from the final judgment so the first issue is whether they have thirty day period starts from september twenty ninth two thousand and fifteen when the district court and target and order and judgment and our position is that the september twenty ninth two thousand and fifteen submission is the final judgment on that order and judgment this record he granted jesus summary judgment motion for not infringement included several motions relating to g is invalid at the counterclaim and specifically i would like to focus on two motions that were dismissed as being moved  judgment that the alexy patent is valid over defendants section one of two and one of three defenses based on prior art references and that was inducted number six twenty three and it's an  one fifty nine so you don't really give any credit to the later decision by the court since its original order did not address to anything validity counterclaim i do not believe that the court's later decision has any impact on whether the original and treat was the final judge in fact i will discuss that but  the court dismissed the counterclaim as being and expressed well there's there's no doubt i suppose probably no doubt in anybody's mind except for the lingering doubt in the defendant's mind that that the court intended to end the case then and there the but the question is judgments need to be very specific and precise in order that people will know that the case is over and they can do things like file the notice of appeal and so forth it's very important that judgments be say exactly what they're intended to say and it seems to me as i read this judgment that it just felt a little bit short of state saying exactly what the district court probably had mind which was to probably go ahead and dismiss the kind of claims so when the court was served with a request to fix the problem the court fixed the problem why isn't that something that we shouldn't discourage by saying are to the problem was already fixed although only implicitly well because the original the judgment was the final judgment and in the well that the supreme court it wasn't if it didn't  actually dismiss the counter claims so that what the problem is if it if the judge had written the counter claims are dismissed then you would surely be right but the judge didn't say that the judge did not say it expressi say that well judgment here's a judgment that's a plan of judgment by implication because because you're going to you may well assume that that really wasn't less daughter indication you'll miss your time for filing a notice of appeal well that's why we need to be very explicit about that judgment the supreme court addressed this issue of the second final judgment that elaborates on the first the schaefer brewing company case and in that case the supreme court stated that if the first judgment it is the final judgment and then the there is of it dismissed all remaining motions as being moot the only way that those two motions that i cited it could be moot is if they found a claim was so therefore the honeywell case was cited by mr lexeme for the proposition that you can ascertain a court's intention by the circumstances the circumstances in that honeywell case your on it was very different in the circumstance we have here a jury found that the plaintiff's patent in that case the claims were not invalid the district judge denied the defendant's motion for judgment as a matter of law for a new trial effectively for those juries findings the district court issued a judgement and wow that judgement did not expressly dispose of the defendant's counter claims that judgement did acknowledge that jury special verdict form that disposed of those counterclaims so in that case the counterclaims had been sat on the merits and the court there the court considered precisely that decision of the jury in its judgment so here there is no decision on the merits for the judge to adopt the court did not address counter claim at all so i do think that honeywell is distinct on on on those bases at least also if you get to this issue of rule fifty nine motion even if that september twenty ninth order was final and appealable g s motion for clarification no matter what it's called because the case law is clear that the name of the motion doesn't matter addressed the fact that it was not a final an appeal judgment because the counterclaim was still in the case the court agreed then your honor we get to the issue of the standard of review here and this really circum combines with g e c third argument here and that is that the district court can accept untimely filings even f even if they aren't timely at the standard of review there is is that the most for clarification is not a full fifty nine motion the district court had discretion to accept jesus motion for costs and that's exactly what the court did but wouldn't good sense the court did not i guess discretion if we were to find against you on the first two points and so it's so we don't see in the case law that that type of explicit exercise of discretion is necessary ok so so we don't believe that that type of remand w focus entirely on the question of whether the court having been told that there is the final judgment occurred in september and that the fifty nine the motion did not have the effect of tolling the final judgment time wouldn't the district court be the one to exercise discretion as opposed to having us do the exercising of discretion for her so i  think there's two issues so the first is does the district court have to explicitly exercise that discretion we don't see in the case on a requirement that the district court has to explicitly exercise that discretion but we also think that the abuse of discretion standard applies to the role fifty nine motion issue so in order for your hypothetical to actually carry out the court would have to find that the district court abused its discretion in any indication that the discretion applied by the district court has to be explicit in that sense even in a situation where the district's actions and saying that this wasn't a final judgment and such kind of shows that the district wasn't exercising that discretion so it's so good this report did not explicitly exercise that right but every maybe the facts in this case i mean just looking at it it seems as if the  didn't say that it was an exercise of discretion but it seems to have taken a different approach that would suggest that it did not exercised and that different approach or honor was to to accept g s position on both issues on the september which should be afforded deference by the scored for the district court mr alexis counsel has made much of the fact that the motions for summary judgment were dismissed as as moot and and by that he argues that therefore the court intended and i think the agrees the court intended to dismiss the case absolutely the court intended to dismiss the case motions simply left the counterclaim for in invalidity ready to stand for trial but you don't really argue do you that that the district court i didn't think she was done with this case i so i mean if she was done with this case she was only done with this case if the counter claims were gone right and absolutely right so should judge she had every intention of dismissing the counter claims i thought you were just arguing that well she nothing in this case that circumstances can be such that she intended specifically to dismiss accountants this court has addressed this issue on a number of times even when a court believes that on the issue of rule fifty nine motion your honour's for the seventh circuit law the substantive post trial motions that are filed within twenty eight days of the judgment are automatically treated as will fifty nine motions so there's no dispute that this was filed within twenty days that motion for clarification was filed within twenty eight days of september twenty ninth motion the issue is whether it was s so mr alexie makes much of the fact that it's called a motion for clarification what g e asked for in that motion was not clear at all dismissing a claim in a case i that point that case is not dismissed because effectively the court didn't that effectively deal with the congress claim in this case the court effectively did deal with the counter claim because of dismissed mr alexi number one a point number one point number two that i'd like to make is that she is referring to heli cases for the proposition that the court can basically ignore designated as the non presidential was because it had very unusual facts in that case the judge slagle in that rather than district of illinois has its own procedure for how to deal with claims in his