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.

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CIVIL ACTION NO. 6:20-cv-473-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-00473-ADA Document 33 Filed 10/19/20 Page 1 of 17
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-00473-ADA Document 33 Filed 10/19/20 Page 2 of 17
COUNT ONE - INFRINGEMENT OF 

U.S. PATENT NO. 9,137,144

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

Complaint.

11. On September 15, 2015, the United States Patent and Trademark Office duly and 

legally issued U.S. Patent No. 9,137,144 (“the ‘144 Patent ’”), entitled “Method and Apparatus for 

Communication Path Selection.” A true and correct copy of the ‘144 Patent is attached as Exhibit 

A to this Complaint.

12. Brazos is the owner of all rights, title, and interest in and to the ‘144 Patent, 

including the right to assert all causes of action arising under the ‘144 Patent and the right to any 

remedies for the infringement of the ‘144 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 operating 

systems, including but not limited to, the Dell EMC SmartFabric Operating System (collectively, 

the “Accused Products”).

14. The Accused Products support multiple architecture and environments. 

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

15. The Accused Products include standard networking features and switching routing 

protocols. The Accused Products OS also provide a method of selecting a communication 

Case 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 3 of 17
path from a group of equal-cost paths with the help of hashing. The hash algorithm makes decisions 

that are based on values in various packet fields and internal values. 

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

16. A VLAN, or Virtual Local Area Network, provides a way to group devices with a 

LAN. A group of devices within a VLAN communicate as if they were attached to the same wire. 

Source: https://www.dell.com/community/Connectrix/An-Introduction-to-VLAN-and-Trunk/tdp/7076385, 

Case 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 4 of 17
17. For configuring the load balancing parameters, a router/switch can use the hash 

fields as VLAN -ID for the hash calculations.

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

18. The resilient hashing algorithm helps in determining the best paths for 

communication traffic. Hashing helps in mapping the VLAN ID with a set of lowest-cost 

paths by using VLAN ID for hash calculations. . 

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

19. ECMP (i.e., equal-cost multipath routing) is a routing technique where next-hop 

packet forwarding (i.e., forwarding through the node) to a single destination can occur over 

multiple best paths (i.e., lowest cost paths).

20. There are multiple nodes between a single source node and a destination node. 

These multiple nodes give rise to multiple paths. The Accused Products use ECMP to 

determine the multiple best paths. The best paths are the lowest cost paths, i.e., paths with the 

Case 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 5 of 17
minimum number of hops between the source node and destination node. These paths are used for 

forwarding packet from the source node to the destination node. (i.e., a plurality of contiguous 

communication paths). 

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

21. The resilient hashing algorithm helps in determining the best paths for 

communication traffic and helps in load balancing. In resilient hashing, the egress port in a portchannel or th enext hop in an ECMP group is selected based on the hash key modulo, the 

number of ports in a port channel or next-hops in an ECMP group, respectively . 

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf.

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

Case 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 6 of 17
22. Without resilient hashing, traffic is mapped to the identified ECMP paths based on the 

next-hop availability. As shown below, Traffic 1 maps to next-hop A, Traffic 2 maps to next-hop B, and 

Traffic 3 maps to next-hop C, respectively.

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

23. In a software-defined network (SDN), the flow-maps help specify the flow of traffic. In 

SDN, an external controller cluster manages the network and the resources on a switch operating on the 

Dell FTOS. OpenFlow is a protocol used for communication between the controller and the switch. FlowCase 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 7 of 17
map helps specify the flows installed by the controller to be interpreted by the switch for the placement of 

Layer 2 and Layer 3 flow-map tables.

Source: https://topics-cdn.dell.com/pdf/force10-sw-defined-ntw_deployment-guide3_en-us.pdf

Source: https://topics-cdn.dell.com/pdf/force10-sw-defined-ntw_deployment-guide3_en-us.pdf

24. In the software-defined network, the layer 2 flows are only supported on 

OF(OpenFlow) VLAN. 

Case 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 8 of 17
Source: https://topics-cdn.dell.com/pdf/force10-sw-defined-ntw_deployment-guide3_en-us.pdf

25. When a user enables resilient hashing for ECMP groups, the flow-map table (for a 

software-defined network) is created with 64 paths, and traffic is equally distributed for these 64 

paths (i.e. N number of the lowest-cost paths in the plurality of communication paths). The flowCase 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 9 of 17
map table considers L2 flows (based on VLAN identifiers) to map the traffic over the identified 

64 paths. 

26. As shown below, Traffic 1 maps to next-hop 'A'; Traffic 2 maps to next-hop 'C'; 

and Traffic 3 maps to next-hop 'B. For the L2 flows and flow-map table, the traffic may correspond 

to the respective VLANs for mapping. 

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

27. After the resilient hashing for the ECMP groups, a flow-map table is created with 

64 paths for the traffic flow (i.e. path selection table having indices of the 64 lowest cost paths). 

The paths on the flow-map table distribute the traffic equally and identify the traffic uniquely. As 

shown below, Traffic 1 is mapped on the next-hop A (i.e. path A). The paths/next hops are uniquely 

identified (based on a unique index) by to load balance the traffic.

 

Case 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 10 of 17
 

 

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

Case 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 11 of 17
28. After the resilient hashing, Traffic 1 maps (i.e., selecting a path associated with an 

index equal to the result) to next-hop A, Traffic 2 maps to next-hop C & Traffic 3 maps to nexthop B.

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

29. If member link D goes down, resilient hashing distributes the traffic intended for 

member link D to A and B. The existing 1, 2, and 3 traffic is not disturbed. However, when a new 

member link is added, resilient hashing completes minimal remapping for better load balancing. 

Case 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 12 of 17
Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

Source: https://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

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

‘144 Patent is found in the Accused Products.

31. Defendants continue to directly infringe at least one claim of the ‘144 Patent, 

literally or under the doctrine of equivalents, by making, using, selling, offering for sale, importing, 

Case 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 13 of 17
and/or distributing the Accused Products in the United States, including within this judicial district, 

without the authority of Brazos.

32. And upon information and belief, each and every element of at least claim 1 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.

33. 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.

34. 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 

Case 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 14 of 17
‘144 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://topics-cdn.dell.com/pdf/smartfabric-os10-5-0_en-us.pdf

● https://www.dell.com/community/Connectrix/An-Introduction-to-VLAN-andTrunk/td-p/7076385

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

infringement of the ‘144 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 ‘144 Patent. The Accused Products are especially made or adapted 

for infringing the ‘144 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 ‘144 Patent.

JURY DEMAND

Brazos hereby demands a jury on all issues so triable.

REQUEST FOR RELIEF

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-00473-ADA Document 33 Filed 10/19/20 Page 15 of 17
WHEREFORE, Brazos respectfully requests that the Court:

(A) Enter judgment that Defendants infringe one or more claims of the ‘144 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 ‘144 Patent;

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

the infringement of one or more claims of the ‘144 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 ‘144 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:10/19/2020 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

Case 6:20-cv-00473-ADA Document 33 Filed 10/19/20 Page 16 of 17
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-00473-ADA Document 33 Filed 10/19/20 Page 17 of 17