where in the summary judgment of the pack course of the case that we raised this therefore the district court committed a clearer back and that also was abuse of discretion that those are the sole basis of prejudice without those you cannot have and d i understand false representation is part of the or unfair competition claim it is that after the claim construction point in that in the trial there were continuing false representations with respect to infringement at a point at which the defendant should have known that there could not be infringement is that a fair statement is their stated did you have offered to the court any evidence that there were continuing representations after the markman determination  to potential customers actually the representation had more to do strike your art and it had to do with it and our allegation that cameron was representing the industry that the trial court findings were the state of the case it isn't sufficient simply to state a claim that would survive a motion to dismiss for failure to state claim but you that a court has the discretion to dismiss for failure for on the ground that for example is summary judgment could not sufficiently be withstood so if those cases are applicable here the it would have been  far as i can see not not in a circuit case is just my question is really if that standard is applied and i guess your answer is that well whether it's applicable or not it wasn't applied in this case and therefore shouldn't be held against you of the district court's erroneous statement made may have some bearing when the district court gets to the point in its opinion in which says the same arguments that is timeliness and on and prejudicial nature this is on well addendum thirty i think it's a different page in the joint appendix of using that but i see that the court says the same arguments also apply to a lesser extent depicts proposed new counter claims despite having statements to the contrary and that's that's the on that point to the extent that your argument is that the failure to raise that misuse in the connection with the patent part of the case is rescued economy as to the right to raise the is a situation where the district court looking at this case management in running this case has come to the conclusion that it wasn't appropriate and rightly so to allow to big to bring in whole new counter claims and so our in the merits of its counterclaims in the amended counterclaim and it dancing arguments that it never really been dance below in trying to get these counterclaims into the case but the district court problem tonight them in this instance in looking at the futility issue and what is the right standard in the it's tricky do you think as to what a trial judge should look to with respect to whether a sufficient weather senate says it is untimely and prejudicial kamin to grant having another opportunity to make these arguments which of course is predicated on the notions argument and then that sense is that into the parents relate to and i would suggest that the same logic that was applied to the by occasion at the beginning the character names deal with issues after the seven one four and our common issues of fact still apply now and that goes to the issue of the district court finding