, comparisons, reports, surveys, evaluations, 

opinions, or memorandums regarding the conception, testing, 

development, and reduction to practice of the subject matter described 

and/or claimed in U.S. Pat. App. No. 10/227,872;

b. Statements (whether written, recorded, or otherwise made), articles, 

abstracts, publications, Product literature, or other papers (including, but 

not limited to, internal technical memoranda) made by any of the Named 

Inventors relating to the subject matter described and/or claimed in U.S. 

Pat. App. No. 10/227,872;

c. Laboratory notebooks, technical files, diaries, appointment calendars, 

and trip reports, in complete unredacted form, of the Named Inventors of, 

or referring to subject matter described and/or claimed in U.S. Pat. App. 

No. 10/227,872; and

d. Documents relating to the identity of or concerning the contribution of 

any Person (whether or not named as an inventor), in any way, to the 

conception, research, testing, design, and reduction to practice (actual or 

constructive), or any other development of any element and/or limitation 

of any of the inventions described and/or claimed in U.S. Pat. App. No. 

10/227,872.

5. Documents and Communications related to each effort by You, on Your behalf, 

or that You are aware of to obtain patent protection, in the United States or in the countries 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 16 of 103
- 11 -

designated in the PCT application for the Asserted Patent, for the subject matter described and/or 

claimed in the Asserted Patent, covering the period from the Earliest Priority Date through the 

date of the last action taken by, or on behalf of, any inventor or any assignee in connection with 

the prosecution of the Asserted Patent or any Related Patent or Related Application. 

6. Communications, studies, comparisons, reports, surveys, evaluations, opinions, or 

memorandums regarding the conception of the subject matter described and/or claimed in the 

Asserted Patent, prior to the Earliest Priority Date.

7. Communications, studies, comparisons, reports, surveys, evaluations, opinions, or 

memorandums regarding the conception of the subject matter described and/or claimed in U.S. 

Pat. App. No. 10/227,872 or any Related Patents or Related Applications.

8. Communications, studies, comparisons, reports, surveys, evaluations, opinions, or 

memorandums regarding the testing, design, and development of the subject matter described 

and/or claimed in the Asserted Patent, prior to the date of the last action taken by, or on behalf 

of, any inventor or any assignee in connection with the prosecution of the Asserted Patent, U.S. 

Pat. App. No. 10/227,872, or any Related Patent or Related Application.

9. Communications, studies, comparisons, reports, surveys, evaluations, opinions, or 

memorandums regarding the reduction to practice of the subject matter described and/or claimed 

in the Asserted Patent, prior to the date of the last action taken by, or on behalf of, any inventor

or any assignee in connection with the prosecution of the Asserted Patent, U.S. Pat. App. No. 

10/227,872, or any Related Patent or Related Application.

10. Statements, articles, abstracts, publications, and Product literature made by, or 

under the direction of, any of the Named Inventors concerning the subject matter described and/or 

claimed in the Asserted Patent, prior to the date of the last action taken by, or on behalf of, any 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 17 of 103
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inventor or any assignee in connection with the prosecution of the Asserted Patent, U.S. Pat. App. 

No. 10/227,872, or any Related Patent or Related Application.

11. Laboratory notebooks, technical memoranda, technical files, diaries, appointment 

calendars, and trip reports, in complete unredacted form, of the Named Inventors, or made under 

the direction of the Named Inventors, concerning the subject matter described and/or claimed in 

the Asserted Patent, prior to the date of the last action taken by, or on behalf of, any inventor or 

any assignee in connection with the prosecution of the Asserted Patent, U.S. Pat. App. No. 

10/227,872, or any Related Patent or Related Application.

12. Documents sufficient to identify any Person (whether or not named as an inventor) 

involved in the conception, research, testing, design, development, and reduction to practice of 

any element of any of the inventions described and/or claimed in the Asserted Patent, and to 

understand their role, prior to the date of the last action taken by, or on behalf of, any inventor or 

any assignee in connection with the prosecution of the Asserted Patent or any Related Patent or 

Related Application.

13. Documents sufficient to identify any Person (whether or not named as an inventor) 

involved in the conception, research, testing, design, development, and reduction to practice of 

any element of any of the inventions described and/or claimed in U.S. Pat. App. No. 10/227,872, 

and to understand their role, prior to the date of the last action taken by, or on behalf of, any 

inventor or any assignee in connection with the prosecution of the Asserted Patent or any Related 

Patent or Related Application.

14. Communications, studies, comparisons, reports, surveys, evaluations, opinions, or 

memorandums that concern or show the structure, functions, or operation of, or that constitute 

embodiments of, any invention disclosed or claimed in the Asserted Patent, regardless of whether 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 18 of 103
- 13 -

such embodiment was commercialized, and regardless of whether or not it worked properly, from 

the Earliest Priority Date to the present.

15. Communications, studies, comparisons, reports, surveys, evaluations, opinions, or 

memorandums that concern or show the structure, functions, or operation of, or that constitute 

embodiments of, any invention disclosed or claimed in the U.S. Pat. App. No. 10/227,872, 

regardless of whether such embodiment was commercialized, and regardless of whether or not it 

worked properly, from the Earliest Priority Date to the present.

16. Documents and Communications relating to Your assignment policies with 

inventors applicable to the invention described and/or claimed in the Asserted Patent. This 

includes but is not limited to:

a. Assignment agreements with the inventors of the inventions described 

and/or claimed in the Asserted Patent;

b. Cost-sharing or profit-sharing agreements with the inventors of the 

inventions described and/or claimed in the Asserted Patent; and

c. Remuneration agreements with inventors of the inventions described 

and/or claimed in the Asserted Patent.

17. Communications, studies, comparisons, reports, surveys, evaluations, opinions, or 

memorandums concerning any of the following activities with regard to the subject matter 

described and/or claimed in the Asserted Patent:

a. First written description and/or drawing of such subject matter;

b. First publication of such subject matter;

c. First promotion of such subject matter;

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 19 of 103
- 14 -

d. First advertisement of such subject matter;

e. First offer for sale of such subject matter;

f. First sale of such subject matter;

g. First public disclosure of such subject matter;

h. First public use of such subject matter; and

i. Experimental uses or alleged experimental uses of such subject matter.

18. Documents concerning the making, using, testing, selling, or disclosure, anywhere 

in the world, of any embodiment described and/or claimed in the Asserted Patent, or any Product, 

process, equipment, or service embodying or using such invention, prior to the Earliest Priority 

Date. 

19. Documents relating to any Prior Art search performed by You, on Your behalf, or 

that You are aware of, relating to the Asserted Patent, including, but not limited to, any search 

methodology or results, prior to the date You transferred ownership of the Asserted Patent.

20. Documents relating to any Prior Art search performed by You, on Your behalf, or 

that You are aware of, relating to any Related Patent or Related Application (including, but not 

limited to, any search methodology or results), prior to the date You transferred ownership of the 

Asserted Patent.

21. Communications, studies, comparisons, reports, surveys, evaluations, opinions, or 

memorandums regarding whether any claim in the Asserted Patent is invalid, valid, enforceable, 

or unenforceable (including any Prior Art or alleged Prior Art), prior to the date You transferred 

ownership of the Asserted Patent.

22. Documents that concern the commercial success (a secondary consideration 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 20 of 103
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regarding obviousness of the Asserted Patent as considered under 35 U.S.C. § 103) of any 

Product, process, equipment, or service that has a nexus to any invention claimed in the Asserted 

Patent (i.e., the Product, process, equipment, or service is “essentially the claimed invention”2), 

from the Earliest Priority Date to the date You transferred ownership of the Asserted Patent. 

23. Documents that concern any copying by others (a secondary consideration 

regarding obviousness of the Asserted Patent as considered under 35 U.S.C. § 103) of any 

invention claimed in the Asserted Patent, or of any Product, process, equipment, or service that 

embodies or uses such invention, from the Earliest Priority Date to the date You transferred 

ownership of the Asserted Patent. 

24. Documents that concern any third party’s praise, criticism, acknowledgments, 

awards, or discussion of the significance (a secondary consideration regarding obviousness of the 

Asserted Patent as considered under 35 U.S.C. § 103) of any invention claimed in the Asserted 

Patent, or of any Product, process, equipment, or service that embodies or uses such invention, 

from the Earliest Priority Date to the date You transferred ownership of the Asserted Patent. 

25. Communications (or Documents relating thereto) between You and Plaintiff, from 

the Earliest Priority Date to the present, relating to:

a. The Asserted Patent, Related Patents, Related Applications, or any 

inventions disclosed therein;

b. This Action (including, without limitation, the initiation of this Action 

and the actual or anticipated costs, profits, and outcome of this Action); 

and

 2 Fox Factory, Inc. v. SRAM, LLC, 944 F. 3d 1366, 1374 (Fed. Cir. 2019).

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 21 of 103
- 16 -

c. Any Defendant, any of Defendants’ technology, or any of the Accused 

Products. 

26. Communications (or Documents relating thereto) between You and any of the 

Named Inventors, from the Earliest Priority Date to the present, relating to:

a. The Asserted Patent, Related Patents, Related Applications, or any 

inventions disclosed therein;

b. This Action (including, without limitation, the initiation of this Action 

and the actual or anticipated costs, profits, and outcome of this Action); 

and

c. Any Defendant, any of Defendants’ technology, or any of the Accused 

Products.

27. Negotiations, agreements, draft agreements between You and Plaintiff, from the 

Earliest Priority Date to the present, relating to:

a. The Asserted Patent, Related Patents, Related Applications, or any 

inventions disclosed therein;

b. This Action (including, the initiation of this Action and the actual or 

anticipated costs, profits, and outcome of this Action); or

c. Any Defendant, any of Defendants’ technology, or any of the Accused 

Products. 

28. Negotiations, agreements, draft agreements between You and any Named 

Inventor, from the Earliest Priority Date to the present, relating to:

a. The Asserted Patent, Related Patents, Related Applications, or any 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 22 of 103
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inventions disclosed therein;

b. This Action (including the initiation of this Action and the actual or 

anticipated costs, profits, and outcome of this Action); or

c. Any Defendant, any of Defendants’ technology, or any of the Accused 

Products.

29. Documents and Communications concerning any statement, concern, or 

contention by You, any Named Inventor, or any person involved in the prosecution of the 

Asserted Patent, regarding the scope of any of the claims or the interpretation or construction of 

any term or phrase in the claims of the Asserted Patent, prior to the date You transferred 

ownership of the Asserted Patent.

30. Documents concerning the alleged infringement of any of the claims of the 

Asserted Patent, including studies, comparisons, reports, surveys, and any evaluation, opinion, 

memorandum, or report, comparing any of the Accused Products or any portion, feature, and/or 

aspect thereof to any limitation in any claim of the Asserted Patent, prior to the date You 

transferred ownership of the Asserted Patent, except to the extent these documents are entitled to 

attorney-client privilege or work product protection. 

31. Documents and Communications concerning any decision to pursue or not to 

pursue a claim infringement of the Asserted Patent against any Defendant, from the Earliest 

Priority Date to the date You transferred ownership of the Asserted Patent, except to the extent 

these documents are entitled to attorney-client privilege or work product protection. 

32. Documents and Communications concerning any decision to pursue or not to 

pursue a claim infringement of any Related Patent against any Defendant, from the Earliest 

Priority Date to the date You transferred ownership of the Asserted Patent, except to the extent 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 23 of 103
- 18 -

these documents are entitled to attorney-client privilege or work product protection. 

33. Documents comprising or memorializing any sworn statements, including 

affidavits, declarations, trial and deposition testimony related to the subject matter of the Asserted 

Patent, by any of the Named Inventors or any person involved in the prosecution of the Asserted 

Patent. 

34. Documents comprising or memorializing any sworn statements, including 

affidavits, declarations, trial and deposition testimony related to the subject matter of any Related 

Patents or Related Applications, by any of the Named Inventors or any person involved in the 

prosecution of the Asserted Patent. 

35. Documents and Communications, relating to or concerning the assignment, 

licensing, acquisition, financial interest, security interest, sale, transfer of rights (in whole or in 

part), or any other disposition of, or any offers to buy, sell, or license the Asserted Patent or any 

Related Patents or Related Applications. This includes, but is not limited to:

a. Offers to buy, sell, or license, agreements granting rights, assignments, 

licenses, covenants, royalties, settlements, agreements releasing any third 

party from liability for infringement, and covenants not to sue, involving 

or concerning the Asserted Patent, Related Patents, or Related 

Applications;

b. Negotiations, discussions, or other Communications relating to the 

Documents referenced in sub-paragraph a; and

c. Communications (or documents relating thereto) between You and any 

potential Licensee or purchaser of the Asserted Patent, Related Patents or 

Related Applications. 

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36. Documents and Communications concerning or relating to any right, title, or 

interest in any litigation or action involving any of the Asserted Patent, including analyses or 

opinions related thereto. 

37. Documents and Communications concerning or relating to any right, title, or 

interest in any litigation or action involving any of Related Patents or Related Applications, 

including analyses or opinions related thereto. 

38. Studies, comparisons, reports, surveys, evaluations, opinions, or memorandums, 

regarding ownership of the Asserted Patent, from the Earliest Priority Date to the date You 

transferred ownership of the Asserted Patent.

39. Studies, comparisons, reports, surveys, evaluations, opinions, or memorandums, 

regarding any standstills involving or concerning the Asserted Patent, from the Earliest Priority 

Date to the date You transferred ownership of the Asserted Patent. 

40. Studies, comparisons, reports, surveys, evaluations, opinions, or memorandums, 

regarding sales, royalties, covenants, or licenses involving or concerning the Asserted Patent, 

from the Earliest Priority Date to the date You transferred ownership of the Asserted Patent. 

41. Documents and Communications concerning any business plans, marketing plans, 

marketing efforts, advertising plans, advertising efforts, promotional programs, or offers to buy, 

sell, or license, involving or concerning the Asserted Patent, from the Earliest Priority Date to the 

date You transferred ownership of the Asserted Patent. 

42. Studies, comparisons, reports, surveys, evaluations, opinions, or memorandums, 

regarding ownership of Related Patents or Related Applications, from the Earliest Priority Date

to the date You transferred ownership of the Asserted Patent.

43. Studies, comparisons, reports, surveys, evaluations, opinions, or memorandums, 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 25 of 103
- 20 -

regarding any standstills involving or concerning Related Patents or Related Applications, from 

the Earliest Priority Date to the date You transferred ownership of the Asserted Patent. 

44. Studies, comparisons, reports, surveys, evaluations, opinions, or memorandums, 

regarding sales, royalties, covenants, or licenses involving or concerning Related Patents or 

Related Applications, from the Earliest Priority Date to the date You transferred ownership of the 

Asserted Patent. 

45. Documents and Communications concerning any business plans, marketing plans, 

marketing efforts, advertising plans, advertising efforts, promotional programs, or offers to buy, 

sell, or license, involving or concerning Related Patents or Related Applications, from the Earliest 

Priority Date to the date You transferred ownership of the Asserted Patent. 

46. Documents and Communications concerning any budgets, forecasts, revenues, 

licensing strategies, projections, costs, sales, expenses, margins, profits (including gross and net 

profits), or any other means for generating revenue from any Product, process, equipment, or 

service that You allege or believe embodies any claim of the Asserted Patent, from the Earliest 

Priority Date to present.

47. Documents related to the relationship between You and any potential or actual 

Licensees regarding the Asserted Patent, including agreements and draft agreements with such 

potential Licensees, Communications with such potential Licensees, and Documents exchanged 

with such potential Licensees that relate to such patents.

48. Documents related to the relationship between You and potential or actual 

Licensees regarding the Related Patents or Related Applications, including agreements and draft 

agreements with such potential Licensees, Communications with such potential Licensees, and 

Documents exchanged with such potential Licensees that relate to such patents.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 26 of 103
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49. Documents reflecting any analyses or projections regarding the financial impact 

and duration thereof on You or any other assignee or Licensee due to the alleged infringement of 

the Asserted Patent, from the Earliest Priority Date to the date You transferred ownership of the 

Asserted Patent.

50. Valuations of the Asserted Patent (either alone, or together with other patents or 

consideration, including as part of an intellectual property portfolio), from the Earliest Priority 

Date to the date You transferred ownership of the Asserted Patent.

51. Valuations of the Related Patents or Related Applications (either alone, or together 

with other patents or consideration, including as part of an intellectual property portfolio), from 

the Earliest Priority Date to the date You transferred ownership of the Asserted Patent.

52. Documents and Communications concerning or relating to an appraisal or 

valuation of any license, covenant, royalty, technology transfer, or authorization-to-use 

agreement that relates to the Asserted Patent, including appraisals or valuations performed for tax 

purposes, from the Earliest Priority Date to the date You transferred ownership of the Asserted 

Patent. 

53. Documents and Communications concerning or relating to any right, title, or 

interest in any litigation or action involving any of the Asserted Patent, Related Patents, or Related 

Applications, including analyses or opinions related thereto, from the Earliest Priority Date to the 

date You transferred ownership of the Asserted Patent.

54. Documents sufficient to identify any licensing policy that You may have, 

including without limitation policies and practices relating to taking or granting licenses, relating 

to any of the Asserted Patent, Related Patents, or Related Applications.

55. Documents and Communications concerning whether You and/or Your Licensees 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 27 of 103
- 22 -

have complied with the marking or notice provisions of 35 U.S.C. § 287(a) with respect to the 

Asserted Patent, including but not limited to one copy or sample of each and every Product 

and/or package or other material on which the patent number of the Asserted Patent has been or 

are marked.

56. Documents sufficient to identify, and to show the design, operation, or functioning 

of, any commercially acceptable, non-infringing (potential or actual) alternative to the subject 

matter claimed in the Asserted Patent.

57. Documents sufficient to identify, and to show the design, operation, or functioning 

of any technically acceptable, non-infringing (potential or actual) alternative to the subject 

matter claimed in the Asserted Patent.

58. Documents sufficient to identify the nature and scope of any rights in the Asserted 

Patent that You have obtained and/or retained at any time, including, without limitation, any right 

to control litigation, future royalties, payments for licenses of the Asserted Patent, or payments 

relating to or resulting from the outcome of any litigation involving or relating to the Asserted 

Patent (including without limitation the Action).

59. Documents and Communications You exchanged with any trade associations, 

standards setting organizations, or industry working groups, relating to the Asserted Patent, or 

the inventions disclosed therein, from the Earliest Priority Date to the present. This includes but 

is not limited to: 

a. Communications with trade associations, standards setting organizations, 

or industry trade groups relating to the Asserted Patent, or the inventions 

disclosed therein;

b. Technical and non-technical submissions to trade associations, standards 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 28 of 103
- 23 -

setting organizations, or industry trade groups relating to the Asserted 

Patent, or the inventions disclosed therein;

c. Intellectual property declarations to any trade associations, standards 

setting organizations, or industry trade groups relating to the Asserted 

Patent, or the inventions disclosed therein; and

d. Documents related to trade associations, standards setting organizations, 

or industry trade groups meetings (including working group meetings) 

where the subject matter described and/or claimed in the Asserted Patent 

was discussed.

60. Documents and Communications You exchanged with any trade associations, 

standards setting organizations, or industry working groups, relating to U.S. Pat. App. No. 

10/227,872, Related Patents, or Related Applications, or the inventions disclosed therein, from 

the Earliest Priority Date to the present. This includes but is not limited to: 

a. Communications with trade associations, standards setting organizations, 

or industry trade groups relating to U.S. Pat. App. No. 10/227,872, 

Related Patents, or Related Applications, or the inventions disclosed 

therein;

b. Technical and non-technical submissions to trade associations, standards 

setting organizations, or industry trade groups relating to U.S. Pat. App. 

No. 10/227,872, Related Patents, or Related Applications, or the 

inventions disclosed therein;

c. Intellectual property declarations to any trade associations, standards 

setting organizations, or industry trade groups relating to U.S. Pat. App. 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 29 of 103
- 24 -

No. 10/227,872, Related Patents, or Related Applications, or the 

inventions disclosed therein; and

d. Documents related to trade associations, standards setting organizations, 

or industry trade groups meetings (including working group meetings) 

where the subject matter described and/or claimed in U.S. Pat. App. No. 

10/227,872 or Related Patents was discussed.

61. Documents (including without limitation correspondence, notes, meeting minutes, 

proposals, statements, and other Communications) regarding what constitutes Fair Reasonable 

and Non-Discriminatory (“FRAND”) or Reasonable and Non-Discriminatory (“RAND”) terms 

relating to patent licensing in the technical space related to the subject matter of the Asserted 

Claims.

62. Documents sufficient to identify all sections and/or subsection of any standard or 

draft standard to which You believe the Asserted Patent are essential.

63. Documents sufficient to identify all sections and/or subsection of any standard or 

draft standard to which You believe the Asserted Patent is relevant to.

64. Agreements that You have concerning patents declared essential to or any 

standard related to the subject matter of the Asserted Patent, such as standards maintained by the 

Institute of Electrical and Electronics Engineers, Internet Engineering Task Force, and the 

European Telecommunications Standards Institute.

65. Agreements that You have concerning patents that You contend are relevant to 

standards related to the subject matter of the Asserted Patent, such as standards maintained by 

the Institute of Electrical and Electronics Engineers, Internet Engineering Task Force, and the 

European Telecommunications Standards Institute.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 30 of 103
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66. Documents sufficient to identify patents of which You are aware that have been 

contented to be essential to, or relevant to, standards or draft standard for which the Asserted 

Patent has been contented to be essential to, or relevant to, such as standards maintained by the 

Institute of Electrical and Electronics Engineers, Internet Engineering Task Force, and the 

European Telecommunications Standards Institute.

67. Documentssufficient to show Your past and present electronic data and Document 

destruction and retention policies with respect to the Documents produced in response to the 

above requests.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 31 of 103
EXHIBIT 2

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 32 of 103
2

ORAL EXAMINATION TOPICS REQUESTED

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

“Defendants”) seek to ask questions on topics described below.

DEFINITIONS

The following definitions are applicable to terms employed in responding to this request:

1. “Accused Product” or “Accused Products” shall refer to any device, product, or other thing 

that Plaintiff is permitted to accuse of infringing the Asserted Patent in this Action. A copy 

of the Complaint in case numbers 6:20-cv-00475-ADA, 6:20-cv-00477-ADA, 6:20-cv00478-ADA, 6:20-cv-00479-ADA is attached as Exhibit 3. In referring to any device, 

product, or other thing as an “Accused Product,” Defendants in no way communicate their 

agreement that it infringes the Asserted Patent.

2. “Action” shall refer to the above-captioned proceeding in the United States District Court 

for the Western District of Texas, with case numbers 6:20-cv-00475-ADA, 6:20-cv-00477-

ADA, 6:20-cv-00478-ADA, 6:20-cv-00479-ADA.

3. “Asserted Claim” shall refer to each claim of the Asserted Patent that Plaintiff contends 

Defendants infringe. 

4. “Asserted Patent” shall refer to U.S. Patent Nos. 7,126,921; 7,453,888; 8,402,129; 

8,913,489 and any patent applications related thereto. 

5. “Communication” shall mean, without limitation, any written, oral, or other transmission 

of information, including but not limited to emails.

6. “Complaint” shall refer to the Complaint (including exhibits) that Plaintiff filed on June 2, 

2020 as docket number 1 in this Action, the Amended Complaint filed on October 19, 

2020, and any other amended complaints thereafter. 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 33 of 103
3

7. “Concerning,” “refer(s) to,” “related to,” “reflecting,” and “relating to” shall mean directly 

or indirectly relating to, referring to, mentioning, reflecting, pertaining to, evidencing, 

illustrating, involving, describing, discussing, commenting on, embodying, responding to, 

supporting, contradicting, or constituting (in whole or in part), as the context makes 

appropriate.

8. “Defendants” or “Defendant” shall refer to Dell Technologies Inc., Dell Inc., and EMC 

Corporation, and any and all of their then-current or prior subsidiaries, parents, affiliates, 

divisions, successors, predecessors, agents, employees, representatives, directors, officers, 

trustees, and attorneys, or any other person or entity acting in whole or in part in concert 

with any of the foregoing, directly or indirectly. 

9. “Document” shall include, without limitation, all documents, electronically stored 

information, and tangible things within the scope of the Federal Rules of Civil Procedure, 

including Rule 34. Federal Rules of Civil Procedure 34 permits discovery of: “(A) 

documents or electronically stored information—including writings, drawings, graphs, 

charts, photographs, sound recordings, images, and other data or data compilations—stored 

in any medium from which information can be obtained either directly or, if necessary, 

after translation by the responding party into a reasonably usable form; or (B) any 

designated tangible things.” 

10. “Earliest Priority Date” shall refer to: Mar. 20, 2002 for U.S. Pat. No. 7,126,921; August 

27, 2002 for U.S. Pat. No. 7,453,888; March 21, 2001 for U.S. Pat. No. 8,402,129; August 

4, 2010 for U.S. Pat. No. 8,913,489.

11. “Employee” shall refer to any officer, director, partner, employee, representative, or agent.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 34 of 103
4

12. “Licensee(s)” shall refer to any entity having a license, assignment, covenant not to sue, or 

other understanding, written, oral or implied, that the entity has any rights to the Asserted 

Patent, any Related Patents, or any Related Applications, may practice one or more claims 

of the Asserted Patent and/or that Plaintiff will not file suit or otherwise enforce against 

that entity one or more claims of the Asserted Patent or any Related Patent or Related 

Application.

13. “Named Inventor” shall refer to any individual who is listed as an inventor on the Asserted 

Patent or any Related Patent or Related Application thereof.

14. “Person” shall refer to any natural person, firm, association, partnership, government 

agency, corporation, proprietorship, or other entity and its officers, directors, partners, 

employee, representatives, and agents.

15. The terms “Plaintiff,” and/or “WSOU” shall refer to the responding Plaintiff WSOU 

Investments, LLC d/b/a Brazos Licensing and Development, and any and all of its thencurrent or prior subsidiaries, parents, affiliates, divisions, successors, predecessors, agents, 

employees, representatives, directors, officers, trustees, and attorneys, or any other person 

or entity acting in whole or in part in concert with any of the foregoing, directly or 

indirectly.

16. “Prior Art” encompasses, without limitation, the subject matter described in each and every 

subdivision of 35 U.S.C. §§ 102 and 103, and includes, but is not limited to, memoranda, 

notes, manuals, interviews, testing data, disclosures, prototypes, correspondence, 

drawings, papers, articles, patents, printed publications, public uses, demonstrations, offers 

for sale or license, and sales.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 35 of 103
5

17. “Product(s)” means a machine, manufacture, apparatus, device, instrument, mechanism, 

appliance, software, service, process, or an assemblage of components/parts (either 

individually or collectively) that are designed to function together electronically, 

mechanically, or otherwise, including any offered for sale or under development.

18. “Related Application(s)” means any and all applications related to the Asserted Patent, 

including any provisional or non-provisional applications, continuations, continuations- inpart, divisions, interferences, reexaminations, re-issues, parents, foreign counterpart 

applications, and any other applications disclosing, describing or claiming any invention 

disclosed, described or claimed in the Asserted Patent, or claiming the benefit of the filing 

date of any application whose benefit is claimed in the Asserted Patent, whether or not 

abandoned and whether or not issued.

19. “Related Patent(s)” means any and all U.S. or foreign patents based upon or related to any 

Related Application(s) or Asserted Patent, including any patents or applications that may 

have been opposed, reexamined, re-issued or subjected to any validity or nullity 

proceeding.

20. “Third Party” shall refer to any person other than Plaintiff or Defendants.

21. “You,” “Your,” “Yours” shall refer to Bernard Zucker (General Counsel - Bell Labs and 

Special Projects at Nokia Bell Labs), and any and all of its then-current or prior 

subsidiaries, parents, affiliates, divisions, successors, predecessors, agents, employees, 

representatives, directors, officers, trustees, and attorneys, or any other person or entity 

acting in whole or in part in concert with any of the foregoing, directly or indirectly.

22. Any pronouns shall be construed to refer to the masculine, feminine, or neutral gender, in 

singular or plural, as in each case is most appropriate.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 36 of 103
6

23. The singular form of any word shall be construed to also include the plural, and vice-versa.

24. The word “each” shall be construed to mean “each and every.”

25. The words “and” and “or” shall be construed conjunctively or disjunctively, whichever 

makes the request more inclusive.

26. The words “any” and “all” shall be construed to mean “any and all.”

INSTRUCTIONS

1. This request seeks disclosure to the full extent of the Federal Rules of Civil Procedure and 

shall be interpreted as inclusive rather than exclusive.

2. It is Your duty in responding to this request to designate one or more officers, directors, 

managing agents, or other Persons who are the most knowledgeable with respect to the 

topics identified below.

DEPOSITION TOPICS

1. The alleged invention(s) claimed in each Asserted Claim, and the alleged benefits, 

advantages, disadvantages or limitations of those alleged invention(s) as compared to the state 

of the art at the time of filing, and the factual bases thereof.

2. The inventorship of each Asserted Claim, including identification of any 

individuals other than the Named Inventors who aided or participated in the conception, 

reduction to practice, or diligence toward reduction to practice of the subject matter of the 

Asserted Claims.

3. The role of each Named Inventor, as well as any individual identified pursuant 

to Topic No. 2, in the alleged invention of each Asserted Claim, including conception, diligence 

and reduction to practice, and including the subject matter to which each Person contributed, 

and the dates and circumstances in which each Named Inventor, as well as any individual 

identified pursuant to Topic No. 2, made such contributions.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 37 of 103
7

4. The conception, reduction to practice, and diligence toward the reduction to 

practice of each Asserted Claim, and any corroboration thereof.

5. The dates and circumstances concerning any first disclosure, demonstration, sale 

or offer for sale of any prototype or commercial embodiment of any of the inventions claimed 

in the Asserted Claims, and the identification and subject matter of any documents relating to 

or referring to each such activity.

6. The past and current ownership of the Asserted Patent, including its chain of 

title.

7. The preparation and prosecution of the applications relating to the Asserted 

Patent, any Related Patents, Related Applications, and patents and applications incorporated by 

reference into the Asserted Patent, and any certificates of correction.

8. The state of the art at the time of filing for the Asserted Patent, and Your 

knowledge thereof.

9. Any facts, studies, investigations, information, documents (including Prior Art), 

and analyses You identified, received, or knew at any time relating to the alleged validity, 

enforceability, infringement, valuation, or priority dates of the Asserted Patent, Related Patents, 

Related Applications, or patents and applications incorporated by reference into the Asserted 

Patent, including any Communications with third parties relating to the foregoing.

10. Any facts, studies, investigations, information, documents, and analyses 

regarding the structure, functions, development of, or operation of, or that constitute 

embodiments of, any alleged invention disclosed or claimed in the Asserted Patent, regardless 

of whether such embodiment was commercialized, and regardless of whether or not it worked 

properly.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 38 of 103
8

11. Any attempts to sell or otherwise transfer financial interests in the Asserted 

Patent, any portfolio of patents containing the Asserted Patent, or any patents related to the 

subject matter of the Asserted Claims.

12. The timing and circumstances related to Your first knowledge or awareness of 

any alleged infringement of the Asserted Patent by each of the Defendants.

13. Any decision to pursue or not to pursue any claim of infringement of any of the 

claims of the Asserted Patent against any Defendant.

14. Any efforts by You, any predecessor-in-interest of the Asserted Patent, or 

any other Person to enforce or license the Asserted Patent, or any portfolio of patents 

containing the Asserted Patent, or any patents related to the subject matter of the Asserted 

Claims.

15. Your policies and practices concerning patent agreements (including licensing), 

including:

a. any written licensing policies or best practices;

b. any most favored Licensee;

c. the economic and technical factors considered by You in drafting and 

entering into any license, royalty, standstill, partnership, joint venture, 

vendor, or settlement agreements;

d. any standard or preferred terms for license, royalty, standstill or settlement 

agreements;

e. the process by which You determine the nature, scope and terms of license 

agreements in which You are a licensor; and

f. any circumstance in which You deviated from such policies.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 39 of 103
9

16. Your knowledge of, and participation in, any Communications between 

Plaintiff and Defendants prior to the filing of the Action.

17. Any Communications related to Plaintiff, including communications related to 

licensing of any patents related the subject matter of the Asserted Claims(including the Asserted 

Patent, Related Patents, and Related Applications) and any compensation, license rates, 

royalties related thereto, agreements with Plaintiff, Defendants, the Action, the decision to file 

the Action, requests or offers to provide assistance, witnesses and/or documents for use in the 

Lawsuit, and any discussion about standing of Plaintiff to bring the Action.

18. Your relationship with all potential Licensees, including all agreements, 

assurances, covenants not to sue, and understandings not to assert patents against such potential 

Licensees, including but not limited to Communications and agreements relating to the Asserted 

Patent, Related Patents or Related Applications, and the circumstances relating to such activity.

19. Your relationship with any entity associated with Stuart A. Shanus, Marc Wade, 

and/or Craig Etchegoyen, including without limitation Wade and Company, Orange Holdings, 

WSOU, and/or Uniloc USA, Inc.,1 including any patent license agreements with any such entity 

that relate to patents or patent applications that claim subject matter related to the subject matter 

of the Asserted Claims.

20. Any Communication You engaged in regarding each Defendant and its 

respective Products or services, and any analysis You performed of each Defendant and its 

respective Products and services related to the Asserted Patent, Related Patents or Related 

Applications.

 1 Stuart A. Shanus and Craig Etchegoyen are the Chairman and President of WSOU. Mark 

Wade, Wade and Company, Orange Holdings, and/or Uniloc USA, Inc. are all related 

persons or entities of WSOU. 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 40 of 103
10

21. Any valuations of the Asserted Patent or any portfolio of patents that includes 

the Asserted Patent.

22. Any licenses, assignments, conveyances, security interests, or other agreements 

relating to the Asserted Patent, or any portfolio of patents that includes or included the Asserted 

Patent, and offers and negotiations leading to and circumstances surrounding such agreement.

23. Any revenues and profits received by You for any Products practicing the 

alleged invention of the Asserted Patent.

24. Revenues, costs, expenses, and profits (including gross and net profits) 

generated in connection with Your ownership of, the Asserted Patent, and the methodology used 

to calculate or otherwise determine revenues, costs, expenses, and/or profits.

25. Any licensing fees and rates paid to You, or by You, for each portfolio that 

includes the Asserted Patent.

26. The rates paid by any Licensee to You for the use of other patents comparable 

to the Asserted Patent.

27. Any financial interests that You may have in the Asserted Patent, including but 

not limited to royalties and the outcome of the Action.

28. Any facts, studies, investigations, and analyses relating to any submission of 

intellectual property right declarations with respect to the Asserted Patent to any standard 

maintained by an international and/or domestic trade association or standards setting organization, 

including all analyses or opinions related thereto.

29. Any facts, studies, investigations, and analyses relating to any alleged essentiality 

of the Asserted Patent to any industry standard, including any Communications with third parties 

relating to the foregoing.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 41 of 103
11

30. Any investigation of the standards activity and intellectual property right 

disclosures of any predecessor-in-interest to the Asserted Patent, including any investigation by 

You into the intellectual property right policies, Fair Reasonable and Non-Discriminatory 

(“FRAND”) obligations, or Reasonable and Non-Discriminatory (“RAND”) terms relating to 

patent licensing in the technical space related to the subject matter of the Asserted Claims.

31. The role of You and/or any prior owner of the Asserted Patent, or any affiliates of 

You, or a prior owner of the Asserted Patent, in any standards setting organization from the Earliest 

Priority Date to present.

32. Any Communications that You, any predecessor-in-interest of the Asserted 

Patent, and/or any Named Inventors had with an international and/or domestic trade association or 

standards setting organizations regarding the subject matter of the Asserted Claims.

33. Any disclosures made by, or on behalf of You or any predecessor-in-interest of 

the Asserted Patent to an international and/or domestic trade association or standards setting 

organization regarding the existence and/or potential standard essentiality of the Asserted Patent, 

Related Patents, or Related Applications.

34. Your knowledge of, and compliance with, intellectual property right policies of 

an international and/or domestic trade association or standards setting organization related to the 

subject matter of the Asserted Claims.

35. Your knowledge of, and compliance with, FRAND and/or RAND obligations, 

including without limitation any policies, guidelines, or instructions, and any related analysis or 

discussions.

36. Your collection, retention and production of documents and information relevant 

to the Action, including but not limited to:

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 42 of 103
12

a. Your production of documents and information to Defendants, either 

directly or indirectly through Plaintiff;

b. Your efforts to identify, locate and gather documents for production, 

including identification of custodians;

c. the storage types and physical location of relevant data;

d. a description of all sources containing the information which has been 

produced by You, including custodians thereof; and

e. all databases and email systems containing information or documents 

relevant to the Action and produced, referenced, created or used through the 

present, and operation of such systems or databases, including ability to 

search, storage, retrieving, backup, archiving, cataloguing, and the identity 

of Persons responsible for administering those databases and/or email 

systems.

37. The subject matter and content of all Documents and Communications 

identified and/or produced in response to the above requests.

38. The authenticity of all Documents identified in response to the requests for 

production.

39. All Documents reviewed by You in connection with the deposition on these topics.

40. For each of the topics set forth in this request, the identity and location of Your 

employee, agent, representative, independent contractor, or other partner, affiliate, or business 

associate, with the most knowledge concerning that topic.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 43 of 103
EXHIBIT 3A

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 44 of 103
1

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.

§

§

§

§

§

§

§

§

§

§

§

§

NO. 6:20-cv-475-ADA

JURY TRIAL DEMANDED

FIRST AMENDED 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 First Amended Complaint (“Amended 

Complaint” or “Complaint”) for Patent Infringement against Dell Technologies Inc., Dell Inc., and 

EMC Corporation (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. is a Delaware 

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

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2

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 Technologies Inc. 

5. On information and belief, defendant EMC Corporation 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.

JURISDICTION AND VENUE

6. 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.

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

§§ 1331 and 1338(a).

8. 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 

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.

9. 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. 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 46 of 103 Case 6:20-cv-00475-ADA Document 34 Filed 10/19/20 Page 2 of 10
3

COUNT ONE - INFRINGEMENT OF 

U.S. PATENT NO. 7,453,888

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

Complaint.

11. On November 18, 2008, the United States Patent and Trademark Office duly and 

legally issued U.S. Patent No. 7,453,888 (“the ‘888 Patent”), entitled “Stackable Virtual Local 

Area Network Provisioning in Bridged Networks.” A true and correct copy of the ‘888 Patent is 

attached as Exhibit A to this Complaint.

12. Brazos is the owner of all rights, title, and interest in and to the ‘888 Patent, 

including the right to assert all causes of action arising under the ‘888 Patent and the right to any 

remedies for the infringement of the ‘888 Patent.

13. 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, networking 

switches, including but not limited to, Force 10 MXL switches (collectively, the “Accused 

Products”).

14. The Accused Products may be deployed in environments with Virtual Local Area 

Network (VLAN) applications and virtualization hosts and can provide VLAN double tagging, 

frame extensions for VLAN tagging, and native VLAN features, among other features. Force 10 

MXL switches, for example, may enhance bandwidth and performance, as well as provide 

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4

flexibility to satisfy changing demands of data centers embracing virtualization, network 

convergence, and other I/O-intensive applications or workloads. 

https://i.dell.com/sites/csdocuments/Shared-Content_dataSheets_Documents/en/SS804_Dell_Force10_MXL.pdf

15. The Accused Products may configure a trunk port so that a numbered tag is inserted 

in each ethernet frame to keep the traffic of different VLANs from mixing. Accused Products

running Per-VLAN Spanning Tree (PVST) configure their trunk ports appropriately.

http://bladesmadesimple.com/wpcontent/uploads/2017/05/Deploying_the_Dell_Force10_MXL_on_a_Cisco_Nexus_Network_v1

_1.pdf

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5

http://bladesmadesimple.com/wpcontent/uploads/2017/05/Deploying_the_Dell_Force10_MXL_on_a_Cisco_Nexus_Network_v1

_1.pdf

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6

16. Trunk ports in the accused products can participate in multiple VLANs over an 

ethernet interface carrying multiple tagged VLANs and/or a single untagged VLAN.

http://bladesmadesimple.com/wpcontent/uploads/2017/05/Deploying_the_Dell_Force10_MXL_on_a_Cisco_Nexus_Network_v1

_1.pdf

17. The Accused Products may configure all the trunk ports participating in VLANs

when the port is in a standby state. The configured trunk port may be enabled to begin forwarding 

traffic as soon as its link is active. 

http://bladesmadesimple.com/wpcontent/uploads/2017/05/Deploying_the_Dell_Force10_MXL_on_a_Cisco_Nexus_Network_v1

_1.pdf

18. In view of preceding paragraphs, each and every element of at least claim 1 of the 

‘888 Patent is found in the Accused Products. And upon information and belief, each and every

element of at least claim 1 of the ’888 Patent is performed or practiced by Defendants at least 

through Defendants’ own use and configuration of its own Accused Products, and/or through 

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7

Defendants’ own testing and configuration of its own Accused Products, and/or through 

Defendants’ providing services for its Accused Products, including but not limited to providing 

installation, deployment, support, and configuration of its Accused Products.

19. Defendants continue to directly infringe at least one claim of the ‘888 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.

20. In May 2020, Plaintiff filed a suit against Defendants asserting infringement of 

the same patent and by the same accused products that are asserted in this case. Plaintiff

dismissed the prior suit before filing this suit. As a result of the prior suit, Defendants had notice 

and actual or constructive knowledge of their infringement of the patent-in-suit since at least May 

2020, before the filing of this case. Further, Defendants had knowledge of their infringement of 

the patent-in-suit before the filing of this Amended Complaint.1

1 Dell filed a motion to dismiss that is mooted by this amended complaint. Dell’s motion cites a 

WDTX case (which relies authority from the District of Delaware) for the proposition that 

knowledge of a plaintiff’s patent after the lawsuit was filed is insufficient to plead the requisite 

knowledge for indirect infringement. See Aguirre v. Powerchute Sports, LLC, No. SA-10-CV0702 XR, 2011 WL 2471299, at *3 (W.D. Tex. June 17, 2011) (citing Xpoint Techs. v. Microsoft 

Corp., 730 F.Supp.2d 349 (D. Del. 2010)). Several Delaware courts have since rejected this rule 

because there is no statutory basis to support it and because there is no purpose served by the 

formality of requiring the plaintiff to file an amended complaint in order to be allowed to assert 

knowledge of the patents during the period following the filing of the original complaint. See 

Walker Digital, LLC v. Facebook, Inc., 852 F. Supp. 2d 559, 566 (D. Del. 2012) (“The court 

acknowledges that this result is inconsistent with its prior decisions in Xpoint Techs. v. Microsoft 

Corp., 730 F.Supp.2d 349 (D.Del.2010), and EON Corp. IP Holdings LLC v. FLO TV Inc., 802 

F.Supp.2d 527 (D. Del. 2011). Given the ease of amendment, the limitation of damages to postknowledge conduct, and in the interests of judicial economy, the court finds that the better 

reasoning is to allow a complaint that satisfies Rule 8 to proceed to discovery rather than 

dismissing it for lack of pre-filing knowledge when, by the time the motion to dismiss has been 

filed, defendant in fact has the requisite knowledge as pled by plaintiff.”); see also IOENGINE, 

LLC v. PayPal Holdings, Inc., CV 18-452-WCB, 2019 WL 330515, at *4 (D. Del. Jan. 25, 2019) 

(“The Court sees no purpose that would be served by the formality of requiring IOENGINE to file 

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8

21. Since at least May 2020, through its actions, Defendants have actively induced 

product makers, distributors, retailers, and/or end users of the Accused Products to infringe the

‘888 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:

• http://bladesmadesimple.com/wpcontent/uploads/2017/05/Deploying_the_Dell_Force10_MXL_on_a_Cisco_Nexus_Net

work_v1_1.pdf

• https://i.dell.com/sites/csdocuments/Shared-Content_dataSheets_Documents/en/SS804_Dell_Force10_MXL.pdf

22. Since at least May 2020, through its actions, Defendants have contributed to the 

infringement of the ‘888 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 ‘888 Patent. The Accused Products are especially made or adapted 

for infringing the ‘888 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 ‘888 Patent.

JURY DEMAND

Brazos hereby demands a jury on all issues so triable.

an amended complaint in order to be allowed to assert knowledge of the patents during the period

following the filing of the original complaint.”).

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9

REQUEST FOR RELIEF

WHEREFORE, Brazos respectfully requests that the Court:

(A) Enter judgment that Defendants infringe one or more claims of the ‘888 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 ‘888 Patent;

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

the infringement of one or more claims of the ‘888 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 ‘888 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.

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10

Dated: October 19, 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

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com 

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

COUNSEL FOR PLAINTIFF

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 54 of 103 Case 6:20-cv-00475-ADA Document 34 Filed 10/19/20 Page 10 of 10
EXHIBIT 3B

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 55 of 103
1

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.

§

§

§

§

§

§

§

§

§

§

§

§

NO. 6:20-cv-477-ADA

JURY TRIAL DEMANDED

FIRST AMENDED 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 First Amended Complaint (“Amended 

Complaint” or “Complaint”) for Patent Infringement against Dell Technologies Inc., Dell Inc., and 

EMC Corporation (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. is a Delaware 

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

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 56 of 103 Case 6:20-cv-00477-ADA Document 33 Filed 10/19/20 Page 1 of 13
2

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 Technologies Inc. 

5. On information and belief, defendant EMC Corporation 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.

JURISDICTION AND VENUE

6. 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.

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

§§ 1331 and 1338(a).

8. 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 

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.

9. 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. 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 57 of 103 Case 6:20-cv-00477-ADA Document 33 Filed 10/19/20 Page 2 of 13
3

COUNT ONE - INFRINGEMENT OF 

U.S. PATENT NO. 8,913,489

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

Complaint.

11. On December 16, 2014, the United States Patent and Trademark Office duly and 

legally issued U.S. Patent No. 8,913,489 (“the ‘489 Patent”), entitled “System and Method for

Virtual Fabric Link Failure Recovery.” A true and correct copy of the ‘489 Patent is attached as 

Exhibit A to this Complaint.

12. Brazos is the owner of all rights, title, and interest in and to the ‘489 Patent, 

including the right to assert all causes of action arising under the ‘489 Patent and the right to any 

remedies for the infringement of the ‘489 Patent.

13. 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, networking 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 58 of 103 Case 6:20-cv-00477-ADA Document 33 Filed 10/19/20 Page 3 of 13
4

switches with Virtual Link Trunking (VLT), including but not limited to, C9000 series switches

(collectively, the “Accused Products”).

14. The Accused Products provide multi-rate, modular switching platforms, which can 

be used for campus, mid-market, and large-enterprise networks and support Layer 2 multipath 

using VLT.

...

https://www.dell.com/en-us/work/shop/povw/networking-c9000-series

15. The Accused Products operate based on Dell Networking OS (DNOS), which 

incorporates features from Force10 Networks’s Force10 Operating System (FTOS), including 

VLT. VLT allows two physical switches to be represented as a single logical switch, which can be 

regarded as a part of a multi-chassis link aggregation group (MC-LAG). With physical links as a 

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5

port-channel, connecting two individual switches configured with VLT would logically group it 

as a single entity only for the access switches which connect to the VLT domain. 

https://topics-cdn.dell.com/pdf/networking-c9000-series_users-guide_en-us.pdf

16. For example, a VLT topology may include two switches, including an Accused 

Product, in a VLT Domain that communicates with servers by forming a multi-chassis link 

aggregation group over port interfaces of the switches.

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6

https://downloads.dell.com/solutions/networking-solutionresources/Virtual%20Link%20Trunking-Reference%20Architecture%202%200_External.pdf

17. Further, as shown in the example above, switches in the VLT Domain may be 

considered VTI peer devices and connected using a VLTi interconnect port-channel, which acts a 

virtual fiber link. The VLT interconnect (VLTi) carries MAC, ARP Tables, and IGMP State 

information between the VLT peer switches in a VLT topology.

...

...

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7

https://topics-cdn.dell.com/pdf/networking-c9000-series_users-guide_en-us.pdf

https://downloads.dell.com/solutions/networking-solutionresources/Virtual%20Link%20Trunking-Reference%20Architecture%202%200_External.pdf

18. The Accused Products can determine a connection failure of the VLTi

interconnect.

https://downloads.dell.com/solutions/networking-solutionresources/Virtual%20Link%20Trunking-Reference%20Architecture%202%200_External.pdf

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8

...

...

https://topics-cdn.dell.com/pdf/networking-c9000-series_users-guide_en-us.pdf

19. When the MC-LAG is disrupted (e.g., after the Accused Products determines VLTi 

and back uplink failure between VLT peer switches), the MC-LAG can be reconfigured into two 

link aggregates associated with each VLT peer switch to take the primary role and continue to 

communicate traffic over link aggregates to the end node. In the Accused Products, the VLT 

backup link can be configurable. If a VLT backup link is not enabled, then during VLTi failure, 

both VLT peer switches may take primary roles to form link aggregates. 

...

https://downloads.dell.com/solutions/networking-solutionresources/Virtual%20Link%20Trunking-Reference%20Architecture%202%200_External.pdf

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 63 of 103 Case 6:20-cv-00477-ADA Document 33 Filed 10/19/20 Page 8 of 13
9

https://topics-cdn.dell.com/pdf/networking-c9000-series_users-guide_en-us.pdf

20. In the event of VLTi failure causing disruption of the MC-LAG, the spanning tree 

protocol (STP) may be initiated in the first set of port interfaces to avoid a traffic loop. 

https://www.dell.com/community/s/vjauj58549/attachments/vjauj58549/Network/35449/1/Route

d%20VLT%20v1.2.pdf

21. In view of preceding paragraphs, each and every element of at least claim 8 of the 

‘489 Patent is found in the Accused Products. And upon information and belief, each and every 

element of at least claim 8 of the ’489 Patent is performed or practiced by Defendants at least 

through Defendants’ own use and configuration of its own Accused Products, and/or through 

Defendants’ own testing and configuration of its own Accused Products, and/or through 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 64 of 103 Case 6:20-cv-00477-ADA Document 33 Filed 10/19/20 Page 9 of 13
10

Defendants’ providing services for its Accused Products, including but not limited to providing 

installation, deployment, support, and configuration of its Accused Products.

22. Defendants continue to directly infringe at least one claim of the ‘489 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.

23. In May 2020, Plaintiff filed a suit against Defendants asserting infringement of 

the same patent and by the same accused products that are asserted in this case. Plaintiff

dismissed the prior suit before filing this suit. As a result of the prior suit, Defendants had notice 

and actual or constructive knowledge of their infringement of the patent-in-suit since at least 

May 2020, before the filing of this case. Further, Defendants had knowledge of their 

infringement of the patent-in-suit before the filing of this Amended Complaint.1.

24. Since at least May 2020, through its actions, Defendants have actively induced 

product makers, distributors, retailers, and/or end users of the Accused Products to infringe the

1 Dell filed a motion to dismiss that is mooted by this amended complaint. Dell’s motion cites a 

WDTX case (which relies authority from the District of Delaware) for the proposition that 

knowledge of a plaintiff’s patent after the lawsuit was filed is insufficient to plead the requisite 

knowledge for indirect infringement. See Aguirre v. Powerchute Sports, LLC, No. SA-10-CV0702 XR, 2011 WL 2471299, at *3 (W.D. Tex. June 17, 2011) (citing Xpoint Techs. v. Microsoft 

Corp., 730 F.Supp.2d 349 (D. Del. 2010)). Several Delaware courts have since rejected this rule 

because there is no statutory basis to support it and because there is no purpose served by the 

formality of requiring the plaintiff to file an amended complaint in order to be allowed to assert 

knowledge of the patents during the period following the filing of the original complaint. See 

Walker Digital, LLC v. Facebook, Inc., 852 F. Supp. 2d 559, 566 (D. Del. 2012) (“The court 

acknowledges that this result is inconsistent with its prior decisions in Xpoint Techs. v. Microsoft 

Corp., 730 F.Supp.2d 349 (D.Del.2010), and EON Corp. IP Holdings LLC v. FLO TV Inc., 802 

F.Supp.2d 527 (D. Del. 2011). Given the ease of amendment, the limitation of damages to postknowledge conduct, and in the interests of judicial economy, the court finds that the better 

reasoning is to allow a complaint that satisfies Rule 8 to proceed to discovery rather than 

dismissing it for lack of pre-filing knowledge when, by the time the motion to dismiss has been 

filed, defendant in fact has the requisite knowledge as pled by plaintiff.”); see also IOENGINE, 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 65 of 103 Case 6:20-cv-00477-ADA Document 33 Filed 10/19/20 Page 10 of 13
11

‘489 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/en-us/work/shop/povw/networking-c9000-series

• https://www.dell.com/en-us/work/shop/productdetailstxn/force10-ftos

• https://topics-cdn.dell.com/pdf/networking-c9000-series_users-guide_en-us.pdf

• https://downloads.dell.com/solutions/networking-solutionresources/Virtual%20Link%20TrunkingReference%20Architecture%202%200_External.pdf

• https://www.dell.com/community/s/vjauj58549/attachments/vjauj58549/Network/35449

/1/Routed%20VLT%20v1.2.pdf

25. Since at least May 2020, through its actions, Defendants have contributed to the 

infringement of the ‘489 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 ‘489 Patent. The Accused Products are especially made or adapted 

for infringing the ‘489 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 ‘489 Patent.

JURY DEMAND

LLC v. PayPal Holdings, Inc., CV 18-452-WCB, 2019 WL 330515, at *4 (D. Del. Jan. 25, 2019) 

(“The Court sees no purpose that would be served by the formality of requiring IOENGINE to file 

an amended complaint in order to be allowed to assert knowledge of the patents during the period

following the filing of the original complaint.”).

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 66 of 103 Case 6:20-cv-00477-ADA Document 33 Filed 10/19/20 Page 11 of 13
12

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 ‘489 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 ‘489 Patent;

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

the infringement of one or more claims of the ‘489 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 ‘489 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.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 67 of 103 Case 6:20-cv-00477-ADA Document 33 Filed 10/19/20 Page 12 of 13
13

Dated: October 19, 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

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com 

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

COUNSEL FOR PLAINTIFF

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 68 of 103 Case 6:20-cv-00477-ADA Document 33 Filed 10/19/20 Page 13 of 13
EXHIBIT 3C

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 69 of 103
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.

§

§

§

§

§

§

§

§

§

§

§

§

NO. 6:20-cv-478-ADA

JURY TRIAL DEMANDED

FIRST AMENDED 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 First Amended Complaint (“Amended 

Complain” or “Complaint”) for Patent Infringement against Dell Technologies Inc., Dell Inc., and 

EMC Corporation (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. is a Delaware 

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

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 70 of 103 Case 6:20-cv-00478-ADA Document 34 Filed 10/19/20 Page 1 of 10
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 Technologies Inc. 

5. On information and belief, defendant EMC Corporation 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. 

JURISDICTION AND VENUE

6. 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.

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

§§ 1331 and 1338(a).

8. 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 

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.

9. 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. 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 71 of 103 Case 6:20-cv-00478-ADA Document 34 Filed 10/19/20 Page 2 of 10
COUNT ONE - INFRINGEMENT OF 

U.S. PATENT NO. 7,126,921

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

Complaint.

11. On October 24, 2006, the United States Patent and Trademark Office duly and 

legally issued U.S. Patent No. 7,126,921 (“the ‘921 Patent”), entitled “Packet Network Providing 

Fast Distribution of Node Related Information and a Method Therefor.” A true and correct copy 

of the ‘921 Patent is attached as Exhibit A to this Complaint.

12. Brazos is the owner of all rights, title, and interest in and to the ‘921 Patent, 

including the right to assert all causes of action arising under the ‘921 Patent and the right to any 

remedies for the infringement of the ‘921 Patent.

13. 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, controlled 

networking devices, including but not limited to, routers controlled by Dell Network Operating 

System (“DNOS”) incorporating features of Force10 Network’s Force10 Operating System 

(“FTOS”), including but not limited to the Dell Networking S3048-ON, Dell Networking S4048-

ON, Dell Networking S4810-ON, Dell Networking S6000-ON, and E-Series, C-Series, N-Series, 

and S- Series hardware (collectively, the “Accused Products”).

14. The Accused Products operate based on Dell Networking OS (DNOS), which 

incorporates features from FTOS for packet networks having nodes and links. FTOS supports 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 72 of 103 Case 6:20-cv-00478-ADA Document 34 Filed 10/19/20 Page 3 of 10
packet networks, which comprises multiple nodes and links. FTOS is a part of various Dell 

networking devices, including E-Series, C-Series, and S- Series hardware.

https://www.networkworld.com/article/2179414/dell-takes-deeper-dive-into-networking--buysforce10.html

...

https://www.force10networks.com/CSPortal20/KnowledgeBase/DOCUMENTATION/CLIConfi

g/FTOS/All_CONFIG%20Book_8212_13-Oct-09.pdf

15. FTOS can be installed on Dell Open Networking (ON) Switches, including Dell 

Networking S3048-ON, S4048-ON, S4810-ON, and S6000-ON.

https://www.dell.com/support/article/us/en/04/how11548/how-to-install-dell-networking-ftos-ondell-open-networking-on-switches?lang=en

16. The Accused Products implement a control plane to control the nodes and a 

forwarding (data) plane responsive to the control plane. A control plane is a set of protocols that 

determine how the forwarding plane should forward packets, deciding which data packets are 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 73 of 103 Case 6:20-cv-00478-ADA Document 34 Filed 10/19/20 Page 4 of 10
allowed to be forwarded and where they should go. 

https://cdn.competec.ch/documents/3/9/392428/DE_Handbuch_switch.pdf

17. Link State Advertisements (LSAs) help routing network devices forward data 

packets. Link state information provides routing-related information to the nodes in the packet 

network and is provided to the control plane for computing forward routing information.

https://www.force10networks.com/CSPortal20/KnowledgeBase/DOCUMENTATION/CLIConfi

g/FTOS/All_CONFIG%20Book_8212_13-Oct-09.pdf

18. When one of the routing network devices goes down, there is a potential to lose 

access to parts of the network, causing potential packet loss. Therefore, the network will want to 

maintain a stable topology if it is possible for data flow to continue uninterrupted. To facilitate this 

in networks using the Accused Products, the computed forward routing information gets 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 74 of 103 Case 6:20-cv-00478-ADA Document 34 Filed 10/19/20 Page 5 of 10
downloaded into a Forwarding Information Base (FIB) on the line cards (the data plane) of the 

routing network devices. 

https://www.force10networks.com/CSPortal20/KnowledgeBase/DOCUMENTATION/CLIConfi

g/FTOS/All_CONFIG%20Book_8212_13-Oct-09.pdf

19. The data plane provides fast propagation of link state information. For example, 

type 9 link-local opaque grace-LSAs notify the helper neighbors during a restart process. The other 

nodes routers continue to announce information regarding the restarting router if the network 

topology is unchanged. Link state information contains the forward route information for the 

nodes. 

https://www.force10networks.com/CSPortal20/KnowledgeBase/DOCUMENTATION/CLIConfi

g/FTOS/All_CONFIG%20Book_8212_13-Oct-09.pdf

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 75 of 103 Case 6:20-cv-00478-ADA Document 34 Filed 10/19/20 Page 6 of 10
20. Moreover, Fast Convergence allows a user to define the speeds at which link-state 

information originates and accepted to speed up route information propagation.

https://www.force10networks.com/CSPortal20/KnowledgeBase/DOCUMENTATION/CLIConfi

g/FTOS/All_CONFIG%20Book_8212_13-Oct-09.pdf

21. In view of preceding paragraphs, each and every element of at least claim 1 of the 

‘921 Patent is found in the Accused Products.

22. Defendants continue to directly infringe at least one claim of the ‘921 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.

23. And upon information and belief, each and every element of at least one claim of 

the patent-in-suit is performed or practiced by Defendants at least through Defendants’ own use 

and configuration of its own Accused Products, and/or through Defendants’ own testing and 

configuration of its own Accused Products, and/or through Defendants’ providing services for its 

Accused Products, including but not limited to providing installation, deployment, support and 

configuration of its Accused Products.

24. In May 2020, Plaintiff filed a suit against Defendants asserting infringement of 

the same patent and by the same accused products that are asserted in this case. Plaintiff

dismissed the prior suit before filing this suit. As a result of the prior suit, Defendants had notice 

and actual or constructive knowledge of their infringement of the patent-in-suit since at least 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 76 of 103 Case 6:20-cv-00478-ADA Document 34 Filed 10/19/20 Page 7 of 10
May 2020, before the filing of this case. Further, Defendants had knowledge of their 

infringement of the patent-in-suit before the filing of this Amended Complaint.1

25. Since at least May 2020, through its actions, Defendants have actively induced 

product makers, distributors, retailers, and/or end users of the Accused Products to infringe the 

‘921 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.networkworld.com/article/2179414/dell-takes-deeper-dive-intonetworking--buys-force10.html

● https://www.force10networks.com/CSPortal20/KnowledgeBase/DOCUMENTATION/

1 Dell filed a motion to dismiss that is mooted by this amended complaint. Dell’s motion cites a 

WDTX case (which relies authority from the District of Delaware) for the proposition that 

knowledge of a plaintiff’s patent after the lawsuit was filed is insufficient to plead the requisite 

knowledge for indirect infringement. See Aguirre v. Powerchute Sports, LLC, No. SA-10-CV0702 XR, 2011 WL 2471299, at *3 (W.D. Tex. June 17, 2011) (citing Xpoint Techs. v. Microsoft 

Corp., 730 F.Supp.2d 349 (D. Del. 2010)). Several Delaware courts have since rejected this rule 

because there is no statutory basis to support it and because there is no purpose served by the 

formality of requiring the plaintiff to file an amended complaint in order to be allowed to assert 

knowledge of the patents during the period following the filing of the original complaint. See 

Walker Digital, LLC v. Facebook, Inc., 852 F. Supp. 2d 559, 566 (D. Del. 2012) (“The court 

acknowledges that this result is inconsistent with its prior decisions in Xpoint Techs. v. Microsoft 

Corp., 730 F.Supp.2d 349 (D.Del.2010), and EON Corp. IP Holdings LLC v. FLO TV Inc., 802 

F.Supp.2d 527 (D. Del. 2011). Given the ease of amendment, the limitation of damages to postknowledge conduct, and in the interests of judicial economy, the court finds that the better 

reasoning is to allow a complaint that satisfies Rule 8 to proceed to discovery rather than 

dismissing it for lack of pre-filing knowledge when, by the time the motion to dismiss has been 

filed, defendant in fact has the requisite knowledge as pled by plaintiff.”); see also IOENGINE, 

LLC v. PayPal Holdings, Inc., CV 18-452-WCB, 2019 WL 330515, at *4 (D. Del. Jan. 25, 2019) 

(“The Court sees no purpose that would be served by the formality of requiring IOENGINE to file 

an amended complaint in order to be allowed to assert knowledge of the patents during the period

following the filing of the original complaint.”).

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 77 of 103 Case 6:20-cv-00478-ADA Document 34 Filed 10/19/20 Page 8 of 10
CLIConfig/FTOS/All_CONFIG%20Book_8212_13-Oct-09.pdf

● https://cdn.competec.ch/documents/3/9/392428/DE_Handbuch_switch.pdf

● https://www.dell.com/support/article/us/en/04/how11548/how-to-install-dellnetworking-ftos-on-dell-open-networking-on-switches?lang=en

26. Since at least May 2020, through its actions, Defendants have contributed to the 

infringement of the ‘921 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 ‘921 Patent. The Accused Products are especially made or adapted 

for infringing the ‘921 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 ‘921 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 ‘921 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 ‘921 Patent;

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

the infringement of one or more claims of the ‘921 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 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 78 of 103 Case 6:20-cv-00478-ADA Document 34 Filed 10/19/20 Page 9 of 10
the infringement by Defendants of the ‘921 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: May 19, 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

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com 

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

COUNSEL FOR PLAINTIFF

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 79 of 103 Case 6:20-cv-00478-ADA Document 34 Filed 10/19/20 Page 10 of 10
EXHIBIT 3D

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 80 of 103
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.

§

§

§

§

§

§

§

§

§

§

§

§

NO. 6:20-cv-479-ADA

JURY TRIAL DEMANDED

FIRST AMENDED 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 First Amended Complaint (“Amended 

Complaint” or “Complaint”) for Patent Infringement against Dell Technologies Inc., Dell Inc., and 

EMC Corporation (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. is a Delaware 

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

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 81 of 103 Case 6:20-cv-00479-ADA Document 33 Filed 10/19/20 Page 1 of 12
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 Technologies Inc. 

5. On information and belief, defendant EMC Corporation 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. 

JURISDICTION AND VENUE

6. 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.

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

§§ 1331 and 1338(a).

8. 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 

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.

9. 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. 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 82 of 103 Case 6:20-cv-00479-ADA Document 33 Filed 10/19/20 Page 2 of 12
COUNT ONE - INFRINGEMENT OF 

U.S. PATENT NO. 8,402,129

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

Complaint.

11. On March 19, 2013, the United States Patent and Trademark Office duly and legally 

issued U.S. Patent No. 8,402,129 (“the ‘129 Patent”), entitled “Method and Apparatus for Efficient 

Reactive Monitoring.” A true and correct copy of the ‘129 Patent is attached as Exhibit A to this 

Complaint.

12. Brazos is the owner of all rights, title, and interest in and to the ‘129 Patent, 

including the right to assert all causes of action arising under the ‘129 Patent and the right to any 

remedies for the infringement of the ‘129 Patent.

13. 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, network 

management systems, including but not limited to, Dell EMC OpenManage Enterprise and Dell 

OpenManage Enterprise (OME) and OpenManage Network Manager (OMNM) applications 

(collectively, the “Accused Products”).

14. The Accused Products can provide a console for managing hardware devices, 

including Dell servers, storage arrays, tape libraries, network devices (switches/routers), printers, 

and clients distributed throughout a network. Dell OME can be integrated with OMNM to view 

networking information. From a central console, an administrator can exercise control based on 

proactive alerts and notifications. 

 

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15. Various devices that can be discovered and monitored by Dell OME.

Product Testing.

16. Dell OME identifies systems experiencing problems and alerts the administrator 

to help reduce the risk of system downtime. Using the web-enabled graphical user interface, one 

can monitor systems within the network. 

https://www.delltechnologies.com/en-us/solutions/openmanage/enterprise.htm

https://topics-cdn.dell.com/pdf/dell-openmanage-enterprise-v32_api-guide2_en-us.pdf

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Product Testing

17. Dell OME monitors various resources (e.g. “current” of system board) of nodes 

(i.e. monitored device) within the network. As an example, the alert with MESSAGE ID -

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 85 of 103 Case 6:20-cv-00479-ADA Document 33 Filed 10/19/20 Page 5 of 12
AMP0302 is generated for a monitored device when the system board current of the device (i.e. 

usage of resource) reaches beyond the upper warning threshold.

Product Testing.

18. The Accused Products poll the monitored devices on regular user-defined time 

interval bases irrespective of any alerts received from the monitoring devices. Dell OME 

provides independent settings and functionalities for alert policies and health check polling. 

19. Dell OME provides the ability for a user to define the time interval for the health 

poll recurrence and a Global health task performs the job repeatedly to poll the health of the 

devices in defined time intervals irrespective of the alerts received by Dell OME. When an alert 

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is received, the polling of the devices may occur independently at the user-defined interval (i.e. 

irrespective of the alert). 

Product Testing.

Product Testing.

 

 

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20. In view of preceding paragraphs, each and every element of at least claim 3 of the 

‘129 Patent is found in the Accused Products.

21. Defendants continue to directly infringe at least one claim of the ‘129 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.

22. And upon information and belief, each and every element of at least one claim of 

the patent-in-suit is performed or practiced by Defendants at least through Defendants’ own use 

and configuration of its own Accused Products, and/or through Defendants’ own testing and 

configuration of its own Accused Products, and/or through Defendants’ providing services for its 

Accused Products, including but not limited to providing installation, deployment, support and 

configuration of its Accused Products.

23. In May 2020, Plaintiff filed a suit against Defendants asserting infringement of 

the same patent and by the same accused products that are asserted in this case. Plaintiff

dismissed the prior suit before filing this suit. As a result of the prior suit, Defendants had notice 

and actual or constructive knowledge of their infringement of the patent-in-suit since at least 

May 2020, before the filing of this case. Further, Defendants had knowledge of their 

infringement of the patent-in-suit before the filing of this Amended Complaint.1 

24. Since at least May 2020, through its actions, Defendants have actively induced 

product makers, distributors, retailers, and/or end users of the Accused Products to infringe the 

1 Dell filed a motion to dismiss that is mooted by this amended complaint. Dell’s motion cites a 

WDTX case (which relies authority from the District of Delaware) for the proposition that 

knowledge of a plaintiff’s patent after the lawsuit was filed is insufficient to plead the requisite 

knowledge for indirect infringement. See Aguirre v. Powerchute Sports, LLC, No. SA-10-CV0702 XR, 2011 WL 2471299, at *3 (W.D. Tex. June 17, 2011) (citing Xpoint Techs. v. Microsoft 

Corp., 730 F.Supp.2d 349 (D. Del. 2010)). Several Delaware courts have since rejected this rule 

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 88 of 103 Case 6:20-cv-00479-ADA Document 33 Filed 10/19/20 Page 8 of 12
‘129 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.delltechnologies.com/en-us/solutions/openmanage/enterprise.htm

● https://topics-cdn.dell.com/pdf/dell-openmanage-enterprise-v32_api-guide2_en-us.pdf

● https://www.dell.com/support/article/en-us/sln312494/support-for-openmanageessentials?lang=en

● https://www.dell.com/support/article/en-us/sln310714/support-for-openmanageenterprise?lang=en

● https://www.dell.com/us/bsd/p/dell-openmanage-networkmanager/pd?c=us&cs=04&l=en&s=bsd&redirect=1

● https://www.youtube.com/watch?v=MNIJNVbeXLE

● https://topics-cdn.dell.com/pdf/openmanage-essentials-v25_users-guide_en-us.pdf

● https://topics-cdn.dell.com/pdf/dell-openmanage-server-administratorbecause there is no statutory basis to support it and because there is no purpose served by the 

formality of requiring the plaintiff to file an amended complaint in order to be allowed to assert 

knowledge of the patents during the period following the filing of the original complaint. See 

Walker Digital, LLC v. Facebook, Inc., 852 F. Supp. 2d 559, 566 (D. Del. 2012) (“The court 

acknowledges that this result is inconsistent with its prior decisions in Xpoint Techs. v. Microsoft 

Corp., 730 F.Supp.2d 349 (D.Del.2010), and EON Corp. IP Holdings LLC v. FLO TV Inc., 802 

F.Supp.2d 527 (D. Del. 2011). Given the ease of amendment, the limitation of damages to postknowledge conduct, and in the interests of judicial economy, the court finds that the better 

reasoning is to allow a complaint that satisfies Rule 8 to proceed to discovery rather than 

dismissing it for lack of pre-filing knowledge when, by the time the motion to dismiss has been 

filed, defendant in fact has the requisite knowledge as pled by plaintiff.”); see also IOENGINE, 

LLC v. PayPal Holdings, Inc., CV 18-452-WCB, 2019 WL 330515, at *4 (D. Del. Jan. 25, 2019) 

(“The Court sees no purpose that would be served by the formality of requiring IOENGINE to file 

an amended complaint in order to be allowed to assert knowledge of the patents during the period

following the filing of the original complaint.”).

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v8.3_connectivity-guide_en-us.pdf

● http://www.doradosoftware.com/_assets/downloads/omnm/omnmv8userguide.pdf

● https://www.dell.com/support/manuals/us/en/04/dell-openmanage-essentialsv2.2/ome22ug/status-polling-schedule-settings?guid=guid-1a47107a-e2c9-4102-b2e3-

938477093317&lang=en-us

● https://downloads.dell.com/manuals/allproducts/esuprt_ser_stor_net/esuprt_networking/dell-openmanage-networkmanager_owners-manual4_en-us.pdf

25. Since at least May 2020, through its actions, Defendants have contributed to the 

infringement of the ‘129 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 ‘129 Patent. The Accused Products are especially made or adapted 

for infringing the ‘129 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 ‘129 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 ‘129 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 ‘129 Patent;

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

the infringement of one or more claims of the ‘129 Patent;

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(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 ‘129 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.

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 91 of 103 Case 6:20-cv-00479-ADA Document 33 Filed 10/19/20 Page 11 of 12
Dated: October 19, 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

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com 

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

COUNSEL FOR PLAINTIFF

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EXHIBIT 4

Case 6:20-cv-00478-ADA Document 102 Filed 05/27/21 Page 93 of 103
UNITED STATES DISTRICT COURT

Western District of Texas

WACO DIVISION

WSOU INVESTMENTS LLC

vs.

DELL TECHNOLOGIES INC., DELL INC.,

EMC CORPORATION

§

§

§

§

§

NO: WA:20-CV-00475-ADA

ORDER GOVERNING PROCEEDINGS – PATENT CASE

This Order shall govern proceedings in this case. The following deadlines are hereby set:

This case is SET for a telephonic Rule 16 Case Management Conference on

Wednesday, October 21, 2020 at 1:30 p.m. Participants shall dial into the following

number 5 minutes before the scheduled time: 866.434.5269; access code 967-8090.

Lead counsel for each party, and all unrepresented parties, shall be present. Client

representatives are welcome to attend, but such attendance is not required. In person

attendance is permitted, but not required. Anyone planning to attend in person should so

inform the Court by contacting chambers not later than two court days before the

scheduled hearing so the Court can evaluate whether to hold the conference in the

courtroom, or in chambers. The Court expects the parties to be prepared to discuss:

a. an overview of the claims and defenses, including any unique issues the

parties believe should be addressed at this stage of the case;

b. issues involving the case schedule and potential amendments to the

Court’s default scheduling order, including the date for the Markman

Hearing;

c. issues relating to claim construction, including whether a live tutorial would be

of benefit to the Court;

d. issues relating to discovery, including potential amendments to the Court’s

default discovery limits or Protective Order; and,

e. any other issues the parties believe would lead to the just, speedy and

inexpensive determination of this action.

2. (Not later than 7 days before the CMC). Plaintiff shall serve preliminary infringement

 contentions in the form of a chart setting forth where in the accused product(s) each element

 of the asserted claims(s) are found. Plaintiff shall also identify the priority date (i.c.

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the earliest date of invention) for each asserted claim and produce: (1) all documents 

 evidencing conception and reduction to practice for each claimed invention, and (2) a copy

 of the file history for each patent in suit.

3. (Not later than 3 business days before the CMC). Lead counsel for each party shall meet and 

 confer (either in person or by telephone), to discuss whether they believe the Court’s default

 Scheduling Order and default Discovery Limits are appropriate for this case, and any issues

 relating to the management of this case they intend to raise at the CMC.

4. (Two weeks after the CMC). The Parties shall submit an agreed Scheduling Order. If the

 parties cannot agree, the parties shall submit a separate Joint Motion for entry of each Order

 briefly setting forth their respective positions on items where they cannot agree. Absent

 agreement of the parties, the Plaintiff shall be responsible for the timely submission of this

 and other Joint filings.

5. (Two weeks after the CMC). Deadline for Motions to Transfer. The Court also adopts the

 following page limits and briefing schedule for Motions to Transfer:

 a. Opening – 15 pages

 b. Response – 15 pages, due 14 days after the Opening brief

 c. Reply – 5 pages, due 7 days after the Response brief

6. (Seven weeks after the CMC). Defendant shall serve preliminary invalidity contentions in the

 form of (1) a chart setting forth where in the prior art references each element of the asserted

 claim(s) are found, (2) an identification of any limitations the Defendant contends are

 indefinite or lack written description under section 112, and (3) an identification of any

 claims the Defendant contends are directed to ineligible subject matter under section 101.

 Defendant shall also produce (1) all prior art referenced in the invalidity contentions, (2)

 technical documents, including software where applicable, sufficient to show the operation 

 of the accused product(s), and (3) summary, annual sales information for the accused 

 product(s) for the two years preceding the filing of the Complaint,1 unless the parties agree to

 some other timeframe.

DISCOVERY 

Except with regard to venue, jurisdictional, and claim construction-related discovery, all other

discovery is stayed until after the Markman hearing. Notwithstanding this general stay of discovery,

the Court will permit limited discovery by agreement of the parties, or upon request, where

exceptional circumstances warrant. For example, if discovery outside the United States is

contemplated, the Court will be inclined to allow such discovery to commence before the Markman

hearing.

1 With regard to expired patents, the sales information shall be provided for the two years preceding expiration.

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With respect to venue and jurisdictional discovery, the Court generally grants leave for the parties to

conduct targeted discovery (including, but not limited to requests for production, interrogatories, and

depositions) with regard to motions to transfer venue or motions to dismiss based on lack of

jurisdiction. If the parties disagree as to what reasonable discovery limits are, the Court encourages

the parties to contact the Court to request a telephonic discovery hearing.

Following the Markman hearing, the following discovery limits will apply to this case. The Court

will consider reasonable requests to adjust these limits should circumstances warrant.

 1. Interrogatories: 30 per side2

 2. Requests for Admission: 45 per side

 3. Requests for Production: 75 per side

 4. Fact Depositions: 70 hours per side (for both party and non-party witnesses combined)

 5. Expert Depositions: 7 hours per report3 

Electronically Stored Information. As a preliminary matter, the Court will not require general

search and production of email or other electronically stored information (ESI), absent a showing of

good cause. If a party believes targeted email/ESI discovery is necessary, it shall propose a procedure

identifying custodians and search terms it believes the opposing party should search. The opposing

party can oppose, or propose an alternate plan. If the parties cannot agree, they shall contact

chambers to schedule a call with the Court to discuss their respective positions.

DISCOVERY DISPUTES 

A party may not file a Motion to Compel discovery unless: (1) lead counsel have met and conferred

in good faith to try to resolve the dispute, and (2) the party has contacted the Court’s law clerk (with

opposing counsel) to arrange a telephone conference with the Court to summarize the dispute and the

parties respective positions. After hearing from the parties, the Court will determine if further

briefing is required.

PROTECTIVE ORDER 

Pending entry of the final Protective Order, the Court issues the following interim Protective Order

to govern the disclosure of confidential information in this matter:

 If any document or information produced in this matter is deemed confidential by the 

 producing party and if the Court has not entered a protective order, until a protective 

 order is issued by the Court, the document shall be marked “confidential” or with some

2 A “side” shall mean the plaintiff (or related plaintiffs suing together) on the one hand, and the defendant (or

related defendants sued together) on the other hand. In the event that the Court consolidates related cases for

pretrial purposes, with regard to calculating limits imposed by this Order, a “side” shall be interpreted as if the

cases were proceeding individually. For example, in consolidated cases the plaintiff may serve up to 30

interrogatories on each defendant, and each defendant may serve up to 30 interrogatories on the plaintiff.

3 For example, if a single technical expert submits reports on both infringement and invalidity, he or she may be

deposed for up to 14 hours in total.

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other confidential designation (such as “Confidential – Outside Attorneys Eyes

Only”) by the disclosing party and disclosure of the confidential document or

information shall be limited to each party’s outside attorney(s) of record and the

employees of such outside attorney(s).

If a party is not represented by an outside attorney, disclosure of the confidential

document or information shall be limited to one designated “in house” attorney, whose

identity and job functions shall be disclosed to the producing party 5 days prior to any

such disclosure, in order to permit any motion for protective order or other relief

regarding such disclosure. The person(s) to whom disclosure of a confidential

document or information is made under this local rule shall keep it confidential and

use it only for purposes of litigating the case.

CLAIM CONSTRUCTION ISSUES

Terms for Construction. Based on the Court’s experience, the Court believes that it should

have presumed limits on the number of claim terms to be construed. The “presumed limit” is

the maximum number of terms that the parties may request the Court to construe without

further leave of Court. If the Court grants leave for the additional terms to be construed,

depending on the complexity and number of terms, the Court may split the Markman hearing

into two hearings.

The presumed limits based on the number of patents-in-suit are as follows:

Limits for Number of Claim Terms to be Construed

1-2 Patents 3-5 Patents More than 5 Patents

10 terms 12 terms 15 terms

When the parties submit their joint claim construction statement, in addition to the term and

the parties’ proposed constructions, the parties should indicate which party or side proposed

that term, or if that was a joint proposal.

Claim Construction Briefing. The Court will require simultaneous claim construction

briefing with the following default page limits; however, where exceptional circumstances

warrant, the Court will consider reasonable requests to adjust these limits. These page limits

shall also apply collectively for consolidated cases; however, the Court will consider

reasonable requests to adjust page limits in consolidated cases where circumstances warrant.

In addition, the Court is very familiar with the law of claim construction and encourages the

parties to forego lengthy recitations of the underlying legal authorities and instead focus on the

substantive issues unique to each case.

Unless otherwise agreed by the parties, all simultaneous filings will take place at 5:00 p.m. CT.

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Page Limits for Markman Briefs

Brief 1-2 Patents 3-5 Patents More than 5 Patents

Opening 20 pages 30 pages 30 pages, plus 5

additional pages for

each patent over 5 up

to a maximum of 45

pages

Response 20 pages 30 pages 30 pages, plus 5

additional pages for

each patent over 5 up

to a maximum of 45

pages

Reply 10 pages 15 pages 15 pages, plus 2

additional pages for

each patent over 5 up

to a maximum of 21

pages

Conduct of the Markman Hearing.

The Court generally sets aside one half day for the Markman hearing; however, the Court is

open to reserving more or less time, depending on the complexity of the case and input from

the parties. The Court requires submission of technology tutorials in advance of the Markman

hearing when they may be of benefit. The parties may submit tutorials in electronic form not

later than one week before the Markman hearing and the Court encourages the parties to aim

for tutorials with voiceovers in the 15 minute range. If a party intends to present a live tutorial,

the parties should contact the Court to set-up a Zoom or telephonic tutorial to occur at least a

week before the Markman hearing. In general, tutorials should be: (1) directed to the

underlying technology (rather than argument related to infringement or validity), and (2)

limited to 15 minutes per side. For the Court’s convenience, the tutorial may be recorded, but

will not be part of the record. Parties may not rely on or cite to the tutorial in other aspects of the

litigation.

The Court will consider the parties suggestions on the order of argument at the Markman

hearing. However, if the parties do not suggest a different procedure, the Court will allow the

Plaintiff to pick the first term and then alternate by term. As a general rule, if one side

proposes “plain and ordinary meaning” as its construction or asserts that a term is indefinite,

the other party shall go first.

GENERALISSUES

1. The Court does not have a limit on the number of motions for summary judgment (MSJs);

 however, absent leave of Court, the cumulative page limit for Opening Briefs for all MSJs

 is 40 pages per side.

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2. There may be instances where the submission of substantive briefs via audio file will be of

 help to the Court. If a party is contemplating submitting a brief via audio file it should 

 contact the Court for guidance on whether it would be helpful to the Court. However, the

Court has determined that audio recordings of Markman briefs are of limited value and those

 need not be submitted. The recordings shall be made in a neutral fashion, shall be verbatim

 transcriptions without additional colloquy (except that citations and legal authority sections

 need not be included), and each such file shall be served on opposing counsel. The Court

 does not have a preference for the manner of recording and has found automated software

 recordings, as well as attorney recordings, to be more than satisfactory. Audio files shall be

 submitted via USB drive, Box (not another cloud storage), or email to the law clerk (with a

 cc to opposing counsel) and should be submitted in mp3 format.

3. The Court will entertain reasonable requests to streamline the case schedule and 

 discoveryand encourages the parties to contact the Court’s law clerk (with opposing counsel)

 toarrange a call with the Court when such interaction might help streamline the case.

4. The Court is generally willing to extend the response to the Complaint up to 45 days ifagreed

 by the parties. However, longer extensions are disfavored and will require goodcause.

5. For Markman briefs, summary judgment motions, and Daubert motions, each party 

 shalldeliver to Chambers one (1) paper copy of its Opening, Response, and Reply Briefs,

 omittingattachments, no later than one week after the last-filed brief or at least a week before

 the hearing, whichever is earlier.

6. Plaintiff must file a notice informing the Court when an IPR is filed, the expected time for an

 institution decision, and the expected time for a final written decision, within two weeks of

 the filing of the IPR.

7. To the extent the parties need to email the Court, the parties should use the following

 emailaddress: TXWDml_LawClerks_JudgeAlbright@txwd.uscourts.gov.

ORDERED this 5th day of October, 2020.

ALAN D ALBRIGHT

UNITED STATES DISTRICT JUDGE

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APPENDIX A – DEFAULT SCHEDULE

Deadline Item

7 days before CMC Plaintiff serves preliminary4

infringement contentions in the

form of a chart setting forth where in the accused product(s)

each element of the asserted claim(s) are found. Plaintiff shall

also identify the earliest priority date (i.e. the earliest date of

invention) for each asserted claim and produce: (1) all

documents evidencing conception and reduction to practice

for each claimed invention, and (2) a copy of the file history

for each patent in suit.

2 weeks after CMC Deadline for Motions to Transfer.

7 weeks after CMC Defendant serves preliminary invalidity contentions in the

form of (1) a chart setting forth where in the prior art

references each element of the asserted claim(s) are found, (2)

an identification of any limitations the Defendant contends are

indefinite or lack written description under section 112, and

(3) an identification of any claims the Defendant contends are

directed to ineligible subject matter under section 101.

Defendant shall also produce (1) all prior art referenced in the

invalidity contentions, (2) technical documents, including

software where applicable, sufficient to show the operation of

the accused product(s), and (3) summary, annual sales

information for the accused product(s) for the two years

preceding the filing of the Complaint, unless the parties agree

to some other timeframe.

9 weeks after CMC Parties exchange claim terms for construction.

11 weeks after CMC Parties exchange proposed claim constructions.

12 weeks after CMC Parties disclose extrinsic evidence. The parties shall disclose

any extrinsic evidence, including the identity of any expert

witness they may rely upon with respect to claim construction

or indefiniteness. With respect to any expert identified, the

parties shall also provide a summary of the witness’s expected

testimony including the opinions to be expressed and a

general description of the basis and reasons therefor. A

4 The parties may amend preliminary infringement contentions and preliminary invalidity contentions without

leave of court so long as counsel certifies that it undertook reasonable efforts to prepare its preliminary

contentions and the amendment is based on material identified after those preliminary contentions were served,

and should do so seasonably upon identifying any such material. Any amendment to add patent claims requires

leave of court so that the Court can address any scheduling issues.

7

OGP Version 3.0

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failure to summarize the potential expert testimony in a good

faith, informative fashion may result in the exclusion of the

proffered testimony. With respect to items of extrinsic

evidence, the parties shall identify each such item by

production number or produce a copy of any such item if not

previously produced.

13 weeks after CMC Deadline to meet and confer to narrow terms in dispute and

exchange revised list of terms/constructions.

14 weeks after CMC Parties file Opening claim construction briefs, including any

arguments that any claim terms are indefinite.

17 weeks after CMC Parties file Responsive claim construction briefs.

19 weeks after CMC Parties file Reply claim construction briefs.

20 weeks after CMC Parties submit Joint Claim Construction Statement. In

addition to filing, the parties shall jointly submit, via USB

drive, Box (not another cloud storage),5 or email to the law

clerk, pdf versions of all as-filed briefing and exhibits. Each

party shall deliver to Chambers paper copies of its Opening,

Response , and Reply Markman Briefs, omitting attachments.

Absent agreement of the parties, the Plaintiff shall be

responsible for the timely submission of this and other Joint

filings.

23 weeks after CMC (but

at least 1 week before

Markman hearing)

Parties submit optional technical tutorials. The parties shall

also jointly submit, via USB drive, Box (not another cloud

storage), or email to the law clerk, pdf versions of all as-filed

briefing and exhibits.

24 weeks after CMC (or as

soon as practicable)

Markman Hearing at [9:00 a.m. or 1:00 p.m.]

1 business day after

Markman hearing

Fact Discovery opens; deadline to serve Initial Disclosures per

Rule 26(a).

6 weeks after Markman

hearing

Deadline to add parties.

8 weeks after Markman

hearing

Deadline to serve Final Infringement and Invalidity

Contentions. After this date, leave of Court is required for

any amendment to Infringement or Invalidity contentions.

This deadline does not relieve the Parties of their obligation to

5 To the extent a party wishes to use cloud storage, the parties should contact the law clerk to request a Box link

so that the party can directly upload the file to the Court’s Box account.

8

OGP Version 3.0

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seasonably amend if new information is identified after initial

contentions.

12 weeks after Markman

hearing

Deadline to amend pleadings. A motion is not required unless

the amendment adds patents or patent claims.

26 weeks after Markman Deadline for the first of two meet and confers to discuss

significantly narrowing the number of claims asserted and

prior art references at issue. Unless the parties agree to the

narrowing, they are ordered to contact the Court’s Law Clerk

to arrange a teleconference with the Court to resolve the

disputed issues.

30 weeks after Markman

hearing

Close of Fact Discovery.

31 weeks after Markman

hearing

Opening Expert Reports.

35 weeks after Markman

hearing

Rebuttal Expert Reports.

38 weeks after Markman

hearing

Close of Expert Discovery.

39 weeks after Markman

hearing

Deadline for the second of two meet and confer to discuss

narrowing the number of claims asserted and prior art

references at issue to triable limits. To the extent it helps the

parties determine these limits, the parties are encouraged to

contact the Court’s Law Clerk for an estimate of the amount

of trial time anticipated per side. The parties shall file a Joint

Report within 5 business days regarding the results of the

meet and confer.

40 weeks after Markman

hearing

Dispositive motion deadline and Daubert motion deadline.

42 weeks after Markman

hearing

Serve Pretrial Disclosures (jury instructions, exhibits lists,

witness lists, discovery and deposition designations).

44 weeks after Markman

hearing

Serve objections to pretrial disclosures/rebuttal disclosures.

45 weeks after Markman

hearing

Serve objections to rebuttal disclosures and File Motions in

limine.

9

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46 weeks after Markman

hearing

File Joint Pretrial Order and Pretrial Submissions (jury

instructions, exhibits lists, witness lists, discovery and

deposition designations); file oppositions to motions in limine

47 weeks after Markman

hearing

File Notice of Request for Daily Transcript or Real Time

Reporting. If a daily transcript or real time reporting of court

proceedings is requested for trial, the party or parties making

said request shall file a notice with the Court and e-mail the

Court Reporter, Kristie Davis at kmdaviscsr@yahoo.com

Deadline to meet and confer regarding remaining objections

and disputes on motions in limine.

3 business days before

Final Pretrial Conference.

File joint notice identifying remaining objections to pretrial

disclosures and disputes on motions in limine.

49 weeks after Markman

hearing (or as soon as

practicable)

Final Pretrial Conference. The Court expects to set this date

at the conclusion of the Markman Hearing.

52 weeks after Markman

hearing (or as soon as

practicable)6

Jury Selection/Trial. The Court expects to set these dates at

the conclusion of the Markman Hearing.

6 If the actual trial date materially differs from the Court’s default schedule, the Court will consider reasonable

amendments to the case schedule post-Markman that are consistent with the Court’s default deadlines in light of

the actual trial date.

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