1

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.

§

§

§

§

§

§

§

§

§

§

§

§

NO. 6:20-cv-485-ADA

JURY TRIAL DEMANDED

FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT

Plaintiff WSOU Investments, LLC d/b/a Brazos Licensing and Development (“Brazos” or 

“Plaintiff”), by and through its attorneys, files this First Amended Complaint (“Amended 

Complaint” or “Complaint”) for Patent Infringement against Dell Technologies Inc., Dell Inc., 

EMC Corporation, and VMWare, Inc. (collectively, “Defendants”) and alleges:

NATURE OF THE ACTION

1. This is a civil action for patent infringement arising under the Patent Laws of the 

United States, 35 U.S.C. §§ 1, et seq., including §§ 271, 281, 284, and 285.

THE PARTIES

2. Brazos is a limited liability corporation organized and existing under the laws of 

Delaware, with its principal place of business at 605 Austin Avenue, Suite 6, Waco, Texas 76701.

3. On information and belief, defendant Dell Technologies Inc. (“Dell”) is a Delaware 

corporation with a principal place of business at One Dell Way, Round Rock, Texas 78682.

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 1 of 15
2

4. On information and belief, defendant Dell Inc. is a Delaware corporation with a 

principal place of business at One Dell Way, Round Rock, Texas 78682. Dell Inc. is wholly owned 

by its corporate parent, Dell.

5. On information and belief, defendant EMC Corporation (“EMC”) is a 

Massachusetts corporation with a principal place of business at One Dell Way, Round Rock, Texas 

78682. EMC Corporation is wholly owned by its corporate parent, Dell Technologies Inc.

6. Upon information and belief, VMware, Inc. (“VMWare”) is a Delaware corporation 

with two established places of business in this District, including two in Austin, Texas with over 

700 employees. 

7. Upon information and belief, VMWare was acquired by EMC in 2004 and 

conducted an initial public offering of Class A common stock in August 2007. On or around 

September 2016, Dell acquired by EMC. As a result, EMC became a wholly-owned subsidiary of 

Dell, and VMWare became an indirectly-held, majority-owned subsidiary of Dell. Under the rules 

of the New York Stock Exchange, VMWare is a controlled company. As of January 31, 2020, Dell 

controlled approximately 80.9% of VMWare’s outstanding common stock, including 31 million 

shares of its Class A common stock and all of it Class B common stock.

JURISDICTION AND VENUE

8. This is an action for patent infringement which arises under the Patent Laws of the 

United States, in particular, 35 U.S.C. §§ 271, 281, 284, and 285.

9. This Court has jurisdiction over the subject matter of this action under 28 U.S.C.

§§ 1331 and 1338(a).

10. This Court has specific and general personal jurisdiction over each defendant

pursuant to due process and/or the Texas Long Arm Statute, because each defendant has committed 

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 2 of 15
3

acts giving rise to this action within Texas and within this judicial district. The Court’s exercise of 

jurisdiction over each defendant would not offend traditional notions of fair play and substantial 

justice because each defendant has established minimum contacts with the forum. For example, 

on information and belief, each defendant has committed acts of infringement in this judicial 

district, by among other things, selling and offering for sale products that infringe the asserted 

patent, directly or through intermediaries, as alleged herein.

11. Venue in the Western District of Texas is proper pursuant to 28 U.S.C. §§1391

and/or 1400(b). Each defendant has established places of business in the Western District of Texas. 

Each defendant is registered to do business in Texas. Upon information and belief, each defendant 

has transacted business in this District and has committed acts of infringement in this District. 

COUNT ONE - INFRINGEMENT OF 

U.S. PATENT NO. 7,636,309

12. Brazos re-alleges and incorporates by reference the preceding paragraphs of this 

Complaint.

13. On December 22, 2009, the United States Patent and Trademark Office duly and 

legally issued U.S. Patent No. 7,636,309 (“the ‘309 Patent”), entitled “Multi-Path Routing Using 

Intra-Flow Splitting.” A true and correct copy of the ‘309 Patent is attached as Exhibit A to this 

Complaint.

14. Brazos is the owner of all rights, title, and interest in and to the ‘309 Patent, 

including the right to assert all causes of action arising under the ‘309 Patent and the right to any 

remedies for the infringement of the ‘309 Patent.

15. Defendants make, use, sell, offer for sale, import, and/or distribute in the United 

States, including within this judicial district, products such as, but not limited to, cloud-related

solutions, including but not limited to, devices incorporating VMware’s VeloCloud solutions and 

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 3 of 15
4

SD-WAN software, such as Dell EMC SD-WAN Edge 600 series products (collectively, the 

“Accused Products”).

https://www.vmware.com/company/acquisitions/velocloud.html

https://www.dell.com/learn/us/en/15/solutions/vmware-vcloud

https://www.delltechnologies.com/en-us/networking/sd-wan-solution/index.htm

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 4 of 15
5

16. The Accused Products have a variety of features and capabilities including 

Dynamic Multipath Optimization (DMPO) technology. VMware SD-WAN processing of traffic 

flows at a node in a network can provide packet level redirection. This allows one or multiple 

physical WAN links to be abstracted and virtualized packet-by-packet. Path selection and 

remediation techniques can be applied in virtually real-time. Dynamic load-sharing maintains endcustomer application performance quality, regardless of the reliability or consistency of the 

individual physical link.

https://www.velocloud.com/content/dam/digitalmarketing/velocloud/en/documents/case-studydell-emc.pdf

https://technologyleadership.academy/wp-content/uploads/2019/08/SDWAN-velocloud-benefitsDynamicMultipathOptimization.pdf

17. DMPO can perform continuous, uni-directional measurements of performance 

metrics (for example, loss, latency, and jitter) of every packet obtained from multiple flows on 

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 5 of 15
6

every tunnel between any two DMPO endpoints, VeloCloud Edge (VCE), or VeloCloud Gateway 

(VCG).

https://technologyleadership.academy/wp-content/uploads/2019/08/SDWAN-velocloud-benefitsDynamicMultipathOptimization.pdf

https://technologyleadership.academy/wp-content/uploads/2019/08/SDWAN-velocloud-benefitsDynamicMultipathOptimization.pdf

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 6 of 15
7

18. The Accused Products perform splitting traffic flows using application-aware perpacket steering based on Business Policy configurations and real-time conditions to route the 

packets on the best available path. Packets of multiple applications may be steered on a per-packet 

basis onto one or more DMPO tunnels. 

https://www.vmware.com/company/acquisitions/velocloud.html

https://www.velocloud.com/products/features

https://www.velocloud.com/content/dam/digitalmarketing/velocloud/en/documents/solutionoverview-service-providers.pdf

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 7 of 15
8

https://technologyleadership.academy/wp-content/uploads/2019/08/SDWAN-velocloud-benefitsDynamicMultipathOptimization.pdf

https://technologyleadership.academy/wp-content/uploads/2019/08/SDWAN-velocloud-benefitsDynamicMultipathOptimization.pdf

19. The Accused Products can provide a branch networking solution that combines the 

economics and flexibility of multiple WAN transports. Packets belonging to multiple flows can be 

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 8 of 15
9

received through multiple branches. The packets can be combined and steered on a per-packet 

basis on different DMPO tunnels.

https://www.velocloud.com/content/dam/digitalmarketing/velocloud/en/documents/solutionoverview-service-providers.pdf

https://blogs.vmware.com/velocloud/2018/08/02/healthcare-technology-part-3-why-providerssay-i-gotta-have-sd-wan/

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 9 of 15
10

https://technologyleadership.academy/wp-content/uploads/2019/08/SDWAN-velocloud-benefitsDynamicMultipathOptimization.pdf

20. The Accused Products can perform per-packet load balancing to maintain even 

traffic flow through the branches of the network. Per-packet link steering can be performed 

automatically, for example, based on measured performance metrics, intelligent application 

learning, the business priority of the application, and link cost. 

https://technologyleadership.academy/wp-content/uploads/2019/08/SDWAN-velocloud-benefitsDynamicMultipathOptimization.pdf

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 10 of 15
11

https://www.velocloud.com/products/features

21. The Accused Products can perform per-packet load-balancing of packets belonging 

to a traffic flow across all available paths to the destination. On information and belief, the Accused 

Products use a split ratio vector in the manner claimed. For example, they 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.

https://blogs.vmware.com/velocloud/2018/08/02/healthcare-technology-part-3-why-providerssay-i-gotta-have-sd-wan/

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 11 of 15
12

22. In view of preceding paragraphs, each and every element of at least claim 1 of the 

‘309 Patent is found in the Accused Products.

23. Defendants continue to directly infringe at least one claim of the ‘309 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 Brazos.

24. Upon information and belief, each and every element of at least one claim of the 

patent-in-suit is performed or practiced by Defendants at least through Defendants’ own use and 

configuration of its own Accused Products, and/or through Defendants’ own testing and 

configuration of its own Accused Products, and/or through Defendants’ providing services for its 

Accused Products, including but not limited to providing installation, deployment, support and 

configuration of its Accused Products.

25. Defendants had knowledge of their infringement of the patent-in-suit before the 

filing of this Amended Complaint.1 Defendants received notice and actual or constructive 

1 Dell filed a motion to dismiss that is mooted by this Amended Complaint. Dell’s motion cites a 

WDTX case (which relies authority from the District of Delaware) for the proposition that 

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

knowledge for indirect infringement. See Aguirre v. Powerchute Sports, LLC, No. SA-10-CV0702 XR, 2011 WL 2471299, at *3 (W.D. Tex. June 17, 2011) (citing Xpoint Techs. v. Microsoft 

Corp., 730 F.Supp.2d 349 (D. Del. 2010)). Several Delaware courts have since rejected this rule 

because there is no statutory basis to support it and because there is no purpose served by the 

formality of requiring the plaintiff 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. See 

Walker Digital, LLC v. Facebook, Inc., 852 F. Supp. 2d 559, 566 (D. Del. 2012) (“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 postknowledge 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.”); see also IOENGINE, 

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 12 of 15
13

knowledge of their infringement of the patent-in-suit since at least the date of service of the original 

Complaint. 

26. Since before the filing of this Amended Complaint, through its actions, Defendants

have actively induced product makers, distributors, retailers, and/or end users of the Accused 

Products to infringe the ‘309 Patent throughout the United States, including within this judicial 

district, by, among other things, 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. Examples of 

such advertising, promoting, and/or instructing include the documents at:

• https://www.dell.com/learn/us/en/15/solutions/vmware-vcloud

• https://www.delltechnologies.com/en-us/networking/sd-wan-solution/index.htm

• https://www.dell.com/en-us/work/shop/povw/sd-wan-edge-600

• https://www.velocloud.com/content/dam/digitalmarketing/velocloud/en/documents/case

-study-dell-emc.pdf

• https://technologyleadership.academy/wp-content/uploads/2019/08/SDWAN-velocloudbenefits-DynamicMultipathOptimization.pdf

• https://www.vmware.com/company/acquisitions/velocloud.html

• https://www.velocloud.com/products/features

• https://www.velocloud.com/content/dam/digitalmarketing/velocloud/en/documents/solut

ion-overview-service-providers.pdf

LLC v. PayPal Holdings, Inc., CV 18-452-WCB, 2019 WL 330515, at *4 (D. Del. Jan. 25, 2019) 

(“The Court sees 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.”).

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 13 of 15
14

• https://blogs.vmware.com/velocloud/2018/08/02/healthcare-technology-part-3-whyproviders-say-i-gotta-have-sd-wan/

27. Since before the filing of this Amended Complaint, through its actions, Defendants

have contributed to the infringement of the ‘309 Patent by having others sell, offer for sale, or use 

the Accused Products throughout the United States, including within this judicial district, with

knowledge that the Accused Products infringe the ‘309 Patent. The Accused Products are 

especially made or adapted for infringing the ‘309 Patent and have no substantial non-infringing 

use. For example, in view of the preceding paragraphs, the Accused Products contain functionality 

which is material to at least one claim of the ‘309 Patent.

JURY DEMAND

Brazos hereby demands a jury on all issues so triable.

REQUEST FOR RELIEF

WHEREFORE, Brazos respectfully requests that the Court:

(A) Enter judgment that Defendants infringe one or more claims of the ‘309 Patent

literally and/or under the doctrine of equivalents;

(B) Enter judgment that Defendants have induced infringement and continue to induce 

infringement of one or more claims of the ‘309 Patent;

(C) Enter judgment that Defendants have contributed to and continue to contribute to 

the infringement of one or more claims of the ‘309 Patent;

(D) Award Brazos damages, to be paid by Defendants in an amount adequate to 

compensate Brazos for such damages, together with pre-judgment and post-judgment interest for 

the infringement by Defendants of the ‘309 Patent through the date such judgment is entered in 

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 14 of 15
15

accordance with 35 U.S.C. § 284, and increase such award by up to three times the amount found 

or assessed in accordance with 35 U.S.C. § 284;

(E) Declare this case exceptional pursuant to 35 U.S.C. § 285; and

(F) Award Brazos its costs, disbursements, attorneys’ fees, and such further and 

additional relief as is deemed appropriate by this Court.

Dated: October 19, 2020 Respectfully submitted,

/s/ James L. Etheridge

James L. Etheridge

Texas State Bar No. 24059147 

Ryan S. Loveless

Texas State Bar No. 24036997 

Travis L. Richins

Texas State Bar No. 24061296

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

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

COUNSEL FOR PLAINTIFF

Case 6:20-cv-00485-ADA Document 35 Filed 10/19/20 Page 15 of 15