IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TEXARKANA DIVISION 

OPTIMORPHIX, INC., 

Plaintiff, 

v. 

BROADCOM, INC., 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

Civil Action No. 5-23-cv-00134 

JURY TRIAL DEMANDED 

DEFENDANT BROADCOM INC.’S MOTION TO DISMISS 

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TABLE OF CONTENTS 

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I. INTRODUCTION AND SUMMARY OF THE ARGUMENT .................................... 1

II. STATEMENT OF RELEVANT FACTS ....................................................................... 2

A. OptiMorphix’s Venue and Registered Agent Allegations .................................. 2

B. OptiMorphix’s Direct Infringement Allegations ................................................ 3

C. OptiMorphix’s Willful and Indirect Infringement 

Allegations .......................................................................................................... 3

III. LEGAL STANDARDS .................................................................................................. 4

A. Venue in Patent Cases ......................................................................................... 4

B. Service of Process Under Rule 4 ........................................................................ 5

C. Failure to State a Claim Under Rule 12(b)(6) ..................................................... 6

D. Pleading Direct Infringement .............................................................................. 7

E. Pleading Willful Infringement ............................................................................ 7

F. Pleading Induced Infringement ........................................................................... 9

IV. ARGUMENT .................................................................................................................. 9

A. Venue Is Improper in the Eastern District of Texas for 

Broadcom Inc. ..................................................................................................... 9

B. Insufficient Service of Process on Broadcom Inc. ............................................ 12

C. OptiMorphix’s Direct Infringement Claims Should be 

Dismissed. ......................................................................................................... 14

D. OptiMorphix’s Pre-Suit Willful Infringement Claims 

Should be Dismissed. ........................................................................................ 14

E. OptiMorphix’s Pre-Suit Indirect Infringement Claims 

Should be Dismissed. ........................................................................................ 19

V. CONCLUSION ............................................................................................................. 20

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TABLE OF AUTHORITIES 

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Cases 

Anascape, Ltd. v. Microsoft Corp., 

No. 9:06-CV-158, 2008 WL 7182476 (E.D. Tex. Apr. 25, 2008) ...........................................16 

Andra Grp., LP v. Victoria's Secret Stores, 

L.L.C., 6 F.4th 1283 (Fed. Cir. 2021) ......................................................................................10 

Arigna Tech. Ltd. v. Bayerische Motoren Werke AG, 

No. 2:21-CV-00172-JRG, 2022 WL 610796 (E.D. Tex. Jan. 24, 2022) ............................8, 15 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ...................................................................................................................7 

B/E Aerospace, Inc. v. Zodiac Aerospace, 

No. 2:16-CV-01417-JRG-RSP, 2018 WL 7140299 (E.D. Tex. Nov. 30, 2018) .....................11 

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) ...................................................................................................................7 

BillJCo, LLC v. Apple Inc., 

583 F. Supp. 3d 769 (W.D. Tex. 2022)......................................................................8, 9, 18, 19 

Blue Spike, LLC v. ASUS Computer Int'l, Inc., 

No. 6:16-CV-1384-RWS-KNM, 2018 WL 3301705 (E.D. Tex. Feb. 20, 2018) ....................13 

BMC Resources, Inc. v. Paymentech, L.P., 

498 F.3d 1373 (Fed. Cir. 2007)................................................................................................14 

Bowlby v. City of Aberdeen, Miss., 

681 F.3d 215 (5th Cir. 2012) .....................................................................................................6 

Cannon Manufacturing Co. v. Cudahy Packing Co., 

267 U.S. 333 (1925) .................................................................................................................11 

Carter v. EZ Flo Int'l, 

No. 6:22-CV-00094-JDK, 2022 WL 17541407 (E.D. Tex. Sept. 2, 2022) ...............................6 

Carter v. Target Corp., 

541 F. App’x 413 (5th Cir. 2013) ........................................................................................6, 17 

Corydoras Techs., LLC v. Apple Inc., 

No. 2:16-CV-00538-JRG, 2016 WL 9242435 (E.D. Tex. Nov. 23, 2016)..........................9, 19 

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TABLE OF AUTHORITIES 

(continued) 

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In re Cray Inc., 

871 F.3d 1355 (Fed. Cir. 2017)......................................................................................5, 10, 12 

Doe v. Univ. of Tex. M.D. Anderson Cancer Ctr., 

653 F. Supp. 3d 359 (S.D. Tex. 2023) .................................................................................6, 17 

Dynamic Data Technologies v. Google LLC, 

No. 19-1529-CFC, 2020 WL 1285852 (D. Del. Mar. 18, 2020) .............................................16 

EMED Techs. Corp. v. Repro-Med Sys., Inc., 

No. 2:17-CV-728-WCB-RSP, 2018 WL 2544564 (E.D. Tex. June 4, 2018) ..........................11 

Finjan, Inc. v. Juniper Networks, Inc., 

No. C 17-05659 WHA, 2018 WL 905909 (N.D. Cal. Feb. 14, 2018) .....................................18 

Godo Kaisha IP Bridge 1 v. Broadcom Ltd., 

No. 2:16-CV-0134-JRG-RSP, 2017 WL 970383 (E.D. Tex. Mar. 1, 2017) .............................7 

Joy Technologies, Inc. v. Flakt, Inc., 

6 F.3d 770 (Fed. Cir. 1993)......................................................................................................14 

Kreimerman v. Casa Veerkamp, S.A. de C.V., 

22 F.3d 634 (5th Cir. 1994) .................................................................................................6, 13 

Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 

594 F.3d 383 (5th Cir. 2010) ...............................................................................................6, 17 

Luminati Networks Ltd. v. UAB Tesonet, 

No. 2:18-CV-00299-JRG, 2019 WL 8331455 (E.D. Tex. Aug. 23, 2019)................................5 

Macrosolve, Inc. v. Antenna Software, Inc., 

No. 6:11-CV-287, 2012 WL 12903085 (E.D. Tex. Mar. 16, 2012) ........................................13 

Maxell Ltd. v. Apple Inc., 

No. 5:19-CV-00036-RWS, 2019 WL 7905455 (E.D. Tex. Oct. 23, 2019) ...............8, 9, 18, 19 

Metacluster LT, UAB v. Bright Data Ltd., 

No. 2:22-CV-011-JRG-RSP, 2022 WL 18859434 (E.D. Tex. Dec. 20, 2022)........................17 

Network Sys. Tech., LLC v. Tex. Instruments Inc., 

No. 2:22-CV-00482-RWS, Dkt. 95 ..............................................................8, 9, 15, 16, 18, 19 

NXP USA Inc. v. MediaTek Inc., 

No. 2:21-CV-00318-JRG, 2022 WL 799071 (E.D. Tex. Mar. 15, 2022) ............................8, 15 

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TABLE OF AUTHORITIES 

(continued) 

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Opticurrent, LLC v. Power Integrations, Inc., 

No. 2:16-CV-325-JRG, 2016 WL 9275395 (E.D. Tex. Oct. 19, 2016) ...............................7, 14 

Parallel Network Licensing LLC v. Arrow Elecs., Inc., 

No. 4:21-CV-00714, 2022 WL 1597364 (E.D. Tex. May 19, 2022) ....................4, 5, 9, 10, 12 

SiOnyx, LLC v. Hamamatsu Photonics K.K., 

330 F. Supp. 3d 574 (D. Mass. 2018) ......................................................................................18 

Soverain IP, LLC v. AT&T, Inc., 

No. 2:17-CV-00293-RWS-RSP, 2017 WL 5126158 (E.D. Tex. Oct. 31, 2017) ...............11, 12 

State Industries, Inc. v. A.O. Smith Corp., 

751 F.2d 1226 (Fed. Cir. 1985)............................................................................................7, 14 

Stragent, LLC v. BMW of N. Am., LLC, 

No. 6:16-CV-446-RWS-KNM, 2017 WL 2821697 (E.D. Tex. Mar. 3, 2017)........................19 

TC Heartland LLC v. Kraft Foods Group Brands LLC, 

581 U.S. 258, 137 S. Ct. 1514 (2017) ........................................................................................5 

Tierra Intellectual Borinquen, Inc. v. ASUS Comp. Int'l, Inc., 

No. 2:13-cv-44, 2014 WL 1233040 (E.D. Tex. Mar. 24, 2014) ..........................................9, 19 

Westport Fuel Sys. Canada, Inc. v. Ford Motor Co., 

No. 2:21-CV-00453-RWS-RSP, 2022 WL 17734410 (E.D. Tex. Sept. 12, 

2022) ........................................................................................................................................10 

In re ZTE (USA), Inc., 

890 F.3d 1008 (Fed. Cir. 2018)..................................................................................................4 

Statutes 

28 U.S.C. § 1400(b) .........................................................................................................5, 9, 10, 12 

35 U.S.C. § 271 ..............................................................................................................................14 

35 U.S.C. § 271(a) ...........................................................................................................................7 

35 U.S.C. § 271(b) ...........................................................................................................................3 

Other Authorities 

Fed. R. Civ. P. 4 .........................................................................................................................5, 13 

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Fed. R. Civ. P. 4(h) ..................................................................................................................12, 13 

Fed. R. Civ. P. 12(b)(3)....................................................................................................1, 4, 12, 20 

Fed. R. Civ. P. 12(b)(5)......................................................................................................1, 5, 6, 20 

Fed. R. Civ. P. 12(b)(6)..........................................................................................1, 6, 7, 15, 18, 20 

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Broadcom Inc. (“Broadcom”) respectfully moves the Court to dismiss Plaintiff 

OptiMorphix, Inc.’s (“OptiMorphix”) Complaint (Dkt. 1) for both improper venue under Fed. R. 

Civ. P. 12(b)(3) and insufficient service of process under Fed. R. Civ. P. 12(b)(5). Additionally, 

pursuant to Fed. R. Civ. P. 12(b)(6), Broadcom respectfully moves the Court for an order 

dismissing OptiMorphix’s claims of direct infringement, pre-suit willful infringement, and presuit indirect infringement for failure to state a claim upon which relief may be granted. 

I. INTRODUCTION AND SUMMARY OF THE ARGUMENT 

In the present case, Plaintiff OptiMorphix, Inc. (“OptiMorphix”) alleges that Broadcom 

infringes five different U.S. patents: U.S. Patent Nos. 7,024,460 (the “‘460 patent”); 7,031,314 

(the “‘314 patent”); 7,586,871 (the “‘871 patent”); 8,429,169 (the “‘169 patent”); and 9,167,021 

(the “‘021 patent”) (collectively, the “Asserted Patents”). But OptiMorphix’s claims in this Court 

against Broadcom have no legally sufficient procedural or factual bases. 

Broadcom is incorporated in Delaware with its principal place of business in California. 

Broadcom is not registered nor licensed to do business in Texas and, relatedly, does not have any 

registered agent in Texas. Broadcom further does not have any established place of business in 

Texas—let alone in this District. Pursuant to the unique patent venue statute, venue is this 

District is thus improper with respect to Broadcom. OptiMorphix’s allegation otherwise is 

incorrectly based on the place of business of a subsidiary of Broadcom. But as this Court and 

others have recognized, it is generally improper to treat the place of business of a subsidiary as 

the place of the business of the corporate parent for the purposes of the patent venue statute. And 

OptiMorphix’s service of the Complaint on the registered agent of a subsidiary of Broadcom—as 

opposed to Broadcom itself—is legally insufficient for the same reason.1

1

 In view of, inter alia, OptiMorphix’s allegations and attempted service of process via a 

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OptiMorphix’s claims of direct infringement by Broadcom also fail as a matter of law 

and must be dismissed. Broadcom is a holding company, which serves as a direct and indirect 

parent company for its subsidiaries. As a holding company, Broadcom does not itself 

manufacture, sell, offer for sale, export, import, or otherwise distribute any Broadcom 

products—and thus necessarily cannot directly infringe any Asserted Patent. Further, 

OptiMorphix’s claims of at least pre-suit willful infringement and pre-suit indirect infringement 

also must be dismissed, at a minimum, because OptiMorphix’s Complaint does not sufficiently 

allege pre-suit knowledge by Broadcom of any of the Asserted Patents—a threshold requirement 

for both indirect and willful infringement. 

II. STATEMENT OF RELEVANT FACTS 

A. OptiMorphix’s Venue and Registered Agent Allegations 

In its Complaint, OptiMorphix alleges that “Broadcom is registered to do business in the 

State of Texas,” has a “regular and established place of business at 5465 Legacy Drive, Plano, 

Texas 75024,” and “may be served through its registered agent Corporation Service Company 

d/b/a CSC-Lawyers Incorporating Service Company, located at 211 E. 7th St., Suite 620, Austin, 

TX 78701.” Dkt. 1, ¶¶ 9–10. But, in fact, Broadcom—a Delaware corporation—is not registered 

to do business in Texas, does not have any regular and established place of business in Texas, 

and does not have any registered agent in Texas. Declaration of Ryan D. Phillips (“Phillips 

Decl.”), ¶¶ 2–4. Indeed, the public records of the State of Texas demonstrate that Broadcom Inc. 

is located in California, has no right to transact business in Texas, and has no registered agent in 

Texas. Ex. A. Moreover, it is, in fact, a different entity, CA, Inc.—a subsidiary of Broadcom, 

subsidiary of Broadcom, CA, Inc. (as opposed to Broadcom itself), prior to filing this Motion, 

counsel for Broadcom conferred with counsel for OptiMorphix and suggested OptiMorphix 

substitute that subsidiary for Broadcom—but OptiMorphix has failed to do so to-date. 

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which maintains is own independent structure separate from Broadcom Inc.—that has a place of 

business at 5465 Legacy Drive, Plano, Texas 75024, is registered to do business in Texas, and 

has as registered agent Corporation Service Company d/b/a CSC-Lawyers Incorporating Service 

Company, located at 211 E. 7th St., Suite 620, Austin, TX 78701. Phillips Decl., ¶ 5; Ex. B; see, 

e.g., Ex. C (CA, Inc. “Memorandum of Lease”). 

B. OptiMorphix’s Direct Infringement Allegations 

In its Complaint, OptiMorphix alleges that Broadcom “has directly infringed and 

continues to directly infringe” each of the Asserted Patents by “making, suing, offering for sale, 

and/or selling” certain respective products and technology. Dkt. 1, ¶¶ 66, 92, 115, 141, 166. But, 

in fact, Broadcom is a holding company—Broadcom does not make, use, offer to sell or sell, or 

import into the United States any Broadcom product or technology. Phillips Decl., ¶ 2. 

C. OptiMorphix’s Willful and Indirect Infringement Allegations 

In its Complaint, OptiMorphix further alleges that “Broadcom is infringing [each 

Asserted Patent] in a manner best described as willful, wanton, malicious, in bad faith, 

deliberate, consciously wrongful, flagrant, or characteristic of a pirate.” Dkt. 1, ¶¶ 73, 100, 122, 

148, 173. Additionally, OptiMorphix’s Complaint alleges that “Broadcom also indirectly 

infringes” each Asserted Patent “by actively inducing infringement under 35 U.S.C. § 271(b).”2

Dkt. 1, ¶¶ 70, 96, 119, 145, 170. 

In support of these infringement claims, OptiMorphix’s Complaint alleges “Broadcom 

has had knowledge of [each Asserted Patent] since at least service of this Complaint or shortly 

thereafter, and Broadcom knew of [each Asserted Patent] and knew of its infringement, 

including by way of this lawsuit.” Dkt. 1, ¶¶ 71, 97, 120, 146, 171 (emphasis added). 

2

 OptiMorphix’s Complaint does not allege any contributory infringement of any Asserted 

Patent by Broadcom. See generally Dkt. 1. 

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OptiMorphix’s Complaint is devoid of any allegation that Broadcom had both knowledge of any 

Asserted Patent and infringement thereof prior to the filing of the Complaint, however. 

At most, OptiMorphix’s Complaint alleges that each Asserted Patent is “well-known 

within the industry as demonstrated by multiple citations to [each Asserted Patent] in published 

patents and patent applications assigned to technology companies and academic institutions.” 

Dkt. 1, ¶¶ 73, 100, 122, 148, 173. In particular, OptiMorphix’s Complaint alleges each of the 

Asserted Patents has been cited in patents and patent applications assigned to companies such as 

Alphabet Inc., Qualcomm, Inc., and Microsoft Corporation. Dkt. 1, ¶¶ 24, 31, 38, 45, 53. With 

respect to one—and only one—Asserted Patent (the ’314 Patent), OptiMorphix’s Complaint 

alleges Broadcom in particular “has had knowledge of the ‘314 patent since at least August 19, 

2010, when U.S. Patent Application No. 10/756,152, which is owned by Broadcom and cites the 

‘314 patent as relevant prior art, was published.” Dkt 1, ¶ 98. But, in fact, U.S. Patent 

Application No. 10/756,152 is not owned, and has never been owned, by Broadcom. Rather, the 

public prosecution records for that application—which are appropriate to consider at the 

pleadings stage—show that a different entity, Foundry Networks, LLC, is “the assignee of the 

entire right, title, and interest in” U.S. Patent Application No. 10/756,152. Ex. D. 

III. LEGAL STANDARDS 

A. Venue in Patent Cases 

“A party may challenge venue by asserting that venue is improper in a responsive 

pleading or by filing a motion.” Parallel Network Licensing LLC v. Arrow Elecs., Inc., No. 

4:21-CV-00714, 2022 WL 1597364, at *1 (E.D. Tex. May 19, 2022) (citing Fed. R. Civ. P. 

12(b)(3)). “[U]pon motion by the [d]efendant challenging venue in a patent case, the [p]laintiff 

bears the burden of establishing proper venue.” In re ZTE (USA), Inc., 890 F.3d 1008, 1013 

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(Fed. Cir. 2018). “A court may decide whether venue is proper based upon ‘(1) the complaint 

alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) 

the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’” 

Parallel Network, 2022 WL 1597364, at *1 (citation omitted). 

Whether venue is proper in this case is governed by 28 U.S.C. § 1400(b), the “sole and 

exclusive provision controlling venue in patent infringement actions.” TC Heartland LLC v. 

Kraft Foods Group Brands LLC, 581 U.S. 258, 137 S. Ct. 1514, 1519 (2017). “Under § 

1400(b), a patent infringement case may only be brought in the judicial district where (1) the 

defendant resides, or (2) where the defendant has committed acts of infringement and has a 

regular and established place of business.” Parallel Network, 2022 WL 1597364, at *2 (citing 

28 U.S.C. § 1400(b)). Under the first prong of § 1400(b), a domestic corporation “resides” only 

in its state of incorporation. TC Heartland, 137 S. Ct. at 1519. As to the second prong, the 

Federal Circuit has interpreted the “regular and established place of business” inquiry to 

impose three general requirements: “(1) there must be a physical place in the district; (2) it 

must be a regular and established place of business; and (3) it must be the place of the 

defendant.” In re Cray Inc., 871 F.3d 1355, 1360 (Fed. Cir. 2017). “If any statutory 

requirement is not satisfied, venue is improper.” Parallel Network, 2022 WL 1597364, at *2. 

B. Service of Process Under Rule 4 

“In order for a court to exercise jurisdiction over a defendant, a plaintiff must serve that 

defendant with process according to Rule 4 of the Federal Rules of Civil Procedure.” Luminati 

Networks Ltd. v. UAB Tesonet, No. 2:18-CV-00299-JRG, 2019 WL 8331455, at *2 (E.D. Tex. 

Aug. 23, 2019). “If a plaintiff fails to provide the defendant with the requisite service, the 

defendant can move to dismiss the case for insufficient service of process under [] Rule 

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12(b)(5).” Id. “In order to avoid dismissal once service is challenged, the plaintiff bears the 

burden of showing that service was valid.” Id. “The court, in making a determination on the 

validity of service ‘must look outside the complaint to determine what steps, if any, the plaintiff 

took to effect service.’” Carter v. EZ Flo Int'l, No. 6:22-CV-00094-JDK, 2022 WL 17541407, 

at *6 (E.D. Tex. Sept. 2, 2022), report and recommendation adopted, 2022 WL 17091857 

(E.D. Tex. Nov. 21, 2022). And overall, a district court has “broad discretion to dismiss an 

action for ineffective service of process.” Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 

634, 645 (5th Cir. 1994). 

C. Failure to State a Claim Under Rule 12(b)(6) 

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal where a plaintiff 

fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When ruling 

on a motion to dismiss under Rule 12(b)(6), the Court must “accept[] all well-pleaded facts as 

true and viewing those facts in the light most favorable to the plaintiff.” Bowlby v. City of 

Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012) (citation omitted). But “[i]f the plaintiff's 

allegations are contradicted by facts disclosed by a document attached to the complaint or by 

facts disclosed by a document attached to the motion to dismiss that is central to the claim and 

referenced by the complaint, then the plaintiff’s contradicted allegations are not accepted as 

true.” Doe v. Univ. of Tex. M.D. Anderson Cancer Ctr., 653 F. Supp. 3d 359, 370 (S.D. Tex. 

2023) (citing Carter v. Target Corp., 541 F. App’x 413, 417 (5th Cir. 2013)); see Lone Star 

Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (court may 

consider “the complaint, any documents attached to the complaint, and any documents attached 

to the motion to dismiss that are central to the claim and referenced by the complaint”).

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Dismissal under Rule 12(b)(6) is appropriate if a complaint does not contain “sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). This plausibility standard obligates a plaintiff to provide “more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 

U.S. at 555. Instead, the pleadings must provide sufficient factual allegations to allow the Court 

to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Iqbal, 556 U.S. at 678. If they do not, the claim should be dismissed. Id. 

D. Pleading Direct Infringement 

“To state a claim for direct patent infringement, a plaintiff must plead facts that 

plausibly support the assertion that a defendant ‘without authority makes, uses, offers to sell, or 

sells any patented invention, within the [U.S.] or imports into the [U.S.] any patented invention 

during the term of the patent.’” Godo Kaisha IP Bridge 1 v. Broadcom Ltd., No. 2:16-CV0134-JRG-RSP, 2017 WL 970383, at *4 (E.D. Tex. Mar. 1, 2017) (quoting 35 U.S.C. § 

271(a)), report and recommendation adopted, 2017 WL 1154921 (E.D. Tex. Mar. 28, 2017). 

E. Pleading Willful Infringement 

“To willfully infringe a patent, the patent must exist and one must have knowledge of 

it.” State Industries, Inc. v. A.O. Smith Corp., 751 F.2d 1226, 1236 (Fed. Cir. 1985). As such, 

“pre-suit knowledge of the asserted patent is generally required to maintain a claim of 

willfulness.” Opticurrent, LLC v. Power Integrations, Inc., No. 2:16-CV-325-JRG, 2016 WL 

9275395, at *2 (E.D. Tex. Oct. 19, 2016). Indeed, a claim for willful infringement “requires a 

showing that (1) the infringer acted despite an objectively high likelihood that its actions 

constituted infringement of a valid patent and (2) the risk of infringement was either known or 

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so obvious that it should have been known to the accused infringer.” Maxell Ltd. v. Apple Inc., 

No. 5:19-CV-00036-RWS, 2019 WL 7905455, at *3 (E.D. Tex. Oct. 23, 2019). Thus, to state a 

claim for willful infringement “the complaint must adequately allege factual circumstances in 

which the patents-in-suit are called to the attention of the defendants.” Id. at *5. 

When ruling on a motion to dismiss, the sufficiency of pre-suit willful infringement 

allegations is appropriately considered separately from post-suit willful infringement claims. 

Network Sys. Tech., LLC v. Tex. Instruments Inc., No. 2:22-CV-00482-RWS, Dkt. 95 (Ex. E), 

at 4–5 (E.D. Tex. Sept. 25, 2023) (“[C]onsidering pre-suit and post-suit allegations of 

knowledge and intent separately is consistent with recent decisions in this district, as well as the 

decisions of out-of-circuit courts.”); see, e.g., Maxell, 2019 WL 7905455, at *4–5; see also

BillJCo, LLC v. Apple Inc., 583 F. Supp. 3d 769, 775–77 (W.D. Tex. 2022) (dismissing pre-suit 

willful infringement claims after evaluating pre- and post-suit allegations separately). 

And where a plaintiff’s allegations fail to plausibly allege a defendant had pre-suit 

knowledge of the patent-in-suit, dismissal of any claim for pre-suit willful infringement is 

appropriate. See, e.g., Network Sys., Dkt. 95, at 5–9 (granting motion to dismiss with respect to 

pre-suit willfulness claims); Maxell, 2019 WL 7905455, at *4–5 (same); NXP USA Inc. v. 

MediaTek Inc., No. 2:21-CV-00318-JRG, 2022 WL 799071, at *3 (E.D. Tex. Mar. 15, 2022) 

(“NXP has only alleged that Best Buy had knowledge of the Asserted Patents ‘at least since the 

filing of this complaint.’ ... Therefore, NXP cannot plausibly maintain its claim for pre-suit 

willful infringement.”); Arigna Tech. Ltd. v. Bayerische Motoren Werke AG, No. 2:21-CV00172-JRG, 2022 WL 610796, at *6-7 (E.D. Tex. Jan. 24, 2022) (“Arigna has only alleged that 

Nissan had knowledge of the ‘850 Patent “at least from the filing of [the] Complaint.” ... [T]he 

Court concludes that Arigna has failed to state a claim for pre-suit willful infringement.”). 

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F. Pleading Induced Infringement 

A defendant “cannot be held liable for induced infringement for conduct occurring prior 

to its knowledge of the patents-in-suit.” Tierra Intellectual Borinquen, Inc. v. ASUS Comp. 

Int'l, Inc., No. 2:13-cv-44, 2014 WL 1233040, at *2 (E.D. Tex. Mar. 24, 2014); accord

Corydoras Techs., LLC v. Apple Inc., No. 2:16-CV-00538-JRG, 2016 WL 9242435, at *2 (E.D. 

Tex. Nov. 23, 2016) (“[A] patentee cannot recover on claims of indirect infringement for acts 

occurring prior to the accused infringer having knowledge of the asserted patents.”). 

As such, and as with respect to willfulness, when ruling on a motion to dismiss, the 

sufficiency of pre-suit induced infringement allegations is appropriately considered separately 

from post-suit induced infringement claims. Network Sys., Dkt. 95, at 4–5; see, e.g., Maxell, 

2019 WL 7905455, at *4–5; BillJCo, 583 F. Supp. 3d at 775–77 (dismissing pre-suit induced 

infringement claims after evaluating pre- and post-suit allegations separately). And where a 

plaintiff’s allegations fail to plausibly allege a defendant had pre-suit knowledge of the patentin-suit, dismissal of any claim for pre-suit induced infringement is appropriate. See, e.g., 

Network Sys., Dkt. 95, at 11 (granting motion to dismiss with respect to pre-suit induced 

infringement claims); Maxell, 2019 WL 7905455, at *4–5 (same); see also Corydoras, 2016 

WL 9242435, at *2–3 (“Since there is no allegation pre-suit knowledge of the patents-in-suit, 

Corydoras’s indirect infringement claims must be limited to post-filing conduct.”). 

IV. ARGUMENT 

A. Venue Is Improper in the Eastern District of Texas for Broadcom Inc. 

Venue in this District is improper for Broadcom because Broadcom does not reside in 

this District nor have any regular and established place of business in this District. See 28 

U.S.C. § 1400(b); Parallel Network, 2022 WL 1597364, at *2. 

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The first option for venue under 28 U.S.C. § 1400(b)—the “resides” option—is not 

satisfied because Broadcom does not “reside” in this District. Rather, as OptiMorphix admits, 

“Broadcom is a Delaware corporation” (Dkt. 1, ¶ 9; see Phillips Decl., ¶ 2) and thus does not 

“reside” in Texas for the purpose of the patent venue statute. Andra Grp., LP v. Victoria's 

Secret Stores, L.L.C., 6 F.4th 1283, 1287 (Fed. Cir. 2021) (“Because each Defendant is 

incorporated in Delaware, no defendant ‘resides’ in Texas for the purpose of patent venue.”); 

Westport Fuel Sys. Canada, Inc. v. Ford Motor Co., No. 2:21-CV-00453-RWS-RSP, 2022 WL 

17734410, at *1 (E.D. Tex. Sept. 12, 2022) (“Because MBUSA is incorporated in Delaware, 

MBUSA does not reside in Texas for the purposes of the patent venue statute.”). 

The second option for establishing venue under 28 U.S.C. § 1400(b) is also not satisfied 

here because, inter alia, Broadcom does not have a “regular and established place of business” 

in this District. Cray, 871 F.3d at 1360; see id at 1363 (requiring that the “regular and 

established place of business” must be “the place of the defendant”). Broadcom does not own 

or lease any real estate in this District, possess or control any physical place in this District, 

own or control shelf space in this District, or have any employees in this District. Phillips Decl., 

¶ 3; cf. Cray, 871 F.3d at 1363 (noting “[r]elevant considerations include whether the defendant 

owns or leases the place, or exercises other attributes of possession or control over the place”). 

And to be clear, the place of business allegedly located at “5465 Legacy Drive, Plano, 

Texas 75024” (according to the Complaint) is not a place of business of Broadcom, contrary to 

OptiMorphix’s allegations. See Dkt. 1, ¶ 9. That office space is leased by a separate and 

distinct entity, CA, Inc. Phillips Decl., ¶ 5; Ex. C (CA, Inc. “Memorandum of Lease”); see 

Parallel Network, 2022 WL 1597364, at *1 (“A court may decide whether venue is proper 

based upon ... undisputed facts evidenced in the record[.]”). And generally speaking, “[f]or 

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purposes of venue, ... the courts ordinarily will not treat the place of business of one 

corporation as the place of business of the other.’” EMED Techs. Corp. v. Repro-Med Sys., 

Inc., No. 2:17-CV-728-WCB-RSP, 2018 WL 2544564, at *2 (E.D. Tex. June 4, 2018). 

Here, there are no allegations—and, in fact, no grounds—to treat the place of business 

of CA, Inc. in Plano, Texas as that of Broadcom. CA, Inc. is a subsidiary of Broadcom. Phillips 

Decl., ¶ 5. But for any “regular and established place of business” of its subsidiary to be 

imputed to Broadcom, the two entities “must lack formal corporate separateness, which is a 

difficult standard to meet.” Soverain IP, LLC v. AT&T, Inc., No. 2:17-CV-00293-RWS-RSP, 

2017 WL 5126158, at *1 (E.D. Tex. Oct. 31, 2017), report and recommendation adopted, 2017 

WL 6452802 (E.D. Tex. Dec. 18, 2017). Indeed, the Supreme Court has “held that even if a 

parent corporation controls a subsidiary’s operations and the companies share a unitary 

business purpose, the subsidiary’s presence in a venue cannot be imputed to the parent absent 

disregard for corporate separateness.” Soverain, 2017 WL 5126158, at *1 (citing Cannon 

Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 334–35 (1925)). 

Here, OptiMorphix’s Complaint is devoid of any allegation that Broadcom and CA, Inc. 

lack corporate separateness. Moreover, the record facts demonstrate that CA, Inc. maintains is 

own independent structure separate from Broadcom. Phillips Decl., ¶ 5. Cf. Soverain, 2017 WL 

5126158, at *1 (dismissing parent “holding company” for improper venue in view of “sworn 

declaration” that “corporate form has not been disregarded”); see B/E Aerospace, Inc. v. Zodiac 

Aerospace, No. 2:16-CV-01417-JRG-RSP, 2018 WL 7140299, at *5–6 (E.D. Tex. Nov. 30, 

2018) (finding venue was improper as to a number of “Zodiac” defendants that were “separate 

from Zodiac Seats, the only defendant with a physical place of business in the district”), report 

and recommendation adopted, 2019 WL 354883 (E.D. Tex. Jan. 28, 2019). In view of these 

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record facts, any bald suggestion otherwise by OptiMorphix “would not be sufficient to treat 

the two corporations as one.” Soverain, 2017 WL 5126158, at *1 (dismissing parent “holding 

company” for improper venue despite plaintiff’s contention the parent and subsidiary “should 

be considered a single entity for purposes of venue”). 

OptiMorphix’s allegation that Broadcom’s “website” identifies an alleged “regular and 

established place of business” of Broadcom at its “Plano, Texas office” (Dkt. 1, ¶ 10) does not 

change this conclusion. Fundamentally, “a listing of a location on a website is not the 

equivalent of a defendant actually having a physical location in that place.” Parallel Network, 

2022 WL 1597364, at *4. As the Federal Circuit has made clear, “the mere fact that a defendant 

has advertised that it has a place of business ... is not sufficient; the defendant must actually 

engage in business from that location.” Cray, 871 F.3d at 1364. And relatedly, courts in this 

District have held that a plaintiff’s reliance on a “listing of a location on a website” alone is 

insufficient for a plaintiff to carry “its burden to show that venue is proper.” See, e.g., Parallel 

Network, 2022 WL 1597364, at *4. This is especially true here, given that facts show that the 

alleged place of business in Plano, Texas is that of CA, Inc.—not Broadcom. Phillips Decl., ¶ 

4–5; Ex. C; see Parallel Network, 2022 WL 1597364, at *1 (“A court may decide whether 

venue is proper based upon ... undisputed facts evidenced in the record[.]”). 

For all these reasons, venue in this District is improper for Broadcom under § 1400(b), 

and OptiMorphix’s Complaint must be dismissed pursuant to Rule 12(b)(3). Parallel Network, 

2022 WL 1597364, at *2 (“If any statutory requirement is not satisfied, venue is improper.”). 

B. Insufficient Service of Process on Broadcom Inc. 

Federal Rule of Civil Procedure 4(h) governs service of domestic corporations, such as 

Broadcom, and provides a number of options with respect to legally sufficient service. Here, 

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OptiMorphix attempted service of process of Broadcom exclusively under Fed. R. Civ. P. 

4(h)(1)(B)—by delivering a copy of the Summons and Complaint to Broadcom’s alleged 

“registered agent”: Corporation Service Company d/b/a CSC-Lawyers Incorporating Service 

Company, located at 211 E. 7th St., Suite 620, Austin, TX 78701. Dkt. 10; see Dkt. 1, ¶¶ 9. 

But, as discussed above, Broadcom does not have any registered agent in Texas. 

Phillips Decl., ¶ 3; see Ex. A. And more pointedly, Corporation Service Company d/b/a CSCLawyers Incorporating Service Company, located at 211 E. 7th St., Suite 620, Austin, TX 

78701, is not a registered agent of Broadcom. Phillips Decl., ¶ 4; see Ex. A. Rather, that entity 

is the registered agent of CA, Inc.—a subsidiary of Broadcom, which maintains is own 

independent structure separate from Broadcom. See Phillips Decl., ¶ 5; Ex. B. In light of the 

corporate separateness between Broadcom and CA, Inc., OptiMorphix’s attempted service of 

process of Broadcom via CA, Inc.’s registered agent is “legally insufficient.” Blue Spike, LLC 

v. ASUS Computer Int'l, Inc., No. 6:16-CV-1384-RWS-KNM, 2018 WL 3301705, at *8 (E.D. 

Tex. Feb. 20, 2018) (finding plaintiff’s service of process of parent corporation via its 

subsidiary’s registered agent is “legally insufficient”), report and recommendation adopted, 

2018 WL 1443783 (E.D. Tex. Mar. 23, 2018). 

While courts may sometimes afford plaintiffs “an opportunity to correct [] defective 

service” under Fed. R. Civ. P. 4 (see, e.g., Macrosolve, Inc. v. Antenna Software, Inc., No. 

6:11-CV-287, 2012 WL 12903085, at *2 (E.D. Tex. Mar. 16, 2012)), no allowance need nor 

should be afforded here, given that venue is this District is improper as to Broadcom in any 

event, for the reasons discussed above. See supra Section IV.A. Thus, OptiMorphix’s 

Complaint should be dismissed for insufficient service of process. See Kreimerman, 22 F.3d at 

645 (Court has “broad discretion to dismiss an action for ineffective service of process”). 

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C. OptiMorphix’s Direct Infringement Claims Should be Dismissed. 

OptiMorphix’s Complaint fails to make any plausible allegations of direct infringement 

by Broadcom. As discussed above, Broadcom is a holding company. Phillips Decl., ¶ 2. As such, 

Broadcom does not make, use, offer to sell or sell, or import into the United States any 

Broadcom product or technology—including, but not limited to, the alleged “Broadcom” 

products identified in OptiMorphix’s Complaint. Phillips Decl., ¶ 2. As such, Broadcom 

necessarily cannot be found to directly infringe any Asserted Patent. See, e.g., 35 U.S.C. § 271; 

BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373, 1380 (Fed. Cir. 2007) (“[L]iability for 

infringement requires a party to make, use, sell, or offer to sell the patented invention[.]”); Joy 

Technologies, Inc. v. Flakt, Inc., 6 F.3d 770, 773 (Fed. Cir. 1993) (“The making, using, or selling 

of a patented invention is the usual meaning of the expression ‘direct infringement.’”). 

D. OptiMorphix’s Pre-Suit Willful Infringement Claims Should be Dismissed. 

OptiMorphix’s claims for pre-suit willful infringement should be dismissed because, 

inter alia, OptiMorphix’s Complaint fails to sufficiently allege pre-suit knowledge of any 

Asserted Patent by Broadcom—a threshold requirement for willful infringement. See State 

Industries, 751 F.2d at 1236 (“To willfully infringe a patent, the patent must exist and one must 

have knowledge of it.”); Opticurrent, 2016 WL 9275395, at *2 (“[P]re-suit knowledge of the 

asserted patent is generally required to maintain a claim of willfulness.”). 

At its core, OptiMorphix’s claims for willful infringement are based on its allegation that 

“Broadcom has had knowledge of [each Asserted Patent] since at least service of this Complaint 

or shortly thereafter, and Broadcom knew of [each Asserted Patent] and knew of its 

infringement, including by way of this lawsuit.” Dkt. 1, ¶¶ 73, 100, 120, 146, 171) (emphasis 

added). These allegations do not offer a plausible theory of Broadcom’s pre-suit knowledge of 

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the Asserted Patents. Indeed, in Network System, this Court held that plaintiff’s allegation that 

the defendant “had pre-suit knowledge” of the patents-at-issue based on “the filing of the 

complaint” did “not offer a plausible theory of [d]efendants’ pre-suit knowledge.” Network Sys., 

Dkt. 95, at 5. Other courts in this District have consistently reached the same conclusion on the 

same or similar facts. See, e.g., NXP, 2022 WL 799071, at *3 (“NXP has only alleged that Best 

Buy had knowledge of the Asserted Patents ‘at least since the filing of this complaint.’ ... 

Therefore, NXP cannot plausibly maintain its claim for pre-suit willful infringement.”); Arigna, 

2022 WL 610796, at *6–7 (“Arigna has only alleged that Nissan had knowledge of the ‘850 

Patent ‘at least from the filing of [the] Complaint.’ ... [T]he Court concludes that Arigna has 

failed to state a claim for pre-suit willful infringement.”). 

OptiMorphix’s vague allegations regarding the purported “well-known” nature of each 

Asserted Patent “within the industry” based on the patents’ citations in published patents and 

patent applications assigned to “technology companies” (Dkt. 1, ¶¶ 71, 97, 122, 148, 173) also 

fail to provide a plausible theory of Broadcom’s pre-suit knowledge of the Asserted Patents. 

Indeed, this Court has found similar allegations insufficient to survive a Rule 12(b)(6) motion to 

dismiss. In Network System, the plaintiff—like OptiMorphix here—alleged the patents-at-issue 

“[are] widely and publicly known, and frequently referenced, in the tight-knit semiconductor 

industry” and that “industry leaders” cited the patents-at-issue during the prosecution of their 

own patent applications. Network Sys., Dkt. 95, at 6; see Ex. F, ¶¶ 26, 38, 50, 62, 74, 92. This 

Court held those allegations “failed to plausibly plead pre-suit knowledge of the Asserted 

Patents.” Network Sys., Dkt. 95, at 7. In particular, this Court noted that none of the citations of 

the patents-at-issue were attributed to the defendant. Id. The Court concluded that “while it is 

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possible that Defendants knew, or should have known, about the Asserted Patents pre-suit,” the 

allegations failed to “provide[] a plausible basis for Defendants’ pre-suit knowledge.” Id. at 9. 

The same is true here. OptiMorphix’s allegations that the Asserted Patents here are “wellknown within the industry” because third-party companies have cited to the patents when those 

companies were prosecuting their own patent applications (Dkt. 1, ¶¶ 71, 97, 122, 148, 173) are 

insufficient for the Court to draw a reasonable inference that Broadcom in particular had presuit knowledge of each Asserted Patent. Cf. Network Sys., Dkt. 95, at 7–9; Dynamic Data 

Technologies v. Google LLC, No. 19-1529-CFC, 2020 WL 1285852, at *2 (D. Del. Mar. 18, 

2020) (holding allegations that patents-in-suit were well-known in the industry and had been 

cited by third-party companies when prosecuting their own patent applications were insufficient 

to plead that the specific defendant had pre-suit knowledge of the patents-in-suit), report and 

recommendation adopted sub nom., 2020 WL 3103786 (D. Del. June 11, 2020). 

Indeed, the Complaint is devoid of any allegation that Broadcom in particular had presuit knowledge of any of the ’460 Patent, ’871 Patent, ’169 Patent, or ’021 Patent—let alone presuit knowledge of infringement of any of those patents. See Anascape, Ltd. v. Microsoft Corp., 

No. 9:06-CV-158, 2008 WL 7182476, at *3 (E.D. Tex. Apr. 25, 2008) (holding “there can be no 

pre-suit willful infringement” where defendant did not notify defendant of alleged infringement 

of the patent prior to filing the complaint). And while OptiMorphix’s Complaint contains 

additional allegations regarding Broadcom’s purported pre-suit knowledge of the ’314 Patent 

based on Broadcom’s alleged patent prosecution activities (Dkt. 1, ¶ 98), those allegations are 

directly rebutted by public facts and thus are not plausible on their face and, as such, do not 

provide a plausible basis for Broadcom’s pre-suit knowledge of the ’314 Patent. 

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In particular, OptiMorphix’s allegation that “Broadcom has had knowledge of the ‘314 

patent since at least August 19, 2010, when U.S. Patent Application No. 10/756,152, which is 

owned by Broadcom and cites the ‘314 patent as relevant prior art, was published” (Dkt. 1, ¶ 98) 

cannot be accepted as true because it is contradicted by public record, a copy of which is 

attached to this Motion to Dismiss. See Lone Star, 594 F.3d at 387; Doe, 653 F. Supp. 3d at 370. 

The prosecution records for U.S. Patent Application No. 10/756,152 show that Foundry 

Networks, LLC—not Broadcom—is the owner of U.S. Patent Application No. 10/756,152. Ex. 

D; see Metacluster LT, UAB v. Bright Data Ltd., No. 2:22-CV-011-JRG-RSP, 2022 WL 

18859434, at *1 (E.D. Tex. Dec. 20, 2022) (“Communications before the Patent and Trademark 

Office that are matters of public record are subject to judicial notice and appropriate for this 

Court to consider at the pleading stage.”), report and recommendation adopted, 2023 WL 

416417 (E.D. Tex. Jan. 25, 2023). In particular, a “Statement Under 37 CFR 3.73”3 filed during 

prosecution on January 8, 2013, expressly identifies “Foundry Networks, LLC” as “the assignee 

of the entire right, title, and interest in” U.S. Patent Application No. 10/756,152. Ex. D. In view 

of this fact, OptiMorphix’s allegation that Broadcom is the owner of U.S. Patent Application No. 

10/756,152—and somehow acquired pre-suit knowledge of the ’314 Patent via that patent 

application—is “not accepted as true.” Doe, 653 F. Supp. 3d at 370; see, e.g., Carter, 541 F. 

App’x at 417 (refusing to accept as true factual allegations that were contradicted by documents 

attached to defendant’s motion to dismiss); see also Lone Star, 594 F.3d at 387. 

OptiMorphix’s allegation that Broadcom had pre-suit knowledge of the ’314 Patent 

because “Broadcom has cited the ‘314 patent family as relevant prior art” in Broadcom’s patent 

3

 Section 3.73 of Title 37 of the Code of Federal Regulations is titled “Establishing right of 

assignee to take action” and sets forth the procedure by which an assignee of patent, who is not 

the “original applicant” (i.e., original inventor), may “establish its ownership of the patent 

property ... to the satisfaction of the Director [of the Patent Office].” 37 C.F.R. § 3.73(c)(1). 

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applications (Dkt. 1, ¶ 98 (emphasis added)) also fails to provide a plausible basis for 

Broadcom’s pre-suit knowledge of the ’314 Patent. Indeed, this Court has specifically held that 

a defendant’s pre-suit knowledge “about a company and its technology”—generally—is not 

equivalent to pre-suit knowledge of a specific asserted patent. Network Sys., Dkt. 95, at 7. And 

other courts have likewise held that alleged pre-suit knowledge of a patent family is not 

sufficient to establish pre-suit knowledge of each and every patent in that patent family. See, 

e.g., BillJCo, 583 F. Supp. 3d at 776 (“The Court will not, however, establish a rule that notice 

of one patent in a portfolio or large family constitutes constructive notice of every patent in that 

portfolio or family.”); SiOnyx, LLC v. Hamamatsu Photonics K.K., 330 F. Supp. 3d 574, 609 

(D. Mass. 2018) (“Neither general knowledge of a patent portfolio nor actual knowledge of a 

patent application or of related patents, without more, is sufficient even to plausibly allege 

knowledge of a particular asserted patent.”); Finjan, Inc. v. Juniper Networks, Inc., No. C 17-

05659 WHA, 2018 WL 905909, at *4 (N.D. Cal. Feb. 14, 2018) (finding knowledge of a 

“patent portfolio” insufficient to establish knowledge of a particular patent-in-suit). 

For all these reasons, OptiMorphix’s Complaint fails to sufficiently allege pre-suit 

knowledge of any Asserted Patent because its allegations fail to provide a plausible basis for 

Broadcom’s pre-suit knowledge of any of the Asserted Patents—let alone Broadcom’s pre-suit 

knowledge of infringement of those patents. Accordingly, OptiMorphix’s claims of pre-suit 

willful infringement should thus be dismissed pursuant to Rule 12(b)(6). Network Sys., Dkt. 95, 

at 5–9 (dismissing pre-suit willfulness claims where plaintiff “failed to plausibly plead pre-suit 

knowledge of the Asserted Patents”); Maxell, 2019 WL 7905455, at *5 (same). 

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E. OptiMorphix’s Pre-Suit Indirect Infringement Claims Should be Dismissed. 

For similar reasons, OptiMorphix’s claims for pre-suit induced infringement should be 

dismissed because, inter alia, OptiMorphix’s Complaint fails to sufficiently allege pre-suit 

knowledge of any Asserted Patent by Broadcom—a threshold requirement for induced 

infringement. See Corydoras, 2016 WL 9242435, at *2 (“[A] patentee cannot recover on claims 

of indirect infringement for acts occurring prior to the accused infringer having knowledge of the 

asserted patents.”); Tierra, 2014 WL 1233040, at *2 (holding a defendant “cannot be held liable 

for induced infringement for conduct occurring prior to its knowledge of the patents-in-suit”). 

As discussed immediately above, OptiMorphix’s allegations in the Complaint do not 

offer a plausible theory of Broadcom’s pre-suit knowledge of any of the Asserted Patents. 

Accordingly, OptiMorphix’s pre-suit induced infringement claims “must fail for the same 

reasons above.” Network Sys., Dkt. 95, at 5–9. Indeed, in Network System, this Court dismissed 

both the plaintiff’s pre-suit willfulness claims and pre-suit indirect infringement claims because 

the plaintiff “failed to plausibly plead pre-suit knowledge of the Asserted Patents.” Id. Likewise, 

in Maxell, this Court dismissed both “claims [of] pre-suit indirect and willful infringement” 

because the plaintiff “failed to plausibly allege that [the defendant] had pre-suit knowledge of the 

[asserted] [p]atent.” Maxell, 2019 WL 7905455, at *5. And other courts in this District have 

likewise struck any claim for pre-suit indirect infringement where the plaintiff fails to 

sufficiently plead pre-suit knowledge of the asserted patent(s). See, e.g., Stragent, LLC v. BMW 

of N. Am., LLC, No. 6:16-CV-446-RWS-KNM, 2017 WL 2821697, at *8 (E.D. Tex. Mar. 3, 

2017), report and recommendation adopted, 2017 WL 2832613 (E.D. Tex. Mar. 27, 2017); 

Corydoras, 2016 WL 9242435, at *2; see also BillJCo, 583 F. Supp. 3d at 777–78. 

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V. CONCLUSION 

For the foregoing reasons, Broadcom requests that the Court grant its motion and dismiss 

the Complaint for both improper venue under Fed. R. Civ. P. 12(b)(3) and insufficient service of 

process, under Fed. R. Civ. P. 12(b)(5) and, in any event, dismiss OptiMorphix’s claims of direct 

infringement, pre-suit willful infringement, and pre-suit indirect infringement for failure to state 

a claim upon which relief may be granted, under Fed. R. Civ. P. 12(b)(6). 

 

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DATED: January 26, 2024 Respectfully submitted, 

KILPATRICK, TOWNSEND & 

STOCKTON LLP 

/s/ Kristopher L. Reed 

Kristopher L. Reed 

2001 Ross Avenue, Suite 4400 

Dallas, TX 75201 

Telephone: (214) 922-7143 

Facsimile: (214) 922-7101 

kreed@ktslaw.com 

Russell A. Korn 

1100 Peachtree Street NE, Ste. 2800 

Atlanta, GA, USA, 30309 

Telephone: (404) 815-6500 

Facsimile: (404) 815-6555 

rkorn@ktslaw.com 

Joshua H. Lee 

1100 Peachtree Street NE, Ste. 2800 

Atlanta, GA, USA, 30309 

Telephone: (404) 815-6500 

Facsimile: (404) 815-6555 

jlee@ktslaw.com

Edward J. Mayle 

1400 Wewatta St., Ste. 600 

Denver, CO 80202 

Telephone: (303) 571-4000 

Facsimile: (303) 571-4321 

tmayle@kilpatricktownsen.com 

Counsel for Defendant Broadcom Inc. 

 

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that counsel of record who are deemed to have 

consented to electronic service are being served with a copy of the foregoing via the Court’s 

CM/ECF system per Local Rule CV-5(a)(3) on January 26, 2024. 

/s/ Kristopher L. Red 

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