you didn't have a chance to develop that discovery is that right we had no opportunity whatsoever discovery discovery works at least close to us as to everything except for the standard question r i was trying to communicate with judge wilson and saying that we can't do this by the way judge wilson were the tag team just because we're the defendant we're the patsy and i don't know third there's not been no prior are listed was infringing these are not just coming from china and various manufacturers that the system if you find a good product that you go to hong kong and you have somebody there say find a factory in china they cannot this off so the ok do you have anything further well there are eight independent reasons for remaining i have discovered probably all of the songs some are easier than others are the easiest one is to find that a cla is invalid based on a combination of items and when one of the common items is even prior art if we would agree with you that the district court abused its discretion in granting summary judgment without allowing to scott cory and further proceedings do we need to go any further yes that we gave it if we can resolve it and i are you arguing against that i mean isn't that the easiest way for you to when we vacate and remain on the ground to summary judgment and send it back so you can do the discovery ask that i think i just said we're going to take ok and other that was to give us the discovery you need to dismiss it it's really important to listen to the judge's questions i'm not trying to trick you here or trying to decide what's the simplest way to decide this case which seems to be the big kid in remand to give you the discovery you wanted and work of it isn't that the easiest way to decide this case yes with the addition of striking the or granting or motion to strike in which the new prior art was brought in they served lie and expert affidavit was brought up words we never had an opportunity  invalid correct right ok now the bed in the box it was left unclear to me when that came in and you have an argument that that was not in fact prior art because it didn't lack of proof yes ok need to take a step back and understand that in fact the district court would have attempted to do that and i would argue successfully was to tailor the issue it didn't cut off discovery didn't say you can't get to any of these settlement they had perhaps it was because it was their summary judgment motion and the only thing they had to lose was their summary judgment which meant if they lost it then went to trial and hey they might actually get some discovered before the trial  maybe that's why they didn't do all those things you're suggesting because you never actually filed a summary judgment motion invalid and the court never put it or the notice that that was something that might actually occur so that all they had to lose was their own summary wasn't but that's that's the critical question for me too as with the presiding judge what was the point at which the district judge effectively communicated to your opposing counsel that he was at risk of having summary judgment of invalidity granted against him was there any point at which that happens i believe that was in the may second twenty sixteen hearing where the discussion  ok so at this point in and i'm looking at appendix ninety two judge sure judge the court states are listen what i'm saying here ordered to make a motion in three weeks on the validity on the question of the district court indicate that mr wallace and his client are at risk of having summary judgment of invalidity granted against them well i think that in the event that they were to what happened in the record that's this coursework or your honour's view i think that there was a series of discussions leading up to how this matter would be we saw and over the course of our belief four separate hearings there were discussions fact prior art the best in the box is an interesting issue because it seems that the only reference to that was awful lot of that somebody detected on the internet and so i don't believe there is any hard evidence that indicates the whether or not that's prior art i don't necessarily think that the district judge hung his hat on that particular bed in the box i think what happened was when the tiffany babe came along the district court recognized that oftentimes the litigation litigation in the pa context is far beyond the dispute of the party and the rulings are broad sweeping in the effect commerce in general down the road and i think that when the tiffany bed was in fact discovered it was demonstrative of prior art that's fairly high point using the gems that are inside the storage and the court recognize the importance of that and afforded xena's the opportunity to address it and that was with what we've discussed already about the validity as i i believe you all know or semi's there was no notice whatsoever and the discussion about bringing a summary judgment motion on from may second that was way before the invalidity the statement in the twenty six f report is that the case could be disposed of early with a summary judgment motion for infringement and that is what was there first contemplated but in both paragraphs and he says someone with ordinary skill in the art would view the tiffany bed the ask one bed and the bit in the box where all the pieces fit in the compartment and combined sees reference of so that's