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., 

EMC CORPORATION, AND VMWARE, 

INC.,

Defendants.

Case No. 6:20-cv-00480-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 1 of 17
TABLE OF CONTENTS

Page

i

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

II. BACKGROUND .................................................................................................................2

A. The ’133 Patent....................................................................................................... 2

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

III. LEGAL STANDARD..........................................................................................................4

A. Direct Infringement................................................................................................. 4

B. Induced and Contributory Infringement ................................................................. 4

IV. ARGUMENT.......................................................................................................................5

A. Plaintiff Fails to State a Claim for Direct Infringement ......................................... 5

B. Plaintiff Fails to State a Claim for Induced and Contributory 

Infringement............................................................................................................ 7

1. Plaintiff’s Indirect Infringement Claims Fail Without Direct 

Infringement................................................................................................ 7

2. Plaintiff Fails to Allege the Requisite Knowledge for Indirect 

Infringement................................................................................................ 8

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

Infringement................................................................................................ 9

4. Plaintiff Fails to Allege the Requisite Lack of Substantial 

Noninfringing Uses for Contributory Infringement.................................. 10

V. CONCLUSION..................................................................................................................11

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 2 of 17
TABLE OF AUTHORITIES

Page(s)

ii

Cases

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

620 F. App’x 934 (Fed. Cir. 2015) ........................................................................................5, 9

Affinity Labs of Texas, LLC v. Toyota Motor N. Am.,

No. W:13-CV-365, 2014 WL 2892285 (W.D. Tex. May 12, 2014) ...................................5, 10

Aguirre v. Powerchute Sports, LLC,

No. SA-10-CV-0702 XR, 2011 WL 2471299 (W.D. Tex. June 17, 2011) ...............................8

Artrip v. Ball Corp.,

735 F. App’x 708 (Fed. Cir. 2018) ..........................................................................................10

Ashcroft v. Iqbal,

556 U.S. 662 (2009)...................................................................................................................4

Avocet Sports Tech., Inc. v. Garmin Int’l, Inc.,

C 11–04049 JW, 2012 WL 1030031 (N.D. Cal. Mar. 22, 2012)...............................................9

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)...................................................................................................................4

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

904 F. Supp. 2d 1260 (M.D. Fla. 2012).....................................................................................9

Chapterhouse, LLC v. Shopify, Inc.,

No. 2:18-CV-00300-JRG, 2018 WL 6981828 (E.D. Tex. Dec. 11, 2018)................................6

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

135 S. Ct. 1920 (2015)...........................................................................................................5, 8

De La Vega v. Microsoft Corp.,

2020 WL 3528411 (W.D. Tex. Feb. 11, 2020)..........................................................................4

Dodots Licensing Sols. LLC v. Lenovo Holding Co., Inc.,

No. CV 18-098 (MN), 2018 WL 6629709 (D. Del. Dec. 19, 2018)........................................10

DSU Med. Corp. v. JMS Co.,

471 F.3d 1293 (Fed. Cir. 2006)..................................................................................................9

Enplas Display Device Corp. v. Seoul Semiconductor Co., Ltd.,

909 F.3d 398 (Fed. Cir. 2018)................................................................................................4, 7

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 3 of 17
TABLE OF AUTHORITIES

(continued)

Page(s)

iii

Fujitsu Ltd. v. Netgear Inc.,

620 F.3d 1321 (Fed. Cir. 2010)..................................................................................................5

Global-Tech Appliances, Inc. v. SEB S.A.,

563 U.S. 754 (2011)...................................................................................................................5

Horatio Wash. Depot Techs. LLC v. TOLMAR, Inc.,

No. 17-1986-LPS, 2018 WL 5669168 (D. Del. Nov. 1, 2018)..................................................6

Hypermedia Navigation LLC v. Google LLC,

No. 18-CV-06137-HSG, 2019 WL 1455336 (N.D. Cal. Apr. 2, 2019)...................................10

Intellectual Ventures I LLC v. Motorola Mobility LLC,

870 F.3d 1320 (Fed. Cir. 2017)..............................................................................................4, 7

Lormand v. US Unwired, Inc.,

565 F.3d 228 (5th Cir. 2009) .....................................................................................................4

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

No. 6:19-CV-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019)........................9, 10

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).........................................................................................................8

Proxyconn Inc. v. Microsoft Corp.,

No. SACV 11-1681-DOC-ANX, 2012 WL 1835680 (C.D. Cal. May 16, 2012)......................9

Xpoint Technologies, Inc. v. Microsoft Corp.,

730 F. Supp. 2d 349 (D. Del. 2010)...........................................................................................9

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 4 of 17
1

I. INTRODUCTION

The Complaint should be dismissed because it fails to plausibly allege that Defendants Dell 

Technologies, Inc., Dell Inc., EMC Corporation, and VMware, Inc. (collectively, “Defendants”)

have directly and indirectly infringed the claims of U.S. Patent No. 7,539,133 (the “’133 patent”), 

which involves queueing priority for transmitting packets based on whether they are destined for 

a congested egress node.

Plaintiff WSOU Investments, LLC fails to plausibly state a claim for direct infringement 

because Plaintiff has not alleged that Defendants’ accused products meet each and every limitation 

of the claims. In particular, Plaintiff fails to allege that Defendants meet the following three claim 

limitations that represent practically the entirety of the claimed method: (1) “determining an egress 

node associated with each of a plurality of packets of a traffic flow”; (2) “determining, for each 

packet, whether a congestion condition exists on the egress node”; and (3) “processing the packets 

. . . associated with egress nodes for which the congestion condition does not exist” such that those 

packets “have a different queueing priority . . . than packets associated with egress nodes for which 

the congestion condition exists.” Plaintiff offers only conclusory statements that “congestion 

conditions are detected” somewhere on a network, or that “packets are dropped” in some 

unspecified manner “[u]nder congestion.” D.I. 1 ¶¶ 20–21. Plaintiff fails to allege—as the claims 

require—that packets are processed with “different queueing priority” based specifically on 

whether they are associated with an egress node that is experiencing a “congestion condition.”

Plaintiff’s conclusory indirect infringement allegations also should be dismissed. For 

instance, they are based on Defendants’ purported knowledge of the patent only as of the date of 

service of the Complaint, which repeatedly has been held insufficient to meet the Iqbal/Twombly

standard. Plaintiff also fails to allege other key legal requirements, including specific intent for 

induced infringement and the lack of substantial non-infringing uses for contributory infringement.

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 5 of 17
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II. BACKGROUND

A. The ’133 Patent

Plaintiff filed the Complaint on June 2, 2020. Plaintiff asserts that Defendants directly and 

indirectly infringe at least claim 1 of the ’133 patent. D.I. 1 ¶¶ 23–24, 26–27. Claim 1 recites: 

A method for processing traffic in a load-balancing network comprising a plurality 

of nodes, comprising:

determining an egress node associated with each of a plurality of packets of a 

traffic flow received at an ingress node adapted for splitting the traffic flow into a 

plurality of traffic flow portions independent of the egress node by which each 

packet is assigned to exit the load-balancing network;

determining, for each packet, whether a congestion condition exists on the 

egress node; and

processing the packets such that packets associated with egress nodes for 

which the congestion condition does not exist have a different queuing priority 

within the load-balancing network than packets associated with egress nodes 

for which the congestion condition exists.

’133 patent, 16:28–42 (emphasis added).

The ’133 patent generally relates to “control[ling] queuing priority of packets traversing a 

load-balancing network.” Id. at 2:48–49. These data packets “enter” the network through “ingress 

nodes,” and are forwarded to “egress nodes,” from which the packets “leave” the network. Id. at 

2:52–55, 2:62–64. If the amount of traffic of packets at a particular egress node reaches a particular 

threshold, the egress node becomes “congested.” See id. at 1:43–2:2, 2:48–3:6, 15:12–44. 

As depicted in the flowchart of Figure 6 below, the claims of the ’133 patent involve 

determining the egress node with which packets at an ingress node are “associated” (or to where 

they are “destined”), determining whether the egress node is experiencing a “congestion 

condition,” and if so, “processing” the packets with a “different queueing priority” as compared to 

packets destined for an egress node that is not congested. Id. at 12:60–14:12.

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 6 of 17
3 

Determining the egress node to which the packets at an ingress node are associated can be 

achieved by including within “the packet header a destination MAC address indicative that the 

packet is destined for” the particular egress node. Id. at 13:24–27. In addition, a “process module” 

at the ingress node can be used to determine whether the associated egress node is congested. Id.

at 9:41–47; see also id. at 13:35–37. Packets “destined for a congested egress node” are then either 

“dropped with a higher probability” or are given a “lower queuing priority than packets associated 

with uncongested egress nodes.” Id. at 9:61–65, 3:7–21, 13:48–64. 

B. The Accused Products

Plaintiff alleges that Defendants’ products “incorporating VMware’s VeloCloud solutions 

and SD-WAN software, such as Dell EMC SD-WAN Edge 600 series products” (the “Accused 

Products”) infringe the ’133 patent claims. D.I. 1 ¶ 15. Plaintiff alleges that the “Accused Products 

can provide a cloud network service solution enabling sites to deploy enterprise-grade access to 

legacy and cloud applications over both private networks and Internet broadband.” Id. ¶ 16. 

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 7 of 17
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III. LEGAL STANDARD

A. Direct Infringement

A complaint should be dismissed under Federal Rules of Civil Procedure 12(b)(6) 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 nonconclusory facts that make liability “plausible,” meaning the facts they “allow[] the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 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.; 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 complaint must—at a 

minimum—plead facts that describe how the 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 contributory and induced infringement, Plaintiff must also plead facts to support 

an inference of each defendant’s “knowledge of the patent in suit and knowledge of patent 

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 8 of 17
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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). 

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. 

Affinity Labs, 2014 WL 2892285, 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.” Global-Tech 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

A. Plaintiff Fails to State a Claim for Direct Infringement

Plaintiff fails to plausibly allege that the Accused Products meet at least the following three 

limitations of the ’133 patent, which essentially constitute the entirety of the claimed method:

(1) “determining an egress node associated with each of a plurality of packets of a traffic flow”;

(2) “determining, for each packet, whether a congestion condition exists on the egress node”; and 

(3) “processing the packets . . . associated with egress nodes for which the congestion condition 

does not exist” such that those packets “have a different queueing priority . . . than packets 

associated with egress nodes for which the congestion condition exists.”

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 9 of 17
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The Iqbal/Twombly standard requires more than a bare-bones allegation that alleged 

products, like those involving the particular technology in this case, “meet each and every element 

of at least one claim of the asserted patent.” See, e.g., Chapterhouse, LLC v. Shopify, Inc., No. 

2:18-CV-00300-JRG, 2018 WL 6981828, at *2–3 (E.D. Tex. Dec. 11, 2018) (granting dismissal 

as to patent claims involving “hardware and software” technology relating to a “transaction receipt 

system,” and holding that “[w]hile screenshots may be useful in laying out a plausible allegation 

of patent infringement, Plaintiff must further allege how the screenshots meet the text of the 

exemplary claim in order to lay out sufficient factual allegations which might permit the Court to 

find that the Iqbal/Twombly standard is met.”); see also Horatio Wash. Depot Techs. LLC v. 

TOLMAR, Inc., No. 17-1986-LPS, 2018 WL 5669168, at *11 (D. Del. Nov. 1, 2018) (“In order to 

adequately plead direct (and indirect and willful) infringement, a plaintiff needs to have pleaded 

facts that plausibly indicate that the accused products contain each of the limitations found in the 

claim.” (emphasis added)). 

Here, the Complaint offers no allegations at all that the Accused Products meet these three 

key claim limitations. The Complaint is silent as to whether the Accused Products determine an 

egress node that is “associated” with packets at an ingress node. In addition, Plaintiff never alleges 

that the Accused Products determine “whether a congestion condition exists” on an “egress node.” 

Nor does Plaintiff allege that packets are ever dropped or “process[ed]” with a “different queuing 

priority” based on a determined congestion condition at a particular egress node. 

At most, Plaintiff vaguely states that “congestion conditions are detected” somewhere on 

a network, rather than accusing the Accused Products of determining a congestion condition at an 

egress node specifically. D.I. 1 ¶ 20. Likewise, Plaintiff broadly states that “packets are dropped” 

“[u]nder congestion,” but provides no further information about what precisely is congested. Id.

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 10 of 17
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¶ 21. In other words, Plaintiff never alleges what the ’133 patent claims require: that packets are 

processed with “different queueing priority” based specifically on whether an associated egress 

node is congested. 

Thus, because Plaintiff fails to plausibly allege that Defendants have met each and every 

limitation of the ’133 patent claims, Plaintiff’s claim for direct infringement should be dismissed.

B. Plaintiff Fails to State a Claim for Induced and Contributory Infringement 

Plaintiff’s indirect infringement claims are also 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 failed to plead any 

knowledge of the patent or knowledge of infringement prior to the filing of this action. Plaintiff 

also fails to plead a specific intent to induce infringement. And, Plaintiff has not pled, and cannot 

plead, that there are no substantial noninfringing 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 (citations 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. 

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 11 of 17
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2. Plaintiff Fails to Allege the Requisite Knowledge for Indirect 

Infringement

Plaintiff’s indirect infringement claims also fail because they do not plead the required 

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

for indirect infringement”). 

Despite this clear requirement, Plaintiff’s sole allegation of knowledge of the patent is a 

conclusory statement that “Defendants have received notice and actual or constructive knowledge 

of the ‘133 Patent since at least the date of service of this Complaint.” D.I. 1 ¶ 25 (emphasis 

added).1

 This Court has rejected identical allegations of knowledge. For example, in Parus this 

Court dismissed indirect infringement claims where plaintiff’s only allegation of knowledge of the 

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

of the original complaint.” Parus, No. 6:19-cv-432, at D.I. 28 (Amended Compl.) (emphasis 

added), ¶ 44; see id., at Feb. 20, 2020 Text Order GRANTING D.I. 54 (W.D. Tex. Feb. 20, 2020) 

(dismissing indirect infringement claims). Like the allegations in Parus, Plaintiff fails to allege 

pre-suit knowledge and thus fails to state a claim for indirect infringement. See id.; Aguirre, 2011 

1 Plaintiff’s allegation of knowledge of infringement is likewise deficient as it alleges such 

knowledge only “[s]ince at least the date of service of this Complaint.” D.I. 1 ¶¶ 26–27; see, e.g., 

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) (dismissing indirect infringement claims where the only allegations 

of knowledge of infringement were that “[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 of the claims of the ’431 Patent” (D.I. 28 (Amended Compl.), ¶ 44)).

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 12 of 17
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WL 2471299, at *3; Brandywine Commc’ns Techs., LLC v. T-Mobile USA, Inc., 904 F. Supp. 2d 

1260, 1268–69 (M.D. Fla. 2012) (“Also, because 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.”).2

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)) (emphasis added). Plaintiff’s allegations of specific intent amount 

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

advertising and promotional materials and some website citations. See D.I. 1 ¶ 26. Such 

conclusory allegations fail to present facts that demonstrate: (1) Defendants knew that the alleged 

acts infringed, and (2) Defendants knew that the promotion of their products would induce or 

encourage others to infringe the ’133 patent. See Addiction, 620 F. App’x at 938 (“[S]imply 

2 Other courts similarly have held that “knowledge after filing of the present action is not 

sufficient for pleading the requisite knowledge for indirect infringement.” Xpoint Technologies, 

Inc. v. Microsoft Corp., 730 F. Supp. 2d 349, 357 (D. Del. 2010); Avocet Sports Tech., Inc. v. 

Garmin Int’l, Inc., C 11–04049 JW, 2012 WL 1030031, at *4 (N.D. Cal. Mar. 22, 2012); 

Proxyconn Inc. v. Microsoft Corp., No. SACV 11-1681-DOC-ANX, 2012 WL 1835680, at *5 

(C.D. Cal. May 16, 2012); Brandywine, 912 F. Supp. 2d at 1345 (“The weight of authority 

addressing the knowledge required for indirect infringement . . . requires a plaintiff to allege that 

defendant had pre-suit knowledge of the patents-in-suit.”).

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 13 of 17
10

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 “Plaintiffs 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 *2.3

Plaintiff’s inducement claim should be dismissed because the 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) (citations omitted). 

Plaintiff has not done so and cannot do so. Plaintiff’s only allegation on these elements is a 

conclusory statement that repeats the legal elements. See D.I. 1 ¶ 27. 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 

3 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 

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-00480-ADA Document 32 Filed 10/05/20 Page 14 of 17
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[Defendant] was aware of the patents or facts to suggest that the [Accused Product] it supplied had 

no substantial noninfringing use”). Plaintiff’s failure to raise a plausible inference of no substantial 

noninfringing uses and materiality 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 Plaintiff’s Complaint in its entirety for failure to plausibly state a claim for relief, 

without leave to amend. Pursuant to L.R. CV-7(h), Defendants request an oral hearing on the

foregoing motion.

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 15 of 17
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Dated: October 5, 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

Dell Technologies Inc., Dell Inc., 

EMC Corporation, and VMware, Inc.

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 16 of 17
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 5th day of October 2020, the foregoing was filed 

electronically in compliance with Local Rule CV-5(b)(1) and served via the Court’s electronic 

filing system on all counsel who have consented to electronic service:

Brett Aaron Mangrum, Attorney for WSOU

brett@etheridgelaw.com

Jeffrey Huang, Attorney for WSOU

jhuang@etheridgelaw.com

Ryan Scott Loveless, Attorney for WSOU 

ryan@etheridgelaw.com

Travis Lee Richins, Attorney for WSOU

travis@etheridgelaw.com

James L. Etheridge, Attorney for WSOU

jim@etheridgelaw.com

/s/ Barry K. Shelton

Barry K. Shelton

Case 6:20-cv-00480-ADA Document 32 Filed 10/05/20 Page 17 of 17