IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TEXARKANA DIVISION 

OPTIMORPHIX, INC., 

Plaintiff, 

v. 

CA, INC., 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

Civil Action No. 5-23-cv-00134 

JURY TRIAL DEMANDED 

DEFENDANT CA, INC.’S REPLY BRIEF IN SUPPORT OF 

MOTION TO DISMISS FIRST AMENDED COMPLAINT 

Case 5:23-cv-00134-RWS-JBB Document 34 Filed 03/27/24 Page 1 of 10 PageID #: 572
TABLE OF CONTENTS 

Page 

- i -

I. THE FAC DOES NOT PROVIDE A PLAUSIBLE THEORY AS TO ANY 

PRE-SUIT KNOWLEDGE OF ANY ASSERTED PATENT BY CA .......................... 1

A. OptiMorphix’s Allegations Regarding the Purported “Well-Known” 

Nature of the Asserted Patents in the Industry Are Insufficient ......................... 1

B. OptiMorphix’s Allegation Regarding Foundry Networks, LLC’s PreSuit Knowledge of the ’314 Patent Is Insufficient .............................................. 3

C. OptiMorphix’s Allegations Regarding the Original Complaint Filed 

Against Broadcom Inc. Are Insufficient ............................................................. 4

II. OPTIMORPHIX’S CLAIMS OF PRE-SUIT WILLFUL INFRINGEMENT 

AND PRE-SUIT INDIRECT INFRINGEMENT SHOULD BE DISMISSED ............. 5

Case 5:23-cv-00134-RWS-JBB Document 34 Filed 03/27/24 Page 2 of 10 PageID #: 573
TABLE OF AUTHORITIES 

Page 

- ii -

Cases 

Dynamic Data Technologies v. Google LLC, 

C.A. No. 19-1529-CFC, 2020 WL 1285852 (D. Del. Mar. 18, 2020) .......................................3 

Elm 3DS Innovations, LLC v. Samsung Elecs. Co., 

C.A. No. 14-1430-LPS-CJB, 2015 WL 5725768 (D. Del. Sept. 29, 2015) ...........................2, 3 

HOYA Corp. v. Alcon Inc., 

No. 3:20-CV-03629-M, 2021 WL 4476739 (N.D. Tex. Sept. 30, 2021) ..................................5 

Investpic, LLC v. FactSet Research Systems, Inc., 

C.A. No. 10-1028-SLR, 2011 WL 4591078 (D. Del. Sept. 30, 2011) ......................................3 

Mobile Telecommunications Techs., LLC v. Blackberry Corp., 

No. 3:12-CV-1652-M, 2016 WL 1642927 (N.D. Tex. Apr. 26, 2016) .....................................4 

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

No. 2:22-CV-00482-RWS, Dkt. 95 (E.D. Tex. Sept. 25, 2023) ............................................1, 4 

Plano Encryption Techs., LLC v. Alkami Tech., Inc., 

No. 2:16-CV-1032-JRG, 2017 WL 8727249 (E.D. Tex. Sept. 22, 2017) .................................4 

Soverain IP, LLC v. Microsoft Corp., 

No. 2:17-CV-00204-RWS-RSP, 2018 WL 1465792 (E.D. Tex. Mar. 26, 2018) ..................1, 2 

ZitoVault, LLC v. Int’l Bus. Machines Corp., 

No. 3:16-CV-0962-M, 2018 WL 2971131 (N.D. Tex. Mar. 29, 2018) .....................................4 

Case 5:23-cv-00134-RWS-JBB Document 34 Filed 03/27/24 Page 3 of 10 PageID #: 574
- 1 -

Pursuant to Local Rule CV-7, Defendant CA, Inc. (“CA”) hereby submits the following 

Reply Brief with respect to Plaintiff OptiMorphix, Inc.’s (“OptiMorphix”) Opposition (Dkt. 33, 

“Opposition”)) to CA’s Motion to Dismiss (Dkt. 29, “Motion to Dismiss”): 

I. THE FAC DOES NOT PROVIDE A PLAUSIBLE THEORY AS TO ANY PRESUIT KNOWLEDGE OF ANY ASSERTED PATENT BY CA 

In its Motion to Dismiss, CA demonstrated that OptiMorphix’s FAC does not 

sufficiently allege pre-suit knowledge by CA of any Asserted Patent because OptiMorphix’s 

allegations regarding any such purported knowledge are, in fact, based on the alleged 

knowledge of others in the industry—not CA. As held by Your Honor in Network Sys. Tech., 

LLC v. Tex. Instruments Inc., No. 2:22-CV-00482-RWS, Dkt. 95 (E.D. Tex. Sept. 25, 2023), 

such allegations do not provide a plausible theory of CA’s pre-suit knowledge of the Asserted 

Patents. Dkt. 29 at 7–13; see Dkt. 29-2 at 6–9. OptiMorphix’s Opposition fails to acknowledge 

Your Honor’s decision in Network Sys. Tech.—let alone distinguish it. For this and other 

reasons, OptiMorphix’s Opposition fails and OptiMorphix’s claims should be dismissed. 

A. OptiMorphix’s Allegations Regarding the Purported “Well-Known” 

Nature of the Asserted Patents in the Industry Are Insufficient 

As discussed in CA’s Motion to Dismiss—and as expressly previously held by Your 

Honor in Network Sys. Tech.—OptiMorphix’s allegations regarding the purported “well-known” 

nature of each Asserted Patent “within the industry” (based on citations by third parties) “fail[] 

to plausibly plead pre-suit knowledge of the Asserted Patents” by CA in particular. Dkt. 29 at 8–

9 (citing Network Sys. Tech.); see Dkt. 29-2 at 6–9. Critically, OptiMorphix’s Opposition fails to 

acknowledge Your Honor’s decision in Network Sys. Tech.—let alone distinguish it. 

At most, OptiMorphix’s Opposition simply suggests this Court’s earlier decision in 

Soverain IP, LLC v. Microsoft Corp. as well as two decisions from the District of Delaware 

Case 5:23-cv-00134-RWS-JBB Document 34 Filed 03/27/24 Page 4 of 10 PageID #: 575
- 2 -

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

Asserted Patent “within the industry” do “sufficiently plead CA’s pre-suit knowledge of the 

Asserted Patents.” Dkt. 33 at 8–9. OptiMorphix is wrong, as the cases it cites are readily 

distinguishable. The courts’ findings in those cases were based on the combination of multiple 

discrete allegations—the most critical of which are absent from OptiMorphix’s FAC here. 

In Soverain IP, this Court held the plaintiff’s allegations “sufficient for the Court to 

reasonably infer [the defendant] knew of the asserted patents” because the allegations that “each 

patent is well-known in the industry by virtue of citations in patents and published applications” 

was combined with specific allegations that the defendant had cited the patents-in-suit “in eleven 

of its own patent applications.” No. 2:17-CV-00204-RWS-RSP, 2018 WL 1465792, at *2 (E.D. 

Tex. Mar. 26, 2018). Similarly, in Elm 3DS Innovations, LLC v. Samsung Elecs. Co., the 

plaintiff’s allegation that the asserted patent “was well known in the semiconductor industry” 

was combined with allegations that (i) “inventor of the patent-in-suit[] made a presentation to 

Defendants on Elm’s 3DS technology and sent Defendants a copy of ... the parent patent to the 

[patent-in-suit]” and (ii) “Defendants cited to four Elm 3DS patents”—including the parent 

patent to the patent-in-suit—“in prosecuting a number of Defendants’ own patents.” C.A. No. 

14-1430-LPS-CJB, 2015 WL 5725768, at *1 (D. Del. Sept. 29, 2015). 

In contrast, OptiMorphix’s FAC here is devoid of any allegations regarding any pre-suit 

presentations or other pre-suit notice to CA of any Asserted Patent. OptiMorphix’s FAC is also 

devoid of allegations regarding the citation of any Asserted Patent or related patent in any of 

CA’s own patents. See Dkt. 29 at 10–11. Thus, the primary allegations that permitted the 

Soverain IP and Elm 3DS courts to infer that the defendants there had pre-suit knowledge of the 

patent(s)-in-suit are absent here. Rather, OptiMorphix’s FAC contains only bare allegations that 

Case 5:23-cv-00134-RWS-JBB Document 34 Filed 03/27/24 Page 5 of 10 PageID #: 576
- 3 -

the Asserted Patents are “well-known within the industry” and have been cited in “patents and 

patent applications” assigned to third parties (e.g., Dkt. 23, ¶¶ 71, 99, 122, 149, 175)—

allegations that, standing alone, even the Elm 3DS court considered “not [] sufficient” to plead 

pre-suit knowledge. Elm 3DS, 2015 WL 5725768, at *3.1 

B. OptiMorphix’s Allegation Regarding Foundry Networks, LLC’s Pre-Suit 

Knowledge of the ’314 Patent Is Insufficient 

OptiMorphix openly acknowledges that its allegation regarding CA’s alleged pre-suit 

knowledge of the ’314 Patent is based on the knowledge of another: Foundry Networks, LLC. 

Dkt. 33 at 10; see Dkt. 29 at 10–11. OptiMorphix contends, however, that its allegation regarding 

Foundry Networks, LLC “plausibly allege[s] CA’s earlier pre-suit knowledge of the ‘314 Patent” 

because “Foundry Networks, LLC was acquired by Brocade Communications Systems, ... 

[which] was, in turn, acquired by Broadcom Limited, which is now known as Broadcom Inc.,” 

which subsequently acquired CA. Dkt. 33 at 10. OptiMorphix is wrong. OptiMorphix cannot 

impute knowledge of the ’314 Patent across three different corporate acquisitions spaced over 

more than a decade. Indeed, “[k]nowledge of a patent by a parent corporation is not necessarily 

imputed to its subsidiary”—especially here, where OptiMorphix has failed to plead anything 

“more than just the bare facts of the parent/subsidiary relationship” between Broadcom Inc. and 

1

 OptiMorphix’s reliance on the out-of-District Investpic decision is also unpersuasive. In that 

decision, the court found plaintiff’s allegation that the patent-in-suit was “well-known in the 

industry” was sufficient because, in the court’s opinion, “if a patent is ‘publicly’ known, one 

can infer ... that an individual defendant had knowledge of it.” Investpic, LLC v. FactSet 

Research Systems, Inc., C.A. No. 10-1028-SLR, 2011 WL 4591078, at *2 (D. Del. Sept. 30, 

2011). Later decisions have shown that Investpic is not the correct standard, as other courts in 

that same District have recently found allegations regarding the “well-known” nature of a 

patent-in-suit insufficient to plead a specific defendant’s pre-suit knowledge of the patent-insuit. E.g., Dynamic Data Technologies v. Google LLC, C.A. No. 19-1529-CFC, 2020 WL 

1285852, at *2 (D. Del. Mar. 18, 2020); see Dkt. 29 at 9 (summarizing Dynamic Data). 

Case 5:23-cv-00134-RWS-JBB Document 34 Filed 03/27/24 Page 6 of 10 PageID #: 577
- 4 -

CA (as well as Brocade Communications and Foundry Networks). ZitoVault, LLC v. Int’l Bus. 

Machines Corp., No. 3:16-CV-0962-M, 2018 WL 2971131, at *3 (N.D. Tex. Mar. 29, 2018). 

The cases cited by OptiMorphix are off point. In Plano Encryption Techs., LLC v. Alkami 

Tech., Inc., the court held that pre-suit knowledge of the asserted patent by two defendants could 

be attributed to a third defendant under plaintiff’s “joint enterprise theory of infringement.” No. 

2:16-CV-1032-JRG, 2017 WL 8727249, at *5–6 (E.D. Tex. Sept. 22, 2017). OptiMorphix’s FAC 

is devoid of any such theory. See Dkt. 23. The court in Mobile Telecommunications Techs., LLC 

v. Blackberry Corp. found dismissal “inappropriate” because the defendant there “ha[d] not 

identified any authority that the specific facts establishing that knowledge may be imputed [from 

a parent to a subsidiary] must be alleged in order to avoid dismissal at the pleading stage.” No. 

3:12-CV-1652-M, 2016 WL 1642927, at *2 (N.D. Tex. Apr. 26, 2016). CA has provided such 

authority here (see Dkt. 29 at 8, 11), which OptiMorphix’s Opposition fails to address. 

C. OptiMorphix’s Allegations Regarding the Original Complaint Filed 

Against Broadcom Inc. Are Insufficient 

OptiMorphix’s allegations regarding CA’s knowledge of the Asserted Patents based on 

the filing of the Original Complaint against Broadcom Inc. on November 20, 2023 (see Dkt. 33 

at 6–8) also fails. These allegations necessarily fail to provide a plausible theory of CA’s pre-suit

knowledge of the Asserted Patents. Your Honor held in Network Sys. Tech. that a plaintiff’s 

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

of the complaint” does “not offer a plausible theory of [d]efendants’ pre-suit knowledge.” Dkt. 

29-2 at 5. Moreover, as discussed above, alleged knowledge of the Asserted Patents by 

Broadcom Inc. via the Original Complaint “is not necessarily imputed to its subsidiary [CA].” 

ZitoVault, 2018 WL 2971131, at *3. It is likewise improper to impute knowledge of Broadcom 

Inc.’s outside counsel to CA, contrary to OptiMorphix’s suggestion. See Dkt. 33 at 7. 

Case 5:23-cv-00134-RWS-JBB Document 34 Filed 03/27/24 Page 7 of 10 PageID #: 578
- 5 -

OptiMorphix’s reliance on HOYA Corp. v. Alcon Inc. is misplaced. There, the court held 

it could attribute the knowledge of a parent to its subsidiaries given that “in-house counsel ... 

[that] worked for [the] various Alcon entities joined as Defendants” had knowledge of the 

asserted patents from his personal involvement in patent prosecution activities of the defendants. 

No. 3:20-CV-03629-M, 2021 WL 4476739, at *3 (N.D. Tex. Sept. 30, 2021). In contrast here, 

OptiMorphix fails to identify any in-house counsel (i.e., employee) of either Broadcom Inc. or 

CA that had pre-suit knowledge of any Asserted Patent. And even if Broadcom Inc.’s outside

counsel’s knowledge of the Asserted Patents via the Original Complaint could be imputed to CA 

(it cannot), such knowledge fails to provide a plausible theory of any indirect or willful 

infringement by CA prior to November 20, 2023 (the filing of the Original Complaint). Dkt. 1. 

II. OPTIMORPHIX’S CLAIMS OF PRE-SUIT WILLFUL INFRINGEMENT AND 

PRE-SUIT INDIRECT INFRINGEMENT SHOULD BE DISMISSED 

For the foregoing reasons, and those set forth in CA’s Motion to Dismiss, CA requests 

that the Court dismiss OptiMorphix’s claims of pre-suit willful infringement and pre-suit indirect 

infringement for failure to state a claim upon which relief may be granted, given OptiMorphix’s 

FAC does not provide any plausible theory regarding pre-suit knowledge by CA of any of the 

Asserted Patents. And OptiMorphix should not be given any leave to further amend because 

OptiMorphix has already amended its complaint once—including in response to the same 

arguments advanced by CA in the present Motion to Dismiss (albeit as advanced by Broadcom 

Inc. previously, see Dkt. 13). See Diaz v. United States, No. 1:17-CV-0041-BL, 2017 WL 

6033028, at *4 (N.D. Tex. Nov. 13, 2017) (dismissing action “without leave to amend” where 

“Plaintiff has already amended his complaint once” and the amended complaint “essentially 

duplicates his prior action” against another defendant), report and recommendation adopted, No. 

1:17-CV-041-C-BL, 2017 WL 5992357 (N.D. Tex. Dec. 1, 2017). 

Case 5:23-cv-00134-RWS-JBB Document 34 Filed 03/27/24 Page 8 of 10 PageID #: 579
- 6 -

DATED: March 27, 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 CA, Inc. 

 

Case 5:23-cv-00134-RWS-JBB Document 34 Filed 03/27/24 Page 9 of 10 PageID #: 580
- 7 -

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 March 27, 2024. 

/s/ Kristopher L. Reed 

Case 5:23-cv-00134-RWS-JBB Document 34 Filed 03/27/24 Page 10 of 10 PageID #: 581