sixty to eighty five is designed to address to say well we're going to cut your fees off at the trial but then after you have an adjudication of an equitable conduct say no we're not going to give you those fees it infected every phase of this case any then without abusing is his discretion for a quantum divide the case in the face well of a you get this much that was fine but he never gave a and you get potentially fees for the whole case but she said earlier is correct is it not that under jean as well and she makes very clear that you can take into account the different phases of cases and would do so the field or well  gene is there anything arbitrary about what judge also did yes there is the wrist something arbitrary about it if you look at his decision he did not address the basis of his exceptional case finding he talked about litigation misconduct but he didn't give a rationale for why the original the original basis which was bringing the suit in the first place didn't in fact every stage of the proceedings and if you look at the p p g case this court case i think you would you would have to you would have to in following that you would you would have to award fees for every phase of the case because that issue in fact in judge out of the dress well  that he didn't appreciate the fact that under sheep e g for example and i wonder mathis that the exceptional case finding followed along the entire course of the case right through to today it still doesn't answer the judge also in titles exercise discretion you do need to show that this is intolerable that there was no way discussion could have been exercised in this direction well he had to decide the discretion think i think well i don't know whether judge nelson followed the appeal proceedings or not i don't know whether judge allsup you know we didn't exercise discretion i mean that's your point i mean he said the appeal thing is separate from the  real rationale that under jean is not correct that's right so he has the discretion to reduce the fees but he didn't purport to be exercising his discretion he purported to be drawing a bright line rule and saying appeals are each phase of the case separately in the quantum stage although he may have erred in reading the exceptional finding as is that this case went on for eight years they pushed this case for eight years they managed to a row the fia were by well over a third that's what's not fair about it section two eighty five is designed to prevent the gross injustice involved here they didn't win anywhere i know that abby talks about the fact they prevailed on the on off i don't see it that way they didn't get the reversal that they were looking for they got a vacating of it based on a new legal standard but then we went back under a higher standard and we w conduct rule and now again we went back on or on remand one again the appeal than any drop their appeal i mean our clients clearly prevailed at this case at every turn there was nothing in the on bond decision which which is which is what which is what they rely heavily on did you talk to us a moment about judge also its findings that there were some problematic and troublesome aspects of your fee claim including some submissions fo all together where attorneys built over twenty four hours a day well i would suggest respectfully your honor that that's actually i'm happy to address that not relevant to the actual question but what happened there is that we sued originally on four patents we won on all four three of them were invalidated and so what we had to do was go back through our billing records and it was just really an accounting thing where we were we had to crunch numbers and go back into iraq was a very complex and expensive project which actually we didn't we didn't see compensation or so there were mistakes ultimately the special master in judge allsup was just fine with what we did and we were awarded ninety percent of what we asked for of prot but it was just just  thing and i was actually surprised that i've made it and made a big deal of that in your brief because that was all taken care of by the district court as a very difficult project so you approved of his discretion in that area well he has discretion in  is post judgment interest he judge also committed error in relying on topic and he effectively determined that if a case is vacated that the post judgement interest has to be determined from the later decision not the earlier decision and he committed our own because the actual legal standard  there has to be a legally sufficient judgement from which the interest has to be base judge else original decision back in two thousand and eight was a legally sufficient judge it was it was kept the facts were consistent with the law at the time it wasn't like many cases where cases every man did back to consider factual questions where the judgment was not sufficient at the time now if you look at some other cases and i apologize for this one case that we didn't  six million dollars payable if the inequitable conduct was upheld on appeal course it was not and that gave you plenty of notice as to what's going on well actually if you look at the if you over in this case but even even if you do even if you accept what that is even if you accept that reading of the order the case law would override that in terms of when the post judgment interest would apply from all right thank you  exceptional case conduct has to be continuous throughout the procedure where where does where does gene say that gene says there's a single determination as to whether a case should qualify for an award of now what you're saying in take under ija if this were an egypt case that the district court's reasoning here would be incorrect and would it not it may but the result would still be correct which is that this court and its on the inequitable conduct ruling which was the sole basis but i don't know do it it's a single determination covering the entire case the district court under g s has authority to reduce the feeds as discretion to reduce the p's on a number of different grounds and perhaps that would include that the appeal had merit perhaps but this the idea that these are two separate proceeds is simply wrong under jean right i mean there's no question about it may be wrong for the court d initial fear order which was a two thousand and nine three order with conditional and to read and this is on joint appendix one four five seven eight the court specifically said that quote following the exhaustion of all  the determination here after the reunion proceeding it's in the joint and the and i don't see where he says it's an exercise of discretion i see him saying appeals are different it's a separate goes on to say supplemental fees are not warranted in this case there's no frivolous litigation there's no bad faith and no litigation the conduct so is that a finding specific to this phase of the litigation activities troublesome and problematic and we talked a minute about some of the attorneys claim more than twenty four hours twenty four hours a day the initial fee request was for eight point three million dollars and after more than four rounds of free petitions including the assignment of a special master the ultimate fee that was awarded on on in two thousand and twelve with nearly six million dollars very in this this is a judge who may be an equitable conduct terminations this is the judge who is closest to the underlying conduct and the litigation proceedings who made expressed findings that neither the appeal we believe that under that national presto broke tree versus a and b is not inconsistent with cheney it gives the judge the opportunity to view the proceedings there's nothing in there about apportionment of fees what the court did is proceedings was exceptional reinstated the integral conduct determination but awarded fees from the pre appeal judgment and this court reversed this court reversed on the grounds that the post judgment interest should run from the date a proposition that one should consider going to tallahassee of the proceedings and i understand the position of gene but just to be clear there what the court did is the lower court apportion the fees and denied fees related to a p t o proceeding and what the judge there said is that those proceedings were inextricably linked to the district court proceedings and therefore rejected on that basis so p p did not ok quickly your honor i think the thing that troubles me is when judge also said the appeal had merit given his original decision and decision on remand i don't understand that and i think it really basically underscores the point about the abuse of discretion and that the decision to cut off the fees after the trial was really arbitrary because if you look at his original district court decision in effect on the doctor saying you're always disingenuous excuses were not employed were not plausible an inconsistent in judge dyke was on the original palette case and i guess everybody was involved in the on bond but but but but the facts there are pretty egregious and so for judge outs of to say that the appeal had merit i found to be inconsistent with his actual actions in determining the an equitable conduct and also determine determining that this case was exceptional generator i want to get back to your question about about the twenty four hours because you brought it up again and i want to make sure that is very clear on that we were sued under for  were not divided out by patent and so we had to go back and we had our accounting department try and we had taken him out we had to manually go through docket entries for four years of entries mistakes were made and that's all it was it was innocent mistakes and we demonstrated that so there was no bad faith there on our part we were trying to get any more money than we were entitled to in fact we got a lot less money i think than we were entitled to because we didn't put in for fees for a number of things on act case and we even now have a third of the over a third of the award being having been have been saying it was problematic and troublesome which is what he did you mean on their billing records are billing records is up the surgery i think that's exactly what he  finally i just want to bring up on disk want society to ace where the ninth circuit said like other circuits we have rejected the idea that post judgment interest sort of should apply only from the date of the second judgment whenever the first judgment  reversed reversed and remanded so there's no per se rule that one is reversed and remanded that you have to go by the second judgment from the day the second judgment rather than first judgment and then i would take up the court's time with this but this number of factors in this case that the