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, 

Defendant.

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Case No. 6:20-cv-00473-ADA 

JURY TRIAL DEMANDED 

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ RULE 12(c) 

MOTION FOR JUDGMENT ON THE BASIS OF INELIGIBILITY 

UNDER 35 U.S.C. § 101 OF U.S. PATENT NO. 9,137,144 

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TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ......................................................................................................... ii

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

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

A. The ’144 Patent Describes Technological Problems of Prior Art Methods 

for Selecting Paths Between Network Nodes ........................................................ 2

B. The ’144 Patent Teaches Specific Technological Solutions to Problems 

Associated with Prior Art Network Path Selection Techniques ............................ 4

III. LEGAL STANDARDS ..................................................................................................... 8

IV. ARGUMENT ................................................................................................................... 10

A. ALICE STEP 1: The Asserted Claims Are Not Directed to an Abstract 

Idea. ...................................................................................................................... 10

1. The Patent Claims Provide Technical Solutions to Problems 

Associated with Prior Art Monitors for Schedulers. ................................ 10

2. Dell’s Characterizations of the ’144 Patent Should Be Rejected. ........... 13

B. ALICE STEP 2: The ’144 Patent Claims Have an Inventive Concept That 

Transforms Them Into a Patentable Invention..................................................... 15

C. There Are Questions of Fact That Preclude Judgment on the Pleadings ............. 17

V. CONCLUSION ................................................................................................................ 18

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Alice Corp. Pty. v. CLS Bank Int’l, 

134 S. Ct. 2347 (2014) ..................................................................................................... passim

Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 

841 F.3d 1288, 1302 (Fed. Cir. 2016)................................................................................10, 17 

BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 

827 F.3d 1341 (Fed. Cir. 2016)....................................................................................10, 15, 17 

Berkheimer v. HP Inc., 

881 F.3d 1144 (Fed. Cir. 2018)..................................................................................................9 

California Inst. of Tech. v. Broadcom Ltd., 

25 F.4th 976 (Fed. Cir. 2022) ..................................................................................................13 

CosmoKey Sols. GmbH & Co. KG v. Duo Sec. LLC, 

15 F.4th 1091 (Fed. Cir. 2021) ..........................................................................................15, 16 

DDR Holdings, LLC v. Hotels.com, LP, 

773 F.3d 1245 (Fed. Cir. 2014)................................................................................................10 

Enfish, LLC v. Microsoft Corp., 

822 F.3d 1327 (Fed Cir. 2016)......................................................................................... passim

Finjan, Inc. v. Blue Coat Sys., Inc., 

879 F.3d 1299 (Fed. Cir. Jan. 10, 2018) ............................................................................10, 12 

Jim S. Adler, P.C. v. McNeil Consultants, L.L.C., 

10 F.4th 422 (5th Cir. 2021) ......................................................................................................8 

McRO, Inc. v. Bandai Namco Games Am. Inc., 

837 F.3d 1299 (Fed. Cir. 2016)............................................................................................9, 16 

Microsoft Corp. v. i4i LP, 

131 S.Ct. 2238 (2011) ..............................................................................................................18 

Packet Intelligence LLC v. NetScout Systems, Inc., 

965 F.3d 1299 (Fed. Cir. 2020), cert. denied, 141 S. Ct. 2521 (2021) .................. 11, 12, 13-14 

Shopify Inc. v. Express Mobile, Inc., 

No. CV 19-439-RGA, 2021 WL 4288113 (D. Del. Sept. 21, 2021) .......................................13 

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Slyce Acquisition Inc. v. Syte - Visual Conception Ltd., 

No. W-19-CV-00257-ADA, 2020 WL 278481 (W.D. Tex. Jan. 10, 2020) 

(Albright, J.) .........................................................................................................................8, 18 

SRI Int’l, Inc. v. Cisco Systems, Inc. 

930 F.3d 1295, 1301 (Fed. Cir. 2019)..........................................................................11, 12, 14 

T-Rex Prop. AB v. Regal Entm’t Grp., 

No. 6:16-cv-927-RWS- KNM, 2017 WL 4229372 (E.D. Tex. Aug. 31, 2017) ......................15 

TecSec, Inc. v. Adobe Inc., 

978 F.3d 1278 (Fed. Cir. 2020)................................................................................................13 

Terry Black’s Barbecue, L.L.C. v. State Auto. Mut. Ins. Co., 

22 F.4th 450 (5th Cir. 2022) ......................................................................................................8 

Two-Way Media Ltd. v. Comcast Cable Communications, LLC 

874 F.3d 1329, 1334-35 (Fed. Cir. 2017) ................................................................................14 

Uniloc USA, Inc. v. LG Elecs. USA, Inc., 

957 F.3d 1303 (Fed. Cir. 2020)................................................................................................12 

Verint Sys. Inc. v. Red Box Recorders Ltd., 

226 F. Supp. 3d. 190 (S.D.N.Y. 2016).....................................................................................17 

Visual Memory LLC v. NVIDIA Corp., 

867 F.3d 1253 (Fed. Cir. 2017)..........................................................................................10, 11 

Statutes 

35 U.S.C. § 101 ...................................................................................................................... passim

35 U.S.C. § 282(a) ...........................................................................................................................9 

Other Authorities 

Fed. R. Civ. P. 12(b) ..................................................................................................................8, 18 

Fed. R. Civ. P. 12(c) ....................................................................................................................1, 8 

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

or “Brazos”) submits this brief in opposition to the Rule 12(c) motion for judgment on the 

pleadings (the “Motion”) filed by Defendants Dell Technologies Inc., Dell Inc., and EMC 

Corporation (collectively “Defendants” or “Dell”).1

I. INTRODUCTION 

Dell’s burden is a heavy one; it must show by clear and convincing evidence that Brazos’ 

patent claims are ineligible. Dell does not—because it cannot—do so. To the contrary, as shown 

below, the ’144 patent claims are clearly patentable under both governing Section 101 tests as set 

forth in Alice Corp. Pty. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014) (“Alice”). 

First, the ’144 patent claims are not abstract; they are directed to a new and inventive 

network device or mechanism that determines and selects the lowest cost communication traffic 

path(s) through a LAN or similar communication network. The ’144 patent inventions solved 

technological shortcomings in the prior art – specifically, the failure of prior art communications 

network protocols to make use of all available network resources to maximize efficiency in 

transmitting communications across the network. By contrast, the network nodes and computer 

program claimed in the ’144 patent make use of all possible paths within a network to improve 

network efficiency and performance. Just as in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 

1335 (Fed Cir. 2016), the claimed invention of the ’144 patent improves existing technology, the 

protocols for setting communication paths across a network, by making sure that the network does 

not skip over possible paths, decreasing network efficiency. 

1

 Submitted herewith and relied upon in opposition to Dell’s Motion is the Declaration of Jonathan 

K. Waldrop, dated May 23, 2022 (“Waldrop Declaration” or “Waldrop Decl.”). “Ex.” refers to 

exhibits attached to the Waldrop Declaration. “Mot.” refers to Dell’s Rule 12(c) Motion for 

Judgment on the Basis of Ineligibility Under 35 U.S.C. § 101 of U.S. Patent No. 9,137,144 (D.I. 

No. 184). At present, Brazos asserts claims 1, 4, 11, 12 and 14 against Defendants. 

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Second, even assuming that the asserted claims fail under Alice Step 1 (and they do not), 

the claims nevertheless demonstrate an “inventive concept” under Alice Step 2. While Dell would 

have the Court hold that the claims’ recitation of certain “well-known” components means that 

there cannot be any inventive concept, the claims, read in light of the specification, make clear that 

the claimed invention provides “something more” than prior art network path assignment methods 

did. In particular, the claimed inventions involve determining the lowest cost paths from a plurality 

of contiguous communications paths, indexing the lowest cost paths, and selecting from those 

indexed paths when called upon to route network traffic. Even to the extent the claimed structures 

themselves are not new, they are arranged and used in an unconventional manner to achieve a 

technologically superior result. 

Thus, this Court should deny Dell’s Motion. 

II. FACTUAL BACKGROUND 

A. The ’144 Patent Describes Technological Problems of Prior Art Methods for 

Selecting Paths Between Network Nodes 

Communication networks, such as local area networks (“LANs”), include many devices 

that communicate with each other across the network. For example, as explained in the ’144 patent, 

personal computers can communicate with each other and with servers through networks. 

(Waldrop Decl., Ex. 1 at 1:28-37.) But the various devices in a given network are usually not all 

connected to all other devices on the network. Rather, devices may be connected to network 

“nodes,” i.e., connection points (e.g., network switches, bridges, etc.) in a communication network 

that can, among other things, send and receive data over communication channels in the network. 

Depending on the organization of these nodes, information between devices may be able to travel 

over a network’s various communication channels via more than one path. (Id., 1:38-47.) By 

analogy, when driving a car from point A to point B, there may be multiple routes (paths) the 

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driver can take, each involving different sets of roads and intersections (channels and nodes) of 

varying lengths, quality, and traffic conditions that may make some routes faster or more efficient 

than others. 

Various protocols for directing communications on a network have been developed. As 

explained in the specification of the ’144 patent, one such prior art protocol, spanning tree protocol 

(“STP”), was developed to map out efficient paths through the network and prevent loops where 

data traffic traversing the network may be forwarded to the same node more than once during the 

attempt to transmit it from a source to a destination. (Id., 1:48-53.) In preventing loops to find the 

most efficient paths, STP will often block the use of some links between network devices as 

redundant. If the communication is not able to reach its destination (e.g., a failure of a link or 

network occurs), the paths through the network are recalculated and the redundant links may be 

utilized, but otherwise they represent an inefficient use of network resources. (Id., 1:53-58.) 

Another prior art protocol is called shortest path bridging (“SPB”), described by standard 

IEEE 802.1aq, uses a path mapping scheme that utilizes redundant paths by determining a number 

of equal-cost, equal-hop (“EHEC,” see infra at 5) paths through the network from a given source 

bridge to a particular destination bridge, and assigning each virtual local area network (“VLAN”) 

to one of one or more EHEC paths. (Id., 1:59-65.) A VLAN creates a broadcast domain for 

Ethernet traffic through the network by identifying certain intermediate bridges for use by the 

VLAN traffic. A VLAN may be associated with, for example, a particular department or customer. 

Loops are avoided because the data traffic always takes the specified path. At the same time, other 

VLANs may be assigned to otherwise redundant paths through the network. But this protocol also 

sometimes fails to fully utilize all available paths when making these assignments. (Id., 1:65-2:12.) 

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Thus, the specification makes clear that at the time the ’144 patent was filed, there was a 

significant need to address the shortcomings in the STP and SPB protocols, as well as other 

shortcomings associated with selecting network communication paths for VLANs or other groups 

of data traffic. These needs and other needs are satisfied by the invention of the ’144 patent. (Id., 

2:19-23.) 

B. The ’144 Patent Teaches Specific Technological Solutions to Problems 

Associated with Prior Art Network Path Selection Techniques 

To address the above-described technological difficulties in the prior art network path 

selection protocols, the inventors of the ’144 patent created a method for selecting communication 

paths across a network that increased the efficiency of the network by ensuring that all possible 

lowest cost paths are available to network traffic. As the specification explains, “the present 

invention is directed at a manner of selecting communication traffic paths through a LAN or 

similar communication network.” (Id., 2:27-29.) It goes on to note the benefits of the invention of 

the prior art: “The present invention is particularly advantageous in large, highly meshed networks 

where existing SPB protocols such as IEEE 802.1aq do not always distribute traffic as efficiently 

as possible.” (Id., 3:57-61.) 

Figure 1 of the ’144 patent provides an example of the network in which an embodiment 

of the claimed invention can be used. The nodes of network 100 are directly linked to one another 

as shown, for example using fiber optic cables. As an example, one port of node 0 is linked to node 

A, a second port to node 3, and a third port to node 2. Data traffic may pass from node A to node 

2 via node 0 (or alternately, in this example, through node 1). 

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In the example of FIG. 1, nodes A and B may be considered source and destination bridges, 

respectively. That is, they may be routers or some form of edge devices, perhaps linked to client 

devices or servers or to other networks or sub networks (not shown). The traffic is received at 

source bridge A and must be communicated to destination bridge B by one path or another. (Id., 

4:4-10.) As shown FIG. 1, there are four paths from source bridge A to source bridge B available 

for data traffic that use the least number of hops (here, two hops). These paths may be labeled as 

0:2, 0:3, 1:2, and 1:3, the labels deriving from the nodes that make up each path. These paths may 

be referred to as EHEC paths as each of the four includes two nodes between the source bridge 

and the destination bridge (the cost of each link is presumed to be equal, as is true in many networks 

in use today). Other paths are available, for example 0:3:1:2, but these are generally avoided when 

lower cost paths are available. (Id., 4:14-24.) 

As explained in the patent, SPB as set forth in IEEE 802.1aq provides for in initial topology 

discovery of the network 100 and determining the available paths. In the example of FIG. 1, 

however, the ECT (equal cost tree) protocols provided in IEEE 802.1aq may select only two paths; 

0:2 and 1:3, while ignoring the other two. When this occurs, no traffic groupings (for example, 

VLANs) will be assigned to the paths 0:3 and 1:2. In more highly-meshed networks, only sixteen 

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paths are calculated regardless of how many may be available. (Id., 4:35-44.) Thus, the invention 

of the ’144 patent provides an advantageous manner of addressing this problem with SPB and 

providing for a full selection of the available pathways between source bridge A and destination 

bridge B. (Id., 4:44-49.) 

The patent specification provides detailed descriptions of an embodiment of the claimed 

invention. One example is provided in connection with Figure 2. Figure 2 shows a network that 

has a total of nine possible paths between source bridge C and destination bridge D. These nine 

possible paths are stored in a path selection table. Once stored, a path can be assigned for each 

VLAN using the algorithm V modulus N (or “V mod N”). (Id., 5:13-6:44.) Using this method 

ensures that paths that have an equal cost (having, for example, the same number of “hops” 

between source and destination) will be used as efficiently as possible. (Id., 5:57-63.) Even if a 

given path is assigned to more than one VLAN, as shown in Table 4, this method will prevent a 

path through the network in Figure 2 from being used by three VLANs while another path is only 

used once or not at all. (6:20-44.) 

One possible process for the method of claim 1 is shown from beginning to end in Figure 

3. Once a network path is required, the source bridge maps the network and determines EHEC 

paths through the network. Those paths are stored in the path selection table and each given an 

index. Next, each VLAN that needs a path through the network is given a sequence number, which 

is used to perform the V mod N algorithm and assign paths to the VLANs. The VLAN path 

assignment itself is then stored in a table and the VLAN traffic is passed through the network to 

the destination. (Id., 6:45-7:51.) 

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The improvements and networking benefits from the invention are clear in the limitations 

of claim 1: 

A method of selecting, for a group of communication traffic, a 

communication path from a source node to a destination node 

through a network comprising a plurality of contiguous 

communication paths, the method comprising: 

determining lowest cost paths from the plurality of 

contiguous communication paths; 

determining V mod N. 

comparing a result of the determining to indices on a path 

Selection table that associates a unique index with each of 

the plurality of communication paths, and 

selecting a path associated with an index equal to the result, 

wherein N is a number of the lowest cost paths in the 

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plurality of communication paths and V is a group identifier 

corresponding to the group of communication traffic. 

For example, “determining lowest cost paths from the plurality of contiguous communication 

paths”2 as part of this method avoids the problems in prior art path assignment protocols because 

it does not artificially limit the total number of paths available to network traffic.3 (See, e.g., id., 

4:44-49.) 

III. LEGAL STANDARDS 

Motion for Judgment on the Pleadings. Courts review a Federal Rule 12(c) motion for 

judgment on the pleadings under the same standards as a Federal Rule 12(b)(6) motion to dismiss 

for failure to state a claim. Terry Black’s Barbecue, L.L.C. v. State Auto. Mut. Ins. Co., 22 F.4th 

450, 454 (5th Cir. 2022). When deciding Rule 12(b)(6) motions, courts “accept all well-pleaded 

facts as true and draw all reasonable inferences in favor of the nonmoving party.” Jim S. Adler, 

P.C. v. McNeil Consultants, L.L.C., 10 F.4th 422, 426 (5th Cir. 2021). To survive a motion to 

dismiss, the complaint must contain sufficient factual matter, accepted as true, to state a claim to 

relief that is plausible on its face. Id. “Generally, overcoming the presumption of validity in a 

district court requires clear and convincing evidence.” Slyce Acquisition Inc. v. Syte - Visual 

Conception Ltd., No. W-19-CV-00257-ADA, 2020 WL 278481, at *4 (W.D. Tex. Jan. 10, 2020) 

(Albright, J.) (denying motion for reconsideration of denial of Section 101 motion to dismiss , 

2

 This limitation is included in all asserted claims. 

3

 Determining the lowest cost paths as part of the claimed method was a key limitation in the 

allowance of the ’144 patent claims. As the applicant explained, although the prior art used a 

modulo operation to assign paths for a network packet, the prior art did not suggest or teach that 

the operation should be performed to assign only the lowest cost paths. (Ex. 2 (March 16, 2015 

Applicant Amendment and Remarks, U.S. Patent Application No. 13/631,169).) The search 

queries performed by the examiner show that the examiner considered this argument and 

ultimately determined that the claims of the ’144 patent were novel, non-obvious, and allowable 

over the prior art. (Ex. 3 (April 24, 2015 EAST Search History, U.S. Patent Application No. 

13/631,169).) 

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noting that the “clear and convincing” standard is a “high bar” and that “resolving § 101 eligibility 

of all asserted claims almost certainly requires fact discovery”). 

Patentable Subject Matter Under 35 U.S.C. § 101. Patent eligibility under § 101 is a 

question of law, based on underlying facts. See Berkheimer v. HP Inc., 881 F.3d 1144, 1368 (Fed. 

Cir. 2018). Courts analyze whether a patent is directed to an “abstract idea” under 35 U.S.C. § 101 

under a two-step process (Alice Step 1 and Alice Step 2). Alice, 134 S. Ct. at 2355. With respect to 

§ 101 defenses, claims are presumed valid under 35 U.S.C. § 282(a), and a defendant can overcome 

that presumption only by proving by clear and convincing evidence that they fail both Alice steps. 

In Alice Step 1, the inquiry focuses on the characterization of the claims—i.e., what the claims, 

considered as a whole and in light of the specification, are “directed to.” Enfish, 822 F.3d at 1335. 

In asking this threshold question, courts focus on the specific claimed solution, rather than 

high-level simplification, because “[a]t some level, ‘all inventions ... embody, use, reflect, rest 

upon, or apply laws of nature, natural phenomena, or abstract ideas.’” Alice, 134 S. Ct. at 2354 

(emphasis added). Indeed, the Federal Circuit has cautioned against oversimplification when 

attempting to articulate the abstract idea. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 

1299, 1313 (Fed. Cir. 2016) (“[C]ourts ‘must be careful to avoid oversimplifying the claims’ by 

looking at them generally and failing to account for the specific requirements of the claims.”) And 

a patent’s description of technological shortcomings in the prior art supports the conclusion that 

the claims are directed to a specific, patent-eligible invention, rather than to an abstract idea. Id. 

Under Alice Step 2, claims directed to abstract ideas under Alice Step 1 are still valid if 

they recite “an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patenteligible application.” Alice, 134 S. Ct. at 2357. The focus of Step 2 of Alice is a search for 

“something more,” something that ensures the claims are “more than a drafting effort designed to 

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monopolize the abstract idea.” Id. at 2354–2357 (internal brackets omitted). For example, claims 

that specify how interactions between computers may be manipulated in a way that overrides 

routine, conventional computer activity recite an inventive concept. See DDR Holdings, LLC v. 

Hotels.com, LP, 773 F.3d 1245, 1257 (Fed. Cir. 2014). The claims as a whole must be considered 

as an ordered combination rather than simply isolating elements or focusing on whether only 

certain elements recite a patentable invention. See BASCOM Global Internet Services, Inc. v. 

AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016). “[A]n inventive concept can be found 

in the non-conventional and non-generic arrangement of known, conventional pieces.” Id. 

Additionally, an inventive concept may be evidence by specific benefits that the invention provides 

not present in the prior art. See, e.g., Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 

1302 (Fed. Cir. 2016). 

IV. ARGUMENT 

A. ALICE STEP 1: The Asserted Claims Are Not Directed to an Abstract Idea. 

1. The Patent Claims Provide Technical Solutions to Problems Associated 

with Prior Art Monitors for Schedulers. 

The asserted claims of the ’144 patent are directed to a new and inventive network device 

or mechanism that determines and selects the lowest cost communication traffic path(s) through a 

LAN or similar communication network. See, e.g., supra at 4-5. These claims reflect a patenteligible improvement to network functionality by allocating traffic, such as VLAN traffic, to the 

determined and indexed lowest cost paths within the network, which is not an abstract idea. See, 

e.g., Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1305 (Fed. Cir. Jan. 10, 2018) (stating a 

method for virus scanning was directed to patent-eligible subject matter under Alice Step 1 because 

it “employs a new kind of file that enables a computer security system to do things it could not do 

before,” including “accumulat[ing] and utiliz[ing] newly available, behavior-based information 

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about potential threats”); Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259 (Fed. Cir. 

2017) (“The patented system achieved greater accuracy than these prior art systems by measuring 

inertial changes of the tracked object relative to the moving platform’s reference frame.”); Enfish, 

822 F.3d at 1336, 1339 (ruling that the “self-referential table recited in the claims . . . [was] a 

specific type of data structure designed to improve the way a computer stores and retrieves data in 

memory”). 

In SRI Int’l, Inc. v. Cisco Systems, Inc., the Federal Circuit held claims drawn to a method 

of hierarchical computer network monitoring to be patent-eligible. 930 F.3d 1295, 1301 (Fed. Cir. 

2019). The SRI claims recited a series of steps, including “deploying” network monitors, which 

detect “suspicious network activity based on analysis of network traffic data,” and generating and 

integrating “reports of ... suspicious activity.” Id. The Federal Circuit held that the claims were not 

directed to an abstract idea because they were “necessarily rooted in computer technology in order 

to solve a specific problem in the realm of computer networks.” Id. at 1303. The Federal Circuit 

recognized that the claims were not using a computer as a tool but, instead, recited a specific 

technique for improving computer network security. Id. In informing the court’s understanding of 

the technology and its relationship to the art, the court relied on statements in the specification that 

the claimed invention purported to solve weaknesses in the prior art by providing a framework for 

recognition of global threats to interdomain connectivity. Id. at 1303-04. 

And in Packet Intelligence LLC v. NetScout Systems, Inc., 965 F.3d 1299, 1309 (Fed. Cir. 

2020), cert. denied, 141 S. Ct. 2521 (2021), the Federal Circuit considered an invention that 

monitored data flows through a network to determine which packets were associated with which 

“conversation flow,” and to thereby determine the amount or type of information being transmitted 

by a particular application or protocol. Id. at 1307. Packet Intelligence argued, and the Federal 

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Circuit agreed, that the claims were directed to a technical problem and provided a solution that 

could associate data with specific applications or protocols, functionality that was lacking in prior 

art systems. Id. at 1308. See also Uniloc USA, Inc. v. LG Elecs. USA, Inc., 957 F.3d 1303, 1309 

(Fed. Cir. 2020) (claims that recited “specific improvement in the functionality of the 

communication system itself, namely the reduction of latency experienced by parked secondary 

stations” were patent-eligible under Alice Step 1).

So, too, here. The ’144 patent claims are similar to the patent-eligible claims in Finjan, 

SRI, Enfish, and Packet Intelligence, because they teach a specific solution to the technical 

problems faced by prior art network path assignment methods. More specifically, the ’144 patent 

claims teach the use of the V mod N algorithm to assign network traffic only to paths that are 

determined to be and indexed as the lowest cost paths in the network. See supra at 6. This ensures 

that network resources are used efficiently and that paths are not inadvertently blocked, as could 

occur using prior art path assignment protocols. These are the very kinds of improvements that 

meet the requirements of Alice Step 1. Enfish, 822 F.3d at 1337 (“[O]ur conclusion that the claims 

are directed to an improvement of an existing technology is bolstered by the specification's 

teachings that the claimed invention achieves other benefits over conventional databases, such as 

increased flexibility, faster search times, and smaller memory requirements.”). 

This improvement is analogous to those methods or new data structures that were 

previously found to be non-abstract in Finjan, SRI, Enfish, Packet Intelligence, and Uniloc, among 

others. Indeed, just as in SRI, the invention of the ’144 patent improves network functionality: it 

allows a communication network to direct traffic specifically to the lowest cost paths in the 

network and to ensure that traffic is allocated among all the lowest cost paths that it identifies, as 

opposed to having certain paths blocked by the path assignment protocol or using paths that are 

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higher cost. SRI Intl., 930 F.3d at 1303 (“The claims are directed to using a specific technique . . . 

to solve a technological problem arising in computer networks: identifying hackers or potential 

intruders into the network.”). See supra at 3-4. 

2. Dell’s Characterizations of the ’144 Patent Should Be Rejected. 

The Court should reject Dell’s characterization of the ’144 patent claims as directed to an 

abstract idea. Dell contends that the asserted claims are directed to the abstract idea of “round robin 

distribution,” referencing dealing cards as a drastically oversimplified analogy. Mot. at 7-8. Dell 

essentially takes the position that the mere use of a mathematical equation—here, the modulus 

operation—requires that the claims of the ’144 patent be found patent-ineligible. But Dell’s 

position is not supported by case law. As the Federal Circuit recently stated, “The mere fact that 

[a] claim employs a mathematical formula does not demonstrate that it is patent ineligible.” 

California Inst. of Tech. v. Broadcom Ltd., 25 F.4th 976, 988 (Fed. Cir. 2022). And in that case, 

the court ultimate held that the claim was patent-eligible, because it was directed to an “efficient, 

improved method,” just as the claims are here. Id. 

Additionally, Dell’s proposed abstract idea is an oversimplification of the claims’ use of 

the modulus operation and does not account for the arrangement of limitations that resulted in the 

’144 patent being issued. See supra at 8 n.3; see, e.g., TecSec, Inc. v. Adobe Inc., 978 F.3d 1278, 

1293 (Fed. Cir. 2020) (“And we have reiterated the Supreme Court’s caution against 

‘overgeneralizing claims’ in the § 101 analysis, explaining that characterizing the claims at ‘a high 

level of abstraction’ that is ‘untethered from the language of the claims all but ensures that the 

exceptions to § 101 swallow the rule.’”) (citations omitted); Shopify Inc. v. Express Mobile, Inc., 

No. CV 19-439-RGA, 2021 WL 4288113, at *22 (D. Del. Sept. 21, 2021) (same). This 

oversimplification should be rejected just as a similar oversimplification was rejected in Packet 

Case 6:20-cv-00473-ADA-DTG Document 191 Filed 05/23/22 Page 17 of 25
14 

Intelligence.

4

 965 F.3d at 1308 (district court rejected argument that claim was directed to 

“collection, comparison, and classification of information”). Among other flaws, Dell’s purported 

characterization ignores that the limitations of claim 1 do not even require that V be assigned 

sequentially, contrary to its “card-dealing” analogy. Claiming the use of the “V mod N” algorithm 

does not necessarily mean that strict round robin distribution is required. Indeed, the ’144 patent’s 

claims do not recite “round robin,” nor does the specification explicitly mention it. Dell’s 

characterizations and analogy are inapt and misleading. Dell also ignores that the number of paths 

available and the specific assignment of VLANs to paths may change – yet another difference 

from a simple round-robin assignment scheme. (Ex. 1 at 4:32-35 (stating that networks are not 

static and may change configurations); 5:10-12 (noting possible changes in network topology); 

7:48-51 (noting that path selection process may occur for several VLANs at the same time and 

traffic may be forwarded before all VLANs have completed path selection).) 

Further, in making this argument, Dell improperly downplays the novelty of the claimed 

invention by comparing it to the human mind. Mot. at 14. But as in SRI, the claims of the ’144 

patent are not directed to an abstract idea that the human mind can perform – they are specifically 

directed to selecting a path through a network by, among other things, determining lowest cost 

paths and assigning traffic to those paths. SRI Int’l, 930 F.3d at 1304 (“Indeed, we tend to agree 

with SRI that the human mind is not equipped to detect suspicious activity by using network 

4

 The main case upon which Dell primarily relies in making its Alice Step 1 argument is readily 

distinguishable. In Two-Way Media Ltd. v. Comcast Cable Communications, LLC, the claims 

failed to concretely capture any specific technological improvement. Instead, they simply recited 

methods for transmitting packets over a network. 874 F.3d 1329, 1334-35 (Fed. Cir. 2017). But 

here, the thrust of the claims are directed toward improving the efficiency of network path 

assignments by assigning traffic to determined and indexed lowest cost paths, with the use of a 

mathematical algorithm comprising one limitation of the claims. 

Case 6:20-cv-00473-ADA-DTG Document 191 Filed 05/23/22 Page 18 of 25
15 

monitors and analyzing network packets as [claimed].”). Nowhere in its brief does Dell explain 

how the human mind can perform all the steps of the asserted claims, as opposed to only the 

isolated modulus operation. 

B. ALICE STEP 2: The ’144 Patent Claims Have an Inventive Concept That 

Transforms Them Into a Patentable Invention. 

Even if, arguendo, the asserted claims of the ’144 patent were directed to an abstract idea, 

they would still be patent-eligible. Under Alice Step 2, a claim that fails Step 1 may nevertheless 

be patent-eligible if it contains unconventional steps that “transform” the invention “into a patent 

eligible application.” BASCOM, 827 F.3d at 1347; CosmoKey Sols. GmbH & Co. KG v. Duo Sec. 

LLC, 15 F.4th 1091 (Fed. Cir. 2021). “[A] claim directed to an ineligible concept may become 

patent-eligible when it includes unconventional steps that ‘confine[] the claims to a particular 

application of the principle.’” T-Rex Prop. AB v. Regal Entm’t Grp., No. 6:16-cv-927-RWSKNM, 2017 WL 4229372, at *10 (E.D. Tex. Aug. 31, 2017) (citations omitted); see also BASCOM, 

827 F.3d at 1348 (“some inventions’ basic thrust might more easily be understood as directed to 

an abstract idea, but under step two of the Alice analysis, it might become clear that the specific 

improvements in the recited computer technology go beyond ‘well-understood, routine, 

conventional activit[ies]’ and render the invention patent-eligible.”). 

For example, the patent in CosmoKey disclosed a method for authenticating the identity of 

a user performing a transaction at a computer, including activating the authentication function on 

the user’s mobile phone. Id. at 1093. The Federal Circuit found that the patent specification 

recognized that “when a user communicates with a remote transaction partner (e.g., a bank, a store, 

or a secure database) via a communication channel like the Internet, ‘it is important to assure that 

an individual that identifies itself as an authorized user is actually the person it alleges to be.’” Id.

The Federal Circuit found that the focus of the claimed invention is the “activation of the 

Case 6:20-cv-00473-ADA-DTG Document 191 Filed 05/23/22 Page 19 of 25
16 

authentication function, communication of the activation within a predetermined time, and 

automatic deactivation of the authentication function.” Id. at 1097. The Federal Circuit concluded 

that the patent specification describes the particular authentication technique as a technical 

improvement over the conventional prior-art authentication methods that prevents unauthorized 

access by third parties, and therefore is an inventive concept. Id. at 1099. The court also held that 

“claims and specification recite a specific improvement to authentication that increases security, 

prevents unauthorized access by a third party, is easily implemented, and can advantageously be 

carried out with mobile devices of low complexity.” Id. at 1098. 

So too, the ’144 patent claims cover a specific network component and mechanism for 

determining, selecting, and assigning lowest cost paths over a network to communication traffic. 

It is only this mechanism that is claimed – not all uses and applications of the overly simplified 

concept suggested by Dell (the “round robin” modulus operation). The specification instead makes 

clear that the patent is focused on a specific application of the concept of routing traffic over a 

communication network and that this specific application provides clear benefits over the prior art 

because it uses available lowest cost paths in the network in a manner not previously used. (Ex. 1 

at 4:44-49; 9:12-13.) See McRO, Inc., 837 F.3d at 1316 (“By incorporating the specific features of 

the rules as claim limitations, claim 1 is limited to a specific process for automatically animating 

characters using particular information and techniques and does not preempt approaches that use 

rules of a different structure or different techniques.”). And, as in CosmoKey, the method claimed 

in the ’144 patent improves the actual functionality of the network by ensuring that all possible 

paths through the network are available for use. 

Case 6:20-cv-00473-ADA-DTG Document 191 Filed 05/23/22 Page 20 of 25
17 

Dell contends that the ’144 patent claims do not teach an inventive concept because they 

recite only “well known” components and techniques.5 Mot. at 10-11. However, the fact that 

claims recite some generic components or functions does not render the claims patent-ineligible. 

See Enfish, 822 F.3d at 1336 (finding software-based claims containing “data storage,” “memory,” 

and “data” valid under Alice); see also Amdocs, 841 F.3d at 1300 (explaining that a “solution [that] 

requires arguably generic components” is still patent-eligible when “these generic components 

operate in a nonconventional manner to achieve an improvement in computer functionality” that 

is “a critical advancement over the prior art”); BASCOM, 827 F.3d at 1350 (“The inventive concept 

inquiry requires more than recognizing that each claim element, by itself, was known in the art.”). 

Indeed, Dell’s repeated assertion that the claims merely recite the use of generic, “wellknown” components is an oversimplification of the claims that courts have regularly warned 

against.6See, e.g., Verint Sys. Inc. v. Red Box Recorders Ltd., 226 F. Supp. 3d. 190, 192-93 

(S.D.N.Y. 2016) (“Many recent motions seeking determinations of patent ineligibility suffer from 

such reductionist simplicity – from characterizing as simply a mousetrap that which is in fact a 

better mousetrap.”). Dell’s analysis is insufficient and fails to account for novel arrangements of 

limitations, including the limitation that requires determination of the lowest cost network paths. 

See supra at 4, 8. Thus, the ’144 patent claims teach an inventive concept more than sufficient to 

pass Alice Step 2. 

5

 In an attempt to support this misreading of the ’144 patent, Dell entirely ignores statements in 

the specification that explain how the claimed invention is an improvement over the prior art. 

6

 Dell asserts the claims recite concepts that were “well-known,” but its primary basis for this 

assertion appears to be simply that the patent provides abbreviations for terms used in describing 

the art at the time of the invention. Mot. at 2 n.1. Dell also ignores the plain statement in the patent 

that “no admission is made . . . that these techniques and schemes were heretofore commercialized 

or known to others besides the inventors.” (Ex. 1 at 2:13-17.) 

Case 6:20-cv-00473-ADA-DTG Document 191 Filed 05/23/22 Page 21 of 25
18 

C. There Are Questions of Fact That Preclude Judgment on the Pleadings 

Thus, at minimum, factual disputes remain concerning whether the ’144 patent claims 

recite “conventional” and “well-known” components or functions and teach technological 

advancements over the prior art. In light of the presumption of validity and the “clear and 

convincing” standard applied to Section 101 challenges, see Microsoft Corp. v. i4i LP, 131 S.Ct. 

2238, 2242 (2011), these disputes preclude dismissal prior to completion of discovery. See also 

Slyce, 2020 WL 278481, at *7 (noting difficulty in resolving Section 101 motions because of “the 

obstacles of overcoming the presumption of validity with clear and convincing evidence” and “the 

lack of fact discovery” at the Rule 12(b) motion stage). Accordingly, Dell’s Motion is premature 

and should be denied. 

V. CONCLUSION 

Brazos respectfully requests that this Court deny Dell’s Motion, or, alternatively, defer its 

ruling until after discovery. 

Case 6:20-cv-00473-ADA-DTG Document 191 Filed 05/23/22 Page 22 of 25
19 

Dated: May 23, 2022 RESPECTFULLY SUBMITTED, 

By: /s/ Jonathan K. Waldrop 

Jonathan K. Waldrop (CA Bar No. 297903) 

(Admitted in this District) 

jwaldrop@kasowitz.com 

Darcy L. Jones (CA Bar No. 309474) 

(Admitted in this District) 

djones@kasowitz.com 

Marcus A. Barber (CA Bar No. 307361) 

(Admitted in this District) 

mbarber@kasowitz.com 

Heather S. Kim (CA Bar No. 277686) 

(Admitted in this District) 

hkim@kasowitz.com 

John W. Downing (CA Bar No. 252850) 

(Admitted in this District) 

jdowning@kasowitz.com 

ThucMinh Nguyen (CA Bar No. 304382) 

(Admitted in this District) 

tnguyen@kasowitz.com 

Chen Jia (CA Bar No. 281470) 

(Admitted pro hac vice) 

cjia@kasowitz.com 

KASOWITZ BENSON TORRES LLP 

333 Twin Dolphin Drive, Suite 200 

Redwood Shores, California 94065 

Telephone: (650) 453-5170 

Facsimile: (650) 453-5171 

Paul G. Williams (GA Bar No. 764925) 

(Admitted in this District) 

pwilliams@kasowitz.com 

KASOWITZ BENSON TORRES LLP 

1230 Peachtree Street N.E., Suite 2445 

Atlanta, Georgia 30309 

Telephone: (404) 260-6080 

Facsimile: (404) 260-6081 

Joshua A. Whitehill (NY Bar No. 4766473) 

(Admitted pro hac vice) 

jwhitehill@kasowitz.com 

Hershy Stern (NY Bar No. 4631024) 

(Admitted pro hac vice) 

hstern@kasowitz.com 

Julianne Laporte (NY Bar No. 5547906) 

(Admitted pro hac vice) 

jlaporte@kasowitz.com

Case 6:20-cv-00473-ADA-DTG Document 191 Filed 05/23/22 Page 23 of 25
20 

Howard L. Bressler (NY Bar No. 2487379)

(Admitted pro hac vice) 

hbressler@kasowitz.com 

Shelley Ivan (NY Bar No. 4338067) 

(Admitted pro hac vice) 

sivan@kasowitz.com 

Noah P. Dorman (DC Bar No. 1779821) 

(Admitted pro hac vice) 

ndorman@kasowitz.com 

KASOWITZ BENSON TORRES LLP 

1633 Broadway 

New York, NY 10019 

Telephone: (212) 506-1700 

Facsimile: (212) 506-1800 

Mark D. Siegmund (TX Bar No. 24117055) 

mark@swclaw.com 

Craig D. Cherry (TX Bar No. 24012419) 

craig@swclaw.com 

Justin Allen (TX Bar No. 24081977) 

justin@swclaw.com 

STECKLER WAYNE CHERRY & LOVE 

PLLC 

8416 Old McGregor Road 

Waco, TX 76712 

Telephone: (254) 651-3690 

Facsimile: (254) 651-3689 

Gregory Phillip Love (TX Bar No. 24013060) 

greg@swclaw.com 

STECKLER WAYNE CHERRY & LOVE 

PLLC 

107 East Main Street 

Henderson, TX 75652 

Telephone: (903) 212-4444 

Facsimile: (903) 392-2267 

Attorneys for Plaintiff 

WSOU INVESTMENTS, LLC d/b/a 

BRAZOS LICENSING AND 

DEVELOPMENT

Case 6:20-cv-00473-ADA-DTG Document 191 Filed 05/23/22 Page 24 of 25
21 

CERTIFICATE OF SERVICE 

A true and correct copy of the foregoing instrument was served or delivered electronically 

to all counsel of record, on this 23rd day of May, 2022, via the Court’s CM/ECF system. 

/s/ Jonathan K. Waldrop 

Jonathan K. Waldrop 

Case 6:20-cv-00473-ADA-DTG Document 191 Filed 05/23/22 Page 25 of 25