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., EMC CORPORATION, AND

VMWARE, INC.

Defendants.

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NO. 6:20-cv-480-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., 

EMC Corporation, and VMWare, Inc. (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. (“Dell”) is a Delaware 

corporation with a principal place of business at One Dell Way, Round Rock, Texas 78682.

Case 6:20-cv-00480-ADA-DTG Document 35 Filed 10/19/20 Page 1 of 11
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.

5. On information and belief, defendant EMC Corporation (“EMC”) 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. 

6. Upon information and belief, VMware, Inc. (“VMWare”) is a Delaware corporation 

with two established places of business in this District, including two in Austin, Texas with over 

700 employees. 

7. Upon information and belief, VMWare was acquired by EMC in 2004 and 

conducted an initial public offering of Class A common stock in August 2007. On or around 

September 2016, Dell acquired by EMC. As a result, EMC became a wholly-owned subsidiary of 

Dell, and VMWare became an indirectly-held, majority-owned subsidiary of Dell. Under the rules 

of the New York Stock Exchange, VMWare is a controlled company. As of January 31, 2020, Dell 

controlled approximately 80.9% of VMWare’s outstanding common stock, including 31 million 

shares of its Class A common stock and all of it Class B common stock.

JURISDICTION AND VENUE

8. 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.

9. This Court has jurisdiction over the subject matter of this action under 28 U.S.C. 

§§ 1331 and 1338(a).

10. 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 

Case 6:20-cv-00480-ADA-DTG Document 35 Filed 10/19/20 Page 2 of 11
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.

11. 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. 

COUNT ONE - INFRINGEMENT OF 

U.S. PATENT NO. 7,539,133

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

Complaint.

13. On May 26, 2009, the United States Patent and Trademark Office duly and legally 

issued U.S. Patent No. 7,539,133 (“the ‘133 Patent”), entitled “Method and Apparatus for 

Preventing Congestion in Load-Balancing Networks.” A true and correct copy of the ‘133 Patent 

is attached as Exhibit A to this Complaint.

14. Brazos is the owner of all rights, title, and interest in and to the ‘133 Patent, 

including the right to assert all causes of action arising under the ‘133 Patent and the right to any 

remedies for the infringement of the ‘133 Patent.

15. 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, cloud-related 

solutions, including but not limited to, devices incorporating VMware’s VeloCloud solutions and 

Case 6:20-cv-00480-ADA-DTG Document 35 Filed 10/19/20 Page 3 of 11
SD-WAN software, such as Dell EMC SD-WAN Edge 600 series products (collectively, the 

“Accused Products”).

https://www.dell.com/learn/us/en/15/solutions/vmware-vcloud

https://www.delltechnologies.com/en-us/networking/sd-wan-solution/index.htm

16. The Accused Products can provide a cloud network service solution enabling sites 

to deploy enterprise-grade access to legacy and cloud applications over both private networks and 

Case 6:20-cv-00480-ADA-DTG Document 35 Filed 10/19/20 Page 4 of 11
Internet broadband. Cloud-delivered Software-Defined Wide-Area-Network (SD-WAN) aids 

enterprise and cloud application performance over Internet and hybrid WAN.

https://docs.vmware.com/en/VMware-SD-WAN-by-VeloCloud/3.3/velocloud-admin-guide33.pdf

17. The Accused Products have a variety of features and capabilities including 

Dynamic Multipath Optimization (DMPO) technology. VMware SD-WAN processing of traffic 

flows at a node in a network can provide packet level redirection, which allows one or multiple 

physical WAN links to be abstracted and virtualized packet-by-packet. Path selection and 

remediation techniques can be applied in virtually real-time. Dynamic load-sharing maintains endcustomer application performance quality, regardless of the reliability or consistency of the 

individual physical link. 

https://www.velocloud.com/content/dam/digitalmarketing/velocloud/en/documents/case-studydell-emc.pdf

Case 6:20-cv-00480-ADA-DTG Document 35 Filed 10/19/20 Page 5 of 11
https://partners.lantelligence.com/wp-content/uploads/2018/07/dmpo-brief.pdf

18. VMware DMPO provides automatic link monitoring, auto-detection of provider 

and autoconfiguration of link characteristics, routing, and quality of service (QoS) settings. 

VMware DMPO delivers sub-second blackout and brownout protection to improve application 

availability. VMware DMPO remediates link degradation through forward error correction (FEC), 

jitter buffering activation, and synthetic packet production. 

https://www.velocloud.com/content/dam/digitalmarketing/velocloud/en/documents/briefsolution-overview.pdf

19. DMPO performs per-packet load balancing for SD-WAN networks.

https://partners.lantelligence.com/wp-content/uploads/2018/07/dmpo-brief.pdf

20. Nodes may have a hub-spoke design with a hub and multiple spokes. Traffic flow 

may be received at the hub and may be transmitted to various spokes. When dynamic edge-to-edge 

is enabled, the hub will not know the traffic between edges and may keep sending low priority 

Case 6:20-cv-00480-ADA-DTG Document 35 Filed 10/19/20 Page 6 of 11
traffic until congestion occurs. As congestion conditions are detected at an edge, with multi-source 

inbound QoS enabled, the edge will proactively inform the hub to slow down the low priority 

traffic.

https://partners.lantelligence.com/wp-content/uploads/2018/07/dmpo-brief.pdf

21. Under congestion, the traffic in the Accused Products will be queued. When the 

queue is full, packets are dropped. This is an example of processing packets such that those 

associated with egress nodes for which the congestion condition does not exist have a different 

queuing priority within the load-balancing network than packets associated with egress nodes for 

which the congestion condition exists.

https://partners.lantelligence.com/wp-content/uploads/2018/07/dmpo-brief.pdf

22. The Accused Products may also provide an enhanced QoS feature called Business 

Policy. Based on this Business Policy configuration, the Accused Products examine the traffic 

being used (whether congestion condition exists or not) and identify the application behavior and 

the Edge WAN Link conditions. Based on this, the Business Policy optimizes application behavior 

driving queuing, bandwidth utilization, link steering, and the mitigation of network errors. 

https://docs.vmware.com/en/VMware-SD-WAN-by-VeloCloud/3.3/velocloud-admin-guideCase 6:20-cv-00480-ADA-DTG Document 35 Filed 10/19/20 Page 7 of 11
33.pdf

https://docs.vmware.com/en/VMware-SD-WAN-by-VeloCloud/3.3/velocloud-admin-guide33.pdf

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

‘133 Patent is found in the Accused Products.

24. And upon information and belief, each and every element of at least one claim 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.

25. Defendants continue to directly infringe at least one claim of the ‘133 Patent, 

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

and/or distributing the Accused Products in the United States, including within this judicial district, 

without the authority of Brazos.

26. 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 

Case 6:20-cv-00480-ADA-DTG Document 35 Filed 10/19/20 Page 8 of 11
the patent-in-suit before the filing of this Amended Complaint.1

27. 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 

‘133 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://www.vmware.com/company/acquisitions/velocloud.html

● https://www.dell.com/learn/us/en/15/solutions/vmware-vcloud

● https://www.delltechnologies.com/en-us/networking/sd-wan-solution/index.htm

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 

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-00480-ADA-DTG Document 35 Filed 10/19/20 Page 9 of 11
● https://www.dell.com/en-us/work/shop/povw/sd-wan-edge-600

● https://partners.lantelligence.com/wp-content/uploads/2018/07/dmpo-brief.pdf

● https://docs.vmware.com/en/VMware-SD-WAN-by-VeloCloud/3.3/velocloud-adminguide-33.pdf

● https://www.velocloud.com/content/dam/digitalmarketing/velocloud/en/documents/brief

-solution-overview.pdf

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

infringement of the ‘133 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 ‘133 Patent. The Accused Products are especially made or adapted 

for infringing the ‘133 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 ‘133 Patent.

JURY DEMAND

Brazos hereby demands a jury on all issues so triable.

REQUEST FOR RELIEF

WHEREFORE, Brazos respectfully requests that the Court:

(A) Enter judgment that Defendants infringe one or more claims of the ‘133 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 ‘133 Patent;

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

the infringement of one or more claims of the ‘133 Patent;

Case 6:20-cv-00480-ADA-DTG Document 35 Filed 10/19/20 Page 10 of 11
(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 ‘133 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: October 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

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-00480-ADA-DTG Document 35 Filed 10/19/20 Page 11 of 11