VirtaMove v. Google — Containerization Patent Survives Google’s Motion to Dismiss

Background

VirtaMove (formerly AppZero Software Corp.) holds U.S. Patent No. 7,774,762, titled “System Including Run-Time Software to Enable a Software Application to Execute on an Incompatible Computer Platform.” The patent covers technology for running applications in portable computing environments — essentially, containerization. VirtaMove alleges that several Google Cloud products — including Google Kubernetes Engine, Cloud Run, Migrate to Containers, and Google Artifact Registry — practice the patented invention.

VirtaMove first met with Google in 2015 to explore a partnership and demonstrated its technology. Subsequent meetings occurred in 2020 and 2021 to discuss integrating AppZero into Google Cloud. When no deal materialized, VirtaMove sued, first in the Western District of Texas before the case was transferred to the Northern District of California and consolidated with a related lawsuit involving a parent patent (U.S. Patent No. 7,519,814).

The Court’s Holding

Judge Wise granted in part and denied in part Google’s motion to dismiss.

Direct infringement survived. Google argued that VirtaMove’s complaint failed to show that its products perform the “filtering” step required by claim 17(c) of the patent. The claim requires “at least one application filter library resident in user mode” that filters system service requests. Google contended that the complaint’s references to “containerd” (an industry-standard container runtime) did not establish filtering as the patent requires. The court disagreed at this stage, finding that the complaint gave Google sufficient notice of VirtaMove’s infringement theory and that “[t]he question of whether ‘containerd’ satisfies claim 17[c]’s filtering requirement is more appropriate for resolution with the benefit of claim construction and/or expert testimony.”

Indirect infringement claims were dismissed with leave to amend. The contributory infringement claim failed because VirtaMove did not explain why Google’s servers, once configured, have “no substantial noninfringing uses.” The pre-suit induced infringement claim failed because VirtaMove’s allegation that Google “would have learned” about the patent through “basic due diligence” was too conclusory to establish pre-suit knowledge. VirtaMove has until June 22, 2026 to file amended claims.

Key Takeaways

• Claim construction matters at the pleading stage. The court declined to resolve a technical claim-construction dispute (what constitutes “filtering”) on a motion to dismiss, preferring to wait for expert testimony. This follows the Federal Circuit’s guidance that motions to dismiss patent cases should not resolve fact-intensive claim-construction questions.
• “Due diligence” allegations aren’t enough for knowledge. Alleging that a defendant “would have” or “should have” discovered a patent through due diligence is conclusory boilerplate that courts consistently reject. Patent holders must plead specific facts — like a cease-and-desist letter, licensing discussions, or an ex-employee — to establish pre-suit knowledge.
• Containerization patents remain litigable. Despite the Alice/§ 101 eligibility challenges facing many software patents, VirtaMove’s containerization patents have survived eligibility attacks in the related case, suggesting courts view this technology as sufficiently tied to concrete computing processes.

Why It Matters

This case sits at the intersection of two significant technology trends: the explosion of containerization in cloud computing and the ongoing challenge of enforcing software patents. Google’s container products are used by millions of developers worldwide, making the outcome of this litigation potentially significant for the cloud infrastructure industry. The ruling also illustrates the tension between the low bar for pleading direct infringement and the higher standard for indirect infringement claims that require proof of knowledge and intent.