benson made short in a lot of his rulings and that's in part why we're here today obviously the substance of our claims and the evidence we presented we believe required for her so in light of the substance of judgments and the first error that we've asserted than there are many errors the procedural history of the case is long but the first error was denying reveres rule fifty six requests for discovery necessary to oppose the early s opportunity to supplement the record yes for sure in most cases as the normal course is as this court where you start scary you trade that exchange documents once you get your document discovery then you take your depositions it would be bordering on a practice for an attorney to start taking depositions before he's confident that the other side has produced all of its key documents in this case the key documents to use in opposing summary judgment didn't come in till october twenty fourteen hundred time of the ruling the discovery was complete by the time of the ruling yes but the whole purpose of rule fifty six d is to put the brakes on the briefing and discovery because in order to oppose summary judgment you have to get your after the ruling but you didn't file any supplemental brief based on the additional material that you had developed in discovering between the time of the hearing on the summary judgment motion and the decision that was have the votes yet i don't know how much more specific you could be but it was eight pages and the judge basically just said no it's not enough so we're going to night of all fifty six motions and we assert that was erroneous an abuse of discretion the second why in bits of the government hydro presents their product while not complying with the governmental requirements for a bit by explaining why it meets the particular requirements for the they i find your misrepresentation quite baffling it almost seems like they're making a bit protests in the guise of the state law this representation my reading of the record is they told the government exactly what their product was and then it was up to the very familiar with the myth that protests and government contracting works and if the government thought that their bid was noncompliant that it would have rejected it and if you thought it was noncompliant  a material fact that they actually made in this research representation you think they didn't comply but that's a different question isn't it no i don't think so i think you're going to break to me what you thought is a misrepresentation of their product the government will be installed i don't care what the government is requirements are point to me where they said something about their product that is not true about their product well in front of in fact they they signed their bit which under the so your answer is you don't have a specific allegation that they made a specific misrepresentation and about their product to the government the your misrepresentation is that they misrepresentation is that saying something something in a way that's clever that in context is a natural about their statement that they have stainless steel components they don't have the components as stainless steel but see your problem you have many hops here but your problem here is that with the least the first contract the government said this is comply with the solicitation so you have a situation in which the party to whom the alleged misrepresentation was made says not what was in the misrepresentation of the homeless when it wasn't complied with the spencer vision what katie says under those circumstances and some third issue a ruling on those i don't know that that's right for you here certainly new arguments on appeal are not something i'm prepared to deal with but that wasn't the issue below the issue below which the judge denying scott read and then ruling on even on the evidence that we had presented which didn't include the real evidence and we got subsequently that we've presented in the reconsideration well so in the no evidence is there any other evidence of misrepresentation beyond your belief that they some help bamboo government yes what is deposition testimony what does it say i ask you what were the misrepresentations about their product and the only one you said was they misrepresented that they had seen the still filters you have something beyond that doesn't doesn't comply with the business because we're not here to address whether it comply with the government specifications or not the government agreed it dead if you wanted to challenge that your avenue for challenge was a bit protests at the g a o or at the  federal claims those are other avenues ike can't imagine it just record is going to allow a collateral attack on a government procurement through a state law misrepresentation client collateral task for the government procurement since you have still haven't pointed to any specific misrepresentations they made about their products rather than compliance with the government specifications well i think all of the key government awarded the contract to a misrepresentation claim because they didn't make any misrepresentations about the contents of their products and you haven't pointed me to a specific single misrepresentation about their products but keep pointing me back to the it was probably low it was that there's no evidence to support misrepresentations we presented our evidence we asked the court for time to conduct discovery the court denied both and that's why we're here so i'll move on to the next to do which latches which i think clearly needs to be reversed only if we are and there are problems with the non inference that i think right because he just is watches to bar remedy but if we agree that there is no infringement here then it doesn't really matter lots of discretion when a party to a defendant final summary judgment motions in july well tucker fester pending and then ten thousand pages of documents show up not mid october the discovery cut off of december first  even wide discretion should not allow a court to tonight extension discovery while the plaintiff is reviewing ten thousand plus pages of documents figuring out what the physicians need to take their on which by the way are the key documents we did it but we didn't do it by december first and the fact the matter is that defendant himself defended itself needed more time for discovery but in order to keep our feet to the far wanted to result yes but there are five terms that we've raised on this appeal to they've included in their in their open posing briefs we think basically the court misinterpreted in the use of intrinsic evidence important missions into the claims from the specification the court the only two issues are the media great and evacuation and those of the only things that briefly the fact is although they felt the motion for summary judgment was prematurely filed it certainly wasn't prematurely cram their fifty sixty motion said give us more time they were given an additional six months before the motions granted and in that entire time they never sought to supplement the record they had opportunity and in fact during the summary judgment hearing judge benson said i'm willing to let you go beyond this motion tell me what your evidence is this was in november there are fifty sixty motions filed in july and then november he said go be on the motion do it every need you tell me what you have and their response you were do i find that in the record that is found it appendix forty seven sixty three i believe that was funny i want to double check that it's actually forty seven eighty one and expect forty seven eighty one the court says w the court says at the bottom line twenty four it is not that hard i am willing to let it go past this motion and especially since they are not raising the standing issue but if you can show me where you have some basis to allege that they told the this and they didn't do what they said they were due and mr watkins response was at that point he says well what i have is in the record this is november now after this there were more depositions taken and mr watt and did not try to supplement the record between the depositions in december and the court's ruling there was an entire month that does  misrepresentation claims and with no known third party discovery they were seeking was just some third parties that have to do with some infringement claims but that was not during the hearing on their motion to extend the deadline they represented in open court we have everything we need from hydro we need no more discovery directly from the defendant that was nov thirteenth we have everything we need from them we just need third party stuff but then they serve their first deposition beyond the misrepresentation claim out there's a few things i want to point out with regard to the pantheon for claims first on the seven seven four patent the undisputed facts are that hydro hydro pad with the with the conveyor in it we have the components that would apply to what their pack calls and exactly waiter are at one end of th side trough and the components for the elevator at the opposite end that's an undisputed fact about our configuration the other indisputable fact about our product is the wire stream which would in their pack be called the debris collector is inside the site truck and the pump is outside those are the undisputed facts with those facts there are three independent bases you can affirm judgment of not infringement for the seven seven for patent the first basis is easy it's affirming the claim construction of evacuation and and we've put forth the intrinsic record on that that the second basis is one that they have never opposed or disputed whether either below or even here and that is the disclaimer argument about the evacuated during prosecution they distinguished hydros own prior art and said to have been evacuated has to be a separate component meaning the debris collector and the fluid move them all those components have to be separate from the side trough they can't be in the side trough the way it was in hybrids prior art well our product has one of those component drive so they do not have a complete evacuated are outside the side that's not infringement as a matter of law and i want to point something out in their reply brief on page nine there's a  reply brief where they address this argument for the first time in the case but they dress passingly and they claim that we never raise this alone they say despite not being raised below this argument doesn't it was raised below it was raised below in our summary judgment motion and we devoted five pages of argument to this disclaimer argument and they never rebut it in their opposition and in appendix forty four twelve through seventeen that's where you can find where we raise this argument and i think that's an independent reason to find out infringement of the some some form patent another or another independent reason would be to just look at the claim language at the end of the seven seven four patent claim which states it explains how the conveyor moves the debris in liquid to the evacuated or and then t the debris is lifted from the evacuated you can't satisfy that claim with which if the elevator is not the same and as the a vacuum there's three independent ways you can affirm not infringe on the seven some four pa moving to the two ninety eight patch the term great if you look at the intrinsic record it's clear that a great is a porous service that allows the water debris to flow through your washing these cars on these big steel pads and back in the ninety's the way they built these the common way it was you had a great and everything would fall straight through it and you had a base and need to clean it out you you couldn't be washing anything you have to take the car off you have to lift up the grate and clean it out that's the way they were done and that's the that's what their pattern applies to hydro in the early two thousand changed their design and went to an imperious top they wanted to be able to clean outside trough even when they're washing cars even when there's a car on the pad you can go to the side drive and shovel out the dirt and so they've got a pat down there impervious topside gutter orrible  tribunal that's evaluated and compared these patents has concluded that hydros impervious top is different than reviewers great a great is porous it allows things to fall through it that's evident in the claim specification says multiple times the great has openings in a sufficient to allow water and debris to flow through it there is no intrinsic evidence that revere the pla their construction of grey they only cite two online advertisements for the george foreman which have no application to this industry whatsoever and under the doct cited in our brief is directly on point in interpreting this type of cloak pat presented was one sentence that was conclusory in nature from their expert they had an expert declaration that said and i find that this that the way they do that they're impervious to accomplishes the same you know task in the same way to get the same result period that's never enough to avoid summary judgment one sentence in conclusory fashion from an expert based upon based upon the findings of the district court in the record before this court we find it clear that there is no infringement of the two ninety eight patent there's no infringement of seven some for patent and there is no basis to allege false advertising or misrepresentation with regard to the government contracting situation and our our contentious were little infringement they presented their intentions you get a clean detraction now you sit back every local saying including utah and the cases support our position now you ask the court wait a minute your claim to church in court is very different from what we so let's take a step back and see if we still have a case here and if we need to amend our contentions you know it addresses dr equivalence which we indicated we would do way back when in the initial and the final project intentions then the court should cases clearly favors us in terms of his claim destruction are going to great he talks about the hydro system and the subsequent systems they've got a patent on the system that's fine our patent is earlier a subsequent patent on a new design doesn't mean that of how great doesn't have to always look like a crosshatch thing that you have on your basic weber grill that you find other than a department store a great is also what the george foreman grill looks like which is exactly what the cues from the product is so that affects a great length construction