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-00478-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS 

FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM

Case 6:20-cv-00478-ADA Document 59 Filed 11/20/20 Page 1 of 13
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TABLE OF CONTENTS

Page

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

II. ARGUMENT.......................................................................................................................1

A. Plaintiff Fails to State a Claim for Indirect Infringement .........................................1

1. Plaintiff Fails to Plausibly Allege that Defendants Had Pre-Suit Knowledge of 

the Patent or of Alleged Infringement ...............................................................1

2. Plaintiff Fails to Plead Facts that Plausibly Show the Defendants Had a 

Specific Intent to Cause Another to Directly Infringe .......................................4

3. Plaintiff Has No Factual Basis to Allege that the Asserted Products Have No 

Substantial Non-infringing Uses........................................................................5

B. Plaintiff Should Not Be Permitted to Amend............................................................5

III. CONCLUSION....................................................................................................................6

Case 6:20-cv-00478-ADA Document 59 Filed 11/20/20 Page 2 of 13
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TABLE OF AUTHORITIES

Page(s)

CASES

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

620 F. App’x 934 (Fed. Cir. 2015) ............................................................................................4

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

904 F. Supp. 2d 1260 (M.D. Fla. 2012).....................................................................................3

Canon, Inc. v. TCL Electronics Holdings Ltd.,

No. 2:18-CV-00546-JRG, 2020 WL 1478356 (E.D. Tex. Mar. 25, 2020)................................4

Castlemorton Wireless, LLC v. Bose Corporation,

No. 6:20-cv-00029-ADA (W.D. Tex. July 22, 2020)................................................................2

Aspex Eyewear, Inc. v. Marchon Eyewear, Inc.,

672 F.3d 1335 (Fed. Cir. 2012)..............................................................................................2, 3

Lucent Techs., Inc. v. Gateway, Inc.,

580 F.3d 1301, 1320-1321 (Fed. Cir. 2009) ..............................................................................5

Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic Ass’n,

751 F.3d 368, 378 (5th Cir. 2014) .........................................................................................5, 6

Motiva Patents, LLC v. Sony Corp.,

408 F. Supp. 3d 819 (E.D. Tex. Sept. 27, 2019)....................................................................4, 5

Nalco Co. v. Chem-Mod, LLC,

883 F.3d 1337, 1355 (Fed. Cir. 2018)....................................................................................3, 4

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

No. 6-19-cv-00207, Dkt. 23, at 3–4 (WDTX, July 26, 2019)....................................................2

Parus Holdings Inc. v. Apple Inc.,

No. 6:19-cv-432 (W.D. Tex. Feb. 20, 2020)..........................................................................1, 2

Ricoh Co. v. Quanta Computer Inc.,

550 F.3d 1325 (Fed. Cir. 2009)..................................................................................................4

Script Security Solutions L.L.C. v. Amazon.com, Inc.,

170 F. Supp. 3d 928, 936–37 (E.D. Tex. 2016).........................................................................4

Target Training Intern., Ltd. v. Extended Disc N. Am., Inc.,

645 Fed. Appx. 1018, 1026 (Fed. Cir. 2016).............................................................................7

Case 6:20-cv-00478-ADA Document 59 Filed 11/20/20 Page 3 of 13
TABLE OF AUTHORITIES (continued)

Page(s)

iii

VLSI Tech. LLC v. Intel Corp.,

CV 18-966-CFC, 2019 WL 1349468 (D. Del. Mar. 26, 2019)..................................................3

WSOU v. Dell Inc. et al.,

No. 6:20-cv-00409 (W.D. Tex. May 20, 2020) .......................................................................10

WSOU v. Dell Inc. et al.,

No. 6:20-cv-00477 (W.D. Tex. Nov. 13, 2020) ........................................................................2

Case 6:20-cv-00478-ADA Document 59 Filed 11/20/20 Page 4 of 13
TABLE OF ABBREVIATIONS

Abbreviation Term

’921 patent U.S. Patent No. 7,126,921

Accused Products Dell Networking S3048-ON, Dell Networking S4048-ON, Dell 

Networking S4810-ON, Dell Networking S6000-ON, and ESeries, C-Series, N-Series, and S-Series hardware

Amended Complaint 

or Am. Compl.

First Amended Complaint For Patent Infringement (D.I. 34)

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

DNOS Dell Networking Operating System

FTOS Force10 Networks’ Force10 Operating System

Motion Defendants’ Motion to Dismiss First Amended Complaint For 

Failure to State a Claim (D.I. 38)

Opposition or Opp. Response Opposing Defendants’ Motion to Dismiss Pursuant to 

Federal Rule of Civil Procedure 12(b)(6) (D.I. 55)

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-00478-ADA Document 59 Filed 11/20/20 Page 5 of 13
I. INTRODUCTION

Plaintiff’s indirect infringement allegations are deficient and must be dismissed. Plaintiff 

still has yet to identify any basis to allege that Defendants induce or contribute to infringement of

the ’921 patent. This Court has repeatedly ruled that pre-suit knowledge is required for claims of 

indirect infringement and that prior iterations of a complaint cannot provide this knowledge. Yet, 

despite this clear precedent, Plaintiff’s only basis for knowledge is a prior complaint that was never 

served. Unable to cure this failure, Plaintiff ignores the law of this district and instead spends 

seven pages discussing various Delaware cases related to indirect infringement and other cases 

related to the standard for willfulness allegations (which is not at issue in this case). Plaintiff 

cannot avoid the law of this district with respect to indirect infringement or its failure to adequately 

allege pre-suit knowledge of the patent. 

II. ARGUMENT

A. Plaintiff Fails to State a Claim for Indirect Infringement

1. Plaintiff Fails to Plausibly Allege that Defendants Had Pre-Suit 

Knowledge of the Patent or of Alleged Infringement

As addressed in Defendants’ Motion, this Court has expressly held that allegations of 

knowledge based on a prior filed complaint are not enough to overcome a motion to dismiss. See 

Motion at 4–6 (citing 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)). Plaintiff attempts to avoid this clear 

precedent by incorrectly asserting that “this Court’s ruling in Parus was largely based on 

willfulness arguments” and that “there appears to be no clear holding finding pre-filing knowledge 

necessary for either indirect infringement or enhanced damages due to willful infringement.”1 

 1 Plaintiff’s Opposition inexplicably spends two pages describing the knowledge requirement 

for willfulness for enhanced damages. See Opp. at 8–10 (citing cases). Defendants have never 

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Opp. at 7–8. These assertions are disingenuous at best. The Parus transcript, which Plaintiff

selectively cites (see Opp. at 7–8), makes clear that Defendants argued, and the Court heard, that 

pre-suit knowledge was necessary for indirect infringement:

MR. SNYDER [For Google]: . . . Likewise, for indirect infringement, whether it’s 

contributory infringement or inducing infringement, the mere notice provided by a 

complaint shouldn’t provide that necessary knowledge and intent because merely 

continuing that conduct after you’ve been sued doesn’t provide that knowledge of 

or intent to infringe the patent that is required for either of those types of indirect 

infringement.

WSOU v. Dell Inc. et al., No. 6:20-cv-00477, D.I. 51-1 (Parus Tr.) at 23:9-16 (emphasis added)

(W.D. Tex. Nov. 13, 2020); see also id. at 24:9–14, 50:23–52:24; Parus, No. 6:19-cv-432, D.I. 54 

(Motion to Dismiss) at 13 (arguing “knowledge as a result of the plaintiff’s lawsuit is ‘insufficient 

to plead the requisite knowledge for indirect infringement’” (citation omitted)). Thus, this Court 

considered the lack of pre-suit knowledge for indirect infringement and granted Defendant’s 

motion to dismiss its indirect infringement claims. See Parus, No. 6:19-cv-432, Feb. 20, 2020 

Text Order GRANTING D.I. 54. Further, if there was any confusion post Parus, this Court has 

held that pre-suit knowledge is required in cases that did not involve claims of willful infringement. 

See, e.g., Castlemorton Wireless, LLC v. Bose Corporation, No. 6:20-cv-00029-ADA, D.I. 51 at 

10–11 (W.D. Tex. July 22, 2020) (granting “Bose’s motion to dismiss Castlemorton’s indirect 

infringement claims” because “Castlemorton’s complaint does not plead any facts that would 

support an allegation of pre-suit knowledge”).2

Moreover, contrary to Plaintiff’s assertion, this Court’s holdings in Parus and 

 

mentioned willfulness (as Plaintiff has not alleged it) and have not conflated the standard for 

willfulness with indirect infringement. Thus this discussion is completely irrelevant.

2 Plaintiff’s citation to Parity is not persuasive as this Court has repeatedly addressed indirect 

infringement claims on motions to dismiss. See Opp. at 6 (citing Parity Networks, LLC v. 

Cisco Systems, Inc., No. 6-19-cv-00207, Dkt. 23, at 3–4 (W.D. Tex. July 26, 2019).

Case 6:20-cv-00478-ADA Document 59 Filed 11/20/20 Page 7 of 13
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Castlemorton are not at odds with Federal Circuit precedent. See Opp. at 3–6. Plaintiff relies on 

Aspex Eyewear and Target Training, to assert that pre-suit knowledge should not be required for 

indirect infringement because, it in effect, limits claims to pre-suit conduct. See id. Neither of 

these cases does not even touch on this issue. Both cases stand for the proposition that “res judicata 

will not be applied to” claims that accrue during the pendency of a lawsuit “if the party elects not 

to have them included in the action.” Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 

1335, 1345 (Fed. Cir. 2012); see Target Training Int’l, Ltd. v. Extended Disc N. Am., Inc., 645 F. 

App’x 1018, 1026 (Fed. Cir. 2016). Requiring sufficient pleadings of pre-suit knowledge is not in 

any tension with the idea that a patentee may pursue claims for infringement that continues beyond 

the case filing or that res judicata will not apply to these claims. Thus, this Court’s precedent is 

fully consistent with Federal Circuit precedent and with the knowledge requirement itself. See

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.”). 

Despite Plaintiff’s attempts, it cannot ignore the law of this Court and this district.3 Like 

 3 Plaintiff’s Opposition (at 3–8) spends five pages discussing Delaware and E.D. Texas case law 

and distinguishing VLSI Tech. LLC v. Intel Corp., CV 18-966-CFC, 2019 WL 1349468 (D. 

Del. Mar. 26, 2019). Like its analysis regarding willfulness, this entire discussion is irrelevant. 

The law of this Court and this district is clear. The knowledge requirement for indirect 

infringement requires pre-suit knowledge and this knowledge cannot be based on a prior 

iteration of the complaint. See Motion at 4–6. Moreover, Plaintiffs’ own case, Nalco Co. v. 

Chem-Mod, LLC, actually suggests that allegations of pre-suit knowledge are required for 

indirect infringement. See 883 F.3d 1337, 1357 (Fed. Cir. 2018) (holding the knowledge 

requirement for contributory infringement was satisfied where plaintiff “pled facts to show 

Defendants’ knowledge, prior to filing of the suit, of the ’692 patent.”) (emphasis added). 

Case 6:20-cv-00478-ADA Document 59 Filed 11/20/20 Page 8 of 13
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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 Motion at 5–6. And, 

to make matters worse, this prior complaint was never served and thus it cannot provide the basis 

for pre-suit knowledge, especially since the Amended Complaint at issue here does not even allege 

that Defendants were provided a copy of the unserved complaint. See id. As such, Plaintiff’s 

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

infringement is fatal to its indirect infringement claims, and these claims should be dismissed.

2. Plaintiff Fails to Plead Facts that Plausibly Show the Defendants Had 

a Specific Intent to Cause Another to Directly Infringe

Plaintiff’s Opposition merely repeats its conclusory allegation that Defendants induce 

infringement by “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.” Opp. at 10 (quoting Am. 

Compl., ¶ 25). Notably, Plaintiff has no response to Defendants’ assertion that it has not presented 

any facts to support this statement or any “facts that would allow a court to reasonably infer that 

Defendants had the specific intent to induce infringement.”4

 Addiction & Detoxification Inst. 

 4 Plaintiff’s cited cases (see Opp. at 10–11) are all distinguishable for the simple reason that the 

pleadings at issue in those cases contained more than a single conclusory statement that 

Defendants generally instruct users how to configure their products. See Nalco, 883 F.3d at 

1355 (finding “[t]he 4AC alleges facts that plausibly show Defendants specifically intended 

their customers to infringe”); Script Security Solutions L.L.C. v. Amazon.com, Inc., 170 F. 

Supp. 3d 928, 936–37 (E.D. Tex. 2016) (finding facts relating to pre-suit knowledge and willful 

blindness that supported induced infringement); Canon, Inc. v. TCL Electronics Holdings Ltd., 

No. 2:18-CV-00546-JRG, 2020 WL 1478356, *5–*6 (E.D. Tex. Mar. 25, 2020) (finding 

allegations that the “creation and dissemination” of certain documents “with knowledge and 

the specific intent that their efforts will result in the direct infringement” supported specific 

intent); Motiva Patents, LLC v. Sony Corp., 408 F. Supp. 3d 819 (E.D. Tex. Sept. 27, 2019) 

(finding allegations of a contractual relationship, directing customers, and advertising where 

“Defendant is aware that the normal and customary use of the accused products by Defendant's 

customers would infringe the Asserted Patent” supported specific intent).

Case 6:20-cv-00478-ADA Document 59 Filed 11/20/20 Page 9 of 13
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L.L.C. v. Carpenter, 620 F. App’x 934, 938 (Fed. Cir. 2015) (emphasis added). Plaintiff’s

conclusory allegations are directed to—if anything—general intent to cause acts of infringement, 

but are simply not enough to sufficiently plead specific intent. See Motion at 7–8.

3. Plaintiff Has No Factual Basis to Allege that the Asserted Products 

Have No Substantial Non-infringing Uses 

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

Plaintiff’s only response is a non-response claiming that it “has alleged a plausible claim for 

contributory infringement because the Amended Complaint specifically identifies example 

infringing features and components of the accused product.” Opp. at 12. Plaintiff’s conclusory 

allegations are not enough and thus its contributory infringement claim should be dismissed.5

B. Plaintiff Should Not Be Permitted to Amend

Plaintiff has now had three chances to file a complaint that actually pleads a plausible basis 

to claim indirect infringement. See D.I. 1; D.I. 34; WSOU v. Dell Inc. et al., Case No. 6:20-cv409, D.I. 1 (W.D. Tex. May 20, 2020). Defendants have filed two motions to dismiss. D.I. 32;

D.I. 38. Plaintiff still cannot come up with any basis to allege the requite knowledge, intent, or 

lack of non-infringing uses. In view of these circumstances it would be futile to allow Plaintiff a 

fourth bite at the apple with another amended complaint. The Amended Complaint should be 

dismissed without leave to amend. See Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 

751 F.3d 368, 378 (5th Cir. 2014) (affirming denial of a motion to amend because “granting 

 5 Again, Plaintiff’s cited cases are inapplicable. See Opp. at 15–16. This case is not like Ricoh,

Motiva, or Lucent Techs. where the accused feature was imbedded in some large product with 

additional features or where the accused software had other uses. See Ricoh Co. v. Quanta 

Computer Inc., 550 F.3d 1325, 1337 (Fed. Cir. 2009); Motiva Patents, 408 F. Supp. 3d at 835; 

Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1320–1321 (Fed. Cir. 2009). Here, the 

accused Graceful Restart functionality, which does not even implicate the claims, is disabled 

by default.

Case 6:20-cv-00478-ADA Document 59 Filed 11/20/20 Page 10 of 13
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[plaintiff’s] motion to amend would have been futile”).

III. CONCLUSION

For the foregoing reasons and the reasons in Defendants’ Motion, Defendants respectfully 

request that the Court grant their Motion and dismiss Plaintiff’s Amended Complaint in its entirety 

for failure to plausibly state a claim for relief with prejudice and without leave to amend. Pursuant 

to L.R. CV-7(h), Defendants request an oral hearing on the foregoing motion.

Case 6:20-cv-00478-ADA Document 59 Filed 11/20/20 Page 11 of 13
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Dated: November 20, 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-00478-ADA Document 59 Filed 11/20/20 Page 12 of 13
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CERTIFICATE OF SERVICE

The undersigned certifies that on November 20, 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-00478-ADA Document 59 Filed 11/20/20 Page 13 of 13