UNITED STATES DISTRICT COURT 

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 IN SUPPORT OF DEFENDANT AND THIRD-PARTY 

RESPONDENTS’ MOTION FOR SUMMARY JUDGEMENT OF NONINFRINGEMENT 

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TABLE OF CONTENTS 

INTRODUCTION .......................................................................................................................... 1

FACTS ............................................................................................................................................. 2

A. The Patents-in-suit......................................................................................................... 2

B. Prior Art – U.S. Design Patent D739,906 .................................................................... 2

C. Separate Patent Issued on Accused Products - U.S. Design Patents D808,857, U.S. 

Design Patents D808,856 and U.S. Design Patents D891, 297 ................................... 2

D. The Accused Products ................................................................................................... 3

E. Procedural Background ................................................................................................ 4

LEGAL STANDARD ..................................................................................................................... 5

A. Summary judgement of non-infringement in design patent cases ............................ 5

B. Only the “ornamental features” of a design patent should be considered; 

“functional aspects” and “general design concepts” must be discounted for the 

non-infringement analysis............................................................................................. 6

C. The “ordinary observer” must be conversant with the prior art. ............................. 6

ARGUMENTS ................................................................................................................................ 7

A. The Patents-in-Suit should be construed based on the drawings. ............................. 7

B. The scope of the claimed designs is limited to the ornamental aspects. ................... 7

C. In the view of the Gestalt principles, the D’856 Patent, D’857 Patent, and D’297 

Patent should be given due weight for non-infringement analysis. .......................... 8

D. Non-infringement analysis of the Patents-in-Suit ..................................................... 10

CONCLUSION ............................................................................................................................. 25

CERTIFICATE OF SERVICE ................................................................................................... 27

 

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TABLE OF AUTHORITIES 

Case Page 

Celotex Corp. v. Catrett, 

477 U.S. 317(1986) ..............................................................................................................5 

Dobson v. Dornan, 

118 U.S. 10, 14 (1886) .........................................................................................................7

Duff v. Sterling Pump Co., 

107 U.S. 636 (1883) .............................................................................................................9 

Egyptian Goddess, Inc. v. Swisa, Inc., 

 543 F.3d 665 (Fed. Cir. 2008)..........................................................................................6, 7 

Elmer v. ICC Fabricating, Inc., 

67 F.3d 1571 (Fed. Cir. 1995)..............................................................................................7 

Ethicon Endo-Surgery, Inc. v. Covidien, Inc, 

796 F.3d 1312 (Fed. Cir. 2015)............................................................................................6 

Gutterglove, Inc. v. Am. Die & Rollforming, Inc., 

No. 2:16-CV-02408-WHO, 2018 WL 2356756 (E.D. Cal. May 24, 2018) .......................9 

Havco Wood Prod., LLC v. Indus. Hardwood Prod., Inc., 

No. 10-CV-566-WMC, 2012 WL 12995414 (W.D. Wis. Oct. 18, 2012) ..........................9 

Lanard Toys Ltd. v. Dolgencorp LLC, 

958 F.3d 1337 (Fed. Cir. 2020)....................................................................................5, 6, 7 

Nat'l Presto Indus., Inc. v. W. Bend Co., 

76 F.3d 1185 (Fed. Cir. 1996) .............................................................................................9 

OddzOn Prods., Inc. v. Just Toys, Inc., 

122 F.3d 1396 (Fed. Cir. 1997)............................................................................................6 

Parallel Networks, LLC v. Abercrombie & Fitch Co., 

704 F.3d 958 (Fed. Cir. 2013) ...........................................................................................12 

Richardson v. Stanley Works, Inc., 

597 F.3d 1288 (Fed. Cir. 2010)............................................................................................6 

Smith v. Whitman Saddle Co., 

148 U.S. 674 (1893) .............................................................................................................6 

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Siemens Med. Sols. USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc., 

637 F.3d 1269 (Fed. Cir. 2011) ...........................................................................................9 

Sitrick v. Dreamworks, LLC., 

516 F.3d 993 (Fed. Cir. 2008) ...........................................................................................12 

Sport Dimension, Inc. v. Coleman Co., 

820 F.3d 1316, 1320 (Fed. Cir. 2016)..................................................................................6

Wallace v. Ideavillage Prods. Corp., 

640 Fed. Appx. 970 (Fed. Cir, 2016) ...................................................................................6 

Zygo Corp. v. Wyko Corp., 

79 F.3d 1563 (Fed. Cir. 1996) .............................................................................................9 

Rules 

Fed. R. Civ. P. 56(a) ........................................................................................................................5 

35 U.S. Code § 102(a)(2) .................................................................................................................2 

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INTRODUCTION 

Defendant Gyroor-US (“Defendant” or “Gyroor-US”) and third-party respondents Gyroor, 

Urbanmax, GaodeshangUS, Fengchi-US, Gyroshoes, and HGSM (collectively, “Third-Party 

Respondents”) hereby submit this memorandum in support of their Motion for Summary Judgment 

against Plaintiffs Hangzhou Chic Intelligent Technology Co., Ltd. (“Chic”) and Unicorn Global, 

Inc.’s (“Unicorn”, and collectively with Chic, “Plaintiffs”). 

A design patent on a product that has utilitarian (functional) features only prevents others 

from making, using, or selling a product whose overall appearance is substantially the same as the 

claimed design. The scope of the claimed design does not extend to “the broader general design 

concept.” Thus, when construing the claimed designs, the scope of that claim must be limited to 

the ornamental aspects of the design and does not extend to the border general design concept. 

Here, Defendant and Third-Party Respondents respectfully request the Court to grant a 

summary judgment of non-infringement of their accused products. When claimed designs are 

confined to the ornamental features depicted in the drawings, no ordinary observer would believe 

the design of the accused products is substantially similar to claimed designs of the Plaintiffs’ 

patents. Further, Plaintiffs’ patents, prior art, and accused products all have similar particular 

features. Plaintiffs’ patents and accused products did not depart conspicuously from the prior art, 

and the overall hourglass shape of the accused products follows the prior art making the 

noninfringement obvious. Last but not least, under the Gestalt principles, because the eye will be 

attracted to areas of high contrast, an ordinary observer will find that the accused products are 

substantial similar to a separated patent which it was designed upon. The separated patent should 

be given due weight during the comparison and would further prove that an ordinary observer 

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would find the accused products are substantial similar to the separated patent instead of the 

Plaintiffs’ patents. 

In conclusion, as no ordinary observer would believe the design of the accused products is 

substantially similar to claimed designs of the Plaintiffs’ patents, a summary judgment should be 

granted in favor of Defendant and Third-Party Respondents’ accused products. The Court should 

find that the accused products does not infringe any of the Plaintiffs’ patents. 

FACTS 

A. The Patents-in-suit 

Plaintiffs allege that Defendant and Third-Party Respondents’ products (“Accused 

Products”) infringed on their U.S. Design Patent Nos. D737,723 (“the ’D723 patent”), D738,256 

(“the ’D256 patent”), D785,112 (“the ’D112 patent”), D784,195 (“the ’D195 patent”) (collectively, 

“Patents-in-Suit”). [Dkt. 101; RSMP ¶¶17-21]. 

B. Prior Art – U.S. Design Patent D739,906 

Under 35 U.S.C. §102(a)(2), prior art includes “a patent issued under section 151, or in an 

application for patent published or deemed published under section 122(b), in which the patent or 

application, as the case may be, names another inventor and was effectively filed before the 

effective filing date of the claimed invention.” 

The U.S. Design Patent D739,906 (the “D’906 Patent”) was filed on March 12, 2013, 

earlier than any Patents-in-Suit. See D‘906 Patent attached as Exhibit 1; RSMP ¶¶33-34. 

Therefore, the D’906 Patent is prior art to all Patents-in-Suit. [Dkt. 414-1].

C. Separate Patent Issued on Accused Products - U.S. Design Patents D808,857, U.S. 

Design Patents D808,856 and U.S. Design Patents D891, 297 

1. U.S. Design Patents D808,857 

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U.S. Design Patents D808,857 (the “D’857 Patent”) was issued to Accused Products on 

January 30, 2018. [Dkt. 414-2; RSMP ¶¶35-37]. The D’857 Patent was examined against all four 

Patents-in-suit. Id. 

2. U.S. Design Patents D808,856 

U.S. Design Patents D808,856 (the “D’856 Patent”) was issued to Accused Products on 

January 30, 2018. [Dkt. 419-6; RSMP ¶¶38-40]. The D’856 Patent was examined against all four 

Patents-in-suit. Id. 

3. U.S. Design Patents D891, 297 

U.S. Design Patents D891,297 (the “D’297 Patent”) was issued to Accused Products on 

July 28, 2020. [Dkt. 419-10; RSMP ¶¶41-43]. The D’297 Patent was examined against all four 

Patents-in-suit. Id. 

D. The Accused Products 

Plaintiffs alleged that Defendants’ products infringed on the Patents-in-suit, and the 

Accused products were grouped and identified as “Gyroor A”, “Gyroor B”, “Gyroor C”, “Gyroor 

D” [Dkt. 385] and “Gyroor E” [Dkt. 456]. 

1. Accused Product A 

Initially, only one product “Gyroor-A” (B07PHFP8GB “Accused Product A”) was 

identified in the accompany Schedule A to the Third Amended Complaint. [Dkt. 101-14; RSMP 

¶¶28]. 

2. Accused Product B 

 “Gyroor-B”, as shown below, (B08R23QQT8 “Accused Product B”) was later identified 

in the “Amended Schedule A”. [Dkt. 227; RSMP ¶¶29]. 

3. Accused Product C 

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“Gyroor-C” (“Accused Product C”) was identified when Plaintiffs applied for the second 

preliminary injunction. [Dkt. 385; RSMP ¶¶30]. 

4. Accused Product D 

As shown below, “Gyroor-D” (B08NT551P4 “Accused Product D”) was identified in the 

“Amended Schedule A”. [Dkt. 227; RSMP ¶¶31]. 

5. Accused Product E 

As shown below, “Gyroor-E” (“Accused Product E”) was first identified in the “Exhibit B” 

of the proposed order of Plaintiffs’ second preliminary injunction order, but Plaintiffs had never 

mentioned it in any of their motion papers. [Dkt. 456]. On October 28, 2022, the proposed order 

which includes the Accused Product E was vacated by the Federal Circuit. On November 9, 2022, 

Plaintiffs filed another renewed motion for temporary restraining order and preliminary injunction 

which includes the Accused Product E in the renewed motion again [Dkt. 593]. However, this 

renewed motion was denied by the Court on December 2, 2022. [Dkt. 619; Dkt. 626; RSMP ¶¶32]. 

As it is unclear whether the Accused Product E is Accused Product in the current case, Defendant 

filed a motion to clarify on December 9, 2022. [Dkt. 625], and the motion is currently pending 

with the Court. 

6. All of the Accused Products are manufactured based on the D’856 Patent, D’857 Patent, 

and D’297 Patents 

All of the Accused Products are manufactured based on the D’856 Patent, D’857 Patent, 

and D’297 Patent as illustrated below in Exhibit 2. 

E. Procedural Background 

On August 17, 2020, Plaintiffs filed complaint against Defendant alleging that the Accused 

Products infringe the Patents-in-Suit. [Dkt.1]. On November 19, 2020, Plaintiffs amended their 

complaint [Dkt. 101]. 

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On November 20, 2020, Plaintiffs filed their first motion for preliminary injunction against 

Defendant, which was later granted by the Court [Dkt. 105]. 

On May 6, 2021, Plaintiffs filed a motion to amend their Schedule A to include Third-Party 

Respondents as defendants [Dkt. 227], which the Court granted on May 24, 2021. [Dkt. 253]. 

On August 24, 2021, Plaintiffs filed a second preliminary injunction against the ThirdParty Respondents [Dkt. 384]. The Court granted Plaintiffs’ second preliminary injunction on 

October 13, 2021. [Dkt. 456]. 

On October 8, 2021, Third-Party Respondents filed an appeal to challenge the Court’s order 

granting the preliminary injunctions on October 8, 2021. [Dkt. 450]. 

On October 28, 2022, Federal Circuit issued an opinion and vacated the Court’s order 

granting Plaintiffs’ motion to amend Schedule A and the two preliminary injunction orders issued 

by this Court and remanded to this Court for further proceedings. [Dkt. 590]. 

On November 9, 2022, Plaintiffs filed their renewed motion for temporary restraining order 

and preliminary injunction. [Dkt. 592]. In their motion, Plaintiffs voluntarily abandoned the ’D112 

patent and the’D195 patent and Accused Product B and Accused Product D. This motion was 

denied by this Court on December 2, 2022. [Dkt. 619]. 

LEGAL STANDARD 

A. Summary judgement of non-infringement in design patent cases 

Summary judgment is appropriate when “there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Lanard Toys Ltd. 

v. Dolgencorp LLC, 958 F.3d 1337, 1341 (Fed. Cir. 2020). 

The moving party is “entitled to a judgment as a matter of law” because the nonmoving 

party has failed to make a sufficient showing on an essential element of her case with respect to 

which she has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

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B. Only the “ornamental features” of a design patent should be considered; 

“functional aspects” and “general design concepts” must be discounted for the noninfringement analysis. 

The sole test for determining whether a design patent has been infringed is the “ordinary 

observer” test. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008). Under 

the “ordinary observer” test, “a court must consider the ornamental features and analyze how they 

impact the overall design.” Lanard Toys Ltd., 958 F.3d at 1343 (citing Richardson v. Stanley Works, 

Inc., 597 F.3d 1288, 1295 (Fed. Cir. 2010). “The scope of that claim, however, must be limited to 

the ornamental aspects of the design, and does not extend to ‘the broader general design concept.’” 

Ethicon Endo-Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312, 1333 (Fed. Cir. 2015) (citing OddzOn 

Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1405 (Fed. Cir. 1997). 

“Where a design contains both functional and non-functional elements, the scope of the 

claim must be construed in order to identify the non-functional aspects of the design as shown in 

the patent.” Lanard Toys Ltd., 958 F.3d at 1342 (citing Sport Dimension, Inc. v. Coleman Co., 820 

F.3d 1316, 1320 (Fed. Cir. 2016); OddzOn Prods., Inc., 122 F.3d at 1405). 

C. The “ordinary observer” must be conversant with the prior art. 

“Where there are many examples of similar prior art designs, ..., differences between the 

claimed and accused designs that might not be noticeable in the abstract can become significant to 

the hypothetical ordinary observer who is conversant with the prior art.” See Egyptian Goddess, 

543 F.3d at 678 (citing Smith v. Whitman Saddle Co., 148 U.S. 674, (1893)); see also Wallace v. 

Ideavillage Prods. Corp., 640 Fed. Appx. 970, 978 (Fed. Cir, 2016). 

The Federal Circuit holds that “the ordinary observer is deemed to view the differences 

between the patented design and the accused product in the context of the prior art. When the 

differences between the claimed and accused design are viewed in light of the prior art, the 

attention of the hypothetical ordinary observer will be drawn to those aspects of the claimed design 

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that differ from the prior art.” Lanard Toys Ltd., 958 F.3d at 1344 (quoting Egyptian Goddess, 

543 F.3d at 676). 

ARGUMENTS 

“Determining whether a design patent has been infringed is a two-part test: (1) the court 

first construes the claim to determine its meaning and scope; (2) the fact finder then compares the 

properly construed claim to the accused design.” Lanard Toys Ltd., 958 F.3d at 1341 (citing Elmer 

v. ICC Fabricating, Inc., 67 F.3d 1571, 1577 (Fed. Cir. 1995)). 

A. The Patents-in-Suit should be construed based on the drawings. 

“The Supreme Court has recognized, a design is better represented by an illustration ‘than 

it could be by any description and a description would probably not be intelligible without the 

illustration.’” Egyptian Goddess, 543 F.3d at 679 (Fed. Cir. 2008) (quoting Dobson v. Dornan, 

118 U.S. 10, 14 (1886)); accord Manual of Patent Examining Procedure (“MPEP”) §1503.01 (9th 

ed. 2019). 

“Given the recognized difficulties entailed in trying to describe a design in words, the 

preferable course ordinarily will be for a district court not to attempt to ‘construe’ a design patent 

claim by providing a detailed verbal description of the claimed design.” Id. Furthermore, broken 

lines in the patent figures form no part of the claimed design. See MPEP §1503.02. (broken lines 

are used to illustrate “structure that is not part of the claimed design.”). 

B. The scope of the claimed designs is limited to the ornamental aspects. 

All design elements in the Patents-in-suit embody the “general design concept” of a 

hoverboard that dictates the structural and functional aspects of design elements. 

All Patents-in-suit comprise six design elements: two identical standing pads, two identical 

wheels, and two indicial wheel covers. Disclosed in the utility patent U.S. 8,738,278 (the “‘278 

Utility Patent”) – “two-wheel, self-balancing personal vehicle with independently movable foot 

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placement sections,” a hoverboard comprises two “foot placement station[s]” and two “wheel[s] 

associated with the foot placement station[s].” See the ‘278 Utility Patent attached as Exhibit 5; 

RSMP ¶¶44-46. The general design concept of wheel covers is also disclosed in the ‘278 Utility 

Patent. The same general design concept was also disclosed in the prior art – D’906 Patent. 

It is undisputed that the “foot placement stations,” “wheels,” and “wheel covers” each 

carries essential utilitarian functions of a hoverboard – to stand, to move and operate, and to 

prevent road debris from being thrown into the air by the rotating wheels. Therefore, each design 

element of the Patents-in-suit has functional and ornamental aspects. 

The scope of the claimed designs is limited to the ornamental aspects of the Patents-insuit 

Aside from the “general design concept” of a hoverboard that comprises standing pads, 

wheels and wheel covers, the ornamental aspects of the design vary greatly. The wheels, wheel 

Covers, and standing pads all have functional aspects and ornamental aspects. The scope of the 

claims is limited to the ornamental aspects. The functional aspects should be “factored out” for 

claim construction. 

C. In the view of the Gestalt principles, the D’856 Patent, D’857 Patent, and D’297 Patent 

should be given due weight for non-infringement analysis. 

First, “the Gestalt principles of visual perception teaches us that the eye is attracted to 

areas of high contrast.” [Decl. of Rake, Ex. 4, ¶¶ 48]. Under the Figure-Ground principles, “some 

shapes or contours take a prominent role (figure) while others recede into the background (ground).” 

Id. ¶¶ 49. 

Second, while separate patents on accused products do not dispositively confer 

presumption of non-infringement, “the fact of separate patentability is relevant, and is entitled to 

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due weight.” 1 Here, the D’856 Patent, D’857 Patent, and D’297 Patent, were all examined and 

granted in light of the Patents-in-suit, which demonstrates that the differences between the 

Accused Products and the Patents-in-suit are “not a mere colorable departure ... but a substantial 

departure.” Duff v. Sterling Pump Co, 107 U.S. 636, 639 (1883) (Fact of separate patentability of 

accused product demonstrated that the differences between accused product that was made in 

accordance with the separate patent and the invention claimed in the patent in suit were “not a 

mere colorable departure ... but [were] a substantial departure.” and, therefore, precluded a finding 

of infringement under the doctrine of equivalents.). 

Therefore, the D’856 Patent, D’857 Patent, and D’297 Patent should be given due weight 

when conducting infringement analysis. Because of certain designs would be perceived as more 

dramatic and obvious, such as the size, shape, and character of the lights, size and shape of the 

fenders, an ordinary observer would find that the Accused Product is substantially similar to the 

D’856 Patent, D’857 Patent, and D’297 Patent because of the overall perception of the prominent 

ornamental features. [Decl. of Rake, Ex. 4, ¶¶ 54, 57, 60, 63, 66, 69, 72, 75]. In contrast, no

ordinary observer would consider the Accused Product is substantially similar to the Patents-inSuit. Id. ¶¶ 77-81. 

1 Nat'l Presto Indus., Inc. v. W. Bend Co., 76 F.3d 1185, 1191 (Fed. Cir. 1996); see also Siemens Med. Sols. USA, Inc. 

v. Saint-Gobain Ceramics & Plastics, Inc., 637 F.3d 1269, 1281 (Fed. Cir. 2011); Zygo Corp. v. Wyko Corp., 79 F.3d 

1563, 1570 (Fed. Cir. 1996) (“The nonobviousness of the accused device, evidenced by the grant of a United States 

patent, is relevant to the issue of whether the change therein is substantial.”); Havco Wood Prod., LLC v. Indus. 

Hardwood Prod., Inc., No. 10-CV-566-WMC, 2012 WL 12995414, at *1 (W.D. Wis. Oct. 18, 2012); Gutterglove, 

Inc. v. Am. Die & Rollforming, Inc., No. 2:16-CV-02408-WHO, 2018 WL 2356756, at *7 (E.D. Cal. May 24, 2018).

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D. Non-infringement analysis of the Patents-in-Suit 

The “Accused Product A” has a substantial different ornamental appearance than the 

designs claimed in the Patents-in-suit 

First, the structure and design of hoverboard was first disclosed in the D’906 Patent, with 

an “hourglass” peripheral shape from the top view and two wheels covered by semi-circular wheel 

covers from the side view. See D‘906 Patent attached as Exhibit 1. 

Second, from the top view, Patents-in-Suit all have the same hour glass peripheral shape. 

[Decl. of Gandy, Ex. 3, ¶¶30, 36, 42; See also Exhibit 6]. In fact, the hour glass peripheral shape 

of the D’906 Patent appears to be closer to the claimed design of the Patents-in-Suit than the design 

of the Accused Product A. Id. For instance, the concavely curved recessed center portion of the 

top surface of the Patents-in-Suit and the design of the D’906 Patent both have a slightly raised 

convex contour, while the corresponding center portion of the top surface of the design of the 

Accused Product A is substantially flat and slightly recessed down below the opposing outer foot 

surfaces. Id. 

The only common feature on the top surface of the claimed design of the Patents-in-Suit 

and the design of the Accused Product A not shown on the D’906 Patent is the foot pads on the 

opposing foot surfaces. However, it is clear from the enlarged isolated view below that the foot 

pads of the claimed design of the Patents-in-Suit and the design of the Accused Product A differ 

not only in their peripheral shape but also the decorative pattern of ribs on each. [Decl. of Gandy, 

Ex. 3, ¶¶32, 38; See also Exhibit 6]. 

Third, from the bottom view, the shape and appearance of the bottom surface of the 

Patents-in-Suit and the design of the D’906 Patent are virtually identical. [Decl. of Gandy, Ex. 3, 

¶¶34, 40, 45; See also Exhibit 6]. Specifically, both the Patents-in-Suit and the design of the D’906 

Patent have opposing flat, plain outer portions and a smooth continuous concavely curved central 

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portion. Id. However, the bottom surface of the design of the Accused Product A differs from both 

the Patents-in-Suit and the design of the D’906 Patent in that the opposing flat outer portions have 

a pattern of vent holes and just to the inside of the vent holes is a slight diagonally upwardly 

protruding arcuate edge. Id. In addition, the recessed central portion of the design of the Accused 

Product A is defined by opposing slight diagonally downwardly protruding arcuate edges with the 

center portion having six narrow longitudinal ribs. Id. 

Fourth, from the front/back view, the front and rear surfaces of the Patents-in-Suit and the 

design of D’906 Patent are substantially similar in shape and appearance. [Decl. of Gandy, Ex. 3, 

¶¶33, 39, 44; See also Exhibit 6]. Specifically, both designs have a vertically flat upper portion of 

the front and rear surfaces and a convexly curved lower portion that merges with the flat bottom 

surface. Id. On the contrary, while the design of the Accused Product A has front and rear surfaces 

having a vertically flat upper portion and a convexly curved lower portion that merges with the 

bottom surface as the Patents-in-Suit and the design of D’906 Patent, the central portion of the 

front and rear surfaces of the design of the Accused Product A differs significantly from the 

Patents-in-Suit and the design of D’906 Patent. Id. Specifically, directly below the vertically flat 

upper portion of the front and rear surfaces are recessed horizontally elongated LED lights and 

below the LED lights is an outwardly protruding horizontal band that extends inwardly and merges 

with the concavely curved recessed central portion. Id. Also, on the right front vertically flat upper 

portion of the design of the Accused Product A is the word “GYROOR”. Id. 

Fifth, it’s noted that the wheel covers at each end of the claimed design of the Patents-inSuit, the design of D’906 Patent, and the design of Accused Product A differ from each other as 

shown in the top plan view and front and rear views above as well as the side view and perspective 

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in-Suit are closer to the wheel covers shown in broken lines in the design of D’906 Patent than the 

wheel covers of the design of the Accused Product A. [Decl. of Gandy, Ex. 3, ¶¶31, 37, 43; See 

also Exhibit 6]. Specifically, the wheel covers shown on the claimed design of the Patents-in-Suit 

and the design of D’906 Patent are both semi-circular in shape and extend over and cover the entire 

wheel, while the wheel covers on the design of the Accused Product A are somewhat squared off 

and do not extend over the entire wheel, but rather partially over the wheel. Id. 

In conclusion, in view of the above analysis of the claimed design of the Patents-in-Suit 

with the design of the Accused Product A and the design of the D’906 Patent, the overall shape 

and appearance and identified features of the claimed design of the Patents-in-Suit are closer to 

the design of the D’906 Patent than the design of the Accused Product A. Further, the shape and 

appearance of the surfaces and features of the design of Accused Product A are substantial different 

from the claimed design of the Patents-in-Suit that an “ordinary observer”, familiar with the prior 

art, would not be confused so as to purchase one thinking it to be the other. Moreover, Plaintiffs 

exclusively relied on Hatch’s testimony to prove the alleged infringement. However, the Hatch’s 

testimony was repeatedly rejected by the Federal Circuit and this Court due to wrongfully method 

of analysis that he applied. [Dkt. 626, p. 12]; See also ABC Corp, 52 F.4th at 944. Although the 

Court is required to view the evidence in the light most favorable to Plaintiffs, to create a genuine 

issue of material fact, Plaintiffs must present admissible evidence through Hatch (or otherwise) to 

rebut the evidence introduced by Defendant and Third-Party Respondents’ experts. Because Hatch 

offered only conclusory assertions based on wrongfully methods of analysis, this is insufficient to 

defeat summary judgment on this point. Sitrick v. Dreamworks, LLC, 516 F.3d 993, 1001 (Fed. 

Cir. 2008) (“Conclusory expert assertions cannot raise triable issues of material fact on summary 

judgment.”); see also Parallel Networks, LLC v. Abercrombie & Fitch Co., 704 F.3d 958, 970 

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(Fed. Cir. 2013)(ipse dixit testimony from [Plaintiff’s] expert was insufficient to preclude 

summary judgment). Therefore, the design of the Accused Product A does not infringe the claimed 

design of the Patents-in-Suit. 

The “Accused Product B” has a substantial different ornamental appearance than the 

designs claimed in the Patents-in-suit 

First, the structure and design of hoverboard was first disclosed in the D’906 Patent, with 

an “hourglass” peripheral shape from the top view and two wheels covered by semi-circular wheel 

covers from the side view. 

Second, from the top view, Patents-in-Suit all have the same hour glass peripheral shape. 

[Decl. of Gandy, Ex. 3, ¶¶47, 53, 59, 64; See also Exhibit 7]. In fact, the hour glass peripheral 

shape of the D’906 Patent appears to be closer to the claimed design of the Patents-in-Suit than 

the design of the Accused Product B. Id. Specifically, the recessed center portion of the claimed 

design of the Patents-in-Suit and the design of the D’906 Patent are concavely curved, whereas the 

recessed center portion of the design of the Accused Product B has a truncated “v” shape 

appearance comprising opposing diagonally straight edges that connect to a horizontally straight 

inner edge. Id. For instance, the concavely curved recessed center portion of the top surface of the 

Patents-in-Suit and the design of the D’906 Patent both have a slightly raised convex contour, 

while the corresponding center portion of the top surface of the design of the Accused Product B 

is substantially flat and slightly recessed down below the opposing outer foot surfaces. Id. 

The only common feature on the top surface of the claimed design of Patents-in-Suit and 

the design of the Accused Product B not shown on the design of the D’906 Patent is the foot pads 

on the opposing foot surfaces. However, it is clear from the enlarged isolated view below that the 

foot pads of the claimed design of the Patents-in-Suit and the design of the Accused Product B 

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14 

differ significantly in their peripheral shape as well as the decorative pattern on each. [Decl. of 

Gandy, Ex. 3, ¶¶49, 55; See also Exhibit 7]. 

Third, from the bottom view, the shape and appearance of the bottom surface of the 

Patents-in-Suit and the design of the D’906 Patent are virtually identical. [Decl. of Gandy, Ex. 3, 

¶¶51, 57, 62, 67; See also Exhibit 7]. Specifically, both the Patents-in-Suit and the design of the 

D’906 Patent have opposing flat, plain outer portions and a smooth continuous concavely curved 

central portion. Id. However, the bottom surface of the design of the Accused Product B differs 

from both the Patents-in-Suit and the design of the D’906 Patent in that the opposing flat outer 

portions have a downwardly protruding surface having a pattern of vent holes and the recessed 

central portion is defined by opposing slight diagonally downwardly protruding arcuate edges with 

the center portion having four narrow longitudinal ribs. Id. 

Fourth, from the front/back view, the front and rear surfaces of the Patents-in-Suit and the 

design of D’906 Patent are substantially similar in shape and appearance. [Decl. of Gandy, Ex. 3, 

¶¶50, 56, 61, 66; See also Exhibit 7]. Specifically, both designs have a vertically flat upper portion 

of the front and rear surfaces and a convexly curved lower portion that merges with the flat bottom 

surface. Id. The only visual difference is the rounded parallelogram shaped LED lights at the 

opposing outer ends of the rear surface of the claimed design of the Patents-in-Suit and the lines 

on the front and rear surface of the claimed design of the Patents-in-Suit. Id. On the contrary, while 

the design of Accused Product B has front and rear surfaces having a convexly curved lower 

portion that merges with the bottom surface as the claimed design of the Patents-in-Suit and the 

design of D’906 Patent, the upper portion of the front and rear surfaces of the design of the Accused 

Product B differs significantly from claimed design of the Patents-in-Suit and the design of D’906 

Patent. Id. Specifically, the upper portion of the front and rear surfaces of the Accused Product B 

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15 

has a wide diagonally downwardly sloping portion that merges with a narrow vertically straight 

central portion. In addition, the front and rear surfaces of the Accused Product B have elongated 

asymmetrically shaped LED lights. Id. 

Fifth, it’s noted that the wheel covers at each end of the claimed design of the Patents-inSuit, the design of D’906 Patent, and the design of Accused Product A differ from each other as 

shown in the top plan view and front and rear views above as well as the side view and perspective 

view below. The shape and appearance of the wheel covers in the claimed design of the Patentsin-Suit are closer to the wheel covers shown in broken lines in the design of D’906 Patent than the 

wheel covers of the design of the Accused Product B. [Decl. of Gandy, Ex. 3, ¶¶48, 54, 60, 65; 

See also Exhibit 7]. Specifically, the wheel covers shown on the claimed design of the Patents-inSuit and the design of D’906 Patent are both semi-circular in shape and extend over and cover the 

entire wheel, while the wheel covers on the Accused Product B have opposing diagonally straight 

side edges a substantially flat top edge which curves outwardly but does not extend over the entire 

wheel, but rather partially over the wheel. Id. In addition, the inner surface of the wheel covers on 

the design of Accused Product B has a protruding trapezoidal shaped portion and the outwardly 

curved top surface includes the word “Gyroor”. Id. 

In conclusion, in view of the above analysis of the claimed design of the Patents-in-Suit 

with the design of the Accused Product B and the design of the D’906 Patent, the overall shape 

and appearance and identified features of the claimed design of the Patents-in-Suit are closer to 

the design of the D’906 Patent than the design of the Accused Product B. Further, the shape and 

appearance of the surfaces and features of the design of Accused Product B are substantial different 

from the claimed design of the Patents-in-Suit that an “ordinary observer”, familiar with the prior 

art, would not be confused so as to purchase one thinking it to be the other. Moreover, Plaintiffs 

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16 

exclusively relied on Hatch’s testimony to prove the alleged infringement. However, the Hatch’s 

testimony was repeatedly rejected by the Federal Circuit and this Court due to wrongfully method 

of analysis. [Dkt. 626, p. 12]; See also ABC Corp, 52 F.4th at 944. As discussed above, because 

Hatch offered only conclusory assertions based on wrongfully methods of analysis which is 

insufficient to defeat summary judgment on this point, Plaintiffs cannot create a genuine dispute 

of material fact regarding the alleged infringement. Therefore, the design of the Accused Product 

B does not infringe the claimed design of the Patents-in-Suit. 

The “Accused Product C” has a substantial different ornamental appearance than the 

designs claimed in the Patents-in-suit 

First, the structure and design of hoverboard was first disclosed in the D’906 Patent, with 

an “hourglass” peripheral shape from the top view and two wheels covered by semi-circular wheel 

covers from the side view. 

Second, from the top view, Patents-in-Suit all have the same hour glass peripheral shape. 

[Decl. of Gandy, Ex. 3, ¶¶69, 75, 81; See also Exhibit 8]. In fact, the hour glass peripheral shape 

of the D’906 Patent appears to be closer to the claimed design of the Patents-in-Suit than the design 

of the Accused Product C. Id. For instance, the concavely curved recessed center portion of the 

top surface of the Patents-in-Suit and the design of the D’906 Patent both have a slightly raised 

convex contour, while the corresponding center portion of the top surface of the design of the 

Accused Product C is substantially flat and slightly recessed down below the opposing outer foot 

surfaces. Id. 

The only common feature on the top surface of the claimed design of Patents-in-Suit and 

the design of the Accused Product C not shown on the design of the D’906 Patent is the foot pads 

on the opposing foot surfaces. However, it is clear from the enlarged isolated view below that the 

foot pads of the claimed design of the Patents-in-Suit and the design of the Accused Product B 

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17 

differ significantly in their peripheral shape as well as the decorative pattern on each. [Decl. of 

Gandy, Ex. 3, ¶¶71, 77; See also Exhibit 8]. 

Third, from the bottom view, the shape and appearance of the bottom surface of the 

Patents-in-Suit and the design of the D’906 Patent are virtually identical. [Decl. of Gandy, Ex. 3, 

¶¶73, 79, 84; See also Exhibit 8]. Specifically, both the Patents-in-Suit and the design of the D’906 

Patent have opposing flat, plain outer portions and a smooth continuous concavely curved central 

portion. Id. However, the bottom surface of the design of the Accused Product C differs from both 

the claimed design of Patents-in-Suit and the design of the D’906 Patent in that the opposing flat 

outer portions have a pattern of vent holes and just to the inside of the vent holes is a slight 

diagonally downwardly protruding arcuate edge. Id. In addition, the recessed central portion of the 

design of the Accused Product A is defined by opposing slight diagonally downwardly protruding 

arcuate edges with the center portion having six narrow longitudinal ribs. Id. 

Fourth, from the front/back view, the front and rear surfaces of the Patents-in-Suit and the 

design of D’906 Patent are substantially similar in shape and appearance. [Decl. of Gandy, Ex. 3, 

¶¶72, 78, 83; See also Exhibit 8]. Specifically, both designs have a vertically flat upper portion of 

the front and rear surfaces and a convexly curved lower portion that merges with the flat bottom 

surface. Id. The only visual difference is the rounded parallelogram shaped LED lights at the 

opposing outer ends of the rear surface of the claimed design of the Patents-in-Suit and the lines 

on the front and rear surface of the claimed design of the Patents-in-Suit. Id. On the contrary, while 

the design of the Accused Product C has front and rear surfaces having a vertically flat upper 

portion and a convexly curved lower portion that merges with the bottom surface as the claimed 

design of the Patents-in-Suit and the design of D’906 Patent, the central portion of the front and 

rear surfaces of the design of the Accused Product C differs significantly from the claimed design 

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18 

of the Patents-in-Suit and the design of D’906 Patent. Id. Specifically, directly below the vertically 

flat upper portion of the front and rear surfaces are recessed horizontally elongated LED lights and 

below the LED lights is an outwardly protruding horizontal band that extends inwardly and merges 

with the recessed central portion. Id. 

Fifth, it’s noted that the wheel covers at each end of the claimed design of the Patents-inSuit, the design of D’906 Patent, and the design of Accused Product C are all semi-circular in 

shape. [Decl. of Gandy, Ex. 3, ¶¶70, 76; See also Exhibit 8]. However, the wheel covers of the 

Patents-in-Suit and the design of D’906 Patent extend over and cover the entire wheel, while the 

wheel covers on the design of Accused Product C do not extend down over the wheel. Id. 

In conclusion, in view of the above analysis of the claimed design of the Patents-in-Suit 

with the design of the Accused Product C and the design of the D’906 Patent, the overall shape 

and appearance and identified features of the claimed design of the Patents-in-Suit are closer to 

the design of the D’906 Patent than the design of the Accused Product C. Further, the shape and 

appearance of the surfaces and features of the design of Accused Product C are substantial different 

from the claimed design of the Patents-in-Suit that an “ordinary observer”, familiar with the prior 

art, would not be confused so as to purchase one thinking it to be the other. Moreover, Plaintiffs 

exclusively relied on Hatch’s testimony to prove the alleged infringement. However, the Hatch’s 

testimony was repeatedly rejected by the Federal Circuit and this Court due to wrongfully method 

of analysis. [Dkt. 626, p. 12]; See also ABC Corp, 52 F.4th at 944. As discussed above, because 

Hatch offered only conclusory assertions based on wrongfully methods of analysis which is 

insufficient to defeat summary judgment on this point, Plaintiffs cannot create a genuine dispute 

of material fact regarding the alleged infringement. Therefore, the design of the Accused Product 

C does not infringe the claimed design of the Patents-in-Suit. 

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The “Accused Product D” has a substantial different ornamental appearance than the 

designs claimed in the Patents-in-suit 

First, the structure and design of hoverboard was first disclosed in the D’906 Patent, with 

an “hourglass” peripheral shape from the top view and two wheels covered by semi-circular wheel 

covers from the side view. 

Second, from the top view, Patents-in-Suit all have the same hour glass peripheral shape. 

[Decl. of Gandy, Ex. 3, ¶¶86, 92, 98, 103; See also Exhibit 9]. In fact, the hour glass peripheral 

shape of the D’906 Patent appears to be closer to the claimed design of the Patents-in-Suit than 

the design of the Accused Product D. Id. Specifically, the recessed center portion of the claimed 

design of the Patents-in-Suit and the design of the D’906 Patent are concavely curved, whereas the 

recessed center portion of the design of the Accused Product D has a truncated “v” shape 

appearance comprising opposing diagonally straight edges that connect to a horizontally straight 

inner edge. Id. For instance, the concavely curved recessed center portion of the top surface of the 

Patents-in-Suit and the design of the D’906 Patent both have a slightly raised convex contour, 

while the corresponding center portion of the top surface of the design of the Accused Product D 

is slightly recessed down below the opposing outer foot surfaces and has a pattern of longitudinal 

ribs that extend down onto the front and rear surfaces. Id. 

The only common feature on the top surface of the claimed design of Patents-in-Suit and 

the design of the Accused Product D not shown on the design of the D’906 Patent is the foot pads 

on the opposing foot surfaces. However, it is clear from the enlarged isolated view below that the 

foot pads of the claimed design of the Patents-in-Suit and the design of the Accused Product D 

differ significantly in their peripheral shape as well as the decorative pattern on each. [Decl. of 

Gandy, Ex. 3, ¶¶88, 94; See also Exhibit 9]. 

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20 

Third, from the bottom view, the shape and appearance of the bottom surface of the 

Patents-in-Suit and the design of the D’906 Patent are virtually identical. [Decl. of Gandy, Ex. 3, 

¶¶90, 96, 101, 106; See also Exhibit 9]. Specifically, both the Patents-in-Suit and the design of 

the D’906 Patent have opposing flat, plain outer portions and a smooth continuous concavely 

curved central portion. Id. However, the bottom surface of the design of the Accused Product D 

differs from both the Patents-in-Suit and the design of the D’906 Patent in that the opposing flat 

outer portions have a pattern of vent holes and just to the inside of the vent holes is a diagonally 

downwardly protruding edge. Id. In addition, the recessed central portion of the design of the 

Accused Product D has a pattern of longitudinal ribs that extend down from the front and rear 

surfaces. Id. 

Fourth, from the front/back view, the front and rear surfaces of the Patents-in-Suit and the 

design of D’906 Patent are substantially similar in shape and appearance. [Decl. of Gandy, Ex. 3, 

¶¶89, 95, 100, 105; See also Exhibit 9]. Specifically, both designs have a vertically flat upper 

portion of the front and rear surfaces and a convexly curved lower portion that merges with the 

flat bottom surface. Id. The only visual difference is the rounded parallelogram shaped LED lights 

at the opposing outer ends of the rear surface of the claimed design of the Patents-in-Suit and the 

lines on the front and rear surface of the claimed design of the Patents-in-Suit. Id. On the contrary, 

while the design of the Accused Product D has front and rear surfaces having a vertically flat upper 

portion and a convexly curved lower portion that merges with the bottom surface as the claimed 

design of the Patents-in-Suit and the design of D’906 Patent, the central portion of the front and 

rear surfaces of the design of Accused Product D differs significantly from claimed design of the 

Patents-in-Suit and the design of D’906 Patent. Id. In addition, the recessed center portion of the 

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21 

front and rear surfaces of the Accused Product D has spaced vertical ribs, and the right front 

vertically flat upper portion includes the word “GYROOR”. Id. 

Fifth, it’s noted that the wheel covers at each end of the claimed design of the Patents-inSuit, the design of D’906 Patent, and the design of Accused Product A differ from each other as 

shown in the top plan view and front and rear views above as well as the side view and perspective 

view below. The shape and appearance of the wheel covers in the claimed design of the Patentsin-Suit are closer to the wheel covers shown in broken lines in the design of D’906 Patent than the 

wheel covers of the design of the Accused Product D. [Decl. of Gandy, Ex. 3, ¶¶87, 93, 99, 104; 

See also Exhibit 9]. Specifically, the wheel covers shown on the claimed design of the Patents-inSuit and the design of D’906 Patent are both semi-circular in shape and extend over and cover the 

entire wheel, while the wheel covers on the design of Accused Product D have opposing diagonally 

straight side edges a substantially flat top edge which curves outwardly but does not extend over 

the entire wheel. Id. 

In conclusion, in view of the above analysis of the claimed design of the Patents-in-Suit 

with the design of the Accused Product D and the design of the D’906 Patent, the overall shape 

and appearance and identified features of the claimed design of the Patents-in-Suit are closer to 

the design of the D’906 Patent than the design of the Accused Product D. Further, the shape and 

appearance of the surfaces and features of the design of Accused Product D are substantial different 

from the claimed design of the Patents-in-Suit that an “ordinary observer”, familiar with the prior 

art, would not be confused so as to purchase one thinking it to be the other. Moreover, Plaintiffs 

exclusively relied on Hatch’s testimony to prove the alleged infringement. However, the Hatch’s 

testimony was repeatedly rejected by the Federal Circuit and this Court due to wrongfully method 

of analysis. [Dkt. 626, p. 12]; See also ABC Corp, 52 F.4th at 944. As discussed above, because 

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22 

Hatch offers only conclusory assertions based on wrongfully methods of analysis which is 

insufficient to defeat summary judgment on this point, Plaintiffs cannot create a genuine dispute 

of material fact regarding the alleged infringement. Therefore, the design of the Accused Product 

D does not infringe the claimed design of the Patents-in-Suit. 

The “Accused Product E” has a substantial different ornamental appearance than the 

designs claimed in the Patents-in-suit 

First, the structure and design of hoverboard was first disclosed in the D’906 Patent, with 

an “hourglass” peripheral shape from the top view and two wheels covered by semi-circular wheel 

covers from the side view. 

Second, from the top view, Patents-in-Suit all have the same hour glass peripheral shape. 

In fact, the hour glass peripheral shape of the D’906 Patent appears to be closer to the claimed 

design of the Patents-in-Suit than the design of the Accused Product E. See Exhibit 10. For 

instance, the concavely curved recessed center portion of the top surface of the Patents-in-Suit and 

the design of the D’906 Patent both have a slightly raised convex contour, while the corresponding 

center portion of the top surface of the design of the Accused Product E is substantially flat and 

slightly recessed down below the opposing outer foot surfaces. Id. 

The only common feature on the top surface of the claimed design of Patents-in-Suit and 

the design of the Accused Product E not shown on the design of the D’906 Patent is the foot pads 

on the opposing foot surfaces. Id. However, it is clear from the enlarged isolated view below that 

the foot pads of the claimed design of the Patents-in-Suit and the design of the Accused Product E 

differ significantly in their peripheral shape as well as the decorative pattern on each. In addition, 

Accused Product E have an automated flashing feature on the petals unlike the claimed design of 

the Patents-in-Suit. Id. 

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23 

Third, from the front and rear views, the concavely curved recessed center portion of the 

top surface of the claimed design of the Patents-in-Suit and the design of the D’906 Patent both 

have a slightly raised convex contour, while the corresponding center portion of the top surface of 

the design of the Accused Product E is substantially flat and slightly recessed down below the 

opposing outer foot surfaces. [Decl. of Gandy, Ex. 3, ¶¶108, 114; See also Exhibit 10]. 

Fourth, from the perspective view, the front and rear surfaces of the claimed design of the 

Patents-in-Suit and the design of the D’906 Patent are substantially similar in shape and 

appearance. Specifically, both designs have a vertically flat upper portion of the front and rear 

surfaces and a convexly curved lower portion that merges with the flat bottom surface. [Decl. of 

Gandy, Ex. 3, ¶¶111, 117; See also Exhibit 10]. The only visual difference is the rounded 

parallelogram shaped LED lights at the opposing outer ends of the rear surface of the claimed 

design of Patents-in-Suit and the lines on the front and rear surface of the claimed design of 

Patents-in-Suit. Id. On the contrary, while the design of the Accused Product E has front and rear 

surfaces having a vertically flat upper portion and a convexly curved lower portion that merges 

with the bottom surface as the claimed design of the Patents-in-Suit and the design of the D’906 

Patent, the central portion of the front and rear surfaces of the design of the Accused Product E 

differs significantly from the claimed design of the Patents-in-Suit and the design of D’906 Patent. 

Id. Specifically, directly below the vertically flat upper portion of the front and rear surfaces are 

recessed horizontally elongated LED lights with quarter rounded inner ends. Id. 

Fifth, from the bottom view, the shape and appearance of the bottom surface of the claimed 

design of the Patents-in-Suit and the design of the D’906 Patent are virtually identical. Specifically, 

both the claimed design of the Patents-in-Suit and the design of D’906 have opposing flat, plain 

outer portions and a smooth continuous concavely curved central portion which is best shown in 

Case: 1:20-cv-04806 Document #: 666 Filed: 09/06/23 Page 27 of 31 PageID #:16734
24 

the front and rear views above. [Decl. of Gandy, Ex. 3, ¶¶112, 118; See also Exhibit 10]. However, 

the bottom surface of the design of the Accused Product E differs from both the claimed design of 

claimed design of the Patents-in-Suit and the design of D’906 in that the opposing flat outer 

portions have a pattern of vent holes and just to the inside of the vent holes is a slight diagonally 

downwardly protruding arcuate edge. Id. In addition, the recessed central portion of the design of 

the Accused Product E is defined by opposing slight diagonally downwardly protruding arcuate 

edges with the center portion having six narrow longitudinal ribs. Id. 

Sixth, the shape and appearance of the wheel covers in the claimed design of the Patentsin-Suit are closer to the wheel covers shown in broken lines in the design of the D’906 than the 

wheel covers of the design of the Accused Product E. [Decl. of Gandy, Ex. 3, ¶¶109, 115, 121; See 

also Exhibit 10]. Specifically, the wheel covers shown on the claimed design of the Patents-inSuit and the design of D’906 are both semi-circular in shape and extend over and cover the entire 

wheel, while the wheel covers on the design of the Accused Product E are somewhat squared off 

and do not extend over the entire wheel, but rather partially over the wheel. Id. 

In conclusion, in view of the above analysis of the claimed design of the Patents-in-Suit 

with the design of the Accused Product E and the design of the D’906 Patent, the overall shape 

and appearance and identified features of the claimed design of the Patents-in-Suit are closer to 

the design of the D’906 Patent than the design of the Accused Product E. Further, the shape and 

appearance of the surfaces and features of the design of Accused Product E are substantial different 

from the claimed design of the Patents-in-Suit that an “ordinary observer”, familiar with the prior 

art, would not be confused so as to purchase one thinking it to be the other. Moreover, Plaintiffs 

exclusively relied on Hatch’s testimony to prove the alleged infringement. However, the Hatch’s 

testimony was repeatedly rejected by the Federal Circuit and this Court due to wrongfully method 

Case: 1:20-cv-04806 Document #: 666 Filed: 09/06/23 Page 28 of 31 PageID #:16735
25 

of analysis. [Dkt. 626, p. 12]; See also ABC Corp, 52 F.4th at 944. As discussed above, because 

Hatch offers only conclusory assertions based on wrongfully methods of analysis which is 

insufficient to defeat summary judgment on this point, Plaintiffs cannot create a genuine dispute 

of material fact regarding the alleged infringement. Therefore, the design of the Accused Product 

E does not infringe the claimed design of the Patents-in-Suit. 

CONCLUSION 

For the foregoing reasons, Defendant and Third-Party Respondents respectfully request 

the Court find that the Accused Products do not infringe on the Patents-in-Suit. 

Date: 9/6/2023 

 

/s/ Na Zhang 

Na Zhang, Esq 

GLACIER LAW LLP 

506 Second Ave., Ste 1516 

Seattle, WA 98104 

queena.zhang@glacier.law

206-397-8633 

GLACIER LAW LLP 

41 Madison Avenue, Ste 2529 

New York, NY 10010 

Wei Wang, Esq. 

wei.wang@glacier.law

332-777-7315 

GLACIER LAW LLP 

9660 Flair Dr., Ste 328 

El Monte, CA 91731 

Yu Hao Yao, Esq. 

mickey.yao@glaicer.law

312-448-7772 

GLACIER LAW LLP 

200 E. Randolph Dr., Ste. 5100 

Chicago, IL 60601 

Ruoting Men, Esq. 

ruoting.men@glacier.law

Case: 1:20-cv-04806 Document #: 666 Filed: 09/06/23 Page 29 of 31 PageID #:16736
26 

Tianyu Ju, Esq. 

Iris.ju@glacier.law

312-270-0413 

Attorney for Defendant and ThirdParty Respondents

 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on this September 6, 2023, I electronically filed the foregoing 

file with the Clerk of Court using the CM/ECF system, and service was perfected on all counsel 

of record and interested parties through this system, which will deliver a true and correct copy of 

the foregoing documents via CM/ECF. 

Date: 9/6/2023 /s/ Na Zhang 

Case: 1:20-cv-04806 Document #: 666 Filed: 09/06/23 Page 31 of 31 PageID #:16738