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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. 

MICROSOFT CORPORATION, 

Defendant. 

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CIVIL ACTION 6:20-CV-00454-ADA 

PATENT CASE

JURY TRIAL DEMANDED 

RESPONSE OPPOSING DEFENDANT’S MOTION FOR PARTIAL DISMISSAL 

PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) 

Microsoft has abandoned its motion to dismiss WSOU’s direct infringement claim and now 

moves only for dismissal of WSOU’s claim for induced infringement, arguing WSOU fails to 

allege (a) direct infringement by a third party or (b) specific intent by Microsoft. The motion should 

be denied because WSOU’s Amended Complaint adequately alleges direct infringement by third 

parties and specific intent by Microsoft. 

ARGUMENT 

A. Legal Standard 

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim has “facial plausibility” and 

must not be dismissed “when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (internal citations omitted). 

A patentee “need not ‘prove its case at the pleading stage.’” Nalco Company v. Chem-Mod, 

LLC, 883 F.3d 1337, 1350 (Fed. Cir. 2018) (quoting In re Bill of Lading Transmission & 

Processing Sys. Patent Litig., 681 F.3d 1323, 1339 (Fed. Cir. 2012), which cites Skinner v. Switzer, 

562 U.S. 521, 131 (2011)). Rather, “the complaint must place the ‘potential infringer on notice of 

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what activity is being accused of infringement.’” Id. (quoting K–Tech Telecomms., Inc. v. Time 

Warner Cable, Inc., 714 F.3d 1277, 1284 (Fed. Cir. 2013) (ellipses removed). 

B. Microsoft’s motion should be denied because it is premature. 

This Court has recently recognized that the question at issue here “appears to be one for 

the Court to resolve either at the summary judgment stage or at trial.” Parity Networks, LLC v. 

Cisco Sys., Inc., No. 6:19-CV-00207-ADA, 2019 WL 3940952, at *2 (W.D. Tex. July 26, 2019). 

As in Parity, WSOU’s allegation “has been adequately pleaded, discovery can be taken, and a 

dispositive motion can be filed at a later date.” Id. 

C. WSOU’s Amended Complaint adequately pleads indirect infringement. 

Microsoft incorrectly characterizes WSOU’s Amended Complaint as offering nothing 

more than citations to Microsoft’s user guides. WSOU alleges significantly more. The Amended 

Complaint sets out detailed allegations of direct infringement, identifying the accused products 

and functionalities. See Amended Complaint ¶¶ 31–59. The Amended Complaint further includes 

screenshots and citations to Microsoft’s online user manuals, which contain instructions and 

demonstrations for how to use the accused functionalities in an infringing manner. Id. ¶¶ 33–58. 

Although Microsoft apparently removed the contents at the link provided in paragraphs 33 and 62 

of WSOU’s Amended Complaint, the same material is included as an exhibit to WSOU’s 

Preliminary Infringement Contentions.1

 The same (or substantially the same) material is also still 

available online.2 Microsoft’s user manuals, referenced and cited in the Amended Complaint and 

1

 The Amended Complaint incorporates by reference the Preliminary Infringement Contentions. 

See Amended Complaint ¶ 22. Microsoft completely ignores in its motion the extraordinary notice 

provided by Plaintiff’s express incorporation of its Preliminary Infringement Contentions (in 

paragraph 21 of the Amended Complaint). Plaintiff’s Preliminary Infringement Contentions are 

replete with citations and screenshots from Defendant’s documentation, including Defendant’s 

public-facing instructional documentation and corresponding confidential source code. 

2 See Azure Monitor overview - Azure Monitor | Microsoft Docs (as of April 30, 2021 at 

https://docs.microsoft.com/en-us/azure/azure-monitor/overview); Network Performance Monitor 

solution in Azure - Azure Monitor | Microsoft Docs (as of April 30, 2021 at 

https://docs.microsoft.com/en-us/azure/azure-monitor/insights/network-performancemonitor#use-the-solution); Performance Monitor in Network Performance Monitor - Azure 

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WSOU’s Preliminary Infringement Contentions, contain directions for customers to use the 

accused functionalities. Id. ¶62 

The Amended Complaint further alleges that Microsoft’s customers directly infringe the 

patent by using the Accused Product in accordance with Microsoft’s instructions, and that 

Microsoft provides customers instructions on how to infringe the patent with its user manuals and 

advertising. Id. ¶ 62. This allegation, coupled with WSOU’s detailed discussion identifying the 

accused functionalities in paragraphs 31-59 of the Amended Complaint and the screenshots of 

advertisements and instructions on Microsoft’s website (incorporated in WSOU’s Preliminary 

Infringement contentions), is more than enough to give rise to a reasonable inference that 

Microsoft intended to induce. See Maxell Ltd. v. Apple Inc., 5:19-CV-00036-RWS, 2019 WL 

7905455, at *4 (E.D. Tex. Oct. 23, 2019) (“The preceding discussion identifying the accused 

functionalities and the screenshots of advertisements and instructions on Apple's website, coupled 

with this allegation, are more than enough to give rise to a reasonable inference that Apple intended 

to induce infringement.”). 

Microsoft’s reliance on Core Wireless Licensing S.A.R.L. v. Apple Inc., No. 6:14-cv-752-

JRG-JDL, 2015 WL 12850550 (E.D. Tex. Jul. 15, 2015) is misplaced. There, the complaint failed 

to allege “any facts identifying, even at a basic level, which functionalities of the accused products 

are at issue, or how the instructions direct customers to use those products in an infringing 

manner[.]” Id. at 4. The Eastern District of Texas refused to apply Core Wireless in Maxell because 

the complaint in Maxell – like WSOU’s complaint – “set[] out in detail allegations of direct 

infringement, identifying the accused functionalities and accused devices,” included “screen-shots 

and descriptions of Apple’s online user manuals and advertisements” and coupled these allegations 

with an allegation that Apple induced its customers to infringe. Maxell, 2019 WL 7905455 at *4. 

In doing so, Maxell reemphasized the recognition in Core Wireless “that ‘the provision of 

Monitor | Microsoft Docs (as of April 30, 2021 at https://docs.microsoft.com/en-us/azure/azuremonitor/insights/network-performance-monitor-performance-monitor#configuration) 

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instructions by an accused infringer may indicate specific intent to induce infringement.’” Id. 

(quoting Core Wireless, 2015 WL 12850550, Slip Op. at *4). Other courts have adopted similar 

reasoning to Maxell.

3

Microsoft’s reliance on Affinity Labs of Texas, LLC v. Blackberry Ltd., No. 13-cv-362,

2014 WL 12551207 (W.D. Tex. Apr. 30, 2014) is likewise misplaced. The complaint at issue in 

Affinity did not set out in detail the accused functionality of an accused product, it did not include 

screenshots and descriptions of Blackberry’s user manuals and advertisements, and it did not 

incorporate by reference detailed infringement contentions containing detailed references to 

Blackberry’s user manuals and advertisement. Unlike here, the complaint there contained only a 

bald assertion of induced infringement. 

Microsoft cannot reasonably argue that the extraordinary level of detail provided by 

WSOU, including the detail provided in WSOU’s Preliminary Infringement Contentions, fails to 

provide sufficient notice as to which functionalities stand accused of infringement or how 

Microsoft’s manuals and advertisements—which include detailed instructions for configuring the 

accused functionalities to perform in an infringing manner—induce its users to directly infringe. 

CONCLUSION 

WSOU pleads factual content that allows this Court to draw the reasonable inference that 

Microsoft is liable for induced infringement. Microsoft has not shown that WSOU would not be 

3 See, e.g., Nomadix, Inc. v. Hospitality Core Services LLC, 2015 WL 1525537, *3 (C.D. Cal. 

April 3, 2015) (denying motion to dismiss inducing infringement for allegedly not sufficiently 

pleading intent since the patentee’s allegations that the accused infringer provided instructions to 

use its product in an infringing manner was sufficient); U.S. Water Services, Inc. v. Novozymes 

A/S, 2014 WL 2604997, *4–*6 (W.D. Wis. June 11, 2014) (denying motion to dismiss indirect 

infringement claims in view of allegations that the accused infringers “instructed potential 

customers to buy their product and use it in the same way as plaintiffs’ patented methods”); 

Telecomm Innovations, LLC v. Ricoh Co., Ltd., 966 F. Supp. 2d 390, 393–94 (D. Del. Aug. 6, 

2013) (finding it sufficient that “plaintiff at bar alleges that defendants provided technical support 

and instructions to their customers on how to use products in such a way as to infringe the patented 

invention”). 

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entitled to relief under any set of facts or any possible theory that it could prove consistent with 

the allegations in the complaint, and its motion should be denied. 

Although Microsoft’s motion should be denied outright, if the Court is inclined to grant 

any part of Microsoft’s motion, WSOU respectfully requests that the Court allow WSOU to amend 

its Amended Complaint. Fed. R. Civ. P. 15(a)(2) (providing that leave to amend should be freely 

given when justice so requires). Under the scheduling order, the deadline to amend without leave 

is June 24, 2021. Further, there is no harm in allowing WSOU to file a second amended complaint 

to address issues that were raised by Microsoft for the first time only after WSOU filed its First 

Amended Complaint – issues Microsoft could have raised in its original Rule 12 motion but did 

not. 

 

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Dated: May 4, 2021 Respectfully submitted, 

 

/s/ Ryan S. Loveless 

James L. Etheridge 

Texas State Bar No. 24059147 

Ryan S. Loveless 

Texas State Bar No. 24036997 

Travis L. Richins 

Texas State Bar No. 24061296 

Brett A. Mangrum 

Texas State Bar No. 24065671 

Jeffrey Huang 

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 

Brett@EtheridgeLaw.com 

JeffH@EtheridgeLaw.com 

ATTORNEYS FOR PLAINTIFF 

CERTIFICATE OF SERVICE 

 I certify that the foregoing document was served upon all counsel of record via email in 

accordance with the Federal Rules of Civil Procedure on May 4, 2021. 

/s/ Ryan S. Loveless 

Ryan S. Loveless

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