highly factual intensive based on what was going on in the case workers that were in place and significantly orders that were not in place at the time certain briefing was required we believe that the court the district court below erred by not  months case where says reynolds it said that before the court is going to take the extreme step of dismissing a case that they should look at five factors and it's those five factors which besides you know reply brief to page seven which the district court did not do and so yes you are correct that it is up to the district court to determine whether there was a prime facie case and but there were laid that overlaying that for that standard which you thousand and nine there were numerous motions pending there were numerous times when the scheduling order in the briefing room were changed and then in addition the core paul to inch in june saying do you want to hearing to which i responded yes or are you going to file a brief to which i responded yes and no time did they say they didn't two days or three days or five days or ten days and then the paper going in within ten or twelve days after that defendant's invalidity arguments hinged on the opinions expressed by one individual who they held out as an expert and that individual was eventually depos court entered its order clearly showed the very person that they were relying on and this is what this is what we asked the time to prove eight wasn't an expert at all in this prior art and be a career in this art and second time we did do that and what they were well in the list of them if in fact we did because those are the things that we needed time to assess and then at that so we so we assessed those we took at deposition and then we was still pending and the fact that there were spurred their communication with the court giving us more time to file the brief for those two things and because the fifty six f motion was not decided until the cour e july seventeenth order and that we still after we had submitted our opposition brief and so and in the meantime deported had communicated with us saying do you want to hear which we said yes we never had we were never which to respond to clorox motion so even if it technically did not and specifically recite a specific factual allegations i think the court could have looked at it and deemed it as a request for an extension of time don't think it does in this case in the circumstances where there were a number of motions for summary judgment pending the this case was clearly contest of this wasn't as if the plaintiffs were just sitting around doing nothing between december and  there were some eighty three docket entries the parties will working and i'm not going to i'm not going to say that that these plaintiffs these two teachers have the resources of clorox and we were doing the best we could under the circumstances in the circumstances we had communication with the court and the court asked us are you do you want to hear it we said yes or are you going to file a brief we said yes and that brief was filed before any worker came out and we understood that to mean that there was not a hard and fast deadline for us to respond to that motion and that in light of having this further motion under rule fifty fift six fifty six f were whether it's construed as a motion for an extension of time those were time we filed and there and and the reason why in that context we believe that the proper authority is the air in the house case good afternoon your honors please the court my name is david wright of work when either you're on behalf of the police force company in this case and if i may in answering some of the questions that were posed to counsel for helen  e a citation to the court this is i believe in the briefs plus building and construction department versus rockwell that seven f third fourteen eighty seven that sets forth the standard of perhaps the appellate jurisdiction of motions for summary judgment and why it would not be tantamount to a terminating sanction case and to be sure there were think sions issued by the court in the decision with respect to the rule fifty six f motions there were some minimal attorneys fees that required paid but the essence was there was a grant of summary judgment now what is the effect of that this court has a clear path under a state over review to consider the record and the read case clearly sets forth what the procedural context of that review would be in really involved in the things turned around you know i don't believe so your honor i don't believe so i think that was just in the context of a court below the attorney's fees sinks in went to the filing of the abuse that was found by the court to be in connection with the filing of the second fifty six death motion so they answer to your honest question there  their district court judge i think that that is an option that certainly is within this court's appellate review discretion but i ask what clorox is urging this court to do is to review the meat factor analysis of what it was not done however i don't think that the issue in connection with a question it really is an issue of procedural law it's one really what is within this review jurisdiction and discretion to do and this court has stated for example in the glaxo case one fifty three after thirteen sixty six and thirteen seventy two and i'll quote when a matter comes in my way of thinking i don't think it's really a difference in what we're seeking in our what judge moore had suggested in the question and that is and but really the issue is what's based on the procedure of what is  the status of the contested facts and in this case under the read case they are not contested so you take the record as submitted by clorox to determine whether or not you prima facia case has been set and that's what we have attempted to do your honor in that certainly is is it would support what we're asking i mean we've taken into account even the submission late submission of the appellant and have taken that into account in considering a motion for summ citation the record for that eighty seven fifty and that was a fifty six if that was submitted on february twenty third which you did have complied with the requirement of the nafta david under the fifty six so you did have that advantage but what where that was deficient was and it certainly state of these eighteen issues but what they were if you look at our motion for summary judgment we're simply stating our statements of uncontrovers believe judge been since decision in that regard is correct certainly identified some facts but it didn't explain how if they were able to obtain those facts from dr retell how they would affect whether or not there were genuine issues of material  to state for example there is one prior art reference that uses the phrase total korea and their expert has submitted at some point a declaration that states that means according to an atheist him standard which we don't think applies there is a standard and they want to argue from it that total chlorine has to be you have to modify the parts per million according to the s t m standards so in that case there is a factual dispute as to what total  the answer to those questions during well i think one only needs to read the prior art references that were submitted to find out whether or not what we said was in the prior statement was said so for example that there's no dispute as to whether or not the prior references teach that and what the fifty six f motion did was it simply asked do these references teach that one would need to only go to the reference to find out  you know i don't i think it is your honor in the same information that really is included with the opposition that was late filed and to answer your question on whether or not it brings into dispute the issue in a rule fifty six motion is whether or not there are genuine disputes as to material issues of and i can tell you with respect to prior art references that clearly teach raying a range of h in even the range that they suggest ought to apply to the claims there is no dispute as to that even with respect to dr nevers and that was that the point we were trying to make in our in our brief there are five references that even if you position is no reasons were stated and therefore it's entirely rodimus because it didn't state the reasons for saying whether in fact there was a prime fish a case or not and further to our to the points made with respect motion and then we decided to do it in our will fifty six f motion so the point is those issues were before the court there were issues of fact that had been presented to the court the court didn't even mention them under the either the reed standard to meet standard at work under the aaron high standard and so our position is that at a minimum the court's july seventeenth two thousand and nine order