specifically the construction of terms price schedule volume discount and volume price we'll get to those issues in just one second but the fundamental error in that construction was the implementation or the requirement of those terms all happy first a second price perhaps the bigger error however and the issue that you would win would like to address first of the court's indulgence is the middle district of florida as commission of clear air notwithstanding claims construction in granting summary judgment of non infringements in favor of groupon and the errors in committee or the i get a litany of the mistakes we contend are the lack of discovery that took place in developing a factual record to the extent that there was a factual record on which summary judgment was it was limited to two declarations that had clearly conflicting declaratory statements and then finally the middle different florida actually acknowledged certain statements in the even when declarations but notwithstanding those factual statements then to a sponsor created a new factual premise which was the linchpin of determination thing granting summary judgment in favor of group on now with respect to the first issue on the summary judgment side there was the lack of discovery the can can i get to the other part of it maybe of the summary judgment sort of based on the record this existed before the trial court what was the material fact and did you get assuming you were suing for purposes of s construction certainly so the the material fact that was that was the clear issue going to create the air was the declarations and the group on declaration which was issued by a financial officer of group on concerning the technical operation of its product made an unqualified state in all instances the group on system utilizes an operates in the context of a single process the e one when declaration however clearly evidence based on the use of the group on system not just speculation but actual example using groupon sucks and so that's not different prices and such different prices being offered to people based on any kind of volume selling it's groupon bucks you get because you referred somebody to groupon anyhow so if you get the bucks for referring them it is not changing your price or anyone else's price based on the volume of sales of this deal but and how is that a volume sales these differentiate pricing it depends on exactly where you're looking at the client so the issue at the end of the day i'm pretty sophisticated in this living social group out there not so that's actually a good thing you're on but if you look at the records if you actually look at the middle district of florida support state and there is if you look about two thirds of the way down the page there's a paragraph starts groupon makes several arguments but the section i'm looking at specifically states the court agrees with group on arguments that all of even when patents require that the it's either is it more than one price i mean that's an issue claim construction or somewhere like the credit for something that somehow changed their price i think i still owe the same price no matter how many credits my clients i mean you know maybe i  and this issue came up for the very first time in actually in the court's order it wasn't raised by anyone when and of all people that should have raised the issue it would have been group on but groupon didn't raise that order that issue either so this issue of the the partial payment is what i believe your aunt is referring to and it's ultimately what the middle district of florida relied on as well to grant the summary judgment the issue of partial payment showed up the very first time in the court's order there has been no discovery there has been no that i  payment and even when characterized as being an entirely different price and this is where i would disagree with you judge moore is you indicated it would just be credits i still owe same price but in the examples provided in the when when declaration for example the ice cream example where there was two individuals find the exact same products the ice cream a group on one person at the end of the day pay one price and another person paid a different price based on those groupon bucks so at the end of the day they're priced out of pocket was different what that except if you with we start with the premise for summary judgment purposes we're going to accept and agree with the claim construction here that's still something different than the claim construction which invision the difference in price being pressed by the difference in  so whether or not who comes up has one person paying a different price than the other for whatever reason that reason is not the same as invasions in the claim i would respectfully disagree so in one context the claim the construction in the subsequent  of customized price schedules varying in cordons with the quantity of the product ordered shirts and so the even when declaration showed so it comes to beg the question back up to where the group on box come from and in some instances they could be that's absolutely correct but in order to get that referral it's tied to another deal that shifts that other deal being based on volume so while one deal for example my purchase of the icecream groupon find myself made i don't  from the purchasing of the same thing it can come from anywhere with the price schedule is tied to that individual products of the price schedule for all of these the ice cream example again that is tied to the products but it's also in my mind that the type to the the same product you're talking about my schedule or such and such kind of question to you it's still a very good one and i haven't gotten that i heard you give her a good answer which is don't all these claims require the price schedule to vary based on the volume of the very same product well so in the context of the four one nine seven which is i believe what you're talking about it where it states creating two or more price schedules for a product based on information contained in at least one virus profile each price schedule consisting of a deal rooms in the groupon universe so again they're only from quantity the product and if that comes back i guess fundamentally we have been talking of the summary judgment issue that goes back then i guess and floods into the air that we believe existed with the claim allow from the at the very beginning a limited when it last for limited discovery with respect to claims construction and infringement issues and even when did serve discovery requests on group on group on however never produced a single document and before any sort of motion to compel or other remedial process can be initiated the court issued a subsequent order an interim scheduling order that stayed all for the discovery after the completion of the market hearing and subject of the completion of summary judgment so at that point you know groupon was able to hide behind the fact that they had not produced stock in the course of discovery and the middle district of florida well i don't believe they intended to be capricious the sudden dropping of the the hammer there with respect to discovery suddenly say in stop it's been one thing if the court laid out a schedule saying discovery going to terminate on such and such a date and one of the parties had valid not done anything but in this case the court didn't indicate a determination a terminations date for discovery it just arbitrarily came down in the context of the in terms kegel an order and suddenly the parties were stuck did request initially in this case a stay of all discovery the opportunity to file an immediate summary judgment motion based on the very fact we've been talking about which is a group on offer each group on set a single price the court denied that request and instead open discovery with respect to infringement a claim construction and then set a schedule for martin and process briefings and hearings to discovery was open  we thought we had a clean shot that does not infringement based on the multiple privacy issues and in fact the patents were obtained over patents now by a group on that described a public web site that does exactly what group we identified people who were knowledgeable it wound made no effort to take any definitions for no effort to me conferred made no effort to do anything with respect to discover i think they were hoping to get a claim construction that will leave the of the issue m prior to summary judgment the court state and for the discovery and even when actually raised this issue of the lack production of documents by group on to the court previously and mention of action be found during the mark when hearing in the transcript for that but is it related only to documents for about damages it was not limited to only damages i believe the universe was greater than that and then to award or basically to allow group on to hide behind that effectively encourages stonewalling with the discovery in this case it worked to their benefit and unbeknownst or unexpected stay of discovery ended up coming down where at that point each one was stuck with no opportunity to move to compel before them now returning back to your prior example judge more of the multiple the volume based transactions there was another example in the when when declaration and that concern not only the ice cream but the use of laser treatment or the laser skin treatment sale and that was an example that the middle district of florida never addressed not even mentioned in their order and i think i believe that laser treatment example is in the declaration that shows a single product of laser treatment and the various price levels with that so in that example alone there's examples of multiple price steps but again that was not addressed by the court again  just an example group of yes it's applying group on buck but it still tied to the volume of the product that's been sold and our issue is in part the group on never counted our declaration they submitted their declaration and they never counted our declaration nor did they counter any of the statements in our declaration here on appeal they either want to do them so simply admitted it but they certainly have not denied it and obviously the consequence of them denying it would be effectively to admit that there does exist exist a genuine issue of material fact the only think group on has done with respect to the factual scenario is in their brief they did a list sort of a bullet point list of agreed upon facts well i would necessarily characterize as read up on facts because with respect to the group on bugs specifically while they identified certain facts being undisputed there is absolutely no reference to the joint appendix as to what would support their interpretation the group on bugs and how their interpretation as such is purportedly undisputed if you will in theory and against anyone