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Product or Person, Not Both: Judge Hellerstein Dismisses Complaint for Alleging That the Accused Instrumentality is the Defendant

On August 25, 2022, Judge Hellerstein (S.D.N.Y.) granted defendant SAS Institute’s (“SAS”) motion to dismiss plaintiff Invincible IP LLC’s (“Invincible”) complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

At the outset of its analysis, the Court noted that Invincible’s complaint did not specifically identify the accused product. Instead, Invincible alleged "Defendant provides for its customers use SAS Institute ('the Accused Instrumentality')." However, elsewhere in its complaint Invincible alleged that SAS is "a corporation." Thus, Invincible appeared to allege that SAS itself is both the accused product and the defendant.

The complaint also included a series of screenshots from SAS’ website that mirrored language from the claims of Invincible’s patents. The Court noted that this gave the impression that the screenshots reflect or comprise a single product (the Accused Instrumentality). However, as the exhibits attached to SAS’s motion illustrated, the screenshots were excerpted from at least five different webpages and related to four different products offered by SAS.

The Court ultimately concluded that Invincible’s complaint failed to provide notice to SAS of the infringing activity of which it was accused or to allege plausibly that one or more of SAS’ products infringe Invincible’s patents. Upon ruling that the complaint did not satisfy the requirements of Fed. R. Civ. P. 8(a), 35 U.S.C. § 271, or the plausibility standard of Twombley and Iqbal, the Court granted SAS’ motion with leave to amend.

Case: Invincible IP LLC v. SAS Institute Inc., No. 22 Civ. 4490 (AKH), Dkt. No. 13 (S.D.N.Y. Aug. 25, 2022)