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,

Defendant.

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§

§

§

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§

§

§

CIVIL ACTION 6:20-CV-00485-ADA

PATENT CASE

JURY TRIAL DEMANDED

RESPONSE OPPOSING DEFENDANTS’ MOTION TO DISMISS PURSUANT TO

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

Case 6:20-cv-00485-ADA Document 50 Filed 11/13/20 Page 1 of 17
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There is no merit to Dell Technologies, Inc., Dell Inc., and EMC Corporation’s (“Dell” or 

“Defendants”) allegation that the Amended Complaint filed by WSOU Investments, LLC 

(“WSOU”) fails to state a plausible claim for direct infringement of the patent-in-suit. Defendants’ 

flawed arguments regarding direct infringement ignore (or dispute) well pleaded facts in the 

Amended Complaint and apply an incorrect pleading standard. Defendants’ allegations regarding 

indirect infringement are tainted by the same flaws concerning direct infringement and misapply

the proper analysis regarding inducement and contributory infringement. Defendants’ motion 

should be denied. 

ARGUMENT

I. Legal Standard

Motions to dismiss under Rule 12(b)(6) are “viewed with disfavor and are rarely 

granted.” Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). A claim cannot be 

dismissed under Rule 12(b)(6) unless the plaintiff “would not be entitled to relief under any set of 

facts or any possible theory that [it] could prove consistent with the allegations in the 

complaint.” Muhammad v. Dallas Cnty. Cmty. Supervision & Corrs. Dep't, 479 F.3d 377, 380 (5th 

Cir. 2007) (citing Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)); Altman, 2012 WL 

4033336, at *1. In other words, it must appear beyond doubt that the plaintiff can prove no set of 

facts in support of their claim entitling them to relief. Griffith v. Kroger Co., No. 9:05-CV-76-TH, 

2008 WL 11347989, at *2 (E.D. Tex. Mar. 7, 2008) (citing Conley v, Gibson, 355 U.S. 41, 45–46 

(1957)); see also ESW HOLDINGS, INC., Plaintiff, v. ROKU, INC., 6:19-CV-00044-ADA, 2019 

WL 10303653, at *1–2 (W.D. Tex. May 13, 2019).

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). “The plausibility standard is not akin to a 

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 

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unlawfully.” Id. For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual 

allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the 

nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 

2008). Dismissal under Rule 12(b)(6) is inappropriate where fact discovery could affect the court’s 

analysis. See Syte - Visual Conception Ltd., 2020 WL 278481 at *6 (denying Rule 12(b)(6) motion 

because fact discovery could affect the court’s § 101 analysis).

II. WSOU alleges a plausible claim for direct infringement.

Defendants’ assertion that the Amended Complaint fails to adequately allege direct 

infringement ignores the detailed allegations in the Amended Complaint (Am. Compl. ¶¶ 15-23) 

and attempts to impose an improper standard by insisting a complaint must mimic the claim 

limitations and map every claim limitation to specific product features (see Mot. at 6-8). The 

pleading standard does not require a detailed mapping of every claim limitation to features within 

the accused product. As the Federal Circuit has explained:

While ACS and the other Appellees are correct that to prove infringement 

of a method patent a plaintiff must show that every step of the method is 

performed in the claimed order, nothing in Twombly or Iqbal demands this 

level of factual specificity at the pleading stage. Such a requirement would 

be dangerously close to requiring a plaintiff to prove he is entitled to 

relief at the pleading stage. At this stage of the litigation a plaintiff is only 

required to plead enough facts to enable a court “to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.

***

[T]here is no requirement that the facts alleged mimic the precise 

language used in a claim; what is necessary is that facts, when considered 

in their entirety and in context, lead to the common sense conclusion that a 

patented method is being practiced.

In re Bill of Lading Transmission & Processing Sys. Patent Litig., 681 F.3d 1323, 1342 (Fed. Cir. 

2012) (emphasis added) (cleaned up).

Thus, in Disc Disease, the Federal Circuit found the plaintiff’s allegations sufficient 

because the complaint specifically identified the three accused products and alleged that the 

accused products met “each and every element of at least one claim” of the asserted patents, either 

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literally or equivalently. Disc Disease Sols. Inc. v. VGH Sols., Inc., 888 F.3d 1256, 1260 (Fed. Cir. 

2018). 

Citing Disc Disease, the Western District of Texas denied a motion to dismiss like

Defendants’. See Encoditech, LLC v. Citizen Watch Co. of Am., Inc., SA-18-CV-1335-XR, 2019 

WL 2601347, at *4 (W.D. Tex. June 25, 2019). There, the Court reasoned: 

Encoditech only needed to identify and include product by name, allege that 

defendants make, sell, offer to sell, sell, import or use in the United States that 

accused product, and to allege that the accused product satisfies each and every 

limitation of at least one claim. And Encoditech alleges here in each of the cases 

that the defendant[ ] has performed all of the steps of claim 7 by its internal testing 

of the accused system.

Id. (denying motion to dismiss complaint involving patent entitled “wireless communication 

approach”); see also CXT Sys., Inc. v. Acad., Ltd., 218-CV-00171-RWS-RSP, 2019 WL 1858301, 

at *3 (E.D. Tex. Mar. 11, 2019), report and recommendation adopted, 218-CV-00171-RWS-RSP, 

2019 WL 1795929 (E.D. Tex. Apr. 24, 2019) (denying motion to dismiss complaint involving 

patent entitled “single sign-on for access to a central data repository” and holding the complaint 

was not required to specifically track every single element of the claim).

Defendants’ motion to dismiss WSOU’s claim for direct infringement should be denied 

because WSOU’s factual allegations are at least as detailed as those in Disc Disease and

Encoditech.1

Indeed, Defendants admit WSOU goes beyond what was required under Disc Disease by 

admitting the Amended Complaint explains the Accused Products “take into account the real-time

WAN performance, such as which paths are in use, automatically decide which paths should be

used for the flow, and then perform resequencing at the destination to ensure the packets reach the

destination in a sequential manner.” Mot. at 7. Defendants’ insistence that this allegation does not 

1 See Am. Compl. (¶¶ 22-23) (identifying the accused products and alleging, inter alia, that “[i]n 

view of the preceding paragraphs, each and every element of at least claim 1 of the [Patent] is 

found in the Accused Products,” and “Defendants continue to directly infringe at least one 

claim of the [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 [WSOU].”).

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adequately address a “split ratio vector” or a “ratio between” “a mean traffic rate of a cumulative 

flow on the respective corresponding path” and “a sum of mean traffic rates of cumulative flows 

on the plurality of paths” (Mot. at 7-8) merely confirms that Defendants are improperly demanding 

that the Amended Complaint mimic the precise language of the claim and map every limitation to 

the accused products. Defendants’ admission that WSOU explains “packets can be combined” 

followed by Defendants’ complaint that this does not adequately allege the Accused Products 

actually split traffic flows into “sub-flows” (Mot. at 8) is further confirmation that Defendants look 

beyond the mark. To the extent Defendants’ have attempted to raise claim construction positions 

or attempt to lock WSOU into such positions, this too is premature. 

For the foregoing reasons, this Court should deny Defendants’ motion to dismiss WSOU’s 

direct infringement claim. 

III. WSOU alleges a plausible claim for indirect infringement.

This Court should also deny Defendants’ motion to dismiss WSOU’s indirect infringement 

claim. In evaluating whether allegations of indirect infringement “pass muster under Rule 8,” it is 

important to “keep in mind that the Supreme Court was reviewing Global-Tech post-trial and did 

not speak to the pleading requirements for indirect infringement under Rule 8.” Walker Digital, 

LLC v. Facebook, Inc., 852 F. Supp. 2d 559, 563 (D. Del. 2012) (citing Glob.-Tech Appliances,

Inc. v. SEB S.A., 563 U.S. 754, 766 131 S. Ct. 2060, 2068, 179 L. Ed. 2d 1167 (2011)). As this 

Court has previously noted, indirect infringement is a question that “appears to be one for the Court 

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

Inc., 6-19-cv-00207, Dkt. 23, at 3–4 (WDTX, July 26, 2019).

2

Regardless, Defendants’ motion to dismiss fails because WSOU alleges a plausible claim 

for indirect infringement. 

2 As explained in more detail below, WSOU believes this statement may be more accurate for 

“willful infringement” than for “indirect infringement,” given that “willful infringement” is 

arguably not a cause of action.

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A. WSOU adequately alleges direct infringement.

As shown above, WSOU alleges a plausible claim for direct infringement. Therefore, 

WSOU adequately alleges the direct infringement necessary to support a claim for indirect 

infringement.

B. WSOU adequately alleges the knowledge required for indirect infringement.

WSOU also adequately alleges the knowledge required for indirect infringement.

1. This Court should not forbid a patent holder from pursuing a claim for 

indirect infringement that accrues during the pendency of the lawsuit.

To the extent this Court requires a complaint to allege a defendant had pre-filing knowledge 

of its indirect infringement, this requirement is satisfied by WSOU’s allegation that Defendants 

had knowledge of their indirect infringement before the filing of WSOU’s First Amended 

Complaint. This Court should not adopt a rule that forbids a patent holder from amending its 

complaint to assert a claim for indirect infringement that accrues during the pendency of the 

lawsuit (as Defendants urge it to do). The Federal Circuit has recognized that a party “may seek to

pursue claims that accrue during the pendency of a lawsuit[.]” Aspex Eyewear, Inc. v. Marchon

Eyewear, Inc., 672 F.3d 1335, 1345 (Fed.Cir.2012) (emphasis added). Therefore, a patent holder 

should be allowed to pursue a claim for indirect infringement that accrues after the filing of the 

original complaint but during the pendency of the lawsuit. The “pre-suit knowledge” rule 

advocated by Defendants is directly at odds with Aspex Eyewear. It is also at odds with the plain 

language of §- 271(b) and (c), which does not limit liability for indirect infringement to 

pre-litigation conduct. See 35 USC § 271(b)-(c), and with district court opinions out of the Eastern 

District of Texas and Delaware.

Defendants’ motion relies on Aguirre v. Powerchute Sports, LLC, No. SA-10-CV-0702 

XR, 2011 WL 2471299, at *3 (W.D. Tex. June 17, 2011) to support a “pre-suit knowledge” rule, 

but Aguirre relies on a Delaware case that has since been rejected by several Delaware courts.3In 

3 Delaware courts are split on whether a defendant’s knowledge of infringement must come from 

some source other than the original complaint to support a claim for indirect infringement. 

WSOU’s amended complaint correctly states that “[s]everal Delaware courts have since 

rejected” the rule in Aguirre and quotes Delaware authority directly rejecting Aguirre.

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Walker Digital, for example, the Court stated:

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 post knowledge 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.

Walker Digital, LLC v. Facebook, Inc., 852 F. Supp. 2d at 566. Delaware reached the same 

conclusion in IOENGINE, LLC v. PayPal Holdings, Inc., CV 18-452-WCB, 2019 WL 330515, at 

*4 (D. Del. Jan. 25, 2019), finding “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.” Other courts, including courts in 

Delaware and the Eastern District of Texas, have reached the same conclusion.4

Defendants argue the complaint itself cannot give Defendants notice of their indirect 

infringement because the “purpose of the complaint is not to create a claim but rather to obtain 

relief for an existing claim.” Mot. at 10 (quoting VLSI Technology. See VLSI Tech. LLC v. Intel 

Corp., CV 18-966-CFC, 2019 WL 1349468, at *2 (D. Del. Mar. 26, 2019). It appears VLSI 

invented this rule. See VLSI Tech. LLC, 2019 WL 1349468, at *2 (stating that a complaint cannot 

“create a claim” but citing no authority). Defendants also quote a second Delaware opinion by the 

same judge for this rule. Id. (quoting Dynamic Data Techs., LLC v. Amlogic Holdings Ltd., C.A. 

No. 19-1239-CFC, 2020WL 4365809, at *2 (D. Del. July 30, 2020)). Defendants’ argument, and 

the “pre-suit knowledge” rule as it is stated in VLSI, should be rejected for multiple reasons. 

First, VLSI is directly at odds with Aspex Eyewear and other Federal Court precedent

recognizing that a party may pursue claims that accrue during the pendency of litigation. See Aspex

4 See also Firstface Co., Ltd. v. Apple, Inc., 2019 WL 1102374, *1-2 (N.D. Cal. 2019); Nalco

Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1355–57 (Fed. Cir. 2018); Tierra Intelectual 

Borinquen, Inc. v. ASUS Computer International, Inc., 2014 WL 1233040, *2 (E.D. Tex. 

2014); Telecomm Innovations, LLC v. Ricoh Co., 966 F.Supp.2d 390, 393 (D. Del. 2013); E.I

Du Pont de Nemours & Co. v. Heraeus Holding GmbH, No. 11-773, 2012 WL 4511258, at *6

(D. Del. Sept. 28, 2012).

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Eyewear, 672 F.3d at 1345.

Second, the VLSI rule is merely a persuasive sounding semantical argument that exalts 

form over function. By giving notice of the defendant’s indirect infringement, an original 

complaint does not “create” a claim. Rather, it puts the defendant on notice. For indirect 

infringement to occur, the defendant must choose to continue its indirect infringement despite the 

notice provided in the complaint. It is the defendant’s continued infringement after receiving the 

complaint that creates the claim – not the complaint.

Third, even if the VLSI rule is correct as applied to original complaints, it cannot rationally 

apply to amended complaints. An amended complaint that alleges a defendant has had knowledge 

of its indirect infringement since at least the filing of the original complaint is not “creating” a 

claim. It is also not “creating” the required knowledge. It is merely alleging the obvious fact that 

the defendant has knowledge of its indirect infringement. Indeed, by the time an amended 

complaint is filed, the defendant has notice of its indirect infringement not only because of the 

filing of the original complaint, but from other direct communications with the plaintiff. Here, for 

example, Defendants now have WSOU’s infringement contentions, which were served on October 

14, 2020 before WSOU filed its Amended Complaint.

Fourth, refusing to allow a patent holder to pursue an indirect infringement claim that 

accrues during the pendency of the lawsuit (a practice directly at odds with Federal Circuit 

precedent) will only invite multiple lawsuits on the same patents against the same defendant – a 

first case for direct infringement and a later case for indirect infringement. The Federal Circuit 

recognizes that “in patent cases, res judicata does not apply to bar the assertion of new claims

acquired during the pendency of a litigation that could have been, but were not, litigated or

adjudicated in the action.” Target Training Intern., Ltd. v. Extended Disc N. Am., Inc., 645 Fed.

Appx. 1018, 1026 (Fed. Cir. 2016). Further, while a party “may seek to pursue claims that accrue

during the pendency of a lawsuit, the party is not required to do so, and res judicata will not be

applied to such accruing claims if the party elects not to have them included in the action.” Aspex

Eyewear, 672 F.3d at 1345. A patent holder seeking to litigate a claim for indirect infringement

Case 6:20-cv-00485-ADA Document 50 Filed 11/13/20 Page 8 of 17
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that accrued during the pendency of the lawsuit is not only fully within its rights but is also trying

to take the most efficient course for the parties and the court.

Fifth, the VLSI rule creates a legal fiction (pretending a defendant who has actual 

knowledge does not) that leads to absurd results.5 Under the VLSI rule, as Defendants interpret it,

a defendant who first learns of its misconduct through a filed complaint is forever immune from 

liability for post-filing indirect infringement (even if the defendant is, in fact, indirectly 

infringing).6Thus, the instrument designed to put a defendant on notice of misconduct becomes a 

shield to that misconduct. Under Defendants’ extreme version of the VLSI rule, even if the 

defendant later learns of its indirect infringement through sources that VLSI would otherwise 

consider sufficient (such as a letter from the patent holder or the defendant’s own internal 

investigation), the defendant can ignore this knowledge and continue to indirectly infringe with 

impunity. Under this impractical rule, a letter enclosing an unfiled complaint is sufficient to put a 

defendant on notice of indirect infringement but the same letter, if it contains a copy of a filed

complaint, is not. A defendant who receives a letter hours or minutes before a complaint is filed 

can be held liable for its indirect infringement, but a defendant who receives the same letter hours 

or minutes after a complaint is filed may continue to indirectly infringe without consequence. Such 

a rule creates a perverse incentive for defendants (who have unique access to information about 

when they gained knowledge) to conceal information about when they receive knowledge of 

infringement. Defendants’ proposed rule also places an unnecessary burden on parties and courts 

to conduct intensive discovery and fact finding on exactly when a defendant learned of its 

infringement (as a difference of hours or days may determine whether the defendant can be held 

liable for post-filing conduct). A patent holder who attempts to avoid the negative consequences 

of such a rule by sending a letter shortly before filing suit may find itself either (1) embroiled in 

5 It is “a fundamental and well-established principle of statutory construction that absurd and 

ridiculous results must be avoided where the language of a statute will permit.” Hensel v.

United States, 3 U.S. Cust. App. 117, 119 (Ct. Cust. App. 1912). 6 This is incorrect even under VLSI (which applied only to the complaint filed in that case) but 

is the rule Defendants ask this Court to adopt.

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discovery and factual disputes about exactly when, where, how, and to whom the letter was 

delivered or (2) on the receiving end of a preemptively filed declaratory judgment action in a forum 

of the infringer’s choice.

Defendants’ argument that WSOU cannot pursue a claim for indirect infringement that

accrued during the pendency of this lawsuit (because the requisite knowledge was allegedly gained

post-filing) is directly at odds with Federal Circuit precedent and should be rejected.

2. This Court should not apply its ruling in Parus to indirect infringement. 

Defendants’ motion to dismiss conflates willful and indirect infringement standards by 

relying on a recent docket text order from this Court. See Mot. at 9 (citing Parus Holdings Inc. v. 

Apple Inc., No. 6:19-cv-432, D.I. 54 (W.D. Tex. Feb. 20, 2020). The transcript of the Parus hearing 

suggests this Court’s ruling in Parus was largely based on willfulness arguments and whether 

enhanced damages should be available for post-filing conduct.

7

 Further, there appears to be no 

clear holding in Parus finding pre-filing knowledge necessary for either indirect infringement or 

enhanced damages due to willful infringement.8 And even assuming pre-filing knowledge is 

required, knowledge acquired before the filing of an amended complaint should suffice. See Aspex

7 See -477 Ex. A at 20-23, 32-35 (discussing enhanced damages) (for efficiency, WSOU is filing 

Exhibit A only with its response to Defendants’ motion in 6:20-CV-00477-ADA). For 

example, during the hearing Mr. Snyder argued that allowing the complaint to create the intent 

necessary for willful infringement would make enhanced damages available in “literally every 

patent infringement case” and that “notice provided by the complaint does not remove a case 

from a garden-variety patent infringement case to the kind of case that warrants enhanced 

damages.” -477 Resp., Ex. A at 22-23. While there may be reason for ensuring that enhanced 

damages are not allowed in “garden-variety” patent infringement cases, there is no similar 

reason to shield a defendant from ordinary damages for ongoing infringement, direct or 

indirect, during litigation. The arguments presented to the Court made little distinction between 

the proper standard for willfulness versus the proper standard for indirect infringement. -477 

Ex. A at 20-23, 32-35. At the end of the Parus hearing, it appears there was confusion 

concerning whether one of the cases involved willfulness. When it became clear that there was 

no willfulness claim and that the claim only involved indirect infringement, the Court 

determined to take the issue up later. -477 Ex. A at 52. 8 See -477 Ex. A at 46-47 (“I certainly understand all the arguments that you’ve made, and I’m 

going to have to wrestle with those arguments.”). If this Court considers its decision in Parus 

to hold that pre-filing notice is required for indirect infringement damages to accrue post-filing, 

WSOU asks that it re-consider this finding for the reasons explained in this response.

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Eyewear, 672 F.3d at 1345 (recognizing that a party “may seek to pursue claims that accrue during

the pendency of a lawsuit[.]”).

The knowledge required for indirect infringement should not be confused with the

knowledge required for awarding enhanced damages to punish an infringer for willful 

infringement. Section 284 of the Patent Act allows a court to “enhance damages” for infringement 

“up to three times the amount found or assessed.” See 35 USC § 284. According to VLSI, which 

Defendants rely on, “willful infringement” is not a cause of action. VLSI Tech. LLC, 2019 WL 

1349468, at *1 (“As the Patent Act, 35 U.S.C. § 1 et seq., does not create a cause of action for 

willful infringement, I understand Intel’s motion to dismiss “VLSI’s claims for willful 

infringement” to be a motion . . . to dismiss VLSI’s willfulness-based claim for enhanced damages 

under 35 U.S.C. § 284 and strike from the complaint the allegations of willful infringement.”). If 

“willful infringement” is not a cause of action, it is arguably not a “claim” that can “accrue during 

the pendency of a lawsuit.” This would make Aspex Eyewear’s recognition that a party may “seek 

to pursue claims that accrue during the pendency of a lawsuit” inapplicable to willful infringement. 

There is no similar justification for refusing to apply Aspex Eyewear to a cause of action for 

indirect infringement that accrues during the pendency of litigation.

Given the absence of statutory guidance on when enhanced damages should be awarded 

under § 284, the courts have fashioned their own tests, which generally require willfulness. See 

Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1928, 195 L. Ed. 2d 278 (2016) (abrogating 

stringent test created by In re Seagate Technology, LLC, 497 F.3d 1360, 1374 (Fed.Cir.2007) but 

recognizing enhanced damages should still “generally be reserved for egregious cases typified by 

willful misconduct”). In In re Seagate Technology, the Federal Circuit fashioned a test (later 

abrogated by Halo Electronics) for awarding enhanced damages under § 284 that requires willful 

infringement. In doing so, it explained:

Further outweighing any benefit of extending waiver to trial counsel is the 

realization that in ordinary circumstances, willfulness will depend on an infringer’s 

prelitigation conduct. It is certainly true that patent infringement is an ongoing 

offense that can continue after litigation has commenced. However, when a 

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complaint is filed, a patentee must have a good faith basis for alleging willful 

infringement. Fed. R. Civ. Pro. 8, 11(b). So a willfulness claim asserted in the 

original complaint must necessarily be grounded exclusively in the accused 

infringer’s pre-filing conduct. By contrast, when an accused infringer’s post-filing 

conduct is reckless, a patentee can move for a preliminary injunction, which 

generally provides an adequate remedy for combating post-filing willful 

infringement. A patentee who does not attempt to stop an accused infringer’s 

activities in this manner should not be allowed to accrue enhanced damages 

based solely on the infringer’s post-filing conduct. Similarly, if a patentee 

attempts to secure injunctive relief but fails, it is likely the infringement did not rise 

to the level of recklessness.

In re Seagate Technology, 497 F.3d at 1374 (emphasis added). While In re Seagate Technology 

arguably supports the idea that under “ordinary circumstances” willfulness will depend on an 

infringer’s prelitigation conduct, it does not support the idea that indirect infringement should be 

limited to pre-filing conduct. To the contrary, it expressly recognizes that “patent infringement is 

an ongoing offense that can continue after litigation has commenced” and states only that enhanced 

damages for such infringement should be limited to pre-filing conduct. Id. As the District of 

Delaware stated, there is “no legal impediment to having an indirect infringement cause of action 

limited to post-litigation conduct,” as there arguably is for allegations of willful infringement. 

Walker Digital, LLC v. Facebook, Inc., 852 F. Supp. 2d at 565 n. 7 (emphasis added) (citing In re 

Seagate Technology, LLC, 497 F.3d at 1374 (Fed.Cir.2007)).

Therefore, even if this Court was persuaded by arguments in Parus to find that pre-filing 

knowledge should be required to allow enhanced damages under § 284, it should not adopt a 

similar rule for a cause of action for indirect infringement that accrues during the pendency of 

litigation. Because the Federal Circuit has recognized that a party is free to pursue claims that 

accrue during the pendency of litigation, a patent holder should be free to include indirect 

infringement claims that accrue during the pendency of litigation in an amended complaint.

C. WSOU adequately alleges intent for induced infringement.

Defendants allege that “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 [website] citations.” Mot. at 11. However, Defendants 

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provide no analysis of the advertising, promotional materials, and website citations referenced in 

the Amended Complaint. Am. Compl. ¶ 26. Here, Defendants’ alleged activities include 

“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” in the manner claimed. Id.

These example pleadings at least are analogous to those the Federal Circuit deemed 

sufficient to defeat a motion to dismiss. Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1355 (Fed. 

Cir. 2018) (denying motion to dismiss where pleadings alleged defendants inducing actions 

included “providing instructions, support, and technical assistance for the use of the [accused 

instrumentality].”); see also Script Security Solutions L.L.C. v. Amazon.com, Inc., 170 F. Supp. 3d 

928, 936 (E.D. Tex. 2016) (denying a 12(b)(6) Motion to dismiss allegations of induced 

infringement where “the defendants induced customers to infringe the patents by instructing them 

in advertising and promotion to use the accused products in an infringing way”); Canon, Inc. v. 

TCL Electronics Holdings Ltd., No. 2:18-CV-00546-JRG, 2020 WL 1478356, *5-*6 (E.D. Tex. 

Mar. 25, 2020) (denying motion to dismiss inducing and contributory infringement claims despite 

the lack of specifics in how the material the accused infringers disseminated in connection with 

the accused product encouraged infringement); Motiva Patents, LLC v. Sony Corp., 408 F. Supp. 

3d 819 (E.D. Tex. Sept. 27, 2019) (denying motion to dismiss because complaint contained general 

allegations that the end-user’s of the accused software product were the direct infringers and that 

the accused infringer through its advertising and instruction manuals encouraged the end user to 

use the product in an infringing manner).

Therefore, WSOU has alleged a plausible claim for induced infringement because the 

Amended Complaint specifically identifies “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” in the manner claimed.

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D. WSOU alleges a plausible claim for contributory infringement. 

Defendants’ bald assertion that WSOU fails to claim lack of a substantial non-infringing 

use because it “cannot do so” should be disregarded as an attempt to raise a factual dispute in a 

motion to dismiss. 

As the Federal Circuit has acknowledged, “[t]he language of the statute incorporates the 

core notion that one who sells a component especially designed for use in a patented invention 

may be liable as a contributory infringer, provided that the component is not a staple article of 

commerce suitable for substantial noninfringing use.” Ricoh Co. v. Quanta Computer Inc., 550 

F.3d 1325, 1337 (Fed. Cir. 2009).

9

The Federal Circuit went on to hold: 

Quanta should not be permitted to escape liability as a contributory 

infringer merely by embedding that microcontroller in a larger 

product with some additional, separable feature before importing 

and selling it. If we were to hold otherwise, then so long as the 

resulting product, as a whole, has a substantial non-infringing 

use based solely on the additional feature, no contributory liability 

would exist despite the presence of a component that, if sold alone, 

plainly would incur liability.

Ricoh Co. v. Quanta Computer Inc., 550 F.3d 1325, 1337 (Fed. Cir. 2009) (emphasis in original). 

Under Ricoh, WSOU’s pleadings are sufficient. As the Eastern District of Texas 

recognized, under Ricoh “a well-pled allegation addressed to the lack of substantial noninfringing 

uses is sufficient to satisfy the knowledge element of contributory infringement.” Motiva, 408 F. 

Supp. 3d at 834. In Motiva, the court denied a motion to dismiss the contributory infringement 

claim, finding the complaint adequately alleged that the accused products “contain a software 

component with no substantial noninfringing uses.” Motiva, 408 F. Supp. 3d at 835. The court 

further found that a patentee need only allege that a software component does not have any 

9 Additionally, Ricoh suggests that a well-pled allegation addressed to the lack of substantial

noninfringing uses is sufficient to satisfy the knowledge element of contributory infringement. 

Ricoh explained that “[w]hen a manufacturer includes in its product a component that can only 

infringe, the inference that infringement is intended is unavoidable.” Ricoh, 550 F.3d at 1338.

Accordingly, “it is entirely appropriate to presume that one who sells a product containing a 

component that has no substantial noninfringing use in that product does so with the intent that 

the component will be used to infringe.” Id.

Case 6:20-cv-00485-ADA Document 50 Filed 11/13/20 Page 14 of 17
14

substantial noninfringing uses. This is because “[r]equiring [a patentee] to prove that [the accused 

infringer]’s software component only has a single use—instead of simply alleging as much—

would ‘effectively require[ ] [the patentee to prove, pre-discovery, the facts necessary to win at 

trial,’” and the law does not require this. Id. at 836 n.6 (citation omitted); see also Lucent Techs., 

Inc. v. Gateway, Inc., 580 F.3d 1301, 1320-1321 (Fed. Cir. 2009) (finding contributory 

infringement based on a software tool within a larger program even though the entire software 

package was not alleged to contributorily infringe).

WSOU has alleged a plausible claim for contributory infringement because the Amended 

Complaint specifically identifies example infringing features and components of the accused 

product.

IV. If necessary, the Court should allow WSOU to amend.

Although Defendants’ motion should be denied for the reasons explained above, if the

Court is inclined to grant any part of Defendants’ 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). 

CONCLUSION

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

Defendants are liable for the misconduct alleged. Defendants have not shown that WSOU would 

not be entitled to relief under any set of facts or any possible theory that it could prove consistent 

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

Case 6:20-cv-00485-ADA Document 50 Filed 11/13/20 Page 15 of 17
15

Dated: November 13, 2020 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

Jhuang@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

ATTORNEYS FOR PLAINTIFF

Case 6:20-cv-00485-ADA Document 50 Filed 11/13/20 Page 16 of 17
16

CERTIFICATE OF SERVICE

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

case filing in accordance with the Federal Rules of Civil Procedure on November 13, 2020.

/s/ Ryan S. Loveless

Ryan S. Loveless

Case 6:20-cv-00485-ADA Document 50 Filed 11/13/20 Page 17 of 17