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

Lu accused Hyper Bicycles of infringing a pair of design patents relating to the ornamental design of a bicycle constructed to look like a motocross motorcycle.  In the litigation, Lu failed to propound any written discovery requests, notice any depositions, or identify any experts, and ultimately summary judgment was granted in favor of Hyper Bicycles.  Judge Gorton’s order noted that Hyper Bicycles had, in accordance with the local rules, submitted a statement of material facts not in dispute that demonstrated noninfringement.  Lu neglected to file the required response controverting those facts, and was thus under the rule deemed to have admitted to Hyper Bicycles’ facts, and summary judgment was granted on this ground.  Judge Gorton further noted that, even were this not the case, Lu’s opposition failed to demonstrate a material fact in dispute that would preclude summary judgment, effectively creating a second ground for the grant of the motion.

Lu appealed, but only argued the second of these grounds – the appeal did not address the failure to file the statement addressing/controverting Hyper Bicycles’ statement of facts.  The Federal Circuit determined that, by failing to address this part of the summary judgment decision, Lu waived any challenge to the first ground, and because that first ground was sufficient to uphold the decision.

The Federal Circuit then granted Hyper Bicycles’ motion for sanctions.  The Court found that, because Lu’s appeal could not possibly have resulted in the Court granting Lu any relief, making the appeal frivolous as filed and argued.  Having determined that the appeal was frivolous, the Court awarded the full amount of attorneys’ fees requested by Hyper Bicycles, $45,580.  The Court further agreed to hold Lu and Lu’s counsel jointly and severally liable for the sanction award.  Combined with the attorneys’ fees awarded in the underlying litigation, this brings the sanctions just more than $100,000.