and i'll provide a little bit of context for this there's another case that was pending previous to this one that involved assertion of a parent happened to his family and we tried that case to a jury trial went on appeal and unfortunately received an adverse claim that claim construction issue is no longer available and final for us the same exact claim language that appears in that earlier patent also appears in the patent that's a certain the truth case not in the a c s case but in truth the case and so we filed the present motions pending with the corps to vacate the one of one decision and or one because there's no longer an infringement issue as a result of the turn for certainly not as i understand the federal circuit opinion that great brief and a discussion about that case and any potential moving effect that it might have on this case and so that at least from you the first time we heard about this parallel litigation was a week ago and so it makes me question whether or not there really was ever a moving event there given this rather late in the game last second hell mary motion you filed last week and stand certainly from our perspective we were holding out hope that the decision the original decision from the federal circuit to handle on that claim for traction issue would be their record on bonds were taken by the supreme peculiar in the way it was always from our perspective and so we were pressing legitimately to have that review by the on by a panel or or by the supreme court so from our perspective the first moment that the appeal this case was actually moo it is when our final attempts to appeal to the supreme court were exhausted with the denial or petition so it was january five i believe it's quite a nineteen i believe the scripture and then your motion to vacate came in several weeks later five weeks last week correct in that intervening period we did a series of legal research guess what i'm wondering is it where you quietly to yourselves thinking about the potential that there was a move next but you didn't want to raise it and then once all appeals were exhausted the paralytic ation then at that time you knew and understood and recognized there was a moving event or is this something you just came up with in preparation for oral argument certainly not we were aware  supreme court minutes final determination not to raise not to take up our petition we determined it was a final egypt issue against us and and moved to to run this appeal mood there was there's no to put any of the concerns about the stresses oil was a moving event for the controversy between you and true them then in that case we would take up the substance of the want to one issue can you say you filed the covenant not to sue last week but you would want us to remand it back to the district court defer the judge there to consider in the first instance whether or not she should vacate her own one on one judgment yes and in addition to the reason the supreme court's claim should be sent back to judge alston to determine the first instance whether one wonder station is still appropriate in light of the traditional and i don't understand why would we amanda back to her if we simply dismissed this can't you file some sort of motion with the district court at that point asking her to face say there is a rule sixty motion that we could file my understanding then why do you need us to remain and that my understanding of the second line of cases  i don't think she should make it her judgment so why in the world would i send it back and tell her to look at whether they cater judgment when you obviously do want her to get her judgment but in you have at your own disposal another mechanism will sixty to s that back into your why why would our core impose on her to consider something that i don't understand why she should be considering i see i understand and maybe i misunderstood the question i don't think there needs to be an instruction from th sue i had concerns that our client would be under the under the pall of another potential female action because the supreme court's decision from our perspective fairly clearly applies to this claim this case is well  true and in its own briefing admits that the the interpretation of the claim that was adopted by the federal circuit is dispositive of the infringement issue in this case so from our perspective the top of that we issued was just  reinforcement of the fact that they admitted of course they minute they want to be found to infringe that doesn't bind us or any other court and if you didn't agree with that notion you would be able to assert that at an against them and they can make the arguments timely fashion in the district courts seem to settle shame on you sheep she seems judge also seems of taking the approach that you it you you may have notified them of your intent to do so but then you didn't do it and that may well have caused them to have to continue to work on cases i mean i have some personal experience too and even though you have a tentative settlement in orally until it's in writing you don't stop work in the case because the deadlines are still coming sure two things one does not work in the case because  half of them had calculation errors in them that all in order to the benefit of your opponent and then sloppiness aside you know but you didn't appeal you didn't raise that argument with the district court so i don't see why i would address it now for the first time an appeal that the role from federal circuit's decisions in this case fencers decisions in this area it's the party's role to evaluate those and to police those who present our opposing view as to what an appropriate fee and apportion would be we were robbed is i am troubled by the fact that they produced an eight hundred thousand dollar number with no detail articulation of why and i'll tell you they get their fees you're not going to convince me that they're not entitled to fees the only concern i have is from the time period after which she notified them that you were no longer going to assert the ninety one and it does appear at least from the record haven't you for deuced that for example none of the discovery pertain to the ninety one after that so why is the twenty five percent rule of thumb still  that seems to me potentially inconsistent with fox so i'm not sure but that also me tell you the only person who gets rich if i break in this back is you and the other law firm why because we're talking about a very small number of the scheme of things twenty five percent of whatever the billable zz were over that four hours and how many hours is it going to take the two of you to fight over that of the district court if i send it back to that reason i feel like only your client loses if i do that i'm not positive it's what i should do legally but if i do do it the only people who use of the client because both sides of you are going to continue to build your clients to fight over that small four month window of time and you're going to want their detailed billable rates and then you're going to take hours reviewing them and scrutinizing them i just i don't know what good the fact that you told them we're going to withdraw it doesn't prove that they stopped working on it after that and a lot of law firms wouldn't stop working on it after that you have proven that for certain entries like discovery it appears they didn't work on it in that regard but we don't know in what other what other entries just during that four month period and i don't want to so you're not going to get me to say no fees after that time so what am i going to do i'm a send it back to the district court to conduct a mini trial on all the billable suit took place a line and a my light arm over that four month period think they feel like that's what fun we want to clarify after you knew it was crystal clear that you asserted invalid patent why did it take four months to draw that from the complaint we were following one circuit precedent proposing a mechanism to withdraw and by amending our complaint it was once again says we have to do truly refused to accept that approach and argued for a different approach the thing that we offered form but the four months at the october come to a settlement with you over how the ninety one should be extricated why isn't that part of them being forced to continue to do work on this ninety one patent that was at all times and valid then they  should because their fees for the ninety one anywhere on the ninety one of the district court believe that that's work on the ninety one and that was occurring during that four month period so they should be able to recoup that but not all of the other discovery in the case and the problem is the case was on the next case you get less time because probably you can circle back to whether there should be a big keep or anything like that so i certainly don't want to use up all your time but could you start with that last four month period of time so in the form of period of time and this is exactly why we went with a twenty five percent overall because it balances ramping down a bit on discovery because it was it not ripping down did you have any discovery during that four month period of time that retained to the ninety one  pertained particularly to the ninety or and exclusively now suzy euro discovery welker during that four month period of time pertained exclusively to the ninety one such all you can get under fox you still get it if it was duplicated what you had to do for the other half so there is th underlying issue when there are two related patents in the case of anytime you are doing something that seems to apply equally to both it might not so you need to keep your eye on is there anything different between the seven twenty six and the ninety one that means that something different a different outcome comes out of it so even when you concluded no they are the same there is this underlying work of making sure that that is the case and knowing when they're different and w same so to that extent had the ninety one not come out of the case ultimately and had we done so is there anything different in discovery you would have done or that you can point to any discovery entry anywhere in your billable for anything in your recollection with regard to discovery during that four month period that you would not have had to have done if they had actually already withdrawn the ninety one not to my recollection however there was substantial work that we needed to do in the go shading and dealing with the cut issue of the covenant how do we get rid of this kind of read and he pretty much agreed to that and so instead of going through and item by item on discovery and teasing all of those out an item by item on the on the covenant negotiations and then we wanted to be in a position to be the prevailing party so that we could make an ultimately a fuse motion we did twenty five percent of that and twenty five percent of the discovery that's where the twenty five percent across these things came came from and that's an example of why twenty five percent is ultimately what the fair or anything like that would be entirely appropriate it seems to me if they or the court had looked at your bills and were able to see that you spent a lot of time you spent a lot of time on this covenant and stuff and that you didn't you know you spent a lot of time on discovery and overall twenty percent i would have no problem with that if some underlying analysis had taken place of your bills but all the court below had was a representation from you that we spent eight hundred thousand dollars litigating this case and we want twenty five percent of it there's nothing particular to that four month period of time that i can see that would have justified care her giving you twenty percent it may well be justified but i don't see that she had in front of her the kinds of evidence that would satisfy what judge kagan team to require in fox what ju period that's not relevant during that four month period that's what i'm struggling with again she had her personal experience and knowledge of the case and she had the declarations for me to train each other as i went through my own bil for the entire case they went through her own bills for the entire case and we believe we took all of this into account and we gave us great that you did but you didn't provide them to the other side nor did the judge  so she's literally just accepting your word for all of that and her experience with what the issues were that were being dealt with in those and she didn't articulate anything that i can review with regard to that like you're saying that she had some experience of what was occurring during that four month period that maybe informed her decision that twenty five percent concluding during that four month period is still justified but she didn't articulate any reasons or bases for that in her opinion that i can buy there were not separate reasons for that particular window still under the abuse of discretion standard i believe that she exercised her discretion and way  decision what would happen if i dread saying this what would happen if i didn't think that it was supported under facts and if i thought that four month window had to go back for some sort of because they did tell you that they were no longer going to pursue the ninety one and it appears from the discovery at roughly page five thousand four hundred in the appendices that no more aegis covering for example took place on anything related to all lot of the discovery took place in this four month window what would happen if i said to back and told her do just some sort of meaningful analysis given that it does appear that you stopped working on the merits of any sort of case regarding the ninety one but of course you had to deal with the covenant and negotiate with them whether a amended complaint or a covenant was sufficient and that does seem to be time all of which should be compensated i'm sure th judge also would follow your instructions and with engage in that there would be everything from from both parties on that issue and and and how much money are we even talking about i mean i know it's not in the record ok we're talking about a four month period of bullet again and the total bill calls are only eight hundred thousand and twenty five percent that's only two hundred thousand how much money are we even talking about if we were to try to focus on that for months you don't know that's how i strayed i don't know how many months in total in total it was twenty one months of education it was the looking at the last four months my guess based on my memory of the case and my knowledge of how i run cases is that we would probably be looking at total bills for those four months in the two to three hundred thousand range but that is basically a guess at it ok what you turton to the issue of whether or not we occasion where our court had issued a claim construction adverse to cave and rendered this controversy between you and gave moved and because there was no longer any viable infringement theory so yes very issue to government not to sue february twenty five we're going to have a girl but nevertheless two months ago there was potentially a moving event with the final resolution of a clean construction debate and that final decision from we can tell that it doesn't constitutionally moot and it doesn't actually resolve our dispute it does make my case a heck of a lot easier to win at the district court level i will say i thought this claim construction i believe applies to the seven twenty six pattern the circuit against true then and i believe that under that instruction true then doesn't infringe but no court has held that and the you can tell that it doesn't constitutionally move the issue because the same claim construction not right the claim construction issue is the same the claim language is different but the issue that the panel in the claim in the abdomen insight case looked at was does the specification support a claim construct a claim that covers both direct and indirect standardization and that panel said no the specification doesn't support that these claims are limited to indirect different claim language we don't know if a construction of that claim language with other words might actually compass this other for action of standardizing and that is case consulting zz position in the ninety one pat they're conceding for the seven twenty six patent that they're not conceding for the ninety one patent but the issue is still alive in both of those pens there is i guess and i don't know if it's an answer to ask us to look at some other litigation to try to figure out whether there was a moving event in this litigation i mean what we have to figure out is you know it's the same claim language and the claim language for that other case  different so it could be that that claim construction might have some slightly different argument because of your product maybe they had a deal we are going for your product they didn't have it and we don't know but we don't know any and different products for different products different companies develop and  the one twenty six and the ninety one are identical the seven twenty six for our case the truman case is the grandchild of the ninety one patent so and they are continuations and so those specifications the from discovery in the truly case we determined that they do use an identical type waiting to well we lost an argument and i thought i was genuinely concerned that if we were to press these kinds of issues that would be considered generally baseless claim understanding of the lack of strength that they had given the notion of infringing products you might well have ended up getting sanctioned or something who knows but that doesn't mean that this court should they case the lower court's decision  things don't seem entirely going to me all i can say is we're talking about an identical specification for purposes of this issue we're talking about of the federal circuit decision construing the exact same claim term and we're talking about an undisputed no disputed fact regarding