UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC

d/b/aBRAZOS LICENSING 

AND DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC., 

DELL INC., AND EMC 

CORPORATION,

Defendant.

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CIVIL ACTION NO. 6:20-CV-00473-ADA

CIVIL ACTION NO. 6:20-CV-00474-ADA

CIVIL ACTION NO. 6:20-CV-00475-ADA

CIVIL ACTION NO. 6:20-CV-00476-ADA

CIVIL ACTION NO. 6:20-CV-00477-ADA

CIVIL ACTION NO. 6:20-CV-00478-ADA

CIVIL ACTION NO. 6:20-CV-00479-ADA

CIVIL ACTION NO. 6:20-CV-00482-ADA

JURY TRIAL DEMANDED

WSOU INVESTMENTS, LLC

d/b/aBRAZOS LICENSING 

AND DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC., 

DELL INC., EMC CORPORATION, 

and VMWARE, INC.

Defendants.

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CIVIL ACTION NO. 6:20-CV-00480-ADA

CIVIL ACTION NO. 6:20-CV-00481-ADA

CIVIL ACTION NO. 6:20-CV-00485-ADA

CIVIL ACTION NO. 6:20-CV-00486-ADA

JURY TRIAL DEMANDED

PLAINTIFF’S RESPONSIVE BRIEF OPPOSING 

DEFENDANTS’ REQUEST FOR AN ACQUISITION BAR

Case 6:20-cv-00486-ADA Document 131 Filed 12/19/21 Page 1 of 9
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Defendants’ request for an acquisition bar suffers from four fatal flaws. First, the only risk 

they identify is the same type of risk present in every patent case, not a heightened risk that merits 

extraordinary relief. Second, Defendants fail to establish that anyone subject to this acquisition bar 

is a competitive decisionmaker. Third, the terms of their acquisition bar cast a wide net and would 

create personal and professional hardships on WSOU’s outside counsel, technical experts, and 

vendors. And fourth, numerous other aspects of the bar have unreasonable and oppressive scope. 

The Court should therefore deny Defendants’ request for this overly broad, oppressive, and 

draconian acquisition bar in these cases.

The only risk of inadvertent disclosure Defendants identify is common to every patent 

case. To show good cause for the heightened protections of an acquisition bar, Defendants have

the burden to show “a heightened risk of inadvertent disclosure.” In re Deutsche Bank Tr. Co.

Americas, 605 F.3d 1373, 1378, 1381 (Fed. Cir. 2010) (emphasis added). The only risk Defendants 

have identified is that “Defendants have produced highly confidential information regarding the 

function of the accused products, including source code.” Opening Br. at 3. But that is the very 

same risk that exists in every patent case and is already covered by other provisions of the 

protective order. See id. at 1378 (stating provisions specifying confidential information may be 

used only for purposes of the current litigation are generally accepted as an effective way of 

protecting sensitive information). The only factor that Defendants add to their very generalized 

expression of risk is that WSOU’s counsel are allegedly engaged in “competitive decisionmaking.”

Defendants fail to show that WSOU’s outside counsel are competitive 

decisionmakers. Although Defendants use the term “competitive decisionmaking” on every page 

of their brief save one, and they note that this is “the central question” (Opening Br. at 2), they

never explain how anyone here is a competitive decisionmaker such that the risk of inadvertent 

disclosure is heightened.

Let’s be very clear: Plaintiff’s counsel has not represented that it is presently engaged in 

acquisition activity on behalf of other clients, nor did Plaintiff’s counsel make “admissions about 

their extensive involvement in precisely the type of competitive decisionmaking that the 

Case 6:20-cv-00486-ADA Document 131 Filed 12/19/21 Page 2 of 9
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acquisition bar would preclude.” See Opening Br. at 1 & n.1, 6. Dell’s statements there are simply 

false misrepresentations of WSOU’s email requesting reconsideration. Compare Opening Br. at 1 

(“[E]ven Plaintiff represents that its outside counsel routinely advises clients in the acquisition and 

valuation of patents and claims, pertaining to the subject matter at issue in this litigation, that are 

or will be asserted against Defendants, and that its counsel is doing so presently.”) (citing Ex. 1, 

Dec. 9 Email Requesting Reconsideration) with WSOU’s Ex. A (copy of same with emphasis 

added showing counsel’s actual concerns were about the ability to continue practicing law).

Defendants also essentially argue that litigating acquired patents is itself acquisition 

activity. See Opening Br. at 6 (claiming WSOU’s “counsel engages in acquisition activities that 

are unquestionably ‘competitive decisionmaking.’ Plaintiff’s counsel currently represents Plaintiff 

in its assertion of acquired patents.”) But such a generalized statement is inconsistent with 

Deutsche Bank and district court decisions applying it. See Deutsche Bank, 605 F.3d at 1378, 1379

(stating it is error to deny access solely on counsel’s general position; “[t]he facts, not the category 

must inform the result ... each case should be decided based on the specific facts involved 

therein”). For example, in Karamelion LLC v. ADT LLC, Judge Gilstrap rejected defendants’ 

“request that acquisition bars be imposed in all cases where the plaintiff is a non-practicing entity 

or otherwise acquires patents.” No. 2:18-CV-330 at 6 (D.I. 36) (E.D. Tex. Jan. 24, 2019). See also, 

e.g., Jenam Tech, LLC v. Samsung Elecs. America, Inc., No. 4:19-CV-250, 2020 WL 757097, at 

*1 (E.D. Tex. Feb. 4, 2020) (explaining good cause requires “a particular and specific 

demonstration of fact as distinguished from stereotyped and conclusory statements) (quoting In re 

Terra Int’l, Inc., 134 F.3d 302, 306 (5th Cir. 1998).1

WSOU’s counsel in these cases have never been involved in decisions about what patents, 

claims, or portfolios WSOU would acquire. Counsel would be happy to provide declarations to 

that effect, if the Court believes that is necessary. Moreover, Defendants’ argument that “Plaintiff 

has at least nine other law firms currently representing it in litigations in this District” completely

1 Indeed, Defendants have provided even less evidence of competitive decisionmaking here than 

the district court found inadequate in Jenam. See id. at *2.

Case 6:20-cv-00486-ADA Document 131 Filed 12/19/21 Page 3 of 9
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undermines any argument that any of those firms are “competitive decisionmakers” of the type 

that create “unique situations” meriting acquisition bars. See Multimedia Content Mgmt. LLC v. 

Dish Network LLC, No. 6:18-CV-07-ADA, D.I. 93, at 6 (W.D. Tex. Sept. 25, 2019) (stating this 

Court disfavors acquisition bars except in unique situations).

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Good cause for a protective order requires showing “a clearly defined and serious injury” 

to the party seeking protection. Doc. Gen. Corp. v. Allscripts, LLC, No. 6:08-CV-479, 2009 WL 

1766096, at *2 (E.D. Tex. 2009). Because Defendants failed to show WSOU’s counsel engages in 

competitive decisonmaking, and because they allege only the same generalized risk of inadvertent 

disclosure inherent in every patent case, they fail to show “clearly defined and serious injury”

meriting an acquisition bar and their request should be denied for these reasons alone. See id.

The extreme scope of the acquisition bar does not reasonably reflect the risk 

Defendants identified. Even if Defendants had shown some competitive decisionmaking activity

and clearly defined, serious injury, the acquisition bar should still be rejected because it will 

impose oppression and undue burden and expense on WSOU and WSOU’s counsel, technical 

experts, and document vendors. See Fed. R. Civ. Pro. 26(c); see also Deutsche Bank, 605 F.3d at 

1381 (requiring the factors of the bar to “reasonably reflect the risk presented by the disclosure”).

“Pertaining to the field of the invention” is overbroad for acquisition bars. While this 

phrase might be appropriate for prosecution bars where the scope of pending claims is in flux, such 

breadth is not appropriate for conjecture about potential future acquisition of existing patents. 

As demonstrated in the patents-in-suit, the field of the inventions has vast breadth far 

beyond the scope of the claims at issue and untethered to the actual information produced in the 

cases.

3 Prohibiting WSOU’s outside counsel from litigating any other patents related to cloud 

computing, data networks, communications networks, packet networks, and computer networks

2 In addition to this Court’s MCM decision noting acquisition bars are disfavored, Exhibit A 

catalogs decisions in the Eastern and Western District that rejected acquisition bars.

3 See, e.g., Patent Nos. 9,164,800 at 1:5-8 (“cloud computing”) (case 485); 8,913,489 at 1:46 (“data 

networks”) (case 477); 7,539,133 (“communication networks”) (case 480); 7,126,921 (“packet 

networks”) (case 478); 7,565,435 (“computer networks”) (case 476).

Case 6:20-cv-00486-ADA Document 131 Filed 12/19/21 Page 4 of 9
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would effectively require counsel to withdraw from current cases involving such technologies and 

bar counsel from litigating within its areas of expertise. That result simply cannot “reasonably 

reflect” any risk of inadvertent disclosure Defendants have articulated. See Deutsche Bank, 605 

F.3d at 1381.

Indeed, in Deutsche Bank the Federal Circuit noted the scope of a bar was more properly 

the “same subject matter of the litigation.” See id. (citing MedImmune, Inc. v. Centocor, Inc., 271 

F. Supp. 2d 762, 775 n.14 (D. Md. 2003)). Other courts are in accord. See, e.g., Intell. Ventures I, 

LLC v. Lenovo Grp., No. 16-cv-10860, 2019 WL 343242, at *4 (D. Mass. Jan. 25, 2019) (stating 

where a bar is appropriate, it should be limited “to the subject matter of the patent-in-suit, 

consistent with the scope allowed by other courts”) (citing cases); EPL Holdings, LLC v. Apple 

Inc., No. C-12-4306, 2013 WL 2181584, at *5 (N.D. Cal. May 20, 2013) (applying acquisition bar 

regarding patents “narrowly related to the subject matter of this litigation”).

Applying the acquisition bar to “any attorney” ignores the facts and inappropriately 

applies mere generalizations. Paraphrasing Deutsche Bank’s analysis: because patent litigation 

is not a one-dimensional endeavor and can encompass a range of activities, it is shortsighted to 

conclude that every patent litigation attorney is necessarily involved in competitive 

decisionmaking. Indeed, denying access to a party’s outside counsel on the ground that they litigate 

patents for that party is the type of generalization counseled against in U.S. Steel. The facts, not 

the category must inform the result. The holding in U.S. Steel dictates that each case should be 

decided based on the specific facts involved therein. See 605 F.3d at 1379.

Dell makes no effort to explain why every attorney who has access to Defendants’

confidential information should be barred for years from practicing law in these broad fields. Their 

“any attorney” approach deals with generalizations, not facts. Indeed, according to Defendants, 

merely because outside counsel represent a party that acquires patents, everyone involved in the 

cases is engaged in acquisition activities. Opening Br. at 6. That argument amounts to an improper

per se acquisition bar on all litigation counsel who assert acquired patents. See MedImmune, 271 

F. Supp. 2d at 773-74 (rejecting a per se prohibition on use of litigation counsel who also prosecute 

Case 6:20-cv-00486-ADA Document 131 Filed 12/19/21 Page 5 of 9
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patents as contrary to Federal Circuit law).4

In re Dell is directly on point. 498 Fed. Appx. 40 (Fed. Cir. 2012). In that case—well 

known to Dell but not cited in its brief—the Federal Circuit addressed the “unusual case” where 

the owner of a party was also the named partner of the law firm representing that party. Id. at 41. 

Despite that partner being a competitive decisionmaker of the party, the Federal Circuit (and two 

district courts below) refused to apply the restrictions of the protective order to anyone else in the 

firm. Dell’s argument failed because it was based on only “general assumptions” and “categorical 

presumptions” about the other members of the Desmarais firm, and not on “in the actual ‘factual 

circumstances surrounding each individual counsel’s activities, association, and relationship with 

a party.’” Id. at 43 (quoting U.S. Steel, 730 F.2d at 1468).

Dell is committing those same errors here. Dell’s request to this Court is supported solely 

on categorical presumptions that litigating acquired patents is acquisition activity, and on general 

assumptions that litigation counsel routinely advises clients about acquisition and valuation of 

patents. Opening Br. at 1, 4, 6. Dell has not identified any factual circumstances surrounding 

WSOU’s counsel’s, experts’, or vendors’ activities that justify the draconian consequences of 

Dell’s overbroad acquisition bar. Defendants’ per se rule also conflicts with the right recognized 

in U.S. Steel and Deutsche Bank for parties to have the benefit of counsel of their choice. Deutsche 

Bank, 605 F.3d at 1380 (citing U.S. Steel). Prohibiting litigation counsel from practicing law in 

broad fields merely because they represent acquiring companies will act as a chilling effect on 

those companies’ ability to protect their property rights. In the end, an acquisition bar that applies 

to “any attorney” not only does not “reasonably reflect the risk,” it has no connection to the risk 

whatsoever.

Applying the acquisition bar to “any person associated with a party” is even more 

onerous, and even less reflective of the alleged risk. The clear results of the “any person” 

provision is that a computer network expert (or cloud computing expert, or communications expert, 

4 In fact, the MedImmune court concluded the attorney was not subject to a bar in part because he 

represented many other clients. 271 F. Supp. 2d at 775.

Case 6:20-cv-00486-ADA Document 131 Filed 12/19/21 Page 6 of 9
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etc.) who receives Defendants’ confidential information would be prohibited from serving as an 

expert in their field of expertise for years. That unquestionably harms the expert and harms patent 

owners because it would create a chilling effect on experts willing to work for patent owners. See

Fed. R. Civ. P. 26(c) (“protect a party or person from annoyance, embarrassment, oppression, or 

undue burden or expense”) (emphasis added).5

Similarly, a document repository vendor who receives, stores, and searches Defendants’ 

confidential documents would be prohibited from exercising its expertise for additional cases for 

years.6 The vendor would have to inquire into the subject matter of later cases—likely not its 

expertise—and the prohibition wouldn’t just be for litigation productions. The vendor could be 

barred from providing data room services for financings, mergers, corporate acquisitions, due 

diligences, and numerous other business transactions. That, again, harms both the vendor and 

parties who need to rely on their services but who would find vendors unwilling to work for patent 

owners. See Fed. R. Civ. P. 26(c). Punishing experts and vendors in this manner simply does not 

reflect any risk that Defendants can articulate.7

Applying the bar for “any advice” “for anybody” and “any patent or claim” will 

foreclose legitimate activities of experts, vendors, and outside counsel. These restrictions 

similarly do not reflect any risk that Defendants have articulated. They would prohibit WSOU’s 

counsel from advising on how to narrow the claims in these cases and whether to advise if any of 

these patents should be dropped. These provisions would also prohibit counsel from advising any 

other clients about the selection of patents or claims for unrelated litigation against unrelated 

5 For this same reason, Defendants’ argument that WSOU’s counsel is not entitled to protection

under Deutsche Bank (Opening Br. at 7) simply cannot be reconciled with the plain language of 

the case and Rule 26(c).

6 Notably, although they would make experts and vendors subject to the bar, Defendants have not 

shown that the experts and vendors are competitive decisionmakers, either.

7 This is very different in the prosecution context. First, few people participate in the specialized, 

enumerated activities that constitute prosecution activities. Vendors certainly don’t “prepare, 

prosecute, supervise, or assist in the preparation or prosecution of patent applications.” To the 

extent experts do, they tend to specialize in prosecution activities and avoid the reach of 

prosecution bars. Defendants’ bar would deprive litigation experts of their livelihood.

Case 6:20-cv-00486-ADA Document 131 Filed 12/19/21 Page 7 of 9
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parties but within the expansive technologic “field of the inventions.” Experts would not be able 

to provide advice for any other potential clients within their own field of expertise, and vendors 

could not participate in a patent purchase due diligence, for example, by providing data room 

services. See Google LLC v. Sonos, Inc., No. 20-cv-3845, 2021 WL 1621875, at *2 (stating that 

the “proposed acquisition bar is overbroad in that it prohibits the affected individuals from having 

any involvement at all in activity or advice concerning the acquisition of certain types of patents 

or patent applications) (emphasis added).

For the reasons stated above, the Court should deny Defendants’ unsupported request for 

an acquisition bar in these cases.

Case 6:20-cv-00486-ADA Document 131 Filed 12/19/21 Page 8 of 9
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Dated: December 19, 2021 Respectfully submitted,

By: /s/ Jim Etheridge 

James L. Etheridge 

Texas Bar No. 24059147 

Ryan S. Loveless 

Texas Bar No. 24036997 

Brett A. Mangrum 

Texas Bar No. 24065671 

Travis L. Richins 

Texas Bar No. 24061296 

Jeffrey Huang

Brian M. Koide

Nathan K. Cummings

Etheridge Law Group, PLLC 

2600 E. Southlake Blvd., Suite 120 / 324 

Southlake, TX 76092 

Tel.: (817) 470-7249 

Fax: (817) 887-5950 

Jim@EtheridgeLaw.com 

Ryan@EtheridgeLaw.com 

Brett@EtheridgeLaw.com 

Travis@EtheridgeLaw.com 

Jhuang@EtheridgeLaw.com 

Brian@EtheridgeLaw.com

Nathan@EtheridgeLaw.com

Mark D. Siegmund

State Bar No. 24117055

mark@swclaw.com

STECKLER WAYNE COCHRAN CHERRY, 

PLLC 

8416 Old McGregor Rd. 

Waco, Texas 76712 

Telephone: (254) 651-3690 

Facsimile: (254) 651-3689

Counsel for Plaintiff WSOU Investments, LLC

CERTIFICATE OF SERVICE

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

via email to all counsel of record on December 19, 2021.

/s/ Jim Etheridge 

James L. Etheridge

Case 6:20-cv-00486-ADA Document 131 Filed 12/19/21 Page 9 of 9