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-00485-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT

FOR FAILURE TO STATE A CLAIM

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 1 of 19
i

TABLE OF CONTENTS

Page

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

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

A. The ’309 Patent .........................................................................................................2

B. Plaintiff’s Infringement Allegations..........................................................................3

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

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

B. Induced and Contributory Infringement....................................................................5

IV. ARGUMENT.......................................................................................................................6

A. Plaintiff Fails to State a Claim for Direct Infringement............................................6

B. Plaintiff Fails to State a Claim for Induced and Contributory Infringement.............8

1. Plaintiff’s Indirect Infringement Claims Fail Without Direct Infringement......9

2. Plaintiff Fails to Allege the Requisite Knowledge for Indirect 

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

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

Infringement.....................................................................................................11

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

Uses for Contributory Infringement.................................................................12

V. CONCLUSION..................................................................................................................13

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 2 of 19
ii

TABLE OF AUTHORITIES

Page(s)

CASES

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

620 F. App’x 934 (Fed. Cir. 2015) ......................................................................................5, 12

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, 12

Aguirre v. Powerchute Sports, LLC,

No. SA-10-CV-0702 XR, 2011 WL 2471299 (W.D. Tex. June 17, 2011) ...............................9

Artrip v. Ball Corp.,

735 F. App’x 708 (Fed. Cir. 2018) ....................................................................................12, 13

Ashcroft v. Iqbal,

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

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)...................................................................................11

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, 9

De La Vega v. Microsoft Corp.,

2020 WL 3528411 (W.D. Tex. Feb. 11, 2020)..........................................................................5

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

No. CV 18-098 (MN), 2018 WL 6629709 (D. Del. Dec. 19, 2018)........................................12

DSU Med. Corp. v. JMS Co.,

471 F.3d 1293 (Fed. Cir. 2006)................................................................................................11

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

C.A. No. 19-1239-CFC, 2020 WL 4365809 (D. Del. July 30, 2020)......................................10

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

909 F.3d 398 (Fed. Cir. 2018)................................................................................................5, 9

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 3 of 19
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)...................................12

Intellectual Ventures I LLC v. Motorola Mobility LLC,

870 F.3d 1320 (Fed. Cir. 2017)..............................................................................................5, 9

Irons v. City of Dallas,

2012 WL 1986585 (N.D. Tex. Apr. 4, 2012) ............................................................................7

Lormand v. US Unwired, Inc.,

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

O’Malley v. Brown Bros. Harriman & Co.,

No. SA-19-CV-0010-JKP, 2020 WL 1033658 (W.D. Tex. Mar. 3, 2020)................................7

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

No. 6:14-CV-1017-ORL-22, 2015 WL 1246500 (M.D. Fla. Mar. 16, 2015)..........................10

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

No. 6:19-CV-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019)......................11, 12

Parus Holdings Inc. v. Apple Inc.,

No. 6:19-cv-432, D.I. 54 (W.D. Tex. Feb. 20, 2020) ..........................................................9, 10

Proxyconn Inc. v. Microsoft Corp.,

No. SACV 11-1681 DOC ANX, 2012 WL 1835680 (C.D. Cal. May 16, 2012) ....................10

Simplivity Corp. v. Springpath, Inc.,

No. CV 4:15-13345-TSH, 2016 WL 5388951 (D. Mass. July 15, 2016)................................11

Tuchman v. DSC Commc’ns Corp.,

14 F.3d 1061 (5th Cir. 1994) .....................................................................................................7

VLSI Tech. LLC v. Intel Corp.,

C.A. No. 18-966-CFC, 2019 WL 1349468 (D. Del. Mar. 26, 2019).......................................10

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 4 of 19
I. INTRODUCTION

The First Amended Complaint (“Amended 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. 7,636,309 (the “’309 patent”), which relates to splitting traffic flows in a network 

according to a “split ratio vector.”

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

because it has not alleged that Defendants’ accused products meet each and every limitation of the 

claims. For instance, the claims specify that the “split ratio vector” used to split the traffic flows 

is “at least based in part on 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.” Plaintiff, however, merely alleges “on information and belief” that the accused products 

“use a split ratio vector.” D.I. 35 (“Am. Compl.”) ¶ 21. But Plaintiff offers only a conclusory 

sentence and a website screenshot that in no way hint, let alone support a plausible inference, that 

the products split flows specifically according to the “split ratio vector,” or any other ratio relating 

to the “mean traffic rates” of “cumulative flows.” Furthermore, Plaintiff fails to allege that the 

accused products thereafter “combin[e] at least one of the sub-flows of each of at least two of the 

plurality of traffic flows” and “rout[e] the combined packets or bytes on one of the paths.” Instead, 

Plaintiff simply alleges without any explanation that “packets can be combined.” Id. ¶ 19 

(emphasis added).

The indirect infringement allegations fare no better. Plaintiff’s original complaint alleged 

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

is insufficient to sustain a claim of indirect infringement. D.I. 1 (“Original Complaint”). The 

Amended Complaint tries—and fails—to circumvent that clear rule by alleging knowledge based 

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 5 of 19
2

on the filing of the Original Complaint. Neither basis is sufficient; Plaintiff still has not adequately 

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

elements of induced and contributory infringement.

II. BACKGROUND

A. The ’309 Patent

Plaintiff filed the Amended Complaint on October 19, 2020. Plaintiff asserts that 

Defendants directly and indirectly infringe at least claim 1 of the ’309 patent. Am. Compl. ¶¶ 22–

27. Claim 1 recites:

A method of processing traffic flows at a node in a network, comprising the steps 

of:

obtaining by the node a plurality of traffic flows, each of the traffic flows 

comprising multiple packets or bytes;

splitting by the node each of the plurality of traffic flows into at least two sub-flows, 

wherein each of the at least two sub-flows comprises a portion of the multiple 

packets or bytes from its respective traffic flow; and

routing by the node the packets or bytes of the at least two sub-flows respectively 

on at least two paths in the network;

wherein the routing step further comprises combining at least one of the sub-flows 

of each of at least two of the plurality of traffic flows and routing the combined 

packets or bytes on one of the paths;

wherein each traffic flow between the node and a given destination node is split 

based on a given split ratio vector into a plurality of sub-flows corresponding to 

respective ones of a plurality of paths between the node and the given destination 

node, and further wherein the given split ratio vector is configured such that the 

portion of the multiple packets or bytes assigned to each of the plurality of subflows is based at least in part on 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.

’309 patent, 15:30–56 (emphasis added).

The ’309 patent relates to splitting traffic flows onto multiple paths of a network. Id. at 

3:5–8. A “traffic flow” “refers to a group (e.g., two or more) of packets that are to be routed in [a]

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 6 of 19
3 

network.” Id. at 2:63–65. A “path” “refers to a set of two or more nodes and one or more links 

between the nodes,” “nodes” are “elements in the network [that are] capable of transferring 

packets,” and “links” are “connections between the nodes.” Id. at 1:67–3:4. 

The specification states that the claims involve “intra-flow splitting,” which is depicted 

below in Figure 1B. Id. at 4:8–30. X1 and X2 represent traffic flows that are to be split onto one 

of two paths (R1-R2-R3-R6 or R1-R4-R5-R6). Id. at 4:9–12, 4:15–19. Each traffic flow is split 

according to a “split ratio vector,” which is a mathematical equation represented as “q1” and “1-

q1.” Id. at 4:15–19. Claim 1 recites that the “split ratio vector” is “based at least in part on a ratio 

between [1] a mean traffic rate of a cumulative flow on the respective corresponding path and [2] a 

sum of mean traffic rates of cumulative flows on the plurality of paths.” Id. at 15:51–56.

After the traffic flows are split into “sub-flows,” “at least one of the sub-flows of each of 

at least two of the plurality of traffic flows” are “combin[ed],” and then the “combined” sub-flows 

are “rout[ed]” together “on one of the paths” in the network. Id. at 15:38–45. 

B. Plaintiff’s Infringement Allegations

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

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

Products”) infringe the ’309 patent claims. Am. Compl. ¶ 15. Plaintiff alleges that the Accused 

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 7 of 19
4

Products “have a variety of features and capabilities including Dynamic Multipath Optimization 

(DPMO) technology,” and can “process[] . . . traffic flows at a node in a network.” Id. ¶ 16. 

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

sentences that parrot the legal elements and a few website links that fail to support Plaintiff’s 

claims. See Original Compl. ¶¶ 25–26. Those allegations completely failed to allege that 

Defendants had knowledge of the patent and knowledge of the infringement before Plaintiff filed 

suit. See id. 

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

Plaintiff now alleges knowledge of the patent based on the filing of the Original Complaint. See

Am. Compl. ¶ 25. 

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 “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 

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 8 of 19
5

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 

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)).

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 9 of 19
6

IV. ARGUMENT

A. Plaintiff Fails to State a Claim for Direct Infringement

Plaintiff fails to plausibly allege that the Accused Products meet each and every limitation 

of the ’309 patent claims, including the following key claim limitations: (1) splitting traffic flows 

according to a “split ratio vector,” which is “based at least in part on 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”; and (2) “combining at least one of the sub-flows of 

each of at least two of the plurality of traffic flows and routing the combined packets or bytes on 

one of the paths.”

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)). 

Split Ratio Vector. Here, the “split ratio vector” limitation is particularly significant 

because, during prosecution, the applicant overcame an obviousness rejection and obtained 

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 10 of 19
7

allowance specifically by following the examiner’s suggestion to amend the claim to add the 

limitation. Rosenthal Decl., Ex. A (6/5/09 Response and Amendment) at 2, 8 (“Applicants believe 

that this amendment alone is sufficient to overcome the present § 103 rejections . . . Applicants 

have further amended the independent claims in the manner suggested by the examiner in the 

aforementioned telephone interviews.”); see also Ex. B (8/12/09 Examiner Interview Summary) 

at 1–5.

In the Amended Complaint, however, Plaintiff fails to set forth any plausible basis that the 

Accused Products meet this key claim limitation. Plaintiff simply alleges “[o]n information and 

belief” that the “Accused Products use a split ratio vector.” Am. Compl. ¶ 21. But Plaintiff offers 

no facts at all to support this assertion. “[B]asing a claim on information and belief,” however, 

“does not permit [such] reliance ‘on speculation and conclusory allegations.’” O’Malley v. Brown 

Bros. Harriman & Co., No. SA-19-CV-0010-JKP, 2020 WL 1033658, at *8 (W.D. Tex. Mar. 3, 

2020) (quoting Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994)); see also

Irons v. City of Dallas, 2012 WL 1986585, at *4 (N.D. Tex. Apr. 4, 2012) (holding that allegations 

made on “information and belief,” “[w]ithout any facts to support” them, are “no more than

conclusory allegations” that are insufficient under the Iqbal/Twombly standard).

Instead, Plaintiff vaguely states that 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.” Am. Compl. ¶ 21. But neither this bare assertion nor 

Plaintiff’s website screenshot provides even a hint that the Accused Products split traffic flows 

according to anything resembling a “split ratio vector,” or a “ratio between” (1) “a mean traffic 

rate of a cumulative flow on the respective corresponding path” and (2) “a sum of mean traffic 

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 11 of 19
8

rates of cumulative flows on the plurality of paths.” Plaintiff merely assumes without any basis 

that, simply because Plaintiff believes the Accused Products may “decide which paths should be 

used for the flow,” they must be doing so by using this specific “split ratio vector” that is claimed. 

Id. ¶ 21. This is nothing more than a conclusory allegation that cannot possibly satisfy the 

Iqbal/Twombly standard.

Combining Sub-Flows. Plaintiff also fails to allege that, after any such flow splitting 

(using the split ratio vector or otherwise), the Accused Products specifically “combin[e] at least 

one of the sub-flows of each of at least two of the plurality of traffic flows” that have been split 

“and rout[e] the combined packets or bytes on one of the paths.” At most, Plaintiff broadly 

concludes that “packets can be combined,” without any additional explanation. Id. ¶ 19 (emphasis 

added). But Plaintiff does not allege that the Accused Products actually split traffic flows into 

“sub-flows” (by using a split ratio vector or otherwise), “combin[e]” those “sub-flows of each of 

at least two . . . traffic flows,” and then “rout[e]” those “combined packets . . . on one of the 

paths”—as the ’309 patent claims require. And neither of the two screenshots on which Plaintiff 

relies even suggests that the Accused Products carry out any one of these steps. Id.

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

limitation of the ’309 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 deficient and should be dismissed. As an initial 

matter, Plaintiff’s failure to plausibly allege direct infringement precludes its claims of induced 

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

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

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

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 12 of 19
9

Plaintiff has not pled, and cannot plead, that there are no substantial non-infringing uses. Each of 

these failures independently warrants dismissal of Plaintiff’s indirect infringement allegations. 

1. Plaintiff’s Indirect Infringement Claims Fail Without Direct 

Infringement

Plaintiff’s indirect infringement allegations are insufficient as a matter of law as Plaintiff 

fails to plausibly allege direct infringement. See supra § IV.A. It is axiomatic that “‘[i]n order to 

succeed on a claim of inducement, the patentee must show, first that there has been direct 

infringement.’” Enplas, 909 F.3d at 407 (citation omitted); see also Intellectual Ventures, 870 

F.3d at 1329 (“A finding of direct infringement is predicate to any finding of indirect 

infringement . . . .”). As a result, Plaintiff has also failed to adequately plead its claims of induced 

and contributory infringement, and these claims should be dismissed. 

2. Plaintiff Fails to Allege the Requisite Knowledge for Indirect 

Infringement

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

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

135 S. Ct. at 1926. As courts in this District have held, the knowledge requirements for indirect 

infringement require pre-suit knowledge. See Aguirre v. Powerchute Sports, LLC, No. SA-10-

CV-0702 XR, 2011 WL 2471299, at *3 (W.D. Tex. June 17, 2011) (holding that reliance “on 

knowledge of [plaintiff’s] patent after the lawsuit was filed . . . is insufficient to plead the requisite 

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

allegations of knowledge based on an original complaint are not enough to overcome a motion to 

dismiss. See Parus Holdings Inc. v. Apple Inc., No. 6:19-cv-432, D.I. 54 (W.D. Tex. Feb. 20, 

2020) (dismissing indirect infringement claims where plaintiff’s only allegation of knowledge 

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

original complaint” and “[b]y the time of trial, Defendant Apple will have known and intended 

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 13 of 19
10

(since receiving such notice) that their continued actions would actively induce the infringement”) 

(quoting D.I. 28 (Am. Compl.) ¶ 44 (emphasis added)).

The Amended Complaint includes an erroneous footnote that attempts to distinguish 

Aguirre by asserting that “Delaware courts have since rejected this rule.” Am. Compl. ¶ 25 n.1. 

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

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

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

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

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

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

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

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

to do so. See, e.g., Parus, No. 6:19-cv-432, D.I. 54 (W.D. Tex. Feb. 20, 2020). 

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

filing of its original complaint asserting the same patent, which it dismissed: “Defendants had 

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

Defendants received notice and actual or constructive knowledge of their infringement of the 

patent-in-suit since at least the date of service of the original Complaint.” Am. Compl. ¶ 25 

(emphasis added). Similar to the allegations in Parus, WSOU’s allegations of knowledge are 

limited to references to an original complaint and thus fail to state a claim for indirect infringement. 

See id.; Parus, No. 6:19-cv-432, D.I. 54 (W.D. Tex. Feb. 20, 2020).

1

 Allowing Plaintiff to avoid 

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

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

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

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 14 of 19
11

the pre-suit knowledge requirement by filing a complaint, then simply amending the complaint to 

allege knowledge based on the original complaint, would be at odds with the knowledge 

requirement itself.2 And, it would elevate form over substance and encourage litigants to use such 

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

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

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

should be dismissed.

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

Infringement

Plaintiff also entirely fails to plead specific intent in support of its inducement claim. 

Allegations of specific intent require factual “‘evidence of culpable conduct, directed to 

encouraging another’s infringement, not merely that the inducer had knowledge of the direct 

infringer’s activities.’” Parity Networks, LLC v. Cisco Sys., Inc., No. 6:19-CV-00207-ADA, 2019 

WL 3940952, at *2 (W.D. Tex. July 26, 2019) (quoting DSU Med. Corp. v. JMS Co., 471 F.3d 

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

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

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

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

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

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

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

1268–69 (M.D. Fla. 2012) (“[B]ecause notice of the patent is necessarily provided by a complaint, 

finding that a complaint provides sufficient knowledge for induced infringement would vitiate the 

Supreme Court’s holding in Global–Tech that an allegation of knowledge of the patent is required 

to state a claim for induced infringement.”); Simplivity Corp. v. Springpath, Inc., No. CV 4:15-

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

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

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

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 15 of 19
12

advertising, promotional materials, and a few website citations. See Am. Compl. ¶ 26. Such 

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

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

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

recit[ing] the legal conclusion that Defendants acted with specific intent” fails to plead “facts that 

would allow a court to reasonably infer that Defendants had the specific intent to induce 

infringement.”); Affinity Labs, 2014 WL 2892285, at *7, *21 (finding Plaintiff’s “generalized 

allegations that Toyota induced others to infringe the Asserted Patents through its marketing and 

sales tactics are [] insufficient”). To support specific intent, Plaintiff must include specific 

allegations mapping the advertisement or promotion to the performance of the claimed steps of the 

patent—i.e., “evidence of culpable conduct, direct to encouraging another’s infringement.” Parity, 

2019 WL 3940952, at *2.3

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

entirely silent on a key requirement of induced infringement.

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

Plaintiff’s contributory infringement allegations also fail because Plaintiff did not “‘plead 

facts that allow an inference that the components sold or offered for sale have no substantial noninfringing uses.’” Artrip v. Ball Corp., 735 F. App’x 708, 713 (Fed. Cir. 2018) (citation omitted). 

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

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-00485-ADA Document 38 Filed 10/30/20 Page 16 of 19
13

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

Am. Compl. ¶ 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 [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 non-infringing uses is fatal to its 

contributory infringement claim, and as such it should be dismissed.

V. CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court grant their motion 

and dismiss Plaintiff’s Amended 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-00485-ADA Document 38 Filed 10/30/20 Page 17 of 19
14

Dated: October 30, 2020 By: /s/ Barry K. Shelton

Barry K. Shelton

Texas State Bar No. 24055029

bshelton@sheltoncoburn.com

SHELTON COBURN LLP

311 RR 620, Suite 205

Austin, TX 78734-4775 

Telephone: 512.263.2165

Facsimile: 512.263.2166 

Benjamin Hershkowitz

bhershkowitz@gibsondunn.com

Brian A. Rosenthal

brosenthal@gibsondunn.com 

Allen Kathir

akathir@gibsondunn.com

Kyanna Sabanoglu

ksabanoglu@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166-0193 

Telephone: 212.351.4000

Facsimile: 212.351.4035 

Y. Ernest Hsin

ehsin@gibsondunn.com

Jaysen S. Chung

jschung@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105-0921

Telephone: 415.393.8200

Facsimile: 415.393.8306

Ryan K. Iwahashi

riwahashi@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

1881 Page Mill Road

Palo Alto, CA 94304-1211

Telephone: 650.849.5300

Facsimile: 650.849.5333

Attorneys for Defendants

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 18 of 19
15

CERTIFICATE OF SERVICE

The undersigned certifies that on October 30, 2020, all counsel of record who are deemed 

to have consented to electronic service are being served with a copy of this document through the 

Court’s CM/ECF system under Local Rule CV-5(b)(1). 

/s/ Barry K. Shelton 

Barry K. Shelton

Case 6:20-cv-00485-ADA Document 38 Filed 10/30/20 Page 19 of 19