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 

PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF ITS 

MOTION TO DISMISS DEFENDANT GYROOR-US’S COUNTERCLAIMS 

Gyroor-US’s response brief fails to address most of the arguments Plaintiffs raised in 

their motion and provides scant authority for those arguments it does address. If Gyroor-US had 

no intention of defending its plainly defective pleading, then it should have sought leave to 

amend, thus obviating the need for Plaintiffs to expend resources on this motion and the need for 

the Court to decide it. Instead, Gyroor-US has chosen to provoke more motion practice while in 

the alternative asking the Court for another chance at filing a viable pleading. The Court should 

grant this motion without leave to re-file a responsive pleading and put an end to these tactics. 

GYROOR-US FAILED TO ADDRESS THE MAIN ARGUMENTS REQUIRING 

DISMISSAL OF ITS COUNTERCLAIMS 

Plaintiffs moved to dismiss all four of Gyroor-US’s counterclaims, Counts I-IV. In 

response, Gyroor-US withdraws Count II and fails to even address Count IV (which was 

mislabeled as “Count X”). The Court should thus dismiss both of those counterclaims. See 

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Belsky v. Field Imps., Inc., No. 13 C 1758, 2013 WL 5819232, 2013 U.S. Dist. LEXIS 154775,

*13 (N.D. Ill. Oct. 29, 2013) (holding that failure to respond to an argument “forfeit[s] the 

point”), citing cases including Lekas v. Briley, 405 F.3d 602, 614–15 (7th Cir. 2005) (where 

plaintiff “did not present legal arguments or cite relevant authority to substantiate [his] claim in 

responding to defendants’ motion to dismiss,” his “claim has been waived”). 

Although Gyroor-US does brief Counts I and III, it avoids addressing the critical 

arguments requiring dismissal of those counts. Therefore, the Court should dismiss Counts I and 

III as well. 

a. Count I for Non-Infringement Must Be Dismissed Because It Lacks Any 

Basis Under U.S. Patent Law 

Despite Gyroor-US’s opposition, Count I for a Declaratory Judgment of NonInfringement must be dismissed for two reasons. First, Gyroor-US seems to be asserting that it 

cannot infringe the Patents-in-Suit because its product is allegedly based on a different, thirdparty patent. Dkt. 309, ¶¶ 7, 10. But controlling law precludes this defense. See Dkt. 333, p. 5; 

see also Bio-Tech. Gen. Corp. v. Genentech, Inc., 80 F.3d 1553, 1559 (Fed. Cir. 1996) (“The 

existence of one’s own patent does not constitute a defense to infringement of someone else’s 

patent.”). Second, to the extent Gyroor-US pleads any other basis for non-infringement, then the 

pleadings do not satisfy Rule 8. See Dkt. 333, pp. 5–6. Specifically, Gyroor-US briefly invokes 

buzzwords/phrases such as “limitations . . . in the claims” and “judicial estoppel” (Dkt. 309, ¶¶ 

11–12), but fails to allege a single fact showing how those concepts apply here, see Dkt. 333, pp. 

5–6. 

Gyroor-US’s opposition fails to squarely address either of those issues. Instead, GyroorUS seems to have dropped any assertions regarding claim limitations and judicial estoppel, and 

instead has moved all-in on a third-party license defense. See Dkt. 369, p. 2 (Gyroor-US argues: 

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“Defendant obtained rights to a valid U.S. Design Patent D808,857 (‘D’857 patent’) and the 

accused product is based on the D’857 patent. Since the D’857 patent is valid, the accused 

product does not infringe on Plaintiffs’ patents.”). But Gyroor-US cites no authority in support 

of its argument, and it fails to address the cases Plaintiffs cited in their motion demonstrating that 

such a defense does not exist under U.S. patent law. 

In lieu of defending its claim or rebutting Plaintiffs’ arguments, Gyroor-US creates a 

strawman. Specifically, it accuses Plaintiffs of “disorganized” arguments and claims that 

“Plaintiffs suggest that the D’857 patent infringes on Plaintiffs’ patents-in-suit. This argument is 

rather flawed because it is against the presumed validity of the D’857 patent.” Id. But Plaintiffs 

have not argued that the ’D857 patent also infringes on Plaintiffs’ patents. Instead, Plaintiffs 

argue that Gyroor-US’s products infringe the Patents-in-Suit, regardless of any such license to a 

third-party patent. This is a widely-accepted tenet of patent law. See Spindelfabrik SuessenSchurr Stahlecker & Grill GmbH v. Schubert & Salzer Maschinenfabrik Aktiengesellschaft, 829 

F.2d 1075, 1081 (Fed. Cir. 1987) (“Indeed, the patentee of X and his licensee, when making, 

using, or selling X, can be subject to suit under other patents.”); Lexion Med., LLC v. Northgate 

Techs., Inc., 618 F. Supp. 2d 896, 901 (N.D. Ill. 2009) (granting summary judgment against 

defense of non-infringement because “the existence of one’s own patent does not constitute a 

defense to infringement of someone else’s patent”). 

Simply put, Gyroor-US’s opposition fails to meaningfully address the arguments for 

dismissing Count I and thus provides no reason to allow that Count to proceed to discovery. See 

Kenall Mfg. Co. v. Cooper Lighting, LLC, 354 F. Supp. 3d 877, 883 (N.D. Ill. 2018), citing 

Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 825 (7th Cir. 2015) (“A party generally forfeits an 

argument or issue not raised in response to a motion to dismiss.”) 

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b. Count III for “Violation of Anti-Trust Law” Must Be Dismissed Because It Is 

Improperly Pleaded and Legally Barred 

Plaintiffs identified two deficiencies requiring dismissal of Count III. First, the claim 

does not satisfy Rule 8. See Dkt. 333, pp. 8–9. Second, the conduct alleged does not violate the 

antitrust laws. See id. at 9–10. These deficiencies are two sides of the same coin: Gyroor-US 

has not pleaded the facts necessary to support an antitrust claim. It even fails to plead the section 

of the Sherman Act allegedly at issue. Id. Assuming Gyroor-US asserts a Section 2 violation, it 

fails to plead the essential element of market power. See id., pp. 8–9. Additionally, Gyroor-US 

asserts monopolization by patent enforcement, yet it fails to plead the facts necessary to establish 

a viable claim under such a theory. Any of these deficiencies warrant dismissal. 

In response, Gyroor-US neither clarifies the Sherman Act section at issue, nor disputes its 

fatal failure to plead market power. Instead, Gyroor-US asserts a kitchen sink of reasons why 

allegedly bad faith exists, such that the Noerr-Pennington doctrine would not be an 

insurmountable hurdle to Count III. See Dkt. 369, p. 3. First, Gyroor-US postulates in 

conclusory fashion that Plaintiffs could not reasonably expect to succeed on the merits of their 

infringement claims. Id. Not only are such allegations absent from the counterclaims, but they 

are impossible to reconcile with the Court having already found that Plaintiffs are likely to 

prevail on the merits of their infringement claims. See Dkt. 113 at 8. Second, Gyroor-US 

reiterates its baseless third-party license defense. Dkt. 369, pg. 2. Third, Gyroor-US makes a 

reference to “inequitable conduct,” but fails to explain what such conduct was or where it 

pleaded any such conduct. See Dkt. 369, p. 3; contra. Exergen Corp. v. Wal-Mart Stores, Inc., 

575 F.3d 1312, 1326–27 (Fed. Cir. 2009) (holding that heightened Rule 9(b) standard applies to 

inequitable conduct claims). These responses neither address Plaintiffs’ arguments nor establish 

what allegations in Count III could somehow satisfy Rule 8. 

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The cases on which Gyroor-US relies do not help its cause. In Xechem, the claimant 

pleaded the elements of an antitrust violation, which Gyroor-US fails to do here. Xechem, Inc. v. 

Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004) (“The complaint alleges that 

paclitaxel lacks good substitutes and that Bristol-Myers extended its market power through 

underhanded means, injuring both consumers and rival producers.”). Likewise, in Singer, the 

“complaint alleged that Singer combined and conspired with two competitors, Gegauf of 

Switzerland and Vigorelli of Italy, to restrain and monopolize and that Singer unilaterally 

attempted to monopolize interstate and foreign trade in the importation, sale and distribution of 

household zigzag sewing machines.” United States v. Singer Mfg. Co., 374 U.S. 174, 175 

(1963). Finally, in Brunswick, the Court actually affirmed dismissal of antitrust claims. 

Brunswick Corp. v. Riegel Textile Corp., 752 F.2d 261, 272 (7th Cir. 1984). Notably, the Court 

stated that a Section 2 claim based on patent fraud could only be viable if certain conditions were 

met, including that “[t]he patent must dominate a real market” and that “[t]he invention sought to 

be patented must not be patentable.” Id. at 265. The court continued: 

If the invention is patentable, it does not matter from an antitrust standpoint what 

skullduggery the defendant may have used to get the patent issued or transferred 

to him. The power over price that patent rights confer is lawful, and is no greater 

than it otherwise would be just because the person exercising the rights is not the 

one entitled by law to do so. 

Id. But Gyroor-US has not pleaded any such lack of patentability here. In fact, its invocation of 

the ’D857 patent suggests that Gyroor-US agrees that other hoverboard designs are patentable. 

Twombly emphasized the need to ensure that only properly pleaded antitrust claims 

proceed to discovery. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007). Here, GyroorUS’s antitrust claim falls short of even the most lax pleading standard. Its defense of that claim 

ignores Plaintiffs’ bases for dismissal, addresses a straw man, and relies on case law that actually 

supports Plaintiffs’ motion. The Court should therefore dismiss Count III. 

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THE COURT SHOULD STRIKE THE ANSWER AND AFFIRMATIVE 

DEFENSES 

Gyroor-US’s affirmative defenses are “nothing but bare bones conclusory allegations” 

that implicate the exact type of “fundamental pleading errors” that this District has expressly 

deemed “unacceptable.” See Dkt. 333, pp. 10–11. Instead of defending these challenges, 

Gyroor-US seeks leave to amend. See Dkt. 369, p. 4. But permitting leave to amend would just 

encourage Gyroor-US’s practice of increasing more legal fees and hoarding the Court’s 

resources. The Court should therefore grant Plaintiffs’ seemingly uncontested motion to strike. 

Lastly, Gyroor-US’s Answer also plainly violates Local Rule 10.1. See Dkt. 333, pp. 13–

14. Again, Gyroor-US does not even attempt to defend its Answer. So why Gyroor-US required 

Plaintiffs to go through motion practice and attack an obviously indefensible pleading is unclear. 

Regardless, the Answer should be stricken. 

CONCLUSION 

The Court should dismiss all of Gyroor-US’s counterclaims (Count I–IV) because 

Gyroor-US has failed to address Plaintiffs’ central arguments supporting dismissal. As to Counts 

II and IV, Gyroor-US seemingly has stopped pursuing them. As to Counts I and III, GyroorUS’s effort to defend them is so cursory and unavailing as to be equivalent to abandonment. 

The Court should also grant Plaintiffs’ motion to strike, to which Gyroor-US has offered 

no opposition. 

 

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Dated: August 23, 2021 Respectfully submitted, 

 

 Loeb & Loeb LLP 

By: /s/ Adam G. Kelly 

Adam G. Kelly 

Doug Masters 

Arthur Yuan 

Neil Nandi 

321 North Clark Street, Suite 2300 

Chicago, IL 60654 

Telephone: 312.464.3100 

Facsimile: 312.464.3111 

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 

Attorneys for Plaintiffs 

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