before the start are you aware of this court's recent decision in his camp to yes i am your honor could you explain and i'm going to ask the same question to opposing counsel why you didn't file a twenty affect this decision and both parties cited it can suit of course the trial court also relied heavily on his can suit and perhaps we incorrectly assumed that it was not necessary to file for you incorrectly assume that it was not necessary to file and you both should have done it let's move on but next time it's not an excuse that the lower court decision was that issue aspect of this right yes that is our position and where does that leave us what should we do now well if you're if you're already laus i'd like to talk briefly about what hi laundry set forth a two step process for approaching these kind of questions the st step of the process is what is the government's position in litigation conduct doesn't play into that but then for the nd step of the process the court has to look at whether the government's litigation position was substantially justified by the facts and law based on relevant facts that have a nexus with the litigation position and so given that framework we can look at exactly how the trial court erred in this case and what issues should be remain remanded back to the trial court i this is just wallace sure i want to clarify something would you agree that given his consent if we find that the court articulated and i would agree that the court does have that power however i disagree that the court should do that in this particular case there are some great distinctions between this decision in  regard i understand i understand but you've agreed with me on that yes i have agreed with you on that i'm not sure what that is i mean you're not agreeing that this decision can be sustained based on the post litigation conduct right right in this particular case there are reasons to go ahead remand the  back down to the trial for reasons that didn't exist in the hit conceived decision but i'm agreeing with the principle of law that hypothetically speaking the court could find that the court  determining the position of the united states but still affirm if the court holds that the trial court didn't make any factual errors or legal errors with respect to the substantial justification question government has waived sovereign immunity for itself but also for limited actions limited authorized actions by its contractors to the extent lockheed used for manufactured the patented invention without authorization the government has assumed that liability we do not dispute that whether the matter is law conduct of the contractor is pretty litigation conda right the conduct  respect it has to be set aside and i think we can't tell what the court of claims would have done if it could not have relied on pre lit a geisha in conduct that would your honor we've spent ten minutes here not getting to the heart of the matter which is your challenge to these other findings that the district court of federal claims made your honor i'm happy to go ahead  those so there are two sources of conduct that the court cites in this decision do relate to litigation conduct that's the government's not infringement position the government's invalidity other things that those two things which are challenging those are the only two broad categories your honor that there are specific findings within the umbrella categories of not infringement and invalidity and i'm i'm happy to go ahead address those the court also addressed the government's position on damages and on summary judgment and found that the government's positions in both am i correct on that yes your honor then the government already unsuccessfully appealed this issue to this court your honor our argument is not a collateral attack or a further argument with respect to that we've already paid the judgment and our argument here is separate but the question for the court is whether the government's assertion of this not infringement argument was reasonable in the st place not whether it was correct and we contend that argument was reasonable especially in light of the court's prior decision in this in this case where the court noted that the power could be expressed in either metric or imperial units and that i what engine that is in horsepower and that's a unit of power that is in horsepower essentially but the cessation never identifies power in from navy documents that provided power in imperial units so are known infringement position of authority imperial units was a reasonable position  chen this document that you raised in your briefing here and in your opposition to the fee motion below did you rely on that document during the actual infringement trial no we did not your honor so i guess what i'm wondering is how can you rely on it and use it now to justify your litigation position when you never of the government's arguments to after file i guess what i'm trying to understand it it's almost like a hidden justification for your non infringement position during the infringement trial that you're raising only for purposes of the theme motion you have to understand the entire context of how this argument was st raised the government had identified its reliance on imperial units stern and mr blount did they ever address figure eleven in their expert reports no your honor neither of them  unreasonably proffered an expert with extraordinary skill and this is mr blunt as the court just referred to this court has held that a person of ordinary skill is just a few radical construct and this is only a lawyer argument and i understand your position that it was a question of timing as far as as figure eleven but how do you deal with their position that hey this is only attorney argument your honor so the way that we deal with that was that we are the party that did not bear the burden of proof and we were showing as a matter of intrinsic evidence and the lines that are drawn on figure eleven are drawn from from evidence that is in the record ultimately what happened is that fashion responded in its post reply but yet the figures that we provided ten months before trial in our pretrial briefs and the post trial was a figure eleven it was drawn from evidence but the plotting on figure expert discounting of his expertise what bash it says is that the core discount is testimony because his expertise was was designing a displacement but blood explained in his testimony how could be scaled up and fact that was part of his obviousness discussion was very much focused on the claims he wasn't focused on red brief you're absolutely you're absolutely right your honor and we just blew that and that's all or do it we had referred to it we went through the oral hearing we read the decision but the holding is that the claims court is can look to the facts of the individual case including facts that occurred put in litigation and if you think about i litigation facts can be considered to the extent that conduct is a fact yes it can but almost all of the weight the com dot the prelate of conduct cannot be considered as a grounds for awarding feet and may shed light on litigation but that the existence of prison litigation misconduct cannot support an award of attorney's fees and to a right that is correct your honor i agree with that and that's what the decisions are and i'm i'm here to say that the positions that are grounded on this deal ward are the positions of infringement and then validity during the now the judge had much more he said that was on reasonable that was not was not substantial just by the government has just focused on thing your element and this court has already ruled that the creates similar problems for its attempt to establish reasonable justification and that's every position that the government had after the start of the litigation every single position as they had no substantial misconduct that the other things that happened right location would be sufficient to justify to cause me to award he didn't use those words but his meaning is very clear that he said before and is there anything else that that really tells us that there was something unreasonable about the government's one on three defense well yes the mr blount's feasibility study was the issue not as references and the government said that's proof that one of ordinary skill in the art would combine those references and that's where the disagreement came in because mr blom blunt who wrote that article at the the view that relying on an expert with extraordinary skill is somehow improper well if you take it away from me then you you have left out the feasibility study itself was ship that and the fact that he also goes back and says it proprietary design that means that it wasn't prior art it was confidential and you have to understand that this is in the context context of the of physics biology the square cube law and so that's the context for that but that report of his was not prior art it was written by an extraordinarily skilled individual flawed i'm sorry you're telling me that in the underlying decision judge letter was very critical of mr barnes feasibility analysis yes he was something very close to being hopelessly flawed and now i'm trying to figure out i don't have it in front of me where is it where it reveals an illustration that although he well he says that on appendix one hundred and seventy one dollars he talks about the feasibility study but he wasn't doing the analysis of whether or not that's reasonably substantially justified and that and his merits it was not prior art clearly says that it was proprietary and that was unreasonable in and of itself if if if the court disagrees that this article was written that one of ordinary skill in the art it's not based on the intrinsic record there's nothing in the intrinsic record that says that the units on the vertical axis are in per unit and in fact a scientist an engineer looking at that looking at that knows that that is a metric imperial units anywhere in the specification i'm sure it does sometimes your honor but the fact the matter is there are seven pipes of units or more horsepower and naval architect use all of them depending on what architects formulas are they are they are engineers and physicists and they use all these different units interchangeably depending on what the formulas but that graph is clearly in metric units too and they  are correct yes well so why is it so unreasonable to interpret the specification of being consistent and using imperial units for power as well as other metric because it's absurd you cannot graph the imperial units of the l c s one on the graph that the government has is purporting to do it's factually impossible that's summary judgment were reasonable but held that and i quote from the opinion that does not change the fact that the positions it took with regards to infringement from the conduct of lockheed martin through trial were unreasonable so there w physicians that the court found to be reasonable but just weighted them less strongly in light of some of the pre litigation sources of conduct that fascist attorney also claims that