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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Civil Action No.: 6:20-cv-00480-ADA

Civil Action No.: 6:20-cv-00481-ADA

Civil Action No.: 6:20-cv-00486-ADA

JURY TRIAL DEMANDED

REPORT AND RECOMMENDATIONS OF

THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE ALAN D ALBRIGHT,

UNITED STATES DISTRICT JUDGE

This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. 

§ 636(b)(1)(C), Fed. R. Civ. P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules 

of the United States District Court for the Western District of Texas, Local Rules for the 

Assignment of Duties to United States Magistrate Judges. Before the Court are the various 

pretrial motions listed in the table below. The Court heard oral argument on these motions on 

January 27 and 30, 2023. For the reasoning stated on the record during the hearing, the Court 

issued the following recommendations, which are memorialized below.

V. OBJECTIONS

The parties may wish to file objections to this Report and Recommendation. Parties filing 

objections must specifically identify those findings or recommendations to which they object. 

Case 6:20-cv-00486-ADA-DTG Document 346 Filed 01/30/23 Page 1 of 6
The District Court need not consider frivolous, conclusive, or general objections. See Battle v. 

U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written 

objections to the proposed findings and recommendations contained in this Report within 

fourteen (14) days shall bar that party from de novo review by the District Court of the proposed 

findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 

U.S. 140, 150–53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) 

(en banc). Except upon grounds of plain error, failing to object shall further bar the party from 

appellate review of unobjected-to proposed factual findings and legal conclusions accepted by 

the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150–53; Douglass, 79 

F.3d at 1415.

Dated: January 30, 2023

____________________________________

DEREK T. GILLILAND

UNITED STATES MAGISTRATE JUDGE

Case 6:20-cv-00486-ADA-DTG Document 346 Filed 01/30/23 Page 2 of 6
THE COURT’S RECOMMENDATIONS

Movant Motion Docket No. RECOMMENDATION

Brazos

Plaintiff’s Daubert Motion to Exclude 

Certain Opinions In The Expert Report 

of Stephen L. Becker, Ph.D. Or In The 

Alternative Strike Portions of the Expert 

Report of Stephen L. Becker, Ph.D.

ECF 254 (-480)

ECF 251 (-481)

ECF 257 (-486)

DENIED

Brazos

Plaintiff’s Motion to Strike Certain 

Portions of Defendants’ Expert Reports 

and Rule 26(a)(2)(C) Disclosure

ECF 255 (-480)

ECF 255 (-481)

ECF 258 (-486)

DENIED, but Plaintiff may take depositions of up 

to 3.5 hours of Colbert and Varghese.

Brazos

Plaintiff’s Motion to Exclude Certain 

Opinions In the Expert Reports of 

Benjamin F. Goldberg, Ph.D. And 

Kevin Jeffay, Ph.D. Regarding 

Invalidity of U.S. Patent No. 9,164,800 

And Licensing Opinions of Tajana 

Rosing, Ph.D. and Kevin Jeffay, Ph.D

ECF 256 (-480)

ECF 256 (-481)

ECF 259 (-486)\

DENIED

Brazos

Plaintiff’s Motion for Partial Summary 

Judgment For Validity of U.S. Patent 

No. 9,164,800

ECF 257 (-480)

ECF 257 (-481)

ECF 260 (-486)

DENIED

Brazos

Plaintiff’s Motion for Partial Summary 

Judgment and Supplemental Motion in 

Limine

ECF 294 (-480)

ECF 295 (-481)

ECF 297 (-486)

GRANTED as UNOPPOSED

Case 6:20-cv-00486-ADA-DTG Document 346 Filed 01/30/23 Page 3 of 6
VMware

Defendants’ Motion to Dismiss First 

Amended Complaint for Failure to State 

a Claim 

The Court dismissed Plaintiff’s indirect 

infringement claims, but the Court’s 

decision on Plaintiff’s direct 

infringement claims remains 

pending. See, e.g., 12/21/20 Hearing 

Tr. 76:16–77:7; 4/2/21 E-mail Exchange 

with WSOU.

ECF 38 (-480)

ECF 38 (-481)

ECF 38 (-486)

DENIED

VMware

Defendants’ Opposed Motion for IntraDistrict Transfer of Venue to the Austin 

Division of the Western District of 

Texas

ECF 43 (-480)

ECF 44 (-481)

ECF 43 (-486)

DENIED

VMware

Defendants’ Opposed Motion to 

Dismiss for Lack of Subject Matter 

Jurisdiction Under Federal Rule of Civil 

Procedure 12(B)(1) (for (a) gap in chain 

of title (’360 patent); (b) failure of 

assignment from Wade and Company to 

Plaintiff (’360 and ’133 patents); and (c) 

no assignment to Plaintiff to sue for past 

damages (’360, ’133, ’800 patents))

ECF 196 (-480)

ECF 193 (-481)

ECF 195 (-486)

DENIED

VMware

Defendants’ Motion to Exclude Certain 

Portions of Mr. Roy Weinstein’s Expert 

Report

ECF 246 (-480)

ECF 246 (-481)

ECF 249 (-486)

DENIED-IN-PART (as to apportionment opinion, 

inclusion of non-infringing damages in royalty 

base, and as to the ’133 patent and non-infringing 

configuration) and GRANTED-IN-PART (as to

’800 and ‘360 inclusion of software only sales. If 

there are sales of software with hardware, this is 

DENIED and those can be included.)

Case 6:20-cv-00486-ADA-DTG Document 346 Filed 01/30/23 Page 4 of 6
VMware

Defendants’ Motion to Strike Certain 

Portions of Mr. Roy Weinstein’s Expert 

Report

ECF 250 (-480)

ECF 250 (-481)

ECF 253 (-486)

GRANTED

VMware

Defendants’ Motion to Exclude Certain 

Opinions of Stan McClellan, Ph.D.

ECF 248 (-480)

ECF 248 (-481)

ECF 251 (-486)

DENIED

VMware

Defendants’ Motion to Strike Certain 

Portions of Dr. Stan McClellan’s Expert 

Report Regarding Indirect 

Infringement*

*Plaintiff has filed a notice of nonopposition to this motion. See Case -

480, ECF 291; Case -481, ECF 291; 

Case -486, ECF 294

ECF 252 (-480)

ECF 253 (-481)

ECF 255 (-486)

GRANTED as UNOPPOSED

VMware

Defendants’ Motion to Strike Certain 

Opinions of Dr. Stan McClellan 

Concerning Infringement of U.S. Patent 

No. 7,539,133 

ECF 242 (-480)

DENIED

VMware

Defendants’ Motion for Summary 

Judgment of Non-Infringement of U.S. 

Patent No. 7,539,133

ECF 244 (-480) DENIED

VMware

Defendants’ Rule 12(c) Motion for 

Judgment on the Basis of Ineligibility 

Under 35 U.S.C. § 101 of U.S. Patent 

No. 9,164,800

ECF 191 (-481)

DENIED

Case 6:20-cv-00486-ADA-DTG Document 346 Filed 01/30/23 Page 5 of 6
VMware

Defendants’ Motion to Strike 

Previously Undisclosed Theories of Dr. 

Stan McClellan Concerning the 

Infringement of U.S. Patent No. 

9,164,800

ECF 242 (-481)

DENIED as to Network Aware DRS, GRANTED

as to virtual memory and virtual storage, and

DENIED as MOOT regarding Pair-Wise Load

Balancing

VMware

Defendants’ Motion for Summary 

Judgment of Non-Infringement of U.S. 

Patent No. 9,164,800 ECF 244 (-481)

GRANTED as to virtual memory and virtual 

storage and DENIED-IN-PART (as to maximum 

latency, network DRS, and 273(a))

VMware

Defendants’ Rule 12(c) Motion for 

Judgment on the Basis of Ineligibility 

Under 35 U.S.C. § 101 of U.S. Patent 

No. 7,092,360

ECF 172 (-486).

DENIED

VMware

Defendants’ Daubert Motion and 

Motion to Exclude Certain Opinions of 

Dr. Stan McClellan as to U.S. Patent 

No. 7,092,360

ECF 245 (-486) DENIED

VMware

Defendants’ Motion for Summary 

Judgment of Non-Infringement of U.S. 

Patent No. 7,092,360

ECF 247 (-486) GRANTED as to “current pointer,” “next pointer,” 

and “selector;” and DENIED as to “computer 

generated model” and “monitor”

Case 6:20-cv-00486-ADA-DTG Document 346 Filed 01/30/23 Page 6 of 6