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-00477-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-00477-ADA Document 55 Filed 11/20/20 Page 1 of 11
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TABLE OF CONTENTS

Page

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

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

III. CONCLUSION....................................................................................................................5

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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

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

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

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, D.I. 51 (W.D. Tex. July 22, 2020)...................................................2

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 (Fed. Cir. 2018)..............................................................................................3, 4

Parus Holdings Inc. v. Apple Inc.,

No. 6:19-cv-432, Feb. 20, 2020 D.I. 54 (W.D. Tex. Feb. 20, 2020) .....................................1, 2

Ricoh Co. v. Quanta Computer Inc.,

550 F.3d 1325 (Fed. Cir. 2009)..................................................................................................5

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

170 F. Supp. 3d 928 (E.D. Tex. 2016).......................................................................................4

Target Training Int’l, Ltd. v. Extended Disc N. Am., Inc.,

645 F. App’x 1018 (Fed. Cir. 2016) ..........................................................................................3

VLSI Tech. LLC v. Intel Corp.,

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

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TABLE OF ABBREVIATIONS

Abbreviation Term

’489 patent U.S. Patent No. 8,913,489

Amended Complaint or 

Am. Compl.

First Amended Complaint For Patent Infringement (D.I. 33)

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

LAG Link Aggregate Group

MC-LAG Multi-Chassis Link Aggregate Group

Original Complaint or 

Original Compl.

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

VFL Virtual Fabric Link

VLT Virtual Link Trunking

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

Development

Case 6:20-cv-00477-ADA Document 55 Filed 11/20/20 Page 4 of 11
I. INTRODUCTION 

Plaintiff’s indirect infringement allegations are deficient and must be dismissed. 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 misdirects from 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 3–5 (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 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.

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

selectively cites (see Opp. at 7-9), 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 Castlemorton and 

Parus are not at odds with Federal Circuit precedent. See Opp. at 8–11. Plaintiff relies on Aspex 

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 7 (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-00477-ADA Document 55 Filed 11/20/20 Page 6 of 11
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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 

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). 

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

 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 Motion at 4–6. 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 

3 Plaintiff’s Opposition (at 7–11) 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 12–14. 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-00477-ADA Document 55 Filed 11/20/20 Page 7 of 11
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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., ¶ 30). 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. 

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 6–7.

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-CV00546-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).

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

Have No Substantial Non-infringing Uses 

There are specific non-infringing uses—i.e., that the Accused Products may be configured 

to not use Virtual Link Trunking—and the accused features are disabled by default. Plaintiff’s 

only response is a non-response claiming that it “has alleged that there are at least one or more 

components of the accused products that are especially made or adapted for infringing the ’489

patent and have no substantial noninfringing use.” Opp. at 15. As Plaintiff’s own Amended 

Complaint makes clear, the Accused Products can potentially infringe only if they are configured 

to use Virtual Link Trunking. Thus, Plaintiff cannot plead facts to support a plausible inference 

of no substantial non-infringing uses and its contributory infringement claim should be dismissed.5

III. CONCLUSION

For the foregoing reasons and the reasons in Defendants opening brief, Defendants 

respectfully request that the Court grant their motion and dismiss Plaintiff’s indirect infringement 

claims in its Amended Complaint with prejudice. Pursuant to L.R. CV-7(h), Defendants request 

an oral hearing on the foregoing motion.

5 Again, Plaintiff’s cited cases are inapplicable. See Opp. at 11–12. This case is not 

like Ricoh or Motiva 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, LLC v. Sony Corp., 408 F. 

Supp. 3d 819 (E.D. Tex. Sept. 27, 2019). Here, features that are required to even begin to practice 

the claimed method (Virtual Link Trunking) are disabled by default.

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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-00477-ADA Document 55 Filed 11/20/20 Page 10 of 11
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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-00477-ADA Document 55 Filed 11/20/20 Page 11 of 11