McOm Ip, LLC v. Hsbc Bank USA, N.a.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MCOM IP, LLC,
Plaintiff-Appellant
v.
HSBC BANK USA, N.A.,
Defendant-Appellee
______________________
2024-1828
______________________
Appeal from the United States District Court for the
Southern District of New York in No. 1:23-cv-08801-DLC,
Senior Judge Denise Cote.
______________________
Decided: May 15, 2026
______________________
WILLIAM P ETERSON R AMEY , III, Ramey LLP, Houston,
TX, argued for plaintiff-appellant.
RESHMA C. G OGINENI, Wilmer Cutler Pickering Hale
and Dorr LLP, Palo Alto, CA, argued for defendant-appel-
lee. Also represented by T HOMAS SAUNDERS , Washington,
DC.
______________________
Before D YK, MAYER , and T ARANTO, Circuit Judges.
Case: 24-1828 Document: 56 Page: 1 Filed: 05/15/2026

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MCOM IP, LLC v. HSBC BANK USA, N. A. 2
T ARANTO, Circuit Judge.
In 2023, mCom IP, LLC, which owns U.S. Patent
No. 8,862,508, brought the present action against HSBC
Bank USA, N.A., in the U.S. District Court for the South-
ern District of New York, alleging HSBC’s infringement of
the ’508 patent—as now relevant, claim 17 of that patent.
Around the same time, mCom asserted claim 17 and other
claims of the same patent against another financial insti-
tution in the U.S. District Court for the Southern District
of Florida. Both complaints were dismissed with prejudice
for failure to state a claim—in the present case because
there was no plausible allegation of infringement, and in
the Florida case for noninfringement and for invalidity (in-
cluding of claim 17). See mCom IP, LLC v. HSBC Bank
USA, N.A., No. 1:23-cv-8801, 2024 WL 1704506, at *2–5
(Dismissal). mCom appealed each dismissal as to a single
common asserted claim, claim 17. We treated the appeals
as companions. Today, in the companion appeal, we affirm
the holding that claim 17 is invalid. That invalidity ruling
has preclusive effect here, preventing mCom from assert-
ing claim 17 in this appeal. For that reason, and because
mCom has not shown that the district court erred in dis-
missing its complaint with prejudice, we affirm.
I
The pertinent facts in this appeal—including the rele-
vant claim language, the allegations in the complaint, the
activity accused of infringement, and some of the reasons
for dismissal—are substantially similar to those in the
companion case, mCom IP, LLC v. City National Bank of
Florida, No. 24-2089, slip op. at 2–8, ___ F.4th ___, ___
(Fed. Cir. 2026), argued to our panel and decided today. We
set them forth in brief.
mCom owns the ’508 patent, which describes and
claims a “unified electronic banking system,” as relevant
here. See, e.g., ’508 patent, Abstract; id., col. 8, line 44,
through col. 9, line 24. Claim 17, which is the only claim
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MCOM IP, LLC v. HSBC BANK USA, N. A. 3
at issue on appeal, depends on claim 13. The two claims
read as follows:
13. A unified electronic banking system, said sys-
tem comprising:
a common multi-channel server, wherein said
multi-channel server is communicatively coupled
to one or more independent computer systems;
wherein each of one or more independent computer
systems is associated with an independent finan-
cial institution, and each of said computer systems
is communicatively coupled to said multi-channel
server;
one or more e-banking touch points, each of which
comprise one or more of an automatic teller/trans-
action machine (ATM), a self-service coin counter
(SSCC), a kiosk, a digital signage display, an online
accessible banking website, a personal digital as-
sistant (PDA), a personal computer (PC), a laptop,
a wireless device, or a combination of two or more
thereof, wherein one or more of said e-banking
touch points are communicatively coupled to said
multi-channel server, and wherein at least one of
said e-banking touch points is in communication
with one or more financial institutions through
said multi-channel server; and
a data storage device, wherein transactional usage
data associated with a transaction initiated by a
user through one of said e-banking touch points is
stored in said data storage device and accessed by
one or more of said other e-banking touch points;
wherein said active session is monitored via
said server in real-time for selection of tar-
geted marketing content correlated to said
user-defined preferences, said targeted mar-
keting content correlated to said user-
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MCOM IP, LLC v. HSBC BANK USA, N. A. 4
defined preferences is selected subsequent to
said monitoring and transmitted in real-time
to at least one of said e-banking touch points
for acceptance, rejection, or no response by a
user, and wherein said response by said user
is used during said active session to deter-
mine whether transmission of additional in-
formation related to said marketing content
occurs during said active session.
17. The system of claim 13, wherein said system
provides said one or more financial institu-
tions with a common point of control of func-
tionality provided by said system.
Id., col. 10, line 35, through col. 11, line 4; col. 11, lines 15–
17 (emphases added).
In February 2023, the Patent and Trademark Office
(PTO), in an inter partes review under 35 U.S.C. §§ 311–
19, ruled that claims 1, 3–7, 9–13, 15–16, and 18–20 of the
’508 patent are unpatentable, slating them for cancellation.
Unified Patents, LLC v. mCom IP, LLC, No. IPR2022-
00055, 2023 WL 1824005, at *1 (P.T.A.B. Feb. 8, 2023). Af-
terward, in October 2023, mCom brought the present ac-
tion against HSBC, alleging infringement of claim 17.
Dismissal, at *1.1 mCom’s complaint included a claim
chart for claim 17 and its independent claim (claim 13)
with screenshots of HSBC webpages called “Ways to
Bank,” “Mobile Banking,” and “Online Privacy Statement.”
1 mCom asserted claims 2, 7, 14, and 17. The PTO
had already held claim 7 unpatentable, and mCom states
that including claim 7 in this action was accidental. mCom
Opening Br. at 4 n.7, 21. The district court ruled against
mCom on all four asserted claims, Dismissal, at *3–5, but
mCom appeals only as to claim 17, mCom Opening Br. at
21. Thus, we discuss only claim 17.
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MCOM IP, LLC v. HSBC BANK USA, N. A. 5
J.A. 42–52. mCom based its charge of HSBC’s infringe-
ment of claim 17 on the screenshots. J.A. 36.
That December, HSBC moved to dismiss for failure to
state a claim because the complaint did not allege facts suf-
ficient to support the claim of infringement, detailing the
deficiencies on which HSBC was relying, and mCom op-
posed. J.A. 53–78, 125–42. The district court allowed
mCom leave to amend pursuant to Federal Rule of Civil
Procedure (Rule) 15, specifically warning mCom that fur-
ther leave to amend was unlikely to be granted. J.A. 123–
24. mCom then timely filed an amended complaint (the
operative complaint here), mooting the already-filed mo-
tion to dismiss. J.A. 143–99, 200–01. In the amended com-
plaint, mCom included new allegations that the asserted
claims were valid, but the amended complaint is otherwise
substantially unchanged from the original complaint, in-
cluding with respect to its infringement allegations. Com-
pare J.A. 143–99 with J.A. 34–52.
HSBC again moved to dismiss under Rule 12(b)(6),
with prejudice, for essentially the same reasons it had pre-
viously identified. It contended, as now relevant, that the
complaint does not adequately plead infringement of claim
17 because it does not allege facts needed to make it plau-
sible that HSBC was practicing the “real-time” elements or
the “common point of control” element of that claim. J.A.
204–28. mCom opposed and, in the alternative, requested
leave to amend, though it did not specify what amendments
it sought to make. J.A. 287–304.
The district court dismissed the complaint with preju-
dice in April 2024. The district court specifically held that
the complaint lacks allegations that give rise to a plausible
inference that HSBC was practicing the “real-time” claim
elements or the “common point of control” element. Dis-
missal, at *2–5. The court denied leave to amend because
mCom had not explained or justified any proposed amend-
ment. Id. at *5.
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MCOM IP, LLC v. HSBC BANK USA, N. A. 6
This timely appeal followed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(1).
II
mCom challenges, only as to claim 17, both the district
court’s Rule 12(b)(6) dismissal and the district court’s re-
fusal to grant leave to amend. Under the applicable stand-
ards of review of the regional circuit, here the Second
Circuit, we review the Rule 12(b)(6) dismissal without def-
erence, accepting the well-pleaded allegations in the com-
plaint as true and drawing all reasonable inferences in
favor of the plaintiff. Melendez v. Sirius XM Radio, Inc.,
50 F.4th 294, 298–99 (2d Cir. 2022). We review the denial
of leave to amend in this case for abuse of discretion. Id. at
309. We apply our own law to patent-law issues even when
presented as part of other issues. See, e.g., ParkerVision,
Inc. v. Qualcomm Inc., 116 F.4th 1345, 1355–56 (Fed. Cir.
2024); In re Queen’s University at Kingston, 820 F.3d 1287,
1290–91 (Fed. Cir. 2016). We reject mCom’s challenges
and affirm.
A
In the companion Florida case, we today affirm a deter-
mination that claim 17 is invalid. mCom v. City National,
slip op. at 11–12. Under well-established general princi-
ples of issue preclusion (collateral estoppel), our judgment
affirming the invalidity ruling in mCom v. City National—
a matter of patent law—“collaterally estops [mCom] from
asserting [claim 17] in any further proceedings.” XY, LLC
v. Trans Ova Genetics, 890 F.3d 1282, 1294 (Fed. Cir. 2018)
(collecting cases); see Mendenhall v. Barber-Greene Co., 26
F.3d 1573, 1580–84 (Fed. Cir. 1994) (enforcing estoppel cre-
ated by intervening appellate invalidity judgment against
patentee in appeal from district court infringement ver-
dict); Masco Corp. v. United States, 303 F.3d 1316, 1329–
32 (Fed. Cir. 2002) (explaining that appellate court’s affir-
mance on a ground creates estoppel even if district court
relied as well on an alternative ground); SFM Holdings,
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MCOM IP, LLC v. HSBC BANK USA, N. A. 7
Ltd. v. Banc of America Securities, LLC, 764 F.3d 1327,
1338 (11th Cir. 2014) (same); In re Peters, 642 F.3d 381,
386 (2d Cir. 2011); Restatement (Second) of Judgments
§ 27 comment o.2 None of the circumstances that some-
times prevent the application of issue preclusion is present
here. See Papst Licensing GmbH v. Samsung Electronics
America, Inc., 924 F.3d 1243, 1250–51 (Fed. Cir. 2019). It
is appropriate to invoke this clear barrier to mCom’s asser-
tion of claim 17 based on our ruling in the companion case
today. See XY, 890 F.3d at 1294–95. Accordingly, we af-
firm the district court’s judgment because issue preclusion
based on our ruling today in the Florida case bars mCom
from recovering on invalidated claim 17.
In the alternative, and independently, we affirm the
Rule 12(b)(6) dismissal on the district court’s rationale.
Specifically, we hold that mCom did not plausibly allege
that HSBC practices the “real-time” or “common point of
control” elements of claim 17 and therefore fails to state a
claim of infringement. To state a claim for patent infringe-
ment, a complaint must contain “some factual allegations
that, when taken as true, articulate why it is plausible that
the accused [activity] infringes.” Bot M8 LLC v. Sony
Corp., 4 F.4th 1342, 1353 (Fed. Cir. 2021); see also Bell At-
lantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (facts
must “nudge[ ]” claim “across the line from conceivable to
plausible”); Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). We
agree with the district court that mCom’s complaint does
not do so, given what claim 17 requires.
As to the “real-time” elements, claim 17 has several re-
lated requirements: monitoring, content selection, content
2 We see no material difference among the applicable
preclusion principles stated in our circuit’s precedents,
those of the Eleventh Circuit (where the Florida case was
litigated), or those of the Second Circuit (where the present
case was litigated).
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MCOM IP, LLC v. HSBC BANK USA, N. A. 8
transmission, user action, and financial institution reac-
tion, all in real time in a single active session. ’508 patent,
col. 10, line 61, through col. 11, line 4. The crux of the com-
plaint’s infringement theory is that HSBC “monitors cus-
tomers activity in real time using Cookies . . .place[d] [ ] on
customers devices,” and HSBC “then send[s] targeted mar-
keting ads based on this information . . . when [customers]
log in to their bank accounts.” J.A. 183–86 (emphases
added). For support, the complaint cites HSBC’s Online
Privacy Statement, highlighting a portion of that webpage
that states, “[C]ookies [ ] are retained on your computer af-
ter your visit ends so we can identify your preferences and
enhance your future visits.” J.A. 183 (some emphases re-
moved). Those allegations plainly state that HSBC uses
cookies across two customer visits—a first visit, during
which a cookie is placed on a customer’s device, and a sec-
ond visit, after that same customer has later logged back
in. The facts set forth in the complaint do not state any-
thing that makes it plausible that HSBC practices the
“real-time” elements in a single active session.
The complaint similarly fails to plead facts that give
rise to a plausible inference that HSBC satisfies claim 17’s
“common point of control” element. The claimed system
must “provide[ ] . . . [a] financial institution[ ] with a com-
mon point of control,” ’508 patent, col. 11, lines 15–17, but
mCom’s complaint alleges simply that HSBC allows cus-
tomers “to access the same banking information with a sin-
gle log-in menu as well as a single menu for navigation
from all their digital banking touch points,” J.A. 187. The
bare fact that HSBC provides customers with consistent
menus across different platforms does not, taken as true,
give rise to a plausible inference that HSBC itself has the
claimed common point of control over its e-banking offer-
ings on the back end. What is more, mCom never explained
to the district court why it should, or even that it should,
make such an inference based on mCom’s pleaded facts.
See J.A. 187, 299–300. It was not incumbent on the district
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MCOM IP, LLC v. HSBC BANK USA, N. A. 9
court to “invent factual allegations that [mCom had] not
pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.
2010). We thus affirm the district court’s judgment on the
independent ground that mCom failed to plausibly allege
infringement.
B
We discern no abuse of discretion in the district court’s
denying leave to amend. “[F]ailure to cure deficiencies by
amendments previously allowed” can justify denying leave
to amend. Foman v. Davis, 371 U.S. 178, 182 (1962). Here,
mCom had an opportunity to amend and was warned that
another would not be forthcoming. J.A. 123–24. Leave to
amend may also be denied if the requester “fails to specify
. . . how amendment would cure the pleading deficiencies
in [its] complaint.” Melendez, 50 F.4th at 309 (quoting
TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d
Cir. 2014)). In this case, despite an earlier opportunity and
warning, mCom failed to cure the deficiencies in its com-
plaint or to specify what it would change by amendment.
See Dismissal, at *5; J.A. 302–03. mCom points to no au-
thority that makes dismissal with prejudice an abuse of
discretion in these circumstances.
III
We have considered mCom’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we af-
firm the judgment of the district court.
AFFIRMED
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