NetLens Technologies Inc. v. Microsoft Corporation

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No. 1:26-cv-00215
NetLens Technologies Inc.,
Plaintiff,
v.
Microsoft Corporation,
Defendant.
Defendant Microsoft moves to dismiss portions of Plaintiff
NetLens’ First Amended Complaint alleging patent infringe-
ment. Defendant argues that Plaintiff has no standing under
the Patent Act to sue for infringement, and that, even if it did,
it has no right to sue for infringement that occurred before it
obtained a license to the patents. The Court grants the motion
in part and denies the motion in part.
Plaintiff has statutory standing to sue for patent infringe-
ment because its license to the patents conveyed all substan-
tial rights in those patents. Plaintiff does not, however, have
the right to sue for infringement that allegedly occurred be-
fore Plaintiff obtained the license because the license did not
expressly convey that right. Plaintiff’s patent infringement
claims are therefore dismissed only to the extent they allege
pre-license infringement.
B ACKGROUND
A. Factual Background
In its First Amended Complaint (“FAC”), NetLens (“Plain-
tiff”) claimed that Microsoft (“Defendant”) infringed U.S. Pa-
tent Nos. 8,910,154 (“’154 Patent”), 9,417,901 (“’901 Patent”),
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9,705,745 (“’745 Patent”), and 10,063,630 (“’630 Patent”) (col-
lectively, “Asserted Patents”). FAC at ¶ 2 (ECF No. 9). Those
patents are directed to software that improves the quality of
virtualization, cloud monitoring and related network technol-
ogies. Id. Plaintiff asserts that it “owns all rights, title and in-
terest” in the four patents at issue. Id. at ¶¶ 31, 43, 55, 67.
The ‘901, ‘745, and ‘630 Patents were originally assigned to
a South Korean entity called Electronics and Telecommunica-
tions Research Institute (“ETRI”). FAC Ex. 3 at 2 (U.S. Patent
No. 9,417,901) (ECF No. 9-5); FAC Ex. 5 at 2 (U.S. Patent No.
9,705,745) (ECF No. 9-8); FAC Ex. 7 at 2 (U.S. Patent No.
10,063,630) (ECF No. 9-11). In October 2024, ETRI entered into
an exclusive patent license agreement with Hipe IP Inc.
(“Hipe”). Mot. Ex. 2 at 4 (“ETRI-Hipe License”) (ECF No. 18-
2). The relevant terms of the ETRI-Hipe License state:
[ETRI] grants to [Hipe] the right to exclusively
practice all of the patented inventions of the
[‘901, ‘745, and ‘630] Patents as a business
world-wide across all sectors . . . until the expi-
ration of all issued patents . . . . This [e]xclusive
[l]icense includes all substantial rights regard-
ing patents, including, but not limited to, [Hipe]
utilizing the Patents without the consent of
[ETRI] for [m]onetization by methods such as
[Hipe] 	independently 	granting 	licenses 	to
[t]hird [p]arties for all past, present, and future
periods of time, . . . the right to independently
engage in [p]atent [l]itigation, etc.
Id. at 5. On July 22, 2025, Hipe filed its agreement conveying
that exclusive license to Plaintiff (“Hipe-NetLens License”)
with the U.S. Patent and Trademark Office. Mot. Ex. 1 at 2–4
(ECF No. 18-1). The relevant terms of the Hipe-NetLens Li-
cense are publicly available and state:
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NetLens [] confirms that it will succeed to the
contractual status of [Hipe] in the [ETRI-Hipe
License] for the [‘901, ‘745, and ‘630] patents[.] .
. . [NetLens] shall succeed to all the rights and
the obligations of [Hipe] regarding ETRI.
Transfer of Exclusive License, U.S. PAT. & TRADEMARK O FF . (Jul.
22, 2025) [hereinafter Transfer of Exclusive License], https://as-
signmentcenter.uspto.gov/ipas/search/api/v3/public/down-
load/patent/72836/14 [https://perma.cc/4SWG-ZWQC].
After allegedly observing that Defendant’s Azure cloud
computing platform appropriated technology covered in the
Asserted Patents, Plaintiff filed this suit for patent infringe-
ment.
B. Procedural Background
In its FAC, Plaintiff filed four counts of patent infringe-
ment against Defendant under 35 U.S.C. § 271. FAC at ¶¶ 30-
77. On December 12, 2025, Defendant moved to dismiss three
of Plaintiff’s claims under Rule 12(b)(1) for lack of subject mat-
ter jurisdiction and Rule 12(b)(6) for failure to state a claim on
which relief can be granted. Mot. at 5 (ECF No. 18). Defendant
only challenges Plaintiff’s claims involving the ‘901, ‘745, and
‘630 patents (“Selected Patents”). Id. at 1. In the alternative,
Defendant asks the Court to dismiss Plaintiff’s claims for past
infringement pertaining to the Selected Patents. Id.
L EGAL S TANDARD
“The district courts of the United States are courts of lim-
ited jurisdiction[.]” Badgerow v. Walters, 596 U.S. 1, 7 (2022).
Rule 12(b)(1) of the Federal Rules of Civil Procedure enables
a party to challenge the subject-matter jurisdiction of the
Court to hear a case. A plaintiff’s standing under Article III of
the 	Constitution 	“is 	[a 	question] 	of 	subject 	matter
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jurisdiction,” and is properly raised in a 12(b)(1) motion. Cobb
v. Cent. States, 461 F.3d 632, 635 (5th Cir. 2006). “The burden
of proof for a Rule 12(b)(1) motion to dismiss is on the party
asserting jurisdiction. Accordingly, the plaintiff constantly
bears the burden of proof that jurisdiction does in fact exist.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per
curiam) (citations omitted). Jurisdiction (or lack thereof) may
be determined based on “(1) the complaint alone; (2) the com-
plaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed
facts plus the court’s resolution of disputed facts.” Kling v.
Hebert, 60 F.4th 281, 284 (5th Cir. 2023) (citation omitted).
Rule 12(b)(6) entitles a defendant to dismissal when the
complaint “fail[s] to state a claim upon which relief can be
granted[.]” F ED R. CIV. P. 12(b)(6). When deciding a Rule
12(b)(6) motion, the Court must “accept all well-pleaded facts
as true” and “view[] them in the light most favorable to the
plaintiff.” Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 177 (5th
Cir. 2018) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th
Cir. 1999)). To survive a Rule 12(b)(6) motion to dismiss, the
plaintiff must plead “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the rea-
sonable inference that the defendant is liable for the miscon-
duct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of action, sup-
ported by mere conclusory statements, do not suffice.” Id.
Regional circuit law establishes the legal test for review of
12(b)(1) and 12(b)(6) motions. See Univ. of. S. Florida Rsch.
Found., Inc. v. Fujifilm Med. Sys. U.S.A., Inc., 19 F.4th 1315, 1323
(Fed. Cir. 2021); Intell. Ventures I LLC v. Erie Indem. Co., 850
F.3d 1315, 1325 (Fed. Cir. 2017). And federal circuit law
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governs the substantive elements of standing under the Pa-
tent Act. See AlexSam, Inc. v. Aetna, Inc., 119 F.4th 27, 35 (Fed.
Cir. 2024).
A NALYSIS
Defendant argues that Plaintiff’s inability to enforce the
Selected Patents deprives Plaintiff of standing to sue for in-
fringement under the Patent Act. Plaintiff, however, met the
requirements to sue for infringement because it has all sub-
stantial rights in the Selected Patents. Defendant also argues
that Plaintiff cannot sue for past infringement because the li-
cense agreement did not expressly grant that right. Plaintiff
does not allege nor otherwise demonstrate that the license ex-
pressly granted the right to sue for past infringement. Plain-
tiff’s claims for past infringement are therefore dismissed.
I. 	Standing
Plaintiff satisfied both the constitutional and statutory re-
quirements to bring this suit. “As long as a plaintiff alleges
facts that support an arguable case or controversy under the
Patent Act, the court has both the statutory and constitutional
authority to adjudicate the matter.” Schwendimann v. Ark-
wright Advanced Coating, Inc., 959 F.3d 1065, 1071 (Fed. Cir.
2020). Although Defendant’s motion is styled under 12(b)(1)
and 12(b)(6), it does not actually attack Plaintiff’s standing on
constitutional grounds under 12(b)(1). Even if it had, its argu-
ment would fail. In patent cases, licensees have constitutional
standing to sue for patent infringement if they “retained at
least one exclusionary right” in the patent. Intell. Tech LLC v.
Zebra Techs. Corp., 101 F.4th 807, 813 (Fed. Cir. 2024). By De-
fendant’s own admission, the ETRI-Hipe License gave Hipe
“an exclusive right” to “practice the patents.” Mot. at 11
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(cleaned up).1 That easily passes muster for constitutional
standing. See A.L.M. Holding Co. v. Zydex Indus. Priv. Ltd., 176
F.4th 1326, 1332 (Fed. Cir. 2026) (“[E]xclusionary rights in-
volve the ability to exclude others from practicing an inven-
tion or to forgive activities that would normally be prohibited
under the patent statutes.” (internal citation and quotation
marks omitted)).2
Defendant primarily argues that Plaintiff fails to meet the
statutory requirements for ownership under the Patent Act
(sometimes referred to as “statutory standing”). “Unlike a
dismissal for lack of constitutional standing, which should be
granted under Rule 12(b)(1), a dismissal for lack of . . . statu-
tory standing is properly granted under Rule 12(b)(6).” Harold
H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th
Cir. 2011) (citing Blanchard 1986, Ltd. v. Park Plantation, LLC,
553 F.3d 405, 409 (5th Cir. 2008)).
“Under [the Patent Act], only a ‘patentee’ is permitted to
pursue a patent infringement action[.]” Schwendimann, 959
F.3d at 1072 (quoting 35 U.S.C. § 281). Patentees “include[] not
only the patentee to whom the patent was issued but also the
successors in title to the patentee.” 35 U.S.C. § 100(d). Where
the party suing for infringement “is not the patent’s original
patentee, ‘the critical determination regarding a party’s abil-
ity to sue in its own name is whether an agreement transfer-
ring patent rights to that party is, in effect, an assignment or a
1 The Court need not separately analyze the Hipe-NetLens License in
this opinion because NetLens “succeed[ed] to all the rights . . . of [Hipe].”
Transfer of Exclusive License.
2 The licenses were formed in South Korea, so it appears that any con-
tractual dispute is governed by South Korean law. See Akazawa v. Link New
Tech. Int’l, Inc., 520 F.3d 1354, 1357 (Fed. Cir. 2008). The parties did not brief
this issue, so the Court will interpret the license agreements according to
their plain language.
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mere license.’” Lone Star Silicon Innovations LLC v. Nanya Tech.
Corp., 925 F.3d 1225, 1229 (Fed. Cir. 2019) (quoting Asym-
metRx, Inc. v. Biocare Med., LLC, 582 F.3d 1314, 1319 (Fed. Cir.
2009)). “In distinguishing between ‘an assignment’ and a
‘mere license,’” courts ask “‘whether the agreement trans-
ferred all substantial rights to the patents.’” Id. (quoting Asym-
metRx, 582 F.3d at 1319). The Court may also look at the li-
cense agreements because redacted portions are available in
the public record. See Hall v. Hodgkins, 305 F. App’x. 224, 227
(5th Cir. 2008) (per curiam) (“it is clearly proper in deciding a
12(b)(6) motion to take judicial notice of matters of public rec-
ord” (internal quotation marks and citation omitted)).
Plaintiff meets the statutory requirements to sue because
the license conveyed all substantial rights. Plaintiff alleged in
its complaint that it “owns all rights, title, and interest” in the
Selected Patents. FAC at ¶¶ 43, 55, 67. The ETRI-Hipe License
reflects that assertion because it transferred “all substantial
rights.” Mot. at 11. That is plainly sufficient to enable Plaintiff
to sue for patent infringement under the Patent Act. Defend-
ant objects that “merely parroting ‘all substantial rights’ or
other ‘labels given by the parties does not control.’” Id.
(cleaned up) (citing A123 Sys., Inc. v. Hydro-Quebec, 626 F.3d
1213, 1218 (Fed. Cir. 2010)). That is not quite right. “Broad
conveyance[s] of all right, title and interest” fail to suffice only
when “the rest of the agreement substantially curtails [Plain-
tiff’s] rights.” Lone Star Silicon Innovations, 925 F.3d at 1230
(cleaned up). In Lone Star, for example, the Federal Circuit
held that a license “agreement’s broad conveyance of ‘all
right, title and interest’ in the covered patents” did not actu-
ally convey “all substantial rights” because the “agreement
gave [the licensor] important rights in the patents.” Id. at
1230-31. But here, neither ETRI nor Hipe expressly retained
any rights to the Selected Patents. Defendant further argues
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that, because certain rights mentioned in the ETRI-Hipe Li-
cense are called “exclusive” while others are not, the license
limits “all substantial rights.” Mot. at 11. Not so. Those addi-
tional rights are not limitations to the “all substantial rights”
language, like in Lone Star. Rather, as the ETRI-Hipe License
expressly states, “all substantial rights” are “including, but not
limited to” the various rights Defendant notes. Id. at 7 (empha-
sis added). Those additional clauses are non-exhaustive ex-
amples of the rights conferred. They are not “limits affecting
‘control over the patents’ [that] might ‘modify or limit the ab-
solute transfer of title.’” Lone Star Silicon Innovations, 925 F.3d
at 1230 (quoting Rude v. Westcott, 130 U.S. 152, 163 (1889)).
Defendant separately argues that, because the ETRI-Hipe
License specified that Hipe could grant licenses to third par-
ties for monetization but did not specify that it could grant
licenses to third parties for other purposes, Hipe’s express
right to engage in patent litigation was not transferrable. See
Mot. at 11. That argument ignores the plain language of the
agreement. “All substantial rights” conferred in the agree-
ment are not limited by the explanatory clauses on which De-
fendant relies because “all substantial rights” are “including,
but not limited to” those clauses. Id. at 7.
In short, Plaintiff possesses all substantial rights to the Se-
lected Patents and thus meets the requirements to sue for pa-
tent infringement under the Patent Act.
II. Claims for Past Infringement
Plaintiff cannot sue for infringement that occurred before
it acquired its license to the Selected Patents. “A party may sue
for past infringement transpiring before it acquired legal title
if a written assignment expressly grants the party a right to
do so.” Abraxis Bioscience, Inc. v. Navinta LLC, 625 F.3d 1359,
1367 (Fed. Cir. 2010). And “[u]nder the general rule, the bare
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reference to all right, title, and interest does not normally
transfer the right to sue for past infringement.” Minco, Inc. v.
Combustion Eng’g, Inc., 95 F.3d 1109, 1117 (Fed. Cir. 1996) (per
curiam); see also Ortiz & Assocs. Consulting, LLC v. Ricoh USA,
Inc., No. 6:21-cv-01178-ADA, 2023 WL 2904583, at *3 (W.D.
Tex. Apr. 11, 2023) (assignment conferring the “entire right,
title and interest was insufficient to transfer the right to sue
for past damages” (cleaned up)).
Plaintiff argues that it can sue for past infringement be-
cause it “owns all rights, title, and interest” in the Selected Pa-
tents. FAC at ¶¶ 43, 55, 67. That is not enough. See Minco, 95
F.3d at 1117. The ETRI-Hipe License conveys “the right to in-
dependently engage in [p]atent [l]itigation,” but does not ex-
tend that right to infringement that occurred before the li-
cense was created. Mot. at 7. The only two references in the
license to past periods are to the right to “independently
grant[] licenses . . . for all past, present, and future periods of
time,” and “collect licensing fees for . . . the past, present, and
future[.]” Id. But neither of those rights expressly grants the
right to sue for past infringement, and the right to sue for past
infringement “can[]not be inferred from an assignment[.]”
Arachnid, Inc. v. Merit Indus., Inc., 939 F.2d 1574, 1579 n. 7 (Fed.
Cir. 1991); see, e.g., Epic Sporting Goods, Inc. v. Fungoman LLC,
No. 09-1981, 2011 WL 588496, at *3 (W.D. La. Feb. 10, 2011)
(finding express right to sue for past infringement where
agreement stated that assignee had right to sue for “all claims
for damages by reason of past and future infringement” (em-
phasis added)).
Plaintiff responds that its ability to sue for past infringe-
ment is a question about the scope of damages “which is ana-
lytically distinct from statutory standing.” Resp. to Mot. at 12
(ECF No. 20). That is not how the Federal Circuit sees it. In
Abraxis 	Bioscience, 	for 	example, 	the 	court 	held 	that 	the
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licensee’s “complaint must be dismissed because [the licen-
see] lacked standing at the time the action was filed . . . to sue
for past infringement.” 625 F.3d at 1367; see also Total Rebuild,
Inc. v. PHC Fluid Power, LLC, No. 15-01855-BAJ-CBW, 2018
WL 3901195, at *2 (W.D. La. Aug. 15, 2018) (finding that, “ab-
sent explicit language conveying the right to sue for past in-
fringement, the assignee lack[ed] standing to sue for past in-
fringement . . . and damages that occurred before [the date of
assignment]”). Indeed, multiple courts have dismissed claims
for past infringement at the motion to dismiss stage where the
plaintiff did not have statutory standing to assert those
claims. See Laltitude LLC v. Soyeeglobal, No. 2:22-cv-00198-
ODW (RAOX), 2025 WL 1259730, at *1 (C.D. Cal. Apr. 30,
2025) (denying a motion for clarification after the court “dis-
missed the patent infringement claim with prejudice” because
“assignment did not explicitly include legal title to sue for
past infringement”); A10 Networks, Inc. v. Brocade Commc’ns
Sys., Inc., No. 5:11-cv-05493-LHK, 2012 WL 1932878, at *6
(N.D. Cal. May 29, 2012) (granting “motion to dismiss as to
[assignee’s] claim for past infringement” after finding that as-
signee “did not acquire the right to sue for past infringe-
ment[,]” and thus “lack[ed] standing to do so”). So too here.
Plaintiff’s claims for infringement that occurred before Plain-
tiff acquired its license on June 19, 2025 are dismissed without
prejudice.3
C ONCLUSION
The Court DENIES Defendant’s Motion to Dismiss in part
and GRANTS Defendant’s Motion to Dismiss in part. ECF No.
18. Plaintiff’s claims in counts II, III, and IV of its First
3 The claims are dismissed without prejudice to provide Plaintiff the
ability to replead facts plausibly establishing a right to sue for past in-
fringement, if such facts exist.
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Amended Complaint for damages arising from patent in-
fringement occurring before June 19, 2025, are dismissed
without prejudice.
So ordered by the Court on October 8, 2026.
AN DR EW DAVI S
United States District Judge
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