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-134-RWS-JBB

JURY TRIAL DEMANDED

OPTIMORPHIX, INC.’S OPPOSITION TO DEFENDANT CA, INC.’S 

MOTION TO DISMISS FIRST AMENDED COMPLAINT

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TABLE OF CONTENTS

I. Introduction .......................................................................................................................... 1

II. Background .......................................................................................................................... 2

III. Legal Standards .................................................................................................................... 5

IV. Argument .............................................................................................................................. 5

A. The FAC Sufficiently Pleads Willful Infringement. ..................................................... 5

B. The FAC Sufficiently Pleads Indirect Infringement. .................................................. 11

V. Conclusion .......................................................................................................................... 12

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TABLE OF AUTHORITIES

CASES

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ............................................................................................................ 5 

Bell v. Twombly, 

550 U.S. 544 (2007) ............................................................................................................ 5 

Bowlby v. City of Aberdeen, 

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

Canon, Inc. v. TCL Elecs Holdings Ltd., 

2020 U.S. Dist. LEXIS 52162 (E.D. Tex. Mar. 25, 2020).................................................. 7 

Commil USA, LLC v. Cisco Sys., 

135 S. Ct. 1920 (2015) ...................................................................................................... 11 

Elm 3DS Innovations, Ltd. Liab. Co. v. Samsung Elecs. Co., 

2015 U.S. Dist. LEXIS 130699 (D. Del. Sep. 29, 2015) .................................................... 8 

Elm 3DS Innovations, Ltd. Liab. Co. v. SK hynix Inc., 

2016 U.S. Dist. LEXIS 42945 (D. Del. Mar. 31, 2016) ..................................................... 9 

Erickson v. Pardus, 

551 U.S. 89 (2007) .............................................................................................................. 5 

Hoya Corp. v. Alcon Inc., 

2021 U.S. Dist. LEXIS 187764 (N.D. Tex. Sep. 30, 2021) ................................................ 7 

InvestPic, LLC v. FactSet Research Sys., 

2011 U.S. Dist. LEXIS 112891 (D. Del. Sep. 30, 2011) .................................................... 9 

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

2016 U.S. Dist. LEXIS 55206 (N.D. Tex. Apr. 26, 2016)............................................ 7, 10 

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

2017 U.S. Dist. LEXIS 221765 (E.D. Tex. Sep. 22, 2017) .............................................. 10 

Skinner v. Switzer, 

562 U.S. 521 (2011) ............................................................................................................ 5 

Soar Tools, LLC v. Mesquite Oil Tools, Inc., 

2020 U.S. Dist. LEXIS 166493 (N.D. Tex. Sep. 11, 2020) .............................................. 12 

Solocron Educ., LLC v. Healthstream, Inc., 

2016 U.S. Dist. LEXIS 189974 (E.D. Tex. June 7, 2016) .................................................. 5 

Soverain IP, LLC v. Microsoft Corp., 

2018 U.S. Dist. LEXIS 49661 (E.D. Tex. Mar. 26, 2018).................................................. 9 

Titanide Ventures, LLC v. IBM Corp., 

2012 U.S. Dist. LEXIS 163430 (E.D. Tex. Oct. 18, 2012) .............................................. 12 

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USC IP P’ship, L.P. v. Facebook, Inc., 

2021 U.S. Dist. LEXIS 137424 (W.D. Tex. July 23, 2021) ................................... 6, 11, 12

Walker Dig., LLC v. Facebook, Inc., 

852 F. Supp. 2d 559 (D. Del. 2012).................................................................................. 10

RULES

Fed. R. Civ. P. 8(a)(2)..................................................................................................................... 5

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

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I. INTRODUCTION

This is a patent infringement action. Dkt. No. 23 (hereinafter “First Amended Complaint” 

or “FAC”). Plaintiff OptiMorphix, Inc. (“OptiMorphix”) owns all rights to 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”). Id. ¶¶ 17, 23, 30, 37, 44. The groundbreaking inventions disclosed in the Asserted 

Patents relate generally to solutions that enable network operators to deliver high-quality, 

consistent mobile data services, including through data optimization solutions designed to 

compress and accelerate data transfer. Defendant CA, Inc. (“CA” or “Defendant”) designs, makes, 

uses, sells, and/or offers for sale products covered by the Asserted Patents. Id. ¶¶ 52-66, 75-93, 

103-117, 126-144, 153-170.

OptiMorphix has sued CA for infringing the Asserted Patents. The First Amended 

Complaint identifies the CA accused products by name and provides detailed factual allegations 

that map the features of the accused products to the claims of the Asserted Patents. Id. The factual 

allegations in the FAC are detailed and weave a durable fabric of plausible infringement claims. 

Indeed, CA has fair notice of what activities are being accused of direct infringement, and it 

therefore does not even attempt to argue otherwise.

Instead, the entire focus of CA’s Motion to Dismiss First Amended Complaint (Dkt. No. 

29, hereinafter, “Motion” or “Mot.”) is on OptiMorphix’s supposed failure to plausibly allege 

claims for pre-suit willful and indirect infringement. More specifically, CA argues that 

OptiMorphix’s pre-suit willful and indirect infringement claims should be dismissed because the

FAC purportedly fails to allege that CA had pre-suit knowledge of the Asserted Patents. CA is 

wrong; the FAC plausibly alleges pre-suit knowledge of the Asserted Patents since at least 

November 2023, when the original Complaint against CA’s parent company, Broadcom, Inc., was 

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filed and served on CA’s registered agent for service of process and notice was given to the same 

attorneys representing CA in this litigation. In addition, CA does not dispute that the FAC

adequately alleges that CA has had knowledge of the Asserted Patents since at least the filing of 

the FAC; this allegation sufficiently pleads claims for post-suit willful and indirect infringement.

For these reasons and those set forth below, CA’s Motion should be denied.

II. BACKGROUND

The Asserted Patents arose from the research and development efforts of Citrix Systems, 

Inc. (“Citrix”) and Bytemobile, Inc. (“Bytemobile”). FAC ¶ 1. The ‘460 Patent, entitled ServiceBased Compression of Content Within a Network Communication System, was filed on March 11, 

2002. Id. ¶ 16. The ‘314 Patent, entitled Systems and Methods for Providing Differentiated 

Services Within a Network Communication System, was filed on April 19, 2002. Id. ¶ 22. The 

‘871 Patent, entitled Platform and Method for Providing Data Services in a Communication 

Network, was filed on January 11, 2006. Id. ¶ 29. The ‘169 Patent, entitled Systems and Methods 

For Video Cache Indexing, was filed on July 29, 2011. Id. ¶ 36. The ‘021 Patent, entitled

Measuring Web Browsing Quality of Experience in Real-Time at An Intermediate Network Node, 

was filed on March 30, 2012. Id. ¶ 43. OptiMorphix is the owner by assignment of the Asserted 

Patents. Id. ¶¶ 17, 23, 30, 37, 44.

The groundbreaking inventions disclosed in the Asserted Patents relate generally to 

solutions that enable network operators to deliver high-quality, consistent mobile data services, 

including through data optimization solutions designed to compress and accelerate data transfer. 

For example, the inventions taught by the ‘314 Patent solve “discrete, technological problems 

associated with computer systems, specifically those related to network communication systems. 

The patent addresses the limitations of existing network infrastructures that were not designed to 

support a wide variety of application-specific and subscriber-specific services as data flows 

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through the network. It also solves the problem of the significant processing penalty associated 

with identifying the data streams on which to perform the differentiated services.” Id. ¶ 27. As 

another example, the ‘871 Patent “is directed to solving the problem of efficiently providing data 

services, such as content filtering, in a communication network. This includes the ability to 

determine whether a packet flow should be suspended for filtering a content request based on 

packet flow characteristics detected at the layers implemented in hardware, without the need for 

assistance from higher layers in the architecture implemented in software.” Id. ¶ 32.

The Asserted Patents are well-known in the networking, content delivery, and cloud 

computing fields. Highlighting the importance and notoriety of the Asserted Patents is the fact 

that OptiMorphix’s patent portfolio has been cited by over 4,800 U.S. and international patents 

and patent applications assigned to a wide variety of the largest companies operating in the 

networking, content delivery, and cloud computing fields. Id. ¶ 8. The Asserted Patents have been 

cited by, inter alia, companies such as Broadcom, Ltd.—CA is a wholly-owned subsidiary of 

Broadcom Inc. (formerly Broadcom, Ltd.); Amazon.com, Inc.; Oracle Corporation; Alphabet, Inc.;

Cisco Systems, Inc.; Lumen Technologies, Inc.; Intel Corporation; Microsoft Corporation; AT&T, 

Inc.; Verizon Communications, Inc.; and Juniper Networks, Inc. Id.

As alleged in the FAC, CA directly infringes each Asserted Patent. Id. ¶¶ 52-66 (alleging 

direct infringement of the ‘460 Patent); id. ¶¶ 75-93 (alleging direct infringement of the ‘314 

Patent); id ¶¶ 103-117 (alleging direct infringement of the ‘871 Patent); id. ¶¶ 126-144 (alleging 

direct infringement of the ‘169 Patent); id. ¶¶ 153-170 (alleging direct infringement of the ‘021 

Patent).

With respect to each Asserted Patent, the FAC sets forth detailed allegations, including by 

referencing product manuals and documents, explaining how the accused CA products meet each 

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and every element of at least one claim of each Asserted Patent. Id. The FAC’s detailed allegations 

more than satisfy the standard for pleading claims for direct infringement, and indeed, CA does 

not argue otherwise.

The FAC further alleges that CA indirectly infringes the Asserted Patents by actively 

inducing infringement under 35 U.S.C. § 271(b). Id. ¶¶ 67-71 (alleging indirect infringement of 

the ‘460 Patent); id. ¶¶ 94-99 (alleging indirect infringement of the ‘314 Patent); id ¶¶ 118-122

(alleging indirect infringement of the ‘871 Patent); id. ¶¶ 145-149 (alleging indirect infringement 

of the ‘169 Patent); id. ¶¶ 171-175 (alleging indirect infringement of the ‘021 Patent).

Contrary to CA’s argument regarding pre-suit knowledge, the FAC plausibly alleges that 

“CA has had knowledge of” each Asserted Patent “since at least November 20, 2023, when the 

Original Complaint in this case was filed against CA’s parent company, Broadcom Inc. CA knew 

of” each Asserted Patent “and knew of its infringement, including by way of the filing of the 

Original Complaint against CA’s parent company Broadcom Inc., which identified” each Asserted 

Patent “and explained how each of the accused products infringe” each Asserted Patent. Id. ¶¶ 68, 

95, 119, 146, 172. The FAC further alleges that each of the Asserted Patents “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.” Id. ¶¶ 71, 

99, 122, 149, 175. In addition, the FAC alleges that CA “intended to induce patent infringement 

by third-party customers and users of the” CA accused products and “had knowledge that the 

inducing acts would cause infringement or was willfully blind to the possibility that its inducing 

acts would cause infringement,” and contains detailed allegations concerning the manner in which 

CA induced, and continues to induce, infringement of the Asserted Patents. Id. ¶¶ 70, 98, 121, 

148, 174. As explained below, the FAC’s allegations satisfy the standard for pleading claims for 

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both pre-suit and post-suit induced and willful infringement. CA’s Motion therefore should be 

denied.

III. LEGAL STANDARDS

CA bears the burden of demonstrating that the FAC fails to state a claim upon which relief 

can be granted. Federal Rule of Civil Procedure 8(a)(2) “generally requires only a plausible ‘short 

and plain’ statement of the plaintiff’s claim, not an exposition of [a plaintiff’s] legal argument.” 

Skinner v. Switzer, 562 U.S. 521, 530 (2011). To survive a motion to dismiss under Federal Rule 

of Civil Procedure 12(b)(6), a complaint must “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 v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility standard is met when “the 

plaintiff pleads factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 

at 556). However, “[s]pecific facts are not necessary; the statement need only ‘give the defendant 

fair notice of what the ... claim is and the grounds upon which it rests[.]” Erickson v. Pardus, 551 

U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). “[T]he plausibility requirement is not 

akin to a ‘probability requirement at the pleading stage; it simply calls for enough fact[s] to raise 

a reasonable expectation that discovery will reveal’ that the defendant is liable for the alleged 

misconduct.” Solocron Educ., LLC v. Healthstream, Inc., 2016 U.S. Dist. LEXIS 189974, at *6 

(E.D. Tex. June 7, 2016) (citation omitted).

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court “must 

assume that all well-pleaded facts are true, and view those facts in the light most favorable to the 

plaintiff.” Id. at *5 (citing Bowlby v. City of Aberdeen, 681 F.3d 215, 218 (5th Cir. 2012)).

IV. ARGUMENT

A. The FAC Sufficiently Pleads Willful Infringement.

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CA argues that OptiMorphix’s “claims for pre-suit willful infringement should be 

dismissed because OptiMorphix’s First Amended Complaint fails to sufficiently allege pre-suit 

knowledge of any Asserted Patent by CA—a threshold requirement for willful infringement.” 

Mot. at 7. CA is wrong, and its Motion should be denied with respect to OptiMorphix’s willful

infringement claims.

For willful infringement, a plaintiff is required “to allege facts plausibly showing that the 

accused infringer: ‘(1) knew of the patent-in-suit; (2) after acquiring that knowledge, it infringed 

the patent; and (3) in doing so, it knew, or should have known, that its conduct amounted to 

infringement of the patent.’” USC IP P’ship, L.P. v. Facebook, Inc., 2021 U.S. Dist. LEXIS 

137424, at *3 (W.D. Tex. July 23, 2021) (citation omitted). CA only challenges the first element 

of this test—knowledge of the patents-in-suit—and only with respect to pre-suit willfulness; its 

challenge fails for the reasons explained below.

First, the FAC sufficiently pleads that CA had pre-suit knowledge of the Asserted Patents. 

The FAC alleges that “CA has had knowledge of” each Asserted Patent “since at least November 

20, 2023, when the Original Complaint in this case was filed against CA’s parent company, 

Broadcom Inc. CA knew of” each Asserted Patent “and knew of its infringement, including by 

way of the filing of the Original Complaint against CA’s parent company Broadcom Inc., which 

identified” each Asserted Patent “and explained how each of the accused products infringe” each 

Asserted Patent. FAC ¶¶ 68, 95, 119, 146, 172. CA argues that the filing of the Original Complaint 

against CA’s parent company, Broadcom, Inc., in November 2023 is insufficient to establish CA’s 

knowledge of the Asserted Patents prior to the filing of the FAC on February 23, 2024. Mot. at 8. 

According to CA, the knowledge of Broadcom, its parent company, cannot be imputed to CA. Id. 

CA is wrong. 

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CA and Broadcom are represented by the same attorneys in connection with this litigation. 

In filing a motion to dismiss the Original Complaint on behalf of Broadcom, those attorneys in

fact argued that CA (rather than Broadcom) is the proper Defendant in this case. Dkt. No. 13 at 

1-2 n.1 (stating that “counsel for Broadcom conferred with counsel for OptiMorphix and suggested 

OptiMorphix substitute that subsidiary [CA] for Broadcom ....”). Moreover, those attorneys 

acknowledged that the Original Complaint was served on Corporation Service Company d/b/a 

CSC-Lawyers Incorporating Service Company, located at 211 E. 7th St., Suite 620, Austin, TX 

78701, which is the “the registered agent of CA, Inc.—a subsidiary of Broadcom ....”; in other 

words, even though CA was not named as a defendant in the Original Complaint, it nonetheless 

had notice of the Original Complaint—which contained detailed allegations concerning 

infringement of the Asserted Patents—given that service was effectuated on its registered agent. 

Id. at 13 (emphasis in original). These facts, including the fact that CA and its parent company

Broadcom are represented by the same attorneys in this litigation, give rise to a plausible inference 

that CA had pre-suit knowledge of the Asserted Patents since at least November 2023, when the 

Original Complaint was filed and served. See Hoya Corp. v. Alcon Inc., 2021 U.S. Dist. LEXIS 

187764, at *9 (N.D. Tex. Sep. 30, 2021) (“HOYA has sufficiently pleaded facts to support a 

reasonable inference that Alcon [the parent company] had knowledge of the HOYA patents, and 

because of the interconnected relationships among the Alcon entities through their counsel, the 

knowledge is attributable to the Alcon entities named in this lawsuit.”) (emphasis added). Cf.

Mobile Telecomms. Techs., LLC v. Blackberry Corp., 2016 U.S. Dist. LEXIS 55206, at *7-8 (N.D. 

Tex. Apr. 26, 2016) (holding that “the specific facts establishing that knowledge may be imputed” 

did not need to “be alleged in order to avoid dismissal at the pleading stage”); Canon, Inc. v. TCL 

Elecs Holdings Ltd., 2020 U.S. Dist. LEXIS 52162, at *15-16 (E.D. Tex. Mar. 25, 2020) (holding 

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that allegations of infringement against “Defendants,” encompassing related entities, was 

sufficient to provide “fair notice” of the claims).

In addition, the FAC further alleges that each of the Asserted Patents “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.” FAC ¶¶ 71, 

99, 122, 149, 175. More specifically, for example, the Complaint states that the “‘314 patent 

family has been cited by 1,466 United States and international patents and patent applications as 

relevant prior art. Specifically, 141 United States and international patents and patent applications 

have cited the ‘314 patent itself as relevant prior art.” Id. ¶ 28. Patents issued to companies that 

are major players in the networking, content delivery, and cloud computing fields have cited the 

‘314 Patent as relevant prior art; these companies include Broadcom Limited, Cisco Technology, 

Inc., Alphabet Inc. (Google), Oracle Corporation, International Business Machines Corp., 

Microsoft Corporation, Qualcomm, Inc., Telefonaktiebolaget Lm Ericsson, Intel Corporation, 

Check Point Software Technologies Ltd., Hitachi, Ltd., Open Text Corporation, Fujitsu Limited, 

Broadcom Limited, and Samsung Electronics Co., Ltd. Id. The FAC includes similarly detailed 

allegations demonstrating that the ‘460 Patent, the ‘871 Patent, the ‘169 Patent, and the ‘021 Patent

are all well-known in the networking, content delivery, and cloud computing fields. Id. ¶¶ 21, 35, 

42, 50. Taken together, particularly in view of the other specific allegations discussed above, the 

FAC’s allegations sufficiently plead CA’s pre-suit knowledge of the Asserted Patents. See Elm 

3DS Innovations, Ltd. Liab. Co. v. Samsung Elecs. Co., 2015 U.S. Dist. LEXIS 130699, at *8 (D. 

Del. Sep. 29, 2015) (explaining that “[i]n and of themselves, the allegations regarding (1) 

Defendants’ knowledge of patents related to the ‘239 patent or (2) the ‘239 patent’s ubiquity in 

Defendants’ industry, may not have been sufficient here. And even taken together, they may not 

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make pre-suit knowledge probable. But considered as a whole, they render it at least plausible that 

Defendants were aware of the ‘239 patent and its claims prior to suit.”) (emphasis in original), 

report adopted by Elm 3DS Innovations, Ltd. Liab. Co. v. SK hynix Inc., 2016 U.S. Dist. LEXIS 

42945, at *2 (D. Del. Mar. 31, 2016); Soverain IP, LLC v. Microsoft Corp., 2018 U.S. Dist. LEXIS 

49661, at *5 (E.D. Tex. Mar. 26, 2018) (finding that the plaintiff plausibly alleged pre-suit 

knowledge based on allegations that “each patent is well-known in the industry by virtue of 

citations in patents and published applications” combined with other case-specific allegations; 

“[c]onsidered together, these are sufficient for the Court to reasonably infer AT&T knew of the 

asserted patents.”); InvestPic, LLC v. FactSet Research Sys., 2011 U.S. Dist. LEXIS 112891, at 

*6-7 (D. Del. Sep. 30, 2011) (“Plaintiff alleges at bar that the defendants knew of the ‘291 patent, 

because the ‘291 patent ‘is well-known in the industry - having been cited by at least 79 issued 

U.S. patents since 2001.’ Defendants might disagree with this fact and may be able to prove 

otherwise through discovery; however, taking the factual assertion as true, if a patent is ‘publicly’ 

known, one can infer (i.e., it is more probably true than not) that an individual defendant had 

knowledge of it.”).

1

Finally, with respect to the ‘314 Patent, the FAC contains additional allegations regarding 

pre-suit knowledge. As the FAC alleges: “Alternatively, CA 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 

CA’s parent company Broadcom, which cites the ‘314 patent as relevant prior art, was published. 

In addition, CA’s parent company Broadcom has cited the ‘314 patent family as relevant prior art 

in at least 43 patents that are assigned to and owned by Broadcom.” FAC ¶ 97. These allegations 

 1 OptiMorphix acknowledges there are cases on both sides of this issue, including those cited in 

CA’s Motion, but submits that when viewed together, as they must be, the allegations of the FAC

plausibly allege CA’s pre-suit knowledge of the Asserted Patents.

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plausibly allege CA’s earlier pre-suit knowledge of the ‘314 Patent. See Mobile Telecomms.

Techs., LLC, 2016 U.S. Dist. LEXIS 55206, at *7-8 (finding that knowledge allegations directed 

to a non-defendant entity could be imputed to the defendant entity and rejecting the argument that 

at the motion to dismiss stage, “the specific facts establishing that knowledge may be imputed 

must be alleged in order to avoid dismissal”); Walker Dig., LLC v. Facebook, Inc., 852 F. Supp. 

2d 559, 568 (D. Del. 2012) (“Because Zappos is a wholly owned subsidiary of Amazon, the court 

can infer that Zappos also had pre-suit knowledge of the ‘056 patent.”); Plano Encryption Techs., 

LLC v. Alkami Tech., Inc., 2017 U.S. Dist. LEXIS 221765, at *17-18 (E.D. Tex. Sep. 22, 2017)

(“Google, the corporate entity, engaged an agent to file a patent application on its behalf with 

citations to prior art that Google is deemed to be aware of, at least to some extent. ... [C]itations 

of prior art in patent applications are evidence of knowledge, to be weighed accordingly at the 

proper time in litigation.”).

In opposition, CA argues that the “prosecution records for U.S. Patent Application No. 

10/756,152 ... show that Foundry Networks, LLC—not Broadcom Inc. (or CA)—is the owner of 

U.S. Patent Application No. 10/756,152.” Mot. at 10. But Foundry Networks, LLC was acquired 

by Brocade Communications Systems, 2 and Brocade Communications Systems was, in turn,

acquired by Broadcom Limited,3 which is now known as Broadcom Inc. While the details of the 

corporate acquisition activity leading to Broadcom’s ownership of Foundry Networks’ patents are

outside the scope of the pleadings, the extra-pleading facts raised in CA’s Motion only go to show 

 2 Brocade Announces Definitive Agreement to Acquire Foundry Networks, BROCADE 

COMMUNICATIONS SYSTEMS, INC. PRESS RELEASE (July 21, 2008), available at: 

https://investors.broadcom.com/node/39081/html (accessed Mar. 18, 2024). 

3 Broadcom Completes Acquisition of Brocade Communications Systems, BROADCOM LIMITED 

PRESS RELEASE (Nov. 17, 2017), available at: https://investors.broadcom.com/newsreleases/news-release-details/broadcom-completes-acquisition-brocade-communications-systems 

(accessed Mar. 18, 2024).

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the FAC properly pleads (contrary to CA’s argument) that “U.S. Patent Application No. 

10/756,152 ... is owned by CA’s parent company Broadcom ....” FAC ¶ 97.

Accordingly, for all the reasons explained above, the Court should deny CA’s Motion with 

respect to OptiMorphix’s pre-suit willful infringement claims.

Second, and at a minimum, the FAC sufficiently pleads that CA had post-suit knowledge 

of the Asserted Patents. And CA does not argue otherwise. As alleged in the FAC, “CA has had 

knowledge of” each Asserted Patent “since at least service of this First Amended Complaint or 

shortly thereafter, and CA knew of” each Asserted Patent “and knew of its infringement, including 

by way of this lawsuit.” FAC ¶¶ 69, 97, 120, 147, 173. These allegations are sufficient to state 

claims for post-suit willful infringement. USC IP P’ship, L.P., 2021 U.S. Dist. LEXIS 137424, at 

*7 (“Further, since USC alleges that Facebook has knowledge of the asserted patent and the alleged 

infringement at least at the commencement of this action, the Court finds that USC has sufficiently 

alleged its post-suit indirect and willful infringement claims.”).

Accordingly, the FAC plausibly pleads claims for pre-suit and post-suit willful 

infringement, and CA’s Motion therefore should be denied.

B. The FAC Sufficiently Pleads Indirect Infringement.

CA argues that “[f]or similar reasons, OptiMorphix’s claims for pre-suit induced 

infringement should be dismissed because OptiMorphix’s Complaint fails to sufficiently allege 

pre-suit knowledge of any Asserted Patent by CA—a threshold requirement for induced 

infringement.” Mot. at 12. CA is wrong, and its Motion should be denied with respect to 

OptiMorphix’s indirect infringement claims.

“[L]iability for induced infringement can only attach if the defendant knew of the patent 

and knew as well that ‘the induced acts constitute patent infringement.’” Commil USA, LLC v. 

Cisco Sys., 135 S. Ct. 1920, 1926 (2015) (citation omitted). “To survive a motion to dismiss a 

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claim of induced infringement, the plaintiff’s complaint must contain facts that plausibly suggest 

the defendant had specific intent to encourage others to infringe the patent. However, the plaintiff 

need not prove intent, but merely provide enough facts from which intent can be reasonably 

inferred. Furthermore, the Supreme Court has held that a complaint does not need detailed factual 

allegations to survive a Rule 12(b)(6) motion to dismiss.” Titanide Ventures, LLC v. IBM Corp., 

2012 U.S. Dist. LEXIS 163430, at *10-11 (E.D. Tex. Oct. 18, 2012) (emphasis in original) 

(citations omitted).

Here, as explained above in Section IV.A, the FAC sufficiently alleges that CA had presuit knowledge of the Asserted Patents, which is the only element of the claim CA challenges.

4

 

Because the FAC’s allegations plausibly plead CA’s pre-suit knowledge of the Asserted Patents 

and CA’s Motion only challenges that point, OptiMorphix has stated cognizable claims for indirect

infringement. Therefore, CA’s Motion should be denied.

V. CONCLUSION

OptiMorphix respectfully requests that the Court deny CA’s Motion in its entirety. In the 

event the Court finds OptiMorphix’s pleading deficient in any way, OptiMorphix respectfully 

requests leave to amend its Complaint to address any deficiencies. See Soar Tools, LLC v. 

Mesquite Oil Tools, Inc., 2020 U.S. Dist. LEXIS 166493, at *23 (N.D. Tex. Sep. 11, 2020)

(“[C]ourts typically grant patent-infringement plaintiffs leave to amend unless such a plaintiff has 

already failed to cure pleading deficiencies in prior amended complaints.”).

 4 At a minimum, the FAC adequately pleads CA’s post-suit knowledge of the Asserted Patents, 

which is sufficient to support OptiMorphix’s claims for post-suit indirect infringement, which CA 

does not even attempt to challenge. See USC IP P’ship, L.P., 2021 U.S. Dist. LEXIS 137424, at 

*7. 

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Dated: March 20, 2024 Respectfully submitted,

/s/ Daniel P. Hipskind____________________

Dorian S. Berger (CA SB No. 264424) 

Daniel P. Hipskind (CA SB No. 266763) 

Erin E. McCracken (CA SB No. 244523) 

BERGER & HIPSKIND LLP

9538 Brighton Way, Ste. 320 

Beverly Hills, CA 90210 

Telephone: 323-886-3430 

Facsimile: 323-978-5508 

E-mail: dsb@bergerhipskind.com 

E-mail: dph@bergerhipskind.com 

E-mail: eem@bergerhipskind.com 

Elizabeth L. DeRieux

State Bar No. 05770585 

Capshaw DeRieux, LLP 

114 E. Commerce Ave. 

Gladewater, TX 75647

Telephone: 903-845-5770 

E-mail: ederieux@capshawlaw.com

Attorneys for OptiMorphix, Inc.

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that on March 20, 2024, a copy of the foregoing 

document was served on all counsel who have appeared in this case via CM/ECF.

/s/ Daniel P. Hipskind

 Daniel P. Hipskind

Case 5:23-cv-00134-RWS-JBB Document 33 Filed 03/20/24 Page 17 of 17 PageID #: 570