consideration to the pleadings and to the question of whether the pleadings sufficiently identify the cause of action were what corporate it sought and asked the court to do was to go beyond that  limited requirement under control the six motion and to make a determination that the accused product so we did not increase the patent in order for that to happen the court needed before it actual constant cells looking for example in paragraph twenty six use the sort of typical notice pleading broad language that defendants have infringed i'm making using importing it cetera hence infringing plaintiff's patents are not necessarily restricted to those to exhibit c and the earth in the complaint your intense that's a complaint cover or just those two pens or broadly other patterns that may infringe was seen in the simply being exemplary with no evidence or information or belief on the part of the attorney infringing something about which you have no information correct or i mean that would be a ruhleben problem absolutely so in less than you had in mind pens or tell me what pens other than this did you have in mind because clearly you must have done if you are asserting a complaint that is broader than against these two you must have done a reasonable investigation to satisfy you that there are other products of theirs which whether we wanted to and were entitled to under weight stated plain and simple statement of infringement without even having included the exhibits that would have been sufficient under a pleading stand we wanted to reserve the opportunity to assert infringement ask any other products that discovery may be able to or just determine we're also potentially infringing you have to understand that this these companies are in the promotional products industries their business is to produce in this case plans for use by their customers for imprinting names logos and the like and for distribution free to promote those customers businesses and whatever matter bridge had approach pens made to other customers we get on no it was clear they were producing a product and have sold it to the complaint is not permitted to be a fishing expedition it is and so the complaint focuses only on these two pens and never had any discovery we don't have any basis for any other than you just agreed that relate allows you to make an assertion on good faith and belief but then you just admitted you have no good faith and belief yet what is the good faith and belief that would suggest that they are in fact selling other products that mainframes are claiming that your complaint is broad enough to be construed that if i might say that's two questions i think one first is we did not and to this day do not have a basis for asserting a dream of infringement beyond those two particular items being very candid aside from the nuisance to your client there is no fatal injury  if you discover that your adversary is is making using and or selling your pants right from the other complaint you could follow the complaint i mean i'm just i'm concerned about whether or not  the air there is there is really harmful we certainly would have the option of filing another complaint we could also if it be first complaint is pending seek to amend to assert the additional items  have a current basis for asserting anything beyond c n d what we do have is a problem in the manner in which the court addressed that will twelve p six motion and what it did with it it had before it the teachings of th celebs to infringe and he says i'm you know strapping on my gorham glasses and i'm going to look to see if there are differences between these two well it's only partly correct i think the first phase requires more than just looking at the drawings in fact this court has totten army neck very recently and prior to that and bernhardt in other cases that when you look at that the design you must look at it not just standing alone but in the context of prior art you review the file history you identify the of what if anything to diminish or reduce the scope of the patent so here the court found compelling the fact without those constraints the claim was not infringed so what difference does it make well that even if you take that view that the court was giving us the benefit of the doubt that the entire design is protected design rather than some subset where based on a construction it still did not articulate what the design was it didn't describe it it didn't make reference to the drawings it simply reference features of the design and it talked about the grip it talked about the clip but it didn't talk about the design as a whole it didn't have in mind a discussion o articulated discussion the court certainly looked at rawlings looked at the path and looked at the exhibits that were attached to this place and  that there is no set of factual assertions or allegations that could leave this court to find for plaintiff which sounds to me like it's been entirely consistent with the  observer is he simply presume that he is the ordinary observer when there is no articulation that as to what the protected invention is when there is no comparison of the convention as a whole against  as a whole when the accused product isn't before the court when army that says that you must do a comparison of all faces all the use of the claimed invention against the accused product in court couldn't have done that it didn't do that it's clear from its opinion it didn't do it what we have is a summary conclusion that says i know it when i see the name here and that's not enough or if you like to reserve the balance of your time  correct i think that this court has demonstrated in countless precedents that the issue of design and creation can be decided by a comparison of drawings to accurate undisputed whether or not the district court below which the crown but counsel we couldn't affirm on fifty six because contrary to your brief when i looked in the record i discovered that they had and that they asked under fifty success for discovery if the court were going to approach this is judgment and there's no determination about that and as i understand the precedent in the relevant circuit when a motion like that is made the court can't simply rule on fifty six absent addressing whether there is or is not a need for that discovery that's correct and a you have to explain what you need to explain why you don't have it and you have to explain why you expect that the defendant will have it in order to get that discovery in order to defeat a rule fifty six motion on the basis that you need further discovery that was not done here seems to me if we find that the district courts actions were improper well in ruling under twelve b six because there was a determination of factual issues of some sort we would be we were to rule on the basis of rule fifty six we would be substituting our own factual determination actually if to me that's the appropriate district court to do in the first instance and to do it in the context of rule fifty six not in the context of the six foot rule fifty six is the cited as a matter of law it's not a factual finding that the district aquatics would have to find the absence of a genuine issue to real fact right which that it would be hard for me to say that no reasonable juror possibly concluded the two accused and don't infringe based solely on those two two photograph lot well i think there's a dispute between the parties on that because if you look at footnote five at page eleven of the district court's opinion which is under to the back representations of an original document or thing that are in the record and in this case this is no different than if they if they have been suing us for breach of contract and they said and they didn't attach the complain that under the absorbent ordinary observer test the court reviewed all of the photographs and it's no different attaching a copy of a contract to a probably six motion venator than it is  representation or reproduction by photograph of an accused product the claim is based on these pens and they can a vague early scrutiny of a case and get into discovery simply by not attaching a photograph that hadn't had photographs to case and we put these photographs into the record and they didn't dispute that those were the only pencil issue which is considered today the court will be entitled to review and rely on those photographs because they're under spirited authentic documents that represent the issues product and there's no reason to allow this case to go forward to expensive discovery simply because by letting them not attach some gaps to a complaint a bit too simple would you agree that prior to courts and i think they were sending a message to the court saying to lower court saying you know we're not changing the twelve piece sixten or there's a little bit of confusion because of one statement in connelly versus gibson and we want to clarify that the court should go overboard in settlements when there's no basis for the complaint you have to it lead to facts that state a cause of action and if you don't state a plausible cause of action right at the outset the court has the power to throw it out and not require the defendant party to do so spend hundreds of thousands or millions of dollars in gauging and wasteful unnecessary discovery in a design patent case couldn't be a better vehicle for that kind of analysis because ultimately on a summary judgment motion the court is going to view the photos and the design drawings and the court can do that right at the outset if it's a close case the court has to deny the motion if it's not a closed case there's no point letting the case go forward in this case as i noted earlier there is a reference in paragraph twenty to the attached exhibit c and d and then the counts are set forth in typical know this pleading style if the reference in paragraph twenty two the exhibits were is it enough after twenty simply to say we allege that the defendants are making using it selling it cetera pens that infringe well actually the way the second circuit has handled find very interesting that they basically say it's not it would not be enough if the twamley but what they say is that if the party can allege more specific facts it's really a question to be dealt with as a as a to grant a motion for more specific statement to make the plaintiff identify what the accused infringing products are at a minimum there has to be one is judged more as you as you rightfully question my adversary the plaintiff at least one chance to amend a complaint to identify a specific accused accused product of this more than one you you you notify you to identify as many as you can my hypothetical basically tracks the model form complaint for patent infringement of the federal rules are you suggesting that that model is no longer a valid model on common i think way as well but in this case there is there would be no need there's nothing that could be amended the plaintiff can see that there's only two accused products and those products are depicted in actually they submitted drawings photos to the  court there is nothing they will mend their complaint with respect to these two pen designs that would that would change the outcome that that could affect the pleading it's defective not because they don't plead the magic words that we infringe those are just closer legal allegations but because they've it's clear what the drawings are and it's clear what the product is and as a matter of law no reasonable jury could could find under any set of circumstances that there's infringe it is given to the full scope of the drawings as well protected even in that circumstance a trial court district court that's considering the goren test nevertheless still must find who the ordinary observer and apply the test through the eyes of the ordinary observer in this particular case and counsel concedes that the exhibit c and d which are the only exhibits that and the complaint are the only documents that the judge said he relied on in making his conclusion and my only concedes that those were incomplete representation of the accused product at the very least the judge could have called for asked for the accused product to be presented so that he could do the analysis but he didn't do that what we have is a record that shows that there is no right to kill ation determination of who the ordinary observer is or should be and the court was aware that that is a sensitive issue it's extensively address in the cases that were cited to the court no discussion we know that he attempted to identify specific features that were distinguishable between the two products and what he failed to do was to identify features that were similar and do the ultimate and correct analysis and erect correct analysis is whether the similar features create an appearance and a visual perception of substantial similarity instead what he said is there are differences and they can't be the same without applying the eyeglasses of the ordinary observer in the correct case and he did it on a rule twelve b six and it didn't give us a chance to even amend this motion should have been denied for the very for the for the first and most important reason that the moving already failed but before the court the file history in its moving papers they brought in at a reply the court should have conducted a construction that would have allowed it to determine what are the protected scope and one of the range of equivalents that are permitted the courts of lee said the group is different but is the bridge different enough to avoid equivalen there is no basis for the court to have reached out a conclusion they know analysis by the corner store equivalents and there is no analysis or discussion of the overall appearance or impression create you thank you very much time has expired and i thank you both counsel the case is submitted