Lu v. Hyper Bicycles, Inc. (D. Mass. 20-cv-11739).

Taiwanese citizen Fa-Hsing Lu sued Hyper Bicycles in 2020, accusing Hyper of infringing a pair of design patents relating to the ornamental design of a bicycle.  Hyper counterclaimed, alleging that Hyper had designed the bicycle in question (a children’s bike designed to look like a motocross motorcycle) and had hired Lu’s company Dumar International USA to manufacture the bicycles for sale through Wal-Mart (with whom Dumar had an established relationship).  Hyper says that Lu filed Hyper’s designs as his own, without Hyper’s knowledge.

Judge Gorton, while rejecting Hyper’s proposal for a full scale written explanation of what the claims cover, provided a limited construction of the claims to exclude the functional elements – specifically, excluding “the wheels, seat, frame, handlebars and pedal/gear/chain assembly” to the extent that those elements serve a functional, rather than ornamental, purpose.

Judge Gorton then granted Hyper’s motion for summary judgment of non-infringement. He noted that Lu had failed to contest Hyper’s statement of material facts not in dispute, which renders them deemed for purposes of the motion to be admitted.  He then indicated that these admitted facts, which included that Lu had failed to identify any evidence of infringement or damages, were dispositive.  Judge Gorton further noted that, even taking the unsupported allegations in Lu’s opposition into account, Lu had failed to raise any issues of material fact to preclude summary judgment.  Lu had failed to propound any written discovery, to take any depositions, or to designate any experts.  He pointed to Lu’s failure to identify any evidence of damages, and denied Lu’s request to extend time to allow for discovery on the issue, finding that the failure to do so during the three years the case was open precluded a determination of good cause.