IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

HANGZHOU CHIC INTELLIGENT 

TECHNOLOGY CO. and UNICORN 

GLOBAL, INC., 

Plaintiffs, 

v. 

THE PARTNERSHIPS AND 

UNINCORPORATED ASSOCIATIONS 

IDENTIFIED ON SCHEDULE A, 

Defendants. 

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Case No. 20-cv-4806 

Judge Thomas M. Durkin 

Magistrate Judge Jeffrey Cole 

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTIONS TO DISMISS 

AND STRIKE RESPONSIVE PLEADINGS OF DEFENDANT GYROOR 

Plaintiffs and Counterclaim Defendants Hangzhou Chic Intelligent Technology Co. and 

Unicorn Global, Inc. (“Plaintiffs”), in support of their motion to dismiss counterclaims under Rules 

8, and 12(b)(6), strike affirmative defenses under Rule 12(f), and strike the Answer of Defendant 

Gyroor-US (“Defendant” or “Gyroor”) under Local Rule 10.1, state as follows: 

Background

On November 19, 2020, Plaintiffs filed their operative, Third Amended Complaint 

(“Complaint”). Dkt. 101. The Complaint alleges that Gyroor and various other online stores, 

primarily based outside of the United States, sold and are selling hoverboard products in violation 

of four design patents issued to Plaintiff Hangzhou Chic Intelligent Technology Co. On December 

29, 2020, Plaintiffs served Gyroor with the Complaint and a temporary restraining order. See Dkt. 

150. Gyroor filed a motion to dismiss under Rule 12(b)(6) on January 19, 2021—which this Court 

denied on April 1. Dkt. 165, 199. On April 29 Gyroor filed two more motions: a second motion 

to dismiss under Rule 12(b)(6) and a motion to dismiss or sever under Rule 20 and Rule 21. Dkt. 

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211, 217. The Court denied Gyroor’s second Rule 12(b)(6) motion as successive, and Gyroor filed 

leave to file another Rule 12(b)(6) motion, which the Court also denied. Dkt. 226, 231, 238. The 

Court later denied Gyroor’s Rule 20/Rule 21 motion. Dkt. 284. Currently pending before the 

Federal Circuit is Gyroor’s appeal of this Court’s denial of its Rule 20/Rule 21 motion. Dkt. No. 

298; Case No. 21-2107. 

After these rounds of motions and notices, and more than five months after first appearing, 

Gyroor then filed an Answer to the Complaint, Dkt. 309, which is deficient in a number of ways. 

The Answer states admissions or denials to each allegation without repeating or paraphrasing the 

allegation to which they are responding. See generally Dkt. 309. Many of the paragraphs simply 

recite numerous one-word paragraphs. Id. ¶¶ 29, 33–37, 39–44, 46–48, 50–52, 54–56. 

In addition to answering, Gyroor also filed twelve affirmative defenses and four 

counterclaims. As for the affirmative defenses, each consists solely of conclusory, generic, and 

boilerplate one-sentence statements. See Id. at p. 5-6. As for the counterclaims, Gyroor asserts 

counts for non-infringement, invalidity, anti-trust, and malicious prosecution. Id. at p. 8-12. 

Gyroor’s non-infringement counterclaim (Count I) is premised on the unrecognized theory that 

because Gyroor obtained a license to a third-party patent, it could not have infringed Plaintiffs’ 

patents. Id. ¶¶ 7, 10, 11. The invalidity counterclaim (Count II) is premised on unsubstantiated 

allegations that Plaintiffs knowingly asserted patents that were invalid and unenforceable due to 

prior art, i.e., Patent No. 739,906. Id. ¶¶ 19, 20, 22. Regarding the antitrust counterclaims (Count 

III), Gyroor attempts to define a proper market by baldly alleging, without more, that Plaintiffs 

“engaged in practices that create a monopoly in hoverboard industry.” Id. ¶¶ 28-29, 31-32. 

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Finally, Gyroor’s state law counterclaim for malicious prosecution (Count IV1) alleges, with no 

factual support, that Plaintiffs abused judicial process to maliciously bring claims against Gyroor 

without probable cause—despite the fact that the proceedings have not been terminated in favor 

of Gyroor. Id. ¶¶ 38, 39. Gyroor’s operative allegations for each counterclaim are entirely 

conclusory and devoid of facts, with the majority of them based solely “upon information and 

belief.” See, e.g., Id. ¶¶ 12, 15, 22, 27, 30-32, 39-40. 

Argument 

Gyroor’s counterclaims and affirmative defenses consist solely of conclusory, generic, and 

boilerplate statements that fail to satisfy the most basic of federal pleadings standards under Iqbal

and Twombly. Therefore, this Court should dismiss and/or strike Gyroor’s counterclaims and 

affirmative defenses, respectively, under Rules 8, 9(b), 12(b)(6), and 12(f). In addition, because 

the Answer fails to comply with Local Rule 10.1, this Court should strike it in its entirety. 

I. The Court Should Dismiss Gyroor’s Counterclaims for Failing to State a Claim under 

Rule 12(b)(6) 

Gyroor asserts four counterclaims: non-infringement (Count I), invalidity (Count II), 

antitrust (Counts III), and malicious prosecution (Count IV). On their face, none of the 

counterclaims satisfy the federal pleading standard under Iqbal and Twombly because they are bare 

legal conclusions unsupported by any well-pleaded allegations. Ashcroft v. Iqbal, 556 U.S. 662 

(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). This Court has routinely applied the 

Iqbal/Twombly standard to patent cases. See, e.g., Cleversafe, Inc. v. Amplidata, Inc., No. 11 C 

4809, 2011 WL 6379300, 2011 U.S. Dist. LEXIS 145995, at *3 (N.D. Ill. Dec. 20, 2011) (relying 

on Iqbal and Twombly to dismiss, under Rule 12(b)(6), invalidity counterclaims baldly claiming, 

 

1

 Despite being the fourth and final counterclaim, Gyroor mistakenly labeled this 

counterclaim “Count X”. 

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like here, that the patents were “invalid for failing to comply with provisions of United States 

patent laws, including one or more of 35 U.S.C. §§ 101-103 and/or 112”); see also Groupon Inc. 

v. MobGob LLC, No. 10 C 7456, 2011 WL 2111986, 2011 U.S. Dist. LEXIS 56937 at *12–13 

(N.D. Ill. May 25, 2011) (dismissing similar counterclaims under Rule 12(b)(6) and holding that 

application of basic pleading standards under Rule 8 does not conflict with local patent rules). The 

deficiencies of each counterclaim are explained below. 

A. Non-infringement Counterclaim (Count I) 

The non-infringement count is twelve paragraphs. The first paragraph incorporates all 

prior paragraphs. Dkt. 309, ¶ 6. The second paragraph alleges that Gyroor’s products are based 

on a third-party hoverboard design patent for which Gyroor has obtained a license (“Licensed 

Patent”). Id. ¶ 7. The third and fourth paragraphs recite the Egyptian Goddess “ordinary observer” 

standard for design patent infringement. Id. ¶ 8, 9. The next three paragraphs apply this legal 

standards to Gyroor’s accused products and the asserted patents, purporting to form a basis for 

non-infringement. Id. ¶ 10-12. The remaining five paragraphs are conclusory statements 

regarding damages, intent, and requests for relief—all of which are unsupported by any factual 

allegations. Id. ¶ 13-17. The three operative allegations are: 

• “It is obvious that Defendant’s Licensed Patent D808,857 has a unique design from the 

Patents-in-Suit, namely the shape and size of the fenders that cover the wheels and the 

curved lines on the boards surface. In view of the ornamental features and ornamental 

aspects of functional features of the alleged infringing Gyroor-US’ products, an ordinary 

observer, taking into account the prior art, would not consider that the Gyroor-US’ products 

are of the same design shown in D737,723. No reasonable factfinder could find the 

ordinary observer test met here because the ordinary observer would be drawn to those 

aspects of the claimed design that differ from the prior art and could not conclude that the 

alleged Gyroor-US products appropriated those aspects.” Id. ¶ 10. 

• “In view of limitations contained in the claims of the Patents-in-Suit, those claims are not 

and cannot be infringed by the use, manufacturing, sale, and offer for sale of certain hover 

boards by Defendant, either directly or indirectly by inducement, as alleged in the TAC.” 

Id. ¶ 11. 

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• “Upon information and belief, in view of the prosecution history or judicial estoppel which 

applies to the claims of the Patents-in-Suit, those claims are not infringed by and are not 

and cannot be infringed by the use, manufacturing, sale, and offer for sale of certain hover 

boards by Defendant, either directly or indirectly by inducement, as alleged in the TAC.” 

Id. ¶ 12. 

Gyroor alleges that because it purportedly possesses a license to a third-party’s unrelated 

patent, it somehow cannot be found to infringe the patents asserted in this action. See Dkt. 309, 

¶¶ 7, 10. To begin, that defense is not a substantive defense under U.S. patent law. See, e.g., 2 

Janice M. Mueller, Mueller on Patent Law: Patent Enforcement, 569-764 (2020). And, of course, 

this defense does not exist because a patent license “simply provides the licensee with a guarantee 

that it will not be sued for engaging in conduct that would infringe the patent in question.” U.S. 

Philips Corp. v. ITC, 424 F.3d 1179, 1189 (Fed. Cir. 2005) (emphasis added). To be clear, 

Plaintiffs do not own this third-party patent, and have not provided a license to Gyroor for any of 

the asserted patents—and Gyroor has not asserted otherwise. Instead, Gyroor thinks that because 

its product is “based on” the design of an unrelated third-party patent, it somehow cannot infringe 

the asserted patents. Dkt. 309, ¶¶ 7, 10. But Gryoor’s license only guarantees it will not be sued 

for infringing the third-party patent, and does not convey any affirmative right to practice it. See 

TransCore, LP v. Elec. Transaction Consultants Corp., 563 F.3d 1271, 1275 (Fed. Cir. 2009) (a 

patent license “cannot convey an affirmative right to practice a patented invention” but instead 

“can only convey a freedom from suit” based on the licensed patent). Accordingly, even if the 

Gyroor product shown in ¶ 7 is based on a third-party patent, this fact has no bearing whatsoever 

on whether Gryoor infringes Plaintiffs’ asserted patents. 

Lastly, the non-infringement allegations rely on the existence of some purported external 

defect—for example, limitations in the claims of the asserted patents or flaws in the prosecution 

history that prevent infringement from occurring—but those counterclaims fail to specify what 

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that defect is. Dkt. 309, ¶¶ 11, 12. “Because [Defendant] has not alleged a single fact in support 

of its claim, it fails to give [Plaintiffs] notice of the basis of its claim.” Groupon, 2011 U.S. Dist. 

LEXIS 56937, at *12. Because the non-infringement counterclaim fails to satisfy the pleading 

requirements of Rule 8, or even raise a recognized substantive non-infringement defense under 

U.S. patent law, the Court should dismiss Count I under Rule 12(b)(6).

B. Invalidity Counterclaim (Count II) 

The invalidity count is seven paragraphs. The first paragraph incorporates all prior 

paragraphs. Dkt. 309, ¶ 18. The second and third paragraphs include one-sentence allegations 

purporting to assert bases for invalidity, and the remaining four paragraphs are conclusory 

statements regarding damages, intent, and requests for relief—all of which are unsupported by any 

factual allegations. Id. ¶ 19-24. The two one-sentence allegations are: 

• “The Patents-in-Suit are substantially similar to U.S. Design Patent D739,906. See Ex. 2.” 

Id. ¶ 19. 

• “Defendant is entitled to a declaratory judgment that the claims of the Patents-in-Suit are 

invalid and/or unenforceable under 35 U.S.C. §§101 et seq., for failing to meet the 

requirements of at least 35 U.S.C. §§101, 102, 103, and/or 112.” Id. ¶ 20. 

Taken together, these statements are bare legal conclusions unsupported by any wellpleaded allegations, and therefore none of them satisfy the federal pleading standard under Iqbal

and Twombly. See, e.g., Cleversafe, 2011 U.S. Dist. LEXIS 145995 at *3 (dismissing invalidity 

counterclaims under Rule 12(b)(6) for baldly claiming patents were “invalid for failing to comply 

with provisions of United States patent laws, including one or more of 35 U.S.C. §§ 101-103 and/or 

112”); Groupon, 2011 U.S. Dist. LEXIS 56937 at *12–13 (dismissing invalidity counterclaims 

under Rule 12(b)(6) for failing to satisfy basic pleading standards under Rule 8). 

To be fair, “[d]istrict courts across the country, including in the Northern District of Illinois, 

have reached opposite conclusions regarding whether to dismiss a factually bare invalidity 

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counterclaim.” Cleversafe, 2011 U.S. Dist. LEXIS 145995 at *4-5. Compare Pfizer Inc. v. Apotex 

Inc., 726 F. Supp. 2d 921, 938 (N.D. Ill. 2010), which allowed bare assertions of patent invalidity 

to survive dismissal under Rule 12(b)(6) because Local Patent Rule 2.3 requires additional 

disclosures at a later stage, with Groupon, 2011 U.S. Dist. LEXIS 56937, at *13, which held that 

“[t]his Court will not excuse [Defendant’s] inadequate pleadings simply because the local patent 

rules require the company to provide more details regarding its claims of invalidity at a later point.” 

But Pfizer is distinguishable because in that case, the invalidity counterclaims were preceded by 

91 paragraphs of substantive factual allegations, including facts describing a specific basis for 

patent invalidity. Pfizer, Case No. 08-CV-7231, Dkt. 110, at 30, ¶ 64 (“[Defendant’s] ANDA 

included and contains a paragraph IV certification to the patents-in-suit, stating...that such patents 

are invalid and/or unenforceable”). By contrast, the invalidity counterclaims in Groupon merely 

accused the plaintiff-patentee of “failing to comply with one or more provisions of...35 U.S.C. 

§§ 101-103, 112, and 116”—utilizing almost the same language Gyroor adopts in its invalidity 

counterclaim here. Groupon, Case No. 10-cv-07456, Dkt. 24, ¶ 32. This Court reiterated its 

position that invalidity counterclaims that conclusively state the asserted patents are “invalid for 

failing to comply with provisions of United States patent law, including one or more of 35 U.S.C. 

§§ 101-103 and/or 112” are not sufficiently pled under Iqbal and Twombly. Cleversafe, at *4-5. 

Gyroor’s unsubstantiated assertion that the “Patents-in-Suit are substantially similar to U.S. 

Design Patent D739,906” likewise does not satisfy the pleading standard for invalidity 

counterclaims. Dkt. 309, ¶ 19. This Court has held that conclusory statements regarding 

“substantial similarity” of the asserted patent and the prior art are insufficient to establish invalidity 

under 35 U.S.C. § 102. Tactical Med. Solutions, Inc. v. Karl, No. 14 C 06035, 2019 WL 2435859, 

2019 U.S. Dist. LEXIS 97545, at *21 (N.D. Ill. June 11, 2019); Cf. Helferich Patent Licensing, 

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LLC v. J.C. Penney Corp., No. 1:11-cv-9143, Dkt. 19 ¶¶ 28–29, 34–35, 40–41, 2012 WL 3776892, 

2012 U.S. Dist. LEXIS 123171 at *8 (N.D. Ill. Aug. 28, 2012) (invalidity counterclaim satisfied 

pleading standard because defendant spelled out that the alleged invalidity was due to prior art and 

specifically identified the categories of prior art.). Here, Gyroor’s allegation is generic and fails 

to include a single fact or argument sufficiently establishing that the D739,906 patent anticipates 

or otherwise invalidates Plaintiffs’ asserted patents. As a practical matter, the D739,906 patent 

was issued after the priority date for two of the asserted patents (D737,723 and D738,256) and 

was already considered by the USPTO in the prosecution of the two other asserted patents 

(D785,112 and D784,195), thus it is not eligible as prior art for purposes of Gyroor’s invalidity 

counterclaim. Because the invalidity counterclaim fails to satisfy the pleading requirements of 

Rule 8, the Court should dismiss Count II under Rule 12(b)(6). 

C. Antitrust Counterclaim (Count III) 

Gyroor’s antitrust counterclaims require dismissal for two, independent reasons: (1) they 

do not satisfy Rule 8; and (2) the alleged conduct raises no violation of the antitrust laws. 

First, the Supreme Court has emphasized the need for rigorous enforcement of Rule 8 for 

antitrust claims. See Twombly, 550 U.S. at 558. Applied here, the asserted counterclaims fall well 

short of Rule 8. At the onset, Gyroor fails to even identify under which section of the Sherman 

Act it brings these claims. See generally, Dkt. 309, ¶¶ 25-33. Because Gyroor has not alleged an 

agreement under Section 1, cf. 15 U.S.C. § 1 (prohibiting every “contract, combination . . . or 

conspiracy, in restraint of trade”), Gyroor presumably intended to bring these claims under Section 

2 (prohibiting every “attempt to monopolize . . . any part of the trade or commerce among the 

several States”). In order to assert such a claim, Gyroor must properly define a relevant market in 

which it alleges Plaintiffs have purported monopoly power. Lawrence H. Flynn, Inc. v. Philip 

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Morris USA, Inc., No. 05 C 318, 2006 WL 211823, 2006 U.S. Dist. LEXIS 2438, at *13-14 (N.D. 

Ill. Jan. 19, 2006) (“In order to satisfy the market power requirement, a plaintiff must establish that 

an alleged agreement has produced adverse anti-competitive effects within a specifically defined 

and relevant geographic market.”). Gyroor alleges nothing of the sort. Instead, it conclusively 

states, “Plaintiffs engaged in practices that create a monopoly in hoverboard industry.” Dkt. 309, 

¶ 28. This stand-alone statement is inadequate to define a relevant market over which Plaintiffs 

have purported monopoly power, so Gyroor’s antitrust claim fails on this point alone. 

Second, even if Gyroor had properly pled market power, its antitrust claim would still fail 

as a matter of law. Gyroor’s antitrust claim appears to be based solely on Plaintiffs’ current 

attempts to enforce their design patent rights through this litigation. But patentees, like Plaintiffs 

here, enjoy immunity from antitrust laws if they conformed to the patent law in procuring and 

enforcing their patents. Q-Pharma, Inc. v. Andrew Jergens Co., 360 F.3d 1295, 1304 (Fed. Cir. 

2004) (“A patent owner who brings a suit for infringement, without more, is generally exempt 

from the antitrust laws for that action....”); see also 35 U.S.C. §§ 1 et. seq. (The Patent Act). 

Although none are present here, there are rare circumstances in which a patentee may be 

stripped of this immunity. Q-Pharma, 360 F.3d at 1304. One example is when a patentee engages 

in “sham litigation” by attempting to enforce a patent that it knows is invalid, unenforceable, or 

not infringed. The Supreme Court established a two-prong test for determining whether litigation 

is a “sham”: (1) the lawsuit must be objectively baseless such that no reasonable litigant could 

realistically expect success on the merits; and (2) the court should determine whether the baseless 

suit conceals an attempt to interfere directly with a competitor’s business relationships through the 

use of the governmental process—as opposed to the outcome of that process—as an 

anticompetitive weapon. Q-Pharma, Inc., 360 F.3d at 1305. A suit is immunized from antitrust 

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liability if an objective litigant could conclude that the suit is reasonably calculated to elicit a 

favorable outcome. Only if the suit is found to be objectively baseless may the court proceed to 

the second prong. Id. But here, Gyroor alleges that Plaintiffs engaged in anticompetitive practices 

by initiating two lawsuits against it, thereby engaging in a scheme that “restrains defendants’ 

business [and] pressure[s] small business defendant[s].” Dkt. 309 ¶¶ 26, 28, 29, 31. Such 

statements fail to properly allege that Plaintiffs’ lawsuits are objectively baseless. Thus, any such 

“sham litigation” claims hold no water here. 

Because counterclaim Count III is insufficiently pleaded and does not state a legally 

cognizable claim, the Court should dismiss this Count under Rule 12(b)(6). 

D. Malicious Prosecution (Count IV)

To bring an Illinois state law counterclaim for malicious prosecution, the counterclaim 

plaintiff must plead facts to establish the following elements: “(1) the commencement or 

continuance of an original criminal or civil judicial proceeding by the defendant; (2) the 

termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such 

proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.” Joiner v. Benton 

Community Bank, 82 Ill. 2d 40, 45 (S. Ct. Ill. 1980). The absence of even one of these essential 

elements bars Gyroor from pursuing this claim. Id. Most notably, Gyroor has failed to allege that 

there was a termination in its favor of the original action that they claim was maliciously 

prosecuted—nor could it, as this claim is based on the present litigation that is still pending. On 

that point alone, its malicious prosecution claim should be dismissed under Rule 12(b)(6). 

II. The Court Should Strike Gyroor’s Affirmative Defenses Under Rule 12(f) 

The Court may strike from a pleading an insufficient defense. See Fed. R. Civ. P. 12(f). 

“Affirmative defenses are pleadings and, therefore, are subject to all pleading requirements of the 

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Federal Rules of Civil Procedure,” including Rule 8(a). Heller Fin., Inc. v. Midwhey Powder Co., 

883 F.2d 1286, 1294 (7th Cir. 1989). Pleading affirmative defenses that are “nothing but bare 

bones conclusory allegations” may be grounds for sanctions. Id. at 1295; see also Cleversafe, 

2011 U.S. Dist. LEXIS 145995, at *6 (“‘[B]are bones conclusory allegations’ are insufficient to 

state an affirmative defense”). Even before Iqbal and Twombly, this Court published an opinion 

expressly to correct “a gaggle of fundamental pleading errors that continue to crop up in responsive 

pleadings.” State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001). One 

such error was the improper use of affirmative defenses in patent cases. As the Court stated: 

It is unacceptable for a party’s attorney simply to mouth ADs in formula-like 

fashion (“laches,” “estoppel,” “statute of limitations” or what have you), for that 

does not do the job of apprising opposing counsel and this Court of the predicate 

for the claimed defense—which is after all the goal of notice pleading. 

Id. at 279. Such threadbare assertions of affirmative defenses “will [] be stricken.” Id. Gyroor’s 

Second Affirmative Defense states exactly what the Court prohibits under State Farm: “One or 

more of the claims of the [Complaint] are barred by the doctrines of waiver, acquiescence, 

estoppel, ratification, laches, and/or unclean hands.” Dkt. 309 at p. 5. 

Because Gyroor’s affirmative defenses are pleadings, they are subject to the more rigorous 

modern pleading standards outlined in Iqbal and Twombly. See Sarkis’ Cafe, Inc. v. Sarks in the 

Park, LLC, 55 F. Supp. 3d 1034, 1040 (N.D. Ill. 2014) (applying the Iqbal-Twombly standard to 

patent infringement defendant’s affirmative defenses and granting motion to strike under Rule 

12(f)); Groupon, 2011 U.S. Dist. LEXIS 56937, at *6 (the Court “must apply” the Iqbal and 

Twombly standards to affirmative defenses). The Court should strike affirmative defenses that are 

“threadbare recitals of elements” that would be insufficient to survive a 12(b)(6) motion to dismiss. 

Manley v. Boat/U.S. Inc., No. 13-cv-5551, 2016 WL 1213731, 2016 U.S. Dist. LEXIS 41036, at 

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*18 (N.D. Ill. Mar 29, 2016); see also Sarkis’ Café, 55 F. Supp. 3d at 1040 (striking affirmative 

defenses that were “presented in a single sentence” without “any factual support”). 

Here, each of Gyroor’s affirmative defenses is simple a conclusory, one sentence statement. 

These defenses seem to have been pasted from a menu, without any application to this case. For 

example, Gyroor makes broad, conclusory statements such as “Plaintiffs have not sustained 

damages” and “Plaintiffs’ claims...are barred by res judicata and/or collateral estoppel” without 

providing any facts in support or even explaining how these defenses apply to the case. Dkt. 309, 

at p. 5-6. Gyroor also alleges that “one or more of the claims” fail to state a claim.2

 But “a 

defendant may not plead a plaintiff’s failure to state a claim as an affirmative defense.” Id. at 5; 

Sarkis’ Café, 55 F. Supp. 3d at 1041. 

Although each affirmative defense suffers from similar deficiencies, the defenses of 

Plaintiffs’ “fail[ure] to comply with the duty of candor required by the USPTO” and “patent 

misuse” warrant separate consideration. Dkt. 309, pp. 5-6, ¶¶ 7, 12. These “fraud on the PTO” 

allegations are subject to Rule 9(b). See Sun-Flex Co. v. Softview Computer Prods. Corp., 750 F. 

Supp. 962 (N.D. Ill. 1990) (granting motion to strike under Rule 12(f) because defendant’s 

inequitable conduct affirmative defense failed to “specify the time, place, and content of any 

alleged misrepresentations that plaintiff made to the PTO.”). Gyroor therefore must allege the 

specific individual accused of inequitable conduct, along with facts to support an inference that 

the named individual both knew of the material information allegedly withheld, and deliberately 

withheld it with an intent to deceive the PTO. Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 

1312, 1326 (Fed. Cir. 2009). But Gyroor does not state what the misrepresentations were, the 

 

2

 The “one or more” pleading recurs in affirmative defenses 2, 4, 6, and 7, leaving Plaintiffs without 

any notice as to which claims those defenses even apply. See, e.g., Dkt. 309 at p. 5, ¶¶ 2, 4, 6, 7. 

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specific individual who made them, when they were made, where they were made, and how they 

were made. Taken together, Gyroor’s affirmative defenses fail to satisfy the pleading requirements 

of Rule 8, let alone the higher specificity requirements of Rule 9(b). Because the affirmative 

defenses are simply bare legal conclusions, this Court should strike each of them under Rule 12(f). 

III. The Court Should Strike Plaintiffs’ Entire Answer For Non-Compliance with Local 

Rule 10.1 

One of the “fundamental pleading errors” the Riley court addressed was non-compliance 

with Local Rules. Riley, 199 F.R.D. at 279. Local Rule 10.1 requires Gyroor to provide a “concise 

summary of the paragraph to which” each paragraph of its answer is directed. N.D. Ill. L.R. 10.1. 

This Court has imposed this obligation on parties “[f]or decades.” Riley, 199 F.R.D. at 279. “As 

a matter of practice, that requirement is most often complied with by a defendant’s verbatim 

copying of the complaint’s allegations in each paragraph, followed immediately by defendant’s 

response to that paragraph.” Id. This Court stated 20 years ago, “there is no justification for any 

lawyer’s noncompliance with such a plain directive of long standing—something that should be 

known by everyone practicing in this district.” Id. 

Yet, Gyroor has failed to comply with Local Rule 10.1. Notably, the paragraphs do not 

fully summarize the corresponding Complaint paragraph, let alone repeat it verbatim. Most 

paragraphs do not even do this much, including but not limited to the numerous one-word 

paragraphs. See, e.g., Dkt. 309, ¶¶ 29, 33–37, 39–40. 42–44, 46–48, 50–52, 54–56. 

The Riley court recommended correcting such a deficiency by “filing a full-blown selfcontained amended pleading, rather than just an amendment limited to correcting those errors.” 

199 F.R.D. at 280. This practice “avoids . . . patchwork pleading, in which more than one 

document must be examined to see the totality of the responding party’s pleadings.” Id. 

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Particularly in light of the numerous pleading errors identified in this motion in Sections I & II, 

this Court should strike the full pleading for failing to comply with L.R. 10.1. 

CONCLUSION 

 Gyroor’s counterclaims and affirmative defenses fail to comply with pleading standards 

under Rules 8, 9 and 12, and the Answer fails to comply with Local Rule 10.1. Its pleading is 

replete with conclusory, generic, and boilerplate statements and contains no meaningful supporting 

factual allegations. Accordingly, the Court should dismiss Gyroor’s counterclaims under Rule 

12(b)(6), strike its affirmative defenses under Rule 12(f), and strike its Answer under L. R. 10.1. 

Date: July 14, 2021 Respectfully Submitted, 

LOEB & LOEB LLP 

 /s/ Marwa Abdelaziz 

Adam Kelly 

Doug Masters 

Arthur Yuan 

Neil Nandi 

321 North Clark Street, Suite 2300 

Chicago, Illinois 60654 

Tel.: 312-464-3100 

Email: akelly@loeb.com 

Email: dmasters@loeb.com

Email: ayuan@loeb.com 

Email: nnandi@loeb.com 

Marwa Abdelaziz (admitted pro hac vice) 

LOEB & LOEB LLP 

345 Park Avenue 

New York, New York 10154 

Tel.: (212) 407-4000 

Email: mabdelaziz@loeb.com 

Case: 1:20-cv-04806 Document #: 333 Filed: 07/14/21 Page 14 of 14 PageID #:7890