eleven this case became a kind of became an issue arising under the patent statute when hines filed the counterclaim that involved very direct patent issues and that was a problem september twenty eighth two thousand and eleven so that passage of twelve days is very important because i think the consequence i mean i guess it's a matter of fact i construction and having hard time well i think that the holmes case you know said that the court's role is to determine what the words of the statute must be fairly understood to mean and i understand your concerns about that but i think reading the entire statute as a whole that congress intended after september sixteenth two thousand and eleven that the jurisdiction over these counterclaims would come to this court this isn't you know falling under the difficulties analogy there your honor would be the statute of statute of limitations application that you know if someone files a counterclaim the statute of limitations doesn't begin running at the time of the complaint was filed but if the statute of limitations is assessed as as of the time  christianson was talking about two hundred homes that were filed prior to the enactment of the ai so it ultimately said this isn't a case that you know this with that this is a concept but it interpreted it in this i will admit it stick to the six circuit didn't know that the concerned about people using a can for a town or claim to get jurisdiction in this court in order to you know then also use it for the purposes of removal jurisdiction to basically i think we'll figure it out i think it would be helpful if you used your remaining time to discuss the merits in case we reached a thank you and i think i'd want to begin and i think it's important to begin with the counterclaim at issue in this case and whether or not the jurors the court the lower court had jurisdiction over now another seems like a bit of a year at the end of everything else after all the decisions were made and all the dust had settled the validity piece was basically said you know we're not going to go after whether or not misfortune speech pattern is invalid so the focus really would be on whether or not you know kind of infringing on the ninety pat where we were just talking about what is and they play it again if i understand you who you're claiming or you're arguing that there is no patent issue in this case that's for you're right on the merits yes your honor if you win on the merits we lose jurisdiction why isn't that true and i don't believe that's the case your honor because it's is it's we have to look at the the wealthy pleaded complaint rule which is not from his ninety pat and yes we referenced the ninety pat in the complaint but mr words in ski raise the question of do functionality he presented to heinz and he testified in his deposition that he presented the idea of a dual functionality and that is involving a patent and now we disagree with that agreement but i can't rewrite hines's counterclaim that's something that is unknown and i think will serve teens speaks to this that that is something that is you know on the basis of the pleader have you know it's based on the l statutes is what has to apply here so then the question becomes what is the basis for this case being here under section twelve ninety five that depends upon whether the district court could have exercised jurisdiction in part under a section of thirteen thirty eight and we believe that to be the case will explain why it was not h j heinz company that injected the patent issue in cases judge plague or observed it was the that claims that with respect to which the jurors district court had jurisdiction in whole or in part under section or twenty eight u s code section thirteen thirty eight so you're saying even in the act well ok even in the agree with you that who brought the case as a patent case you used the patent as an example of how his state law claims it rose because he actually gave you something other than  dipping and then where are you under that circumstance you might have to transfer the case to the third circuit for the third circuit to rule on the preemption issue but we think the jurisdiction this for marketing would not necessarily be separable would not necessarily be a patent infringement claim but the way this play this complaint is pleaded i don't know how you separate the tips because  issues does the company not to serve in other words he's not going to sue you for and french and then why did you move to dismiss the complaints on the basis that your appeal is that it alleged infringement and i've got the  susa the whole complaints we moved to dismiss the complaint on the basis of preemption the covenant not to sue was injected in the complaint after we did that and that was worth respect for the  well if there is a movement here my point is and we expressed this in our response to the rule twenty eight j whether the move this would affect the entire case it moves the plaintiff's claim not just the counterclaim if there's a covenant not to sue and assuming this is district cabinet not suzy's should have said thank you and walked out the court well that was the plaintiff with attempting to continue to maintain their claims at that point i would agree that logically the entire case should be over once there's a covenant not to sue given that there is nothing else pleaded in this complaint that was misappropriated other then the idea of the others in the little dipper right and that is the path that the district court construe that managed in that complaint to raise some kind of state law claims that has changed and then has articulated then where can we go what happens next if the state law claim is there and is not preempt that but the court construes the remainder of this complaint as being out the window because for whatever reason i guess there would be a that there is no infringement so one alternative is for us to remand it to the district court rather than ship it over to the search or if this court holds that the the part of this claim survives preemption and that this court has jurisdiction because of the it depends on whether the court finds that part of the claim was preempted the word given judge press comment about marketing i suppose it is possible if everything were judged prose was asked in her question correctly to separate out the concept of the new method of condiment packages from the idea of how to market that i don't think you can do that the way his complaint is pleaded i don't think they're separable that way but if the court separated them in that manner this court could hole that the new idea of condiment packaging any claims related to supposedly giving hind that idea on that basis is preempted but claims based in the guy of the state was claiming and again if if you took out the flames here the counts dealing with breach of implied contract and unjust enrichment all of which refer back to the little dip as defined in paragraph thirty three although refer to the new idea for condiment packages if you take those out and say therefore h j heinz company is liable for patent infringement it would be an article but it would survive flowbee six based on the fact that us pleaded that's why we believe that this court has jurisdiction why the district court correctly construed the case as being in essence an attempt to assert the patent and why as a result of the attempt to claim more than is removed the notice of removal was on the basis of diversity frankly we were looking at the low hanging fruit that was obvious there was diversity jurisdiction and evidence of interest misuse the district court  discuss anything dealing with its own jurisdiction because there was no need to he assumed he had jurisdiction yes and he was there to pat and well and because diversity and others and two different district court judges read this complaint well you know we thought that the company and not just sue and mr ward's inskeep testimony as deposition that was uncontested by heinz would be sufficient to establish that what we were pleading the new ideas that were specifically laid out agreements and point they had the defense of preemption spanish method for food dipping incites anything when he made that statement on page nine of his opinion but mr wars against events well we'd better clear this up we better make sure the vander stand that we're not suing them for this patent we reference the patent because it's part of this complaint at all and the idea is that based on what judgment very said and then he transferred to judge walk and judge swab ignoring those courts lesson from each pass that said you have to look at new evidence you have to you can't simply just uncontested sworn deposition testimony the documents from homs and then and you know you need didn't really even look at the patent to compare the planes and what's protected in the patent to what mr ford's interview was saying in his that that you know that conclusion he