Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 1 of 16 PageID #:18149
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`ABC CORPORATION I,
`ABC CORPORATION II,
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`Plaintiffs,
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`v.
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`THE PARTNERSHIPS AND
`UNINCORPORATED ASSOCIATIONS
`IDENTIFIED ON SCHEDULE A,
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`Defendants.
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`Case No. 1:20-cv-4806
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`Judge Thomas M. Durkin
`Magistrate Judge Jeffrey Cole
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`DEFENDANT AND THIRD-PARTY RESPONDENTS’ REPLY TO PLAINTIFFS’
`OPPOSITION TO DEFENANT AND THIRD-PARTY RESPONDENTS’ MOTION FOR
`DAMAGES
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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 2 of 16 PageID #:18150
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`TABLE OF CONTENTS
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`I.
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`II.
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`III.
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`FACTUAL AND PROCEDURAL BACKGROUND .................................... 1
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`LEGAL STANDARD ....................................................................................... 2
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`ARGUMENT ..................................................................................................... 2
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`A.
`
`B.
`
`C.
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`PLAINTIFFS HAVE FAILED TO SHOW ANY GOOD REASON NOT TO AWARD
`DEFENDANT AND THIRD-PARTY RESPONDENTS DAMAGES. ........................... 3
`DEFENDANT AND THIRD-PARTY RESPONDENTS HAVE SUFFICIENTLY
`PROVED THE AMOUNTS OF THEIR DAMAGES. ................................................ 5
`DEFENDANT AND THIRD-PARTY RESPONDENTS ARE ENTITLED TO DAMAGE
`ABOVE THE POSTED BOND AMOUNT. .............................................................. 6
`1. Plaintiffs initiated this case in bad faith with the sole purpose of eliminating
`Gyroor brand from hoverboard industry ............................................................. 6
`2. Plaintiffs maintained this case in bad faith by intentionally multiplying and
`prolonging the proceedings .................................................................................... 8
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`IV.
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`CONCLUSION ............................................................................................... 11
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`ii
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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 3 of 16 PageID #:18151
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`TABLE OF AUTHORITIES
`
`
`Page
`
`Case
`
`ABC Corp. I v. P’ship & Unincorporated Associations Identified on Schedule “A”,
`
`52 F.4th 934, 944 (Fed. Cir. 2022) ......................................................................................9
`
`Adolph Coors Co. v. A & S Wholesalers, Inc.,
`
`561 F.2d 807, 814 (10th Cir.1977) ......................................................................................2
`
`Atomic Oil Co. v. Bardahl Oil Co.,
`
`419 F.2d 1097, 1100–03 (10th Cir.1969) ............................................................................2
`
`Coyne–Delany Co., Inc. v. Capital Dev. Bd. of State of Illinois,
`
`717 F.2d 385, 391 (7th Cir.1983) ....................................................................................3, 5
`
`Eon-Net LP v. Flagstar Bancorp,
`
`653 F.3d 1314, 1327 (Fed. Cir. 2011)..................................................................................9
`
`ESIP Series 1, LLC v. doTerra Int’l, LLC,
`
`No. 2:15-CV-00779-RJS, 2022 WL 656777, at *10 (D. Utah Mar. 4, 2022),
`reconsideration denied, No. 2:15-CV-00779-RJS, 2022 WL 17903397 (D. Utah
`Dec. 23, 2022) ......................................................................................................................8
`
`
`Gabriel Techs. Corp. v. Qualcomm Inc.,
`
`560 F. App’x 966, 972 (Fed. Cir. 2014) ..............................................................................8
`
`Global Naps, Inc. v. Verizon New England, Inc.,
`
`489 F.3d 13, 22 (1st Cir.2007) .............................................................................................5
`
`Hangzhou Chic Intelligent Technology Co., Ltd. v. The Partnerships and Unincorporated
`Associations Identified on Schedule “A”,
`
`Case No. 20-cv-05905 (E.D. Ill) ..........................................................................................8
`
`Hangzhou Chic Intelligent Technology Co., Ltd. v. Swagway LLC,
`
`Case No. 16-cv-04804-HSG (N.D. Cal. 2016) ....................................................................7
`
`Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc.,
`
`687 F.3d 1300, 1309 (Fed. Cir. 2012), vacated and remanded, 572 U.S. 559, 134
`S. Ct. 1744, 188 L. Ed. 2d 829 (2014) .................................................................................8
`
`
`Latuszewski v. VALIC Fin. Advisors, Inc.,
`
`393 Fed. Appx. 962, 966–67 (3d Cir.2010) .........................................................................5
`
`Middlewest Motor Freight Bureau v. United States,
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`433 F.2d 212, 241 n. 4, 243 (8th Cir.1970) .........................................................................2
`
`
`
`iii
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`

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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 4 of 16 PageID #:18152
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`Monster Energy Co. v. Wensheng,
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`136 F. Supp. 3d 897, 911 (N.D. Ill. 2015) ...........................................................................2
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`Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc.,
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`16 F.3d 1032, 1036, n. 4 (9th Cir.1994) ..............................................................................5
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`Nokia Corp. v. InterDigital, Inc.,
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`645 F.3d 553, 559 (2d Cir.2011)..........................................................................................5
`
`SFA Sys., LLC v. Newegg Inc.,
`793 F.3d 1344, 1350 (Fed. Cir. 2015)..................................................................................8
`
`
`Slidell, Inc. v. Millennium Inorganic Chems., Inc.,
`
`460 F.3d 1047, 1059 (8th Cir.2006) ....................................................................................5
`
`Triumph v. Ward,
`
`No. 11 C 7927, 2011 WL 6754044, at *4 (N.D. Ill. Dec. 22, 2011) ...................................5
`
`Wabash Publ’g Co. v. Flanagan,
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`89 C 1923, 1990 WL 19977, at *1 (N.D.Ill. Feb.27, 1990) ...............................................10
`
`
`Rules
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`Fed. R. Civ. P. 65(c) ........................................................................................................................2
`
`
`Others
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` 7
`
` Moore’s Federal Practice, supra, ¶ 6.10[2], at p. 65–100; Comment, The Triggering of
`Liability on Injunction Bonds, 52 N.C.L.Rev. 1252, 1257–63 (1974) ............................................2
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`11A Wright & Miller, Fed. Prac. and Proc. § 2973 (2d ed. 2010) ...................................................5
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`iv
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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 5 of 16 PageID #:18153
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`Defendant Gyroor-US (“Defendant” or “Gyroor-US”) and Third-Party Respondents
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`Gyroor, Urbanmax, GaodeshangUS, Fengchi-US, Gyroshoes, HGSM, Shenzhen Yanjingmaoyi
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`Co., Ltd. (“Yanjin-US”) and Jiangyou-US 1 (collectively, “Third-Party Respondents”) hereby
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`submit this reply to Plaintiffs Hangzhou Chic Intelligent Technology Co., Ltd. (“Chic”) and
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`Unicorn Global, Inc.’s (“Unicorn”, and collectively with “Chic”, “Plaintiffs”) Opposition to
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`Defendant and Third-Party Respondents’ Motion for Damages. [Dkt. 704].
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`I.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`On August 17, 2020, Plaintiffs filed complaint against Defendant alleging that Defendant’s
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`accused products infringe on their U.S. Design Patent Nos. D737,723 (“the ’D723 patent”),
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`D738,256 (“the ’D256 patent”), D785,112 (“the ’D112 patent”), and D784,195 (“the ’D195
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`patent”) (collectively, “Patents-in-Suit”).
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`On November 20, 2020, Plaintiffs filed their first motion for preliminary injunction against
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`Defendant, which was later granted by the Court. [Dkt. 105, 113].
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`On August 24, 2021, Plaintiffs filed a second motion for preliminary injunction against
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`Third-Party Respondents. [Dkt. 384]. The Court granted Plaintiffs’ second preliminary injunction
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`on October 6, 2021. [Dkt. 447, 456].
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`On October 28, 2022, the Federal Circuit issued an opinion and vacated the two preliminary
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`injunction orders issued by this Court. [Dkt. 587-590].
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`On November 9, 2022, Plaintiffs filed their renewed motion for temporary restraining order
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`and preliminary injunction. [Dkt. 592]. This motion was denied by this Court on December 2,
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`2022. [Dkt. 619].
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`1 Jiangyou-US was a former wrongfully-enjoined defendant who was dismissed from this case for lack of personal
`jurisdiction on June 21, 2022. [Dkt. 561].
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`1
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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 6 of 16 PageID #:18154
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`On January 12, 2024, Defendant and Third-Party Respondents’ motion for summary
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`judgment of non-infringement was granted by the Court, and all Plaintiffs’ claims are dismissed.
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`[Dkt. 686].
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`On February 8, 2024, Plaintiffs filed a notice of appeal to challenge Court’s order granting
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`Defendant and Third-Party Respondents’ motion for summary judgment of non-infringement.
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`[Dkt.691].
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`II. LEGAL STANDARD
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`Under Federal Rule of Civil Procedure 65(c), a court may issue a preliminary injunction
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`“only if the movant gives security in an amount that the court considers proper to pay the costs
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`and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed.
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`R. Civ. P. 65(c). “The purpose of requiring security prior to issuance of an injunction or a
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`temporary restraining order is to guarantee payment of costs and damages incurred by a party who
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`is wrongfully enjoined or restrained.” Monster Energy Co. v. Wensheng, 136 F. Supp. 3d 897, 911
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`(N.D. Ill. 2015). Prevailing defendant is entitled to damages on the injunction bond unless there is
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`a good reason for not requiring the plaintiff to pay in the particular case. See, e.g., Atomic Oil Co.
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`v. Bardahl Oil Co., 419 F.2d 1097, 1100–03 (10th Cir.1969); Middlewest Motor Freight Bureau
`
`v. United States, 433 F.2d 212, 241 n. 4, 243 (8th Cir.1970); Adolph Coors Co. v. A & S
`
`Wholesalers, Inc., 561 F.2d 807, 814 (10th Cir.1977); 7 Moore’s Federal Practice, supra, ¶ 6.10[2],
`
`at p. 65–100; Comment, The Triggering of Liability on Injunction Bonds, 52 N.C.L.Rev. 1252,
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`1257–63 (1974).
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`III. ARGUMENT
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`2
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`

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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 7 of 16 PageID #:18155
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`A. Plaintiffs Have Failed To Show Any Good Reason Not To Award Defendant And Third-
`Party Respondents Damages.
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`In the Seventh Circuit, “a prevailing defendant is entitled to damages on the injunction
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`bond unless there is a good reason for not requiring the plaintiff to pay in the particular case.”
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`Coyne–Delany Co., Inc. v. Capital Dev. Bd. of State of Illinois, 717 F.2d 385, 391 (7th Cir.1983).
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`When rules prescribe a course of action as the norm but allow the district court to deviate from it,
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`the court’s discretion is more limited than it would be if the rules were nondirective. Id. at 392.
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`The judge must have a good reason for departing from such a principle in a particular case. Id. It
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`is not a sufficient reason for denying costs or damages on an injunction bond that the suit had as
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`in this case been brought in good faith. Id. The award of damages on the bond is not punitive but
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`compensatory. Id.
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`Here, Plaintiffs have failed to show any good reason not to award Defendant and Third-
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`Parry Respondents damages as whether Defendant and Third-Parry Respondents had complied
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`with the prior preliminary injunctions is not one of the good reasons that allows the district court
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`to deviate from the norm. Plaintiffs also have not cited any case law to support that the district
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`court determines to not award damages to a prevailing defendant because of the violation of
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`preliminary injunction order.
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`In deciding whether to withhold injunction damages, not only is the district court to be
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`guided by the implicit presumption in Rule 65(c) in favor of awarding them, but the ingredients of
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`a proper decision are objective factors—such as the resources of the parties, the defendant’s efforts
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`or lack thereof to mitigate his damages, and the outcome of the underlying suit—accessible to the
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`judgment of a reviewing court. Id. A good reason for not awarding such damages would be that
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`the defendant had failed to mitigate damages. Id.
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`3
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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 8 of 16 PageID #:18156
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`Here, there is no “good reason” for the Court to deny Defendant and Third-Party
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`Respondents to recover damages. First of all, this lawsuit has already decided in favor of Defendant
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`and Third-Party Respondents since the Court granted Defendant and Third-Party Respondents’
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`motion for summary judgment of non-infringement and all Plaintiffs’ claims were dismissed. [Dkt.
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`686]. In addition, Defendant and Third-Party Respondents were lack of any abilities during their
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`injunction periods to mitigate any damages as their Amazon accounts had been restrained and
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`preliminary injunction orders were entered against them, so they did not have any other channels
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`to sell or dispose the products. Also, compared with Plaintiffs, who are major players in the
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`hoverboard market, Defendant and Third-Party Respondents do not hold the same resources as
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`Plaintiffs do.
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`Furthermore, as illustrated by Defendant and Third-Party Respondents in their replies,
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`Plaintiffs’ alleged violation of the preliminary injunction order was unfounded. This is because
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`Third-Party Respondents were non-parties and did not receive proper notice of the preliminary
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`injunction orders at the time they were issued, which was further confirmed by the Federal Circuit.
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`[Dkt. 370, 590]. It is undisputed that all of Defendant and Third-Party Respondents’ Amazon stores
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`were prohibited from selling any products during the injunction period. Furthermore, there is no
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`dispute that all of Defendant and Third-Party Respondents were wrongfully enjoined. On
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`November 15, 2022, the Court mooted its previous find that Defendants and Third-Party
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`Respondents were in contempt of the preliminary injunction. [Dkt. 603]. There are no records or
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`evidence to suggest that Defendant or Third-Party Respondents ever violated the preliminary
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`injunction orders. On the contrary, the records and evidence demonstrate that Defendant and Third-
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`Party Respondents substantially complied with the preliminary injunction orders and, as a result,
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`suffered substantial losses during the injunction period. [Dkt. 543, 697]. On the other side, even if
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`4
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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 9 of 16 PageID #:18157
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`some non-parties sold the accused products before receiving the proper notice, the revenues
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`generated from these sales are significantly less than the damages suffered by Defendant and
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`Third-Party Respondents.
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`Thus, Defendant and Third-Party Respondents have suffered substantial losses because of
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`the wrongfully enjoyed by Plaintiffs and Plaintiffs fail to show any good cause to for the Court to
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`deny Defendant and Third-Party Respondents request for damages.
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`B. Defendant And Third-Party Respondents Have Sufficiently Proved The Amounts Of Their
`Damages.
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`“Although proof of damages on an injunction bond need not ... be to a mathematical
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`certainty, a damages award cannot be speculative.” Latuszewski v. VALIC Fin. Advisors, Inc., 393
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`Fed. Appx. 962, 966–67 (3d Cir.2010) (internal quotation marks and citations omitted); see also
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`11A Wright & Miller, Fed. Prac. and Proc. § 2973 (2d ed. 2010) (“A wrongfully enjoined
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`defendant must establish what damages were proximately caused by the erroneously issued
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`injunction in order to recover and the alleged damages cannot be speculative.”).
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`Here, Defendant and Third-Party Respondents have satisfied their burden of proving that
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`they are entitled to damages. First, Defendant and Third-Party Respondents were wrongfully
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`restrained. In light of the Federal Circuit vacating the preliminary injunction orders and the Court’s
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`order granting Defendant and Third-Party Respondents’ motion for summary judgment, there can
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`be no question that Defendant and Third-Party Respondents are the “prevailing party”. Triumph v.
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`Ward, No. 11 C 7927, 2011 WL 6754044, at *4 (N.D. Ill. Dec. 22, 2011) (Citing Coyne–Delany,
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`717 F.2d at 391); see also Nokia Corp. v. InterDigital, Inc., 645 F.3d 553, 559 (2d Cir.2011) (citing
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`cases); Global Naps, Inc. v. Verizon New England, Inc., 489 F.3d 13, 22 (1st Cir.2007); Nintendo
`
`of Am., Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032, 1036, n. 4 (9th Cir.1994); Slidell, Inc. v.
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`Millennium Inorganic Chems., Inc., 460 F.3d 1047, 1059 (8th Cir.2006).
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`5
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`

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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 10 of 16 PageID #:18158
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`Second, Defendant and Third-Party Respondents have met their burden of proving that the
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`losses they suffered as a result of being wrongfully restrained. Due to the wrongfully-issued
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`preliminary injunction orders, Defendant and Third-Party Respondents’ (except for Yanjin-US)
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`Amazon stores were restrained from offering for sale and/or selling any products since January
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`2021. [Dkt. 113 & Dkt. 456]. Their Amazon stores were reactivated around November 2022,
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`nearly two years after their accounts have been wrongfully restrained. Before the injunctions, they
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`used to sell hundreds of hoverboard products per day. However, they were unable to sell any
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`hoverboard products during the injunction periods.
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`Finally, Defendant and Third-Party Respondents have sufficiently proved the amount of
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`their damages. As contrary to Plaintiffs’ assertions, Defendant and Third-Party Respondents
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`offered a damage report to prove their damages, which damages were calculated by an experienced
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`expert qualified as a Certified Public Accountant based on the expert’s education and training, an
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`assessment of the facts and circumstances involved with this matter, expert’s experience with
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`situations of similar nature, and accounting principles. [Dkt. 699]. Additionally, all the sales
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`reports offered by Defendant and Third-Party Respondents are directly downloaded from
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`Amazon’s platform, which were authenticated and part of the document productions provided to
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`Plaintiffs during the discovery. If requested by the Court, Defendant and Third-Party Respondents
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`are willing to provide their sales reports and other relevant supporting documents to the Court.
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`Thus, the proof of damages Defendant and Third-Party Respondents offered are not speculative.
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`C. Defendant And Third-Party Respondents Are Entitled To Damage Above The Posted Bond
`Amount.
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`1. Plaintiffs initiated this case in bad faith with the sole purpose of eliminating Gyroor brand
`from hoverboard industry
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`Plaintiffs brought this litigation against Defendant and Third-Party Respondents with the
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`sole purpose of eliminating and burdening their competitors, sellers of Gyroor-branded products.
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`6
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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 11 of 16 PageID #:18159
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`As illustrated in Defendant and Third-Party Respondents’ Motion for Damages, Yanjin-US, who
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`is a reseller of Gyroor but solely sells hover shoes instead of hoverboards, was also restrained
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`based on Plaintiffs’ preliminary injunction. [Dkt. 697]. Plaintiffs explained that the inclusion of
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`Yanjin-US was inadvertent, but the evidence clearly show otherwise as Plaintiffs refused to release
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`Yanjin-US from the injunction order even after they realized that Yanjin-US was wrongfully
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`restrained and “should not have its assets restrained.” Id.
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`Moreover, Plaintiffs have filed multiple litigations against numerous hoverboard sellers
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`with the intention to eliminate competition and force settlements. Beginning in early August 2016,
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`Plaintiffs started to issue Cease & Desist letters to more than a dozen retailers for Swagway LLC,
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`one of their biggest competitors in the hoverboard market, demanding immediate desistance of
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`patent infringement activities. Some retailers complied, yet others continue to sell the alleged
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`infringing products. See Hangzhou Chic Intelligent Technology Co., Ltd. v. Swagway LLC, Case
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`No. 16-cv-04804-HSG (N.D. Cal. 2016). On or about August 19, 2016, Chic brought a patent
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`infringement lawsuit in the U.S. District Court Northern District of California against Swagway
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`LLC. Nevertheless, Swagway counterclaimed that Chic made false and defamatory comments
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`regarding its products. In the same year, Chic incorporated with the same strategy filling a patent
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`infringement lawsuit in the U.S. District Court Central District of California against one of its
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`biggest hoverboard competitors, Razor USA LLC. Beginning in 2018 and continuing through
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`February 2019, Plaintiffs began lodging complaints with Amazon, asserting that the hoverboards
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`sold and produced through Golabs, Inc. infringed on Plaintiffs’ design patents. On or about March
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`26, 2019, Unicorn brought another patent infringement lawsuit in the U.S. District Court Northern
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`District of Texas against Golabs. On or about October 2, 2020, Plaintiffs initiated another patent
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`infringement lawsuit against various defendants including some Gyroor’s resellers and Tomoloo
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`7
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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 12 of 16 PageID #:18160
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`Technology Industrial Co., Ltd., one of its biggest hoverboard competitors in the United State
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`District Court for the Northern District of Illinois. See Hangzhou Chic Intelligent Technology Co.,
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`Ltd. v. The Partnerships and Unincorporated Associations Identified on Schedule “A”, Case No.
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`20-cv-05905 (E.D. Ill). On or about March 18, 2021, Plaintiffs again, incorporated with the same
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`strategy, filed another patent infringement lawsuit against its competitor DGL in the U.S. District
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`Courts, New York Eastern District. Most of the defendants were forced to settle with Plaintiffs in
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`this case considering of the litigation lengthy and expenses. See ESIP Series 1, LLC v. doTerra
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`Int’l, LLC, No. 2:15-CV-00779-RJS, 2022 WL 656777, at *10 (D. Utah Mar. 4, 2022),
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`reconsideration denied, No. 2:15-CV-00779-RJS, 2022 WL 17903397 (D. Utah Dec. 23, 2022).
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`(“Patent suits should not be used as a fishing expedition for hypothetical infringements or potential
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`settlement payments.”). Unexpected to Plaintiffs, Defendant and Third-Party Respondents in this
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`case insisted and succussed on the merits. See SFA Sys., LLC v. Newegg Inc., 793 F.3d 1344, 1350
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`(Fed. Cir. 2015) (“A pattern of litigation abuses characterized by the repeated filing of patent
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`infringement actions for the sole purpose of forcing settlements, with no intention of testing the
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`merits of one’s claims is relevant to a district court’s exceptional case determination under §
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`285.”).
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`2. Plaintiffs maintained this case in bad faith by intentionally multiplying and prolonging
`the proceedings
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`Plaintiffs’ refusal to settle or dismiss this lawsuit – even after receiving the Federal Court’s
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`determination and this Court’s summary judgment decision – strongly supports that they
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`maintained this litigation in bad faith. Gabriel Techs. Corp. v. Qualcomm Inc., 560 F. App’x 966,
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`972 (Fed. Cir. 2014); see also Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 687 F.3d 1300,
`
`1309 (Fed. Cir. 2012), vacated and remanded, 572 U.S. 559, 134 S. Ct. 1744, 188 L. Ed. 2d 829
`
`(2014) (explaining that subjective bad faith can be established by showing that the “lack of
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`8
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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 13 of 16 PageID #:18161
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`objective foundation for the claim was either known or so obvious that it should have been known
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`by the party asserting the claim”; Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314, 1327 (Fed. Cir.
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`2011) (affirming a trial court’s determination that a patentee “acted in bad faith by exploiting the
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`high cost to defend complex litigation to extract a nuisance value settlement” from the accused
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`infringers).
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`After the Federal Circuit vacated Plaintiffs’ preliminary injunction orders and found that
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`Plaintiffs have failed to show a likelihood of success of infringement as “[e]ven a cursory review
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`of the four accused products shows that they are different from each other, display features not
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`found in the asserted patents, and lack features shown in the asserted patents,” reasonable litigant
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`should consider of dismissing or settling this case. ABC Corp. I v. P’ship & Unincorporated
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`Associations Identified on Schedule “A”, 52 F.4th 934, 944 (Fed. Cir. 2022).
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`However, to everyone’s surprise, after receiving the Federal Circuit’s decisions, Plaintiffs
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`frivolously filed their third and renewed motion for temporary restraining order and preliminary
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`injunction without offering any new evidence or arguments. [Dkt. 592-596]. Instead, they
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`attempted to introduce a brand-new expert report to the Court after the closure of expert discovery.
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`Id. Moreover, despite that the Federal Circuit criticized the opinions of Plaintiffs’ expert, Paul
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`Hatch, because his analysis violated legal standard, Plaintiff continued to unreasonably rely on
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`Paul Hatch’s outdated opinions in seeking the renewed injunction relief. [Dkt. 626, p. 9]. Further,
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`after the Federal Circuit clearly pointed out that the previous preliminary injunctions do not meet
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`the specificity requirement of Rule 65(d), Plaintiffs blindly filed the renewed motion for
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`preliminary injunction against Third-Party Respondents for all of the “accused products” even
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`though some of the Third-Party Respondents did not sell all the alleged “accused products”. [Dkt.
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`588].
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`9
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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 14 of 16 PageID #:18162
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`Further, after Plaintiffs’ renewed motion for preliminary injunction was denied by this
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`Court, Plaintiffs filed a motion for return of bond even though the final determination on the merit
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`has not occurred in this case. [Dkt. 653, 654]. Plaintiffs’ motion for return of bond is premature
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`and frivolous since it is well established that a Rule 65.1 motion may not precede a final
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`determination on the merits. Wabash Publ’g Co. v. Flanagan, 89 C 1923, 1990 WL 19977, at *1
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`(N.D.Ill. Feb.27, 1990).
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`Moreover, this Court granted Defendant and Third-Party Respondents’ motion for
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`summary judgment of non-infringement and dismissed all of Plaintiffs’ claims as a reasonable jury
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`could find that the accused products are not substantially similar to the Patents-in-Suit. [Dkt.686].
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`The Court finds that Plaintiffs’ argument that an ordinary observer would pay little attention to the
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`small differences identified by the Defendant is “an unreasonable assessment of the similarities
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`and differences.” Id. at p.17. Plaintiffs’ positions regarding the prior art lacks footpads and
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`suggests closed fenders is “oddly,” and “this characterization cannot be correct” Id. at p. 19.
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`Any reasonable litigant would believe that this case lacks merits after the Federal Circuit
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`vacated the preliminary injunction orders by stating Plaintiffs have failed to show a likelihood of
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`success of infringement and this Court has already opined that “a reasonable jury could find that
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`the accused products are not substantially similar to the patents in suit, such that an ordinary
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`observer would not be deceived into believing that the accused products are the same as the
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`patented design.” [Dkt. 626, p. 34]. However, instead of settling this case in good faith and
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`dismissing all the claims, Plaintiffs chose to appeal the Court’s decision on non-infringement to
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`the Federal Circuit with the knowledge that the appeal lacks merit and will likely be unsuccessful.
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`[Dkt. 691].
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`10
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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 15 of 16 PageID #:18163
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`For the foregoing reasons, the Court should find Plaintiffs initiated and proceeded this
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`proceeding in bad faith. Consequently, Defendant and Third-Party Respondents are entitled to
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`damages above the posted bond amount.
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`IV. CONCLUSION
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`For the foregoing reasons, Defendant and Third-Party Respondents respectfully request the
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`Court grant their Motion for Damages and award them damages including prejudgment interest.
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`Date: 3/1/2024
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`11
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`/s/ Na Zhang
`Na Zhang, Esq.
`GLACIER LAW LLP
`506 Second Ave., Ste 1516
`Seattle, WA 98104
`queena.zhang@glacier.law
`206-397-8633
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`GLACIER LAW LLP
`41 Madison Avenue, Ste 2529
`New York, NY 10010
`Wei Wang, Esq.
`wei.wang@glacier.law
`332-777-7315
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`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
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`Attorneys for Defendant and
`Third-Party Respondents
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`Case: 1:20-cv-04806 Document #: 705 Filed: 03/01/24 Page 16 of 16 PageID #:18164
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on this March 1, 2024, I electronically filed the foregoing file
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`with the Clerk of Court using the CM/ECF system, and service was perfected on all counsel of
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`record and interested parties through this system, which will deliver a true and correct copy of the
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`foregoing documents via CM/ECF.
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`Date: 03/01/2024
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`/s/ Na Zhang
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`12
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