appeal here that same motion was filed back in october of last year and was denied any court has reviewed the motion we deny it for the same reasons as it was benign by the motions panel and most importantly because there was no monetary sanction entered against mr brewer and therefore has no standing to appeal and so we will deny that motion so that that technical problem that technicality is taken care of before we start this argument and i know that mr boot is not here i was going to tell him he could not be but we don't need to address that question all right but there are people who can ar again right here if i can get through we had four points i'd really like to try to address two and three if i can with my time which relates to the damages order and then point four as to the contempt order and as it would relate to the damages order essentially what this came we can get to on the jurisdictional issue but i like to focus on at least the content of this damages order as relates to rule fifty five dollars really subsection c and the court under that says made under fifty five dollars conduct hearings in order the judgment and it needs to conduct an accounting to determine damages establish truth of allegations or evidence and investigate any other matter and so essentially what we had from the court when we look at this order is really a misapplication the court states in plain terms that it's not reading fifty five to engage in the judicial labor necessary to sustain a proper damages order the court states it was out of healing and calculation of damages are you well i'm appealing the that damages order in total because there was nothing done as far as the judicial labor necessary under fifty five dollars to make a determination saying the court had no authority to enter a states it was robbed of the opportunity are trying to relive again the merits of the default charge of not not not not no sir i'm not your arm and i don't think that's it at all so the concept of the determination to state that we're trying to relay to gate the merits of the default  the purpose of fifty five c is to protect the sanctity of the court to not permit for when there's a default and let's call it what it is because the court upheld it sanction against my client for conduct in litigation that sanction does not permit for the court to damages correct that the sanction is so the sanctions judgment would necessarily get to that point that's the jurisdictional argument within the st section regardless it was on appeal then based upon the default judgment the court now has to make a determination as to what or how what to hire him but right and how because we're dealing with two different things so the court has stated what your honor as they were tempting to relive again something and so we're not attempting to relive m trying to point out your honor is that whether default is entered as a matter of sanctions or the default is entered as a matter of failing to plea a default there's a default now we have to determine from that default on what are we going to impose damages we don't just take the complaint to say yes you do i mean i don't understand that you you have to you do have to determine what the dollar figure is which i don't understand you to have disputed default you have infringed with these products these particular claims and respect for your honor i would disagree because of the ryan case in the thompson case which was cited within the ryan case ryan case is the court must determine the well played allegations that support the relief so even a part of the fault of the allegation is not well played it doesn't provide for relief you could provide for sanctions sanctions can be different than the relief in the complaint so the court can say i impose sanctions against you for the violation of your behavior the court cannot say because of the sanctions i'm going to allow this to be valid patent when it is that there is no rule that permits for that type of sanction in fact the thomson case says the opposite i've never understood what you're talking about a default judgment on a default judgment yes or no if the pleading says this is a valid patent and it's infringed by these two products and the court enters the judgment that's the end of the liability it not entirely your honor no and i respectfully disagree because if the complaint states it and just because the default is entered the damages that stem from that the fault still  default well that's that's one item under fifty five dollars so your honor talking about conducting an accounting number to determine damages but there's also three in four under fifty five see that we can't just overlook we can't just say establish truth of the allegation of evidence so if we could say oh you can so now that's over why i don't know what's left well then to try to figure out what what needs more need to be done for the damages order and just calculate up all of the end fringing enforcer from what i think what your honor has just said that gets the point for on the contempt is that well all all that so all the reading that i guess that's i'm trying to figure out so is your argument is kind of the same theme that runs the refute different points  your theme is that oh when the judge said you can force your products we didn't know which can force your products it could have been this kind of force the product or that kind of enforcer product and the district court in damages order said it's all in force your products there was no limitation to one type of the force of product over another and that's why the judge held you in contempt when you went ahead and comports the products after the junction order with the ship and if i could maybe point the court's attention to review the e plus case because i think the a plus case in some respects provide some support as to what i'm suggesting to the court of that stems from not protecting fazer not protecting a defaulting litigant it protects the court from a gauging in permitting for something to sanction those otherwise not sanctionable and so essentially i understand the court during the meaning of various limitations of claim thirteen now we're trying to look at on its face is the border clear and and i think there's a pretty strong argument that it is clear that you're not left to decide which enforce are products of creators is part of the order it's all over because there's no restriction on the types of enforcers you're selling that have been enjoying and would that not  within the complaint as a matter of law and the damages can be assessed against it that the actual damages be assessed against if it's not sustainable that it's inappropriate under fifty five c in your honor i agree with you that i'm asking the court to engage in further judicial thought was of a value it's it protects the court from engaging in becoming an arm the sensually from an otherwise not well pled complaint as a result of a default becoming an arm of enforcing something that's otherwise not enforceable as a matter of law as a result of a sanction of the fault whether you answered or didn't answer and that's why the court has the power and always has had the power not only to engage in further judicial labor to determine what is appropriate in that complaint despite the default but what is appropriate and then appropriate as far as the damages go in further exacerbated by the fact that here we're dealing with validity of patents which is strictly a matter of law and so there is no case it ever says that the conclusions of l complaint are always found they are not the conclusions of law the court does not have to accept even a part of the fault validity is a conclusion of law so i'm not arguing to this court to say that i'm now saying that phase or another defaulting litigant even through sanctions should have the right or have another bite at the apple not what i'm saying what i'm saying is the whole purpose of fifty five dollars c in the case law cited in our briefs is that it protects the judicial process it does not permit for the court to become an arm and i think what we could see from this case was we are saying that by protecting the judicial process the court star oh you know to follow essentially is meaningless except i mean because you're saying that he's going to undertake a full hearing on the libby on which products in friends and on damages right i think the damages book somewhat easily calculate a bill i think the issue is on libby essentially relating to what was claimed in the complaint versus what's being defaulted so since there are no answers there is no defenses the defenses are not defenses to the judgment the judgment is present the defenses are simply to what is this appropriate amount of that judgment and if there are further sanctions and serry the sanctions don't necessarily have to stem from the face of the point of the sanctions can be anything off  are violating under this disorder whether that there was a valid patent because it was raised stating to the court because we know from the e plus case in the other cases if the patents invalid you can't impose sanctions or the judge could at any time and you could skip the case of let me give you a hypothetical so i file a lawsuit and i say that you know i think you make allegations regarding the fact that that you hit me with your car the hitting with the car if stated in that manner i could not disagree with however if you said upon information and belief as taser did you hit me with the car then yes because now it's an unfounded allegation there has to be determination turned determination made upon what information and belief and there's a recitation within that complaint upon information and belief and it goes on and on and on so question that the question then becomes what is the effect of the default judgment on your you're out of time give you one minute a rebuttal thank you awaiting the setting of oral arguments so that's  well fifty five is not mandatory with the court it is discretionary and critically here fazer never requested the district court to hold a rule fifty five hearing and in the prior deal in this matter where they should have appropriately raised that issue if they were going to raise it at all because it really goes to what's the scope of the injunction and they didn't do so until the reply default order that this court has affirmed already awarded damages and as noted in that decision that was not appealed in the in the st appeal and so only the accounting was left and on the damages orders here is should be strictly limited to those accounting questions which as your honor has pointed out they have not challenged it all on appeal there is absolutely no challenge to the court's factual findings injunction and i think it's important to point out here going back to those arguments relating to the amended complaint well fitted facts in the complaint the amended complaint expressly alleged that phaser in force or w's including nonvolatile memory that stores firing data and that that they that includes the required time required stamps for the trigger operation of the weapon and that that infringes really open that here i think it's important to note that claim thirteen of the patent says absolutely nothing about a date court that word is nowhere found in the claim or in the patent this is really a manufactured issue after the fact well the claim thirteen requires is a microprocessor that simply program to track the time of this electrical stimulus from though weapon and so there's no data port requirement there you know whatsoever the the courts specifically found in at the contempt hearing and on the damages order as well that there's no ambiguity here in the courts injunction order  purported owner of fraser electronics that this was something that was never a distinguished at all during the course of the litigation they never produced any technical documents they never attended depositions they didn't attend the court ordered technical technology to tauriel conference in which these weapons were examined deployed disassembled in everything for the courts advocation and so they have never before the sanctions order every challenge that there was an enforcer e w that in fact had some kind of different functionality and when you look at the attachments to the complaint which include that the manuals that are available on line various snapshots and things from their technical specifications and from the website never was there any distinction somehow and of weapon of the same name had some kind of different functionality which quite frankly is is really absurd in the context of law enforcement sales which is the target audience here because law enforcement agencies require as a specification that you have to have this time stamp recording of the weapon so that they can both protect themselves for use of force excessive use of force type claims and also so that they can hold their officers accountable and so there never was a distinction the court appropriately said you're trying to read in the merits of this which has been concluded on default and i'm not going to consider it and you don't get to on contempt you don't get to unilaterally without ever filing the motion to clarify or modify the injunction violate it and then come in here later and contend that you know somehow their scope is different and this court in their tivo decision you know specifically talks about that the time to address these issues is at th time of the direct appeal of the injunction which has passed they didn't they did not raise it there and so it's wait here so unless the court hasn't for the question that's really one of them you know thank you thank you going into action well absolutely there was a response that was filed to the damages order i mean filing the object timely objection to it or timely appeal still preserves their rights we filed a timely pills and in the damages order argument that we had here correct never in your brief on appeal did you argue that the court had some procedural obligation to conduct a hearing or me finds in fact i believe we did have that in the brief but it was inappropriate because the order was entered subsequent to the briefs filing on the sanctions water and was preserved within the argument here so both for the damages if it satisfied that what it has been doing has been turned through changing circumstances into an instrument of the fact that the district court has a right to do that doesn't mean that the vista court and obligation to do that correct depending on the totality of the circumstances your honor i cannot get around the fact that it says may however when you look at their lying case you look at the plus case you look at the green ink whose case which essentially suggests that the defaulted  enjoined defendant has a right to know specifically what this is so it can design around it so the court process to an informational and then release complete or friends here own representative testified that he knew it was he he knew exactly what was covered by things what the injunction says it covers all fazer enforcers which don't violate upon information in believe in the complaint don't violate the believe there's substantial case law that supports that position because the court should not become a hammer for those that have the ability to exercise the judicial process will mean to just show up in this case i wish i was representing them then your honor show up we can answer the complaint we can't respond to court orders because we're going bankrupt bankrupt because of the resolution for the default you're correct your honor i think your honor and or your all of your honors are touching on one of the things that's quite important is the cost of litigation so you have publicly traded competitor in the marketplace come in on a ok played complaint smash a minor competitor with discovery the minor competitor now can't defend  discovery when you never even answered the complaint or never responded to even the st discovery there was a motion to dismiss and there were thousands of pages of discovery or so i guess i have to disagree that there was a motion to dismiss pending at the time of the sanctions were entered and there was thousands of pages of discovery produced so essentially you're out of time thank you thank you