hundred thirteen board of trustees of the university of illinois versus micron technology mr shirts  issue with respect to this sort of litigation we're invalidated by the piece having that judgment was affirmed by this court are you seeking work seeking fees for work on the patent aspects of this case need to be related to the work that was done with respect to the and reasonable conduct that that makes this case exceptional and then reasonable conduct rose when we went back to the district court nearly four years ago following why this isn't the case in which we ought to overlook the waiver because the answer is so clear or your honor it's wrong on the merits because the positions that the university has taken throughout this litigation which is that it could not prove a breach of contract clear throughout how they've taken positions it bounced around with positions they say well no it's it's not had infringement it's just you know practicing the claims and that's not infringement and linear type resolves that migrants favor but it is very very clear that the univers for practicing the patent and the other is just practicing a pat so you know what once there is no valid patent right there can't be any liability for anything you do under that patent why it is their argument not simply we understood that the proprietary interest that the contract we  say obliged us to to honor by is exactly what would be covered by practicing the steps laid out in the claims call that infringement we don't care whether you call it infringement it's the definition of the interest why would that be on the interest spiro as opposed to that because you get your off side of the line about two eighty five coverage well you're all right i think the inner spirit calculate damages and that's the difference between a lot of these cases with respect to breach of contract claims as there is an actual license agreement there hires wealthy parents you know but in order for them to prevail and have to show what a reasonable world our reasonable license fee would have been here in order to determine what a reasonable license fee would have been you certainly would have to consider pattern issues well that's absolutely true and that's what the university pursued downlow the university pursued its pat license agreement with out getting into patent issues in order to determine the amount of damages you'd have to determine what a reasonable license well was in order to determine what a reasonable  and not infringement and it had to pursue all of our patent infringement defenses as well as defenses to a trade secret misappropriation claim there was an attempt to backdoor that in to the case which we heard was they could proceed in this case was an exceptional but by failing to consider eleven different circumstances in the record low that we raised to the  precluded the literature doesn't have to write an opinion addressing every circumstance well by focusing on the rule twelve standard the district court necessarily failed to basis of evidence of a reasonable conduct of a particular and reasonable conduct that goes unreported a lot and that's exactly what we have we had here as well we raise a number of issues of the universities unreasonable  how did the case in that this record get to the point i didn't think it did get to the point where there was any adjudication or even preliminary adjudication about whether if they were right about their view of the work agreement and what they would have to show is that the commercial use met the terms of the claim we don't have any opinion that says anything do we about whether the university you mercy did not didn't have no other position other than we preach disagreement because there was an alleged infringement that occurred and it's this you were doing things that the claims read on let's just call it that forget the word infringement that's really i think one clarifying we don't have any litigation do we about  adjudication about whether well that what you were doing during that was like two and a half years or something that's really at issue here for either the claims read on that activity or didn't there were there was no would you cation per se there were a number of pending was going to prove a pattern infringement of invalid patents and it was going to prove that you took activity covered by the claims that's another way of putting it but that's just part and parcel with pretty but what you are appealing to as outrageous is the notion that they were going to prove patent infringement after the patents invalidated that depends on the connection between validity and an ability to prove infringement apologies you know i don't i don't believe there was any way that the university could have proved that our products practiced their claims or claims or avoid that issue oh they don't exist after the invalidity there's no ip there to protect there's nothing to practice it's a on that and they gave it up early in the case and this wasn't significant to make it different from to make it stand out from the usual run of cases right where we don't know what the what they  spent a great deal of time talking about how the patent issues are intertwined with the sale of breach of contract issues based on the way the university actually litigated the claim but that's not the standard the supreme court in christian simply called industries stated very clearly yourself made as the only assertion of what they preach was the assertion that they were practicing the claims here i'm not sure that we necessarily made that exact aspect of your effort to show three was separate from an effort to show that they were engaged in activities that the claims read right on well your honor other than the assertion briefly of trade  misappropriation i don't think that the way the case was actually litigated was divorced from the underlying pattern issues that it is true that our our theory as we actually litigated it was contingent on showing that they practice to be a certain claims but ways in which the university could have shown that my client breached the work agreement without resorting to pavlov's for example if you look at section two eggs which has been a big part of you know book both down below and here the way the parties of it discussed a proper interpretation of the agreement migrated for example taken the waivers at the university of the old for them instead of perform experiments on them just threw them into a product and started selling it that would be a clear violation of the contract with the university wouldn't have to resort to patent laws to show them i c agreement and to just explain about you know the reasonable royalty calculation that being in or twined i think that university would have had to resort to the entire market value or anything when you sort of cat theory of damages to show how it had been damaged by violation of the work agreement generally we didn't limit the allegations of breach to a particular section and it's the way the complaint reads that is determinative of what how or whether the claim arises out of the but why should be are rising understander to be the same the standard for determining what piece of the litigation is covered by two eighty five because court disagrees with that position and that section two eighty five does apply there's still no basis to reverse the district court's discretion that this is here they provision that to see that you rely on this for the contractual obligation is it includes and is language about intellectual property great so doesn't that require it is this is not a contract provision that says if you perform the process described in claims one through seventeen six to form patent or something then you must pay us this is one that says you have to agree in your view that there is an obligation to take a license which is the subject of the first case is about an obligation to take a license for intellectual property once the patent was he a you know that's a statutory right that the university has a right but if the obligation is limited to an obligation to take a license for using intellectual property then are we now back into that german name case trying to figure out whether before the cole or something whether it's license whether the kind of contract in your view you posed that obligation but in the event that the universe like for example if the university ends up winning hypothetically speaking one in the court below on its interpretation this then the show a case becomes available because of that analogy at the most in the motion to dismiss staged the district court case that question decided that the university's reading was the most reasonable reading and so we can reach that second question of whether the shell oil case applied and concluded that it did and this case would case applies and the district word felt that it was necessary for it to beat a dead horse and that's a direct quote from its order on a motion for reconsideration and the reiterated the entire paragraph of its order on a motion to dismiss on why the district court didn't abuse its discretion saying that the university's breach of contract then was exceptionally meritless turning to the way the case was litigated and the way or of the reasons for the university bringing the case to begin with property but even then that the university did not rush to court to test its claims it approached my crime and attempted to resolve the dispute amicably outside of court during those discussions it tessa's theories in my corresponded and even after those discussions fell through the university didn't feel that my cross responses were sufficient to make it question the viability of its claims but even then it's still  wanted to defend the integrity of its intellectual property in its work agreement process in migron minutes that's the case and it's in its briefing and the motivation to implement a statutory pattern right or to force an agreement between two parties is not improper motivation to bring a lawsuit in providing it settlement discussions or at settlement calculations university provided detail breakdowns of what it thought would be a reasonable recovery and trial math explained why it may be that the settlement offers in migron actually hasn't challenged the accuracy of that math or challenge the royalty rate that the university use making those accusations you said a couple of times in your brief something to the effect that the by goal act requires or encourages i forget how strong your word was the university to go out and  press such patent rights as it has mr i believe the word i used was obligates so where does that come from in the fido act i mean there is a general obligation to commercialise which might go no further than to say try to get it out into the marketplace but that doesn't quite cover and go out and make sure people pay for it i believe that's true your honor but i  owner is going to want to press its rights to read it over what and by i don't i mean i can't imagine but i haven't read all of it so and i guess hoping for quick guidance i can imagine something that says we're going to give the universit certain kinds of special rights and protections and in exchange we want them to go out and collect money from commercial users so they can feed that back into university research and maybe then you know the national science foundation will be able to reduce its budget and not