five minutes for a revote we're here on appeal on a complex case it was dismissed on a motion to dismiss without a single opportunity to amend and you asked us to amend in analyze it anyway i did i don't believe so i think he focused on the patent analysis which you know that there is a closer call but to not have a say what the men the complaint would look like if you have it the arguments that you state what and what the additional allegations would be your honor i had no idea that he was going to grant the entire thing  really think it should have been granted we have here a two person son and father company inventor spent twelve years researching and developing as a product group just help me out to understand this is a matter of whether you asked for  standard is that that leaves two men is given at least once i mean i've been practicing for fourteen years i've never seen a case where there is not clear futility and there's there's not leave given to  case this complex i during the great recession i represented a lot of big banks and there was a lot of wrongful foreclosure actions for instance filed that were completely frivolous on their face and sometimes very rarely judges would dismiss them outright and it made sense because they were so frivolous but what is this is what is the remedy that your seeking from us with regard to this leave to him that that's just it just leave to and because i do get my foot why should we greatly the leap to amend when there it could be the arguments futile i mean for example the doctor equivalence it's not apparent to me how you could overcome the defect on the patent claim that exists so given that it may well be futile and that no judge below has considered that in the st instance why wouldn't i why why would the appropriate belief be to vacate and remain and for a judge to actually considerate an articulate reasons and bases if they're not going to allow them to amend because you're on a judge reality ruling did say several time some guidance in there that we could amend to provide a lot more detail will like the review but you let a district court judge decide that the st instance why should i decide in the st instance whether you can provide enough detail or not like for example in your brief you haven't told me what the trade secret is you allege they still you know if you haven't you actually haven't given me any reason in your brief to think that you can overcome the problems in your complaint you allege that you can but it's not most of the time when i see something like this what i get is if we were permitted to leave to amend we would assert the following i say yeah that would solve the problem and i can see why so why would i as an appellate court order the lower court to grant me leave to amend when you haven't actually told me how you're going to overcome any of the problems or respectfully disagree on on page forty six of the respondents brief they cite to what's in the nondisclosure agreement as did exactly we were prohibited from even reverse engineering this under that under the nondisclosure agreement so we have put that in our brief and maybe we didn't provide enough detail in in our complaint it was deficient you're on drugs reales been reversed on this exact round a few times so i think it's just i think it's really not well he may have got a right this time around because you're you rule on that if if you have not provided the a proposal amended complaint the nd the many complaints or any other type of factual allegations that you would include and amend the complaint there's nothing there so what what we're left with is a question where the judge well abuses discretion at that point in time and that's a pretty high standard that is a high standard your honor but i do believe that as i said he's been he's been reversed on this before we've cited cases that say that there's a liberal standard with regard to providing leave to amend and i think that this case again where my client spent twelve years researching and developing the product a year and a to us whether the court of the law understood that you had made this additional requests because right now as i looked at that dismissal opinion it's completely silent as to this possible question of leave to read and so we would therefore give the lower court the st crack at addressing whether or not you know that's an appropriate thing to do given the content of what you said in your was just that my client's been through so much to have this to obtain this patent and to have it dismissed into seven months of litigation at the negotiating two years of the glory out after a year and a half of having  here sure your honour's l'oreal is a huge conglomerate everyone knows them the big lies in the industry to say they make no money out of california which standing on its own is one of the largest economies in the don't other than sales in california what are the context they d have that i'm not sure on and that's why we're asking for discovery to be taken in that regard what do they have there how much from sales i do they have any employees that work in both capacities work for the parent company that is its general jurisdiction argument and also their specific jurisdiction at issue two because the paris executives did directly speak to my my clients and did request samples from them and we would need discovering orders to determine just how involved they were if they were very involved in these decisions then of course but the interest to keep i'm just trying to understand the logistics of that or it could issue it or order at that stage i think i agree but the reason that it's interesting to us i think is that the dish court cites the local  here's the thing that i find interesting when did that occur from a tiny perspective it was a few months after the newness of appeal was filed or after your read bree it was after that you couldn't make this argument your  p we didn't make the argument that this wasn't a formal motion to amend and therefore should be rejected you made the argument only that it was futile that's my understand of that is correct i am totally oh you you never made the argument on appeal that there was a problem with the form or the presentation of that request you know and as we were just discussing that would be discretionary call you on it whether to reach this this this practical point there was a local rules in the central the state of california that expressly provide that if you a footnote is not good enough you have to put you have to file a motion you have to give the amended complaint which is just another way of getting a point you know that we need to know what they want to add they've had an appellate brief i mean the problem is when you're saying it's my discretion i've never even seen any of what you're talking about i have no idea with a local will say i don't have a copy of them i have no idea there's no how would i possibly decide that i mean i feel like the best you could possibly expect from me is just like i offered him just a baking room in this and let the northern district of the briefs does not include additional any additional information that they would have used to suggest you think that i should decide i mean i don't know i guess i just see my own personal authority is a lot less than what other people see it as you know you think i should decide in the  i'm not celebrating you know but if we if our product is not covered by the patent claims the traits you conversation has no quote independent economic value for us how could i make that decision because of what they've said you are they have described those conversations at five five and five or six of the declaration about their product if those conversations are about their product it's nothing they can say will suggest any independent economic value for l'oreal it's different products go through the problem here is that we so we can decide that issue in the st instance perhaps we could but the question is whether we should in in this particular case so you could and the reason for you should is they have been given several opportunities to make the motion and to explain to the court why this is a good use of judicial resources they're not they're still have not said anything or never addressed this particular issue because they were not the court was not properly asked and i don't want to create a sort of sandbagging fifteen and he proposed amending pleading must be filed as an attachment to the related motion local rule seven quote may decline to consider a motion if no leave the practice in this court is if you want an amended complaint you file it makes so much sense that you know what you just said is that the court may decline to consider that means the court has the discretion to consider it even if it's not filed in properly as a separate motion and the district court here where we started around declines to consider well the district relatively little briefing right i mean all are suggesting as you go back and in that maybe there's not even a need for new for anything that's kind of up to the district court judge but maybe they just record just say no i'm not giving you a briefing you didn't do a sufficient job this is over and you don't have to do hardly anything at all we have at that moment and we have and the trade secret claims at the declaration makes clear is about that product we don't make that product so we have to know it was claimed along with a party that several times has not complied with that we've got they're also making arguments that there's t have a whole yes but a trade secret i could be conveying to you some aspect it doesn't have to be the whole claimed invention that you that copy but real it's in there and their body of quote interest in the office we do sir in the prototype that you don't infringe their patent if their prototype is the same as the coins their patent but trade secret information can be less than for example maybe the trade secret information is something less than what is covered by all the claims in the patent and i don't mean to collapse it to your hon totally for sure but we definitely about you know the sample it was about their ideas or this product is it's not our product it's really anything else that you'd like to see i think we have your argument thank you all right thanks to a little bit about all time career also in state court and i want to say i'm exclusively practicing there but we're talking about dozens of cases and i've never seen a determination of an action with a granting of a motion to dismiss completely that said to me this case is over go file your appeal ok and our opposition we clearly ask you to amend in that is the accepted practice in the central district who local rule fifteen relates to motions to amend after the motions to dismiss states i believe more so than then filing a it doesn't really make sense to fall in opposition to a motion to meet you may win and yet show so much fear that you're also filing a motion to amend at the same time that that is not the standard i've literally never done it a practice that plain grom case please file a motion to amend along with it i've never seen that before and appendix four so you see where there's at the commission of the entire action i think shows that even if i even if i to trade secrets for instance all related to the prototype that's not true we cite on page fifty seven dollars of our brief that that the inventor of this product who did the trial and error that the certainly trade secret information right there what works what doesn't work the talked about the viscosity of the liquids what kind of syringe works better a larger opening for thicker liquid the best in los angeles which is a very competitive market and he invented this product and he really understands why it's important so we're not saying a syringe is new we're not saying that bottles are new we're saying this process is new and l'oreal's been around for a one hundred and seven years they've never used in or fish producer in combination with a syringe in combination with bottles they used tubes they used no syringe they use a syringe at times but they never combined three and that is what the u s p t o found novel and that is what they reverse engineer in violation of th references being self posing but during that meeting my clients discussed with l'oreal how that might not be a cost effective approach because that was an expensive  reduce or was expensive to create and so there they thought ok maybe what if we just left a hole in my client's responded well for something that doesn't have a money and rock side that's actually find it reduces the airflow enough that it won't dry