also has a strong precedent for allowing parties that when there is a motion to dismiss or will told the six motion where the deficiency in the pleading can be corrected by amendment the eleventh circuit has a strong precedent that says the party ought to be able given that opportunity you ask for it i don't know that i think you're going to you're not answering my question no i and i mean the answer in this regard i was thinking about about your exact question about whether our asking for it is the only way under the rule civil procedure that you get the opportunity to all men and the reason that i'm thinking that is oh sometimes you can amend of right if you do it early enough that's right and oftentimes in fact scheduling orders generally have included in them deadlines by which pleadings are to be amended as well so i don't believe that rule fifteen is the sum and substance of the entire opportunity to all men present a request to the court is through motion we don't disagree with that the that case law is what it is what it is my point on the amendment though and again this is what i was contemplating as i was preparing for a is that you do  fifteen that lays out that when you have can amend as a matter of right when you have to ask for his consent when you have to ask or consent but you also have under scheduling orders the a deadline that is often sat by when you can make amendment pleadings in part because things come up in discovery and the scheduling orders often permit an opportunity to a men even after certain deadlines have come and gone and that's the reason i raise that is because if you had a scheduling order which was suspended which was delayed in this case on the request of the defendant pelleas that we not enter a scheduling order while the briefing was taking place   the strong inference that if a pleading can be corrected by an amendment that pointis ought to be given that opportunity i think at that point when you're looking at whether we asked in in a footnote whether it was  motion to reconsider by request to alter or amend the judgment there's a whole host of ways to get there not only by the way the fact that the pleading was that the case was dismissed with prejudice because it seems to me the fact that it the original decision by the district court it wasn't clear to me but that was with prejudiced or without prejudice and so therefore it's hard to say that your motion to amend it at point was late was to alter or and men for that purpose to make it so there was without prejudice and it was really when we got it in answer to that that i think we were clear that it was with prejudice because we had we had the same  review and i think the case on the rules indicate that if a decision is you know it's on the merits of it's with prejudice obviously so we weren't quite clear in that which was part of the reason we took some of the steps we did after wards y in one of those was to try and get some clarity candidly i think we were hoping the court would come back and say of course it's without prejudice as the eleventh circuit permits we want what matters to be decided on the it seems that you have to at least alleged a fact about whether this is a man staple article of commerce or not there's nothing in the original complaint and so i'm just wondering what is your position on that and again that that may be the case your honor i mean i don't know that i propose strong argument against that that reading of the original complaint again though i think that's where you fall into the situation where we ought to been able to  amend at least one time morning be given an opportunity one time i'm not going to make a strong argument and try to read into the complaint something that's not there so again i think that comes down to the point though that we ought have been able to to amend it least one time to to make the pleading again tighter if there was an issue on that even let's assume that that was the only issue that the court the district court felt was insufficient sleep it was a contributory and granted the motion to dismiss that claim in that case and we still have been i think we still would be entitled to file an amended complaint to correct that claim at that point in  time would that have been with or without prejudice i don't know i don't know where we would have gone with that but i think that even at that if that single claim had been dismissed why would we under the case law be permitted to to a file and then to complaint that this one claim certainly that when you look at the case law in specifically migs eagle verse sprint nextel my understanding of that in the citation is that in that case the technology cell phone product line called moral i nine thirty who international walkie talkie close quote offered by the defendants common falls within the scope of one or more claims of the patented worldwide walkie talkie international walkie talkie invention period so falls within one or more claims i think that type of pleading has been indorsed under the case law so i don't know that a case of third thirteen fifty four in rebuild late in transmission in processing system six eighty one f third thirteen twenty three and where i think is the most recent is k tech telecoms inc played complaint complying with four meeting with the five factors laid out would satisfy twamley and it all i think that's where the trial court erred and went down in correct that that's just candid response to you is that i don't know that that was some strategic decision we better get this in the day before we filed an amended complaint with the court attached to a motion later that we certainly were capable filing so if we felt that the series of decisions that were supported by the pools of federal who were procedure and be president of the supreme court the circuit and the eleventh circuit why doesn't the original complaint satisfy tonally particularly for the five zero nine patent for there is only one independent claim and there's an allegation that the accused device which is identified by pictures infringes at least one claim which necessarily would have to be claimed one that the defendant is liable if the claim is identified and the accused device is identified in a picture why isn't that enough and then there's a statement that the thing in the picture has all the elements of the claim why isn't that enough that's not the standard for an infringement you don't just say here's a picture here's a picture in french the standard is that each element at  method patent method of manufacture so pointing to pictures of a box of product does not do anything to help the judge or the defendants why those products are manufactured according to the claimed method  this court in the light over c p s case laid out that to plead a direction for enjoyment of a method claim there have to be sufficient facts to allow the judge to reach a reasonable inference that every potentially yes we believe looking at the many complaint which is not really before before this court we would still have a basis to move to dismiss based on them being unable to prove their their claims th the concern that i have with this case is that i don't see a motion to amend actually and i went back to that time and i'm not sure that one was a respond there's arguments that the court should allow us to in the end but there never was a precedent federal circuit precedent eleventh circuit pride's that soon to amend you need to file a motion memorandum supporting that i do think that potentially in their opposition to to amend they could have included a more until judgment judgment has been entered already in this case they had plenty of opportunities to speak to a lab to amend at that point in time when they were seeking reconsideration that is that is determined based on and if the nine judgment or had a judgment been entered before that fact it was just unclear whether it was with or without prejudice so the we did request it to be would prejudice in our motion to the light but the court in any case that's cra prejudice it pointed out that the the plaintiff had never requested leave to amend while it had opportunity to do so and at the point when it was being asked to reconsider whether she knew without prejudice or with prejudice it was honor we believe was no d d s made strategic decisions throughout this case it chose not to amend its complaint and had opportunity opportunity to do so after after its complaint within twenty one days after refile their motion to dismiss completely laying out all of the reasons why we believe their complaint was deficient elected not to do that it had the strategy not to amend even though it had named a defunct corporation had this aversion to amending and  it didn't instead it filed its opposition to a motion to dismiss and argued in that opposition that it continued to meet that the amended pleading standard and it dropped a footnote halfhearted footnote which they should apply to any case and ng so long as it was just an practicable e d s again made the strategic decision it never argued that it was unjust or impractical for the amended role to apply to it and it was  that it was unjust or impractical hear it and it was there it looks funny on the record thank you your honor and they did not argue that it was just an impractical and it was must make some attempt to describe the election for interment at all just some attempt and in this case it found that d d s had not done that it had not gone beyond patent product infringe which is insufficient for the district court judge to be able to to reach a reasonable inference including in particular on a method of manufacture rooted out the other set of claims which are not a method of manufacture and there's only three in the playoffs right so the one  means plus function claim it's not as simple as it appears on its face and the deed simply putting a photo of a product does not provide the judge was with any ability to tell whether that mean to the seuss eating the structure with the inflatable belt has been a matter could be met by the plaintiff in this case and whether the plaintive could plausibly meet meet those elements of that claim they don't have to prove their case right they just have to allege enough facts to make it plausible that there is a claim i would think that they should make some attempt to provide the defendant in the court with a basis to draw reasonable inference that it could ultimately be proven and in this case they didn't they didn't do that what about the fact that we  manufacture that uses does nine anyone practice these claims and has been explained to the plaintiff and they had not provided in this complaint a reason for us to understand how we could possibly be infringing on this method time that we filed in this matter was briefed at the trial court there certainly was no standard the only standard on nov thirtieth we filed our complaint was the form in all the case on and i don't want to get hung up on the form because quarter given clear pronouncement that even if you don't have the four you don't worry about the forms the fact is that the factors that are contained in the old form if you plead those factors that can hold up to the standard and that's the question here is did our complaint satisfy it all twamley at not in a vacuum it's not a new case on december one twenty sixteen it's all the case was that it come down to that point i cited for the quarter earlier the musial case where the specifically said that pleading that you infringed one or more claims that was sufficient that was sufficient at one point  i'm sitting here thinking what if our complaint had been filed on november first or october force or how far back do you go before you say well you're close enough that we're going to we're going up by a however that goes back and i don't think that's necessary because if the court had dismissed the complaint without prejudice we wouldn't need to ask leave to amend at that point we would if it was dismissed without prejudice what is that our act is and in your  seen a situation like this where a party says well we'd like at least a chance to amend in the court comes back and says not good enough and dismisses when the law has suddenly changed in the sides miller you'll find