WSOU Investments LLC v. Dell Technologies Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION WSOU INVESTMENTS, LLC d/b/a § BRAZOS LICENSING AND § DEVELOPMENT, § § § Plaintiff, § Civil Action No.: 6:20-cv-00480-ADA Civil Action No.: 6:20-cv-00481-ADA § v. § Civil Action No.: 6:20-cv-00486-ADA § DELL TECHNOLOGIES INC., DELL § INC., EMC CORPORATION, and JURY TRIAL DEMANDED § VMWARE INC., § § Defendants.

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REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed. R. Civ. P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court are the various pretrial motions listed in the table below. The Court heard oral argument on these motions on January 27 and 30, 2023. For the reasoning stated on the record during the hearing, the Court issued the following recommendations, which are memorialized below.

V. OBJECTIONS The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object.

The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (Sth Cir. 1987). A party’s failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.

Dated: January 30, 2023 | 7 yf, Ny Ane flo UNITED STATES MAGISTRATE JUDGE Case 6:20-cv-00480-ADA-DTG Document 345 Filed 01/30/23 Page 3 of 6 THE COURT’S RECOMMENDATIONS RECOMMENDATION Movant Motion Docket No. Plaintiff’s Daubert Motion to Exclude DENIED Certain Opinions In The Expert Report ECF 254 (-480) of Stephen L. Becker, Ph.D. Or In The Brazos ECF 251 (-481) Alternative Strike Portions of the Expert ECF 257 (-486) Report of Stephen L. Becker, Ph.D.

ECF 255 (-480) DENIED, but Plaintiff may take depositions of up Plaintiff’s Motion to Strike Certain ECF 255 (-481) to 3.5 hours of Colbert and Varghese.

Brazos Portions of Defendants’ Expert Reports ECF 258 (-486) and Rule 26(a)(2)(C) Disclosure Plaintiff’s Motion to Exclude Certain DENIED Opinions In the Expert Reports of ECF 256 (-480) Benjamin F. Goldberg, Ph.D. And ECF 256 (-481) Brazos Kevin Jeffay, Ph.D. Regarding ECF 259 (-486)\ Invalidity of U.S. Patent No. 9,164,800 And Licensing Opinions of Tajana Rosing, Ph.D. and Kevin Jeffay, Ph.D Plaintiff’s Motion for Partial Summary ECF 257 (-480) DENIED Judgment For Validity of U.S. Patent ECF 257 (-481) Brazos No. 9,164,800 ECF 260 (-486)

Plaintiff’s Motion for Partial Summary ECF 294 (-480) GRANTED as UNOPPOSED Judgment and Supplemental Motion in ECF 295 (-481) Brazos Limine ECF 297 (-486) Case 6:20-cv-00480-ADA-DTG Document 345 Filed 01/30/23 Page 4 of 6 Defendants’ Motion to Dismiss First DENIED Amended Complaint for Failure to State a Claim ECF 38 (-480) The Court dismissed Plaintiff’s indirect ECF 38 (-481) VMware infringement claims, but the Court’s ECF 38 (-486) decision on Plaintiff’s direct infringement claims remains pending. See, e.g., 12/21/20 Hearing Tr. 76:16–77:7; 4/2/21 E-mail Exchange with WSOU.

Defendants’ Opposed Motion for Intra- ECF 43 (-480) DENIED District Transfer of Venue to the Austin ECF 44 (-481) VMware Division of the Western District of ECF 43 (-486) Texas Defendants’ Opposed Motion to DENIED Dismiss for Lack of Subject Matter Jurisdiction Under Federal Rule of Civil ECF 196 (-480) Procedure 12(B)(1) (for (a) gap in chain ECF 193 (-481) VMware of title (’360 patent); (b) failure of ECF 195 (-486) assignment from Wade and Company to Plaintiff (’360 and ’133 patents); and (c) no assignment to Plaintiff to sue for past damages (’360, ’1 33, ’800 patents)) Defendants’ Motion to Exclude Certain DENIED-IN-PART (as to apportionment opinion, ECF 246 (-480) Portions of Mr. Roy Weinstein’s Expert inclusion of non-infringing damages in royalty ECF 246 (-481) Report base, and as to the ’133 patent and non-infringing ECF 249 (-486) VMware configuration) and GRANTED-IN-PART (as to ’800 and ‘360 inclusion of software only sales. If there are sales of software with hardware, this is DENIED and those can be included.)

Case 6:20-cv-00480-ADA-DTG Document 345 Filed 01/30/23 Page 5 of 6 Defendants’ Motion to Strike Certain ECF 250 (-480) GRANTED Portions of Mr. Roy Weinstein’s Expert ECF 250 (-481) VMware Report ECF 253 (-486)

Defendants’ Motion to Exclude Certain ECF 248 (-480) DENIED Opinions of Stan McClellan, Ph.D. ECF 248 (-481) ECF 251 (-486) VMware

Defendants’ Motion to Strike Certain GRANTED as UNOPPOSED Portions of Dr. Stan McClellan’s Expert Report Regarding Indirect ECF 252 (-480) Infringement* ECF 253 (-481) VMware ECF 255 (-486) *Plaintiff has filed a notice of non- opposition to this motion. See Case - 480, ECF 291; Case -481, ECF 291; Case -486, ECF 294 Defendants’ Motion to Strike Certain DENIED Opinions of Dr. Stan McClellan ECF 242 (-480) VMware Concerning Infringement of U.S. Patent No. 7,539,133 Defendants’ Motion for Summary ECF 244 (-480) DENIED VMware Judgment of Non-Infringement of U.S. Patent No. 7,539,133 Defendants’ Rule 12(c) Motion for DENIED Judgment on the Basis of Ineligibility ECF 191 (-481) VMware Under 35 U.S.C. § 101 of U.S. Patent No. 9,164,800 Case 6:20-cv-00480-ADA-DTG Document 345 Filed 01/30/23 Page 6 of 6 Defendants’ Motion to Strike DENIED as to Network Aware DRS, GRANTED Previously Undisclosed Theories of Dr. as to virtual memory and virtual storage, and ECF 242 (-481) VMware Stan McClellan Concerning the DENIED as MOOT regarding Pair-Wise Load Infringement of U.S. Patent No. Balancing 9,164,800 Defendants’ Motion for Summary GRANTED as to virtual memory and virtual Judgment of Non-Infringement of U.S. storage and DENIED-IN-PART (as to maximum VMware Patent No. 9,164,800 ECF 244 (-481) latency, network DRS, and 273(a)) Defendants’ Rule 12(c) Motion for DENIED Judgment on the Basis of Ineligibility VMware Under 35 U.S.C. § 101 of U.S. Patent ECF 172 (-486).

No. 7,092,360 Defendants’ Daubert Motion and DENIED ECF 245 (-486) Motion to Exclude Certain Opinions of VMware Dr. Stan McClellan as to U.S. Patent No. 7,092,360 Defendants’ Motion for Summary GRANTED as to “current pointer,” “next pointer,” ECF 247 (-486) Judgment of Non-Infringement of U.S. and “selector;” and DENIED as to “computer VMware Patent No. 7,092,360 generated model” and “monitor”