could reach but i know there will be about two that might wind up getting through instead of the third i want to go through the sanctions the issue of the sanctions order was improperly entered at b the first point the second point i want to try to get to is that the sanctions order after being ent unsustainable under fifty four c rules civil procedure under fifty five and out of the application of the case law there after third point if we can get to it your honour's is the collateral consequences of such a decision and how that that effect on nowhere was there any affirmative request for a default and in fact the way it was presented and the answer brief essentially took a census out of context that's not that was not the position so you're saying that the lower court's interpretation that you actually wanted to default because you weren't going to go forward with any or respond to any of the court's orders that the lower court was wrong in and in believing that you opted for the fault rather than to comply well essentially i think what the court is suggesting is that somehow there was a silence was a waiver and i don't i don't know that that's the case so when you made it clear to the district court that you had no intention of complying with the court's order right now i  disagree or are and what we're talking about here is and i believe if i'm correct in what your honor is suggesting is that we have a period of time in which there were depositions missed and a discovery conference that were missed within a period of thirty days i think that's what your honour's referring to and to suggest that somehow in a case that has been pending for thirteen months if not longer that period of time for which there were three separate motions to compel for which there were thirty thousand documents provided from fazer to the other side in response to all those court orders i think that taking this sentence out of context to suggest that you know we were saying to the court we want to default depositions and that technology conference should not have some form of replication from a court that's not what i'm standing here saying what i'm saying is one the manner in which they were imposed was improper especially after we look paper where you say phase your wish is to discuss this quote unquote pull the fault in these proceedings and i understand your honor that that was that was presented but that was not essentially what occurred that's not what happened and that's not what what when what the client was going through at that period of time you have discussions through one attorney mr achree in that thirty day period in which the motion withdraws filed and then you zero communications with the attorney about the scheduling issues related to the individuals so essentially what i'm i'm suggesting you got court orders and correct me if i'm wrong but my understanding is each of those court orders actually said if you don't comply with this order you will be subject to sanctions up to and including to paul and i can't deny that that's what it said but what i would like to try to explain to the court is that we have procedures for this and i don't want to lose it short of my time there's nothing within the orders of razors i understand but what i'm saying is your honor has suggested that somehow the court relied on phase or suggesting that there was a voluntary default and there's nothing in writing from the court suggesting that there's a voluntary default and in fact it never came from a voluntary default this came from a motion for sanctions after which we went thirteen months with motions to dismiss outstanding in contravention of juda sama but if we if we can your honor we can jump to the fifty four saying this is better this this one that's fine this is this this judgment that was entered goes well beyond what was requested in the complaint there's a finding of the lady there's an imposition not just against what the claim was claim thirteen for the data court on the firearm this electronic reasonably different from that but it went really different your honor respectfully went well beyond that and in fact it did so in subsequent orders so essentially the only way i can liken this in having discussions in preparation would be as if there was some claim against toyota for a being and this is the logic behind the trial bench on this one is that it was robbed this is from the language of the opportunity to make the determination and that's a direct contravention of all fifty five especially when we get the case of  litany as it relates to the products that were covered by that infringement determination what and i guess what i'm trying to say is that the preclusion is coming from an overbroad sanctions order and that the sanctions or was not rationally relates clearly to the products identified in the complaint is off the table right if it great i don't think that's what it does and it goes to the products that aren't even in the complaint it goes to all products so that's just you're saying don't remember this issue you know those and i apologize because when i was preparing i thought it would be easier for the oral presentation of the argument to present to your honor's in a different fashion than it was laid out in the numerical that's fine but is it what about this other issue you're not telling me that you've been enjoying so in any of your products i believe if if i may it was it was referenced initially under the section that you're on or saying as to as to validity  which referenced that the scope went to four validity was one of the issues we went further in that and i want to say i'm looking at i'm going at it now so essentially the opening brief from let me go to  at least presented to this court some of the sixty be motions which also contain those issues and this court's not prevented from looking at that i'm into my reserve time your honor for a bottle of the bottle thank you are well documented in the record in the court sanction order and in our opening brief it was certainly not an abuse of discretion at the circumstances of this case which were extreme and in which a phaser violated very clear and numerous court orders under threat of default as your honor you know what about the scope of the injunction and you know first of all you can see that the court had no authority to actually get there is that there are well treated facts in the complaint relating to the federal registration of the trademark and the issuance of the patent and the ownership relating to those particular pieces  to this infringement judgment cry but that's not the same as the declaration of the lead of the for all purposes well i think that that obviously in terms of and a declaration for infringement it subsumes the validity of the  supreme court said you know that's not working well there are two different things but the but there are well treated facts in the complaint relating to the ownership which gives rise to a legal presumption of the liberty and so there is there is nothing brookstone which is a two thousand and sixteen district of central district of california decision at two thousand and sixteen west seven six three nine eight seven which addresses this specific issue and it found that plaintiff's trademark and patent was valid on default under a real fifty four c and now assess based on statutory presumptions arising from the ownership allegation or the complaint in that case there was no pleading that was asking for a that if you know it's the same as this one where there was a request in terms of infringement and the court found that the that the factual allegations in the complaint relating to ownership of but one of my concerns is that once the contempt injunction and attempt to sell these products or to demonstrate them to law enforcement while this after this injunction was entered so we filed a motion for contempt the court held a four hour at the denture hearing and was at that hearing for the first time that phase or raise this issue of hey we have a product that's also called an enforcer conduct electrical weapon that doesn't include a date a port and so that's not a not infringing product that we should allow to be allowed to continue to sell the court in its and in its contempt ruling specifically found that that issue had never been raised and taser had never been allowed any discovery in the case relating to that that that injunction related to inforce or c e w's and that they had never prior to that time ever argued or provided discovery that there was supposedly not infringing product so the court then determined that because of that again because of their  abuse of the process and failure to comply with the several orders that it could not make that make that determination of and that they had then waive that in terms of whether or not there was another product in this year on of pointed out it's not raised in the opening brief here and it argument it was only as to hypothetical unnamed third parties that somehow might come into conflict with taser in the future and as to those people it was saying that a general declaration of the libby would be improper but of course those folks would bound by the infringement judgment and not allowed to a certain difference with the never heard before right yes that was a softball ok so and then the other and so i think there's no correction that's really warranted here on the on the record certainly there's no waiting the injunction and anyway if the if your arms would find that that language was somehow beyond the scope of the scope it can certainly be reminded with orders just to remove that particular language but i do think that your phasor has acknowledged that it has no impact on and there's really no reason at the time that the ball proceedings they ask for the court to have a hearing to define exactly which products it would apply to you know your honor they did not and so reconsideration for their purpose discretionary with the court in any event they didn't ask for it the court didn't didn't hold one and i think based on the again the well put facts in the complaint relating the ownership of the trademark and  cancellation action that was suspended in that court and there is language in the court's injunction order at the convicts fourteen paragraph four that bars them from doing that from challenging the validity or enforceability of that specific to the patent registration or the trademark restriction i'm sorry the seven eighty nine registration and and so they don't they didn't object to that language in the proposed order in front of the district court so again i think that it's college i was for the air there the holding in that case was not based on invalidity being a compulsory counter claim but instead that claims of trademark invalidity that collaterally attack a prior infringement judgment  cancellation actions so i do think that it supports that court the court language there as well also specifically want to refer the court to the district court in connection with the if the subsequent contempt proceedings address prohibition respect the prohibition about continuing to further that litigation and the court in the contempt workers specifically found that that that that language was proper based on phasers agreed just  particularly as a sanction when it's done as a sanction against parties who abuse the judicial process and so i would just commend those authorities to the court as well if this court were to determine that the appropriate at the given time so there's no confusion relating to that i briefly just want to touch on the second office action which is raised quite substantially in the in the reply  you thank you i must and if i may just to rehash a couple things here and that is we started with the imposition of the sanctions order and i think we should start of genesis the start of the beginning and part of what i'm getting at here is that we went thirteen months without an answer on a motion to dismiss the pleadings were not frame that quote from q to some and i'll read it quickly allowing a case  integrity of the public's perception of the federal judicial system and that's essentially what has occurred here so we jump immediately into with this court how come you said you were going to default why were you agreeable to a default cause the little guy got hammered in discovery for thirteen months with a motion to dismiss pending a second one minute but i want to try to get to also your honour's is that this court is permitted really  for those two and that's it that is there were other sanctions available there were other sanctions that were absolutely available and could have been used could have struck both of those witnesses any of those witnesses a trial they could have imposed financial sanctions they were they could daily financial sanctions none of those things occurred and instead they could have struck the motion to dismiss and require to answer an affirmative defenses also counterclaims if you had any and that didn't happen either and so essentially we have recommend any of those