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-00476-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT

FOR FAILURE TO STATE A CLAIM

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 1 of 23
TABLE OF CONTENTS

Page

i

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

II. BACKGROUND .................................................................................................................1

A. The ’435 Patent....................................................................................................... 1

B. The Accused Product .............................................................................................. 2

C. Original Complaint and Prior Motion to Dismiss................................................... 4

III. LEGAL STANDARD..........................................................................................................5

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

B. Induced and Contributory Infringement ................................................................. 5

IV. ARGUMENT.......................................................................................................................6

A. Plaintiff Fails to State a Claim for Direct Infringement ......................................... 6

B. 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 NonInfringing Uses for Contributory Infringement ........................................ 15

V. CONCLUSION..................................................................................................................15

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 2 of 23
TABLE OF AUTHORITIES

Page(s)

ii

Cases

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

620 F. App’x 934 (Fed. Cir. 2015) ......................................................................................5, 14

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

No. W:13-CV-365, 2014 WL 2892285 (W.D. Tex. May 12, 2014) ...................................6, 14

Aguirre v. Powerchute Sports, LLC,

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

Artrip v. Ball Corp.,

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

Ashcroft v. Iqbal,

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

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)...............................................................................................................5, 9

Bell v. Crawford Indep. Sch. Dist.,

No. 6:19-CV-268-ADA, 2020 WL 5370592 (W.D. Tex. Feb. 13, 2020)................................10

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

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

Chapterhouse, LLC v. Shopify, Inc.,

No. 2:18-CV-00300-JRG, 2018 WL 6981828 (E.D. Tex. Dec. 11, 2018)................................7

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

135 S. Ct. 1920 (2015).........................................................................................................5, 11

De La Vega v. Microsoft Corp.,

2020 WL 3528411 (W.D. Tex. Feb. 11, 2020)......................................................................5, 7

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)................................................................................................14

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-00476-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)..............................................................................................5, 11

Ericsson, Inc. v. D-Link Sys., Inc.,

773 F.3d 1201 (Fed. Cir. 2014)..................................................................................................7

Finjan, Inc. v. Secure Computing Corp.,

626 F.3d 1197 (Fed. Cir. 2010)..................................................................................................6

Fujitsu Ltd. v. Netgear Inc.,

620 F.3d 1321 (Fed. Cir. 2010)..................................................................................................6

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

563 U.S. 754 (2011)...................................................................................................................6

Golden v. Apple Inc.,

819 F. App’x 930 (Fed. Cir. 2020) ............................................................................................9

Horatio Wash. Depot Techs. LLC v. TOLMAR, Inc.,

No. 17-1986-LPS, 2018 WL 5669168 (D. Del. Nov. 1, 2018)..................................................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)............................................................................................5, 11

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

594 F.3d 383 (5th Cir. 2010) .....................................................................................................2

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

Ormco Corp. v. Align Tech., Inc.,

463 F.3d 1299 (Fed. Cir. 2006)..................................................................................................7

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

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

Parus Holdings Inc. v. Apple Inc.,

No. 6:19-cv-432 (W.D. Tex. Feb. 20, 2020)......................................................................11, 12

Pilot Energy Sols., L.L.C. v. Oxy USA, Inc.,

No. AU-16-CA-00687-SS, 2018 WL 3014421 (W.D. Tex. Apr. 6, 2018)................................6

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 4 of 23
TABLE OF AUTHORITIES 

(continued)

Page(s)

iv

Proxyconn Inc. v. Microsoft Corp.,

No. SACV 11-1681 DOC ANX, 2012 WL 1835680 (C.D. Cal. May 16, 2012) ....................13

Redding v. Swanton,

No. 1-16-CV-01153-ADA, 2020 WL 4572696 (W.D. Tex. Aug. 7, 2020) ............................10

Simplivity Corp. v. Springpath, Inc.,

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

VLSI Tech. LLC v. Intel Corp.,

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

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 5 of 23
TABLE OF ABBREVIATIONS

v

Abbreviation Term

’435 patent U.S. Patent No. 7,565,435

Accused Products Dell PowerSwitch N Series switches

Amended Complaint 

or Am. Compl. First Amended Complaint (D.I. 33)

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

MSTP Multiple Spanning Tree Protocol

RSTP Rapid Spanning Tree Protocol

STP Spanning Tree Protocol

VLAN Virtual Local Area Network

Original Complaint,

or Compl. Complaint (D.I. 1)

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

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 6 of 23
1

I. INTRODUCTION

Defendants previously filed a motion to dismiss based on fundamental problems with 

Plaintiff’s direct and indirect infringement allegations. See D.I. 30. Plaintiff’s Original Complaint 

failed to allege actual performance of the sole identified method claim, ignored key limitations of 

that method claim, and failed to allege several necessary elements of indirect infringement 

including pre-suit knowledge, intent, and a third-party direct infringer. See id.

To address these deficiencies, Plaintiff filed an Amended Complaint containing essentially 

only two new additions. See Rosenthal Decl., Ex. A (Redline comparison of Original and 

Amended Complaint). Plaintiff’s additions, however, do not overcome its pleading failures and 

serve only to confirm Defendants’ arguments. Plaintiff still has not plausibly alleged performance 

of the method claim, still has not addressed key limitations of the claim, and still has not fixed the 

problems with its indirect infringement claims. As such, Plaintiff’s claims for both direct and 

indirect infringement should be dismissed. 

II. BACKGROUND

A. The ’435 Patent

The ’435 patent, which is entitled “Method for obtaining the best connectivity achievable 

within virtual local area networks,” relates generally to configuring virtual Local Area Networks 

(VLANs) in a network managed by a multiple spanning tree protocol (MSTP). See ’435 patent, 

1:8–13. Plaintiff identifies claim 1 in the Amended Complaint, see Am. Compl. ¶ 20:

1. A method for forwarding data frames between bridges within a computer network, the 

bridges including ports; said method comprising the steps of:

[a] creating and configuring a plurality of Multiple Spanning Tree Instances (MSTIs) 

whose active topology covers the topology of Virtual Local Area Networks 

(VLANs) being used within the computer network;

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 7 of 23
2

[b] creating VLAN member sets and associating each of said VLANs with an 

appropriate one of the MSTIs, each of said VLAN member sets indicating the ports 

in each of the bridges within one of the MSTIs to which data traffic destined to 

members of the associated VLAN is being forwarded;

[c] setting the Internal Port Path Cost (IPPC) of one of the ports of one of said bridges 

within the MSTI to a high IPPC when said port is not part of the VLAN member 

set; and

[d] setting the IPPC of one of the ports of one of said bridges within the MSTI to a 

lower IPPC when said port is part of the VLAN member set;

[e] said settings reestablish connectivity in one of the MSTIs experiencing a failure 

by activating links whose activation ensures that the connectivity within the VLAN 

mapped onto and associated with the MSTI is not lost;

[f] wherein said high IPPC is a value that is higher than any of the values used for the 

IPPCs of ports that are part of the VLAN member set; and said lower IPPC is a 

value that is based on a speed of the links that are connected to the corresponding 

ports that are part of the VLAN member set.

’435 Patent, cl. 1 (bracketed reference letters added).

B. The Accused Product

Plaintiff accuses PowerSwitch N Series switches of allegedly infringing claim 1 of the ’435 

patent. See Am. Compl. ¶¶ 13, 20. Based on the documents cited in the Amended Complaint, the 

PowerSwitch N switches support several different types of spanning tree protocols: classic STP, 

MSTP, and RSTP. See https://cc.cnetcontent.com/inlinecontent/mediaserver/len/bf8/bd5/bf8bd

5f94d05419098c68e753796699e/original.pdf at 779 (last retrieved Oct. 28, 2020).

1

 However, by 

default, MSTP is disabled:

 

1

 All links are cited in WSOU’s Amended Complaint. See Lone Star Fund V (U.S.), L.P. v. 

Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (noting that in deciding a Rule 12(b)(6) 

motion, the court may review “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”).

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 8 of 23
3 

Id. at 799. To enable MSTP, a user must specifically set the spanning tree protocol operational 

mode to MSTP. See https://dell.com/support/article/en-us/how10525/how-to-manage-multiplespanning-tree-mstp-using-command-line-on-dell-networking-powerconnect-campus-switches?la

ng=en (last retrieved Oct. 28, 2020). 

Moreover, the documents cited in the Amended Complaint state that the accused switches 

allow the user to specify the spanning tree path cost for the port.2 See

https://cc.cnetcontent.com/inlinecontent/mediaserver/len/bf8/bd5/bf8bd5f94d05419098c68e7537

96699e/original.pdf at 812 (last retrieved Oct. 28, 2020). However, for all ports, those documents 

state that “[t]he default cost is 0, which signifies that the cost is automatically calculated based on 

port speed.” Id. 

Thus, based on the documents the Amended Complaint cites, the Accused Products, unless 

configured otherwise, do not use MSTP at all, and the spanning tree path cost for each path is set 

to zero. 

 

2

 As Defendants previously stated, see D.I. 30 at 3 n.3, only for purposes of its motion to dismiss 

under Iqbal/Twombly, given the applicable standard, Defendants are not challenging WSOU’s 

allegation that the “spanning tree path cost” identified in WSOU’s Amended Complaint is relevant 

to the asserted claim. See Am. Compl. ¶ 18.

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 9 of 23
4

C. Original Complaint and Prior Motion to Dismiss

Plaintiff acquired thousands of old Alcatel-Lucent patents and launched scattershot 

attacks—asserting 12 different patents—against Defendants. To avoid unnecessary litigation, 

Defendants wrote Plaintiff, explaining that its Original Complaint did not meet the minimal 

pleading requirements under Iqbal/Twombly. See Rosenthal Decl., Ex. B (Letter to WSOU 

regarding Deficient Infringement Allegations). Plaintiff refused to fix its allegations. As a result, 

Defendants filed a motion to dismiss setting forth the deficiencies in Plaintiff’s Original 

Complaint. See D.I. 30. 

Despite having a roadmap from Defendants’ letter and motion, Plaintiff filed an Amended 

Complaint that contained only minimal changes from the Original Complaint and that failed to fix 

the fundamental deficiencies. See Ex. A. To address its failure to allege actual performance of 

the sole identified method claim, Plaintiff merely added the conclusory speculation that “upon 

information and belief” Defendants practice the claimed method. See Am. Compl. ¶ 20.

Moreover, despite Defendants identifying key limitations of the asserted claim that 

Plaintiff’s Original Complaint ignored, see D.I. 31 at 7–8 (noting silence as to claim elements 1[b], 

1[e], and 1[f]), Plaintiff’s Amended Complaint still ignores those limitations.

Finally, Plaintiff’s sole change related to indirect infringement is an attempt to fix its 

deficient allegations relating to pre-suit knowledge. Plaintiff now alleges that Defendants had 

notice of the Asserted Patent through a previously filed and dismissed lawsuit. Notwithstanding 

that Plaintiff’s allegation of a prior complaint, as this Court has previously held, is insufficient to 

allege notice, Plaintiff did not add any allegations relating to intent and whether a third party 

directly infringes. Thus, as explained in this motion, Plaintiff’s Amended Complaint should be 

dismissed.

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 10 of 23
5

III. LEGAL STANDARD

A. Direct Infringement 

A complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6) 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 nonconclusory facts that make liability “plausible,” meaning the facts “allow[] the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Id.; 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 complaint must—at a minimum—

plead facts that describe how the 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 

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 11 of 23
6

& 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 

defendant “had [a] specific intent to induce the [third party’s] patent infringement.” Affinity Labs 

of Texas, LLC v. Toyota Motor N. Amend., 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

A. Plaintiff Fails to State a Claim for Direct Infringement

Plaintiff’s direct infringement claim dismissed for at least two reasons: (1) Plaintiff still

does not plausibly allege that anyone has actually performed each and every limitation of claim 1 

of the ’435 patent; and (2) Plaintiff still ignores certain limitations of the claim.

The law is clear: “To infringe a method or process claim, a person must have practiced all 

steps of the claimed method.” Pilot Energy Sols., L.L.C. v. Oxy USA, Inc., No. AU-16-CA-00687-

SS, 2018 WL 3014421, at *3 (W.D. Tex. Apr. 6, 2018) (emphasis added); see also Finjan, Inc. v. 

Secure Computing Corp., 626 F.3d 1197, 1206 (Fed. Cir. 2010) (same). In other words, “[m]ethod 

claims are only infringed when the claimed process is performed, not by the sale of an apparatus 

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 12 of 23
7

that is capable of infringing use.” Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299, 1311 (Fed. 

Cir. 2006); see also Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1221 (Fed. Cir. 2014) 

(“Because the asserted claim is a method claim, however, the accused devices must also actually 

perform that method.”).

Moreover, to be sufficient under Iqbal/Twombly, Plaintiff’s allegations must be more than 

conclusory and cannot skip certain elements of the claim. See De La Vega, 2020 WL 3528411, at 

*6 (granting motion to dismiss because plaintiff failed to explain and allege one limitation of the 

claim). Indeed, this Court’s decisions are consistent with other courts holding that the 

Iqbal/Twombly standard requires more than a bare-bones allegation that alleged products, like 

those involving the particular technology in this case, “meet each and every element of at least one 

claim of the asserted patent.” E.g., Chapterhouse, LLC v. Shopify, Inc., No. 2:18-CV-00300-JRG, 

2018 WL 6981828, at *2–3 (E.D. Tex. Dec. 11, 2018) (granting dismissal as to patent claims 

involving “hardware and software” technology relating to a “transaction receipt system,” and 

holding that “[w]hile screenshots may be useful in laying out a plausible allegation of patent 

infringement, Plaintiff must further allege how the screenshots meet the text of the exemplary 

claim in order to lay out sufficient factual allegations which might permit the Court to find that the 

Iqbal/Twombly standard is met”); see also Horatio Wash. Depot Techs. LLC v. TOLMAR, Inc., 

No. 17-1986-LPS, 2018 WL 5669168, at *11 (D. Del. Nov. 1, 2018) (“In order to adequately plead 

direct (and indirect and willful) infringement, a plaintiff needs to have pleaded facts that plausibly 

indicate that the accused products contain each of the limitations found in the claim.”); Lexington 

Luminance LLC v. Serv. Lighting & Elec. Supplies, Inc., No. 3:18-01074-K, slip op. at 3 (N.D. 

Tex. Oct. 9, 2018) (“Because of [the complicated nature of the technology involved], a plausible 

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 13 of 23
8

inference that an accused device meets all the limitations of the asserted claims cannot be inferred 

from the bare conclusory allegations that this is so.”).

Plaintiff’s Amended Complaint—which asserts only capability and speculation to perform 

certain limitations, and is completely silent on others—does not meet the pleading requirements 

for direct infringement and should be dismissed. For at least four limitations, Plaintiff only alleges 

mere capability. For example, claim 1[a] requires “creating and configuring a plurality of Multiple 

Spanning Tree Instances whose active topology covers the topology of Virtual Local Area 

Networks (VLANs) being used within the computer network,” and Plaintiff alleges only that the 

Accused Products “may be configured” to meet this limitation. Am. Compl. ¶ 15. Claim 1[c] 

requires “setting the Internal Port Path Cost (IPPC) of one of the ports of one of said bridges within 

the MSTI to a high IPPC when said port is not part of the VLAN member set,” and Plaintiff alleges 

only that the Accused Products “may be configured” “to set a relatively higher path cost.” Am. 

Compl. ¶ 17. Claim 1[d] requires “setting the IPPC of one of the ports of one of said bridges 

within the MSTI to a lower IPPC when said port is part of the VLAN member set,” and Plaintiff 

alleges only that the Accused Products “may be configured” “to set a relatively low path cost.” 

Am. Compl. ¶ 17. Claim 1[f] requires that the “lower IPPC is a value that is based on a speed of 

the links that are connected to the corresponding ports that are part of the VLAN member set,” 

and Plaintiff alleges only that the Accused Products “may set a path cost for a forwarding port 

based on port speed.” Am. Compl. ¶ 18.

Further, Plaintiff’s Amended Complaint ignores at least three limitations. Claim 1[b] 

requires “creating VLAN member sets and associating each of said VLANs with an appropriate 

one of the MSTIs . . . ,” and Plaintiff’s Amended Complaint is silent as to whether VLANs are 

associated with “an appropriate one of the MSTIs.” See generally Am. Compl. ¶ 16. Claim 1[e] 

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 14 of 23
9

requires that the “high IPPC is a value that is higher than any of the values used for the IPPCs of 

ports that are part of the VLAN member set,” and Plaintiff’s Amended Complaint is silent as to 

this limitation. Claim 1[f] requires that the “lower IPPC is a value that is based on a speed of the 

links that are connected to the corresponding ports that are part of the VLAN member set,” and

Plaintiff’s Amended Complaint is silent as to whether the low IPPC value is based on the speed 

links. See generally Am. Compl. ¶ 18.

Plaintiff’s Amended Complaint adds only the conclusory and speculative statement that 

“upon information and belief, each and every element of at least claim 1 of the ’435 Patent is 

performed or practiced by Defendants,” does not transform its allegation that a product “may be 

configured” to perform some steps—and its complete silence as to other steps—into sufficient 

allegations. Am. Compl. ¶ 20. Plaintiff has merely alleged that Defendants’ products might be 

configured to infringe a claim, and on information and belief they are. That naked, conclusory 

allegation, completely untethered to any factual allegation, is plainly insufficient under the law. 

As the Federal Circuit has held, “a court must dismiss a complaint if it fails to allege ‘enough facts 

to state a claim to relief that is plausible on its face’”; this “‘facial plausibility’” requires “‘more 

than labels and conclusions.’” Golden v. Apple Inc., 819 F. App’x 930, 931 (Fed. Cir. 2020) 

(quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff’s allegations are precisely the “conclusory 

formulaic recitations” the law does not allow. Id. (affirming dismissal where the complaint 

“merely states that ‘at least one of the defendants named in this complaint has infringed . . . the 

’287 patent,’” and failed to point “to any nonfrivolous allegations of infringement of any claim by 

any actual product made, used, or sold by any defendant”). 

Thus, despite claim 1 requiring the actual performance of specific steps, Plaintiff’s 

allegations consist either of speculation based on speculation, or—worse—Plaintiff completely 

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 15 of 23
10

ignores limitations entirely. This failure is particularly egregious and relevant where the 

documents Plaintiff relies on demonstrate that the protocol that must be used in Plaintiff’s 

infringement theory—MSTP—is turned off by default and can be used only if the user turns it on. 

See https://cc.cnetcontent.com/inlinecontent/mediaserver/len/bf8/bd5/bf8bd5f94d05419098c68e

753796699e/original.pdf at 779 (last retrieved Oct. 28, 2020). Plaintiff never plausibly alleges 

that anyone configures the Accused Products by completing all the steps of claim 1. Instead, 

Plaintiff’s infringement claim rests on speculating that the Accused Products may potentially be 

configured in the manner required by all steps of the claim, and then speculatively asserting that 

Defendants practice the claimed method. Such speculative allegations do not meet Plaintiff’s 

obligations under Iqbal/Twombly. See Redding v. Swanton, No. 1-16-CV-01153-ADA, 2020 WL 

4572696, at *4 (W.D. Tex. Aug. 7, 2020) (“The Supreme Court is no-nonsense about pleading 

specificity requirements . . . Plaintiffs cannot satisfy the requirement in Iqbal to plead facts rising 

above the speculative level . . . .”); Bell v. Crawford Indep. Sch. Dist., No. 6:19-CV-268-ADA, 

2020 WL 5370592, at *5 (W.D. Tex. Feb. 13, 2020) (dismissing claim for failing to allege a “right 

to relief above the speculative level as required by Twombly”). Because Plaintiff’s Amended 

Complaint still does not meet the most basic pleading requirements for alleging infringement of a 

method claim, the complaint should be dismissed.

B. 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 

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 16 of 23
11

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

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 

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 17 of 23
12

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

The Amended Complaint includes an erroneous footnote that attempts to distinguish 

Aguirre by asserting that “Delaware courts have since rejected this rule.” Am. Compl. ¶ 20 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. ¶ 22 (emphasis 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 

Case 6:20-cv-00476-ADA Document 36 Filed 10/30/20 Page 18 of 23
13

D.I. 54.3 To make matters worse, Plaintiff’s May 19, 2020 complaint was never served, so it 

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

v. Dell Inc., et al., No. 6-20-cv-00407) (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.4 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 

 

3

 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 

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.”). 

4

 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-00476-ADA Document 36 Filed 10/30/20 Page 19 of 23
14

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 

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 three website citations. See Am. Compl. ¶ 23. 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 *2.5

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

entirely silent on a key requirement of induced infringement.

 

5

 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-00476-ADA Document 36 Filed 10/30/20 Page 20 of 23
15

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 noninfringing 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. ¶ 24. 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 multiple spanning tree protocols. In fact, this feature is disabled 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-00476-ADA Document 36 Filed 10/30/20 Page 21 of 23
16

Dated: October 30, 2020 By: 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-00476-ADA Document 36 Filed 10/30/20 Page 22 of 23
17

CERTIFICATE OF SERVICE

The undersigned certifies that on this 30th day of October 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-00476-ADA Document 36 Filed 10/30/20 Page 23 of 23