United States: Cloud Infrastructure Provider Densify Attempts To Ward Off Partner/Competitor VMware With IP Infringement Suit

Last Updated: October 1 2019
Article by William P Dunn

Cirba, Inc., d/b/a Densify, a quintessential start-up success story and provider of cloud services to automate virtual infrastructure optimization, recently filed a Patent Infringement and Unfair Competition Complaint against VMware, Inc. Densify offers infrastructure optimization through its Cloud-Learning Optimization Engine ("Cloe") and complements VMware's products to enable applications to dynamically match their needs to optimal cloud supply. While Densify has historically offered products to complement VMware services, VMware has gradually become Densify's competitor in virtual infrastructure optimization. Densify alleges that VMware determines virtual guest-host placement, via its recent "vRealize Operations 7.0" and "Predictive DRS" release, which purportedly infringes on two patents covering Densify's virtual guest-host placement services – US8209687 and US9654367. Densify also alleges trademark infringement, insisting that VMware is creating confusion in consumers' minds.

In the Complaint, filed in the District of Delaware on April 25, 2019, Densify alleges VMware copied their technology, claiming that VMware has long been familiar with Densify's software. For instance, according to Densify, at the VMworld 2015 trade show, VMware previewed the vROps 6.1 dashboard that looked strikingly similar to Densify's product that had been in the market since 2012 ̶ so much so that an audience member spoke up during the presentation to note how similar the vROps 6.1 dashboard was to the Densify dashboard. Additionally, VMware also released Predictive DRS, which is allegedly similar to a core Densify feature to provide predictable patterns of resource usage. According to Densify, these previous releases were troublesome and infringing, but VMware was still unable to offer a compelling product like Densify's that satisfied the needs of customers with complex business and operating constraints. For this reason, Densify never brought a complaint...until now.

Over the years, Densify alleges VMware increasingly used infringing technology and its recent release of vROps 7.0, and now new release of vROps 7.5, is an imminent threat to Densify's virtual infrastructure optimization intellectual property. vROps 7.0 added an "Automated Host Based Placement" feature, which directly competes with a key Densify product known to VMware. With VMware offering steep discounts to subscribe to vROps 7.0 in an apparent effort to foreclose the infrastructure optimization market to competition, Densify seemed all but forced to sue to enforce their intellectual property rights against VMware.

With regard to allegations of unfair competition, Densify claims that VMware not only copied their technology, but also began using its name and trademark DENSIFY in reference to VMware's products. For example, VMware began identifying a key vROps feature as "Workload Optimization – Densifying to Repurpose Hosts." Densify states in its Complaint, "VMware uses the marks to increase the commercial value of its products and services by creating an association with Densify's award winning optimization products." Although Densify claims that it began using its trademark and services marks as early as 2015, the company did not file an application for trademark protection until August 14, 2018, such that Densify's application to register its trademark is currently pending. While the company claims that its "Densify" marks have achieved secondary meaning, it seems that Densify faces a major uphill battle to succeed in its Unfair Competition claim in light of its long delay in filing for trademark protection.

While Densify has seen impressive growth for its cloud offerings, including numerous industry awards, much of Densify's growth can be attributed to VMware's truly remarkable run since its founding in 1998. VMware is a behemoth in the virtual infrastructure market and specializes in providing a platform for virtualizing IT infrastructures. Within six years of its inception, the company was acquired by EMC, now Dell EMC, for $625 million. Now, as of May 27, 2019, VMware has a market cap of $81.26 billion.

Though it may be intriguing to see a relative upstart take on an industry leader, Densify undoubtedly has a difficult fight ahead of them. Densify has never gone to court for a patent dispute, whereas VMware has been a defendant in 22 patent cases in the past 10 years. VMware has not yet filed an Answer; however, it will almost certainly attack the validity of the patents as they have done in the past in defending against patent infringement allegations. It will be interesting to see how Densify navigates through this litigation. By early accounts, Densify has come out swinging in a major way by filing a Motion for Preliminary Injunction to prohibit VMware's use and sale of vROps 7.0 and 7.5 until a trial can be held.

This case is also particularly interesting given the fact that Densify both partners with and now competes with VMware, as is frequently the case in the high tech industry. On one hand, Densify relies heavily on its ability to integrate with VMware's virtualization platform. As such, it would seem to be in Densify's best interest to play nice with VMware. On the other hand, Densify likely cannot successfully compete against a titan like VMware unless it enforces its turf via intellectual property protection. Allowing VMware to infringe Densify's intellectual property, it seems, would all but wipe out a major part of Densify's business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions