by talking about the trial court's error and granting summary judgment of not infringement with absolutely no discovery in the case of this court noted in bank work and this can be found in some great discussions in our  the purchase already there as well that certainly is what mr fleming and jump rope would like you to believe your honor however that's simply not accurate and that's precisely what mr gardner said and if you look at the record of fred novo you will see that mr gardner was clearly someone who should have known precisely what the jump rope system offered with that particular feature because of two things one he was indeed he had devoted an entire life precisely this type of management line management restaurant management club management and as he stated he had personal and intimate knowledge of the jump rope system is that because the you did that is because they were trying to sell it to him if and because he used it i don't know whether or not to use it i will defer not on the declaration right if it is not a declaration and he did not miss it when you're if you're running discovery my recollection is there was a motion to complained that smart options was not in compliance with the local rules smart options complied with local rule fifty six point one by pointing out specific facts and admissible evidence that showed that genuine introduce remains regarding jump is not a case where we were asking judge think need to be an archaeologist quite the contrary we supplied a concise two and a half or three page declaration we cited to it specifically in response to the statement of facts under the local fifty six point one rules and our view was that she clearly error by totally discarding that fact and lay opinion testimony if you want to address absolutely wrong or if in our view there's no question that an adequate pre filing investigation was done this case is infinitely closer to q pharma than any of the other two cases you engineering or it's i don't know  and in both of you engineering and shooting there was only reliance on hearsay and a client's belief in q four on there was reliance on affirmative statements from the defendant the alleged infringer to close the ports may be a failure to purchase a jumper is problematic not that you could have downloaded the free application complaint right but we stood by the fact that the terms of use published by john breaux conceded to have been published by john for their unequivocal statements in those terms of use that are in all capital show up until the river level she's that's correct because we relied on the library at the same information you you were making the allegation the same information that under why is your contention on the what would have been the jury and she was in fact and that's why she said i'm going to take all of your adversaries statements and fantasies true i don't believe that there's a linkage i could be wrong to of her but i don't believe is a linkage between the terms of use and because we had a live witness who had actually been sold or attempted to been sold on the product for the specific use the specific feature and at two of the three clubs he specifically knew and so is that is in large part correct based on his experience of many many years in the business but please understand jump rope is not i b m jumper of which three people jump rope with a start there's no question that the people who  jump to the front of the mind but then once you get to the final and then there's the second step which is you have to pay the cover charge separately is that your basic theory it's not just our theory judge chan it's precisely what the terms of you say now has anybody either you or anyone on your team actually tried to use the jump rope to see how it works yes and now it has changed in jumper a president made that change when did someone on your team actually find something using jump rope i don't know because i didn't see that and they were going to be it is not on the record because what we found is there had been this dramatic shift we would concede that today and we have conceded to jump rope today the jump rope one type system if you will does not infringe we're not intending to say that what we're trying to figure out is how long did it and framed it it's still a system that can be  infringe tomorrow if this court rules against smart auctions we haven't had any discovery whatsoever how come it will that because you didn't show up through the motions to say the discomfort with due respect i did show i notified counsel and by the way our local rules will rule seventy eight point four i believe wouldn't even require the judge to have a hearing on the motion she could have simply rule in my absence regard but did you seek some type of reconsideration from the judge we did not but we morning it was a court i want to start before you enter what you were talking about about to talk about the new argument made in the reply brief that smart options such as proceeding under rule fifty sixty that the first time that argument has been made in any court including the district court was made in the reply very quick answer to it number one they did not ask the district court to stop summary judgment rulings rather they opposed the motion for summary judgment the best he a footnote saying that i didn't get the discovery that i was promised because of state and he doesn't ask this report stuff i point the court to the t m j cases cited in smart options brief which says if you don't you decide to oppose the motion for summary judgment then you can complain about in these discretion now you pointed out didn't show that you didn't show up at during the time of the hearing at least afterwards didn't file a motion for reconsideration you didn't file a motion to lift the sta there are at least three independent bases that would allow you to sustain it i view one in three as related to the first four you get there what's going on the two competing versions of the terms of you the two competing versions of the terms of use are confused for this court because of the way it was breached there is the terms of use that was actually in use for the jumper about the cation which is at one thirty to one thirty for the record and if you look at them it looks like a professional terms of use it says terms of use smart started putting up their website this document was online but it was a draft placeholder wasn't their actual factual terms of use you can actually see it looks like it's off someone's word processor in the logo is nothing this was never used for the application at the terms of use that when  here and that's why we didn't talk about it i'm not allowed to but i want to put up a thing very interesting about this terms of use that supposedly formed the basis for his free file an investigation if you look at the two documents the one that contentions cite the terms of use that we put in the record one three thirty four and were the terms on summary judgment and if you dispute that look at the language and the font compare their infringement contentions which were after he filed his case to those two terms of you sheet they're quoting from our terms if you shoot at one thirty two thirty four not the one he later brought up at eleven twenty six in the record the fonts difference in the language is different they cut paste the language in the actual terms of use and put it in their potential so it's puzzling that he claims to have relied on this terms of you sheep that he later filed and apparently sat on for a year when his initial infringement contention this is another puzzling thing about the what the district court found to be a very troubling affidavit defending the prefunding investigation when you buy a drone do you get automatic entry into the venue that's where the jumper get processed yes they give you automatic and if you had introduced that terms of you she that he supposedly relied on the following case before summary judgment he might have made that argument to the district court but he didn't he held that terms of you shoot back and then introduced it in defense of to our  declaration and ryan gardner declaration says that once he was told by two representatives of jump rope that if you paid the jump price that does not include the cover charge of the nyquil so it was the same thing at the end of the declaration he says based on my experience training etc i believe doesn't include two steps that is their argument but this goes to one of the points about the summary judgment motion which is they don't have in the record anywhere either an argument for a piece of evidence that when you buy the jump you were provided a contractual right to buy or sell anything that would be the cover charge but that is the judge's understanding of their argument that point i hope you understand is not an option for entry they are saying when you you pay for something then elect not to pursue yourself yes it's a funny option there because the control of the options in the hands of the owner of the establishment as opposed to to purchasing the right yes yes you're ready to tell you that's exactly how we thought their case was positioned originally and that's that sort of they're the person who gets to the front of the line is no different position than anybody else in line except he's closer and he doesn't have the contractual right there's no you know option like the d v d player example in right and that's no different to me going to the grocery store and buying groceries and not picking them up at the end of the conveyor belt i have i haven't purchased the groceries under this definition i have options on what all the saying under is decoration as you get closer to the front line but he doesn't say and the definition of options undisputed in fact mr baker himself in a brief filed i think it was a year before this case in the ticket reserve case said that the applicant told the examiner the definition of option was the exact one that we proposed and that the judge adopted waive their right to respond to our argument and that was of course not addressed in their their briefs before this court but you want to cobble together something that looks like an answer to your argument which one cannot find anywhere either in the declaration of constructions from the ticket reserve case in which i judged the other judge had construed option feet and electronic options but both of those constructions included the word option she didn't further construe up she and her construe so there needs to be a separate because there's no other evidence in the record that the the application was actually used and there are cases all about the use of the application it doesn't say it is declaration we know from the records that it wasn't used i confirmed my client left and i very few people use this before this ha infringement lawsuit made it very difficult for them to continue in business and she doesn't provide any other evidence of use if i don't think it's much original all if you are defending against a challenge that you investigation there's a free application you can download and that free application costs tens of dollars of the district court put to use you wouldn't go to a nightclub and buy your way in and have a drink it's the least burdensome investigation i've ever heard of the pat infringement is also a big element of her decision the fact that they the burden was really on them to do more thorough investigation after you submitted to them your draft rule eleven sanction motion they filed  don't know painfully clear that once you buy the jump you're in the door and you're on with your nine yes i agree that another point that's strong in favor of this record sanctions order once that ruhleben letter was sent i believe may twenty second that was a red flag counsel should have looked more carefully even if he hadn't done the construction of options you should have done it then even if he hadn't downloaded the app you should have done it then and nonetheless they continued escapes and here we are thank you mr slamming you that exact point the judge brought up and i want to state quite emphatically not only did we have the terms of use and the trademark application and significant corroborative evidence tending to show that there was founder of jumble who confirmed to me yet the terms of use that mr fleming is now running from working the descriptive of the features there's no question in my may be saying that she later said unequivocally that what is determinative of infringement is indeed the two step process there is no question about that even jumper would concede that because jump rope emotion was wrong and judge if you look at the record afresh we would encourage strongly to look to mr gardner and because there are factual issues here