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 FIRST AMENDED COMPLAINT

FOR FAILURE TO STATE A CLAIM

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 1 of 23
i

TABLE OF CONTENTS

Page

I. BACKGROUND .................................................................................................................2

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

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

II. LEGAL STANDARD..........................................................................................................5

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

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

III. ARGUMENT.......................................................................................................................7

A. Plaintiff Fails to Plausibly Allege That OME Monitors The “Rate Of 

Change Of The Usage” In A Node............................................................................8

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 .11

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

Infringement.....................................................................................................14

4. Plaintiff Fails to Allege the Requisite Lack of Substantial Non-Infringing Uses 

for Contributory Infringement .........................................................................15

IV. CONCLUSION..................................................................................................................15

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 2 of 23
ii

TABLE OF AUTHORITIES

Page(s)

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) ...................................7, 14

Aguirre v. Powerchute Sports, LLC,

No. SA-10-CV-0702 XR, 2011 WL 2471299 (W.D. Tex. June 17, 2011) .............................11

Amgen Inc. v. Coherus BioSciences Inc.,

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

Artrip v. Ball Corp.,

735 F. App’x 708 (Fed. Cir. 2018) ......................................................................................6, 15

Ashcroft v. Iqbal,

556 U.S. 662 (2009)...............................................................................................................5, 6

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)............................10

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

Collins v. Morgan Stanley Dean Witter,

224 F.3d 496 (5th Cir. 2000) .....................................................................................................3

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

135 S. Ct. 1920 (2015).........................................................................................................6, 11

Data Engine Techs. LLC v. Google LLC,

906 F.3d 999 (Fed. Cir. 2018)..............................................................................................7, 10

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)........................................15

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 3 of 23
TABLE OF AUTHORITIES (continued)

Page(s)

iii

DSU Med. Corp. v. JMS Co.,

471 F.3d 1293 (Fed. Cir. 2006)................................................................................................14

Dynamic Data Techs., LLC v. Amlogic Holdings Ltd.,

C.A. No. 19-1239-CFC, 2020 WL 4365809 (D. Del. July 30, 2020)......................................12

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)...................................................................................................................7

Hypermedia Navigation LLC v. Google LLC,

No. 18-CV-06137-HSG, 2019 WL 1455336 (N.D. Cal. Apr. 2, 2019)...................................15

Intellectual Ventures I LLC v. Motorola Mobility LLC,

870 F.3d 1320 (Fed. Cir. 2017)............................................................................................6, 11

Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,

594 F.3d 383 (5th Cir. 2010) .......................................................................................3, 5, 9, 10

Lormand v. US Unwired, Inc.,

565 F.3d 228 (5th Cir. 2009) .....................................................................................................6

Lovelace v. Software Spectrum Inc.,

78 F.3d 1015 (5th Cir. 1996) ...................................................................................................10

Metricolor LLC v. L’Oreal S.A.,

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

Orlando Commc’ns LLC v. LG Elecs., Inc.,

No. 6:14-CV-1017-ORL-22, 2015 WL 1246500 (M.D. Fla. Mar. 16, 2015)..........................13

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

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

Parus Holdings Inc. v. Apple Inc.,

No. 6:19-cv-432 (Feb. 20, 2020) .............................................................................................12

Proxyconn Inc. v. Microsoft Corp.,

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

Simplivity Corp. v. Springpath, Inc.,

No. CV 4:15-13345-TSH, 2016 WL 5388951 (D. Mass. July 15, 2016)................................13

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 4 of 23
TABLE OF AUTHORITIES (continued)

Page(s)

iv

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

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

VLSI Tech. LLC v. Intel Corp.,

C.A. No. 18-966-CFC, 2019 WL 1349468 (D. Del. Mar. 26, 2019).......................................12

WSOU v. Dell Inc., et al.,

No. 6-20-cv-00410...................................................................................................................13

STATUTES

35 U.S.C. § 271(a) ...........................................................................................................................6

RULES

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

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 5 of 23
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TABLE OF ABBREVIATIONS

Abbreviation Term

’129 patent U.S. Patent No. 8,402,129

Amended Complaint 

or Am. Comp.

First Amended Complaint For Patent Infringement, Dkt. 33

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

OME OpenManage Enterprise

OMNM OpenManage Network Manager

Original Complaint 

or Original Compl.

Original Complaint For Patent Infringement (D.I. 1)

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

Development

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 6 of 23
I. INTRODUCTION

Plaintiff’s Amended Complaint is even more deficient than its Original Complaint. 

Plaintiff’s Original Complaint made only an unsupported allegation that the accused products met 

the key limitation that the applicant used to distinguish the prior art, i.e., measuring the “rate of 

change” of an attribute of a network node. After Defendants pointed out that this unsupported 

allegation was insufficient and contrary to the cited evidence, Plaintiff apparently tested the 

Accused Products and removed that unsupported allegation. The Amended Complaint is now 

completely silent about the critical limitation, “rate of change,” that got the claims allowed. This 

is tantamount to an admission that there is no basis for alleging infringement. Instead, Plaintiff 

alleges infringement based on alleged monitoring of attributes at a single point in time, which is 

the opposite of what the applicant told the Patent Office is covered by the claims. The direct 

infringement allegations must therefore be dismissed.

The indirect infringement allegations fare no better. Plaintiff’s Original Complaint alleged 

knowledge of the patent only as of the date of the Complaint, which this Court has repeatedly held 

is insufficient to sustain a claim of indirect infringement. The Amended Complaint tries—and 

fails—to circumvent that clear rule by alleging knowledge based on a complaint Plaintiff earlier 

filed and dismissed before filing the present case. Neither basis is sufficient; Plaintiff still has not 

adequately alleged pre-suit knowledge of the patent. The indirect allegations also fail to allege 

other requisite elements of induced and contributory infringement. 

This is a textbook case for dismissal on the pleadings under Iqbal and Twombly. Defendant 

pointed out a critical deficiency in Plaintiff’s allegations. Plaintiff amended its complaint, but the 

same fundamental problem remains. Plaintiff’s inability to address the deficiencies shows that 

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 7 of 23
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further opportunity to amend would be futile. Indeed, the very documents upon which Plaintiff 

relies contradict any claim for infringement. This case should be dismissed.

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 36 Filed 10/30/20 Page 8 of 23
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Id., cl. 1 (emphases added).

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 Amended 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 19.2

 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.

2 The OME User Guide was incorporated into the Complaint. Am. Compl., ¶ 24; see Lone Star 

Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (“The court’s review 

is limited to the complaint, any documents attached to the complaint, and any documents attached 

to the motion to dismiss that are central to the claim and referenced by the complaint.” (citing

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000))). 

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 9 of 23
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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—or are alleged to be—rates of 

change.

OMNM is a third-party software application that is no longer sold as OEM software by 

Defendants, effective February 4, 2019. See Rosenthal Decl., Ex. C 

(https://www.dell.com/support/article/en-us/how16844/changes-to-the-sales-and-supportprocesses-for-dell-emc-openmanage-network-manager?lang=en). 3 OMNM is a management 

application that provides information about a network. In addition to many other features, OMNM 

3 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 36 Filed 10/30/20 Page 10 of 23
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provides an interface to monitor alarms from managed nodes. Rosenthal Decl., Ex. D OMNM 

User Guide at 17.4

 These are the same node-specific alerts tracked by OME. See Compl. ¶ 16. 

Again, none of the alerts track rate of change.

Plaintiff’s indirect infringement allegations in its Original Complaint amounted to three 

sentences that parrot the legal elements and two website links that fail to support Plaintiff’s claims. 

See Original Compl. ¶¶ 24–26. Those allegations completely failed to allege that Defendants had 

knowledge of the patent and knowledge of the infringement before Plaintiff filed suit. See id. 

Plaintiff’s Amended Complaint fails to fix the deficiencies in the Original Complaint. 

Plaintiff now alleges knowledge of the patent based on the filing, and dismissal, of an earlier 

complaint—which was not served—asserting the same patent. See Am. Compl. ¶ 20. 

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 

4 The OMNM User Guide was incorporated into the Complaint. Am. Compl., ¶ 24; see Lone Star, 

594 F.3d at 387.

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 11 of 23
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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). 

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 also 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). 

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 12 of 23
7

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 

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.

5

 Plaintiff has not alleged, and cannot 

allege, that the “rate of change” limitation is met 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. Even after 

5 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 36 Filed 10/30/20 Page 13 of 23
8

apparently performing “Product Testing” and amending its Complaint, Plaintiff tellingly still 

cannot allege that the accused Products meet the “rate of change” limitation.

Plaintiff’s indirect infringement allegations also remain fatally 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 Amended Complaint entirely ignores the “rate of change” limitation. Nor 

does Plaintiff allege any facts that could support such an allegation. See Amgen Inc. v. Coherus 

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

failure to state a plausible infringement theory); De La Vega, 2020 WL 3528411, at *6–7. 

Although, in its Original Complaint, Plaintiff made the unsupported allegation that the “rate of 

change” limitation was met (Original Compl. at 18), that allegation was removed in the Amended 

Complaint. The Amended Complaint is now entirely devoid of any allegations or facts to suggest 

this critical limitation is met. 

None of the facts alleged by Plaintiff suggest 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 exactly what was 

distinguished by the applicants. See supra Section II.A. For example, Plaintiff alleges that 

network resources can track “system board current of the device” and generate an alert when the 

current “reaches beyond the upper warning threshold.” Am. Compl., ¶ 17. This factual allegation 

asserts that alarms are generated when the instantaneous value of an attribute—system board 

current—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 that current crosses a threshold. Indeed, the measurement 

of an instantaneous value crossing a threshold is exactly what the applicant consistently 

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 14 of 23
9

distinguished from monitoring a “rate of change” during prosecution. Ex. A at May 2, 2007 

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

The documents Plaintiff cites 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, they 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 251.6 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). Even after undertaking “Product Testing,” Plaintiff has not, and cannot, 

allege a single “rate of change” that is monitored by OME. See Am. Compl., ¶¶ 17–19.7

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 

6 The OME User Guide was incorporated into the Complaint. Am. Compl., ¶ 24; see Lone Star, 

594 F.3d at 387.

7 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. 

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 15 of 23
10

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). 

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

Change Of The Usage” In A Node 

After Defendant pointed out that OMNM was a third-party product in its initial motion, the 

Amended Complaint no longer contains any factual allegations related to OMNM. See Am. 

Compl., ¶¶ 15–19. The Amended Complaint does, however, still allege infringement by OMNM. 

Id., ¶¶ 13–14. This allegation is deficient because the Amended Complaint does not—and 

cannot—allege that OMNM meets the “rate of change” limitation. Much like OME, OMNM 

describes receiving alerts about the health of the individual nodes. See OMNM User Guide at 359-

444.

8

 As such, Plaintiff has not plausibly alleged—and cannot plausibly allege—facts to suggest 

that OMNM tracks any alleged “rate of change” of a resource of the managed nodes.9

8 The OMNM User Guide was incorporated into the Complaint. Am. Compl., ¶ 24; see Lone Star, 

594 F.3d at 387.

9 Even if Plaintiff had plausibly stated a claim as to OMNM, OMNM is a third-party product that 

is no longer sold as OEM software by Dell. See Ex. C (https://www.dell.com/support/article/enus/how16844/changes-to-the-sales-and-support-processes-for-dell-emc-openmanage-networkmanager?lang=en). As such, to the extent Plaintiff accuses OMNM, Dell is not the correct target 

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

OMNM from Dorado Software, Inc. (“Dorado”). See Original Compl. ¶ 18. 

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 16 of 23
11

C. Plaintiff Fails To State A Claim or 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 precludes its claims of induced 

and contributory infringement. Beyond that failing, Plaintiff has further failed to adequately plead 

any pre-suit knowledge by Defendants of the patent, or pre-suit knowledge by Defendants of 

alleged infringement. Plaintiff also fails to plead a specific intent to induce infringement. And 

Plaintiff has not pled, and cannot plead, 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. 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 (citation omitted); see also Intellectual Ventures, 870 

F.3d at 1329 (“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 claims fail because they do not adequately plead the 

required “knowledge of the patent in suit and knowledge of patent infringement.” Commil USA, 

135 S. Ct. at 1926. 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 

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 17 of 23
12

knowledge for indirect infringement”). Moreover, this Court has held—earlier this year—that 

allegations of knowledge based on a prior filed complaint are not enough to overcome a motion to 

dismiss. See Parus Holdings Inc. v. Apple Inc., No. 6:19-cv-432, Feb. 20, 2020 Text Order 

GRANTING D.I. 54 (dismissing indirect infringement claims where plaintiff’s only allegation of 

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

filing of the original complaint” and “[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”) (quoting D.I. 28 (Am. Compl.) ¶ 44 (emphasis added)).

The Amended Complaint includes an erroneous footnote that attempts to distinguish 

Aguirre by asserting that “Delaware courts have since rejected this rule.” Am. Compl. ¶ 23, n.1. 

Plaintiff’s statement that Delaware has rejected the pre-suit knowledge requirement is incorrect. 

See, e.g., VLSI Tech. LLC v. Intel Corp., C.A. No. 18-966-CFC, 2019 WL 1349468, at *2 (D. Del. 

Mar. 26, 2019) (“[T]he complaint itself cannot serve as the basis for a defendant’s actionable 

knowledge.”); Dynamic Data Techs., LLC v. Amlogic Holdings Ltd., C.A. No. 19-1239-CFC, 2020 

WL 4365809, at *2 (D. Del. July 30, 2020) (“‘The purpose of a complaint is not to create a claim 

but rather to obtain relief for an existing claim. For that reason, the complaint itself cannot be the 

source of the knowledge required to sustain claims of induced infringement.’”) (citation omitted). 

In any event, this Court has expressly adopted the pre-suit knowledge requirement, and continues 

to do so. See, e.g., Parus, No. 6:19-cv-432, Feb. 20, 2020 Text Order GRANTING D.I. 54. 

Despite this clear precedent, Plaintiff’s only allegations of knowledge are based on the 

filing of its prior complaint asserting the same patent, which it inexplicably dismissed: 

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 

Case 6:20-cv-00479-ADA Document 36 Filed 10/30/20 Page 18 of 23
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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 the 

patent-in-suit before the filing of this Amended Complaint.

Am. Compl. ¶ 23 (emphases added). Like the allegations in Parus, WSOU’s allegations of 

knowledge are limited to references to a prior filed complaint and thus fail to state a claim for 

indirect infringement. See id.; Parus, No. 6:19-cv-432, Feb. 20, 2020 Text Order GRANTING 

D.I. 54.10 To make matters worse, Plaintiff’s May 20, 2020 complaint was never served, so it 

cannot form the basis for Defendants’ knowledge. See Rosenthal Decl., Ex. E (Docket for WSOU 

v. Dell Inc., et al., No. 6-20-cv-00410) (showing dismissal prior to service of the complaint). 

Allowing Plaintiff to avoid the pre-suit knowledge requirement by filing a complaint, voluntarily 

dismissing that complaint, and refiling the same complaint two weeks later, would be at odds with 

the knowledge requirement itself.11 And, it would elevate form over substance and encourage 

litigants to use such a tactic to essentially eviscerate the pre-suit knowledge requirement. 

Plaintiff’s failure to raise a plausible inference of pre-suit knowledge of the patent and 

knowledge of infringement are fatal to its indirect infringement claims, and as such these claims 

10 See also Proxyconn Inc. v. Microsoft Corp., No. SACV 11-1681 DOC ANX, 2012 WL 1835680, 

at *5 (C.D. Cal. May 16, 2012) (“[A] complaint fails to state a claim for indirect patent 

infringement where the only allegation that purports to establish the knowledge element is the 

allegation that the complaint itself or previous complaints in the same lawsuit establish the 

defendant’s knowledge of the patent.”) (emphasis added); Orlando Commc’ns LLC v. LG Elecs., 

Inc., No. 6:14-CV-1017-ORL-22, 2015 WL 1246500, at *9 (M.D. Fla. Mar. 16, 2015) (“‘Prior to 

suit’ does not mean prior to the current iteration of the Complaint.”). 

11 See, e.g., Brandywine Commc’ns Techs., LLC v. T-Mobile USA, Inc., 904 F. Supp. 2d 1260, 

1268–69 (M.D. Fla. 2012) (“[B]ecause 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.”); Simplivity Corp. v. Springpath, Inc., No. CV 4:15-

13345-TSH, 2016 WL 5388951, at *8 (D. Mass. July 15, 2016) (“The suggested ‘knowledge via 

filing’ framework dilutes the knowledge requirement to the point of meaninglessness, since by 

virtue of being sued for infringement, a party necessarily is aware of the patent-in-suit.”) 

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should be dismissed.

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. Corp. v. JMS Co., 471 F.3d 

1293, 1306 (Fed. Cir. 2006)). Plaintiff’s allegations of specific intent amount to a single 

conclusory statement that Defendants “actively induced” others to infringe through their 

advertising, promotional materials, and two website citations. See Am. Compl. ¶ 24. 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 Plaintiff’s “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, direct to encouraging another’s infringement.” Parity, 

2019 WL 3940952, at *2.12

12 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 

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

entirely silent on a key requirement of induced infringement.

4. Plaintiff Fails to Allege the Requisite Lack of Substantial NonInfringing Uses for Contributory Infringement 

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 F. App’x 708, 713 (Fed. Cir. 2018) (citation omitted). 

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

only allegation on these elements is a conclusory statement that repeats the legal elements. See 

Am. Compl. ¶ 25. 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 be configured to not calculate the “rate of change” at any network resource. In fact, the 

Accused Products do not do so as discussed above. 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 Amended Complaint in its entirety for failure to plausibly state a claim for 

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 36 Filed 10/30/20 Page 21 of 23
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relief, without leave to amend. Pursuant to L.R. CV-7(h), Defendants request an oral hearing on 

the foregoing motion.

Dated: October 30, 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 36 Filed 10/30/20 Page 22 of 23
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CERTIFICATE OF SERVICE

The undersigned certifies that on October 30, 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 36 Filed 10/30/20 Page 23 of 23