Respire Medical Holdings Llc v. Oravanosa, LlcMOTION to Dismiss Defendant's Counterclaim., MOTION for Judgment on the Pleadings on Defendant's Counterclaim. DocumentS.D.N.Y.November 14, 2016UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK RESPIRE MEDICAL HOLDINGS LLC Plaintiff, vs. ORAVANOSA, LLC Defendant. Case No.: 16-cv-5880(KPF)(JCF) PLAINTIFF’S MOTION TO DISMISS OR FOR JUDGMENT ON THE PLEADINGS Plaintiff Respire Medical Holdings LLC (“Respire”), through its undersigned counsel, hereby moves for judgment on the pleadings or in the alternative to dismiss defendant OravanOSA, LLC’s (“Defendant” or “Oravan”) counterclaim of design patent infringement, under Rules 12(c) and 12(b)(6), Fed. R. Civ. P., respectively. As described in the accompanying memorandum of law on which Plaintiff’s motion is based, Defendant in its original Answer broke its design patent down into elements which Defendant described in purely functional terms as being critical to the function and utilitarian requirements of the device embodying the purported design. Because Defendant’s assertions make clear that the elements of its so-called design are functional and not ornamental, and because those assertions are uncontroverted by Defendant’s attempted amended pleading, its counterclaim for design patent infringement should be adjudged unviable on the pleadings and/or dismissed. Dated: November 14, 2016 /s/ Philip L. Hirschhorn Philip L. Hirschhorn Aaron L. J. Pereira BUCHANAN INGERSOLL & ROONEY PC 1290 Avenue of the Americas, 30th Floor Case 1:16-cv-05880-KPF Document 29 Filed 11/14/16 Page 1 of 3 2 New York, NY 10104 Tel.: (212) 440-4400 Fax: (212) 440-4401 Email: philip.hirschhorn@bipc.com Attorneys for Plaintiff Respire Medical Holdings LLC Case 1:16-cv-05880-KPF Document 29 Filed 11/14/16 Page 2 of 3 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing motion and accompanying memorandum of law was caused to be filed using the Court’s CM/ECF service on November 14, 2016. Service will be completed on all Counsel of Record through the operation of the Court’s electronic systems. /s/ Aaron L. J. Pereira Aaron L. J. Pereira Case 1:16-cv-05880-KPF Document 29 Filed 11/14/16 Page 3 of 3
