he did he said he certainly said he reviewed the totality of the circumstances but in fact what he did is go through the facts and look for a cultural basis to support honeywell's position but what he failed to do was to look at the facts colorable or subjective good faith belief and if you look at the facts in this case objective really only three there are two things we need to establish the first of the three things that we needed to establish the first was ready for patented had already been conceded with honeywell's argument of reduction to practice the only two things that we have to prove that there's a commercial offer for sale and that what was in that commercial offer for sale was  airplanes and parts was may still have been in development but there's no question that this guy acumen constituted a commercial offer ok the on page section one page one it says the price offering in contractual terms and condition is submitted by honeywell in response to boeing's request for proposal this complete proposal is provided at no cost firm fixed prices are provided in section t n relied on for what was in the names proposal he relied on vine three which identifies the two lens array refers to display units like a number nine and then he looks at all of the documents and testimony from the inventors so for example all of the documents that he relied on insights in his decision refer to the part inventors congratulating each other on solving the problem using to two lines or a quickly send this to the manufacturer and get these three display units built with the two lenses ray and we're going to send these to boeing then in volume three it refers to a directional fuse or with a horizontal and vertical component which can only be accomplished with a two lens array it expressly offered to just display directional display like the you number nine and there's no untenable to argue that the two lines really wasn't being offered so what does honeywell argue honeywell first argues that the two lenses really wasn't offered at all and then when you look at the language in all of the documents that the were going back and forth between the inventors the fact that inventor mccartney wrote a directional diffuser section and a reference to specifically display unit number nine which had to learn to rate it was untenable to argue your position that when you look at these documents again a judge finding his conclusion that it was untenable display unit number two was not offered and that it was off that in fact it was offered and then when you look at their language of the commercial proposal this is probably the most detailed and complete offer of celts i've ever been a contest are saying that i've started to look at the materials that you're presenting right my judge starts states that i recognize of course that judge farnan made a statement to the effect that honeywell knew it had made an offer for sale but this is not in the courts view the same as a finding that there was no reasonable basis at any point krieger litigation or during the litigation for honeywell and or its attorneys to believe to the contrary it's our position that if you have knowledge of a commercial offer for sale then there is no reasonable basis to argue against the specific documents and the rules thirty six witness who is designated the invention had reduced the practice so there was no dispute is that when we were talking about the two lines array that that was in fact the claimed invention so ready for patent reduction to protect his section that addressed whether there was a commercial offer and he never sort of made a legal conclusion on the commercial offer that says that they knew it all t the new portray your honor i act i would submit that when you look at this document volume for its incontestable that this was in fact a commercial our friend is it's uncomprehensible that you could find that it's not what judge f eccentric set that's what he said correct and he also went on to say that it's clear from the evidence that we have a definite offer capable of acceptance in the contract sense and such offers have always been sufficient to uncloak the on sale bar the fact that you have honeywell zone rule thirty b six witness saying this is a commercial offer the fact that the document itself is called price or for in contractual terms and conditions sets fort price sets forth deliverables sets forth an f o b and phoenix arizona has a billing schedule talks about deliverables an invoice was just no way that anyone could argue that they didn't know your honour's nephew still if penn litigations like this one are becoming quite ordinary then i really think the federal circuit ought to do something about it because an affirmative here would be saying that it's ok for a patent attorney to ignore evidence clear evidence of an unsealed bar or invalidity before filing the patent application it's also you talking about the not and what about conduct have a full blown trial on every single issue and we offered to have just a hearing on the inequitable conduct we couldn't come to an agreement on that so i would submit that it would have been a terrible waste  when he knows that the invention was developed for the purpose of selling the product when he considers for himself he admits he thought about what is this an on sale bar and then doesn't do any investigation at all that that's extraordinary we're not saying that it was unethical conduct it doesn't matter if it was an ethical conduct we're saying that that was extraordinary we're saying that when you bring a lawsuit over a product that you know was developed with the intent to sell it when priests to you collect a document that identifies volume for price offering contractual terms and conditions but you don't look at those documents and bring the la anyway without doing any kind of a validity investigation that that's exceptional conduct and that also when you start a lawsuit in abuse the discovery process to hide that evidence of invalidity that's exception conduct they did a priest suit collection and then we specifically asked them for a volume for they never went back to honeywell documents the everyone's back to honeywell files and search for volume well no the record says we search what we had already collected they search where they knew we wouldn't be the priesthood collection where the collector says if i had come across volume four i would not have hold it since i think the correspondence i submitted it's very clear that no one at honeywell ever testified that they searched documents in fact it's the opposite mr looser the thirty six witness and document collection said no one asked me to search for it the morning paper please the court i'll just start with that last point to tie a bow your honor the reference to where we searched is out appendix two thirty one pages ninety to ninety one and that was mr wood's statement to the court the first time we had a hearing on this issue before the court and i believe two thousand and twelve or two thousand and thirteen and the reference to mr l testimony that testimony was in june of two thousand and seven the letters that counsel was referring to took place after that in july and august and the search on mr woods was referring to  they asked for it from us we looked we didn't have it nearly simultaneously they were asking for it from boeing and we were in communication with boeing boeing said they had it and that they were going to produce prior to that time wasn't there some delay only a delay of a this whole volume for issue took place over a matter of a couple of months and boeing produce volume four i believe in september and was in a party to this lawsuit that's correct so when the other side asks you for information and you have knowledge of that and you have the ability to get it why does that and so you're answer to the fact that you didn't produce it is that you knew they had asked and they get it anyway mark my answer to that question is your honor that we did not have it and we were being asked for many many documents we didn't go to boeing we learned relatively quickly that they had subpoenaed boeing and that boeing was going to produce it and you know that when you look at the sequence of events boeing produced this in about september of two thousand and seven it was two years after that before the motion for summary judgment on sale for on sale bar was brought and the onset of our issue was already in the and your evidence that you had some there was no sale well two things your honor first there was no commercial offer for sale that had the power of acceptance i'll go into that in a moment and i'll show some of the object of evidence that we relied on in our argument and also the court relied on but secondly we do not believe that that two lines or a was ever presented to boeing prior to the critical date of the invention and i can show your honor evidence of that as well but if we just step back and look at what this contract was they were going to create an entirely new cockpit for the boeing seven seven seven aircraft in this specific piece of technology that was they were looking at one of the aims of this contract was to reduce the number of pilots in the cockpit from three to two and this flat panel display was going to sit between the two pilots so that the the captain on the left could see the display and the first officer on the right could see the display and it would have equal clarity and resolution for both and what honeywell was doing here with these display units was trying to find a way to achieve that now ultimately none of this technology is what ended up in the cockpit there was no directional diffuser but where we believe and what our theory of the case was was that these were given to boeing so that boeing and honeywell engineers could evaluate whether this technology would actually work and yes there was this overarching contract in volumes three and volumes four but the specific technologies that would be a part of it had to be developed as part of this new this new cockpit so the evidence that the and you know the district court used the world word reasonable basis at several points in the opinion and this is one of them where the district court looked specifically at this evidence and i would point the court to a couple of places not to belabor it because this has been litigated several times but at appendix one two nine five eight and five nine we have the technical coordination meeting minutes of one nine hundred ninety three number ninety three these were produced after the critical date of the look specifically at that page what those technical coordination meeting minutes say is they are there for evaluation by the boeing and honeywell engineer then we have at appendix one one nine eight four that these units were consigned to boeing not delivered doesn't say not delivered for sale it and but you know we we continue to believe we were right we're not we litigated on the issue but the simple fact that we lost on summary judgment does not convert a case to an exceptional case we you know we disagreed with judge farnum we disagreed with the panel based on this evidence the real point here is is the case exceptional under octane highmark and the question whether the court  and making that determination the yes on the issue of exceptional cases there just and i believe and i was referring to his initial finding in his in his order that is before the court he reviewed this evidence and found that we had a colorable reasonable basis to assert the argument that we had and therefore that particular position did not make the case exceptional and if we continue from that judge stark reviewed you know he had before him eight thousand pages of record he had a hundred and some attachments he heard nearly five hours of arguments in hearings he has asked all of the counsel for the lead against difficult questions and i think that if the court simply tracks through his order at appendix twenty through two through twenty four when we were before the court the first time on the exceptional case issue the court in the intervening time between his first order and the second order the supreme court came out with its octane thickness decision and this court sent it back specifically to re evaluate the case in accordance with the standards set forth in highmark and octane fitness and if we look at appendix page twenty two transcript page seventy one starting at lying fourteen just start makes reference to this and he says specifically remained opinion the federal circuit said we have a case the district court's decision on this issue will remain and for further consideration of whether the case should be deemed exceptional under thirty five u s c section two eighty five in light of the supreme court's guidance from high marks in octane sickness and that is precisely what i have done and then he goes on to look at him take some of the very plain statement that the supreme court made an exceptional case is simply one that stands out from the rest and he concludes after noting that it's important to guard against the application of hindsight that this was really a quite ordinary  complex hard fought high stakes piece of litigation and later in his opinion says it's very typical of the type of litigation we see in this district and one that does not stand on that the judge starr also made here there is much more on the pre suit investigation and judge start specifically found that there was no evidence that we had failed to make an adequate investigation on either invalidity or infringement and i'll just go into some of that was acknowledged that that presumes we hired all three inventors and the prosecuting attorney if the court looks to the substantive fact the prosecuting attorney testified in his deposition that he realized it and not did not believe it was an offer for sale that went on to challenge and there was no follow up we had all of the evidence that i've already discussed about our theory of the case that went to validity on infringement we tore down literally hundreds of these devices and the complaint they made on our infringement analysis is that we did not test for elimination of mores a fact but that was not an express limitation of the claim and so based on that evidence judge stark found that there there was no failure to make an adequate investigation before the suit was brought out he also said we could have done more with knowledge you can always do more but what we did was adequate and it didn't rely and and simply upon the presumption ability i'm simply i'm not going to belabor it any longer i'll simply direct the court to the final portion of judge starts order on page eighty of appendix twenty four where he says that he has specifically considered the question of hindsight in evaluating the seven and seek he considered every single one of the arguments that have been made throughout the seven years that this issue has been alive and he found that this is a complex multifaceted ordinary case and the arguments don't transform it into one that is simple and exceptional and i'll simply note that this comes from a court in the district that sees a lot of this and if the court were to look at judge starts opinion opinions he has found exceptional cases in some situations ourselves in the shoes of judge starr in the district of delaware what how do you think we should review that issue i think i i understand your question and i think it's an excellent one i think the way you do it at least in so far as this  case and then in others it may be more difficult but you look at what the judge considered you look at did the judge take the riemann statement which this court made in its really man and apply it you can look here at three pages of judge start discussing the elements of octane fitness and then going through a track through his order where he applied each of those statements of standard he he made the determination i think you look at did the court appropriately determine and apply the burden of proof judge stark here made a clear distinction between the clear and convincing evidence that applied to both furniture and the preponderance then look for evidence in the court's analysis did the court actually consider the evidence that was presented he t of the issues in turn he can see you can even look back farther in the transcript and see where the judge asks difficult questions of both sides in his evaluation of the evidence and in my view conclude there is no abuse of discretion based upon the quality and clarity of the analysis presented because with a thousand pages of record and hundreds of attachments and hours of argument i don't see any other way your honor i'd like to start with the question that you just ask because the eight thousand pages is not what's at issue it's it's these two documents the ames proposal which set forth a commercial offer and the what was being offered does the court look at this and what do you know what do you how do you decide whether it's an abuse of discretion and i'd like to point the court to curtseying a supreme court case that instructs us that it sets forth the due process requirement that like cases should be treated alike as a restraint on a just or courts discretion to deny fees and so between food and samsung we identified i think it does in cases where there was knowledge and reduction knowledge of pre set knowledge of the onset bar and a reduction to practice and in every one of those cases the courts awarded fees and i think this case falls within those cases number one number two the idea about the presumption of validity and relying on that for priesthood investigation the presumption of the validity says that you know presumes that the examiner had an opportunity to reveal review the information prior art or whatever in this particular case the examiner never reviewed the on sale bar yet the real testimony of the jepson the patent attorney he said i suspected there was an on sale bar problem because his file was three years old but he also said he did not do an investigation he said i didn't investigate it and i didn't talk to anybody then he said i just concluded that there was an on sale bar but then counsel objected based on attorney client privilege going any further into that issue so you can use that argument as a shield in the sword and then what a judge start to i think it was a clearly iranians for him to conclude that honeywell relied on union of council that was something he came up with on his own in honeywell never presented that argument anywhere anytime so that it's clear for the second point i'd like to address are the arguments of all of these documents that were brought up whether it was the reduction to practice documents the consignment document documents or the statement of work documents those are not the aims proposal which is what we keep arguing you can come up with a million documents that don't show an offer for sale but this case you know that the that the court the octane court was looking for how do you define exceptional and eight they used a word like not common and usual rare all of the fact that a company like honeywell says i didn't have the smoking gun document and even if i did i wouldn't understand this to be a commercial offer that's unusual that's rare and that's not common and then for a missile lower to say that well honeywell didn't produce it because boeing was going to produce it honeywell the stacey all works letter said so there we know you tried to get the document from boeing and they didn't have it i trust we're not going to hear from you about this issue anymore well lo and behold they ultimately did honeywell wrote this is a document that they undisputedly presented to boeing they represented in requests for admissions it just doesn't exist there's no evidence it exists even though it's cited in volume three  ok they testified before judge stark at the last hearing and he specifically asked finally yeah but they've honeywell's employee search for the document can you tell me that honeywell not the lawyers that honeywell search for the document and mr lewis testified that no he actually can't tell us one way or the other if honey will look for it thank you