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 

REPLY MEMORANDUM TO PLAINTIFFS’ OPPOSITION TO 

DEFENDANT AND THIRD-PARTY RESPONDENTS’ MOTION FOR 

SUMMARY JUDGEMENT OF NON-INFRINGEMENT 

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TABLE OF CONTENTS 

I. PRELIMINARY STATEMENT .................................................................... 1

II. LEGAL STANDARD ...................................................................................... 2

III. ARGUMENT .................................................................................................... 3

A. The Hypothetical Ordinary Observer Should Be A Purchaser Who Is Familiar 

With Hoverboards And The Prior Art Designs. .................................................. 4

B. Small Differences Between The Patents-In-Suit And Accused Products Are 

Likely To Be Important To The Eye Of The Hypothetical Ordinary Observer.

 ................................................................................................................................... 5

C. The Accused Products Are Plainly Dissimilar To The Claimed Designs Of The 

Patents-In-Suit After Factoring Out Functional Aspects. ................................... 7

D. In The Light Of The D’906 Patent, No Ordinary Observer Would Think The 

Design Of Accused Products Is Substantially Similar To The Claimed Designs 

Of The Patents-In-Suit. ........................................................................................... 9

E. Plaintiffs’ Filing Of An Expert Report Purporting To Establish Conflicting 

Opinions Does Not Foreclose Summary Judgment. .......................................... 12

IV. CONCLUSION .............................................................................................. 14

CERTIFICATE OF SERVICE ............................................................................................. 15

 

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TABLE OF AUTHORITIES 

Case Page 

Ammons v. Aramark Unif. Servs., Inc., 

368 F.3d 809, 817 (7th Cir.2004) ........................................................................................2

Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986) .....................................................................................................2

Celotex Corp. v. Catrett, 

477 U.S. 317, 323 (1986). ................................................................................................2, 3 

Crocs, Inc. v. Int’l Trade Comm’n, 

598 F.3d 1294, 1303 (Fed. Cir. 2010)..................................................................................3 

Competitive Edge, Inc. v. Staples, Inc., 

 763 F. Supp. 2d 997, 1012 (N.D. Ill. 2010) .........................................................................7 

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

543 F.3d 665 (Fed. Cir. 2008)................................................................................ 3-6, 8, 13 

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

796 F.3d 1312, 1337 (Fed. Cir. 2015)..................................................................................5 

Genova v. Kellogg, 

12 C 3105, 2015 WL 3930351, at *3 (N.D.Ill. June 25, 2015) ...........................................3 

Harel v. K.K. Int’l Trading Corp., 

12 CIV. 4527 BMC, 2014 WL 119541, at * 2–4 (E.D.N.Y. Jan. 10, 2014)......................13 

HR U.S. LLC v. Mizco Int’l, Inc., 

No. CV-07-2394(DGT)(JO), 2009 WL 890550, at *13 (E.D.N.Y. Mar. 31, 2009) ..........13 

Johnson v. Advocate Health and Hosps. Corp., 

892 F.3d 887, 894, 896 (7th Cir. 2018) ...............................................................................2 

Lanard Toys Ltd. v. Dolgencorp LLC, 

958 F.3d 1337, 1341 (Fed. Cir. 2020)..................................................................................4 

Moen Inc. v. Foremost Int’l Trading, Inc., 

38 F. Supp. 2d 680, 681 (N.D. Ill. 1999), dismissed, 232 F.3d 915 (Fed. Cir. 

2000). ...................................................................................................................................3 

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

122 F.3d 1396 (Fed. Cir. 1997)............................................................................................8 

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Richardson v. Stanley Works, Inc., 

597 F.3d 1288 (Fed. Cir. 2010)............................................................................................7 

Super-Sparkly Safety Stuff, LLC v. Skyline USA, Inc., 

836 F. App’x 895, 898 (Fed. Cir. 2020) ..............................................................................4 

Wing Shing Prod. (BVI) Co. v. Sunbeam Prod., Inc., 

665 F. Supp. 2d 357, 368 (S.D.N.Y. 2009), aff'd, 374 F. App’x 956 (Fed. Cir. 

2010) ..................................................................................................................................13 

Rules 

Fed. R. Civ. P. 56(a) ........................................................................................................................2 

N.D. Ill. R. 56.1(a) .......................................................................................................................2, 3 

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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 reply to Plaintiffs Hangzhou Chic Intelligent Technology Co., 

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

opposition to Defendant and Third-Party Respondents’ Motion for Summary Judgment. See Dkt. 

668. 

I. PRELIMINARY STATEMENT 

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”). See Dkt. 101. The Accused Products were grouped and identified as “Gyroor 

A”, “Gyroor B”, “Gyroor C”, “Gyroor D” and “Gyroor E”. See Dkt. 385 & Dkt. 456. The U.S. 

Design Patent D739,906 (the “D’906 Patent”) was filed on March 12, 2013, earlier than any 

Patents-in-Suit. See Dkt. 666, Ex. 1. Therefore, the D’906 Patent is prior art to all Patents-in-Suit. 

Id. 

Plaintiffs and their expert conducted an ordinary observer analysis using the wrong 

standard. The correct standard is that the hypothetical ordinary observer should be a purchaser who 

is familiar with hoverboards and prior art designs. In addition, as the claimed designs in the 

Patents-in-Suit are similar to the prior art designs, small differences between the Patents-in-Suit 

and Accused Products are likely to be important to the eye of the hypothetical ordinary observer. 

When these functional aspects are properly discounted and the remaining ornamental designs are 

compared, there is no question of fact that, in the eyes of an ordinary observer, the claimed designs 

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of the Patents-in-Suit are plainly dissimilar to the Accused Products. Even if the Court finds that 

the claimed and accused designs are not plainly dissimilar, in light of the prior art, no reasonable 

ordinary observer would find that the designs of the Accused Products are substantially similar to 

the claimed designs of Patents-in-Suit. Thus, Defendant and Third-Party Respondents’ Motion for 

Summary Judgment shall be granted as there is no genuine dispute that the Accused Products do 

not infringe the Patents-in-Suit. 

II. LEGAL STANDARD 

Summary judgment is appropriate when the movant establishes that “there is no genuine 

dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” 

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

A material fact is one which might affect the outcome of the suit under applicable 

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue exists “unless 

there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that 

party.” Id. at 249. Summary judgment may be granted if the evidence is merely colorable or is not 

significantly probative. Id. To defeat summary judgment, a non-movant must produce more than 

a “mere scintilla of evidence” and come forward with “specific facts showing that there is a 

genuine issue for trial.” Johnson v. Advocate Health and Hosps. Corp., 892 F.3d 887, 894, 896 

(7th Cir. 2018). 

Northern District of Illinois Local Rule 56.1 requires the “party moving for summary 

judgment to include with that motion ‘a statement of material facts as to which the moving party 

contends there is no genuine issue and that entitle the moving party to a judgement as a matter of 

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law.’ ” Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004) (quoting N.D. Ill. 

R. 56.1(a)(3)). The movant bears the initial burden of establishing that no genuine issue of material 

fact exists. Genova v. Kellogg, 12 C 3105, 2015 WL 3930351, at *3 (N.D.Ill. June 25, 2015). “The 

burden then shifts to the nonmoving party to show through specific evidence that a triable issue of 

fact remains on issues on which the movant bears the burden of proof at trial.” Id. The non-moving 

party must respond to the movant’s Local Rule 56.1(a)(3) statement and may not rest upon mere 

allegations in the pleadings or upon conclusory statements in affidavits. N.D. Ill. R. 56.1(b). The 

non-movant must go beyond the pleadings and support his contentions with documentary 

evidence of specific facts that demonstrate that there is a genuine issue for trial. Celotex, 477 U.S. 

at 324. 

III. ARGUMENT 

Summary judgment is appropriate in a patent infringement case. Moen Inc. v. Foremost 

Int’l Trading, Inc., 38 F. Supp. 2d 680, 681 (N.D. Ill. 1999), dismissed, 232 F.3d 915 (Fed. Cir. 

2000). In order to establish design patent infringement, a plaintiff must show that “an ordinary 

observer, familiar with the prior art designs, would be deceived into believing that the accused 

product is the same as the patented design.” Crocs, Inc. v. Int’l Trade Comm’n, 598 F.3d 1294, 

1303 (Fed. Cir. 2010) (citing Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 681 (Fed. Cir. 

2008) (en banc)). “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 that differ from the prior art.” Egyptian Goddess, 543 F.3d at 676. 

When the differences between the claimed and accused design are viewed in light of the 

prior art, the attention of the hypothetical ordinary observer would be drawn to those aspects of 

the claimed design that differ from the prior art. Id. And when the claimed design is close to the 

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prior art designs, small differences between the accused design and the claimed design are likely 

to be important to the eye of the hypothetical ordinary observer. Id. 

A. The Hypothetical Ordinary Observer Should Be A Purchaser Who Is Familiar With 

Hoverboards And The Prior Art Designs. 

It is undisputed that “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.” 

Egyptian Goddess, 543 F.3d at 678; see also Super-Sparkly Safety Stuff, LLC v. Skyline USA, Inc., 

836 F. App’x 895, 898 (Fed. Cir. 2020). 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 that differ from the prior art.” Lanard Toys Ltd., 958 F.3d at 1344 (quoting 

Egyptian Goddess, 543 F.3d at 676). 

In Plaintiffs’ newly submitted expert declaration, Plaintiffs’ expert Mr. Paul Hatch (“Mr. 

Hatch”) avers that an ordinary observer should be “the principal purchaser of hoverboards, i.e., a 

consumer user or the parent of a user, each having little or no experience purchasing hoverboards.” 

See Dkt. 670, Ex. 1, Decl. of Hatch ¶¶ 42. Mr. Hatch further claims that “the ordinary observer 

encounters products like the Claimed Designs via online stores, television and entertainment media, 

and social media, and purchases them using online stores or from ‘brick and mortar’ stores like 

Best Buy or Walmart” and that “it is my opinion that the hypothetical ordinary observer would 

possess ‘ordinary acuteness’ and would apply a relatively low level of attention to the aesthetics 

of the product.” Id. ¶¶ 42, 160. 

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A purchaser “having little or no experience purchasing hoverboards” and “apply a 

relatively low level of attention to the aesthetics of the product” only suggests that the purchaser 

lacks knowledge of hoverboards and prior art, which is the opposite to someone “who is conversant 

with the prior art” in Egyptian Goddess. Here, it is undisputed that there are many examples of 

similar prior art designs that are relevant to the Accused Products. Therefore, in light of the many 

similar prior arts, the hypothetical ordinary observer in this case should be a purchaser who is 

familiar with hoverboards and the prior art designs. See Dkt. 666, Ex. 3, Decl. of Gandy ¶¶21; Ex. 

4, Decl. of Rake ¶¶ 39. Defendant and Third-Party Respondents’ application that “the hypothetical 

ordinary observer in this case should be a purchaser who is familiar with hoverboards and the prior 

art” is consistent with the precedents and should be adopted by expert for further infringement 

analysis. Id; see also Ethicon Endo-Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312, 1337 (Fed. Cir. 

2015) (“The ordinary observer is one of ordinary acuteness who is a principal purchaser of the 

underlying articles with the claimed designs.”). An ordinary observer would not only pay attention 

to overall impressions of the object but also look to small details to differentiate between designs. 

Mr. Hatch, given his expertise, should be well-informed about the ordinary observer standard. 

However, he offers a standard that is quite different from the one established in Egyptian Goddess. 

Thus, Plaintiffs and Mr. Hatch rely upon incorrect understanding of the ordinary observer test and 

use wrong definition of the ordinary observer. 

B. Small Differences Between The Patents-In-Suit And Accused Products Are Likely To 

Be Important To The Eye Of The Hypothetical Ordinary Observer. 

The Patents-in-Suit, the D’906 patent and the Accused Products all have similar hourglass 

peripheral shape. Therefore, the hourglass in shape in the Patents-in-Suit and the Accused Products 

did not “depart conspicuously” from the prior art D’906 patent. As observed by Defendant and 

Third-Party Respondents’ expert Mr. Gandy, the hourglass peripheral shape of the prior art D’906 

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patent appears to be closer to the claimed design in the Patents-in-Suit than the design of Accused 

Products. See Dkt. 666, Ex. 3, Decl. of Gandy. Thus, as the claimed design in the Patents-in-Suit 

is close to the prior art designs, small differences between the Patents-in-Suit and Accused 

Products are likely to be important to the eye of the hypothetical ordinary observer. See Egyptian 

Goddess, 543 F.3d at 676. 

Plaintiffs’ argument that small visual details would not affect the ordinary observer’s 

overall impression of the designs supported by Mr. Hatch’s new inadmissible report is conclusory 

and meritless. In Mr. Hatch’s declaration, he concluded that “it is my opinion that the hypothetical 

ordinary observer would possess ‘ordinary acuteness’ and would apply a relatively low level of 

attention to the aesthetics of the product. Thus, small visual details (e.g., such as the air vent pattern 

on the underside or the specific shape of the shallow grooves on the foot pads) would not affect 

their overall impression of the object as a whole.” See Dkt. 670, ¶¶160. However, this is merely 

conclusory statement without providing any specific evidence. Mr. Hatch failed to explain that 

why the ordinary observer would apply a low level of attention and disregard the visual details. In 

contrast, Defendant and Third-Party Respondents’ expert, Mr. Gandy, credibly explained in his 

testimony that it is impossible to consider a design’s overall impression without examining its 

details. See Dkt. 666, Ex. 3, Decl. of Gandy. Additionally, Plaintiffs’ argument that small visual 

details would not affect the ordinary observer’s overall impression of the designs has already been 

considered and rejected by the Court. See Dkt. 626. “In other words, the overall impression is 

embodied in the details. Any analysis that—like Hatch’s—ignores the details will fail to gain a 

proper perspective on the overall impression of a design.” Id. at 34. “The Court’s analysis, guided 

by Gandy’s highly credible method, examined the details of each design to understand the overall 

impression of each and compare them. This analysis demonstrates that a reasonable jury could find 

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that the accused products are not substantially similar to the patents in suit, such that an ordinary 

observer would not be deceived into believing that the accused products are the same as the 

patented design.” Id. 

Therefore, small differences between the Patents-in-Suit and Accused Products are likely 

to be important to the eye of the hypothetical ordinary observer. 

C. The Accused Products Are Plainly Dissimilar To The Claimed Designs Of The 

Patents-In-Suit After Factoring Out Functional Aspects. 

Courts routinely grant summary judgment in design patent infringement cases where the 

claimed and accused designs are plainly dissimilar based on a side-by-side visual comparison 

under the ordinary observer test. Where the claimed and accused designs are “sufficiently distinct” 

and “plainly dissimilar,” the patentee fails to meet its burden of proving infringement as a matter 

of law. Ethicon, 796 F.3d at 1335; Richardson v. Stanley Works, Inc., 597 F.3d 1295-96 (Fed. Cir. 

2010) (affirming summary judgment of noninfringement based on dissimilarity of claimed and 

accused designs); see also Competitive Edge, Inc. v. Staples, Inc., 763 F. Supp. 2d 997, 1012 (N.D. 

Ill. 2010) (“When the patented design and the accused design are plainly dissimilar, as in this case, 

there is no need to look to the prior art, because two designs may be sufficiently distinct that it will 

be clear without more that the patentee has not met its burden.”). 

In this case, there is no genuine question of fact that, in the eye of an ordinary observer, 

the visual appearance of the claimed designs of the Patents-in-Suit are plainly dissimilar to the 

Accused Products. The plain dissimilarity becomes even more apparent after factoring out 

functional aspects of the claimed designs of the Patents-in-Suit. See Ethicon, 796 F.3d at 1315 

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(“functional aspects of the claimed designs are properly excluded from the infringement 

analysis.”); See also Richardson, 597 F.3d at 1294.1 

Similarly, all Patents-in-Suit comprise of six design elements: two identical standing pads, 

two identical wheels, and two indicial wheel covers. See Dkt. 666, Ex. 2. 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. In addition, the overall shapes of the claimed designs of 

the Patents-in-Suit are largely based on functionality. See Dkt. 666, Ex. 4, Decl. of Rake. The 

dimensions correspond to the dimensions of a human foot, the distance between footpads 

corresponds to approximate “shoulder width” dimensions of the user, the narrowing at the center 

facilitates the needed twisting motion without interference with the user or the ground. Id. 

Any similarity between the Accused Products and the claimed design of the Patents-in-Suit 

arises from the functional features and the overall hourglass shape. See Dkt. 666, Ex. 2, 6-10. Thus, 

when these functional aspects are properly discounted and the remaining ornamental designs are 

compared, there is no question of fact that, in the eyes or an ordinary observer, the claimed design 

of the Patents-in-Suit is plainly dissimilar from the Accused Products. See OddzOn Prods., Inc. v. 

Just Toys, Inc., 122 F.3d 1406 (Fed. Cir. 1997) (“affirming summary judgment of noninfringement where “overall similarity” of two rocket shaped balls was based on the functional tail 

and fins of the balls and not on the ornamental features of the design”).

1

 In Richardson, the Federal Circuit affirmed summary judgment of noninfringement based on the differences between 

the claim and accused designs after factoring out the functional aspects. Richardson, 597 F.3d at 1294. The claimed 

tool design included numerous features, including a handle, a hammerhead, a jaw, and a crowbar that were dictated 

by their functional purposes. Id. The court explained that “[t]he jaw, for example, has to be located on the opposite 

end of the hammer head such that the tool can be used as a step” and “[t]he hammer-head has to be flat on its end to 

effectively deliver force to the object being struck.” Id. 

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D. In The Light Of The D’906 Patent, No Ordinary Observer Would Think The Design 

Of Accused Products Is Substantially Similar To The Claimed Designs Of The 

Patents-In-Suit. 

Even if the Court finds that the claimed and accused designs are not plainly dissimilar, the 

comparison “will benefit from a comparison of the claimed and accused designs with the prior art.” 

Egyptian Goddess, 543 F.3d at 678. When the prior art is considered, Defendant and Third-Party 

Respondents should prevail as a matter of law because no ordinary observer would think the design 

of the Accused Products is substantially similar to the claimed designs of the Patents-in-Suit. 

A detailed side-by-side comparation among Patents-in-Suit, the prior art and Accused 

Products are illustrated as below: 

Gyroor A 

There are several key design differences between the design claim of the Patents-in-Suit 

and Gyroor A. From the top and front views, the differences in the shape and design of the footpads 

are clear. See Dkt. 421, Ex. 4, Decl. of Rake, ¶¶65, 71, 77. An ordinary observer familiar with the 

prior art and other products in the marketplace would recognize that the Patents-in-Suit have 

prominent elliptical design element in the middle compared to Gyroor A, which is completely 

different, without any elliptical design element. Id. 

The bottom and back views also play a role in an ordinary observer’s understanding the 

overall visual appearance of the designs. A bottom view reveals substantial design differences. Id. 

¶¶68, 74, 80. For Gyroor A, there is a prominent central design detail at the center, two strong 

styling recess areas under the feet, and vent hole patterns that are readily noticed because of the 

Figure-Ground gestalt, as well as Closure, Similarity, and Proximity. Id. 

Another important design feature that has a significant effect on the overall visual 

impression of the ordinary observer is the size and shape of the fenders. Id. ¶¶69, 75, 81. Even to 

the most casual observer, the differences are significant. 

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Gyroor B 

There are several key design differences between the design claim of the Patents-in-Suit 

and Gyroor B. From the top and front views, the differences in the shape and design of the footpads 

are clear. Id. ¶¶92, 98, 104, 110. An ordinary observer familiar with the prior art and other products 

in the marketplace would recognize that the Patents-in-Suit have prominent elliptical design 

element in the middle while Gyroor B is completely different, without any elliptical design element. 

Id. 

The bottom and back views also play a role in an ordinary observer’s understanding the 

overall visual appearance of the designs. A bottom view reveals substantial design differences. Id. 

¶¶95, 101, 107, 113. For Gyroor B, there is a prominent central design detail at the center, two 

strong styling recess areas under the feet, and vent hole patterns that are readily noticed because 

of the Figure-Ground gestalt, as well as Closure, Similarity, and Proximity. Id. 

Another important design feature that has a significant effect on the overall visual 

impression of the ordinary observer is the size and shape of the fenders. Id. ¶¶96, 102, 108, 114. 

Even to the most casual observer, the differences are significant. 

Gyroor C 

There are several key design differences between the design claim of the Patents-in-Suit 

and Gyroor C. From the top and front views, the differences in the shape and design of the footpads 

are clear. Id. ¶¶119, 125, 131. An ordinary observer familiar with the prior art and other products 

in the marketplace would recognize that the Patents-in-Suit have prominent elliptical design 

element in the middle while Gyroor C is completely different, without any elliptical design element. 

Id. 

The bottom and back views also play a role in an ordinary observer’s understanding the 

overall visual appearance of the designs. A bottom view reveals substantial design differences. Id. 

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¶¶122, 128, 134. For Gyroor C, there is a prominent central design detail at the center, two strong 

styling recess areas under the feet, and vent hole patterns that are readily noticed because of the 

Figure-Ground gestalt, as well as Closure, Similarity, and Proximity. Id. 

Another important design feature that has a significant effect on the overall visual 

impression of the ordinary observer is the size and shape of the fenders. Id. ¶¶123, 129, 135. Even 

to the most casual observer, the differences are significant. 

Gyroor D 

There are several key design differences between the design claim of the Patents-in-Suit 

and Gyroor D. From the top and front views, the differences in the shape and design of the footpads 

are clear. Id. ¶¶146, 152, 158, 164. An ordinary observer familiar with the prior art and other 

products in the marketplace would recognize that the Patents-in-Suit have prominent elliptical 

design element in the middle while Gyroor D is completely different, without any elliptical design 

element. Id. 

The bottom and back views also play a role in an ordinary observer’s understanding the 

overall visual appearance of the designs. A bottom view reveals substantial design differences. Id. 

¶¶149, 155, 161, 167. For Gyroor D, there is a prominent central design detail at the center, two 

strong styling recess areas under the feet, and vent hole patterns that are readily noticed because 

of the Figure-Ground gestalt, as well as Closure, Similarity, and Proximity. Id. 

Another important design feature that has a significant effect on the overall visual 

impression of the ordinary observer is the size and shape of the fenders. Id. ¶¶150, 156, 162, 168. 

Even to the most casual observer, the differences are significant. 

Gyroor E 

There are several key design differences between the design claim of the Patents-in-Suit 

and Gyroor E. From the top and front views, the differences in the shape and design of the footpads 

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are clear. An ordinary observer familiar with the prior art and other products in the marketplace 

would recognize the Patents-in-Suit have prominent design element in the middle and the Gyroor 

E is clean, without any such design element. 

The bottom and back views also play a role in an ordinary observer’s understanding the 

overall visual appearance of the designs. A bottom view reveals substantial design differences. For 

Gyroor E, there is a prominent central design detail at the center, two strong styling recess areas 

under the feet, and vent hole patterns that are readily noticed because of the Figure-Ground gestalt, 

as well as Closure, Similarity, and Proximity. 

Another important design feature that has a significant effect on the overall visual 

impression of the ordinary observer is the size and shape of the fenders. Even to the most casual 

observer, the differences are significant. 

Conclusion 

An ordinary observer, familiar with the prior art, would not be confused when observing 

the claimed designs of the Patents-in-Suit, the claimed designs of the Accused Products, and the 

design of the ‘906 Patent. The shape and appearance of the few features common to the claimed 

design of the Patents-in-Suit and the design of the prior art are not found in the claimed design of 

Accused Products and are so substantially different such that an “ordinary observer”, familiar with 

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

Accused Products do not infringe the claimed design of the Patents-in-Suit. 

E. Plaintiffs’ Filing Of An Expert Report Purporting To Establish Conflicting Opinions 

Does Not Foreclose Summary Judgment. 

Plaintiffs have submitted a new expert declaration to support their opposition to Defendant 

and Third-Party Respondents’ summary judgment. See Dkt. 670. However, this newly submitted 

expert declaration should be excluded due to its untimeliness and failure to offer any explanation 

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or show any justification for the delay. See Dkt. 645, 646. This is not the first instance in which 

Plaintiffs have introduced new evidence after the close of discovery. Plaintiffs’ repeated and 

seemingly intentional violations of the Court’s schedule and Federal Civil Procedure Rule could 

result in significant prejudice to Defendants and Third-Party Respondents. 

Further, that Plaintiff filed an expert report purporting to establish material differences in 

fact does not foreclose summary judgment. See Wing Shing Prod. (BVI) Co. v. Sunbeam Prod., 

Inc., 665 F. Supp. 2d 357, 368 (S.D.N.Y. 2009), aff’d, 374 F. App’x 956 (Fed. Cir. 2010) 

(summary judgment granted over competing expert testimony); See also Egyptian Goddess, 543 

F.3d at 681–82 (granting summary judgment over opposing expert affidavit). In fact, courts 

routinely grant summary judgment through a visual determination that the compared products are 

plainly dissimilar despite expert testimony purporting to establish material fact disputes. See HR 

U.S. LLC v. Mizco Int’l, Inc., No. CV-07-2394(DGT)(JO), 2009 WL 890550, at *13 (E.D.N.Y. 

Mar. 31, 2009) (“[E]xpert testimony submitted by a plaintiff cannot create a material issue of fact 

where the visual comparison reveals that the alleged infringing product is not substantially 

similar ....”); See also Harel v. K.K. Int’l Trading Corp., 12 CIV. 4527 BMC, 2014 WL 119541, 

at * 2–4 (E.D.N.Y. Jan. 10, 2014) (“[B]ecause a visual comparison alone is sufficient to determine 

non-infringement under the ordinary observer test, the Court finds that the expert testimony 

submitted by plaintiffs cannot create a material issue of fact, where the visual comparison reveals 

that the alleged infringing [product] is not substantially similar to the [claimed design].”). As stated 

above, since the claimed designs of the Patents-in-Suit are plainly dissimilar from the Accused 

Products, Plaintiffs’ newly submitted expert report is insufficient to create a disputed statement of 

material fact for trial. 

Case: 1:20-cv-04806 Document #: 674 Filed: 10/12/23 Page 17 of 19 PageID #:17348
14 

IV. CONCLUSION 

For the foregoing reasons, without the submission of admissible contrary evidence, 

Plaintiffs’ conclusory statements cannot give rise to a genuine dispute of material fact. Therefore, 

Defendant and Third-Party Respondents respectfully request the Court grant Defendant and ThirdParty Respondents’ Motion for Summary Judgment for Non-infringement. 

Date: 10/12/2023 

 

/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 

251 South Lake Ave, Suite 910 

Pasadena, CA 91101 

Yu-Hao Yao, Esq. 

mickey.yao@glacier.law 

312-448-7772 

GLACIER LAW LLP 

200 E. Randolph Dr., Ste. 5100 

Chicago, IL 60601 

Ruoting Men, Esq. 

ruoting.men@glacier.law

Tianyu Ju, Esq. 

Iris.ju@glacier.law 

312-270-0413 

Attorneys for Defendant and 

Third-Party Respondents

Case: 1:20-cv-04806 Document #: 674 Filed: 10/12/23 Page 18 of 19 PageID #:17349
15 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on this October 12, 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: 10/12/2023 /s/ Na Zhang 

Na Zhang

Case: 1:20-cv-04806 Document #: 674 Filed: 10/12/23 Page 19 of 19 PageID #:17350