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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-481-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 

Complaint” 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-00481-ADA-DTG Document 35 Filed 10/19/20 Page 1 of 16
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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.

COUNT ONE - INFRINGEMENT OF 

U.S. PATENT NO. 9,164,800

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

Complaint.

9. On October 20, 2015, the United States Patent and Trademark Office duly and 

legally issued U.S. Patent No. 9,164,800 (“the ‘800 Patent”), entitled “Optimizing Latencies in 

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Cloud Systems by Intelligent Compute Node Placement.” A true and correct copy of the ‘800

Patent is attached as Exhibit A to this Complaint.

10. Brazos is the owner of all rights, title, and interest in and to the ‘800 Patent, 

including the right to assert all causes of action arising under the ‘800 Patent and the right to any 

remedies for the infringement of the ‘800 Patent.

11. 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 

vSphere software, such as Dell’s PowerEdge servers and VxRail appliances (collectively, the 

“Accused Products”).

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

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https://www.dell.com/downloads/global/power/ps3q07-20070562-hanson.pdf

https://www.delltechnologies.com/en-us/solutions/vmware/servers-for-vmware.htm

https://www.dell.com/downloads/global/vectors/dell_and_vmware_drs_ha_solutions.pdf

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https://www.dellemc.com/resources/en-us/asset/technical-guides-supportinformation/products/converged-infrastructure/vxrail-vcenter-server-planning-guide.pdf

12. The Accused Products allow administration of hybrid cloud environments and 

provide resource management.

https://docs.vmware.com/en/VMware-vSphere/index.html

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https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/products/vsphere/vmwar

e-whats-new-in-vsphere-whitepaper.pdf

https://docs.vmware.com/en/VMware-vSphere/6.7/vsphere-esxi-vcenter-server-67-resourcemanagement-guide.pdf

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13. The Accused Products employ Distributed Resources Scheduler (DRS) solutions to 

manage workloads and group hosts to resource clusters in order to segregate the computing needs 

of different business units and balance workloads.

https://www.vmware.com/in/products/vsphere/drs-dpm.html

14. The Accused Products allocate I/O resources to virtual machines (VMs) performing 

computing based on importance by assigning a relative number of shares to the virtual machines. 

A storage DRS solution in the Accused Products can provide placement of VMs and VM disks 

(VMDKs) for data storage, for example.

https://docs.vmware.com/en/VMware-vSphere/6.7/vsphere-esxi-vcenter-server-67-resourcemanagement-guide.pdf

15. The Accused Products uses clusters to manage the resources. In vSphere clusters, 

vSphere High Availability (HA) and vSphere Distributed Resources Scheduler (DRS) solutions 

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are also enabled.

https://docs.vmware.com/en/VMware-vSphere/6.7/vsphere-esxi-vcenter-server-67-resourcemanagement-guide.pdf

16. A DRS cluster created by a vSphere Client may be a collection of hosts and 

associated virtual machines with shared resources and a shared management interface. A vSphere 

Client can add multiple hosts to a cluster. A Datastore Cluster is a group of datastores. A vCenter 

server can manage all these resources. 

https://docs.vmware.com/en/VMware-vSphere/6.7/vsphere-esxi-vcenter-server-67-resourcemanagement-guide.pdf

17. A vSphere cluster contains VMs, datastores, and links between them.

https://docs.vmware.com/en/VMware-vSphere/6.7/vsphere-esxi-vcenter-server-67-resourcemanagement-guide.pdf

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18. Storage DRS in the Accused Products allows users to manage the aggregated 

resources in a datastore cluster to achieve objectives, including space load balancing, I/O load 

balancing, and placement for virtual disks.

https://docs.vmware.com/en/VMware-vSphere/6.7/vsphere-esxi-vcenter-server-67-resourcemanagement-guide.pdf

https://blogs.vmware.com/performance/2018/11/sdrs-performance-vsphere67.html

19. Storage DRS in the Accused Products place VMs and VMDKs with reduced 

latency. Dell claims that significant improvement in the latency is observed in the new version of 

vSphere, i.e., VMware vSphere 6.7.

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https://blogs.vmware.com/performance/2018/11/sdrs-performance-vsphere67.html

20. In the Accused Products, the Storage DRS works in conjunction with the cluster

DRS based on a variety of metrics, including device latency and prioritizations, to avoid over 

provisioning storage and other resources. As an example of an assignment objective, the Storage 

DRS allocates resources (e.g., the placement for VMs and VMDKs) using a variety of metrics

(e.g., latency), which may each be controlled and/or monitored. In addition, resources can be 

adjusted and can be set (e.g., as per virtual machines) through application of assignment algorithms

(e.g., VMotion). 

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https://vspherecentral.vmware.com/t/resource-management-and-availability/vsphere-resourcesand-availability/drs-decision-engine/

https://docs.vmware.com/en/VMware-vSphere/6.7/vsphere-esxi-vcenter-server-67-resourcemanagement-guide.pdf

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21. Based on the metrics and prioritizations, algorithms applied in the Accused 

Products (e.g., VMotion) can create assignments to migrate and optimize resources.

https://www.vmware.com/pdf/vmotion_datasheet.pdf

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

‘800 Patent is found in the Accused Products.

23. Upon information and belief, each and every element of at least claim 1 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.

24. Defendants continue to directly infringe at least one claim of the ‘800 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.

25. In May 2020, Brazos filed a suit against Defendants asserting infringement of the 

same patent and by the same accused products that are asserted in this case. Brazos dismissed 

the prior suit before filing this suit. As a result of the prior suit, Defendants had notice and actual 

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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.1

26. 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

‘800 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.dell.com/learn/us/en/15/solutions/vmware-vcloud

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.”).

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• https://www.dell.com/downloads/global/power/ps3q07-20070562-hanson.pdf

• https://www.delltechnologies.com/en-us/solutions/vmware/servers-for-vmware.htm

• https://www.dell.com/downloads/global/vectors/dell_and_vmware_drs_ha_solutions.pd

f

• https://www.dell.com/support/article/en-uk/sln314727/dell-s-customization-of-vmwareesxi-and-its-advantages?lang=en

• https://www.dell.com/en-us/work/shop/povw/vmware-vsphere

• https://docs.vmware.com/en/VMware-vSphere/index.html

• https://www.vmware.com/content/dam/digitalmarketing/vmware/en/pdf/products/vspher

e/vmware-whats-new-in-vsphere-whitepaper.pdf

• https://docs.vmware.com/en/VMware-vSphere/6.7/vsphere-esxi-vcenter-server-67-

resource-management-guide.pdf

• https://www.vmware.com/in/products/vsphere/drs-dpm.html

• https://blogs.vmware.com/performance/2018/11/sdrs-performance-vsphere67.html

• https://www.vmware.com/pdf/vmotion_datasheet.pdf

• https://vspherecentral.vmware.com/t/vsphere-resources-and-availability/drs-decisionengine/

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

infringement of the ‘800 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 ‘800 Patent. The Accused Products are especially made or adapted 

for infringing the ‘800 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 ‘800 Patent.

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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 ‘800 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 ‘800 Patent;

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

the infringement of one or more claims of the ‘800 Patent;

(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 ‘800 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.

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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

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