[00:00:00] Speaker 04:
Our next case for argument is 24-1081, Lou versus Hyper Bicycles.

[00:00:13] Speaker 03:
Good morning, Your Honors.

[00:00:15] Speaker 03:
Christopher Holtkis for Palm Fosh and Lou.

[00:00:18] Speaker 03:
We're here on a no-vote review of some of the judgment that was granted in

[00:00:32] Speaker 03:
design patents for motorbikes and speedbikes.

[00:00:40] Speaker 03:
The panel contends that during the summary judgment motion proceedings that the court failed to look at deposition testimony that was presented as well as statements in a counterclaim.

[00:00:59] Speaker 03:
Lou contends should have made summary judgment in the wrong way.

[00:01:03] Speaker 04:
Council, do you agree that the failure to include a response to the statement of undisputed material facts was an independent basis for the district court's summary judgment decision?

[00:01:14] Speaker 03:
I think from his memorandum and decision, Your Honor, he did mention that.

[00:01:17] Speaker 03:
I don't think that was the basis of his decision, though.

[00:01:21] Speaker 03:
I think when he was looking at it, he totally disregarded the record evidence

[00:01:31] Speaker 03:
And I think he didn't address at all, lose contention that statements in the counterclaim constituted an admission of issues of fact that should have precluded the issuance of summary judgment.

[00:01:55] Speaker 04:
Well, I mean, Council, on page four of his opinion,

[00:01:59] Speaker 04:
He says, I mean, you know, there are local rules that every court has, and that his court has a local rule that if you don't provide a counter statement of material fact, if you don't actually oppose the statement of material fact provided, that those facts may be deemed admitted for the purposes of the motion.

[00:02:18] Speaker 04:
And he says hyperstatement of material facts is dispositive of the issues raised in the summary judgment motion.

[00:02:25] Speaker 04:
It feels like a holding.

[00:02:26] Speaker 03:
Well, I understand that, Your Honor, but he did address the other issues that I... Yeah, then he goes on and says, even if this court were to consider the other issues.

[00:02:36] Speaker 04:
I mean, that's usually the language we use when we say moreover, right?

[00:02:40] Speaker 04:
Like, moreover.

[00:02:43] Speaker 03:
Undisturbed, Your Honor.

[00:02:45] Speaker 04:
Well, the problem is you didn't even appeal that issue in your blue brief, so you waived that issue.

[00:02:49] Speaker 04:
So if we construe his opinion as providing two completely independent reasons for coming out the way he did, and if on appeal you only addressed one of those reasons, then there's no relief that this court can afford you.

[00:03:06] Speaker 03:
Your Honor, I hope you can ignore that portion of the court's

[00:03:11] Speaker 02:
order and address the issues why would we do that I mean you didn't comply with the rules he said you didn't comply with the rules so their statement of facts are are deemed you know unopposed basically and on the unopposed facts you lose well I believe you honor I think even looking at those unopposed facts I believe I don't think that would be an

[00:03:51] Speaker 04:
Okay, do you want to address anything else?

[00:03:53] Speaker 03:
If you've had any other questions, Your Honor, I certainly will address them now.

[00:03:57] Speaker 04:
Thank you, Counsel.

[00:03:58] Speaker 04:
Let's hear from Mr. Ekhoff.

[00:04:08] Speaker 00:
Thank you, Your Honors, and good morning and may it please the Court.

[00:04:10] Speaker 00:
My name is Lawrence Ekhoff.

[00:04:12] Speaker 00:
I'm hearing on behalf of the appellee hyper bicycles.

[00:04:17] Speaker 00:
To address what the court indicated in response to Palin's argument, the district court absolutely ruled in favor of summary judgment on both the procedural grounds as well as the substantive basis.

[00:04:32] Speaker 01:
Do you agree that because those are alternative holdings and one,

[00:04:35] Speaker 01:
was an appeal that we have to affirm.

[00:04:38] Speaker 00:
Absolutely.

[00:04:38] Speaker 00:
And in fact, I think we even indicated in our respondent's brief that that was a basis for which this court could affirm.

[00:04:45] Speaker 00:
The statement of undisputed facts, which is in the beginning of Appendix 595, there are in that statement, I believe, over 49 separate

[00:05:00] Speaker 00:
And those are, one, there was no infringement.

[00:05:08] Speaker 00:
Two, there were no damages.

[00:05:10] Speaker 00:
Every single element and every single issue in this case was presented in that undisputed statement of material facts.

[00:05:17] Speaker 00:
None of them were contested.

[00:05:23] Speaker 00:
So what the record is before this court is all of those facts have been admitted.

[00:05:26] Speaker 00:
The Dish Court did go out to say that even if it were to ignore that, which it didn't, it said that that was an independent grounds, and it also was an independent grounds for this court to affirm, even on the substantive basis, the appellants still failed.

[00:05:42] Speaker 00:
The two arguments he raised were simply that of the testimony of Mr. Liu that he saw products being sold, and secondly, with respect to the counterclaim language.

[00:05:56] Speaker 00:
So I think neither of those issues, and those were addressed directly by the court, and the court did find that those were unpersuasive arguments, that there was no evidence of any infringement that was brought by the appellant

[00:06:11] Speaker 00:
No evidence was presented of any such infringement, and absolutely no evidence of damages.

[00:06:17] Speaker 00:
The appellant stands here before this court, as it did before the district court, wondering why.

[00:06:24] Speaker 00:
Why was it brought here?

[00:06:26] Speaker 00:
The lawsuit was filed three years.

[00:06:31] Speaker 00:
yet no discovery was conducted, no evidence, no subpoenas, no expert testimony, no expert damages, nothing was even presented to the court below.

[00:06:42] Speaker 00:
And this record, on a very scant record, as the district court experienced,

[00:06:46] Speaker 00:
It simply was an unpersuasive argument.

[00:06:49] Speaker 00:
We questioned why.

[00:06:50] Speaker 00:
We think this court should affirm that certainly the motion for summary judgment was properly granted.

[00:06:56] Speaker 00:
The court's reasoning was well-reasoned, and we ask this court to affirm the district court's ruling on granting of summary judgment.

[00:07:04] Speaker 04:
Okay, thank you, Mr. Yukoff.

[00:07:06] Speaker 04:
Thank you.

[00:07:06] Speaker 04:
Mr. Holquist, you have rebuttal time.

[00:07:13] Speaker 03:
Your Honor, I would rely on my brief.

[00:07:18] Speaker 03:
However, there's just one thing I want to clarify.

[00:07:23] Speaker 03:
The issue regarding the timing in the three years with nothing going on, that I think isn't accurate.

[00:07:34] Speaker 03:
There was a time where

[00:07:37] Speaker 03:
After the case was filed, after claims construction, there was a withdrawal of counsel, and it took some quite a long time for the appellee to get substitute counsel in there.

[00:07:50] Speaker 03:
So I just wanted to clarify that for the record, Your Honor.

[00:07:53] Speaker 04:
Okay.

[00:07:53] Speaker 04:
Thank you, counsel.

[00:07:54] Speaker 04:
We thank both counsels.

[00:07:55] Speaker 04:
This case is taken under submission.