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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

ABC Corporation I et al, 

 Plaintiff,

v. 

THE PARTNERSHIPS and 

UNINCORPORATED ASSOCIATIONS 

IDENTIFIED ON SCHEDULE “A”, 

 Defendant.

CASE NO. 1:20-cv-04806 

Judge: Honorable Thomas M. Durkin

DEFENDANT FENGCHI-US’S 

MOTION TO DISMISSPURSUANT TO RULE 12(b)(6) 

Defendant Fengchi-US, through counsel, file this Motion to Dismiss pursuant to Federal Rule of 

Civil Procedure 12(b)(6). The Parties agreed on the briefing schedule as follows: Plaintiffs’ response is 

due on September 3, 2021, and Defendant’s Reply is due on September 17, 2021. 

Introduction 

Plaintiffs alleged design patent infringement against Defendant because Fengchi-US is related to 

or affiliated with Gyroor-US, despite the fact that the two sellers were selling two different products with 

substantially dissimilar designs. 

Plaintiffs’ unsubstantiated infringement allegation against Defendant must be dismissed because 

I) Plaintiffs failed to meet the pleading standards under Rule 12(b)(6); and II) the noninfringement is 

obvious in this case. 

Procedural Background 

On November 20, 2020, Plaintiffs filed a motion for preliminary injunction. [Dkt. No. 105]. 

On November 24, 2020, a preliminary injunction hearing was held. [Dkt. No. 112]. 

On November 24, 2020, a preliminary injunction order was entered. [Dkt. No. 113]. 

On December 24, 2020, a modified preliminary injunction order was entered. [Dkt. No. 147]. 

Service of process was not effectuated on Defendant until June 25, 2021. [Dkt. No. 310]. 

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Timeline 

Date: Event: 

07/10/2020 Initial Filing 

11/20/2020 Motion for Preliminary Injunction Filed [Dkt. No. 105] 

11/24/2020 Hearing for Preliminary Injunction held on November 24, 2020 

11/24/2020 Preliminary Injunction Order entered [Dkt. No. 113] 

12/23/2020 Modified Preliminary Injunction Order entered [Dkt. No. 147] 

06/25/2021 Email Service of Process [Dkt. No. 310]

Factual Background 

Plaintiffs made no specific allegations against Defendant aside from alleging “Fengchi-US store 

is related to or affiliated with Gyroor US.” [Dkt. No. 227-1, ¶17]. 

Evidence provided by Plaintiffs identifies the alleged infringing products “Gyroor Hoverboard 

Offroad All Terrain Flash Wheel Self Balancing G5 Hoverboards with Bluetooth Speaker, UL 2272 

Certified Best Gift ...” [Dkt. No. 227-1, p. 42 of 92]. The product has a unique ASIN number B08NT551P4 

(“Accused Product”) [Dkt. No. 227-3, p. 4 of 4]. 

Arguments 

I. Plaintiffs’ Unsubstantiated Allegation Against Defendant Must Be Dismissed Because 

Plaintiffs failed to meet the pleading standards 

A Rule 12(b)(6) motion challenges the sufficiency of a complaint. Bonnstetter v. City of Chicago, 

811 F.3d 969, 973 (7th Cir. 2016). A complaint must contain enough information via “a short and plain 

statement of the claim” to give the Defendant fair notice of the claim and its basis. Fed. R. Civ. P. 8(a)(2); 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

A motion to dismiss should be granted if a complaint does not contain “sufficient factual matter, 

accepted as true, ‘to state a claim to relief that is plausible on its face.’” Artrip v. Ball Corp., 735 Fed. 

Appx. 708, 709 (Fed. Cir. 2018) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 

To meet the plausibility standard, a plaintiff must plead “factual content that allows the court to 

draw the reasonable inference that the Defendant is liable for the misconduct alleged.” Id. Merely pleading 

facts that are consistent with liability or stating legal conclusions is not sufficient. Id. 

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“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of 

misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” 

Iqbal, 556 U.S. at 678. While the Court accepts all “well-pled” facts alleged in the complaint as true, it is 

not bound to accept the Plaintiff’s legal conclusions. Id. “[A] plaintiff’s obligation to provide the ‘grounds’ 

of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 

265, 286 (1986)). A complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 

enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557). Without “factual enhancements” 

sufficient to state a cause of action, the formulaic recitation of generic acts of infringement are insufficient 

to avoid dismissal. See Strategic Operations, Inc. v. Joseph, No. 3-17-cv-01539, 2018 WL 3833411, at *3 

(S.D. Cal., Aug. 13, 2018) (disregarding conclusory allegations that Defendant “continue to make, use, sell 

and offer for sale” the accused product, where more specific allegations failed to support infringement claim.) 

A complaint should be dismissed, pursuant to Rule 12(b)(6), when it lacks “a cognizable legal theory.” 

Bielskis v. Louisville Ladders Inc., No. 07 C 1411, 2007 WL 2088583, at *1 (N.D. Ill. July 18, 2007); 

see also Roper v. Jo-Ann Stores, Inc., 211 Fed. Appx. 950, 951 (Fed. Cir. 2007) (affirming dismissal where 

patent requirements could not apply to accused product). 

Here, aside from the conclusory claims that “Fengchi-US store is related to or affiliated with Gyroor 

US,” [Dkt. No. 227-1, ¶17], Plaintiffs failed to provide any specific facts to support its design patent 

infringement claim against Defendant Fengchi-US. 

Furthermore, the Accused Product sold by Defendant is a different product. The Accused Product has 

a substantial different design and a unique ASIN number. Therefore, Plaintiffs’ infringement allegations 

against Gyroor-US does not apply to Fengchi-US simply because they are “related or affiliated.” Lastly, 

as shown below, the Accused Product sold by Defendant is based on a valid U.S. Design Patent – the 

D891,297 Patent (“D’297 Patent,” attached hereto as Exhibit 1), which does not infringe Plaintiffs’ Patents. 

Consequently, Plaintiffs failed to meet the pleading standards under Rule 12(b)(6). 

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II. The Noninfringement Is Obvious Because the Accused Product Is Based on a Valid U.S. 

Design Patent – the D’297 Patent. 

Plaintiffs allege that four of Plaintiffs’ U.S. Design Patents – D737,723 (“D’723 patent”), 

D738,256 (“D’256 patent”), D785,112 (“D’112 patent”), D784,195 (“D’195 patent”) (“Patents-in-Suit”) 

[Am. Compl., Dkt. No. 101, ¶7; Dkt. No. 101-13] have been infringed by Defendant’s product ASIN No. 

B08NT551P4 (“Accused Product”) [Dkt. No. 227-3, p. 4 of 4]. 

Defendant accepts that Plaintiffs are the owner of the Patents-in-suit. However, the Accused Product 

does not infringe the Patents-in-Suit. 

The noninfringement in this case is obvious because the Accused Product is based on a valid U.S. 

Design Patent – the D’297 patent, which does not infringe the Patents-in-Suit. 

A. D’297 Patent is presumed valid 

A patent gives its owner the right to exclude others from making, using, offering to sell, selling, or 

importing the patented invention. 

“A patent shall be presumed valid.” 35 U.S.C. § 282. This presumption applies to design patents. 

Spigen Korea Co. v. Ultraproof, Inc., 955 F.3d 1379, 1383 (Fed. Cir. 2020) (“Design patents are presumed 

valid.”). A valid patent cannot infringe another patent. 

B. The Accused Product is identical to the D’297 patent 

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Top View Comparison 

Plaintiffs’ Patents-in-Suit 

 D’723 Patent D’256 Patent

 D’195 Patent D’112 Patent

 

The Licensed 

D’297 Patent 

The Accused Product 

The most prominent ornamental features from the Top View are the shape and design of the two 

standing pads. Both D’723 and D’256 Patents feature straight divergent lines. Neither D’195 nor D’112 

Patents features any design on standing pads (broken lines). 

The Accused Product, like the D’297 Patent, has unique three parallel lines and other intricate 

patterns on the standing pads, which are plainly dissimilar from the designs of the Patents-in-Suit. 

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Bottom View Comparison 

Plaintiffs’ Patents-in-Suit 

 D’723 Patent D’256 Patent

 D’195 Patent D’112 Patent

The Licensed 

D’297 Patent 

The Accused Product 

The most prominent ornamental features from the Bottom View are the size, numbers, shape, 

and arrangement of the vent holes. Only D’112 features a pair of 12 small closely arranged vent holes. 

The size, numbers, shape, and arrangement of the vent holes featured in the Accused Product 

match the ornamental design of D’297 Patent, which is plainly dissimilar from the D’112 Patent. 

Furthermore, the vertical ridges in the center of the Accused Product are ornamental features 

that are unique to the Accused Product and D’297 Patent. 

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Front/Back View Comparison 

Plaintiffs’ Patents-in-Suit 

 D’723 Patent D’256 Patent

 D’195 Patent D’112 Patent

The Licensed 

D’297 Patent 

The Accused Product 

The most prominent ornamental features from the Front/Back View are the size, curve and shape of 

the fenders that cover the wheels. The Accused Product has its own unique design of the fenders. 

The fender in the Accused Product, like in the D’297 patent, does not cover the side of wheels, which 

is plainly dissimilar from the designs of the Patents-in-Suit. Furthermore, the fenders also feature sharp edges 

which are distinctive from the smooth round edge featured in the Patents-in-Suit. 

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Perspective View Comparison 

Plaintiffs’ Patents-in-Suit 

 D’723 Patent D’256 Patent

 D’195 Patent D’112 Patent

 The Licensed D’297 Patent The Accused Product

The perspective view comparison shows the overall visual distinctions between the Patents-in-Suit 

and the Accused Product. 

Each element of the ornamental feature, viewed together, only enhances the dissimilarity between 

the Accused Product and the Patent-in-Suite. The combination of the substantially dissimilar standing 

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pads, and the fenders creates an overall visual impression that no ordinary observer would consider that 

the Accused Product and the Patents-in-Suit are of the same design. 

Therefore, the Accused Product is identical to the D’297 patent, and designs of the Accused Product 

and the Patents-in-Suit are not substantially similar. 

Conclusion 

For the foregoing reasons, Defendant respectfully requests that the Court dismiss complains 

against Defendant Fengchi-US. 

Date: 08/13/2021 /s/ Tianyu Ju 

Tianyu Ju, Esq. 

GLACIER LAW PLLC 

200 E. Randolph Dr., Ste. 5100 

Chicago, IL 60601 

Attorney for Defendant 

 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on this August 13, 2021, 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: 08/13/2021 /s/ Tianyu Ju 

Tianyu Ju, Esq. 

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