district court overlooked or fail to understand advantage here is claiming that defendants design without a cover in other words the design we have a patent on infringes i'm not sure if that was that's a fact and that's in the complaint for me to find the complaint in the record in twenty three it is absolutely a fact judge clevenger that we put a picture of the defendant's product with the cover in the complaint whether or not that was what drove the district court to conclude that we were claiming only the iteration of the defendants you hadn't have th i guess damned if you do damned if you don't on that one week that was the only picture we had and we thought well we should it would be helpful for everyone to know what product were claiming however we also included  complaint an allegation that specified that what we were accusing is infringing was the power pad to design that and this is that a p p x twenty five paragraph seventeen of our amended complaint says that they have infringed and continue to infringe by making using offering for sale and or selling patented design without the authority of advent and so we made that clear in our complaint and if it wasn't clear there are two things that i want to bring to the court's attention and that in response to the motion dismissed i believe the standard that district court was reviewing our complaint was twelve c motion so the district court was required to construe all of our allegations and inferences as true if you want to amend your complaint presum would take a picture of how sure of a problem i'll go even further than that judge clemens or we have new pictures with them affirmatively marketing the product without a cover so we would replace the old more from your mindor didn't address it you know your honor i i can't recall that i know we have mended prior to the defendants answering to add some alternative claims and i don't recall and we did not file a separate motion but let me say this because i'm actually demanding that oral well it was in our brief and the reason why it wasn't oral was because the judge took the matter under submission so we never had  two unity to appear in front of the judge and i just want to make one point clear on the leave to a man because i know my adversary took issue with the fact that our request was in a footnote we're operating here under ny circuit procedural law and the operative case that i want to bring to the court's attention is sharkey versus o'neill this is seven seventy eight f three d seven sixty seven seven seventy five i'm sorry insight seven seventy four this is a two thousand and fifteen decision of the ninth circuit and it says i quote dismissal with prejudice constitutes an abuse of discretion where the district court fails to make a determination that the pleading cannot possibly be cured by the allegation of other facts and this is the important point and this is so even if no request to amend the pleading was made so where we're from the ninth circuit it is reversible error to deny leave to a man even if we never mentioned it which we did and so i think under these design in our view the designs are exactly the same and that's what we alleged now they're going to say that but we added a removable cover and that's the design that you decided in front of the examiner to withdraw but again the key point here is that we're not alleging that they're designed with the cover is the infringing product we're alleging that a component of their cover that we use they just can't use the underlying structure because we have a patent on it and that's that straight from the samsung and apple case saying that a component part of a defendant's product can infringe it doesn't need to the with a certain timeframe you're saying that you think that was done that's my understanding  pacific coast actually supports us there the plaintiffs claimed a variety of wind shield designs ultimately patented a single design with four holes and then was accusing a wind shield with three holes that it had never abandoned and the court this court found no a stop a lot of those circumstances here as well the product that the they were using of infringing is the underlying shell or the cage or we've called that the skeletal structure it's everything except that vinyl on top of it and that's what we own the patent in and that's what we never withdrew when we were in front of the patent office so under the claims that were brought up relates to infringement of a design patent and this appeal i would posit relates there's a common thread which is notice and this is what i want to talk about a bit this morning is the notice function of sometimes you know where they're from the comparison of their product as opposed to their design that does drawings there is a certain facial similarity to one of the figures i would agree with that your honor but they are there are so many with respect under pacific coast your honor you're stopped with respect to the design that you have surrendered so the design that they surrendered was an ornamental design  were relying on the federal circuit's decision in pacific coast your honor which is on all fours with this case it's exactly the same circumstance a design patent with such different sets of drawings and there was a restriction requirement by the examiner and based on the restriction requirement the patent applicant with true certain drives that was held by the federal circuit in pacific coast and if you look at the appendix page twenty four the body of the complaint this is their first amended complaint it's very clear as to what is accused of infringement it's the whole product the pet companion outdoor cat count on and that is specifically a defined term in the complaint but i think there's a little bit of him because you would be here because yes they point to the commercial product you have out there on the market but the commercial product you have on the market has it can it is at least similar to the patented design substantially similar just looks like the over six design your honor i can understand an argument that the complaint can be read in different ways i actually don't agree frankly but i c see how someone might argue that but i would say when you read the actual text they're the master of their complaint and they said they're accusing the product they didn't say we're accusing the cage with the skeletal structure they said they're accusing the product and they put a picture of the whole plea an amendment has to do more than just have threadbare concludes restatements ok they can't what they want to say is that they're accusing the patented design that's not what they did in the first minute complaint that's not what they'd be allowed to do look at the drawings ok and i understand that that is sort of a very rough way that people think about design patterns if you look at appendix page fourteen which is i would urge your honour's to look at appendix page fourteen the first page of their past there's one sentence under the heading of claim and the one sentence under the heading of claim in their pat the difference between the cases that are being signed we surrendered in response to a restriction question respectfully your honor the federal circuit in the pacific coast case stated that when you do that it is  reason a patentability that you're not going to get your patent unless you do that and so therefore it does count for prosecution history stoppel as a surrender for reasons of patentability i would understand your honor if you choose to take issue with  different question but dietl i stated in that case but i do really want to i know i'm my time's getting short here and i want to answer judge five interest question about amendment and and going back to notice they did not file a notice motion so they didn't say if we are if our pleading is defective if prosecution history stop applies based on what we were kids in our first many complaints please give us a chance to file a second amended complaint they didn't do it in a formal motion not saying they had to but they didn't they didn't they did in a footnote and the key thing that they did was specify what they would have done in  so they shouldn't be given the benefit of any possible pleading under the sun but they said what we would do your honor is allege that during assembly you can see the skeletal structure is i haven't made my my main point to you which is with respect to amendment they told judge real there were two things that they could do in an amendment one was to say that under common sense during assembly you would see the skeletal structure without a cover and as a matter of law that is not enough and that's judge real this right you can't i'm fat would not be enough it's a fine infringement because you don't look at it during assembly you look agree that if their patent were for a component then you could have a kind of a complaint on this one basis right we think that the complaints frivolous for so many other reasons design perhaps a piece of the design is at least hidden from what if you look at it from ten feet away you have to be able the ordinary observer has to be able to see the aspect at beyond assembly so all they said that they had evidence was that even say evidence but they said common sense is that you see it during assembly and then they said discovery would likely give them evidence that is not the basis for a complaint you can't file a complaint saying we think if we take discovery we'll have a dense and so they did not have a basis for an amendment and that's the only thing that was in front of judge real so there was nothing they put in front of judge real that we give him any basis for thinking that they have any it thank you your honor i can remind the court that under the shards of case we didn't even have to mention him and then it would have been an abuse of discretion for judge real to do nicely even if we hadn't asked that's the law of the circuit and so counsel's arguments regarding what we said what we might do are irrelevant in fact what we would do is include a picture of the actual accused inside the skeletal structure and we would include allegations as to how it's actually used to judge chance question in terms of infringement we know that this court has sa that you have to look at the entirety of the profit of the product when judging from infringement the contest the case the bottom of the shrimp tray the crocs case the inside of the shoe we're not just looking at a particular piece or we're not we're not only looking at accused products up close we're looking at the entirety of the design finally overall point what the defense are asking is really a gotcha result they're saying well you used the wrong word in your complaint you put quotes around accuse product so too bad we can forget about what the defendants did summary judgment case close that's not fair my client did everything right here great in original interesting design it applied for a patent the attorney chose one iteration and now if prosecution history  the patents rendered worthless just draw a vinyl cover over our design and you're free to copy to exactly that's not how the design pattern laws should work and i don't think that that's the message this court wants to send what would you say it's pretty ok well there is some kind of ornamental design requirement and i'm just trying to figure out what is it that you think is the ornamentation i'd say art is in the eye of the beholder and in the eye of the examiner they found it ornamental enough for it to be considered a design pattern and i'd say the say i'd say it's prettier than the shrimp tray and contents and perhaps the ha ha in international s