NOTE: This order is nonprecedential. 

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

WSOU INVESTMENTS LLC, dba Brazos Licensing 

and Development,

Plaintiff-Appellant

v.

DELL TECHNOLOGIES INC., DELL, INC., EMC 

CORPORATION, VMWARE, INC.,

Defendants-Appellees

______________________ 

2023-1758 

______________________ 

Appeal from the United States District Court for the 

Western District of Texas in No. 6:20-cv-00480-ADA-DTG, 

Judge Alan D. Albright. 

------------------------------------------------- 

WSOU INVESTMENTS LLC, dba Brazos Licensing 

and Development,

Plaintiff-Appellant

v.

DELL TECHNOLOGIES INC., DELL, INC., EMC 

CORPORATION, VMWARE, INC.,

Defendants-Appellees

______________________ 

Case 6:20-cv-00486-ADA-DTG Document 414 Filed 06/09/23 Page 1 of 6
2 WSOU INVESTMENTS LLC v. DELL TECHNOLOGIES INC. 

2023-1759 

______________________ 

Appeal from the United States District Court for the 

Western District of Texas in No. 6:20-cv-00481-ADA-DTG, 

Judge Alan D. Albright. 

------------------------------------------------- 

WSOU INVESTMENTS LLC, dba Brazos Licensing 

and Development,

Plaintiff-Appellant

v.

DELL TECHNOLOGIES INC., DELL, INC., EMC 

CORPORATION, VMWARE, INC.,

Defendants-Appellees

______________________ 

2023-1761 

______________________ 

Appeal from the United States District Court for the 

Western District of Texas in No. 6:20-cv-00486-ADA-DTG, 

Judge Alan D. Albright. 

______________________ 

ON MOTION 

______________________ 

Before PROST, REYNA, and STARK, Circuit Judges. 

PER CURIAM. 

O R D E R 

Dell Technologies Inc., Dell, Inc., EMC Corp., and 

VMware, Inc. (collectively, “Dell”) move to dismiss the 

above-captioned appeals as premature. WSOU 

Case 6:20-cv-00486-ADA-DTG Document 414 Filed 06/09/23 Page 2 of 6
WSOU INVESTMENTS LLC v. DELL TECHNOLOGIES INC. 3 

Investments LLC (“WSOU”) opposes, or, in the alternative, 

requests deactivation. For the following reasons, we dismiss Appeal No. 2023-1758 and deactivate Appeal 

Nos. 2023-1759 and 2023-1761.1 

WSOU filed the above-captioned cases alleging patent 

infringement of three patents: U.S. Patent Nos. 9,164,800; 

7,092,360; and 7,539,133. The district court consolidated 

the cases, which ultimately went to trial. On February 21, 2023, the district court held a hearing concerning 

the ’800 and ’360 patent cases and announced from the 

bench that it was granting appellees’ motion “under 

Rule 56 . . . for judgment as a matter of law that there is no 

direct infringement” and “that there are no damages for 

those two [patents].” Appeal No. 2023-1758, ECF No. 4-2 

at 7–10 (Tr. 130:25–133:22). 

Two days later, on February 23, 2023, the district court 

held a hearing for the ’133 patent case. At the hearing, 

appellees made an oral “Rule 50(a) motion” focused on noninfringement, which the district court granted. Appeal 

No. 2023-1758, ECF No. 4-3 at 7–8 (Tr. 679:24–680:13; 

722:10–20). The court then noted that it would prepare a 

written order after the parties filed their written submissions regarding the motion. Id. at 50 (Tr. 722:10–21). The 

court had also noted that it would “take [defendants’ 35 

U.S.C. § 101 argument] up at the end of trial.” Id. at 12 

(Tr. 684:14–21). WSOU filed a notice of appeal for each 

case. 

1 “[C]onstituent cases retain their separate identities at least to the extent that a final decision in one is immediately appealable by the losing party,” so we assess the 

finality of the district court’s decision for each of the consolidated cases individually. Hall v. Hall, 138 S. Ct. 1118, 

1131 (2018). 

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4 WSOU INVESTMENTS LLC v. DELL TECHNOLOGIES INC. 

In general, we only have jurisdiction to review a “final 

decision of a district court.” 28 U.S.C. § 1295(a)(1); see

FirsTier Mortg. Co. v. Invs. Mortg. Ins. Co., 498 U.S. 269, 

273–74 (1991) (“For a ruling to be final, it must end the 

litigation on the merits, and the judge must clearly declare 

his intention in this respect.” (cleaned up)). Here, the parties appear to agree that issues remain for the district court 

to resolve in each case such that there is no final decision 

in any of the cases. See Appeal No. 2023-1758, ECF No. 4-

1 at 6 (noting no “final ruling on the dispositive motions” 

has been entered), ECF No. 1-2 at 2–3 (noting anticipated 

“forthcoming order[s]” addressing the merits in each case). 

But that does not completely resolve the matter. 

Even where there is no final decision, federal courts 

have long recognized that a premature notice of appeal can 

become effective under certain circumstances. See Buffkin 

v. Dep’t of Def., 957 F.3d 1327, 1333 (Fed. Cir. 2020). For 

example, under Federal Rule of Appellate Procedure 4(a)(2), “[a] notice of appeal filed after the court announces a decision . . . is treated as filed on the date of and 

after the entry” of final judgment. That rule “only [applies, 

however,] when a district court announces a decision that 

would be appealable if immediately followed by the entry 

of judgment,” FirsTier, 498 U.S. at 276 (emphasis in original).2 

Rule 4(a)(2) cannot save WSOU’s appeal in the ’133 patent case from being dismissed because the district court 

clearly indicated that its bench ruling did not end the 

2 Although the Supreme Court did not address “the 

operation of the Rule when the jurisdiction of the court of 

appeals is founded on a statute other than [28 U.S.C.] 

§ 1291,” FirsTier, 498 U.S. at 274 n.4, we have applied the 

Court’s holding to analogous district court appeals under 

28 U.S.C. § 1295(a)(1), see PODS, Inc. v. Porta Stor, Inc., 

484 F.3d 1359, 1366 (Fed. Cir. 2007). 

Case 6:20-cv-00486-ADA-DTG Document 414 Filed 06/09/23 Page 4 of 6
WSOU INVESTMENTS LLC v. DELL TECHNOLOGIES INC. 5 

court’s involvement with the merits of the case—the parties were directed to file written submissions regarding 

Dell’s motion and the court expressly noted that it had not 

yet resolved the § 101 issue. Thus, it was unreasonable for 

WSOU to understand the court’s bench ruling to be an immediately appealable final decision and WSOU provides no 

persuasive argument for us to deactivate, rather than dismiss, such a clearly premature appeal. See Dieser v. Cont’l 

Cas. Co., 440 F.3d 920, 924 (8th Cir. 2006) (finding unresolved issues at the time of appeal defeated application of 

Rule 4(a)(2)). 

However, we reach a different conclusion about the district court’s bench ruling in the ’800 and ’360 patent cases. 

The record of that ruling and the parties’ submissions provided to this court indicate ambiguity as to whether the 

district court thought there was anything left for it to do 

other than enter final judgment in those cases. See Appeal 

No. 2023-1758, ECF No. 4-2 at 5–10 (Tr. 129:23–130:15; 

128:19–133:21). The parties appear to now agree that no 

final decision has been entered and that these appeals are 

premature, but WSOU’s decision to immediately appeal 

from the district court’s bench ruling in those cases was not 

so unreasonable as to bar application of Rule 4(a)(2). See 

FirsTier, 498 U.S. at 277 (“Under such circumstances, [appellant’s] belief in the finality of the January 26 bench ruling was reasonable, and its premature February 8 notice 

therefore should be treated as an effective notice of appeal 

from the judgment entered on March 3.”). 

Accordingly, 

Case 6:20-cv-00486-ADA-DTG Document 414 Filed 06/09/23 Page 5 of 6
6 WSOU INVESTMENTS LLC v. DELL TECHNOLOGIES INC. 

 IT IS ORDERED THAT: 

(1) The motions are granted to the following extent. 

Appeal Nos. 2023-1759 and 2023-1761 are deactivated. 

Within 30 days from the date of entry of final judgment, 

the parties are directed to inform the court how they think 

those appeals should proceed. 

(2) Appeal No. 2023-1758 is dismissed for lack of jurisdiction. Each party shall bear its own costs with respect to 

Appeal No. 2023-1758. 

June 8, 2023 

 Date 

 FOR THE COURT

 /s/ Jarrett B. Perlow 

 Jarrett B. Perlow 

 Acting Clerk of Court 

 

ISSUED AS A MANDATE (Appeal No. 2023-1758 only): 

June 8, 2023 

Case 6:20-cv-00486-ADA-DTG Document 414 Filed 06/09/23 Page 6 of 6