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-00479-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 1 of 22
TABLE OF CONTENTS

Page

i

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

II. BACKGROUND ..............................................................................................................2

A. The Asserted Patent ................................................................................................ 2

B. The Accused Products............................................................................................. 3

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

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

B. Induced and Contributory Infringement ................................................................. 6

IV. ARGUMENT....................................................................................................................7

A. Plaintiff Fails to Plausibly Allege That OME Monitors the “Rate of 

Change of the Usage” in a Node............................................................................. 7

B. Plaintiff Fails to Plausibly Allege That OMNM Monitors the “Rate 

of Change of the Usage” in a Node ...................................................................... 10

C. Plaintiff Fails to State a Claim for Induced and Contributory 

Infringement.......................................................................................................... 11

1. Plaintiff’s Indirect Infringement Claims Fail Without Direct 

Infringement .................................................................................................. 11

2. Plaintiff Fails to Allege the Requisite Knowledge for Indirect 

Infringement .................................................................................................. 12

3. Plaintiff Fails to Allege the Requisite Specific Intent for Induced 

Infringement .................................................................................................. 13

4. Plaintiff Fails to Allege the Requisite Lack of Substantial 

Non-Infringing Uses for Contributory Unfringement................................... 15

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

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 2 of 22
TABLE OF AUTHORITIES

Page(s)

ii

Cases

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

620 F. App’x 934 (Fed. Cir. 2015) ......................................................................................6, 14

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

No. W:13-CV-365, 2014 WL 2892285 (W.D. Tex. May 12, 2014) ...............................6, 7, 14

Aguirre v. Powerchute Sports, LLC,

No. SA-10-CV-0702 XR, 2011 WL 2471299 (W.D. Tex. June 17, 2011) .......................12, 13

Amgen Inc. v. Coherus BioSciences Inc.,

931 F.3d 1154 (Fed. Cir. 2019)..........................................................................................7, 8, 9

Artrip v. Ball Corp.,

735 Fed. Appx. 708 (Fed. Cir. 2018)...................................................................................5, 15

Ashcroft v. Iqbal,

556 U.S. 662 (2009).............................................................................................................5, 10

Auto–Dril, Inc. v. Nat'l Oilwell Varco,

L.P., 6:15–CV–00091, 2015 WL 12868183 (W.D. Tex. June 24, 2015), report 

and recommendation adopted, 2015 WL 11004538 (W.D. Tex. July 15, 2015).......................9

Avocet Sports Tech., Inc. v. Garmin Int’l, Inc.,

C 11–04049 JW, 2012 WL 1030031 (N.D. Cal. Mar. 22, 2012).............................................13

Bell Atl. Corp. v. Twombly,

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

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

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

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

135 S. Ct. 1920 (2015).........................................................................................................6, 12

Data Engine Techs. LLC v. Google LLC,

906 F.3d 999 (Fed. Cir. 2018)................................................................................................7, 9

De La Vega v. Microsoft Corp.,

2020 WL 3528411 (W.D. Tex. Feb. 11, 2020)......................................................................6, 8

Dodots Licensing Sols. LLC v. Lenovo Holding Co., Inc.,

No. CV 18-098 (MN), 2018 WL 6629709 (D. Del. Dec. 19, 2018)........................................14

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 3 of 22
TABLE OF AUTHORITIES 

(continued)

Page(s)

iii

Enplas Display Device Corp. v. Seoul Semiconductor Co., Ltd.,

909 F.3d 398 (Fed. Cir. 2018)..............................................................................................6, 11

Fujitsu Ltd. v. Netgear Inc.,

620 F.3d 1321 (Fed. Cir. 2010)..................................................................................................7

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

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

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)............................................................................................6, 11

Lormand v. US Unwired, Inc.,

565 F.3d 228 (5th Cir. 2009) .....................................................................................................5

Lovelace v. Software Spectrum Inc.,

78 F.3d 1015 (5th Cir. 1996) .....................................................................................................9

Metricolor LLC v. L’Oreal S.A.,

791 Fed.Appx. 183 (Fed. Cir. 2019)..........................................................................................9

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

No. 6:19-CV-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019)......................13, 14

Proxyconn Inc. v. Microsoft Corp.,

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

The B.V.D. Licensing Corp. v. Body Action Design, Inc.,

846 F.2d 727 (Fed. Cir. 1988)....................................................................................................4

Xpoint Technologies, Inc. v. Microsoft Corp.,

730 F. Supp. 2d 349 (D. Del. 2010).........................................................................................13

Statutes

35 U.S.C. § 271(a) ...........................................................................................................................5

Rules

Fed. R. Evid. 201(b).........................................................................................................................4

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 4 of 22
TABLE OF ABBREVIATIONS

iv

Abbreviation Term

’129 patent U.S. Patent No. 8,402,129

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

OME OpenManage Enterprise

OMNM OpenManage Network Manager

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

Development

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 5 of 22
1

I. INTRODUCTION

Plaintiff has not plausibly alleged—and cannot plausibly allege—infringement in this case

because it seeks to capture subject matter that was unequivocally disavowed during patent 

prosecution. The ’129 patent describes and claims an alleged improvement to network monitoring 

involving tracking the “rate of change” of attributes at different network nodes, as opposed to the 

prior art techniques of measuring network attributes at a single point in time. During prosecution, 

the applicant for the ’129 patent repeatedly distinguished its claimed technique of measuring a rate 

of change of attributes over the prior art technique of measuring attributes at a single point in time. 

Contrary to what the patent applicant told the Patent Office during patent prosecution, Plaintiff 

now argues direct infringement based on a theory that attributes in Defendants networks are 

monitored at a single point in time. This departure from the prosecution history of the ’129 patent 

cannot support a claim for infringement. According to Plaintiff’s own allegations, the two network 

management techniques accused of infringement in this case, OME and OMNM, do precisely what 

the patent and the prosecution history admit as being within the prior art. OME and OMNM, 

therefore, cannot directly infringe the ’129 patent. 

Plaintiff’s indirect infringement claims are likewise fatally flawed. First, if there is no 

direct infringement, there cannot be indirect infringement. Second, these claims of indirect 

infringement are based entirely on knowledge of the patent beginning on the filing date of the 

Complaint. Finally, they fail to plead the requirements of induced and contributory infringement. 

This is a textbook case for dismissal on the pleadings under Iqbal and Twombly. Plaintiff’s 

failure goes beyond mere failure to plead sufficient facts. Not only has Plaintiff failed to even 

plausibly allege infringement, its factual allegations, including the very documents up on which it 

relies, demonstrate it has no claim. This case should be dismissed.

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 6 of 22
2

II. BACKGROUND

A. The Asserted Patent

The ’129 patent, which is titled “Method and apparatus for efficient reactive monitoring,” 

generally relates to monitoring network resources based on the “rate of change” of system usage 

at those network resources. According to the patent, prior art network monitoring systems had the 

ability to track usage across a network. ’129 patent, 1:14-26. The patent explains that this could 

be done using “reactive monitoring.” “With reactive monitoring, the management station needs 

information about the network state in order to react (in real or semi-real time) to certain alarm 

conditions that may develop in the network.” Id., 1:25-38. 

The patent explains that one prior art technique for doing this is for the network nodes to 

send alerts to the network monitor when certain conditions are met, e.g., when the instantaneous 

value of an attribute hits a certain threshold. Id., 1:5-58. To improve upon existing reactive 

monitors, the patent discloses that network nodes could generate alerts when the “rate of change” 

of the monitored variable exceeds a threshold. See id., 6:37-44; see also id. Figs. 4-6. 

Plaintiff has asserted claim 3:

3. A method for monitoring usage of a resource in nodes of a network, comprising the steps 

of:

(a) monitoring usage of the resource in a node to determine when a rate of change of 

the usage exceeds a first predetermined threshold;

(b) reporting to a management station of the network when the rate of change of the 

usage exceeds said first predetermined threshold; and

(c) initiating a poll of resources in the nodes of the network by the management station 

in response to reporting from the node or a time interval being exceeded.

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 7 of 22
3

Id., cl. 1.1

During prosecution of the patent, the applicant repeatedly distinguished between tracking 

the “rate of change” of an attribute and prior art references that only taught “instantaneous value[s] 

measured at a fixed point in time” or “generic parameters that may be measured or tested relative 

to predefined thresholds.” Rosenthal Decl., Ex. A (File History for ’129 patent) at May 2, 2007 

Applicant Response, 7; September 17, 2007 Applicant Response, 8. In other words, to procure the 

patent, the applicant made clear that the “rate of change” is how much a parameter changes over 

time, not just the value of the parameter at a single point in time. See id.

B. The Accused Products

Plaintiff alleges infringement of claim 3 by two separate applications: OpenManage 

Enterprise (“OME”) and OpenManage Network Manager (“OMNM”). As described by the 

documents cited in the Complaint, OME is a hardware management application that oversees a 

number of “managed nodes” by providing remote capabilities such that management can be 

performed in a centralized location. Rosenthal Decl., Ex. B (OME User Guide) at 19. One of the 

many features that OME provides is the ability to receive “alerts” from the different nodes that it 

manages in a single log via the OME platform. There are different types of alerts that may be 

generated, as depicted in the following table:

 

1 A limitation requiring a “rate of change” is required in every independent claim. See ’129 

patent, cls. 1, 3, 4, 5, 6.

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 8 of 22
4 

Id. at 251. These alerts are used to provide instantaneous values to OME about alarms and other 

attributes of a specific managed node, such as whether a power supply or cooling device is 

functioning properly or the readings of certain sensors. See id. at 251-52. All of the values 

provided to the OME application are instantaneous; none are rates of change.

OMNM is a different software application that is no longer sold by Defendants, effective 

February 4, 2019. See Rosenthal Decl., Ex. C (https://www.dell.com/support/article/enus/how16844/changes-to-the-sales-and-support-processes-for-dell-emc-openmanage-networkmanager?lang=en).

2

 OMNM is a management application that provides information about a 

network. In addition to many other features, OMNM provides an interface to monitor alarms from 

 

2 See Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to 

reasonable dispute because it . . . (2) can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned.”); The B.V.D. Licensing Corp. v. Body Action Design, 

Inc., 846 F.2d 727, 728 (Fed. Cir. 1988) (“Courts may take judicial notice of facts of universal 

notoriety, which need not be proved, and whatever is generally known within their jurisdiction. 

To that end, dictionaries and encyclopedias may be consulted.” (citations omitted)).

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 9 of 22
5

managed nodes. Rosenthal Decl., Ex. D OMNM User Guide at 17. These are the same nodespecific alerts tracked by OME. See Compl. ¶ 16. Again, none of the alerts tracks rate of change.

III. LEGAL STANDARD

A. Direct Infringement

A complaint should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil 

Procedure 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 non-conclusory 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.” 

Ashcroft, 556 U.S. at 678 (2009). “Threadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.” Id. “Where a complaint pleads facts 

that are merely consistent with a defendant’s liability, it stops short of the line between possibility 

and plausibility of entitlement to relief.” Id. (internal quotation marks omitted). Additionally, 

“under any pleading standard, a complaint must put a defendant ‘on notice as to what he must 

defend.’” Artrip v. Ball Corp., 735 Fed. Appx. 708, 715 (Fed. Cir. 2018) (affirming district court’s 

dismissal of complaint that used broad functional language copied from patent). Only those 

complaints which state a plausible claim for relief survive a motion to dismiss, and the reviewing 

court makes this determination by drawing on its “judicial experience and common sense.” 

Ashcroft, 556 U.S. at 679; 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 alleged infringer can only be liable if it 

“makes, uses, offers to sell, or sells” the allegedly infringing product. See 35 U.S.C. § 271(a). 

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 10 of 22
6

This requires that the plaintiff—at a minimum—plead facts that identify an allegedly infringing 

product and describe how that 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 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 

& 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. Am., 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 

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 11 of 22
7

invention.” Affinity Labs, 2014 WL 2892285, at *8 (citing Fujitsu Ltd. v. Netgear Inc., 620 F.3d 

1321, 1326 (Fed. Cir. 2010)).

IV. ARGUMENT

The critical limitation that persuaded the patent examiner to allow the claims of the ’129 

patent is monitoring “when a rate of change of the usage” in a node exceeds a threshold. During 

prosecution, the applicants distinguished the tracking of a “rate of change” of a variable over time 

from merely checking the instantaneous value of the variable. Ex. A at May 2, 2007 Applicant 

Response, 7; September 17, 2007 Applicant Response, 8.

3

 Plaintiff has not alleged, and cannot

allege, any facts supporting the “rate of change” limitation for either OME or OMNM. To the 

contrary, all of Plaintiff’s allegations and evidence show checking the instantaneous value of a 

variable, which was distinguished from the plain language of the asserted claim during 

prosecution. 

Plaintiff’s indirect infringement allegations are also deficient, as shown below.

A. Plaintiff Fails to Plausibly Allege That OME Monitors the “Rate of Change 

of the Usage” in a Node

Despite the critical nature of the “rate of change” limitation in the claims, specification and 

prosecution history, the Complaint includes only a single conclusory allegation related to the “rate 

of change” limitation: “The Accused Products use SNMP traps to monitor the rate of change of 

attributes of a device.” Comp. ¶ 18. This sole allegation that a claim limitation is met is not 

enough to survive a motion to dismiss because Plaintiff did not plead any underlying facts that 

support such an allegation. See Amgen Inc. v. Coherus BioSciences Inc., 931 F.3d 1154 (Fed. Cir. 

 

3 Data Engine Techs. LLC v. Google LLC, 906 F.3d 999, 1008 n.2 (Fed. Cir. 2018) (“On a 

motion for judgment on the pleadings . . . the court may consider ‘matters of public record’ . . . 

Prosecution histories constitute public records.”)

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 12 of 22
8

2019) (affirming dismissal on the pleadings based on failure to state a plausible infringement 

theory); De La Vega, 2020 WL 3528411, at *6–7. 

Plaintiff does not allege any facts that would support the allegation that OME meets the 

critical “rate of change” limitation. To the contrary, all of the allegations and facts in the 

Complaint show that OME only tracks instantaneous values of attributes—i.e., exactly what the 

prior art did and what was distinguished by the applicants. See supra Section II.A. For example, 

Plaintiff alleges: “The Accused Products have the power to monitor attributes of a device and 

generate alerts on crossing a threshold.” Compl., ¶19 (emphases added). This factual allegation 

asserts that alarms are generated when the instantaneous value of an attribute crosses a threshold. 

It does not allege, as would be required by the claims, that the alarm can be generated if the rate 

of change of the attribute being monitored crosses a threshold. This is not merely a technicality. 

The applicants consistently distinguished between the “rate of change” of an attribute and the 

instantaneous value of an attribute in the prosecution history. Ex. A at May 2, 2007 Applicant 

Response, 7; September 17, 2007 Applicant Response, 8. 

The documents cited by Plaintiff further confirm that the alerts provided by the accused 

functionality are based on the instantaneous value of the attributes themselves, not any alleged 

“rate of change” of those attributes. For example, the documents Plaintiff cites show that OME 

triggers an alert when “a power supply turn[s] on,” “a sensor reading returns to normal,” “crossing 

a warning threshold,” or “crossing a failure threshold or a hardware failure.” Ex. B (OME User 

Guide) at 251. None of these triggers support the “rate of change” limitation. Amgen Inc. v. 

Coherus BioSciences Inc., 931 F.3d 1154 (Fed. Cir. 2019) (affirming dismissal on the pleadings 

based on admissions in the prosecution history).

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 13 of 22
9

That OME does not track the “rate of change” of any attributes is not surprising. The ’129 

patent described checking the “rate of change” at individual nodes to check the global health of 

the network. ’129 patent, 1:58-60. OME, on the other hand, is used to track the health of the 

managed nodes in the systems, not check for global network issues. Ex. B (OME User Guide) at 

251. Plaintiff’s allegations as to OME must therefore be dismissed for failure to allege facts as to 

this key limitation. 

The Federal Circuit has granted motions to dismiss in these circumstances. See Amgen Inc. 

v. Coherus BioSciences Inc., 931 F.3d 1154 (Fed. Cir. 2019) (affirming grant of a motion to dismiss 

because prosecution history estoppel barred patentees from succeeding on their infringement claim 

under doctrine of equivalents); Metricolor LLC v. L’Oreal S.A., 791 Fed.Appx. 183, 188 (Fed. Cir. 

2019) (finding that a patent claim was not sufficiently pleaded when the alleged functionality 

“plainly contradicted” the actual claim limitation). 

Here that Plaintiff accuses the same technology that was distinguished during prosecution 

is dispositive on this motion to dismiss. A court may “consider documents attached to or 

incorporated into the Complaint and matters of which judicial notice may be taken.” Auto–Dril, 

Inc. v. Nat'l Oilwell Varco, L.P., 6:15–CV–00091, 2015 WL 12868183, at *2 (W.D. Tex. June 24, 

2015), report and recommendation adopted, 2015 WL 11004538 (W.D. Tex. July 15, 2015); 

Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996). “On a motion for 

judgment on the pleadings . . . the court may consider ‘matters of public record’ . . . Prosecution 

histories constitute public records.” Data Engine Techs. LLC v. Google LLC, 906 F.3d 999, 1008 

n.2 (Fed. Cir. 2018). 

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 14 of 22
10

B. Plaintiff Fails to Plausibly Allege That OMNM Monitors the “Rate of 

Change of the Usage” in a Node

Again, Plaintiff’s only allegation related this critical limitation is a conclusory sentence 

related to SNMP traps. Comp. ¶ 18. Not only is this insufficient as a matter of pleading, but the 

facts and documents cited in the Complaint contradict this naked allegation. Ashcroft, 556 U.S. at 

678 (2009). For example, in the very next sentence, Plaintiff alleges: “These SNMP traps can be 

configured to generate alarms if the attributed being monitored crosses a threshold, and this alarm 

can be sent to a device on which [OMNM] is installed.” Id. (Emphasis added.) This factual 

allegation asserts that alarms are generated when an “attribute being monitored crosses a 

threshold”—i.e., exactly what the prior art did; and exactly what the applicants distinguished. 

Plaintiff’s allegations do not suggest in any way that the alarm can be generated if the rate of 

change of the attribute being monitored crosses a threshold. 

Much like OME, OMNM describes receiving alerts from managed nodes about the general 

health of the individual nodes. For example, OMNM can pull this information directly from OME. 

See Compl. ¶ 16. As with OME, none of the alarms are based on any “rate of change.” Indeed, 

OMNM has a separate additional functionality in which it uses periodic polling to monitor the 

overall performance of the network. See OMNM User Guide at 359-444; Compl. ¶ 18. But the 

patent discusses tracking the “rate of change” at individual nodes as a means of avoiding this 

periodic polling. See ’129 patent, 2:16-19. In other words, OMNM does precisely what the 

patentee describes as a deficiency of the prior art; it does not monitor the “rate of change” at a 

particular node as claimed. See ’129 patent, 1:46-50, cl. 1. As such, Plaintiff has not plausibly 

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 15 of 22
11

alleged—and cannot plausibly allege—facts to suggest that OMNM tracks any alleged “rate of 

change” of a resource of the managed nodes.

4

C. 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 by a third party precludes its 

claims of induced and contributory infringement. Beyond that failing, Plaintiff has failed to plead 

any knowledge by Defendants of the patent, or knowledge by Defendants of alleged infringement, 

prior to the filing of this action. Plaintiff also fails to plead a specific intent to induce infringement. 

And, Plaintiff has not pled, and cannot plead, that that there are no substantial non-infringing uses. 

Each of 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 by a third party. 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 (citations omitted); see also Intellectual 

 

4 Even if Plaintiff had plausibly stated a claim as to OMNM, OMNM is no longer sold by Dell. 

See Ex. C (https://www.dell.com/support/article/en-us/how16844/changes-to-the-sales-andsupport-processes-for-dell-emc-openmanage-network-manager?lang=en). As such, to the extent 

Plaintiff’s allegations rely upon OMNM to meet certain limitations, Dell is not the correct target 

of this lawsuit. Plaintiff should have been well aware of this fact as it relies upon manuals for 

OMNM from Dorado Software, Inc. (“Dorado”). See Compl. ¶ 18. As already explained, Plaintiff 

has not, and cannot, allege that OME meets the “rate of change” limitations. To the extent Plaintiff 

is allowed to amend, Plaintiff should be required to amend the Complaint to provide factual 

allegations sufficient to state a cause of action specifically against OME and its claim as to OMNM 

must be dropped against Defendants.

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 16 of 22
12

Ventures, 870 F.3d at 1329 (Fed. Cir. 2017) (“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 allegations fail because they do not plead the required 

“knowledge of the patent in suit and knowledge of patent infringement.” Commil, 135 S. Ct. at

1926 (2015). 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.”). 

Despite this clear requirement, Plaintiff’s sole allegations of knowledge of the patent is a 

conclusory statement that “Defendants have received notice and actual or constructive knowledge 

of the ’129 Patent since at least the date of service of this Complaint.” Compl. at ¶ 24 (emphasis 

added).5

 This Court has rejected identical allegations of knowledge. For example, in Parus, this 

Court dismissed indirect infringement claims where plaintiff’s only allegation of knowledge of the 

patent was that “Defendant Apple has had knowledge of the ’431 Patent since at least the filing 

of the original complaint.” Parus, No. 6:19-cv-432, at D.I. 28 (Amended Compl.) at ¶ 44

 

5 Plaintiff’s allegations of knowledge of infringement are likewise deficient as they allege such 

knowledge only “[s]ince at least the date of service of this Complaint.” Compl. at ¶ 25; see e.g., 

Parus Holdings Inc. v. Apple Inc., No. 6:19-cv-432, Feb. 20, 2020 Text Order GRANTING D.I. 

54 (W.D. Tex. Feb. 20, 2020) (dismissing indirect infringement claims where the only allegations 

of knowledge of infringement were that “[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 

infringement of the claims of the ’431 Patent.” (D.I. 28 (Amended Compl.) at ¶ 44)).

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 17 of 22
13

(emphasis added); see id. at Feb. 20, 2020 Text Order GRANTING D.I. 54 (W.D. Tex. Feb. 20, 

2020) (dismissing indirect infringement claims). Like the allegations in Parus, Plaintiff fails to 

allege pre-suit knowledge and thus fails to state a claim for indirect infringement. See id.; Aguirre, 

2011 WL 2471299, at *3; Brandywine Commc’ns Techs., LLC v. T-Mobile USA, Inc., 904 F. Supp. 

2d 1260, 1268–69 (M.D. Fla. 2012) (“Also, because 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.”).

6

Plaintiff’s failure to allege pre-suit knowledge is even more damning for OMNM, which 

Defendants stopped selling and supporting February 4, 2019, well over a year before any alleged 

knowledge. 

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 

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., 471 F.3d at 1306). Plaintiff’s 

 

6 Other courts similarly have held that “knowledge after filing of the present action is not 

sufficient for pleading the requisite knowledge for indirect infringement.” Xpoint Technologies, 

Inc. v. Microsoft Corp., 730 F. Supp. 2d 349, 357 (D. Del. 2010); Avocet Sports Tech., Inc. v. 

Garmin Int’l, Inc., C 11–04049 JW, 2012 WL 1030031, *4 (N.D. Cal. Mar. 22, 2012); Proxyconn 

Inc. v. Microsoft Corp., No. SACV 11-1681-DOC-ANX, 2012 WL 1835680, at *5 (C.D. Cal. May 

16, 2012); Brandywine, 912 F. Supp. 2d at 1345 (“The weight of authority addressing the 

knowledge required for indirect infringement . . . requires a plaintiff to allege that defendant had 

pre-suit knowledge of the patents-in-suit.”).

Case 6:20-cv-00479-ADA Document 31 Filed 10/05/20 Page 18 of 22
14

allegations of specific intent amount to a single conclusory statement that Defendants “actively 

induced” others to infringe through thier advertising, promotional materials, and website citations. 

See Compl. at ¶ 25.7 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 

“Plaintiffs 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, directed to encouraging 

another’s infringement.” Parity, 2019 WL 3940952, at *2.8

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

on a key requirement of induced infringement.

 

7 Plaintiff never once alleges that these third parties actually infringed.

8 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-00479-ADA Document 31 Filed 10/05/20 Page 19 of 22
15

4. Plaintiff Fails to Allege the Requisite Lack of Substantial 

Non-Infringing Uses for Contributory Unfringement 

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 Fed. Appx. 708, 713 (Fed. Cir. 2018) (citations 

omitted). Plaintiff has not pled a lack of substantial non-infringing uses because it cannot do so. 

Plaintiff’s only allegation on these elements are a conclusory statement that repeats the legal 

elements. See Compl. at ¶ 26. 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 not be configured to use SNMP traps, which are central to Plaintiff’s allegations. 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 WSOU’s 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-00479-ADA Document 31 Filed 10/05/20 Page 20 of 22
16

Dated: October 5, 2020 By: /s/ 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-00479-ADA Document 31 Filed 10/05/20 Page 21 of 22
17

CERTIFICATE OF SERVICE

The undersigned certifies that on this 5th 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-00479-ADA Document 31 Filed 10/05/20 Page 22 of 22