DCT

6:20-cv-00486

WSOU Investments LLC v. Dell Tech Inc

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Key Events
Complaint

I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 6:20-cv-00486, W.D. Tex., 06/02/2020
  • Venue Allegations: Venue is alleged based on each defendant having established places of business within the Western District of Texas.
  • Core Dispute: Plaintiff alleges that Defendants’ cloud and server products, which incorporate VMware's virtualization software, infringe a patent related to methods for monitoring the performance of a network scheduler by accessing its internal states.
  • Technical Context: The technology concerns schedulers that manage data traffic in complex communication networks, a foundational component for ensuring performance and quality of service in modern data centers and cloud computing environments.
  • Key Procedural History: The complaint does not mention any prior litigation, Inter Partes Review (IPR) proceedings, or licensing history related to the patent-in-suit.

Case Timeline

Date Event
2001-12-28 '360 Patent Priority Date
2004-01-01 VMware acquired by EMC (approximate date)
2006-08-15 '360 Patent Issue Date
2007-08-01 VMware conducts initial public offering (approximate date)
2016-09-01 Dell acquires EMC (approximate date)
2020-06-02 Complaint Filing Date

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 7,092,360 - "Monitor, System and Method for Monitoring Performance of a Scheduler," issued August 15, 2006

The Invention Explained

  • Problem Addressed: The patent's background section describes the difficulty and time-consuming nature of testing the performance of a complex packet scheduler, particularly a hardware-based scheduler implemented on an application-specific integrated circuit (ASIC) ('360 Patent, col. 1:11-31). Verifying performance based solely on monitoring the scheduler's external inputs and outputs makes it difficult to pinpoint the source of internal operational faults ('360 Patent, col. 2:11-26).
  • The Patented Solution: The invention provides a monitor that can directly detect the state of one or more internal elements of a scheduler during operation ('360 Patent, Abstract). By comparing the detected internal state (e.g., the status of an internal queue counter or pointer) with a predetermined expected state, the monitor can more efficiently determine if the scheduler is functioning correctly, thereby simplifying the testing and verification process ('360 Patent, col. 2:31-41). The system is described as particularly useful for verifying computer-generated models of schedulers before they are synthesized into hardware ('360 Patent, col. 2:56-65).
  • Technical Importance: This approach allows for the rapid identification of performance problems and their sources within a complex scheduler, which is a critical step in the design and verification of reliable, high-performance networking equipment ('360 Patent, col. 4:41-50).

Key Claims at a Glance

  • The complaint specifically alleges infringement of at least independent claim 26 (Compl. ¶27).
  • The essential elements of independent method claim 26 include:
    • A method of monitoring a scheduler's operation by supplying it with data.
    • Monitoring the state of an internal element of the scheduler.
    • Comparing the monitored state with an expected state for that element.
    • Outputting the result of the comparison.
    • The scheduler itself comprises a "computer generated model."
    • The scheduler controls data departure from a plurality of queues, and the monitored internal element relates to queue status (e.g., empty/occupied), the quantity of data in a queue, or identifiers for queues/groups of queues.

III. The Accused Instrumentality

Product Identification

The complaint identifies the "Accused Products" as cloud-related solutions and hardware, including Dell's PowerEdge servers and VxRail appliances, that incorporate VMware's VeloCloud solutions and vSphere software (Compl. ¶15). The infringement allegations center on the Network I/O Control (NetIOC) feature within VMware vSphere (Compl. ¶16).

Functionality and Market Context

The NetIOC feature is alleged to be a software-based scheduler at the hypervisor level that manages network bandwidth for various types of traffic (e.g., virtual machine traffic, storage traffic, management traffic) (Compl. ¶¶16, 22). It uses a scheduling algorithm, allegedly based on the "hClock scheduler," to enforce policies based on user-defined shares, limits, and reservations (Compl. ¶¶18, 21). The complaint alleges this scheduler maintains dedicated software queues for different resource-pool flows to manage network traffic and prevent packet loss due to high utilization (Compl. ¶17). A diagram provided in the complaint, titled "NetIOC Architecture," illustrates a scheduler arbitrating between different traffic types flowing from virtual machines to a physical network adapter (Compl. ¶17, p. 7).

IV. Analysis of Infringement Allegations

'360 Patent Infringement Allegations

Claim Element (from Independent Claim 26) Alleged Infringing Functionality Complaint Citation Patent Citation
A method of monitoring operation of a scheduler, comprising supplying said scheduler with data... The Accused Products' NetIOC scheduler is a software algorithm that processes packets from network port queues. ¶16, ¶22 col. 4:6-12
...monitoring the state of an element of said scheduler... The hClock scheduler allegedly uses various "tags" (e.g., Rq, Lq, Sq) to track the status of transmit queues and checks the "activity status" of each queue. ¶19, ¶20 col. 2:31-34
...comparing the monitored state with an expected state for said element... The scheduler allegedly makes a comparison "regarding the previous values and the real-time value" of its internal tags and has an algorithm based on whether a queue is "empty or occupied." ¶19, ¶25 col. 2:38-41
...and outputting the result of the comparison... The complaint alleges that the result of the internal comparison "helps in determining the output," which is the scheduler's decision on which network port to service. ¶18, ¶19 col. 2:53-55
...wherein said scheduler comprises a computer generated model... The NetIOC scheduler is alleged to be a software feature ("additional layer of packet scheduling at the hypervisor") within VMware's vSphere software. ¶15, ¶22 col. 2:66-67
...and said element comprises: an element for recording whether a queue is empty or occupied, an element for recording the quantity of data contained in a queue, an element identifying a queue from which data is to be output, and an element identifying a group of queues... The NetIOC scheduler allegedly maintains queues for each virtual port, checks if a queue is "idle," tracks packets, decides which port to service, and manages different "resource-pool flows." ¶17, ¶18, ¶20, ¶22, ¶26 col. 5:4-18, 53-58

Identified Points of Contention

  • Scope Questions: A primary issue for claim construction may be the meaning of "computer generated model." The complaint applies this term to a commercially deployed software product, whereas the patent specification discusses such models in the context of simulating and testing a circuit design before it is synthesized into hardware. The court will need to determine if an operational software scheduler falls within the scope of this term as used in the patent.
  • Technical Questions: The infringement analysis may turn on the purpose of the alleged "monitoring" and "comparing." The patent appears to describe these steps in the context of verifying the correct operation of the scheduler itself (i.e., for testing and debugging). The complaint alleges the accused scheduler performs comparisons to facilitate its primary function of runtime resource allocation. A key question is whether monitoring for the purpose of runtime traffic management is the same as the claimed method of monitoring for performance verification.

V. Key Claim Terms for Construction

  • "computer generated model"

    • Context and Importance: This term appears central to the dispute. Its construction could determine whether the patent applies to operational software schedulers like NetIOC or is limited to pre-production simulation tools. Practitioners may focus on this term because the accused instrumentality is a finished software product, not a simulation model for a hardware design.
    • Intrinsic Evidence for Interpretation:
      • Evidence for a Broader Interpretation: The plain language of claim 26 itself does not explicitly limit the "computer generated model" to a pre-synthesis or simulation context. Plaintiff may argue that any software-based implementation of a scheduler is a "model" that is "computer generated."
      • Evidence for a Narrower Interpretation: The patent specification repeatedly frames the invention in the context of computer-aided design and testing of circuits. For example, it discusses modeling complex circuitry for testing ('360 Patent, col. 2:56-65) and "synthesizing said scheduler in hardware based on the tested computer generated model" ('360 Patent, col. 4:56-60), which suggests the "model" is a precursor to a physical device.

  • "monitoring"

    • Context and Importance: The interpretation of "monitoring" is critical because it defines the character of the claimed method. The core of the dispute may hinge on whether the accused product's runtime operational checks constitute the "monitoring" for performance verification described in the patent.
    • Intrinsic Evidence for Interpretation:
      • Evidence for a Broader Interpretation: The claim language itself is general. A plaintiff could argue that any act of detecting an internal state of the scheduler for any purpose constitutes "monitoring."
      • Evidence for a Narrower Interpretation: The patent's abstract, summary, and background consistently tie the invention to testing and verifying scheduler performance ('360 Patent, Abstract; col. 2:9-14). FIG. 1 includes a "PASS/FAIL" output from the "SCHEDULER MONITOR," which strongly implies a verification or testing function rather than a runtime operational function.

VI. Other Allegations

  • Indirect Infringement: The complaint alleges induced infringement based on Defendants' dissemination of product descriptions, operating manuals, and other instructions that allegedly guide users to configure and use the Accused Products in an infringing manner (Compl. ¶30). It also pleads contributory infringement, alleging the Accused Products are especially made for infringement and lack substantial non-infringing uses (Compl. ¶31).
  • Willful Infringement: The complaint alleges Defendants have had knowledge of the '360 Patent "since at least the date of service of this Complaint," establishing a basis for post-filing willfulness (Compl. ¶29). No pre-suit knowledge is alleged.

VII. Analyst’s Conclusion: Key Questions for the Case

  • A core issue will be one of definitional scope: can the term "computer generated model," which the patent specification describes in the context of pre-synthesis simulation and hardware verification, be construed to cover a commercially distributed, operational software scheduler functioning within a hypervisor?
  • A key related question will be one of functional purpose: does the accused scheduler's use of internal state information for real-time traffic management and resource allocation constitute the claimed method of "monitoring" for the purpose of verifying correct operation and diagnosing faults, which is the problem the '360 patent appears designed to solve?