dismissing in the technology nd i'm in a complaint under federal rule twelve the six mr springer let before you get into the merits of your argument i'd like to have your views as to what the standard of review is now in your dismissal and therefore that's the end of the matter but rather to say what we're talking about is the question of whether a relation back under rule fifteen c is permitted or not and that is it seems to me not the same question as to whether dismissal under twelve b six is appropriate so under looking specifically at the relation back to shoot what do you think is the right way for us to look at this novo are to give some degree of discretion to the district court  as we said in our brief this is a quote the six mo yeah i understand that i really think that that argument misses the point the point being that this is a relation back issue that we have to focus on and the relation back component of the dismissal that matters i think if you even if there'd been no dismissal the dismissal only occurred because the statue of limitations problem if there'd been no statute of limitations problem and it just didn't restricting your proof to less things like well so i respectfully disagree that it's a red herring and i understand you do so with respect that sheena von d issue i think you can still incorporate that issue in that consideration into the context of the motion to dismiss as a whole but let's say for the sake of argument that we do apply respect to the application of rule fifteen the all concerned none of those concerned a motion to dismiss for starters and for nd they all concerned whether it was proper to deny the cases relied upon relied upon whether it's proper to deny leaf or motion to amen original motion to dismiss was filed and transferred to colorado and prior to the district court in colorado considering the motion to dismiss that came over with them from california parties went to mediation during the course of mediation a declaration was provided we are familiar with all evidence or the admissions made in the course of that declaration opened up the case wide open for these other two patents and they did a clear cut case that we quite frankly the part and the thought the case could proceed immediately to summary judgment based on largely those admissions alone those flip chip on ding tool in the claim did that influence your decision not to pursue nine hundred and twenty seven dollars it made it easier this goes back to again the declaration and the statements in the declaration again and keep in mind this declaration is providing the context  mediation and then again after the facts what felt side the scope of any moral weight discussion this declaration was quite frankly the only evidence of record keep in mind there was no discovery of any sort conducted by the in the district court proceeding nor is there any opportunity to cross examine the declarant of that aeration so taking that declaration at its word that declaration unequivocally stated and again taking in its work with no cross examination it said we don't do any sort of flip chip bonding or utilize any ship money techniques here's what we do do and based on what they said here's what we do do that's why they said ok ok let's go let's go to gates explore in the for seven ok thank you so with that in mind and i think that you raise an interesting point your honor the issue here is the patents and what they cover because this goes to part and parcel in the whole issue in relation back these are not flip chip versus wire bonding pads these are dissipative tool patents inza did not invent  in transactions is the rule requires isn't that important that the initial patent claim that you relied on in your original complaint was directed to a flip chip bonding tool i eat the use of this particular tip in a flip chip bond to i think when you look at the transaction occurrence you look at the product that was accused of and cringe and keep in mind that the allegation of infringement in the original complaint as well as in the later nd i'm in a complaint was under the context of two hundred and seventy one g which concerns a product made by a method and in that context the product that was accused in the original complaint as well as in the products presumably but you're also making a presumption on the basis of a factual record that does not exist again there was no discovery and i think this goes back to pricing to your original question of what standard do we use and that's why we believe the no is appropriate because keep in mind we're dealing with the dismissal of the complaint at the pleading stage and when you look at a motion under twelve the six you're required to look at the four corners of the complaint you cannot look be on the four corners of the complaint but we're changing that complaint into a motion for summary judgment and while motions motions sought to do that the court declined to do so and addressed the case specifically on the issue of twelve b six so if you look at the context of the complaint itself and nothing but the this was evident not only in the claim language of the claims that were surveyed in the original complaint as well as the amended complaint all of those being met the claims were at least including method claims and those were identified at the outset but the specification to discuss is the invention of refer to the invention as these dissipative bonding tool tips to be clear the nine dollars to seven dollars involves a use case of a flip chip bonding tool tip in the context of flip chip bonding but it is not the invention remains to be flip chip bonding tool t that on page twelve its own order informal infringement attentions those informal infringement contentions were produced in advance of a court ordered settlement conference in addition to that again this is a motion under twelve b six so regardless of whether the infringement contentions were warm or informal whatever the court may have meant by that the fact of the matter is a rule twelve motion only allows you to consider what is in the complaint or the document specifically integrated there to for example the paths in those infringement contentions were not part of the complaint not referenced by the complaint not reference to incorporate by the incorporated by the patents but the complaint itself specifically reciting claimed sixteen right to it so if you take that in mind each of those patents also seek to overcome the issue of electrostatic discharge there's also the issue of overlapping inventors common prior art that can readily be seen on the face of the patents common examiners a common family tree with the common base provisional even quote unquote apartment parcel of one another and in that sense what does part and parcel even mean and the court we believe looking at the man decision and again there's no real directive from the federal circuit on this but if you look specifically at the man decision part and parcel part by its own definition means a piece of it's not entirety in parts of its parts so less than a whole parcel means an integrated component so there is no requirement of identikit how many are one hundred percent overlap it's a very now while specific brand names write down if i keep in mind rand names don't want to print a patent it's the product underlying it and the product underlying it are those again i sees in p c b s d and if you look at the language of the complaint as well as well as the nd in a complaint those brand names were not identified exclusively they were inclusive at the very least the two products that are brand names that you added in the nd amended complaint that those represent different products are  they simply different names for the same products they are you again there is that not under solved it's on resolved to some degree in the sense that there was again no discovery so the assertions and again the informal infringement contention were based  public record that was sketchy at best and involved quite frankly a lot of use of the wayback machine so the information available because these product sales did and people two thousand and twelve was limited and i see i've run out of time but if i may finish finish the answer your question the issue does remain that the accused product remained the same the brands there was an overlap of the brands certain brands were dropped between the original complaint and the nd a manic complaint but again it was specifically identified with respect to those accusations being inclusive not inclusive so for the court to impose this identical calorie requirement i think is an overly stringent application of arm parcel whatever that may ultimately mean but also in the context of rule fifteen s fall nd minute complaint and they indicated that those are the same claims that they had before that there was identity or substantial similarity and if that's the case then those are equally non viable knowledge the ninety seven points were and if they're not if they're not the same there are some differences there then there have a real issue with relation back and you think that as your opposing counsel has asserted that the infringement contentions being designated as informal are not binding as effectively amending the complaints not all you are those contention requirements and those were served and signed by counsel and those were as much discovery of we relied on when we present of the declaration that you've given up on to seventy one g on the one to some bonding system and if it's true that none of your products were that chip binding systems then presumably that would be a reason to not invite dually but that wouldn't necessarily mean that the products the cases say when they look at whether this is conduct transactions or occurrences there's a look at the underlying conduct and the underlying conduct here has to do with the tips the  chip limitation you have a soccer ball limitation that's added by c i p this is new matter this is entirely new matter it was added subs much subsequent to the other two but so much down the line and it's different technology and in this instance they did the initial complaints were saying that you must can you're doing that bonding you're doing the bonding the nd one came in and said there's wire bonding that's going on here not to look up there's no flipping around the chip and bonding it to a substrate there's just simply wire bonding that's going on and back as long as the underlying conduct was you know in this instance the conduct the party doing the bonding is totally different and the type of bond is totally different but it's still infringement just on infringement on a different theory i respectfully disagree that it would require entirely different evidence would require evidence of what micron or some other supplier how they were doing their wire bonding which has nothing to do with the  prior and prior allegations in the case and also as you noted there are additional products of the added to the case and there were there were products that they took out there was a only  products and and our sole client our sole involvement in the infringement is simply an acquisition we're in the stream of polymers so that's that was that was was part of the  not that we're doing any ongoing activity not that we haven't gone the activity now there were proxying methods or the really conduct anything in the process patent other than the acquisition and subsequent sale of a product that that they indicate was upstream but some other supplier was bonded according to their method and and that's much different than the claim that they had   and different parties involve if you allow stale claims to be bootstrapped on to fresh climes then it's going to nullify the statue of limitations and i think that it actually goes one step further is that honor and it just reports that the clink states that those contentions were quote informal infringement contentions that is the court's characterization not much and if you look at the course of the record with recent or not can you tell me where on the page i'm on and sure give me one second if you look it's five lines up in the conclusion section or left hand side this is especially true given that answer is quote but if the district court is going to rely on those infringement contentions be they informal or otherwise but in this case specifically identified as informal contentions prepared in the context of moving into a court ordered mediation the court cannot rely on those informal infringement contentions for a motion under twelve the six the court would have needed to convert the motion into a summary judgment motion which it did not do despite a request in the actual motion from motion the court clearly indicates  order that this is a motion to dismiss under rule twelve b six and nothing more and again that's why we can tender and the contents this imposes the application of the the i don't know standard of review but the whole reduced your infringement time to one day that wouldn't have been a motion to dismiss but you we would still have to review what the district court do it with respect to the relation back under a standard that pertain to the the lack of clear guidance and this is why this case is before you today but in that context again let's say we use the more stringent abuse of discretion standard the factual record is very clear these are dissipative bonding tool patents that are you current flow to damage the device now there are variations amongst the three but that is a common thread amongst all three patents evidencing that these aren't clearly dissipative tool patents that may be used in different form factors but they still go back to the same underlying conduct transaction the sale of infringing product p c b and i c b products which again remain the same in the original complaint as well as the nd and the complaint and that accusation of infringement under two hundred and seventy one g which where the other because discovery never commenced and that again goes back to the consideration of the motion under twelve the six the four corners of the document because that is quite frankly all the court had to rely upon and all the court should have relied upon in considering its order before going back more specifically with respect to the transaction occurrence the transaction occurrence i think that is not allowed as prohibited is when you change the entire theory altogether and again to seventy one gee was there and seventy when she was there on the day the case was dismissed assuming the infringement contentious didn't like it and so i mean they're pretty contentious didn't wipe it out which we contend the infringement contentions cannot be considered but that issue aside if you look at a case like karate collier that was a case that started off as a patent case and then later sought to bring in an antitrust claim and that is the type of a theory of the type of allegation that fifteen c says no that's not the same transaction or occurrence these were pattern infringement and considered that is binding so what are we to make of the fact that the district court concluded that the infringement contentions had the effect of narrowing the the complaint i think that at the very least your honor gives rise to your clear error let's assume you want to apply your higher burden of proof with an abuse of discretion this was a twelve the six motion and even if we ply a higher standard abuse of discretion the court cannot look beyond the four corners of the complaint the case law from the federal circuit to the supreme court as well as the district court and the th circuit is crystal clear it must look to the pleadings and the reason it must look to and only to the pleadings is discovery never commenced you cannot be making fashion determinations or conclusions based on a factual record that quite frankly does not exist