twelve b six the district court respectfully did not accept the facts as pleaded by juniper as true and it did not draw all reasonable inferences in juniper's favor as governing ninth circuit law let me be more specific juniper allege that mr shipley placed upon his website the word patent together with to pat numbers at a time when his website contained  in the context of current product or not in the context of in the money generating aspect of his website is that correct i disagree with that at least the latter aspect of that is certainly was listed in the context of current projects and we've alleged that that leads to a memorial and reasonable inference that he was suggesting in fact that software was currently functioning which is what he said on his website and in fact we know from his iraq  answers which is how we learned about this that that software was in fact functioning at one time but had through the crash of a server no longer functioned after nine hundred ninety nine so in  statute i don't think it matters under two ninety two whether they function together or not the looks is what is the article year that is false the more the website we've argued that it's the website complements of the website and web pages that are marked under either the marking the affixing or the advertising prong of section two ninety two right now that you see if this is my goal in the discussion but suppose  tooth brush is covered but i would art i would agree i would agree it's not importing the toothbrushes covered by the patent but if there is not toothpaste somewhere either in that container or elsewhere that is covered by that claim at least one claim of that may or may not was deemed by this court to be sufficient to have a patent on the website just the kind of aggrandized my own ability my as almost a resume builder absolutely you can do that honor and that's not the situation we have here at all the context the way this these pattern numbers were placed on this website poll i tallis size underlined with asterisks in the front and in the back together with the word functioning which was changed by the way from the earlier description when the pattern was nearly pending there is a qualified functioning actually worked functioning was misspelt so mr shipley at a time when there was no software not only operating in connection with the website but anywhere that was covered by by any claim of either patent he changes that qualified to scripture of functioning to simply say function i'm going to go  a case which is only brought up to gain leverage to drive up costs as much as possible well first of all your honor the issue we are confronted with in this appeal is whether this complaint satisfy school twelve b is accepting the facts as juniper pleaded is true coupled with the reasonable inference is that universe and title two does that complaint past the minimal threshold of rule twelve b six i submit that it is more than adequate to pass that threshold now you honest question goes to a probing the motives of a plaintiff in a lawsuit if we want to go and go out and probe the motives of plaintiffs in lawsuits your honor we might have a very different kind of situation you'll recall that  and his two man shop sued juniper in the eastern district of texas looking for money from an american company that invests a lot of capital a lot of human resources in this country juniper like every other  legitimate litigant look to storehouse for counter claims which are perfectly permissible under the law there is no allegation in this case that juniper violated rule levon or committed any other sanctionable act here that is merely a passing reference in a footnote which i think is is frankly unwarranted in this in this dispute i'd be happy your honor if we want to make motives of plaintiffs relevant in these kinds of disputes then my adversaries client and his motives in terms of what he was up to are equally valid when we consider the merits of any kind of a patent dispute so going back to the question your honor that you raised before about about pleading we have p that the patent number and patent were placed on this website that is either marked the pond a fixed two or an advertising in connection with a sump and unpatented article i will submit which at one time existed but no longer does that is the software that runs the far it is undisputed that when pat that patent and those pattern numbers were put on there there was no software anymore that made any claim of those patterns we further pl analysis here is there some is it perhaps warranted for this court to find ways to limit those cases to the ones that are really warranted and weed out early those that seem to have less basis i think this court answered the question that you're asking in the bong tool case where this issue of a floodgate of lawsuits was raised specifically in this court said we're our hands are tied by congress congress has passed a statute the statute is fairly straightforward in its application that said this court has utilized for example intent as a as a as a possible presumption of intent in this case based on the allegations we have plead thank you and good morning call father representing defendant shipley made please the court the district court properly dismissed this case under rule twelve b six and that ruling should be affirmed for at least two separate reasons first this claim is barred by the statute of limitations it is undisputed in this case that the stat applicable statute of limitations is found at twenty eight u s c section twenty four sixty two and that statute specifically provides that such cases shall not be entertained unless commenced within five years from the date when the claim first accrued not when it was most recently viewed not when it was or could have been discovered but when it first accrued and it's undisputed in this case that the alleged acts by mr shipley are statements that he posted on his website in two thousand in two thousand and one and yet this case was not brought until two thousand and nine more than seven years later juniper in its papers relies on the theory of continuous act or the fact that this information on the website remained viewable into the limitations period but no court has ever construed the operation of the internet and web sites in that way to avoid the clear directive of a statute of limitations in fact the case that the district court relied on the o j case from the ninth circuit clearly felt clearly held that the posting of a statement on a website is a single discrete act even if it was continually maintained on a server after that in the o j case the ninth circuit said that a claim based on an internet posting is time barred even though the posting existed and was viewable into the limitations period so based on the undisputed facts as  juniper this claim to the extent there is any claim at all was fully approved in two thousand and one and the complaint was not filed until two thousand and nine so this is absolutely barred by the statute of limitations now your hon the o j case and this is in the joint appendix it a one of three where the district court relied on it juniper is cited no cases where a statute of limitations was extended simply because something the originally posted on a website remained there for some period of time your argument is correct that means somebody can pay five hundred dollars and go on misleading the public through write it means that posting mileage on a five hundred dollars and just posted up there forever and that specific like you see maybe even make money on that specifically the issue that was addressed by o j where the ninth circuit recognized that the fact that this information remained available that some members of the public might find objectionable was a factor but that was over weight by the fact that it would and it would it would trigger an endless retriggering of statutes of limitations and would allow claims based on old postings to the to basically multiply and proliferate and finally with respect to the principle applies and i think those are more closely analogous to what we have here in a defamation action something is posted on a website that somebody believes is false or somebody believes in it is objectionable and the court specifically said recognize that even though that may be available in the additional people may see it and there may be some associated injury with that it's still not enough to overcome the clear application of the statute of limitations i would also comment your honor that in jun papers in arguments to the district court they ask that the statute of limitations should be extended based on equitable tolling a reputable the stop and that's why we cited the reference to the comments by juniper's in house counsel because if the if they claim they're entitled to an equitable tolling of the statute of limitations to be able to bring this case then i think they need to show that they're entitled for some equitable reason to get the benefit of that and given their publicly stated intentions of this lawsuit we don't believe equitable principle should apply furthermore juniper has cited no case where equitable tolling was applied to a statute of limitations in the context of a key town action such as this i'd like to turn now to the second major problem with this case which is more closely tied to the basis that the district court issued its second order and that is there is no article within the meaning of the statute itself a juniper is cited to at least seven different things as maybe being the allegedly marked article they've cited they said the web site itself is the alleged article web pages generated by the website software running in the background any fire wall product operating on the website any other security product operating on the web site consulting services or email hosting services all of these are pointed to as maybe being the allegedly patented article i submit that it juniper can't even decide what is the allegedly patented article then the markings that they're complaining about in this case do not provide clear notice to the public of what it is that's allegedly patented that isn't which is the whole objective of the false marking because if you turn to the joint appendix page eighty one forty one one forty two and one forty three this is a printout of the and of the website where juniper's allegedly objectionable material is found and this is not a printout of the website itself this is just one corner one portion of the website that's directed to current projects and when you look at this you see several projects are listed on the first page so somebody who accesses this particular portion of the website goes here and then you scan down over the second page and then there at the bottom of a one forty two you see a discussion of the dynamic fire wall product and a reference to the two patent numbers this is exactly the same language that's been posted on his website since two thousand and one what the district court said was they looked at these references to the patent in the context of this project page and found that there is simply no reasonable basis to infer that this is intended to mean that the entire website is patented they rejected that automatically so that ties into their continuing injury argument if the marking cannot apply to the website as a whole then there is no continuous act there is no additional articles that are being marked as it goes into the future of what unreasonable  sort of the first down what the market is it's not a reasonable inference your honor and if you look at the bottom of a one forty two where the patents are specifically mentioned the words that appear right before the patent numbers are dynamic viral so the only reasonable inference that can be drawn from this these words that appear in this context is that the that mr shipley and his and his friends were working on a project relating to a dynamic fire dynamic firewall which is the court recognized earlier is different than the website itself and also because if it was ever the intention by these postings to communicate that the website itself was covered by this patent there's lots ways courts have considered that issue and one at least one or two courts have considered that it's theoretically possible that a website could be more for purposes of two eighty seven so let's assume that a website on age it would not your honor in that issue has been specifically addressed by the district of delaware in the i am ex case which is one of the cases the juniper relies on heavily in its papers there the court considered a web site run by the patentee there was a discussion on that website of some patents so the patent numbers appeared on a portion of that web page and the patent he was trying to argue that that should count as marking under to eighty seven of some other products that could be accessed on other portions of the web but the court said while it's theoretically possible for a web site to bear a marking in that case there was no clear nexus between the discussion of the pat but i think it certainly would be to the extreme to the to the web it needs to be connected to something with some level of clarity and specificity in order to provide notice to the public of what it is that's allegedly covered by the patent all of the cases that have dealt with two eighty seven and two ninety two and notice the public notice function of these statutes were at and t not just talks about the pattern itself but says also here is an article this is an example that you can see you can use you can task you can inspect and then this is what you cannot copy without some clearly identified and at least somewhat publicly accessible article the whole purpose of either the marking statute or the false marking statute don't make any sense in juniper has cited no case and we believe there are none were either the marking or the false marking statute was applied in a context where there was not any publicly available article whether it was actually for sale or otherwise and these are these are for purposes of the marking in the false marking statute that this court has expressly recognized recently and both for script case as well as the clone tech case the whole purpose is to prevent people from holding out an object to the public telling them it's patented you can't copy this when that might not be true in sum your honor what juniper is arguing here is an overly expanded reading of the statute what they're complaining about is the use of the word patent in some sort of commercial context but if you look at the description and the mention of the patents itself on a one forty two continuing to a one forty three there's no mention here about services there's no clear link between these patent mentions and anything else that mr shipley has provided juniper did not submit actual copies of the web page with its complaint they simply selectively quoted from completely discredited portions of the website and then are asking this court to draw all sorts of believe they did the juniper alive is relying on the cases that talk about knowledge that a statement is false and what the district court found they found in the original dismissal that they had that there was no intent sufficiently pled the district court gave juniper leave to amend their complaint juniper amended their complaint they added lots of facts and then they filed an amended complaint but the district court basically couldn't even get off the ground on that one because they didn't agree with juniper's interpretation of the words that were posted on the website in the first instance so simply because mr shipley knew or the allegation is that he knew that a certain server in his home was an operating anymore does not mean that this statement is false and if without clear knowledge of a statement that you also know is false there can be no inference that there was wrongful intent finally your honor to ninety two is a penal statute it's supposed to be strictly construed juniper is asking this court to adopt a very broad reading of it that would be allowed wasn't of action based on any time you use the word patent in any kind of a context but the statutes very clear you have to mark an article or you have to  this to go forward without a publicly available article it overly would interpret a statute that's supposed to believe construed marilee and would really open the door to multiple additional false money cases if there are no other  addition juniper has pleaded facts which we submit would entitle it to equitable tolling the ninth circuit has made it clear that only twelve b six motion resolution of equitable tolling is improper action extraordinary circumstances my adversar pointing to conduct of juniper this is the this was a nice closing argument but this is twelve b six that's an improper kind of argument given the context of the case as it stands in addition we have in the make software you know it one of the issues we one of the challenges we have to deal with in patent it isn't a new technology but software like in the solo cup case where you have a a stamp that can stamp out billions in that case many are being sold it and control it one way or the other or going to a guy and a website owner knows when webb's when his website is having hits made on it and that the nice thing about this control bit off what they can change that website in the snap of a finger unlike the solo cup case we're going to be in the web for us absolutely and the website owner in this case mr shipley even if you were to focus on his making alterations to the web page we have web pages in the statute of limitations period that he altered those are those are at a one ninety five and a one ninety nine of the record where he was making changes to these very pages knowing people are hitting his website every day knowing this information continued to be on there he continued to leave this information on there even after the false markings lawsuit was filed against him so i would submit there's more than adequate evidence of at least one actionable claim which is all we need on twelve of remedy is an issue we can deal with when the case went forward does it matter that mark in there we've been talking about it appears on the website and not the home i don't think it matters particularly given the way this  third or fifth tier page within a age within an age when a thing so well if you for example i can get in your hypothetical five pages down i say by the way my website is covered by the following pattern i don't think we even have to say shield holding captain and there was no functioning software that's the problem they've made maybe maybe a patent number in the abstract is fine that's not the fact pattern we've alleged it's not the inferences we're idle to this is a twelve b six motion let's let's for that need i don't believe so your honor because at that point you have a apparatus that could perform was capable of performing the function i think that's a very different kind of a situation but but  it's not holding and it's not function i think i think in that context however if you still have a patented product sitting out there when it when the product is destroyed you no longer have a patented product so yeah you start to get fa product that's undisputed there is no longer in a body he has got it on paper but that's exactly what the false marking statues directed to if having something on paper was enough you'd never have false marking