IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC d/b/a BRAZOS 

LICENSING AND DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC., DELL INC., 

AND EMC CORPORATION,

Defendants.

Case No. 6:20-cv-00474-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT

FOR FAILURE TO STATE A CLAIM

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 1 of 23
i

TABLE OF CONTENTS

Page

I. BACKGROUND .................................................................................................................2

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

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

II. LEGAL STANDARD..........................................................................................................5

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

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

III. ARGUMENT.......................................................................................................................7

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

with “Connection-Based Networks” .........................................................................8

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

“Priorities” To “Service Interfaces” ..........................................................................9

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

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

1. Plaintiff’s Indirect Infringement Claims Fail Without Direct Infringement....11

2. Plaintiff Fails to Allege the Requisite Knowledge for Indirect Infringement .11

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

Infringement.....................................................................................................13

4. Plaintiff Fails to Allege the Requisite Lack of Substantial Non-Infringing Uses 

for Contributory Infringement .........................................................................14

IV. CONCLUSION..................................................................................................................15

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 2 of 23
ii

TABLE OF AUTHORITIES

Page(s)

CASES

Addiction & Detoxification Inst. L.L.C. v. Carpenter,

620 F. App’x 934 (Fed. Cir. 2015) ......................................................................................6, 14

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

No. W:13-CV-365, 2014 WL 2892285 (W.D. Tex. May 12, 2014) ...................................7, 14

Aguirre v. Powerchute Sports, LLC,

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

Amgen Inc. v. Coherus BioSciences Inc.,

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

Artrip v. Ball Corp.,

735 F. App’x 708 (Fed. Cir. 2018) ......................................................................................6, 15

Ashcroft v. Iqbal,

556 U.S. 662 (2009)...............................................................................................................5, 6

Bell Atl. Corp. v. Twombly,

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

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

904 F. Supp. 2d 1260 (M.D. Fla. 2012)...................................................................................13

Collins v. Morgan Stanley Dean Witter,

224 F.3d 496 (5th Cir. 2000) .....................................................................................................4

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

135 S. Ct. 1920 (2015).........................................................................................................6, 11

De La Vega v. Microsoft Corp.,

2020 WL 3528411 (W.D. Tex. Feb. 11, 2020)..................................................................6, 7, 8

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

No. CV 18-098 (MN), 2018 WL 6629709 (D. Del. Dec. 19, 2018)........................................14

DSU Med. Corp. v. JMS Co.,

471 F.3d 1293 (Fed. Cir. 2006)................................................................................................13

Dynamic Data Techs., LLC v. Amlogic Holdings Ltd.,

C.A. No. 19-1239-CFC, 2020 WL 4365809 (D. Del. July 30, 2020)......................................12

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 3 of 23
TABLE OF AUTHORITIES (continued)

Page(s)

iii

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

909 F.3d 398 (Fed. Cir. 2018)..............................................................................................6, 11

Fujitsu Ltd. v. Netgear Inc.,

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

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

563 U.S. 754 (2011)...................................................................................................................7

Hypermedia Navigation LLC v. Google LLC,

No. 18-CV-06137-HSG, 2019 WL 1455336 (N.D. Cal. Apr. 2, 2019)...................................14

Intellectual Ventures I LLC v. Motorola Mobility LLC,

870 F.3d 1320 (Fed. Cir. 2017)............................................................................................6, 11

Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,

594 F.3d 383 (5th Cir. 2010) .................................................................................................4, 8

Lormand v. US Unwired, Inc.,

565 F.3d 228 (5th Cir. 2009) .....................................................................................................6

Orlando Commc’ns LLC v. LG Elecs., Inc.,

No. 6:14-CV-1017-ORL-22, 2015 WL 1246500 (M.D. Fla. Mar. 16, 2015)..........................13

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

No. 6:19-CV-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019)......................13, 14

Parus Holdings Inc. v. Apple Inc.,

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

Proxyconn Inc. v. Microsoft Corp.,

No. SACV 11-1681 DOC ANX, 2012 WL 1835680 (C.D. Cal. May 16, 2012) ....................12

Simplivity Corp. v. Springpath, Inc.,

No. CV 4:15-13345-TSH, 2016 WL 5388951 (D. Mass. July 15, 2016)................................13

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

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

VLSI Tech. LLC v. Intel Corp.,

C.A. No. 18-966-CFC, 2019 WL 1349468 (D. Del. Mar. 26, 2019).......................................12

STATUTES

35 U.S.C. § 271(a) ...........................................................................................................................6

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 4 of 23
TABLE OF AUTHORITIES (continued)

Page(s)

iv

RULES

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

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TABLE OF ABBREVIATIONS

Abbreviation Term

’536 patent U.S. Patent No. 7,212,536

Accused Products Force 10 Networks’ MXL switches

Amended Complaint 

or Am. Compl.

First Amended Complaint For Patent Infringement (D.I. 34)

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

IP Internet Protocol

Original Complaint 

or Original Compl.

Original Complaint For Patent Infringement (D.I. 1)

QoS Quality of Service

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

Development 

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 6 of 23
I. INTRODUCTION

After Defendants identified the fundamental difference between the claimed connectionbased network technology and the accused connection-less network technology, Plaintiff 

amended its complaint. But Plaintiff still has not plausibly alleged infringement in this case, and 

cannot do so. Despite Defendants’ prior challenge on this basis, Plaintiff’s Amended Complaint

completely ignores the “connection-based network” limitation that is explicitly required by every 

claim of the ’536 patent and fails to provide any facts upon which this limitation could be met. 

This is unsurprising because the very documents on which Plaintiff relies on to show that the 

accused products use a connectionless network, i.e., the opposite of what is claimed. 

Similarly, the asserted claim requires a mapping between a user priority from an incoming 

frame and a specific outgoing channel in the connection-based network. The Amended Complaint 

still fails to even allege that such a mapping exists; nor could it, as the concepts recited in the 

claims have no meaning in a connectionless network. Since the documents on which Plaintiff 

relies demonstrate non-infringement, the Amended Complaint should be dismissed. 

The indirect infringement allegations fare no better. Plaintiff’s Original Complaint alleged 

knowledge of the patent only as of the date of the Complaint, which this Court has repeatedly held 

is insufficient to sustain a claim of indirect infringement. The Amended Complaint tries—and 

fails—to circumvent that clear rule by alleging knowledge based on a complaint Plaintiff earlier 

filed and dismissed before filing the present case. Neither basis is sufficient; Plaintiff still has not 

adequately alleged pre-suit knowledge of the patent. The indirect allegations also fail to allege 

other requisite elements of induced and contributory infringement. 

This is a textbook case for dismissal on the pleadings under Iqbal and Twombly. Defendant 

pointed out a critical deficiency in Plaintiff’s allegations. Plaintiff amended its complaint, but the 

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 7 of 23
2

same fundamental problem remains. Plaintiff’s inability to address the deficiencies show that 

further opportunity to amend would be futile. Indeed, the very documents upon which Plaintiff 

relies contradict any claim for infringement. This case should be dismissed. 

II. BACKGROUND

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

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

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

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

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

providing a mapping between user priorities and channels. Id. 

Plaintiff asserts claim 1 in the Amended Complaint:

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

of a plurality of priorities, the apparatus comprising: 

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

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

channel in a connection-based network; 

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

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

interfaces; 

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

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

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

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

associated with the identified service interface.

Id., cl. 1 (emphases added).

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

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

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

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 8 of 23
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51. For example, the ’536 patent explains that the prior art IEEE 802.1D protocol describes how 

to map user priorities to different egress queues. Id., 1:54–56. According to the patent, such an 

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

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

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

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

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

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

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

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

capable of carrying data between bridges.” Id., 3:46–48 (emphasis added). Indeed, the term 

“connection-based network” is used over 40 times in the patent, including in every independent 

claim. See generally id. 

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

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

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

connection-based network. Id., 4:54–57 (emphasis added). Based on the incoming priority, the 

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 9 of 23
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bridge will assign a frame to a particular channel in the connection-based network, and thus to a 

different service interface. Id., 6:22–25. 

B. The Accused Products Interface With Connectionless Networks 

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

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

document cited in the Amended Complaint, the Accused Products are network switches that 

support traffic using the Internet Protocol (“IP”). Rosenthal Decl., Ex. A (Dell Power Connect 

5500 Series System User Guide) at 14–15.1 IP is universally known to be the quintessential 

connectionless protocol. See Rosenthal Decl., Ex. B (Dictionary of Networking 2000) at 199 

(distinguishing between “connectionless IP and connection-oriented ATM”).2 

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

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

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

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

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

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

1 The Dell Power Connection 5500 Series System User Guide was incorporated into the 

Complaint. Am. Compl., ¶¶ 13–20; see Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 

F.3d 383, 387 (5th Cir. 2010) (“The court’s review is limited to the complaint, any documents 

attached to the complaint, and any documents attached to the motion to dismiss that are central to 

the claim and referenced by the complaint.” (citing Collins v. Morgan Stanley Dean Witter, 224 

F.3d 496, 498–99 (5th Cir. 2000))). 

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

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

cannot reasonably be questioned.”); The B.V.D. Licensing Corp. v. Body Action Design, Inc., 846 

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

which need not be proved, and whatever is generally known within their jurisdiction. To that end, 

dictionaries and encyclopedias may be consulted.” (citations omitted)).

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 10 of 23
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contents. Id. at 641. After the Accused Products assign a packet to a specific interface, the 

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

on that classification. Id. (“Assigns incoming packets to forwarding queues. Packets are sent to a 

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

Plaintiff’s indirect infringement allegations in its Original Complaint amounted to three 

sentences that parrot the legal elements and two website links that fail to support Plaintiff’s claims. 

See Original Compl. ¶¶ 23–25. Those allegations completely failed to allege that Defendants had 

knowledge of the patent and knowledge of the infringement before Plaintiff filed suit. See id. 

Plaintiff’s Amended Complaint fails to fix the deficiencies in the Original Complaint. 

Plaintiff now alleges knowledge of the patent based on the filing, and dismissal, of an earlier 

complaint—which was not served—asserting the same patent. See Am. Compl. ¶ 24; Rosenthal 

Decl., Ex. E (Redline comparison of Original and Amended Complaint).

III. LEGAL STANDARD 

A. Direct Infringement 

A complaint should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil 

Procedure if it “fail[s] to state a claim upon which relief can be granted.” The complaint must 

include more than “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff 

must allege non-conclusory facts that make liability “plausible,” meaning that they “allow[] the 

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

Ashcroft, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by 

mere conclusory statements, do not suffice.” Id. “Where a complaint pleads facts that are merely 

consistent with a defendant’s liability, it stops short of the line between possibility and plausibility 

of entitlement to relief.” Id. (internal quotation marks omitted). Additionally, “under any pleading 

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 11 of 23
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standard, a complaint must put a defendant ‘on notice as to what he must defend.’” Artrip v. Ball 

Corp., 735 F. App’x 708, 715 (Fed. Cir. 2018) (affirming district court’s dismissal of complaint 

that used broad functional language copied from patent). Only those complaints which state a 

plausible claim for relief survive a motion to dismiss, and the reviewing court makes this 

determination by drawing on its “judicial experience and common sense.” Ashcroft, 556 U.S. at 

679; see Lormand v. US Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (“The complaint (1) on 

its face (2) must contain enough factual matter (taken as true) (3) to raise a reasonable hope or 

expectation (4) that discovery will reveal relevant evidence of each element of a claim.”). For a 

claim of patent infringement, the alleged infringer can only be liable if it “makes, uses, offers to 

sell, or sells” the allegedly infringing product. See 35 U.S.C. § 271(a). This requires that the 

plaintiff—at a minimum—plead facts that identify an allegedly infringing product and describe 

how that allegedly infringing product infringes. See De La Vega v. Microsoft Corp., 2020 WL 

3528411, at *6–7 (W.D. Tex. Feb. 11, 2020).

B. Induced and Contributory Infringement 

To plead indirect infringement, the complaint must first plead direct infringement by a third 

party. See Intellectual Ventures I LLC v. Motorola Mobility LLC, 870 F.3d 1320, 1329 (Fed. Cir. 

2017) (“A finding of direct infringement is predicate to any finding of indirect infringement[.]”); 

Enplas Display Device Corp. v. Seoul Semiconductor Co., Ltd., 909 F.3d 398, 407 (Fed. Cir. 2018) 

(same). 

For both induced and contributory infringement, plaintiff must also plead facts to support 

an inference of each defendant’s “knowledge of the patent in suit and knowledge of patent 

infringement.” Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1926 (2015); see Addiction 

& Detoxification Inst. L.L.C. v. Carpenter, 620 F. App’x 934, 938 (Fed. Cir. 2015). 

For induced infringement, Plaintiff additionally must plead facts showing that each 

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 12 of 23
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defendant “had [a] specific intent to induce the [third party’s] patent infringement.” Affinity Labs 

of Texas, LLC v. Toyota Motor N. Am., No. W:13-CV-365, 2014 WL 2892285, at *2 (W.D. Tex. 

May 12, 2014). The “specific intent” element is “demanding” and requires more than 

“unsubstantiated assertions” or “generalized allegations” as to the intent of the alleged infringer. 

Id. at *7, *21. Specific intent requires more than knowledge of the induced acts; rather, the accused 

infringer must have “knowledge that the induced acts constitute patent infringement.” GlobalTech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011). 

For contributory infringement, Plaintiff must also plead “that the component has no 

substantial noninfringing uses, and [] that the component is a material part of the 

invention.” Affinity Labs, 2014 WL 2892285, at *8 (citing Fujitsu Ltd. v. Netgear Inc., 620 F.3d 

1321, 1326 (Fed. Cir. 2010)). 

IV. ARGUMENT

Even after amending its complaint, Plaintiff has still not plausibly alleged that the Accused 

Products meet the claim limitations because the Amended Complaint demonstrates that: (1) the 

Accused Products do not have “service interfaces associated with a channel in a connection-based 

network”; and (2) the Accused Products do not have a “map providing correspondence between 

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

to identify any functionality that allegedly meets these limitations, Plaintiff cannot satisfy the 

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

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

theory); De La Vega, 2020 WL 3528411, at *6–7 (emphasis added). Further opportunity to amend 

would be futile because the Accused Products simply do not meet these limitations.

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 13 of 23
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A. Plaintiff Has Not Plausibly Alleged That The Accused Products Interface 

With “Connection-Based Networks” 

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

network” limitation of asserted claim 1 (and required in every independent claim). “Connectionbased networks” are fundamental to the alleged invention. The limitation is recited in every 

independent claim, including multiple separate claim limitations in the sole Asserted Claim, claim 

1. ’536 patent, cl. 1, elements [a] and [c]. Further underscoring the importance of a connectionbased network, the term is used over 40 times throughout the specification. See generally id. 

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

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

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

as IEEE 802.1D), which were not for connection-based networks and instead mapped “user 

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

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

network” limitation. The word “connection” is entirely absent from the Amended Complaint. 

Nowhere does Plaintiff allege that the Accused Products have “service interfaces associated with 

a channel in a connection-based network.” See, e.g., Compl. ¶¶ 14–21. Nor can it. The Accused 

Products indisputably do not interface with connection-based networks. As is evident from the 

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

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

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

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

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

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

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

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

patent, 1:38–57; see Lone Star, 594 F.3d at 387.

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 14 of 23
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documents cited in the Amended Complaint, the Accused Products are IP network switches. Ex. 

A at 14–15. IP is a protocol for connectionless networks—i.e., the exact opposite of the 

“connection-based network” required by the claims. Ex. B at 199. As such, Plaintiff did not 

allege, and cannot plausibly allege, that the accused connectionless switches meet the “connectionbased network” limitation. This alone mandates dismissal of the Amended Complaint.

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

“Priorities” To “Service Interfaces”

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

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

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

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

indicates corresponds to the read user priority and forward the data frame over the channel in the 

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

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

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

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

the next bridge).

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

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

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

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

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

at 646. The QoS—which is the alleged priority—is used by the Accused Products to assign 

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

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 15 of 23
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interface. Ex. A at 641. QoS is therefore used to assign a packet to a particular egress queue 

within a single interface. Indeed, that document explains that each interface can have its own 

mapping. Id. at 668 (“[E]ach port is bound with, at most, one policy map.”); Am. Compl., ¶ 17. 

This is just like IEEE 802.1D—which the patent acknowledges as prior art—that “map[s] user 

priorities to service queues.” ’536 patent, 1:56–57 (emphasis added). The claims, on the other 

hand, plainly require that the map link the user priority with a specific service interface, not a 

queue within a service interface. See ’536 patent, cl. 1. 

In the Amended Complaint, Plaintiff added an allegation that the Accused Products 

“provide configurations at the subinterface level (i.e., another level of interface configuration 

mode).” Am. Compl., ¶ 16. This allegation, however, simply states that there may be certain 

configurations that can be applied at a subinterface level. It has nothing to do with Plaintiff’s 

allegations related to QoS because the same document makes clear that “[a] single QoS mode is 

selected and applies to all interfaces in the system.” Ex. A at 641 (emphasis added). 

As a result, Plaintiff has not alleged and cannot plausibly allege that the required mapping 

is met, requiring dismissal of the Amended Complaint.

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

Infringement 

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

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

and contributory infringement. Beyond that failing, Plaintiff has further failed to adequately plead 

any pre-suit knowledge by Defendants of the patent, or pre-suit knowledge by Defendants of 

alleged infringement. Plaintiff also fails to plead a specific intent to induce infringement. And 

Plaintiff has not pled, and cannot plead, that there are no substantial non-infringing uses. Each of 

these failures independently warrants dismissal of Plaintiff’s indirect infringement allegations. 

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1. Plaintiff’s Indirect Infringement Claims Fail Without Direct 

Infringement

Plaintiff’s indirect infringement allegations are insufficient as a matter of law as Plaintiff 

fails to plausibly allege direct infringement. See supra § IV.A. It is axiomatic that “‘[i]n order to 

succeed on a claim of inducement, the patentee must show, first that there has been direct 

infringement.’” Enplas, 909 F.3d at 407 (citation omitted); see also Intellectual Ventures, 870 

F.3d at 1329 (“A finding of direct infringement is predicate to any finding of indirect 

infringement . . .”). As a result, Plaintiff has also failed to adequately plead its claims of induced 

and contributory infringement, and these claims should be dismissed. 

2. Plaintiff Fails to Allege the Requisite Knowledge for Indirect 

Infringement

Plaintiff’s indirect infringement claims fail because they do not adequately plead the 

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

135 S. Ct. at 1926. As courts in this District have held, the knowledge requirements for indirect 

infringement require pre-suit knowledge. See Aguirre v. Powerchute Sports, LLC, No. SA-10-

CV-0702 XR, 2011 WL 2471299, at *3 (W.D. Tex. June 17, 2011) (holding that reliance “on 

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

knowledge for indirect infringement”). Moreover, this Court has held—earlier this year—that 

allegations of knowledge based on a prior filed complaint are not enough to overcome a motion to 

dismiss. See Parus Holdings Inc. v. Apple Inc., No. 6:19-cv-432, Feb. 20, 2020 Text Order 

GRANTING D.I. 54 (dismissing indirect infringement claims where plaintiff’s only allegation of 

knowledge were that “Defendant Apple has had knowledge of the ’431 Patent since at least the 

filing of the original complaint” and “[b]y the time of trial, Defendant Apple will have known 

and intended (since receiving such notice) that their continued actions would actively induce the 

infringement”) (quoting D.I. 28 (Am. Compl.) at ¶ 44 (emphasis added)).

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 17 of 23
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The Amended Complaint includes an erroneous footnote that attempts to distinguish 

Aguirre by asserting that “Delaware courts have since rejected this rule.” Am. Compl. ¶ 24, n.1. 

Plaintiff’s statement that Delaware has rejected the pre-suit knowledge requirement is incorrect. 

See, e.g., VLSI Tech. LLC v. Intel Corp., C.A. No. 18-966-CFC, 2019 WL 1349468, at *2 (D. Del. 

Mar. 26, 2019) (“[T]he complaint itself cannot serve as the basis for a defendant’s actionable 

knowledge.”); Dynamic Data Techs., LLC v. Amlogic Holdings Ltd., C.A. No. 19-1239-CFC, 2020 

WL 4365809, at *2 (D. Del. July 30, 2020) (“‘The purpose of a complaint is not to create a claim 

but rather to obtain relief for an existing claim. For that reason, the complaint itself cannot be the 

source of the knowledge required to sustain claims of induced infringement.’”) (citation omitted). 

In any event, this Court has expressly adopted the pre-suit knowledge requirement, and continues 

to do so. See, e.g., Parus, No. 6:19-cv-432, Feb. 20, 2020 Text Order GRANTING D.I. 54. 

Despite this clear precedent, Plaintiff’s only allegations of knowledge are based on the 

filing of its prior complaint asserting the same patent, which it inexplicably dismissed: 

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.

Am. Compl. ¶ 24 (emphases added). Like the allegations in Parus, WSOU’s allegations of 

knowledge are limited to references to a prior filed complaint and thus fail to state a claim for 

indirect infringement. See id.; Parus, No. 6:19-cv-432, Feb. 20, 2020 Text Order GRANTING 

D.I. 54.

4

 To make matters worse, Plaintiff’s May 19, 2020 complaint was never served, so it 

4 See also Proxyconn Inc. v. Microsoft Corp., No. SACV 11-1681 DOC ANX, 2012 WL 1835680, 

at *5 (C.D. Cal. May 16, 2012) (“[A] complaint fails to state a claim for indirect patent 

infringement where the only allegation that purports to establish the knowledge element is the 

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 18 of 23
13

cannot form the basis for Defendants’ knowledge. See Rosenthal Decl., Ex. F (Docket for WSOU 

v. Dell Inc., et al., No. 6-20-cv-00404) (showing dismissal prior to service of the complaint). 

Allowing Plaintiff to avoid the pre-suit knowledge requirement by filing a complaint, voluntarily 

dismissing that complaint, and refiling the same complaint two weeks later, would be at odds with 

the knowledge requirement itself.

5

 And, it would elevate form over substance and encourage 

litigants to use such a tactic to essentially eviscerate the pre-suit knowledge requirement. 

Plaintiff’s failure to raise a plausible inference of pre-suit knowledge of the patent and 

knowledge of infringement are fatal to its indirect infringement claims, and as such these claims 

should be dismissed.

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

Infringement

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

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

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

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

WL 3940952, at *2 (W.D. Tex. July 26, 2019) (quoting DSU Med. Corp. v. JMS Co., 471 F.3d 

allegation that the complaint itself or previous complaints in the same lawsuit establish the 

defendant’s knowledge of the patent”) (emphasis added); Orlando Commc’ns LLC v. LG Elecs., 

Inc., No. 6:14-CV-1017-ORL-22, 2015 WL 1246500, at *9 (M.D. Fla. Mar. 16, 2015) (“‘Prior to 

suit’ does not mean prior to the current iteration of the Complaint.”). 

5 See, e.g., Brandywine Commc’ns Techs., LLC v. T-Mobile USA, Inc., 904 F. Supp. 2d 1260, 

1268–69 (M.D. Fla. 2012) (“[B]ecause notice of the patent is necessarily provided by a complaint, 

finding that a complaint provides sufficient knowledge for induced infringement would vitiate the 

Supreme Court’s holding in Global–Tech that an allegation of knowledge of the patent is required 

to state a claim for induced infringement.”); Simplivity Corp. v. Springpath, Inc., No. CV 4:15-

13345-TSH, 2016 WL 5388951, at *8 (D. Mass. July 15, 2016) (“The suggested ‘knowledge via 

filing’ framework dilutes the knowledge requirement to the point of meaninglessness, since by 

virtue of being sued for infringement, a party necessarily is aware of the patent-in-suit.”) 

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 19 of 23
14

1293, 1306 (Fed. Cir. 2006)). Plaintiff’s allegations of specific intent amount to a single 

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

advertising, promotional materials, and two website citations. See Am. Compl. ¶ 25. Such 

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

acts would infringe, and (2) Defendants knew that the promotion of their products would induce 

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

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

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

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

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

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

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

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

2019 WL 3940952, at *2.6

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

entirely silent on a key requirement of induced infringement.

4. Plaintiff Fails to Allege the Requisite Lack of Substantial NonInfringing Uses for Contributory Infringement 

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

facts that allow an inference that the components sold or offered for sale have no substantial non6 See also Hypermedia Navigation LLC v. Google LLC, No. 18-CV-06137-HSG, 2019 WL 

1455336, at *3 (N.D. Cal. Apr. 2, 2019) (“In no way does the complaint detail how an end user 

would infringe Hypermedia’s patents by following instructions in the links provided in the 

complaint.”) (emphasis in original); Dodots Licensing Sols. LLC v. Lenovo Holding Co., Inc., No. 

CV 18-098 (MN), 2018 WL 6629709, at *4 (D. Del. Dec. 19, 2018) (holding mere citations to 

websites were insufficient to plead specific intent). 

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 20 of 23
15

infringing uses.’” Artrip v. Ball Corp., 735 F. App’x 708, 713 (Fed. Cir. 2018) (citation omitted). 

Plaintiff has not pled a lack of substantial non-infringing uses because it cannot do so. Plaintiff’s 

only allegation on these elements is a conclusory statement that repeats the legal elements. See 

Am. Compl. ¶ 26. As the Federal Circuit held in Artrip, conclusory allegations are not enough. 

735 F. App’x at 713 (affirming dismissal of a contributory infringement claim where the 

“complaint did not plausibly assert facts to suggest that [Defendant] was aware of the patents or 

facts to suggest that the [Accused Product] it supplied had no substantial noninfringing use”). 

Furthermore, Plaintiff cannot plead facts to support these elements because the Accused Products 

may be configured to not use QoS Advanced Mode, which is central to Plaintiff’s infringement 

allegations. In fact, this feature is not enabled by default. Plaintiff’s failure to raise a plausible 

inference of no substantial non-infringing uses is fatal to its contributory infringement claim, and 

as such it should be dismissed.

V. CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court grant their motion 

and dismiss Plaintiff’s Amended Complaint in its entirety for failure to plausibly state a claim for 

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

the foregoing motion.

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 21 of 23
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Dated: October 30, 2020 By: /s/ Barry K. Shelton

Barry K. Shelton

Texas State Bar No. 24055029

bshelton@sheltoncoburn.com

SHELTON COBURN LLP

311 RR 620, Suite 205

Austin, TX 78734-4775 

Telephone: 512.263.2165

Facsimile: 512.263.2166 

Benjamin Hershkowitz

bhershkowitz@gibsondunn.com

Brian A. Rosenthal

brosenthal@gibsondunn.com 

Allen Kathir

akathir@gibsondunn.com

Kyanna Sabanoglu

ksabanoglu@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166-0193 

Telephone: 212.351.4000

Facsimile: 212.351.4035 

Y. Ernest Hsin

ehsin@gibsondunn.com

Jaysen S. Chung

jschung@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105-0921

Telephone: 415.393.8200

Facsimile: 415.393.8306

Ryan K. Iwahashi

riwahashi@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

1881 Page Mill Road

Palo Alto, CA 94304-1211

Telephone: 650.849.5300

Facsimile: 650.849.5333

Attorneys for Defendants

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 22 of 23
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CERTIFICATE OF SERVICE

The undersigned certifies that on October 30, 2020, all counsel of record who are deemed 

to have consented to electronic service are being served with a copy of this document through the 

Court’s CM/ECF system under Local Rule CV-5(b)(1). 

/s/ Barry K. Shelton 

Barry K. Shelton

Case 6:20-cv-00474-ADA Document 36 Filed 10/30/20 Page 23 of 23