whether or not the books furniture case applies dealing with the two pronged objective recklessness objective test and the role of the district court's decision they kidding sanctions against the lawyers i'd like to get to those points but before i do like to deal with certain undisputed facts that i think undermine the district court's opinion against we're looking at question mr dunn it seems to me is whether there was a reasonable infringement contention here with respect to claims fifty two and one or two and you don't spend all that much time in your brief addressing that and in the first  reasonable infringement contention as i look at the specification there are two separate environments here one of them is the smart system where you enter the symptoms and it coughs up the proposed law treatment automatically the other one as i understand it is that you enter the symptoms and the proposed mode of treatment and then it tells you whether that is consistent with the insurance company protocols that it's my understanding correct yes your understandings correct there are two different environments in the specification as to that second embodiment is there infringement by highmark that's what i can tell your honor we  receive the question of reasonableness that is determined on whether there was a reasonable basis for bringing suit i would like to direct the first part of my answer but first for your question but help of treatment with the protocols and so on and so forth does the high mark system do that you are reading what white lie to basically lines three to eight the system doesn't do that but the system in column six the high mark system does not do what i mentioned the the the panda car starting a column nine two at the bottom of the columns line fifty three going up and including the material you're describing the high mark system does do that this is where the position does the entering of the diagnosis and the recommended treatment but by then the system makes a comparison with the insurance company protocols and with standard protocols and tells the physician whether there's a difference right i mean how do i know i can't tell from the brits whether the high mark system does that or doesn't do it your honor and if it if it does do it maybe you have a reasonable argument for infringement or have a reasonable argument for your honor i type out where they do it on your honor i submit that there was a reasonable argument of infringement without regard to the answer to your question i think the high marks system does do that description starting at the barrel colonized how do i know what's the we had we had a tried on ruling we had a special master the whole the whole debate centered around whether or not there was a smart diagnostic smart system if it was a diagnostic smart if it was restricted to a diagnostic smart system then there was no infringement that was the whole debate there was no debate that it wasn't restricted to a diagnostic smart system then there would or wouldn't be infringement everything was under the diagnostic smart system they tried on quite construed a very telling thing to do with objective reasonable that may have something to do with the subject of reasonable the quote i me ask you about is were in the light of the record that was made was the infringement contention reasonable i'm having trouble seeing that your honor i s french you know since it's there but i suggest that under the under the rock furniture case you've got to satisfy those object objectively reasonable it was objective lee reasonable because you had i'm giving you the analysis the analysis design these pages shelling why he thinks there's infringement of one or two and fifty two and i think that his analysis is a reasonable one and moreover i think that his analysis not only conforms to what the special master said but what the  in terms of whether or not the claim was restricted to a diagnostic smart system and if you have a judge reason just to regain your finding that the crime was not restricted to a diagnostic smart system and you have a special master appointed judge means who says it is not restricted to a diagnostics maurice's in the in his claims instruction ruling i suggest that any reasonable attorney could have filed a lawsuit and could have continued the lawsuit up until the time that the summary judgment ruling was rendered and which time they they appeal that their bill is one month after the summary judgment of me i think all of that was reasonable and let me ask you a question about one or two if you look at the sixty the claim one out to all carers homely proposed plant obstruction that includes interaction with the patient which is what was found missing in the i'm sorry yes your honor all cares phone proposed claim construction talks about involving the patient which is the reason for the ultimate finding of non infringement  and so i apologize please repeat your question the all kids that the reason the one or two was found not infringed is that it was the claim construction required involvement of the patient right in that the high marks system does not involve the patient and what i'm saying is how can a claim from your own claim construction proposed of a requirement that the patient be involved with a look at the bottom of sixty seven a one the other is what was the reasonable argument as to why one or two of was in first year as i understand the reason ultimately for finding one or two were not entrenched was that there had to be  interaction between the patient and the health care company and between the employee and the employer and our expert took the position and filed a report and said it doesn't have to be a direct interaction between those people that's that was the position that he took and in fact that position was presented by mr hill to the judge in the days before the decision vacating the ruling against counsel and why the judge rejected it his position was that our expert said if you didn't have to be a direct interconnection now you're saying that that's not reasonable this position doesn't say by all care that had to be a direct  took the position that there did not have to be a direct interaction and if you look at figure one of the patents there is no direct interaction between the patient and anybody else between the employee and anybody else they are involved in the system because they benefit from the system so all i'm saying is that we don't have to of been right in order to avoid this exceptional case finding all we have to do is have a reasonable position and i'm saying the holland declaration does have a reasonable position i'd also like to mention the point that it is in congress and one of the points is that the district court went to every one of these points and found every one of in the position of all care was inseparable and the district court mentioned that we think it is totally improper for the district court not to have considered all of the evidence before him including the evidence that was before him through the the submissions of of counsel and we ask that if the court finds that any part of the exceptional case finding should stand at the court you re finding and the cases suggest that he should that the district court judge for punitive findings should consider all the evidence he had this evidence he knows and this evidence exonerate the lawyers your honor it's our position that there was enough evidence before him at the time to exonerate all care in his arm for the position that if this court finds that the exceptional case finding should stand that fairness dictates that when he says he's penalizing the clients for the actions of the attorneys having founded sanctions should not be awarded against the judge means found that on the original record he was not going to absolve either party either counsel or of care and somehow some way on the additional records that he was going to absolve the parties and i would say if you look at the various points that he dealt with for example the misrepresentations of the west indies through pennsylvania he said that that that if any court should sanction anybody it should be the western distr and that court hardly relied on any of the points that were relied on by high mark on the question of rescue to conduct and collateral estoppel i submit there's no there's no difference between the findings he made and the findings that we the involvement of high marks in in the tried on proceeding this koenig went to the went to the hearings and according to our papers assisted or provided questions or assisted counsel for tried on in that case and the judge's findings on the vacating decision were not much different so it was there again supposed it was wrong contention was not made in good faith and was objective leon reasonable you lose anyway right your honor that's not that's not correct because under brock's you must have subject intent and you also have to have object of recklessness to promise and the subjective intent even setting aside for the moment the discussion we've had about an object of pride a recklessness or not only diagnostics more systems that the crane was not restricted to if you have a special master holding that is not restricted to it why would it be improper for any lawyer under those circumstances to advance a claim of infringement when that fun i don't think your answer my question what i mean if it i'm saying suppose you're right about the pennsylvania related finding that it wasn't his business to determine whether there was an impropriety before the pennsylvania court what difference does it if in fact the claim that the infringement contention was objectively unreasonable in the your honor if in fact the infringement claim w objectively real and reasonable and objectively reckless and made in that face both subjective and objective it when the made a difference but the point is it does make a difference because the infringement contentions were where it did not satisfy both prongs of the brooks furniture test and the brooks furniture test does apply even though high mark says it doesn't because in the old reliable case misconduct on one hand and basis infringement charges on the other and separate points we submit that it's got to satisfy both prongs and any lawyer knowing that judge hilton  sided with them on the critical issue of infringement and don martin's who is the special master sided with them on the critical issue of infringement through the client instruction ruling had every reasonable basis for feeling that there could be infringement there needs to be a two prong satisfied in the brocks furniture test and two problems are not satisfied even if the it's got to be objectively reckless and there has to be a subject wrong it's not please the court i have a brief statement and then i would like to answer the question posed by judge doc this was not a simple case of a dispute on claim construction contrary to what was stated by mr are in fact the critical elements of claim construction were stipulated to the meaning of the word for in the first half of element fifty two c the diagnostic smart system ha stipulated to by all care but doesn't help me that much and i want i want to understand is whether the infringement contention was reasonable or unreasonable your suggestion that brooks furniture somehow doesn't apply here it the court below that is what is called the utilization review smart system the part is didn't disagree about the utilization review smart system and that's the part where the physician says this is the treatment that i'm proposing for my patients will you highmark authorize payment for that the utilization reviews smart system wasn't part of what this case was about on summary judgment the first pass a fifty t c which reads on the diagnostic smart system requires the entry of symptoms to be for the purposes of tentatively penitently i don't like your answer my question that i have to consider fifty two c in its entirety has two parts to it and what i'm asking there's an embodiment described at the bottom of nine of the top ten here which involve the position entering the proposed treatment which is what you were arguing about both of you in the first  come within that described in bottom one or doesn't and what i'm saying your honor is that's not in the record isn't more below because that was an issue that was in dispute the issue and whether or not infringement the issue of infringement rosen said on whether or not the entry of symptoms data was for the purposes of proposing treatment in the first half of fifty two states the parties agreed that there were two halves and there was a utilization review half and that was not in those are current procedural technology or i'm sorry that is dense my treatment symptoms were identified by eye to decode all tears analysis of infringement it fearing was that the completing of a form that contains both an for the reason found by the special master and the district court which it is that could infringe fifty two c then it would not bend the diagnostic smart system which again w stipulated by the part to read at least on a diagnostic smarts of fifty two c has to read at least on a diagnostic smart system according to but doesn't have to be limited to that which is the point i'm making nine and yes that includes more than a diagnostic smart system where you enter the symptoms because your proposed treatment has to at least cover what's described as the bottom line and the have to meet every element that literal infringement was the only thing raised here and i would submit that you have to leave me for each element and the second element is the pain in your view is that there is no infringement of the second step is the entry of a proposed mode of treatment by the physician correct yes well but how sad consistent with colonise how intense which specifically identifies a situation where the physician is entering the proposed  purposes yes it does that is exactly what nine in ten does that is the process of what is called utilization review which is where an insurer looks at the proposed treatment and then says whether or not they will pay but the first has a fifty two c doesn't read on the utilization review system the first half of fifty two c requires the entry of the symptoms to themselves proposed treatment whereas nine and ten talk about the separate entry of both symptoms and treatment that in another self cannot satisfy the requirement of the first half of fifty to see that the symptoms identify the treatment i'm having trouble with that because of the specification is talking about a system in which the symptoms are entered and this position enters the proposed mode of treatment and then the system makes a comparison with the insurance company protocols and standard treatments and what you're telling me is that your claims instruction excludes that embodiments described in the specification no i'm not your honor what i'm saying to you is in the district court below and as affirm by this court concluded judge newman and yourself special martin special master martin found that there were two parts a fifty two c one was a utilization review smart system that's the second half but the problem is a set of that this isn't just describing the second half of fifty to see this is describing a system in which the symptoms get entered and the physician not this not the computer comes up with the proposed your scenario in the scenario of call nine column ten there's entered separately the symptoms are not entered for the purposes of proposing the mode of treatment the symptoms are entered for the purposes of supporting the proposed mo treatment so that the insurer will then have an opportunity to say you're right that treatment is justified because this patient is suffering from whatever the symptoms or diagnosis is but in the first half of fifty to see if treated differently it requires the symptoms to actually identify that that was a treatment and that was always the problem with all carers infringement content which is why i understand that that was a construction that was adopted and implicitly the construction that was approved by us when we are for what i'm suggesting to you that there's no alternative construction which is reasonable which involves the physician entering the proposed  treatment in that it's reflected in columns nine and ten maybe it's wrong but at least it has some support of the specification well then it's then that me say this when you're looking at whether or not something is o the broke standard it seems to me that the party who is it serving infringement must at least have had the idea or the argument that call not mine and call them ten then what you are saying it that wasn't their theory of infringement and their belief was different and i don't see how the court can say well there could have been something that they thought of that they didn't think of and we can affirm it but that is not what we argued for the last ten years in this case that is not what the issue was about for the last ten years in this case and the reason that we are we asked for the exceptional case finding is because the district court found that even before a cease and desist letter was was issued all care hand a demonstration version of high marks system that it found on an internet that is in all respects accurately reflects what all carers expert dr hall and that from that moment on long before the cease and desist letter all here ignored that and developed a theory of infringement that the mere completion of a form was sufficient for infringement and when that argument was made in the prior repealed completion of the form showing a mere completion of the form requesting pre authorization review not but have the most  forehead shows well it did yes they had minutes that the symptoms were there and they did a separate box if you and i don't know where that is in the record but we can send you a letter with that particular site but in a separate box there's treatments entered separately so the symptoms aren't identifying the treatment and when the argument was made relative to the completion of the form if my recollection is correct i honor you were the one who said isn't that one o two problem or went to one problem if all you're doing is filling out a form you know that was their argument that all you had to do is fill out a form and you could satisfy this claim and that is inconsistent with the stipulation that altera made in two thousand and four that it covered at least a diagnostic smart system that was their belief that it covered at least a diagnostic smart treatment they can't be entered separately for different reasons and that was the problem with all carers argument you can't on the one hand for purposes of plain construction say the former requires a purposeful a satisfied what a lot we never believed that it did and when judged like asked me that question before you asked me why didn't we raise that and the obvious reason is when you're moving on summary judgment it's a lot easier to prove non infringement than it is to prove u and dozens of party consent cease and desist letters without any legal opinion based only upon the lay person's view that this survey was somehow supportable and it's never the strategy well i'm not sure that's true but the the basic problem is to try to evaluate whether there or decent claims are objective lee reasonable claims as this case progressed is not so much the pre filing investigation but now that we know what the high marks system is and we can look at the claims and see whether there was a reasonable claim structure tha there was no that that dr holland himself was the one who testified that symptoms were not testify or were not entered for identifying treatment because of high marks system but rather that high marks as them required a separate entry of treatment code but as to want to know one and the question that you asked mr dunne or in his deposition dr holland when asked how does the employee member interact with the bank in the high marks since system and his answer was the employee from the enter information that i read the employee does not appear to interact with the back that was a requirement of one zero two that deposition occurred in the very end of the very beginning of august of two thousand and seven and all care did not withdraw the claim on one hundred two for more than a year and a half after that and did not even respond on our motion for summary judgment as to why no to so even assuming you your have concerns about fifty two c offers position on one of two with completely unsubstantiated by its own expert and yet it maintained it for what their own lawyers represented to the court as being a strategy to avoid in validity of the patent yeah but that wouldn't be sufficient to affirm the judgment as to the whole board of sanctions right even if we assume that one hundred two was subject to the position of one or two  well your honor right yes we are asking for attorneys fees after one zero zero two was withdrawn from the case but you'll recall by that time all care was also on notice that its expert had come up with the the fifty two also satisfy supports for interested is not an argument at the position about one or two is in itself sufficient to affirm i'm saying that it is sufficient to to affirm no i'm not i'm agreeing i'm agreeing your honor that you are if you're talking about the time period which is something the judge means look at such means doesn't look at that and we addressed that in our response on the attorney's fees motion is that even if you looked at it up to the end of one or two of care suffered from the problem that it continued to proceed with fifty two c despite the fact that it expert had provided an opinion that made it impossible for hi but if you are firm one one zero two and say yes one zero two was an exceptional case i think you cannot start there because you have to look at the totality of circumstances you have to look at the bad think you have to look i believe that the  sanction somebody that happened for something that happened before a pennsylvania court well judge means looked at that issue in the ruhleben sanctions and said you're right as to the lawyers that is at least a that's this court's precedent that says you look at the totality of the circumstances doesn't consider that if half of the proceeding occurred before it was transferred half of the actions occurred before this transfer you can't look at those because this court itself actually said to get to go back before the filing of the complaint and look at the actions of the parties so if this court has the authority to say i can look at what you did before you got before you ever filed a complaint then surely the court can say i can look at everything that happened after you file the complaint  for conduct before another like i say your honor the answer if you're framing the question that way the user would have to be no but i believe that's inconsistent with this court's requirement of considering the totality of the circumstances because you can't accept a portion of what happened take out you cannot take out a portion of what happened in the nation and say i'm not going to consider that i can consider from the first day they threaten highmark with infringement and whether or not they did a pre filing investigation and i can take it all the way up to judgment i can do all of that but i'm going to take out this two week period in the court was transferred to to the court in texas i don't believe that's appropriate in light of the precedent which requires a review of the totality of the circumstance let's see where we are the only thing i can remember of her answer was not a direct answer that she described it as a fancy utilization review  system and that wasn't what this case was about was about diagnostic smart system and she talked about the first half of fifty two c well on page six six nine eight in the special masters claim construction report there is a statement highmark argues that fifty two c covers only the disclose diagnostic smart system and not the utilization review smart system all care argues it's easy to see covers either of those environments are turned ugly and i think judge dyck your point that where in response to miss critics point that it was stipulated that the claim covers at least the diagnostic smart system doesn't end the discussion because the claim can be generic to both and in fact i submit the claim is generic to both ms kearney talked about the first half of dealing with four tenderly identifying a proposed mode of treatment as being restricted to the diagnostic smart system well judge hilton had that very issue before him and said it wasn't and judge and none martin's  special master had that issue before him and said it wasn't judge hilton went on and said that there is no requirement of a cause and effect relationship of that language so i submit that the column nine column ten statement which is directed to the utilization review system is in fact covered by the claims and i submit further that that is what hallmark is doing that wasn't argued that is what i understood her to be saying that was an argue that we should come up with some new theory as to why the infringement allegation was reasonable that the the work as part of our argument but we are good at there at least it was using the utilization review system and this statement by the special master basically says that we weren't doing it now in fact i don't know whether we pointed to column nine report on client instruction and he nevertheless found that the claim was not restricted to a diagnostic smart system now this koenig also said that rocks she's not fighting the application  patients litigation she says it doesn't apply to litigation misconduct but then in a raid she categorizes everything that litigation misconduct and it's not all litigation misconduct the only litigation the bottom line is and i'm probably way over time i'm approaching the end is that i submit the contentions were not objectively baseless they were not subject hundred fifty two and the only focal point of the discussions between the skurnick and the sale focused on fifty two c and there was a difference of opinion we relied on tried on she rejected try gun we