have not amended your complaint to challenge here how do you propose to prove that in the in the face of the real issue patents issuance these omission and were shown in the other documents which were before the p t s so that while there may be a few differences in documentation in substance the p t o had everything before it during the reissue process this appeal of sole product that was covered by the seven subsequently covered by the seven twenty three patent a nine millimeter sheet or nine millimeter thick that sheet of rubber underlayment to robin's flooring that was never produced as any part prior art was flexible the other items that were not provided to the p t o in the reissue or the with the subsequent deposition deposition transcripts and declaration testimony of individuals who had personal knowledge as to the process by which th agree with with your honor that perhaps better practice would have been to apply to amend the complaint to add the nine forty five patent because obviously the it really issue is a problem but also the covenant not to sue was a problem as it related to the seven twenty three  however the fact is that the city attorney of record in the trial court did not do that i believe however that the an equitable conduct argument still remains reissued doesn't cure fraud where you could just not cured an equitable that a record of this free issue with the with successful reissue simply makes it impossible to prove an element either of our process or after saracens inequitable conduct in the present was there a place that you specifically pointed out how there were only missions that before in the first process that were not merely cumulative of everything that was in front of the to the district court on the proper motion and shown to be none can deliver what the p t o later consider your out of court found that the the argument for reconsideration was improper it was during the argument  for reconsideration that us robert attempted to present the evidence regarding the july two thousand invoice and the and the declaration of the abroad or who specifically that the product that been sold for many many years prior  cit in our field is that it is reversible that decision not to allow us the motion for reconsideration but i think the the problem that we have and again i hate to rely on justice as a as a as an argument because this is a this is not an equitable body but the reality is that there were accumulation of individual acts each of would bite which by itself did not rise to the level that would trigger  the withholding of the prior art of the seven twenty three application that's a fact the fact that they were presented later in the case that they were not present at seven twenty three patent applications improper enforcement allegations again not proven but allegations twenty three thirty eight a twenty three forty it is our position that had the court considered the use of individual items in that context or in the totality sense  the court should have found that we had to do sufficient evidence to overcome the lack of tribalist of material fact that the court found in the ruling on the summary judgment of the we believe that the conduct in this case is similar i prior art we have continued efforts to enforce the patent unfairly but i think the other thing that the patent and trademark office did not have before at the two thousand and ten in two thousand and eleven depositions of mr dodge and mr downey covered by running our language and we don't really know what that covers i am i right in understanding that that plane languages and going prosecution to distinguish a much contested claim language means because martin orders get changed all the time they get amended the case can be transferred and another court can do another martin order  reach a different outcomes to the meaning of that and the us phrase to be do we really want marking false advertising claims to be based on something  case was dismissed by the corps we believe to avoid patent validation but nonetheless believe in this record there's a contention that claim construction may be wrong because there was a dependent claim which  of course has to be considered as part of the independent claim because we are much different from what this is the district court did and yes the dependent by its five millimeters as opposed to the ten that are understand the point is  back to the main point how can we have false advertising claims based on such a movable target well i think your honor and i took a deposition last week where the punter told me that she was relying on common sense see we're nine to eleven it's like a reasonable time and in many of our statutes is bound to be a certain number of days it's thirty days not three hundred sixty days the court has to make some determinations as to what that means in this case i think the they are the rubber god that brought these cases down one by one to two blocks are halfords but the fact the matter is yes we did not develop the record of the trial court level but probably should have been developed however i still go back to the fact that i think the trial court took the easy way out by two thousand and eleven after the reship and issued certainly it can't be the case that we can supply depositions that don't exist he said well there's something going on here too forty four months to put this information forth that say that that's a false statement that's just ignoring that the p t o considered all this art and said that it's not invalid and i said that i understood your argument to be that at least after first the two covenants to not pursue and the second the re issue which is not challenge here there is there could not have been jurisdiction to decide to issue a an in for civility declaratory judgment and that this is different from my system well that's absolutely correct your honor would argue in terms of hydro that there is no for opening argument counsel conceded that they had not made that connection that should be the end of both claims on your understanding the old false marking causal connection was required but it certainly is envy homes or one of the big big builders came to a meeting with smyrna i think it was or swear now and said are these the products that the corps is threatening to sue about or something like that and the sort of affidavit or declarations as we answered the question and he said meeting over i'm outta here what is that now evidence that that there is some causal get into this because he was worried about threats about you know about some sort of infringement dress mr and mr fuller provided no testimony all we have to he i'm sorry his words were spoken to the man who heard them swear  statement you're i'm not sure it matters whether it was inadmissible hearsay because i'm not sure there's a connection to the false aspect of the market but i don't see why the district court was right in saying that that was inadmissible he statement had to be true so be hearsay but more importantly that you get to the heart of it one thing they never did is they never said this false advertising caused this what they said is well they sue people and we're worried as a patent product there was no evidence including what you just alluded to that that caused some injury you know they say they have tried to turn this case on truthful representations of how it happened and what it covers but instead based on the bad exceptionally bad fraudulent corrupt practice in getting th engaged in practices which we believe the court should not condone i think that at each level what they were caught they responded they did things differently to try to sanitize and fix the prior act as far as the document dumps there are in the brief