The element-by-element approach to claim construction proposed by defendant, while perhaps not specifically proscribed, invites the kind of myopic, restrictive approach to the infringement analysis which the Federal Circuit has found to be “untethered from the ordinary observer inquiry” and therefore error. Ethicon, 796 F.3d at 1335 (citing Amini Innovation Corp. v. Anthony Cal., Inc., 439 F.3d 1365 (Fed Cir. 2006) ). See Egyptian Goddess, 543 F.3d at 680 (admonishing district courts to “recognize the risk” of a verbal description that may place undue emphasis on certain features in lieu of the design as a whole”). This case arises out of the alleged infringement by the defendant Hyper Bicycles (“Hyper” or “the defendant”) of two design patents held by the plaintiff, Fa-Hsing Lu (“the plaintiff”).
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Claim construction proceeds differently with respect to design patents. Design patents are typically claimed as shown in drawings, and claim hyper bicycles construction is adapted accordingly. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 679 (Fed. Cir. 2008) (citation omitted).
Defendant argues for a verbal construction but plaintiff contends that illustrations will suffice. “To be back with Hyper is a great opportunity that I’m very excited about to, say the least,”said E.C.. “To be handed the keys to the castle with the task of building a high end line of mountain bikes for the Hyper brand is both a big responsibility and honor. I will still be on the bike at all scheduled events but my role will be more directed toward educating riders about our products and growing the brand at a grass roots level, rather than focusing solely on results”.
On October 20, 2021, the Court held a Markman hearing with respect to the claim construction to be applied to the design patents. The ‘842 and ’642 patents are both design patents hyper mountain bike which pertain to bicycles and, in particular, the ornamental design of two bicycles. The patents claim the design shown in their respective figures one through seven.