me please the court i'll start with the threshold issue of the prevailing party status of the parties grilling party status is a substantive question not a procedural one and dragging in serious on the merits on the substance have real and ripoff supplemental authority and we think that the reasoning in the technology is the political here should be applied here to find that we are the prevailing parties so just like in the technology just like face again but it's important to me because i wouldn't want the technology to be read for the proposition that if a patent happens to be invalidated by somebody else in a different district court litigation or an i p o or something not the defendant in this litigation i wouldn't want it to be read for the proposition that means that the defendant in this litigation who may have done nothing at all is necessarily the prevailing party for that reason i think that that's that's our position on it somebody might argue differently later but yes that's that's correct honour's so the court below didn't have b technology obviously because it just came out and but under this current state of the law under b technology we think that the decision can't stand the court below agreed that we'd achieved a polyp is there any distinction that you're aware of that and they're going to get up and argue so if there is they're going to say it so tell me what it is normal and i think the distinction that they have raised on all issues in the briefing is that we've won multiple times and i think the distinction that they're going to make is that all well the the case below there was a secret you're of the the not infringement decision below and that therefore there's there's some for some for some reason we don't have a judicial in premature from the district court  well i mean and i mean i would say we won three times because we also have the judicial in premature of this court i mean because our i p r is the one that resolved all of the cases can i can i with my colleagues intelligence can i move you over to this other issue you know because the one thing i did see i mean you could tell i probably agree with you on everything except one on the things we discuss the far however and we start asking for a quantum of attorney's fees related to whatever it is you may have or may not have  proceeding that's when i start getting a little uncomfortable with your position because i don't understand ip our provisions are not shifting there is nothing in the i p r statute that allows for the collection of attorney occur parallel with and with the with a litigation if they are useful and necessary to the litigation if they're replacing things that would have taken in the litigation those things are recoverable and we said to the p p g case in which this court overturned a district court that had denied fees for reissue proceedings so they got the the defendant had to participate in reissue proceedings before the b p i and the district court said that that those those fees had to be recovered  you're arguing for now yes or cover fees in and i care if you're successful but only if you have a parallel district court proceeding because you would have to acquiesce that if you only got an ip are you've got no chance of getting there would be no district court for me to see right so wouldn't the rule of law you're asking us or completely contradict the entire i p r scheme because the i p r scheme was meant to reduce litigation and if i was a defendant and i filed an i p r you know what else i'd also file the same day in every single instance of declaratory judgment action and then i'd us district court the state while the i p r was ongoing and then i'd go back to the district court now i want my fees because i'm the prevailing party and th federal circuit said if i have a district court proceeding in a parallel i p r lives it's even a p r on the prevailing party and you might say want to support exercise discretion since you were the filer not to give it to it doesn't seem like the right will of law that seems like it would be encouraging you to file a bunch of unnecessary district court litigations to try to recover i want to take the opposite viewpoint if we define don't allow the parties to recover fees that they had to file or that they had to use to go to the p tab if i have a really bad tease right  i think it actually dissuade people from going to believe because no one has yet ever gotten keys and i p r is and yet i cars are booming industry court litigation is way down so you really think that's what the result is going to be given that currently it's not the case i mean alternative and that's i mean that's exactly what we have here but one dollar thing that so p p t is the only case of ours that has ever said anything vaguely like what you're arguing for and one of the things that struck me in that p p t case was that instead the parties were required to participate in the reissue proceeding and that requirement is why they awarded fees technically you and i know there's no requirement to participate in every issue proceeding i can't even understand why the opinion said that because participation is not required yet the court did hold that so why wouldn't i say to the extent that peachy ruled that consistent with all of the other cases you've told me about when you can reach into administrative proceedings to obtain fees in a district court litigation who want a kurd administered proceedings it's limited to circumstances where there's a determination that your participation in the administrative proceeding was in fact required as people express the health why wouldn't that be the role i think that the reason it's that it it shouldn't be the rule is because as i said the legislative history says it's was to be a cost effective alternative and the the cases that we've cited talk about where the administrative or the procedure for the administration or the administrative body supplant things where the substitute for things that would have taken place in the lead nation right so in the in the monolithic powers case we have an i t c action in a district court action and the discovery we're going to because discovery was duly usable between the i t c and the district were the things that overlapped between the i t c in the district where they got fees for that and in this case i mean our ip are being sent over left but that's because you were already doing them in the district court here you were doing those things in the district court the case was state so the reason they got  is because they were doing it simultaneously in both cases so it was being done and the issue of court you're asking here for things that were done exclusively not at all pursuant to any district court requirements timing scheduling or anything else but done exclusively  pizza were things that would have had to have to take place at the district court but for our funneling the i p r we spent money and we i think with my position we actually saved a lot of money by filing the i p r and that was the position that you know we told the court when when the court it's not part of the proceedings relating to ip ours it's about district court actions it's not about ip or are separate statutory provisions for i let's hear from your court judge moore you asked a question about whether b e is controlling and why it might not be there's a factual context here that's different it wasn't president b in this case there were judgment center and the judgments were vacated there's seventy years of supreme court precedent that says what happens when the judgments are vacated and as to what that was a judgment of not infringed corrector  and what the supreme court has said yes but what i mean how do you reconcile your argument right now with each and b e tec we found that they were a prevailing party because they had prevailed in the i p o our and mooted district court and that's exactly what happened here i don't read the case that way or i think in be it did not it was not based on the fact that they had won in the i p r because they hadn't won in  facebook the party that was held the prevailing party won a final decision from the p tap but when microsoft won in this court facebook's petition was ordered dismissed this book did not my point but it doesn't distinguish the case from this case in a way that helps you that's like saying that was printed on yellow paper not white paper not i'll get to that here are the fundamental point that i'm making about how the cases differ is or seventy years of supreme court precedent that explains what happens when i judgement is vacated now but in b i don't honestly the seventy years the supreme court precedent might be great but you according to your several years of supreme court precedent argument it seems to me is to the inmate court to be e tec it's wrongly decided because you've made no argument to me that the tech is distinguishable from this case your only argument to me is be e tec is wrongly decided so you shouldn't follow it because there are seventy years of supreme court precedent i'm trying to make a different one your honor and the argument i'm trying to make is the factual context in this case is different from b where we have vacated judgments i've made the point and that's how we're saying it's different but of course yes we are saying that the was wrong and decided now clearly to the other point you know the idea that winning in the peep out is sufficient to make a party a prevailing party in just record that's inconsistent with the case law that says that prevailing means prevailing in the district court this is a question of statutory interpretation of the meaning of the term and this court in brick wide and in the supreme court in the canon and other cases has said that that term prevailing party must be construed consistently across the body of the law so the question is whether there is room in the meaning of that term to apply to other proceedings the cases we've cited says say there's not again just to be clear this is an argument to be tech is wrongly decided correct it's not your honor because we don't where the judgment not infringement had been vacated they were not the prevailing party even though also in italy they got the relief that they wanted by having the patent be invented well yes your honor and there a long answer to that and the answer begins with going back to about canada and the requirement of a canon of a material alteration of the legal relationship of the parts that didn't occur in district court an winning somewhere else outside of the district court proceeding is not sufficient to render want to prevail in part so these are the points that that we may and the the idea that we're simply attacking be is not quite right certainly we are but we think there are some differences but i don't fail to understand your differences because unless i'm mistaken about dismissal the case has been terminated as a result of goodness but there is no formal dismissal order and in the in the b case you saying then this case is not we don't have jurisdiction over this case if there hasn't been a final decision we're not saying that you are we explained in our brief why we think the orders denying the exceptional case motions are sufficient to give this court jurisdiction but there was not a similar order but the other the other point your honor about what can that help that it defend it may prevail even if the court final judge it rejects the play disclaim for eighty nine merits rethink and that defining what are prevailing purty years or nine merits reason why doesn't that apply here excuse me a rejection of anyone's claims one of court stands down because of mootness it is not resolving the dispute but canada required a judgement  s he says it doesn't have to be on the merits of the point is simply your honor if the difference between winning on the statute of limitations or winning because the contract wasn't breach that's all and the idea that by saying we don't need a judgement on the merits that doesn't mean we don't need a judgement it means that the judgment need not be on the merits and it's very statutes of this nature they're out and there's no answer to those cases the only argument that's been men is that because octane points to exceptional as the only substantive scope provision that that somehow means that lawyers aren't well that's not enough under the established law that's not enough to create an exception to the american rule which as the supreme court noted in the canon and has been noted in various other places requires explicit statutory authority there's no argument by the other side that there is any such authority so their position rests entirely on the idea that there's nothing that says lawyers are out that's not required that's not how the american role and they've not cited any cases that say section twenty five applies against lawyers and what what is it that you have i'm sorry that indicates that you can violation and then you work toward who else is responsible but it was quite one of the cities assessed against the attorneys here correct pardon me your honor there were no fees assessed against attorneys here they against any attorneys so how is it that we should address this issue it does not seem to me to be right well it is right in the sense that it's a legal question that's what the appellant say they say it's a pure question of law  should be decided we've advocated that the judgement in favor of the warrior and law for a pelleas should be affirmed on the alternative ground disclosed by the record that wears a law court denied the motion but not on the basis that to eighty five doesn't apply so there was not there has not touched all been a ruling from the district court but the appellants are arguing  should be decided that it's a question of law and we've advocated for a firmament on that alternative ground so that's how the issue is before this court anything for them no your honor thank you counsel because of our victory at the pizza and then subsequently this court's decision affirming the cancellation of the claims so when the anyone is that occurred is because we also won again we can't be said to have to be to not be prevailing parties because we won too much and then quickly it's within it's certainly within the court's discretion it's our position to decide the issue of joint liability for attorneys under two of the five we've brief the issue we've discussed docked and one thing i me and many other circuit courts have used that that rule which says nothing about who has to pay the fees to assess sanctions and against attorneys so this court in front of metrics one did that we said to the  which lists the number of sort of court cases that have have done that and you know as we look at it we have to do rules both that broadly deal with the shifting neither of which say who's who who has to pay and on the one hand circuit courts have no problem using that