UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

VIRTAMOVE, CORP.,

Plaintiff,

v.

HEWLETT PACKARD ENTERPRISE 

COMPANY,

Defendant.

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Case No. 2:24-cv-00093-JRG

JURY TRIAL DEMANDED

DEFENDANT HEWLETT PACKARD ENTERPRISE COMPANY’S RULE 12(b)(6)

PARTIAL MOTION TO DISMISS 

Case 2:24-cv-00093-JRG Document 22 Filed 04/15/24 Page 1 of 11 PageID #: 107
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TABLE OF CONTENTS

Page

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

II. STATEMENT OF FACTS ................................................................................................. 1

III. LEGAL STANDARD......................................................................................................... 2

IV. ARGUMENT...................................................................................................................... 2

A. VirtaMove Fails to State a Claim for Pre-Suit Indirect Infringement. ................... 2

B. VirtaMove Fails to State a Claim for Pre-Suit Willful Infringement. .................... 6

V. CONCLUSION................................................................................................................... 7

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DEFENDANT’S RULE 12(b)(6) PARTIAL MOTION TO DISMISS – Page 1

I. INTRODUCTION

Plaintiff VirtaMove Corp.’s (“VirtaMove” or “Plaintiff”) complaint (Dkt. 1 or 

“Complaint”) fails to plead that Defendant Hewlett Packard Enterprise Company (“HPE”) had presuit knowledge of one of the asserted patents, and similarly fails to plead that HPE had pre-suit 

knowledge of alleged infringement as to either of the asserted patents. HPE therefore respectfully 

submits this Rule 12(b)(6) motion to partially dismiss VirtaMove’s claims for pre-suit indirect 

infringement and pre-suit willful infringement.

II. STATEMENT OF FACTS

VirtaMove’s Complaint alleges that HPE infringes U.S. Pat. Nos. 7,519,814 (the “’814 

Patent”) and 7,784,058 (the “’058 Patent”) (collectively, the “Asserted Patents”). Dkt. 1 ¶ 1. 

Specifically, the Complaint alleges that HPE’s Ezmeral Runtime Enterprise (the “Accused 

Product”), a software product, directly infringes the Asserted Patents, based on its alleged use of

the open-source Kubernetes system maintained by not-for-profit third party Cloud Native 

Computing Foundation and the open-source Docker “containers” developed by third party Docker, 

Inc. See id. ¶¶ 12, 22; id., Ex. 2 at 6–12 (citing 

https://support.hpe.com/hpesc/public/docDisplay?docId=a00ecp54hen_us&docLocale=en_US&

page=home/about-hpe-ezmeral-container-pl/GEN_Definitions.html and 

https://www.docker.com/blog/the-10-most-common-questions-it-admins-ask-about-docker/). 

The Complaint also alleges indirect (induced and contributory) infringement of both Asserted 

Patents, as well as willful infringement of the ’814 Patent. See id. ¶¶ 12–18, 22–27.

Regarding the ’814 Patent, the Complaint alleges that HPE “knew of . . . at least one of the 

patents long before this suit was filed and at least as early as 2012.” Id. ¶ 14. In particular, the 

Complaint alleges that “the ’814 Patent was cited in connection with at least the following patents: 

U.S. Patent Nos. 10,489,354, 10,749,740, 11,467,775, 11,687,267, 11,693,573.” Id. The 

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DEFENDANT’S RULE 12(b)(6) PARTIAL MOTION TO DISMISS – Page 2

Complaint does not make a similar allegation for the ’058 Patent. The Complaint does not allege 

that HPE had knowledge of any alleged infringement of either Asserted Patent.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 8 requires a “statement of the claim showing that the 

pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A complaint that fails to meet this pleading 

standard may be dismissed for failure to state a claim. See FED. R. CIV. P. 12(b)(6). A complaint 

will survive a motion to dismiss only if the plaintiff alleges facts sufficient to state a plausible 

claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Thompson v. City of Waco, 

764 F.3d 500, 503 (5th Cir. 2014) (citing Twombly, 550 U.S. at 570). “[B]are assertions” or 

“conclusory statements” are insufficient to avoid dismissal. Ashcroft v. Iqbal, 556 U.S. 662, 678, 

698 (2009); see also Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (proper 

factual allegations must offer more than conclusory assertions or legal conclusions “masquerading 

as factual conclusions”).

IV. ARGUMENT

Because VirtaMove’s Complaint fails to plead that HPE has (1) pre-suit knowledge of the 

’058 Patent and (2) pre-suit knowledge of the alleged infringement of either Asserted Patent, 

VirtaMove has not pled facts sufficient to support plausible claims for pre-suit indirect

infringement or for pre-suit willful infringement. Accordingly, those claims should be dismissed.

A. VirtaMove Fails to State a Claim for Pre-Suit Indirect Infringement.

To state a claim for induced infringement, VirtaMove must plead facts showing “that 

[HPE] knew of the patent, knowingly induced the infringing acts, and possessed a specific intent 

to encourage another’s infringement of the patent.” Vita-Mix Corp. v. Basic Holding, Inc., 581 

F.3d 1317, 1328 (Fed. Cir. 2009). Indeed, the Supreme Court has held that “liability for inducing 

infringement attaches only if the defendant knew of the patent and that ‘the induced acts constitute 

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patent infringement.’” Commil USA, LLC v. Cisco Sys., Inc., 575 U.S. 632, 1926 (2015) (citing 

Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011)). Moreover, “[l]ike induced 

infringement, contributory infringement requires knowledge of the patent in suit and knowledge 

of patent infringement.” Commil, 575 U.S. at 1926; see also Estech Sys. IP, LLC v. Mitel 

Networks, Inc., No. 2:21-CV-00473-JRG-RSP, 2023 WL 6115252, at *3 (E.D. Tex. July 17, 

2023), R&R adopted, No. 2:21-CV-00473-JRG-RSP, 2023 WL 6065865 (E.D. Tex. Aug. 2, 2023) 

(“Knowledge of the patent by itself is insufficient [to establish induced infringement]; knowledge 

of another’s direct infringement resulting from the accused’s conduct is also required.”); BillJCo, 

LLC v. Apple Inc., 583 F. Supp. 3d 769, 777 (W.D. Tex. 2022) (“[I]ndirect infringement claims 

require a showing that the accused infringer knew of its infringement.”).

First, VirtaMove has failed to state a claim for indirect infringement (either induced or 

contributory) of the ’058 Patent because it has not alleged pre-suit knowledge of that patent. 

Indeed, the Complaint makes no factual allegation that HPE had knowledge of the ’058 Patent 

before this suit was filed. See Dkt. 1 ¶¶ 22–27. Because the Complaint does not plead facts to 

plausibly support any inference that HPE had pre-suit knowledge of the ’058 Patent, the Court 

should dismiss VirtaMove’s claims for pre-suit indirect infringement (induced and contributory)

of the ’058 Patent. See CyboEnergy, Inc., v. Hoymiles Power Elecs. USA, Inc., No. 2:23-CV00311-JRG, 2024 WL 1219725, at *6 (E.D. Tex. Mar. 20, 2024) (dismissing pre-suit indirect 

infringement because “Plaintiff has failed to plead any facts plausibly showing that Defendant 

knew of the Asserted Patents prior to this lawsuit”).

Second, VirtaMove fails to state a claim for pre-suit indirect infringement of either

Asserted Patent, because its Complaint does not plead pre-suit knowledge of HPE’s alleged 

infringement of those patents.

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With respect to the ’058 Patent, the Complaint fails to allege pre-suit knowledge of the 

patent (as noted above), so it follows that the Complaint fails to allege pre-suit knowledge of the 

alleged infringement of that patent. 

With respect to the ’814 Patent, VirtaMove’s Complaint at best alleges that HPE 

supposedly knew of the patent’s existence. But these allegations are not sufficient to support a

plausible inference that HPE had pre-suit knowledge of alleged infringement of the ’814 Patent. 

In particular, the Complaint identifies certain instances where “the ’814 Patent was cited in 

connection with” HPE’s own patents. See Dkt. 1 ¶ 14. The Complaint is silent as to how and/or

when the ’814 Patent was allegedly cited. Id. To the extent that VirtaMove intends to rely on

citation by the examiner during prosecution, an examiner’s citation is insufficient to show 

knowledge of the patent, let alone knowledge of infringement. See Elbit Sys. Land & C4I Ltd. v. 

Hughes Network Sys., LLC, No. 2:15-CV-37-RWS-RSP, 2016 WL 3878246, at *3 (E.D. Tex. Mar. 

30, 2016) (citation omitted). Because patent examiners do not compare the applicant’s products 

to the prior art when examining a patent application, knowledge of infringement cannot be 

plausibly inferred based solely on an examiner’s citation to prior art. See, e.g., VLSI Tech. LLC v. 

Intel Corp., No. 17-CV-05671-BLF, 2023 WL 8654391, at *30 (N.D. Cal. Dec. 14, 2023) (finding 

no pre-suit indirect infringement because “even substantive references to patents in the alleged 

infringer’s patent prosecutions, without more, fail to sufficiently allege knowledge of 

infringement” (quoting MasterObjects, Inc. v. Amazon.com, Inc., No. C 20-08103 WHA, 2021 

WL 4685306, at *5 (N.D. Cal. Oct. 7, 2021)). Furthermore, mere citation of a reference—whether 

by the examiner or by the applicant—has nothing to do with infringement, and VirtaMove’s 

Complaint does not allege that the examiner or HPE ever compared the Accused Product to the 

Asserted Patents or otherwise conducted any infringement analysis. In fact, to the extent that the 

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’814 Patent was cited between 2012 and 2020, it would not be plausible for VirtaMove to assert 

that such a comparison or analysis was—or could have been—conducted at that time, as 

VirtaMove does not and cannot allege that the Accused Product existed before 2020.

1

 Nor does 

the Complaint allege that VirtaMove itself notified HPE of the alleged infringement of either 

Asserted Patent, e.g., via a pre-suit notice letter, via pre-suit claim charts detailing how HPE 

allegedly infringes, or through pre-suit negotiations. Indeed, the Complaint does not assert that 

VirtaMove ever mentioned the ’814 Patent (or any of its family members) to HPE before this 

lawsuit. 

Accordingly, because the Complaint does not allege any facts to support a plausible 

inference that HPE had pre-suit knowledge of the infringement of either Asserted Patent, the Court 

should dismiss VirtaMove’s claims for pre-suit indirect infringement as to both Asserted Patents. 

See CyboEnergy, 2024 WL 1219725, at *6 (noting, in dismissing claim for pre-suit indirect 

infringement, that plaintiff “failed to plead facts plausibly showing that Defendant knew that end 

users’ acts constituted infringement ‘with respect to the time period pre-dating the filing of the 

complaint’”); BillJCo, LLC, 583 F. Supp. 3d at 777–78 (“Mere knowledge of the Asserted Patents 

is not enough.”); Monolithic Power Sys., Inc. v. Meraki Integrated Cir. (Shenzhen) Tech., Ltd., No. 

6:20-CV-008876-ADA, 2021 WL 3931910, at *5 (W.D. Tex. Sept. 1, 2021) (holding allegation 

of “prior knowledge of the asserted technology [alone] does not advance a plausible inference of 

induced infringement”).

2

 

1 The Accused Product was not released before 2020. See, e.g., https://community.hpe.com/t5/thecloud-experience-everywhere/eliminate-security-blind-spots-with-the-kubernetes-platformfor/ba-p/7114592.

2 Based on its pleading, at minimum, VirtaMove’s “indirect infringement claims must be limited 

to post-filing conduct.” Corydoras Techs., LLC v. Apple Inc., No. 2:16-CV-00538-JRG, 2016 WL 

9242435, at *2 (E.D. Tex. Nov. 23, 2016).

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DEFENDANT’S RULE 12(b)(6) PARTIAL MOTION TO DISMISS – Page 6

B. VirtaMove Fails to State a Claim for Pre-Suit Willful Infringement.

As with indirect infringement, to state a claim for willful infringement for the ’814 Patent,

3

VirtaMove must show that HPE had knowledge of both the ’814 Patent and the alleged

infringement. See Bayer Healthcare LLC v. Baxalta Inc., 989 F.3d 964, 987–88 (Fed. Cir. 2021) 

(“Knowledge of the asserted patent and evidence of infringement is necessary, but not sufficient, 

for a finding of willfulness. Rather, willfulness requires deliberate or intentional infringement.”) 

(citing Eko Brands, LLC v. Adrian Rivera Maynez Enters., Inc., 946 F.3d 1367, 1378 (Fed. Cir. 

2020)); Monolithic, 2021 WL 3931910, at *5 (willful infringement requires that accused infringer

“knew, or should have known, that its conduct amounted to infringement of the patent”). 

Critically, knowledge of the patent and of the alleged infringement “are distinct elements, and 

without more factual allegations supporting knowledge of infringement, the pleading standard is 

not met.” Monolithic, 2021 WL 3931910, at *5; see also Sonos, Inc. v. Google LLC, 591 F. Supp. 

3d 638, 643 (N.D. Cal. 2022), leave to appeal denied, No. 22-CV-00134, 2022 WL 1486359 (Fed. 

Cir. May 11, 2022) (“With respect to willfulness . . . knowledge of the patent and knowledge of 

infringement must be pled with plausibility.”).

As discussed above with respect to VirtaMove’s claim for pre-suit indirect infringement, 

VirtaMove has failed to plead facts that plausibly show that HPE had pre-suit knowledge of its 

alleged infringement of the ’814 Patent. For that reason, the Court should dismiss VirtaMove’s 

claims for pre-suit willful infringement as to the ’814 Patent. See Touchstream Techs., 2024 WL 

1117930, at *3; Monolithic, 2021 WL 3931910, at *5 (dismissing claim for pre-suit willful 

infringement because plaintiff “has not sufficiently alleged that [defendant] knew or should have 

 

3 Because VirtaMove’s Complaint does not allege willful infringement of the ’058 Patent, this 

Section only addresses the ’814 Patent.

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DEFENDANT’S RULE 12(b)(6) PARTIAL MOTION TO DISMISS – Page 7

known its conduct amounted to infringement”); VLSI, 2023 WL 8654391, at *30 (finding no presuit willful infringement because “[Applicant’s] citation is at best evidence of knowledge of the 

patent, but is not evidence of knowledge of infringement”).

V. CONCLUSION

For the reasons set forth above, HPE respectfully asks the Court to dismiss VirtaMove’s 

claims for pre-suit indirect infringement and pre-suit willful infringement.

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DEFENDANT’S RULE 12(b)(6) PARTIAL MOTION TO DISMISS – Page 8

Dated: April 15, 2024

Respectfully submitted,

/s/ Jennifer H. Doan

Jennifer H. Doan

Texas Bar No. 08809050

Joshua R. Thane

Texas Bar No. 24060713

HALTOM & DOAN

6500 Summerhill Road, Suite 100

Texarkana, TX 75503

Telephone: (903) 255-1000

Facsimile: (903) 255-0800

Email: jdoan@haltomdoan.com

Email: jthane@haltomdoan.com

Katharine Burke (Lead Attorney)

DC Bar Number: 985333

Katharine.burke@bakerbotts.com

BAKER BOTTS L.L.P.

700 K Street, N.W.

Washington, DC 20001-5692

Tel: (202) 639-7700

Fax: (202) 639-7890

Douglas M. Kubehl

Texas Bar No. 00796909

Doug.kubehl@bakerbotts.com

Morgan Mayne

Texas Bar No. 24084387

Morgan.mayne@bakerbotts.com

Emily Deer

Texas Bar No. 24116352

Emily.deer@bakerbotts.com

BAKER BOTTS L.L.P.

2001 Ross Avenue, Suite 900

Dallas, TX 75201-2980

Tel: (214) 953-6500

Fax: (214) 953-6503

ATTORNEYS FOR DEFENDANT

HEWLETT PACKARD ENTERPRISE 

COMPANY

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DEFENDANT’S RULE 12(b)(6) PARTIAL MOTION TO DISMISS – Page 9

CERTIFICATE OF SERVICE

I hereby certify that on April 15, 2024, all counsel of record who are deemed to have

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

CM/ECF system.

/s/ Jennifer H. Doan

Jennifer H. Doan

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